Moral Philosophy and Moral Reasoning in Legal Ethics Teaching

1. Moral Philosophy and Moral Reasoning – A Suitable Basis for legal Ethics Teaching at the Academic Stage Eleanor Curran, Kent Law School

2. A Case Study - Teaching Legal Ethics at the Academic Stage • Introducing moral philosophy/moral theory • Using a text book with a theoretical approach • Discussion of case studies and topics in legal ethics

3. Background • LETR Proposals on teaching Legal Ethics at the academic stage – last discussion paper Feb. 2012. • The paper discusses the issue of ethics and values. It argues that ethics and valuesare at the core of training and regulation as they are integral to the concept of aregulated legal services provider. All approved regulators must ensure that theprofessional principles are adequately addressed in their training. The paper turnsagain to the issue of the place of ethics in the QLD, and invites more detailedresponses to the question of the extent to which, if at all, professional ethics shouldbe addressed at that stage. More generally, it also asks the question whether the‘underlying values of law’ should be addressed in training all authorised personsunder the LSA.

4. Suggestions for ethics and values at the academic stage • A. status quo maintained • B. a statement in the Joint Announcement of the need to develop knowledge and understanding of the relationship between morality and law and the values underpinning the legal system • C. as B above plus – and the role of lawyers in relation to those values • D. the addition of legal ethics as a specific foundation of legal knowledge

5. The Choice - A Rock and a Hard Place? • Legal ethics as a core subject in the LLB • Subject matter? Professional codes? Inculcating values? • implications for resources • who would teach it etc.? (e.g. in my own law school intake of around 440 – any core course requires large teaching team) • The relationship between morality and law and the values underpinning the legal system (and possibly the role of lawyers in relation to those values). Does 2. even require legal ethics? Or, something between jurisprudence and general notions about the place of certain moral concepts within law e.g. justice, equality

6. The Response from the Society of Legal Scholars (SLS) • “The SLS would see analysis of values within the legal system as a matter which is pervasive throughout the academic legal curriculum. It would therefore regard any specific statement in the Joint Announcement about values as being unnecessary (option A). However, if one were to be included, the Society takes the view that it should be in the form suggested at B (above).”

7. Why the Resistance? • Anecdotally – • Legal ethics perceived as • ‘teaching the professional codes • ‘inculcating particular values’, ‘indoctrinating students’ Objections to 1. Not appropriate at academic stage, constitute ‘vocational training’ rather than ‘education’ Objections to 2. Not appropriate as part of ideal of ‘liberal education’

8. Legal Ethics at the Initial Stage: A Model CurriculumAndrew Boon 2010 This report, commissioned by the Law Society addressed all of these issues and recommended ways of teaching legal ethics that would avoid the accusations of ‘indoctrination’ and/or ‘vocational training’ at the academic stage. The report argues that legal ethics can be taught in ways that are perfectly compatible with the notion of a liberal law degree, with its associated ideals of knowledge for its own sake and providing education of a person rather than training of a worker/professional

9. A Case Study – one legal ethics course (2/3 yr option one term only • Block 1 - Moral Theory plus a jurisprudential approach to legal ethics (D. Luban) • Moral Theory - Kantian deontology, utilitarian consequentialism, Aristotelian virtue theory (and ethics of care) • These three classical ways of thinking about morality provide students with a starting point, a vocabulary and ways of classifying and identifying different moral approaches to the questions of legal ethics

10. Students learn: • Three ways to locate and explain morality, crudely • Actions themselves as right or wrong (as determined by rational principles/rules) • The (good) outcomes of actions as determining the morally right • Morality located in the person and her virtues and the morally right action determined according to those virtues applied rationally

11. 2. The oppositional relationship between deontology and consequentialism (the use of ethical dilemmas such as the planting of a terrorist bomb and the question – can torturing the terrorist suspect’s four year old daughter be justified to try and save thousands of lives) to bring out the sense in which these theories are opposed.

12. David Luban’s Thesis – Lawyers Should Uphold Human Dignity • Question - – is our view of legal ethics determined by our legal theory (as well as our moral theory)? • Luban - ‘Natural Law as Professional Ethics: a Reading of Fuller’ • In his book ‘Legal Ethics and Human Dignity’ (CUP 2007) Luban argues:

13. Luban thinks that Fuller’s account of natural law makes the claim that it is lawmaking and lawgiving that is a moral activity rather than the claim that law’s content is necessarily moral. • This, says Luban, amounts to the claim that law’s morality lies in the professional ethics of the lawyer rather than in the propositional content of the laws.

14. According to Luban - the natural law character of Fuller’s theory is to be found in the functions of the lawyer as virtues • “Virtues are functional excellences, and a professional role is defined by its functions; take away enough of the professional virtues, and the result is simply not recognisable as the professional role” (107) • “If a lawyer is not doing any of the things a good lawyer does, she is not merely practicing law badly. She is not practicing law at all.” (107)

15. Luban makes grand claims for legal ethics! • He claims (Ch 4) that jurisprudence has been obsessed with the judicial process – what courts do and how judges reason in deciding cases (particularly relevant in the US because of the dominance of legal realism) – but –he says • “I want to explore the hypothesis that a better standpoint for jurisprudence is that of the lawyer, not the judge. If so, I suggest, legal ethics – regarded by some as a minor and trivial subject – undergoes a remarkable, Cindarella-like transformation to a central spot in how we understand law.” (131)

16. It gets better . . . • On the rule of law • ‘What if the rule of law establishes a moral relationship between those who govern and those whom they govern? Furthermore, what if sustaining this relationship requires moral attitudes and virtues on the part of the governors that are not simply disinterested forbearance and not simply the attitudes and virtues required of everyone?’ (ibid.) • And he goes on, ‘In that case, the rule of law would turn out to rely on the specifically professional ethics of the lawmakers.’ (Ibid., 100).

17. He then says ‘Finally, what if the professional ethics of lawyer-lawmakers – the moral relationship and attitudes and virtues required by the rule of law – cohere better with laws enhancing human dignity than with laws assaulting it . . .? Then we could assert that the rule of law morally constrains the content of laws. Which sounds like a natural law theory. And, if we understood it as a theory of the morality of lawmakers rather than the morality of law, then we would have a theory of natural law as professional ethics’. (ibid.)

18. Lubanis saying that legal ethics, rather than being merely a set of principles and codes of behaviour that a lawyer should follow in order to be an ethical lawyer, is something much more integral to the nature of lawyering. In other words, he wants to argue against the idea that you could just be a lawyer or you could be an ethical lawyer. Rather, his argument is that in order to be a lawyer, in order to practice law at all, you must practice law in a particular way.

19. This is highfalutin stuff! And gives students an example of legal ethics at its most rarefied – which they can then respond to negatively or positively • That concludes the ‘theory’ block • Next – A Case Study – ‘The Washington Torture Lawyers’ • Luban’s argument, • ‘this chapter will provide a case study of moral failure’ (Luban, 163).

20. the notorious ‘torture memos’ of the US Administration lawyers in the wake of 9/11 that pronounced severe interrogation methods (usually categorised as torture) and including waterboarding, to be legal.

21. Luban contends that in the case of the torture memos the law was clear. • The lawyers were faced with unequivocal legal prohibitions on torture. This meant that they had to ‘loophole shamelessly to evade the prohibitions’. • He further claims that they were disingenuous as legal analysis and in places the arguments they made were absurd. • ‘We can’t put this down to incompetence as the lawyers who drafted them included some of the ‘finest intellects in the legal profession’.

22. Immediately after 9/11 Administration lawyers were told to take a ‘forward-leaning’ approach, by which they meant aggressive and risk taking in their legal advice. • Connected to this was the ‘Cheney Doctrine’ or ‘one per cent doctrine’, where ‘if there was even a one per cent chance of the terrorists getting a weapon of mass destruction, the US must now treat it as a certainty.’ (Ron Suskind, quoted in Luban, 172).

23. This is relevant for the moral argument because it is similar to saying, ‘imagine a terrorist has hidden a bomb that will kill hundreds of thousands . . .’ • this will push people towards justifying acts they would normally consider morally wrong.

24. As Luban puts it, • ‘every interrogation becomes a ticking time-bomb case – and ticking time-bomb cases are the one situation where many people who otherwise balk at torture reluctantly accept that breaking the taboo is morally justified.’ (Luban, 172/173). • So, students now see how the discussion of deontology versus consequentialism plays out in this case study

25. Luban uses this case study to raise several other issues • The moral claim – Lawyers should uphold human dignity We must ask if the lawyers were simply doing what lawyers should do (providing legal advice, acting in the interests of their client etc.) If they were, then, as he puts it ‘so much for the idea that the lawyer’s role has any inherent connection with human dignity.’

26. So, students are being invited to question his argument that there is an inherent connection between (virtuous) lawyering and upholding human dignity • this argument relied on the contention that lawyering is a purposive activity, defined by its function, which turned out to be ‘reducing the relations of men to a reasoned harmony’ and which required giving independent, candid, honest legal advice that accurately reflects the law

27. He has already made the claim that, • ‘Torture is among the most fundamental affronts to human dignity, and hardly anything lawyers might do assaults human dignity more drastically than providing legal cover for torture and degradation’. (163) • Then he raises a problem for his ‘ethical lawyer’ • What if the law clearly and explicitly permitted or required torture? Then, ‘legal advisors would face a terrible crisis of conscience, forced to choose between resigning, lying to their client about the law, or candidly counselling that the law permits torture.’ (ibid.)

28. This is also a chapter on the legal ethics of opinion writing. What is required is ‘honesty, objectivity and non-frivolous argument regardless of the subject matter’. (205) Frivolous arguments lie way on the arms of the bell curve. • Frivlous arguments are so far out as to take broad liberties with legal text such that no one mainstream would accept them.

29. The evidence shows that all these Memos were written under pressure from officials. • ‘An interpretive community that contours its interpretation to the party line is not engaged in good-faith interpretation.’ (197) • e.g the Bybee Memo in certain sections ‘barely goes through the motions of standard legal argument’ it ignore counter arguments, has sparse citation of legal authority and fails to mention directly adverse authority.

30. There are several issues and problems for students to consider • Issues concerning the ethics of lawyers’ ‘loopholing’ to help their client • Issues concerning the nature and ethical limits of legal advice giving • Luban’s thesis that lawyers should uphold human dignity • Opinion writing – legal interpretation – ‘frivolous’ legal arguments versus ‘creative’ legal arguments • What if the law is immoral (allows or encourages torture)?

31. The remainder of the course covers more conventional topics within legal ethics • Adversarial advocacy – justified immorality/amorality? Ethical questions thrown up by notions of zealous advocacy • Autonomy and the Lawyer/Client Relationship • Confidentiality • Wrongful obedience: Ethical Judgement in Organisational Contexts

32. My Argument for Theory-Lead Teaching of Legal Ethics • Given the resistance of many within the academy to teaching legal ethics at the academic stage • And • Accepting the argument that teaching the professional codes and/or inculcating values are inappropriate at the academic stage • A theory-lead, critical approach to legal ethics addresses both of these objections

33. The professional codes can still be looked at and discussed but students are encouraged to think about and question the codes, what they set out to do, how effective they are etc. rather than to learn them as rules to be followed (which can be done at the professional stage) • All the usual topics within legal ethics can still be covered but with a critical approach, so, again, different arguments are discussed and debated, e.g. on the lawyer/client relationship – autonomy/paternalism etc.

34. Case Studies • Case studies such as Luban’s discussion of the ‘Washington Torture Lawyers’ are very useful and productive for testing students’ understanding of the ethical issues raised and their ability to debate these issues • Other case studies – e.g. on wrongful obedience • The Milgram Obedience Experiments of the 1960s • ‘Enron – The Smartest Guys in the Room’ – The Scandal that led to the collapse of the Enron Corporation in the US (incl. Nancy Temple, lawyer for Arthur Anderson, Enron’s auditors being questioned by a Congressional Committee)

35. Examiningthe Codes • The professional codes can be examined in a critical way by choosing examples for seminar work and asking questions such as, • ‘what ethical principle or principles underlie rule x?’ • ‘what, if anything, is the solicitor in sample x doing that is morally wrong? What can you find in the SRA’s code of conduct that shows he behaved unethically?’ • Sample Exercise • The Cab Rank Rule • Client interviewing

36. Books Used in the Course • David Luban, Legal Ethics and Human Dignity, (CUP 2007) • Richard O’Dair, Legal Ethics, Text and Materials, (CUP 2007, first published by Butterworths 2001) (The client interview used in the seminar is on p 189-192) • Daniel Markovitz, A Modern Legal Ethics, Adversarial Advocacy in the Modern Age, (Princeton University Press 2008) • Donald Nicolson and Julian Webb, Professional Legal Ethics, (OUP 1999, reprinted 2005)