Workshop on legal ethics, am

by Paul Maharg on 29/10/2011

The workshop started the evening before, at a dinner hosted by Clark and Nigel. After welcome & intros, where Clark introduced the National Institute for Teaching Ethics and Professionalism (NIFTEP), we started with a session on ‘Anti-money laundering, ethics and professional judgment: a teaching exercise’, co-presented by Nigel and Clark. We were shown a video of a conveyancing sale transaction, based on the case of R v Griffiths, starring Nigel as the solicitor, and Emma Oettinger of the Law Society of E+W as estate agent — good performances! We were then asked: what further investigation did the solicitor require? If he doesn’t do further investigation, will there be any civil or criminal liability? We were divided into small groups. Lots of discussion in my group, interesting issues.

Clark had a useful formulation for each of the small groups in feedback: do it as if you’re talking to the client. As he pointed out, students in the US (and in the UK too) are often put into the situation of judging, or assessing judgments. Rarely are they put into the situation of talking to clients, judging what clients say, and the situation that that may put the solicitor in.

In addition, he argued for professional judgment. Clark and I have been working on the topic for years. For my part I worked with the Law Society of Scotland to develop a set of professionalism outcomes that could be used not just in postgraduate vocational education, but undergraduate academic education as well. Clark’s work has included what he has done to develop NIFTEP, as well as the Teaching Legal Ethics site, and his work in clinic at Georgia, and much else.

He also took us through the Four Component Model of Morality (Rest 1983 — see also here) — which is composed of four moral capacities or predictors:
1. moral blindness
2. faulty reasoning
3. lack of motivation
4. ineffectiveness (relates to character or competence).
These are all possible reasons, possibly predictors, of professional misconduct.

The operational definitions are as follows:
1. capacity to interpret ambiguous clues in real-life settings
2. capacity to analyze moral issues and provide justifications for decisions
3. capacity to internalize and give priority to professional values
4. capacity for empathic interaction and problem solving.

See http://wwww.teachinglegalethics.org/content/developing-professional-judgment
Also — Cunningham, ‘Remediation program for dentists provides data on moral development important to all professions’, 76 Journal of the American College of Dentists 50 (2009)

Summarising this paper, Clark pointed out that dentists referred for misconduct
1. were 14 points lower than dental students on test of moral reasoning when tested for understanding of ‘professional responsibilities of a dentist’
2. On a score of 1-12, average score was 3.8.

Watching the second video, we were asked to evaluate ethical sensitivity. Interesting issues arose, when we described the lawyer’s performance vis-a-vis Rest’s Four Component model. Good method of trianulation: the model, our ideas, the lawyer’s performance.

Clark pointed out that three things are important: substantive knowledge, practice skills and professional judgment. If we separate these in our educational practice, we’re in danger of skewing the reality of practice.

Emma Oettinger, Law Society, wound up by giving us the sobering conclusion of the Griffiths case.

The general session consisted of fascinating ideas of how this resource might be used in the teaching that people do — not just in the vocational programmes, but in the undergraduate curriculum as well.

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