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Pitel, S G A --- "The Teaching of Legal Ethics: Recent Developments in Ontario" [2007] LegEdDig 6; (2007) 15(1) Legal Education Digest 16

The Teaching of Legal Ethics: Recent Developments in Ontario

S G A Pitel

[2007] LegEdDig 6; (2007) 15(1) Legal Education Digest 16

55 J Legal Educ 4, 2005, pp 592–599

Law schools can enhance their teaching of ethics in many ways, and often there is much debate about what teaching method will work best at a particular school. It therefore makes sense for law schools to consider what is being done at other schools and in other jurisdictions. In jurisdictions where students are required to study legal ethics in law school, this information can assist in course development. In other jurisdictions, it can assist law schools in deciding whether to make ethics a mandatory course.

In September 2000 the Chief Justice of Ontario created an Advisory Committee on Professionalism to maintain and encourage those aspects of the practice of law that make it a learned and proud profession. It is composed of representatives of the judiciary, the Law Society of Upper Canada, the legal academy, and various provincial and country law organisations. The committee acts as a steering committee for various projects and as a clearinghouse to generate ideas and make recommendations to other organisations and individuals within the legal community about ways to enhance professionalism.

Since its creation the Committee has pursued three specific projects. First, the Committee drafted a definition of professionalism that forms a backdrop for the Committee’s other projects.

Second, the Committee is organising two colloquia each year for seven years on various aspects of professionalism.

Third, and most relevant to Ontario’s law schools, the committee is working, through a subcommittee, to promote and improve the teaching of professionalism

Accordingly, the subcommittee agreed to embark on a project to create a database or inventory of teaching resources for legal ethics and professionalism. It asked each Ontario law school representative to gather information from his or her own institution, organise it, and submit it to the subcommittee to be further organised. The aim was to gather a wide range of material. Relevant books, articles, unpublished conference materials, and cases would be included, as would course outlines, assignments, exams, and problems for discussion. These would be organised not only by topic area within legal ethics, but also in terms of how they might be used in other law school courses. This would allow, for example, an instructor of a course in corporate law to quickly identify legal ethics materials — readings, exercises, and assignments — that could be used in his or her course.

The database is a work in progress.

Until very recently, none of the six Ontario law schools had a mandatory course in legal ethics. All offer an upper-year course on the legal profession, but these courses are optional. Beyond this, the approach appears to be either that the law schools do not see it as a core part of their mission to teach students legal ethics, leaving that to the Law Society or the profession more generally, or that legal ethics is taught using a pervasive or interstitial approach. Under this approach, legal ethics is taught not in a separate course but rather as a component of several courses.

My view is that Ontario law schools should have a mandatory course in legal ethics.

Some members of the faculty thought that legal ethics should not be taught in law school, in part because there should be a clear separation between the academic study of law as a discipline and the practice of law as a profession. The study of ethics has practical elements yet it is nonetheless an academic subject in its own right.

Other faculty members felt that the current teaching of ethics was sufficient. Yet legal ethics was not formally part of any first-year or upper-year required course.

Mandatory ethics teaching had the potential to improve the perception of the law school with the bench and bar. Both the Law Society and Chief Justice Roy McMurtry have made ethics and professionalism a priority, which is consistent with a broad and growing trend across Canada and in the United States, where many prominent law schools now require students to take ethics. The law school therefore had the opportunity to be a leader in this area.

On a practical level, the proposal targeted first year because (1) there would have been significant and justifiable resistance to more mandatory upper-year courses (the faculty already had more of these than any other Ontario law school); (2) upper-year students were perceived to be less open to being required to study ethics and professionalism than first-year students (who are not yet jaded by the law school experience); and (3) ethics and professionalism are sufficiently foundational that they should be introduced in the first year of legal studies.

The proposal was ultimately approved, and the course started in February 2005. It ran for ten weeks in the spring term (from February to April). Each week the class met for between two and three hours. The teaching was mainly by lecture although there were some debates between the instructors. Central topics for the lectures were an introduction to ethical theory, an introduction to legal ethics, the role of the regulator, the discipline process, integrity and professionalism, confidentiality and its exceptions, conflict of interest, civility in the adversarial system, ethics of advocacy, and defending the guilty. The course had three instructors, and there were three presentations by guest lecturers.

The course faces some significant challenges. One is whether ethics can be taught effectively through large-class lectures. The instructors are lecturing to the whole first-year class of 170 students. Smaller classes would of course be preferable, but the faculty lacks the teaching resources for this.

A second challenge is to see that students receive the course enthusiastically. Many may take the course to be an additional burden on them in their first year. They could be disposed to be critical of the course.

There are also concerns about how to evaluate the 170 students. The instructors decided on three tests during the term and a three-hour final exam. Each test was worth 10 per cent and the exam was worth 70 per cent. Two of the tests were in class, and the third was a twenty-four-hour take-home. There is a desire not to rely on multiple choice or short answer questions, though some questions of those types were used on some of the tests. Finally, there is concern about whether a normal grade distribution curve can apply to the course. Doing so would generate approximately thirty-five grades that are notably below average, which in turn might heighten the anxiety students could have about the consequences of receiving a low grade in, of all courses, ethics and professionalism.

A final concern is whether the course should be aimed at first-year students. Whatever is gained in terms of their level of interest and enthusiasm over upper-year students might be lost in terms of their lack of legal knowledge.

None of these questions can be conclusively answered based on early returns. It did take a considerable amount of time to grade the tests and the exam, and it is likely that next year one of the three tests will be dropped.

For many years the first-year program at the University of Toronto has featured three ‘bridge’ weeks. During each of these weeks, which are scheduled at various times throughout the academic year, the normal course schedule is suspended and students spend the week on the intensive examination of a particular topic. Previous topics have included critical legal studies, law and development, law and economics, and legal pluralism. Students write a paper for each of the three weeks. The two shorter papers are on a pass-fail basis and the longer one is graded. In January 2003, the University of Toronto decided to devote one of the bridge weeks to legal ethics, and this has continued each year since then.

It has the clear benefit of exposing all first-year students to legal ethics. However, there may be room for concerns about rigor, since those students who write only a shorter paper on legal ethics — which would be the majority of them — are only evaluated on a pass-fail basis. Further, some may think that it is difficult to teach legal ethics over the course of only five days, however intensive, rather than allowing more time between classes for students to absorb and consider the material.

Now there is a new casebook: Legal Ethics: Theories, Cases and Professional Regulation by Randal N.M. Graham, published in 2004. It adopts an unconventional approach to analysing legal ethics. Graham aims to discuss legal ethics without recourse to ‘indeterminate moral language.’ To accomplish this, his analysis is based on law and economics.

Graham’s book contains a shorter chapter on objections to studying ethics using law and economics, and several other chapters can be used even by skeptics of his approach to teach the duties of integrity, confidentiality, and loyalty; the duty to avoid conflicts of interest; and issues relating to ethics advocacy.

The argument that teaching ethics should be left to the profession should be rejected. Similarly, the argument that the profession can leave the teaching of legal ethics to the law schools should also be rejected. The profession has to shoulder its share of the burden. One of the issues for the profession is whether it will send a message to incoming lawyers that it values students who have taken courses in ethics. If the firms in their marketing materials and hiring decisions send the message that they want to hire students who have studied ethics, then the students will lead the charge for more courses in this area.


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