Ethical Lawyers Are Made Not Born

Prospective employers and recent law grads identify ethics and professionalism as crucial competencies for new lawyers. In a recent article Professor Neil Hamilton summarized various empirical studies showing that legal employers rank “integrity, honesty and trustworthiness” as a crucial quality in a prospective lawyer hire, regardless of the type of legal work for which the lawyer is being hired. Similarly, new graduates view professionalism as one of the most important skills for the new lawyer. In his article Hamilton notes a survey by Canada’s own Federation of Law Societies in which lawyers who graduated between 2007 and 2012 indicated that “ethics and professional skills” are essential competencies in legal practice (survey data is here).

From this review Professor Hamilton suggests various conclusions. One is that employers should try to identify hiring criteria to identify those candidates with the necessary “integrity, honesty and trustworthiness” (p. 17). Another is that law schools should incorporate competencies related to “values and virtues”, such as “Commitment to self development toward excellence at all competencies; Initiative/drive/strong work ethic; Integrity, honesty, and trustworthiness; Self awareness, the capacity to recognize strengths and weaknesses, seeks/responsive to feedback” (p. 28)

While I can’t help but be pleased to see this apparent consensus on the importance of ethics and professionalism to legal practice, I think the conversation as framed has the potential to lead us astray. It does so in two ways: by overly generalizing legal ethics as a topic for discussion and by assuming that it is ethical actors who create ethical behaviour.

Is “legal ethics” a thing?

The descriptors “legal ethics” or “ethics and professionalism” do usefully provide an overarching descriptor for the norms governing legal practice. When we say that a law school course, or a textbook, covers legal ethics, most lawyers know the sorts of topics that course or textbook will cover, just as they would know what was covered by a course or textbook on evidence. It will surprise no one, for example, to see that the list of topics for the required ethics course developed by the Federation of Law Societies includes the lawyer as a fiduciary, conflicts of interest and confidentiality. At the same time, however, not much of importance follows when the conversation stops at that level of generality. Saying that we want lawyers to act ethically is about as useful as saying that we want governments to act constitutionally; both are self-evidently true, but they reveal nothing about where the points of difficulty, challenge and contention arise in accomplishing those goals.

As a consequence, if we want to develop the appropriate ethical competencies in law students, or find them in new lawyers, we need to be specific about what those competencies are, both for lawyers in general and in specific practice areas in particular. The Federation of Law Societies clearly recognizes this as indicated by its specifications around the ethics course and by the fact that in the survey cited by Hamilton they asked the new graduates about specific skills within the area of ethics such as screening for conflicts and in relation to managing trust accounts. That conversation, though, could go much further. What are the ethical risks for a lawyer practicing in a large law firm? For a family law practitioner? For an in-house counsel? For a criminal defence lawyer or Crown prosecutor? For an insurance defence lawyer? If we want to talk about the ethical skills that law schools should teach, and that new lawyers require, those are the conversations we need to have. Talking about honesty, integrity and trustworthiness, professionalism, tells us very little.

Creating ethical practice

The far bigger issue with Hamilton’s study and recommendations, however, is their underlying assumption that it is ethical people (and lawyers) who create ethical practice. This assumption is wrong. It is true that the kind of person I am will affect the choices I make. However, that is demonstrably true not in relation to my possession of particular moral virtues, but is rather true in relation to my personality – whether, eg, I am an introvert or an extrovert – and in relation to my development of good moral judgment (as a matter of reason and intuition). Further, the kind of person I am will affect my behaviour in a far less significant way than will the circumstances in which I find myself. As I have discussed in a number of papers (see, eg, here, here and here) there is far greater consistency of behaviour by different people within a single situation than there is from the same person across different situations. When, for example, a test is administered in circumstances that enable cheating, students generally will cheat; when a test is administered in circumstances that discourage cheating, students generally won’t cheat.

What this means is that if we want ethical legal practitioners we not only need to identify what constitutes ethical practice in particular practice settings, we also need to create a culture and circumstances of legal practice that encourage those behaviours, and discourage those which are unethical. If, for example, unethical recording of billable hours is an issue in large law firm practice, the circumstances of practice in a law firm, and the regulation of law firms (by clients or by regulators) need to be designed to discourage unethical billing. Trusting individual lawyers to be ethical, or trying to hire honest lawyers, is unlikely to make any material difference in creating that sort of good behaviour (or any other).

As a consequence, my recommendation to employers seeking ethical lawyers would be: know what ethical behaviours you want, and the risks your practice area presents, and create a culture and circumstances of practice that encourage ethical behaviour.

My recommendation to law schools would be, have faculty who engage critically and intellectually with the question of what it means to be an ethical lawyer. Research and write about how to create circumstances of practice that foster ethical behaviour. Contribute to the creation of a culture in the profession in which ethical behaviour is normal not exceptional. Help students develop their ethical intuitions and moral reasoning skills. And accomplish these things in part through providing students with a strong education in their core legal duties as lawyers.

My recommendation to the profession would be use regulation and the profession’s self-governing status to facilitate the creation of circumstances of legal practice that encourage ethical behaviour and a culture of legal practice in which ethical conduct is expected.