Forming Professional Identity (Program)
Lauren Bartlett, Ohio Northern University Pettit College of Law (US); Tuomas Tiittala, University of Helsinki, Faculty of Law (Finland); Francisco Esparraga, University of Notre Dame Australia School of Law (Australia); Juan Beca, Universidad Católica de Temuco (Chile); and Markus Walz, Stockholm University (Sweden)
Moderator: Solomon Shinerock, Assistant United States Attorney for the Northern District of New York
Forming Professional Identity
This discussion focuses on teaching and learning legal ethics and professionalism. The starting point of the discussions is the familiar critique towards deontology narrowly understood: the view that to become an ethically competent professional it is enough to study and obey codes of conduct for lawyers. In their respective but overlapping ways the panelists suggest better ways to teach legal ethics and professionalism than those currently used in the Australian, Chilean, Finnish and US law schools and faculties. The panelists consider the role of human rights principles in developing professional ethical sensibility; reflect on competing conceptions of the notion of professionalism; discuss how appreciation of virtues such as integrity, candor and honesty could be instilled in students; and suggest that ethics should be taught as a competence which students can develop in stages.
Lauren Bartlett: Teaching Legal Ethics and Professionalism Using Human Rights Principles
Focusing on the intersection between human rights, ethics, and the rules of professional conduct, students can learn to apply human rights principles to their everyday interactions with colleagues, clients, and courts. In doing so, they can fundamentally re-examine the role of ethics and professionalism in their everyday lives as future professionals, towards a higher sense of purpose and, hopefully, greater effect. The Human Rights Principles for the Legal Profession (the “Human Rights Principles”) introduced in this article, read alongside rules of professional conduct, are much more aspirational. The Human Rights Principles provide simple, yet ambitious goals, such as treating all people with respect and as an equal at all times.
This article starts with a brief explanation of how the human rights framework is relevant to ethics and professionalism in the United States. The article then explains how and why the Human Rights Principles were developed. Then, the Human Rights Principles are compared and contrasted to the American Bar Association’s Model Rules of Professional Conduct, as well as several states rules of professional conduct. The article also makes brief comparisons with other ethics codes, such as a few different social work codes of ethics. Lastly, the article makes suggestions on how to use the Human Rights Principles in law teaching.
Tuomas Tiittala: Legal Professionalism in (Clinical) Legal Education: Different Conceptions Evaluated in the Context of a Nascent All-Round Law Clinic
Students’ professional development has been recognized as a key aim of clinical legal education. But what is legal professionalism? What sense of professionalism is conveyed in codes of conduct for lawyers? For some it means ethics in the sense of shared values and virtues, while others may regard this equaling as a legitimation of privileges. This paper explores different meanings given to ‘professionalism’ in legal ethics scholarship and codes of conduct for lawyers. This is done out of philosophical curiosity and to help new law clinic teachers to critically and holistically teach professionalism and law clinic students to develop as reflective practitioners. The question for clinical teachers when establishing a new clinic, is how to choose between and use different understandings of professionalism? How should the teachers’ personal preferences affect the teaching of professionalism? This questions and responses given to it should be examined together with the question whether a law clinic can or should be (a)political? The need to better understand the meanings of professionalism is timely and pressing for the author because he and his colleagues have opened and continue to develop an all-round clinic in Helsinki, Finland. The different meanings of professionalism will be explored by telling the story so far of the Helsinki Law Clinic (HLC). By January 2016, HLC has comprised an introductory course and a legal information service for asylum seekers and refugees. In the future, it will provide counseling on issues relating to migration, discrimination and activities of start ups and small enterprises.
Francisco Esparraga: Teaching Legal Ethics: A Broader Mandate
The true profession of law is based on an ideal of honorable service. A review of curricula in Australian University Law Schools reveals that most Universities tend to take a relatively narrow view of ethics which sees it as limited to the rules of “professional practice” in the law. Most institutions tend to focus on legal ethics as “the law of lawyering rather than recognizing the connection between the personal and the professional which genuine professional integrity and responsibility entail”.
Since the legal community tends to view ethics as a matter of practitioners’ “professional obligation” to respect the codified rules of professional practice, it explicitly adopts a prescriptive view of ethics, one which equates to a morality of duty and obligation. This raises the challenging question of how legal ethics ought to be taught and what students ought to be taught about the relationship between the law and ethics. This is particularly important because law schools have the power to shape the future direction of legal practice in the way they educate future practitioners. How does one teach good character, connoting moral or ethical strength, which combines traits such as integrity, candor and honesty?
Legal education in English speaking countries has been affected by the traditional common law paradigm of private legal practice, regulation of the profession by the courts and the appointment of senior practitioners to the judiciary. This contrasts with the European civil law traditions of an enhanced role for public sector lawyers, State regulation of legal practice and career judiciaries.
Juan Beca: Ethical Education: Teaching to Obey or Teaching to Decide?
Ethics can be taught as deontology, expecting students to learn and apply some given rules, or as a reflection process. Future legal professionals should be prepared to deal with new ethical challenges, which today do not exist. For doing so they need to develop an ethical consciousness, which is possible to acquire through a profound ethical learning process. It is not possible to develop the latter if we limit ethical teaching to a deontological approach, given that fact that not all the ethical dilemmas they will face in professional life are considered in heteronomous rules.
Ethic is reflection, a practical reflection, and therefore we think that ethics should be taught as a competence, so students would learn how to reflect ethically and go through a discernment process. Peer learning has been proved to be highly effective, and a group discernment will prepare in a better way students for their professional life, where they will face the need to discuss and solve difficult ethical dilemmas with clients, colleagues and associates. Using a competence approach may help students to make progress through different moral development stages, and develop their autonomy to make decisions. In this way, we can prepare students to decide rather than to just obey on ethical issues.
Markus Walz: Ideals In Practice: Studying Commercial Lawyers' Professional Identity Work In Situ
Professionalism as a normative value system is often assumed to act as a guiding logic for professionals’ behavior, beyond alternative structuring systems like market or organization logics . At the same time, professionalism is described as under threat by competing discourses, e.g. commercialization or bureaucratization. Contrary to such a macro-level approach, there is a call to study professionalism in the everyday practices of individual professionals. This paper answers this call by treating professionalism as a crucial aspect of individuals’ identity work. More concretely, by studying lawyers working in big law firms and within the field of international commercial arbitration, the paper investigates how individuals refer to professionalism when making sense of concrete situations at work , to highlight what roles professional ideals play in everyday action. Advancing the thesis that professionalism is best understood as embedded within and interrelated with multiple other discourses, the paper analyzes the (discursive) framing strategies professionals employ to make sense of their professional identity . This analysis leaves us skeptical towards the potential of professionalism to act as a ‘third logic’, but instead emphasizes the need to discuss professionalism in concrete work contexts (in situ) and in relation to a multitude of other discourses (intertextual). The paper is a contribution to the study of professionalism as a contextual, micro-sociological phenomenon and emphasizes the need for further study of professional identity work as embedded in multiple discourses.