Economides, K --- "Anglo-American conceptions of professional responsibility and the reform of Japanese legal education: creating a virtuous circle?" [2008] LegEdDig 37; (2008) 16(3) Legal Education Digest 27

• Anglo-American conceptions of professional responsibility and the reform of Japanese legal education: creating a virtuous circle?

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Anglo-American conceptions of professional responsibility and the reform of Japanese legal education: creating a virtuous circle?

K Economides

41 Law Teacher 2, 2007, pp 155–168

Ethics and the professional responsibility of lawyers has become an increasingly prominent theme in Anglo-American legal education over the past two decades. On both sides of the Atlantic there has been growing interest in ‘the law of lawyering’ and an awareness of the need and possibility of teaching ethics to future lawyers. Following Watergate, the ethical responsibilities of legal professionals has become relatively well established — even if not necessarily well-taught — in the United States and, more recently, in the United Kingdom serious efforts have been made to provide a foundation for the academic study of professional legal ethics. Over the past decade the United Kingdom has seen a small group of law teachers challenge dominant positivistic approaches that for generations has excluded serious academic analysis of lawyers’ ethics. The aim of this group has been to try to persuade all stakeholders with an interest in legal education to accept that meaningful ethical discussion can and should feature more prominently in contemporary legal education. Some have suggested that for law schools to continue to fail to prepare their students for the ethical dilemmas they will inevitably confront in the early years of practice is tantamount to a failure of their own professional responsibility as teachers. But the debate on the ethical content of legal education touches all stages of the educational continuum relevant to the formation of professional character ranging from the introduction of citizenship (including human rights law) in the national school curriculum, to the undergraduate law degree, through to the vocational stage of legal education and finally continuing professional development.

The ethical dimension has also surfaced in other common law jurisdictions beyond the Anglo- American systems (notably New Zealand, Australia, Canada) that have already introduced ethics into their law curricula. New Zealand and Australian law schools are playing a leading role in examining the place of ethics in legal education and hosting international conferences that aim to carry these educational debates both further and deeper. Similar debates are getting under way in Latin America and other parts of Asia — eg. the South Pacific, India, Korea and Taiwan — and so Japan is therefore by no means alone amongst Australasian countries in thinking about the ethical dimension to modern legal education. And this issue is also attracting increasing attention in the civil law systems throughout Europe and also at the transnational level of EU law. Although legal ethics are now coming of age it would be wrong to think that this topic has only recently been discovered; in fact it would be far more accurate to say that legal ethics has been ‘re-discovered’.

Legal education started out by asking universal questions linking legal rules, morals and justice and only much later were these elements separated, with some discarded altogether. If one draws a distinction between legal education and training it could be argued that with the passage of time the latter has steadily displaced the former with the result that the boundaries of legal thought have been shrinking and the legal mind has become more introverted and absorbed with technical ephemeral rules rather than fundamental values.

A central mission of the modern law school must therefore be to create good lawyers capable of carrying out what Damon has called ‘good work’. A key decision for any law school is how to identify, construct and promote its own particular conception of the ‘good lawyer’ from amongst the many competing conceptions that are available and to make explicit the underlying ethical, moral and legal values it seeks to promote. Ethics are of course already present in the formal and informal law curriculum but are not always made explicit. It is therefore arguable that law teachers have a responsibility to help their students see the various applications of the skills that are imparted to them and to help them make informed choices about where, for whom and how they will practice law in the future. Sadly this does not yet seem to have been accepted within mainstream legal education and moral debate, if it is found at all, remains more often than not confined to the ghetto of an optional course in jurisprudence. While leading legal philosophers such as Hart, Finnis, Dworkin — and others — have sought either to clarify, collapse or redraw this boundary between law and morality within jurisprudence, within the remainder of the undergraduate curriculum law students continue to be taught (at least implicitly) that they must maintain this barrier if they wish to acquire the professional knowledge and skills of the ‘good lawyer’. Empirical evidence from several jurisdictions confirms that positivistic legal education reinforces cynicism rather than respect for legal values.

There has however been growing unease amongst both academic lawyers and practitioners regarding the cynical attitudes found not only within but also toward the legal profession. Legal Education reviews in several countries have therefore followed the Lord Chancellor’s Advisory Committee on Legal Education & Conduct (ACLEC) in making the case for strengthening the liberal credentials of the law degree by supporting the case for introducing awareness of ethical perspectives, if not mandatory ethical instruction, into mainstream legal education. The issue today in Japan, as elsewhere, is not so much whether but rather when, how, and how far, this ethical awareness should be introduced in order to supplement and hopefully remedy shortcomings of an overly narrow positivistic legal education.

An obvious and common starting point for an understanding of ethical standards of the legal profession is to focus on the rules contained in the professional code of conduct. While the code may, as with a constitution, have an educative side effect its primary purpose is regulatory. It tells members in simple straightforward language what they can and cannot do but does not deal with the complexities of why and how they should act in a professional manner. This may or may not be left to supplementary ‘guidance’. At present the professional code forms the basis of formal instruction offered future lawyers, whether these be trainees from within or qualified lawyers transferring from outside a given jurisdiction, and the most common approach aims at ensuring there is an adequate basic knowledge of professional duties in place as well as the capacity to identify relevant rules and issues arising in the context of the lawyer-client relationship. The vocational courses in many jurisdictions typically focus on the ‘micro duties’ found in the rules of professional conduct (eg. the retainer, fees, conflict of interest, confidentiality, professional negligence, duties to the court, professional undertakings and money laundering), as well as issues of client care, especially in the lawyer-client relationship, and other obligations arising out of managing accounts and financial services regulation, professional relations with other lawyers and non-lawyers. Increasingly there is also an attempt to move beyond these rules enshrined in the professional code in order to consider ‘ethical context’. Before and after the vocational course, coverage of professional standards remains patchy and inconsistent, and during these courses the approach commonly adopted appears to be dogmatic and uncritical. Lawyers are taught that they must comply with, rather than question or criticise, their code. While the professional code should not be ignored it is also clear that, in isolation, it offers an inadequate foundation for legal professionalism. There is a further need for some kind of context — whether derived from theory, practice or the humanities — in order to put ethical flesh on legal bones and expose the latent dilemmas that only really become apparent once it is recognised that rules of conduct contained in the code often collide. At this point external guidance drawing upon human and legal experience is required to assist the process of ethical decision-making.

If the code provides an obvious starting point for studying professional responsibility another point worth making is that, as with theory itself, ethics cannot be avoided and the only real choice left the educator is to decide whether to make the ethical values and theory latent in the curriculum explicit. University legal education provides an ideal opportunity to examine underlying theoretical perspectives on professional responsibility and it is now widely appreciated that inculcating professionalism need not be left entirely to the vocational courses and apprenticeship.

Ethical theory — whether Kantian, consequentialist, aretaic, postmodern or feminist in outlook — can provide a valuable analytical tool with which to understand and dissect ethical dilemmas within a philosophical context. On the other hand, theory alone probably will not produce definitive answers to practical problems confronting lawyers in practice and, by opening up endless further choices to consider, could simply confuse and delay practical decision-making. Furthermore, there is no conclusive empirical evidence to suggest that ethics education actually produces ‘good lawyers’.

Although not part of mainstream legal education in the United Kingdom, clinical legal education clearly has considerable potential to offer law students the opportunity to observe, practice and reflect on ethics in action. This approach concentrates on the acquisition of legal skill through the practical application of legal knowledge. Experience from the United States is on the whole encouraging and it would appear that exposure to clinical experience may have a profound and lasting impact in terms of establishing not only key skills but also core legal values and ethical commitment amongst future members of the legal profession. Pro bono initiatives are therefore important not only because they may provide legal services to those who might otherwise not receive them; they also offer valuable opportunities to young lawyers to acquire professional skills and a sense of responsibility that will stay with them for the rest of their careers. This could be an important counterweight to the cynicism that pervades much of modern legal education. One recent development is not to use live clients but rather to create simulated virtual learning environments through which law students can experience the lawyer-client and other relationships.

Another approach to communicating the nature and essence of professional ethics to future lawyers is draw upon literary sources and other representations of legal work found in popular culture such as film and television. The broad aim here is to use narrative as a means of developing ethical judgement. Law students are expected to analyse stories as case studies in which they can recognise and resolve ethical dilemmas found in legal practice. Literature and film may thus provide a kind of laboratory in which to examine professional responsibility. These approaches are valuable in that they can expose tensions between professional and personal morality but, on the other hand, there is a risk of severe distortion of the reality of the legal process in the interest of providing popular entertainment. These approaches can often be used in conjunction with, or as supplements to, the other formal, theoretical and clinical approaches described above.

The Justice System Reform Council of Japan initiated something of a ‘quiet revolution’ when it recommended in 2001 a fundamental reform of Japanese legal education that by April 2004 had resulted in the establishment of 68 new graduate-level law schools modelled on those found in the United States. These reforms could create a far more diverse legal profession and should enhance access to justice for Japanese citizens. But these reforms will also impact on the content and delivery of legal education: as from April 2007 these 68 new law schools will be free to experiment with innovative curriculum reform that previously was not possible, while some institutions have already been piloting simulated experiential programmes that could nurture a range of lawyering skills including ethical awareness. A select number of these new law schools are already closely monitoring foreign experience in order to identify promising educational practices found in western law schools that might be imported in order to raise ethical, educational and practice standards in Japan. Questions arise as to whether these foreign imports are likely to take root in Japanese legal culture and whether this culture has anything to offer those interested in reforming legal education in the West. For example, one US law teacher teaching in Hokkaido reports a number of obstacles in bringing western-style ethics to the Japanese, whether through simulations or clinical experience: ‘During my stay in Japan, I discovered that discussions of ethical education with my colleagues at Hokkaido University invariably caused concern. Perhaps my choice of words, more than the concept of ethical education, generated much anxiety. For many of my colleagues, a frightening legacy remains from the educational indoctrination methods used in Imperial Japan, particularly those relating to the 1890 Imperial Rescript on Education. For others, there appears to be a reluctance to allow faculty members to paternalistically impose their own moral views on university students who have already completed their development into adults. However, such fears reflect a misunderstanding of the nature of ethical education suggested here. The goal is not imposition of a dogmatic pedagogy of what is right and wrong. Rather, the first purpose is to introduce students to the inevitability of ethical quandaries arising in a conscientious career. Secondly, we should help them understand their own conscience of what might be right and wrong in such situations. Finally, we must give them the intellectual tools necessary for coping with the challenges that they may face on those occasions.’

These goals are worth noting for very similar challenges confront those wishing to develop ethical awareness here in the West that should also include lawyers’ public and social duties: ‘Graduates of Japanese law schools are destined to become Japan’s government, business, and social leaders. How those persons will weigh the moral challenges of their time will create the base for the next generation’s social order. The educational task is not to instruct about rules, but to foster a mature awareness for the challenges that may arise in our students’ futures. For example, we can discuss what one might do if directed by a superior to act illegally, such as to give a bribe. We might ask whether an act that is not clearly illegal can still be wrong, or what courses of action are available if one is not doing a questionable act, but instead discovers illegal or wrong actions being done by one’s colleagues or superiors? And, what might be the consequences of pursuing the various available options at that time? Ideally, students should come to understand their own values about these questions and that others may not view the world the same way. Then, if issues such as these arise for graduates in the future, they will be better prepared to assess the circumstances and choose a socially constructive path.’

This international experience raises two connected issues of fundamental importance for the future of legal education, both in Japan and the West. How should legal educators: (1) teach ethics without being overly paternalistic, yet at the same time remain sensitive to wider professional and national cultures; and (2) assist the development of individual values and awareness of contrasting perspectives emanating from the ‘Other’? In my view law teachers need to respond by remaining constantly alert to the danger of promoting their own subjective beliefs at the expense of core professional values, whilst allowing students sufficient autonomy in order that they are free to explore their own independent understanding of professional values. In Japan, given the legal system’s positivistic Germanic roots and the dirigiste approach that still dominates the new post-baccalaureate law schools, far greater caution can be expected amongst law teachers who may well fear experimenting with normative values when teaching professional responsibility to adults. It therefore seems safe to predict that in Japan there will be a reluctance to engage with more advanced methods advocated by some leading law teachers in the West. But while significant cultural differences amongst lawyers in Japan and the West may well persist, we should not forget that there is also much that binds lawyers together wherever they happen to practice. Instead of concentrating on local and cultural differences, which inevitably will be emphasised in skills and vocational training, and apprenticeship, academic teachers might focus first on the universal values common to all lawyers that are enshrined in formal codes. More needs to be done to communicate the nature and significance of core legal values. Thereafter, it should be possible to supplement these sources by introducing a variety of perspectives drawing upon theoretical, clinical and humanistic approaches outlined earlier that might well be grounded in local legal cultures. At the same time it would be well to lower expectations about how far it is possible to influence the value systems of law students for the available empirical evidence suggests that law schools have only a limited impact wherever they venture beyond teaching rules. Nevertheless, it does matter that, as educators, we accept responsibility for our students and do all we can to point out to the next generation of lawyers where we think the right path to justice lies.