Reviewing the views
Ethics in legal education
Shakhawat Hossain Shamim
A lawyer is a liar” is an expression often seriously or sarcastically resorted by the people at large. As if 'lawyer' and 'liar' both words flow side by side. Does it hurt a lawyer? Lawyers are said to be the driving force of social change or social engineer, but regrettably lawyers' image in folks' parlance, even in the mind of clients, is very disdainful. Matter to be worried; this perception is getting from bad to worse day-by-day. Admittedly, lawyers contribute largely in this venture.
Why this dismal perception about lawyering? Is it for lack of ethics? To a greater extent the answer is in the positive. It is fair to say that “ethics” learning does not generally have an impressive place in our legal education. In our country, law schools' commitment to ethics learning can best be described as irregular. It is obvious that some law schools take their responsibilities in this area far more seriously than others, but overall there is no sustained or coherent emphasis on students' learning of ethics. The immediate reason may not be that difficult to find. As a matter of fact, the priestly requirements on ethics seem to be underestimated.
Experiences we come across in Bangladesh frequently, many lawyers apparently choose to represent the interests of unpopular clients rather than those thought to be more worthy recipients of legal services. They represent them in ways thought contrary to community interests. As to which clients are regarded as unpopular, and by whom, this will vary, but reservations about lawyers' roles in advancing unpopular causes seem to subsist.
We need to investigate the matter from the root. We need to go the state of ethical justice education in Bangladesh. As rightly described by Michael Robertson, a Professor of Griffith Law School, “questions for lawyers about which clients to represent, and in what manner to represent them, go right to the heart of what we loosely refer to as legal ethics”. Making decisions about the “who” and the “how” inexorably involve ethical considerations. Some of these decisions may well be constrained by the rules of legal professional responsibilities. These rules are commonly described by reference to well known duties such as those requiring that the practitioner's highest responsibilities is to the court, protecting the integrity of evidence, avoiding conflict of interest, and maintaining privilege, to name but a few. But much ethical decision-making in the legal professional role, it can be argued, is not constrained by clear, comprehensive and unambiguous rules, which means that there is far more to being an ethical lawyer than being able to identify and apply the rules of professional responsibility (A. Hatchinson: 1999).
The main argument is simply that ethical lawyering must become a far greater part of the venture of legal education than is presently the case. If we need to translate it into a reality, we need to set our student learning objectives in “ethics” much more clearly and ambitiously than we have hitherto been willing to do.
In line with the theme of this article, it is relevant to make few observations about lawyer and social change. Whether “good lawyering” necessarily contributes to, or results in, social change is difficult to determine. While there is some empirical evidence to suggest that zealous advocacy sometimes brings about welcomed social changes in some cases, there is probably also ample evidence to show that the opposite is often true. An ethical lawyer may contribute to solid and lasting defences of the stability of the society. We need therefore acknowledge that lawyers might just as easily frustrate social change if it is in their clients' interests to do so. Such as the price we pay for partisan, zealous advocacy, with its attendant absolution from moral responsibility. And even where lawyers' work does bring about change, it is surely not necessarily true that is inevitably the result of good lawyering. Might not bad lawyers also achieve good social change outcomes?
Some of legal experts encouraged to learn that discretion is an inevitable and regular feature of the practitioner's role, and learn to develop a deeper appreciation of the practitioner's responsibility to make difficult ethical choices in a variety of situations. Students must learn to develop a capacity to exercise careful judgment when called upon to do so, and that reflective deliberation and justification for choices is itself a key professional attribute. These practice may open the door to a more sustained exploration of emphasize ethics as some kind of technical, market place competency that can bought and learned alongside other skills like legal research, analysis, advocacy and interviewing.
Much of this discretionary activity can be described as the art or practice of making sensible choices or simply the art of good judgment. Weighing competing considerations in routine, mundane spaces, and less frequently in not very common place situations and exercising judgment on all these matters, is inevitably part of the life of a practitioner. We need to encourage our students to learn that yet we tend to convey the sense, quite wrongly that “ethical” decision-making properly speaking is not something that is routinely faced by legal practitioner, and therefore it does not really warrant more than limited and frequently discrete study in the curriculum. It goes without saying that subject learning objectives need to fit with the curriculum, and teaching methods and assessment need to be in alignment with the learning comes designed in each subject.
As has recently been argued, legal education has tended to exhibit a casual indifference to the learning of the other disciplines. In the context of learning about ethics, it is important to recognize that inter-dilemmas are just as much part of other professions, which are also “forced to use moral reasoning and judgment to resolve ethical issue”. To ignore valuable and relevant insights from other discipline that might assist in developing our understanding of ethical reasoning in the legal professional role amounts, it is argued, to a “disservice” to our students.
By the time they graduate, law students will have developed an understanding of the inevitable need for practitioners to exercise discretion in their professional roles, together with an understanding of the situational constraints that may have a bearing on ethical decision-making. At the same time they have to be able to recognize their consequent responsibility to exercise careful judgment in all situations calling for deliberation and choice, in the interests of their clients, the administration of justice, the community and themselves. This is what we may call community lawyering.
We might conclude, therefore, that behaving “ethically” in the sense of being a partisan and effective representative who is not expected to judge the client's cause-may have very little, or nothing, to do with being an advocate for and agent of social change. But it surely has everything to do with being a good lawyer.
The writer is Lecturer, Department of Law, BGC Trust University Bangladesh.
