“Hello, Jane? You might not remember me but you taught me five years ago. Sorry to bother you, but have you got a minute …?”
What’s the problem?
It could be workload or sexual harassment but, in this context, let us say that it is an ethical dilemma. This lawyer has an instinct that they are being asked to do something that is wrong,[1] but they do not have the language and the confidence to assert their professional values and to act. They lack a usable repertoire of possible responses: should they just be silent (so the ramifications become apparent); set out those ramifications explicitly and suggest “I think we can agree that I shouldn’t do that” or assert that the request would be a breach, refuse to comply and take the consequences?
It has also taken a great deal for them to recognise the problem and to make the call. In the workplace, the boss (or the client) calls the shots. The caller has been told “Forget what you were told at law school, this is the real world”;[2] “You just aren’t being commercial”;[3] “I’m the client, I’m paying your salary”;[4] “Ethics just makes you poor”; “That isn’t our way”,[5] or “Do you see yourself as having a future at this firm? It gets round, you know”. Their competence, client relationship, career, livelihood and prospects in the profession generally have been put at risk. Professional resilience in this context is something other than wellbeing. It is an assertiveness, a consistency and a credibility rooted in an ethical and moral stance. It is about being able to say no, clearly, confidently and believably and, if necessary, having the courage to act.[6] It is also about an ability to support others in similar circumstances.
Why are they ringing me?
They are calling me because they trust me, because I’ve practised,[7] because I don’t work for their firm and because, significantly, I was the person who taught them (professional) right from wrong in the first place. They have reached the end of their resources but they have gone back to their certain centre, their point of origin in terms of understanding of ethical principles and action. Vocational tutors are not just teachers, but also sometimes confessors, and confessors a long way into their students’ careers. This is a valuable role and one that only this cadre of academics is really equipped to manage. As more and more the locus of professional education is in the workplace (not only the training contract but also the Trailblazer apprenticeship in England and Wales; the law office or law reader route in the USA), the greater the significance of “socialisation” into the culture and habitus of professions and individual firms. Would a tutor on a US bar prep or SQE 2[8] commercial prep course be trusted with this role in the same way? As the balance shifts between classroom and workplace, what becomes of the role of academics as the professions’ rescuers from ethical and moral disaster?
[1] Robert Granfield and Thomas Koenig, ‘It’s Hard to Be a Human Being and a Lawyer: Young Attorneys and the Confrontation with Ethical Ambiguity in Legal Practice’ (2002) 105 West Virginia Law Review 495.
[2] See the disparaging reference to “a bar school particulars of claim” cited in Julian Webb and others, ‘Setting Standards: The Future of Legal Services Education and Training Regulation in England and Wales’ (2013) <http://letr.org.uk/the-report/index.html> accessed 14 July 2017, para 4.125.
[3] That is, “obedience pressure” from superiors: Thomas E Buttross, George Schmelzle and Hema Rao, ‘Ethical Decision Making by Management Accountants: An Empirical Examination of Obedience Theory’ (Social Science Research Network 2011) SSRN Scholarly Paper ID 1787613 <http://papers.ssrn.com/abstract=1787613> accessed 18 July 2017.
[4] The focus on the idea of the client’s best interest as the sole defining factor, see Richard Moorhead, ‘Corporate Lawyers: Values, Institutional Logics and Ethics’ (CEPLER 2015) 07/2015 <http://epapers.bham.ac.uk/1984/1/cepler_working_paper_7_2015.pdf> accessed 18 July 2017, p 5. This is otherwise known as “client capture”: Ronit Dinovitzer, Hugh P Gunz and Sally P Gunz, ‘Reconsidering Lawyer Autonomy: The Nexus Between Firm, Lawyer, and Client in Large Commercial Practice’ (2014) 51 American Business Law Journal 66; see also Christopher J Whelan and Neta Ziv, ‘Privatizing Professionalism: Client Control of Lawyers’ Ethics’ (2011) 80 Fordham Law Review 2577.
[5] The “ethical silo” described in Andrew Boon, ‘Professionalism under the Legal Services Act 2007’ (2010) 17 International Journal of the Legal Profession 195, p 225.
[6] See the examples at Claire Coe and Steven Vaughan, ‘Independence, Representation and Risk’ (Solicitors Regulation Authority 2015) <http://www.sra.org.uk/sra/how-we-work/reports/independence-report.page> accessed 18 July 2017, p 45.
[7] Judith Willis, ‘Legal Practice Course Teachers: What Can Their Stories Tell Us?’ (2010) 19 Nottingham Law Journal 22, p 30.
[8] Solicitors Regulation Authority, ‘SRA Announces New Solicitors Assessment to Guarantee High Standards’ (Solicitors Regulation Authority, 25 April 2017) <http://www.sra.org.uk/sra/news/press/sqe-ensure-high-consistent-standards.page> accessed 18 July 2017.