How to Teach Legal Ethics: Best Practices around the globe in some of the best Universities.

1. The Effective Teaching of Legal
Ethics-Theory and Best
Practices
Varun Vaish (2008-74)

2. Structure
 Link between Legal Education and Ethical
Lawyering.
 Ethics, the Dog of law School-Why?
 Theory for and against-Ethics need not,
cannot and should not be taught.
 Best Practices.

3. Link between Legal Education and
Ethical Lawyering.
 Anthony Kronman penned a treatise in 1993 on the
increasing decline of ethics and morality in the legal
profession, wherein he expressed his concerns about the
legal profession losing its foundational ideals as a whole.
 He opined that for the most part legal education was to be
blamed for this problem since it did not create lawyers
‘cultured in ethics and grounded in morality’
 While enunciating an intrinsic link between legal education
and the legal profession, Felix Fletcher also observed that
the law is essentially what lawyers are and lawyers are
in essence what law schools make them.
 A firm conviction exists that the problem of declining
virtues in the legal profession finds its roots in the law
school

4. Link between Legal Education and
Ethical Lawyering. In 2005 report of the Working Group on Legal
Education (an initiative of the National
Knowledge Commission established by the
GoI) highlighted that the main aim of legal
education was to impart justice oriented
education to young minds who have
consciously chosen to be lawyers.
 This aim, it stated, “requires that high
standards of professional ethics and
morality, coupled with a spirit of public
service, be inculcated in a law students from
the very beginning.”

5. Link between Legal Education and Ethical
Lawyering.
 Legal ethics it is felt requires of critical reflection
vis-à-vis professional expectations, which it is felt
can be developed only during law school.
 Furthermore the adoption of ethics while
practicing the law, where one is burdened with
expectations of doing well, with no real support
from other lawyers, who would in all likelihood be
dealing with similar dilemmas, becomes very
difficult.

6. Legal Ethics-Dog of law school
 Unfortunately the study ethics and morality in the
legal profession constitutes a minuscule portion of
the overall curriculum.
 Such is the indifference to the course in question
that one Harvard Law School Faculty was quoted as
stating that such a course "is not important, or that
it's all obvious or irrelevant, because the demands
of the world will dictate how they behave."
 Most attribute this current state of affairs to the
Bar Council which has made it mandatory for this
course to be taught, thereby chaining faculty,
whereas many other attribute it to the neglect
shown to the course by the faculty itself to issues
of ethical importance.

7. Why LE is treated as 2nd
class?
 An explanation as regards to why courses on Legal ethics are
relegated to a second class status has been offered by Ronal
Pipkin in his study on legal education in the 1970’s which
squarely attributed the blame to a “curricular paradox” that
exists in law school syllabi.
 In law school teaching, first and foremost analytical decision
making is sought to be inculcated within students using the
Socratic Method of teaching.
 Sensitivity bought about by teaching through discussions,
ranks last in the hierarchy of educational goals at law
schools.
 Traditional law school debate breaks down and student who
have otherwise been taught to master the art of rational
logic, are suddenly faced with having to deal with ethical
positions which involve fair degree of personal and
emotional stakes.

8.  Pipkin in another study conducted in 1976, concluded that as a
law student is on the verge of graduating, he views his time
spent in law school with increasing disdain and hence the
seeds of legal ethics mustn’t be sown at such an unreceptive
time, i.e. late in the law school curriculum.
 Then there exist claims of the intrinsic hypocrisy in Law
Schools themselves, which portray to students the fact that they
do not always follow the laws they preach.
 For example, pro bono work is considered an essential tenet
of legal professional responsibility, however law school
placement offices hardly ever direct students towards non-
profits, but rather largely towards corporate law firms
representing them to be the only viable mainstream career
option after law school.
 This dichotomy further serves to undermine legal ethics in the
mind of the law student.

9. Ethics need not, can not and should
not be taught?
 Members of the faculty often feel that ethics need
not be taught in law school, in part because they
feel that there should be a clear separation
between the academic study of law as a
discipline and the practice of law as a
profession.
 However in counter to this argument it is said that
thought the study of ethics has a strong practical
element, one cannot say that it is not an
academic subject in its own right.

10. Ethics need not, can not and should
not be taught?
 Need not be taught-They believe that a invisible
hand rewards ethical practitioners, which in turn
provides them with an impetus to remain ethical
and disciplinary committees exist merely to weed
out a small number of truly bad apples.
 Though this may be true, it still does not take
away from a law schools duty to provide tools to
lawyer to help them make their decision or
understand the consequences thereof, on way or
the other.

11. Ethics need not, can not and should
not be taught?
 Cannot be taught- They operate under the
belief that law students are young adults
whose values are “fully formed prior to law
school and are not likely to change”.
 It has been adequately proven that ethical
absorption continues well into adulthood
and values can change at later stages of
life.

12. Ethics need not, can not and should
not be taught? Should not be taught- Prof. langdell’s case study method.
 This was a time when higher education was undergoing a
paradigm shift from moral to scientific.
 Professor Langdell taught the law as a science wherein he
distinguished between facts, which could be taught, and values,
which could not.
 Ethics were in the realm of values which could not be taught.
 Langdell carried the analysis and dissection of appellate cases
with the same precision of as that of a scientist in a chemistry lab
and while most law professors don’t view themselves as
scientists, they continue to apply the langdell’s pedagogical
approach and strictly separate legal from ethical questions.

13. Ethics need not, can not and should
not be taught?
 Students often ask questions pertaining to ethics of a
particular legal doctrine only to be reprimanded by
their professor who would state that the subject of the
class was law, not ethics.
 However today the fact-value distinction is no longer
thought to be relevant and ethics have regained their
place as a respectful and serious academic subject
throughout higher education.
 In fact even the scientific fraternity has accepted the
fact that science and ethics do in indeed mix and are
not mutually exclusive.

14. Best Practices-Teaching of Ethics
Pervasively
 Kronman and Edwards both have argued that the
real problem of declining ethical standards and
morality starts at law school where ethical
education forms a minor percentage of the focus
levied on courses such as Constitution or
Contracts.
 Students are left astray to garner ethics and
develop morality all on their own and while some
do, most choose to ignore developing it because
it does not have as much weightage as a course
in Penal laws or Corporate law.

15. Teaching of Ethics Pervasively-UCLA
Case Study.
 The pervasive method “teaches students the
skills . . . to identify and analyze (ethical
questions) in settings where ethics is not
the primary focus of attention.
 UCLA developed a mechanism to impart
such education via an infusion of ethics
‘throughout the law school curriculum’,
and not just during a single distinct
course.

16. Focus of this method-
 The ultimate goal sought to be achieved by this
new method was that students should know how
to recognize a legal ethics issue, even if they
could not immediately find “the right answer,
while at the same time developing some sense of,
self-regulation, individual responsibility, moral
and professional questioning, and concern for
the public interest and welfare.
 The infusion method in essence required faculty to
develop materials and exercises that would
integrate legal ethics into their substantive
courses.

17. Infusion This infusion no doubt required some measure
of re-education of the law school faculty,
wherein they were trained to utilize new
teaching technologies, such as experiential
exercises, film and videotape, role-playing,
historical material, and real case problems
pertaining to ethics dilemmas in traditional
law school courses.
 Participatory and experiential learning in
specific practical contexts forms the base of
such learning with the specific focus of
making students proficient in the making of
decisions where rules were less than clear or
unambiguous and where lawyers were called
upon to consult their own personal and
professional ethics.

18. Benefits
 At UCLA the benefits of exposing law students
regularly to legal ethics in the context of substantive
law was that students began to view legal ethics not
as a distinct field but rather as an essential
component of everyday practice as a lawyer.
 They also garnered the ability to identify ethical
issues in different contexts with greater clarity.
 Exposure to ethics early in the law school so that
students will already have a foundational framework
as they begin to encounter ethics in their infusion
courses in other substantive subjects.

19. Ethics as the most important subject in
law school.
 They believe that to teach ethics seriously it must
be restructured as the most important subject in
law school.
 It has been suggested that innovations in the
teaching of legal ethics will not have any
significant impact and only the acknowledgement
of legal ethics as the most important subject in
law school curriculum will lead to significant
changes in the pedagogy surrounding legal
ethics.

20. Why as the center of the curriculum?-
Fordham University Law School.
 This notion is born out of the belief that when
viewed from the lens of pragmatism, legal
ethics is the only subject that every student
who becomes a lawyer will encounter in
practice.
 This rechristening of ethics as the most
important subject in law school will not
surprisingly require significant
overhauling of the law school curriculum.

21. Course Structure
 Firstly Legal ethics would have to be a course
carrying a minimum three credit in the first year of
law school to convey the clear message to both
students and faculty that that ethics is a
foundational component of what it means to think
like--and to be--a lawyer.
 This particular course cannot merely be
indoctrination in the rules of professional ethics,
but instead must teach those rules in context with
a focus on their purpose and history, and always
with fair concentration on the role of lawyers and
their dominant conception as aids in distributes
justice and maintenance of order.

22. Contd.
 Secondly where most law schools require only one course in
legal ethics to date, the new curriculum would require a second
more advanced course on legal ethics towards the end of
one’s law school tenure, for two reasons.
 First to demonstrate the fact that ethics remains central to
their development as lawyers and also to incorporate a
broad perception of ethics into their final assessment of their
practical experiences as students, including the formation of
their self-image as a practitioner in the particular field they will
pursue after graduation.
 Fordham Law has led the way by providing such courses in the
final year that are specific to the chosen area of practice of the
concerned law student, such as Ethics in Corporate Practice,
Ethics in Criminal Advocacy, Ethics in Public Interest Law,
and Lawyering for Individuals etc.

23. University of Maryland-Best Practice
 Another major positive development as witnessed in
University of Maryland law school has been the
infusion of ethics in moot courts and pro-bono
legal aid work and other clinical programs, as
these programs, have proven to be significantly
more effective than classroom teaching in terms
of providing a more visceral knowledge to
students regarding professional responsibility in
general and providing accessibility to the justice
system to the indigent in particular.

24. Harvard,West Virginia University College
of law, NYU-Reliance on Unorthodox
Materials.
 As per Dean Wilkins of Harvard Law School, while casebooks
on legal ethics are still important, they are second in
importance class to clips being shown of Legal T.V. shows that
focus on ethical and moral dilemmas that lawyers face.
 “The way to engage people into thinking about ethics is to give
them stories--not rules, not abstractions,” says Jim Elkins,
who teaches at West Virginia University College of Law.
 New York University's Stephen Billers shares the same
sentiment when he states that: “The more we can stimulate or
incorporate a story in which the student plays a role, the
better the course.”


25. Reliance on Unorthodox Materials Contd.
 Another methodology increasingly being applied by
law schools are the viewings of video taped
interviews of lawyers who are disbarred, who are
otherwise viewed as ‘aliens’ along with
interviews of their clients, to bring about a better
understanding of the reasons for their conduct
and establish the more humanistic side of the story .
 This it is felt imprints more on the minds of
students, then reading facts about a particular
incident

26. Cont.-Connect with Practicing lawyers
 In addition many law professors are of the opinion
that if legal ethics are to be taught it should ideally
be done through collaborations with practicing
lawyers and individuals already engaged in the
legal profession.
 For example the American Inns of Court is a
voluntary organization that brings together
Judges, Senior Lawyers and Law professors, and
organises them in teams with 3rd year law
students and young lawyers for the purpose of
carrying out presentations in relation to
advocacy issues and ethical dilemmas, all in an
attempt to foster a mentor-mentee relationship
which develop skills in professionalism.

27. Lessons from UWO and U of T
 It is felt that law schools can enhance their teaching of legal ethics
by having comparative information of what is being done in
different jurisdictions:
1) Committee on Professionalism
2) Mandatory First year Course on Professionalism and Legal
Ethics.
 Chief Justice of Ontario's Advisory Committee on Professionalism.
 This committee consisted of representatives of the judiciary, the
Law Society of Upper Canada, the legal academia, and various
provincial and county law organizations.
 The goal of the committee was to spearhead various projects,
make recommendations and act as a clearing house for ideas
that would promote professionalism.
.

28. Committee on LE and Professionalism.
 Since its inception the committee has performed three specific task for the
growth of professionalism.
 firstly laying down a definition of professionalism to help lawyers better
understand the importance of professionalism and its impact on their work and
on the justice system.
 Secondly the committee organizes two conferences each year, with the aim
of producing scholarly articles and commentary on the various aspects of legal
ethics and professionalism
 Third and most importantly the committee has established a sub-committee
with the specific task of promoting and improving the teaching of
professionalism with a representative in every major university in Ontario.
 This sub-committee organizes conferences in various law schools, which
centre around themes such as, challenges involved in teaching legal
professionalism, making professional education a life-long process, teaching
civility in the courtroom, and improving the instruction and evaluation of ethics
etc.

29. LE infusion in other courses database.
 One of the primary concerns of non-specialist faculty was
the fact that resources needed to be developed to make
it easier for non-specialists to teach legal ethics as a
component of their courses.
 Hence the sub-committee decided to create a database
or inventory of teaching resources for legal ethics and
professionalism.
 It asked professor in each law school to gather information
from his or her institution to be sent to the committee in
order to gather a wide range of material.
 Relevant books, articles, unpublished conference
materials, and cases would be included, as would
course outlines, assignments, exams, and problems for
discussion and organised not only as topic areas within
ethics, but also in terms of how they might be used in
other law school courses.

30. Ethics as a mandatory 1st
year Course
 Teaching ethics in the first year has the advantage of
exposing students to at least the basics of ethics, making
them more interested in taking optional courses on ethics
later on.
 In addition ethics and professionalism courses are
sufficiently foundational that they should be introduced in
the first year of legal studies.
 However it is felt that whatever is gained from first students
in terms of their enthusiasm and interest in the course is lost
in terms of their lack of knowledge as first year students may
find it difficult to understand the issues and the contexts
in which they arise.
 Teacher at UWO were advised to endeavour to pitch the
material at the right level.

31. Structure of the 1st
year Course at UWO
 It ran for ten weeks in the spring term from February to April.
 Each week the class met for between two and three hours.
 The teaching was mainly by lecture although there were some debates
between the instructors and students, based on the understanding that that
if the teaching of legal ethics is to move beyond the mere teaching of rules
and provision of a professional code and cause students to introspect on
their own values and their relation to the profession. Small groups and
intensive discussions are critical.
 Central topics for the lectures were an
 introduction to ethical theory,
 an introduction to legal ethics,
 the role of the regulator,
 the discipline process,
 integrity and professionalism, c
 Confidentiality and its exceptions,
 conflict of interest,
 civility in the adversarial system,
 ethics of advocacy,
 and defending the guilty.

32. Developments at the University of
Toronto
 The first year at the University of Toronto features what are called “bridge
weeks”.
 During each of these weeks, which may be scheduled at different times
throughout the course of the academic year, the normal course
schedule is suspended and students spend the week on the intensive
examination of a particular topic.
 Previous topics have included critical legal studies, law and
development, law and economics, and legal pluralism. Students write a
paper for each of the three weeks. The two shorter papers are on a pass-
fail basis and the longer one is graded.
 In January 2003 the University of Toronto decided to devote one of the
bridge weeks to legal ethics, and this has continued each year since then.
 This method has the evident benefit of exposing first year students to
legal ethics in an intensive manner without the rigor of a full term
course, and where students are graded by way of a short paper on a pass
and fail basis.

33. “I had learnt the true practice of law. I had learnt to find the better
side of human nature and to enter men’s hearts. I realized the true
function of a lawyer was to unite parties riven asunder. The lesson was
so indelibly burnt into me, that a large part of my time during the
twenty years of my practice as a lawyer was occupied in bringing about
private compromises of hundreds of cases. I lost nothing thereby –
not even money, certainly not my soul.”
- Mahatma Gandhi, 1927
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