Teaching Ethics in a Recession

Paul Horowitz at PrawfsBlawg has noticed that the economy appears to have an influence on how law students approach problems in legal ethics.

In particular, students seem to adhere to a more client-loyal view of legal ethics, rather than espousing the overarching duties that lawyers have to the court. This, Professor Horowitz says, leads students in class discussions to give answers that are aimed at keeping the client, rather than providing recommendations that might risk having the client take the file elsewhere. In addition, students tend to favour non-disclosure where ethical rules are permissive about the breach of confidentiality.

The post, and the observations in it, are fascinating. But they reveal the weaknesses inherent in a rule-based approach to ethics, as opposed to a values-based approach.

I have written here before, that in my view, it is not enough to articulate a set of rules, and then anoint them as the code of professional conduct applicable to a particular jurisdiction. Professor Horowitz’ observations illustrate the reason: there is no limit to human ingenuity when it comes to circumventing particular rules to suit one’s own circumstances.

And make no mistake: a tendency toward preserving the client relationship when lawyers perceive clients to be scarce is to favour the lawyer’s own interests over his duty to the justice system.

The better approach is to foster a legal culture that predisposes lawyers toward ethical conduct. This begins in law school by teaching students to value the integrity of the judicial system over the relationship with a client where the two are in conflict.

Public respect for the profession demands that lawyers act in ways that demonstrate not only that they can be trusted to further the client’s best interests, but that they will also preserve the system of justice as a whole. Preserving the integrity of the system cannot be something that is cast aside when the economy is difficulty. It is a value that should be near to the heart of every lawyer, irrespective of the state of the economy.

h/t: Legal Ethics Forum