Ethical Capacities

The Report

This research carried out by University College London, funded by the Legal Education Foundation and commissioned by the Inns of Court College of Advocacy examines the ethical knowledge and skills acquired by new advocates.

The aim of this project is to inform, through independent research and evidence, the development of ethics training by professional bodies and specialist practitioner groups.

Read the report here.

Appendix A – Overview of education and training in ethics relevant to new advocates

Appendix B – Advocates Survey

Appendix C – Scenarios

Appendix D – ATC Ethics Expert Data Input Framework

Appendix E – Researcher Coding Frameworks

Appendix F – Multivariate Modelling

Our Response

by Derek Wood CBE QC, Chair of the ICCA Board of Governors

This important Report, prepared by the Centre for Ethics and Law, University College London, was commissioned in 2014 by the Advocacy Training Council (ATC), the department for professional legal education and training of the Council of the Inns of Court (COIC). The Report was generously funded by the Legal Education Foundation. It was submitted to the ATC on 5 December 2015.

On 1 May 2016 the Inns of Court College of Advocacy was established by COIC to succeed to the role and functions previously carried out by the ATC. The consideration of this Report and the implementation of its recommendations form part of the ATC’s work in progress which has been passed to the College. This Response sets out some comments on the most crucial findings in the Report and suggests steps which the College should be taking to carry it into effect

The Report’s authors Professor Richard Moorhead, Catrina Denvir, Mark Sefton and Nigel Balmer deserve warm thanks for the quality of their work and the clarity with which their findings are set out.

Aim of the Report

The development of methods and materials for the continuing professional training of advocates after entering practice was one of the main functions of the ATC. In England and Wales the principal providers of training for barristers are the four Inns of Court and the Circuits. The ATC was closely associated with the Inns and Circuits, but it did not focus its work exclusively on the Bar. Some of its work reached out to all advocates in our domestic jurisdiction; and it had an extensive international training programme. All of this work is now in the hands of the College.

While lawyers set a high value on ethical conduct, the formal education which they receive on the subject before they qualify has never presented a coherent picture. Very few universities choose to teach the subject as part of their law course. Since 2010 professional ethics has been separately taught and examined as part of the Bar Professional Training Course. It is prescribed by the Bar’s regulator, the Bar Standards Board, for study by pupils at the Bar (ie. after call to the Bar) and by new practitioners. In other branches of the profession it is less emphasised at that early stage in training.

The ATC perceived this unevenness in the delivery of pre-qualification ethical training across the profession. Its concerns were later confirmed in the Review of Legal Education and Training commissioned by the profession’s regulators and published in June 2013. The ATC took the initiative in commissioning this inquiry into the standard of knowledge and understanding of professional ethics, in the context of court proceedings, among newly qualified advocates, in order to review the materials and methods used in post-qualification training.

The survey was not intended as a critique of pre-qualification training, and the Report does not comment upon that. As just stated, and it should be emphasised, the brief was to provide the ATC with information which would enable it to design and plan future ethical training for practitioners who had reached a particular stage in the development of their practice. A factual account of the level of knowledge and understanding they possessed when beginning to practise in the courts would enable the ATC to amend existing and create new training materials and methods, as appeared necessary. By those means it could assist training providers in enhancing the post-qualification training which they deliver.

The Outputs of the Research

The authors of the Report describe in Chapter 2 the research methods they employed: an online survey collecting data on newly qualified advocates’ ethical values, their responses to three ethical vignettes and their views on ethical decision-making and training; and more structured interviews involving a deeper discussion of ethical problems. In the latter case the outcomes were assessed by experts in accordance with agreed criteria.

The authors record the fact that the numbers of interviewees for each of these exercises – 346 for the online survey and 77 for the interviews – were smaller than had been hoped-for, despite considerable efforts within the relevant bodies at the Bar and in the solicitors’ and legal executives’ professions, on the part of the research team and the ATC’s working party, to recruit a larger cohort. In the case of both the survey and the interviews the majority of the participants were barristers who had practised in the courts for up to three years, and had attended the Bar’s New Practitioners Programme, which includes instruction in ethics.

It is accepted that a much larger cohort of interviewees would have created greater confidence in the findings contained in the Report; but the authors’ belief that, given the quality of the research, the cohorts are sufficiently large and representative to give a reliable account of the gaps in current ethical training is fully justified. The information gathered, because of its high quality, forms a sound basis for planning training in the future.

The Nature of Professional Ethics

The Report demonstrates that ethics and ethical values, as they affect professional life, progress through a number of strata. At the most generalised level all professionals are expected to act with honesty and integrity; to be open and transparent in their dealings with the person – client or patient – who calls upon their services; and to put the interests of that person above their own. All professionals are expected to apply themselves to their work with diligence and to work to the best of their ability, ensuring that the service they are asked to provide is performed to a high “professional” standard. They must not act in a manner which will damage the reputation of their calling. Lawyers have the additional public responsibility of serving the proper administration of justice, respecting due process in the courts and the rule of law.

All professions translate the general principles to which they subscribe into more detailed and specific Codes of Conduct, drafted by the relevant professional body and enforced by disciplinary rules. Typically they will both re-state the relevant general ethical principles in broad terms and prescribe in more detail how these principles will operate in practical situations which arise in the course of that profession’s work. Many of the ethical decisions which professionals have to make require them to strike a balance between competing principles.

The Codes of Conduct laid down by the Bar Standards Board and the Solicitors’ Regulation Authority for barristers and solicitors respectively follow this pattern. Lawyers who have a fluent understanding of the ethical requirements of their profession therefore, in an ideal world, (1) will have an instinctive understanding of the ethical principles which apply generally to their conduct as lawyers; (2) when faced with a particular problem, will know which provisions of their Code of Conduct are engaged on the facts which are before them; and (3) will know how to apply those provisions, and accordingly lead themselves to an ethical and correct course of action.

Chapter 6 of the Report, however, draws attention to complicating factors. Not all lawyers are built the same way, and there are some ethical problems which admit more than one ethical solution. Teachers of legal professional ethics are well aware of this phenomenon. Where there is a range of acceptable options, individual personality and outlook will influence the choice ultimately made. It is therefore a mistake to think that ethical problems will always lead to a single, rigid and inflexible answer.

What the research shows

The research does not make comfortable reading. The advocates were divided into four groups – those practising in crime, civil disputes, family law and as in-house employed lawyers.

For the more detailed interviews six vignettes, exemplifying practical ethical dilemmas, were put to each group. Some of the vignettes were replicated in the same or very similar terms across more than one group. They are set out in full in Appendix C to the Report. The suite of problems includes typical dilemmas for lawyers such as conflict of interest, outside pressure from clients or others to cut corners, disclosure of damaging information, coming accidentally into possession of documents which are privileged or confidential to the other side, and clashes with the client, including being publicly and unjustifiably blamed when things appear to be going wrong in court.

While the research shows that many of the lawyers had a grasp of the relevant ethical principles at the highest level of generality, some “struggled to understand and appreciate the core professional values”, and only about one half could “mostly or always correctly identify the issues of professional ethics contained in our problems (even though they were specifically on the lookout for such problems)…” (Page 99). This judgment appears to apply both to the problems to which there might have been one “right” answer and to problems where they could have been a choice between a number of possible acceptable answers.

One of the types of difficulty on which the interviewees themselves commented involved managing relationships with others engaged in the legal process, for example clients, opposing parties and their representatives and (for barristers) clerks and instructing solicitors (see page 95). In this environment a lack of experience breeds a lack of confidence in handling the conflicts which can arise. Moreover, some respondents showed a tendency to brush away ethical issues by various techniques such as treating the problem as one of court tactics rather than ethics, or taking a superficial, selective view of the facts (page 93). The Report concludes that there is remains a gap in training which must be filled to overcome these deficiencies.

Closing the Gap

The gap will not be closed overnight. It is tempting for the profession to argue that more of the teaching burden should be shouldered by law teachers and professional training course providers, at earlier stages in training. That however is an unattractive way out, for a number of reasons. First, there is a genuine debate as to whether professional ethics has a place in a law degree or a law conversion course. Universities differ on this point, and it is not the function of the profession to engage in that debate, much less dictate its outcome. Secondly, while an introduction to professional ethics should undoubtedly form part of a postgraduate professional training course there are, as the respondents to the survey and interviews repeatedly state, definite limits to the value which will they will ultimately derive from an early formal introduction at that stage when they are faced with problems arising in practice. They need to feel what it is actually like to be at the sharp end of practice before they can fully understand a problem and the implications of various solutions. Discussion with peers and senior practitioners was regarded as the most effective method of learning. There cannot be any doubt therefore that the practising profession must accept a continuing and important role in this area. The Report demonstrates that need.

Teaching Materials

The work that was previously invested in the preparation of the research will be of continuing value. The 24 vignettes were prepared from sample problems kindly provided by the Inns and Circuits and worked up in consultation with specialist practitioners. These specialists also developed the criteria by which interviewees should be assessed when dealing with them. The work is set out in Appendices C and D and may easily be converted into a set of recommended training tools, with model suggested answers, available to providers who would like to use them.

The Report recognises that the method of teaching by vignettes, in group seminars, remains one of the best teaching techniques; but this is subject to two qualifications. The seminar must be handled in a way that challenges all the participants, and prior preparation is an indispensable requirement.

Another conclusion to be drawn from the Report is that newly-recruited advocates, whatever previous training they have received, will benefit from an introductory talk or lecture on the shape and content of their Code and the moral, ethical agenda which underlies it before they embark on problem-solving. Improving their overall awareness of the ethical dimension to their work will enable them to get to the answers to specific problems more quickly and more accurately.

It follows that the profession, in its various branches, will have to find more training time, more properly qualified trainers experienced in professional practice, and therefore more money, if it is to make significant improvements in the standard of knowledge and understanding demonstrated by this research.

 

Derek Wood CBE QC
Chair of the Governors of the Inns of Court College of Advocacy
September 2016