This was a rather unfair judgement on an interesting course, which was not so much about specific duties as about thinking abstractly about what kind of factors should influence lawyers when faced with moral problems. It was during that course that I first encountered the idea of professional role morality: the idea that resolving ethical dilemmas as a lawyer might not involve simply doing what feels right personally but might concern the wider purposes of the legal profession.
The question of what to do about information overlooked by the prosecution which might demonstrate your client is dangerous is not one answered by your personal view of that particular client. Instead it fits into a professional ethical framework, where there may be competing interests between a court not being misled and client confidentiality. It’s obviously right that any subjective distaste for a client shouldn’t influence how you deal with this situation, but does that mean your own personal morality is disengaged when working out how to negotiate that framework and how to couch an answer to a particular judicial question? How well can we explain our decision to speak or be silent in a way that makes real moral sense?
Computer says no
It may be possible for lawyers to get into the practice of following ethical rules that have been only partly assimilated without any understanding of the moral logic underpinning them. It is perhaps dangerous if one starts to see rules and codes as computational devices which simply require a morally neutral lawyer to input information. Through the application of some clever algorithm in the code, a definitive answer can be calculated without any further moral effort being required on the part of the lawyer/inputter. A lawyer who views a professional code as an amoral piece of programming featuring isolated logic-gate style rules may find it much harder to deal with a grey-area ethical dilemma than a lawyer who has a proper grasp of the moral outcomes that those rules were meant to deliver. Some recent research suggests that in order to have that proper grasp of what codes of conduct and ethical guidance are meant to achieve, lawyers need to engage more with their personal morality.
New advocates’ ethical capacities
Research commissioned by the Inns of Court College of Advocacy (ICCA) into the ethical capacities of new advocates revealed that there was a tendency for advocates to re-frame ethical questions as tactical questions (see The Ethical Capacities of New Advocates, Richard Moorhead, Catrina Denvir, Mark Sefton and Nigel Balmer, UCL Centre for Ethics and Law).For example, to justify particular courses of action based on what information was likely to come out anyway and what would look good or ill to a court. Indeed, a number of advocates appeared to adopt what were described as ‘shallow interpretations of the facts’ to dodge obvious ethical issues such as ‘I think the judge is just making a statement, not really asking me a question’. There was even an example of an advocate who said they would tip off the prosecution about confidential information to avoid a situation in which dealing with this information might become the advocate’s problem in a hearing.
The variety of approaches was commented upon, with interviewees interpreting the client’s best interests in ‘diametrically opposed ways’. There seemed, overall, to be a lack of confidence in dealing with ethical issues as ethical issues. The importance of particular clusters of personal values (social recognition, conformity, fairness, benevolence) for each advocate was assessed via an online tool, and analysis was performed to assess the associations between the personal values of advocates and their response to moral problems.
The report suggested that: ‘An advocate that better understands his or her own values may better understand and improve their own decision-making. An understanding of the subjective elements of ethical decision-making may merit inclusion in ethical training.’
Virtues-based reasoning vs rules-based systems
One ongoing programme that will encourage lawyers to engage with their own personal morality is the Character, Virtues and Education of Professionals Project being run by the Jubilee Centre for Character and Virtues at the University of Birmingham (see Interventions in Trainee and Student Teachers, Lawyers and Doctors). This consists of an online training course for teachers, doctors and lawyers focusing on character, building practical wisdom, and understanding what it means be a virtuous professional. It is primarily aimed at students but some practising professionals have also participated in the project.
I spoke with Dr Tom Harrison, the Director of Education at the Centre, about why the project focused on virtue-based reasoning as opposed to rules-based systems of ethics. He explained it was not suggested that professional bodies could get rid of rules, but that the Centre’s research had indicated that to enhance moral decision-making ability, an understanding of what the rules were had to be supplemented by an understanding of different types of moral systems.
Teaching trainee professionals about virtue ethics would involve moving away from a purely rules-based understanding of codes that may be disciplinary in nature or set only minimum standards, and taking a more aspirational and person-centred approach to professional ethics. This approach would necessitate active moral engagement by lawyers, encouraging them not to ask ‘what rules must I follow to insulate myself from a complaint?’ but to consider ‘what a virtuous lawyer would do in these circumstances?’.
Interestingly, Harrison did not consider that thinking about the applicable virtues to be sought in a given situation required there to be a pre-existing moral consensus imposed from the top down. Instead, he thought that professionals should come together and think through issues from the starting point of individual personal morality to build a professional consensus on what it is to be a good lawyer. Although there are widely accepted normative assumptions about what is right and wrong, this process of person-centred professional debate may assist in creating guidance for those situations where there are no easy answers.
Sublimation is not elimination
There may be something counter-cultural and possibly even alarming about this focus on personal ethics to those of us embedded in a professional culture that values rules, objectivity, and the sublimation of personal views in the name of impartial representation. But sublimation is not elimination, and personal values inevitably influence how we interpret rules or concepts such as ‘client’s best interests’, as the research conducted for the ICCA demonstrates. The Jubilee Centre invites trainee lawyers to engage in real reflection in terms of their own character strengths and blind-spots through teaching and practical examples of ethical dilemmas. The pilot character education course encourages trainees to have heightened self-awareness about how their personal values will shape their interpretation of professional ethics (see Character, Phronesis and Professional Education, Tom Harrison and Binish Khatoon (2017)).
Established practitioners: no room for complacency
As the Vice Chairman of the Bar commented in Counsel’s ethics column (‘The only way is ethics’, March 2016), there is no room for complacency by those of us who are no longer trainees or newly qualified. New working environments, the new, more outcome-focused Code of Conduct, and our own sense of professionalism require each of us to ensure that we are developing our ethical knowledge as our careers progress and the available ethical resources expand.
Harrison considers that some of the materials being developed by the project may be able to assist established practitioners who wish to think more critically about their reaction to ethical dilemmas. One of the central concepts in virtue ethics is that of practical wisdom, which may be thought of as an ability properly to evaluate the moral character of things in order to seek after virtue and act in way conducive to the good life overall. It is this quality which will assist professionals decide the best thing to do when virtues clash.
Practical wisdom is perhaps by its nature something that can only be achieved over time, through experience and reflection. Continuing professional development which could address some of the challenges exposed by the ICCA report and build on some of the academic work done in this field might be CPD that could meaningfully be said to make us better lawyers.
Contributor Mary Cowe is a barrister at Guildhall Chambers, Bristol and a member of the Counsel Editorial Board