Ethical Dynamics of Learning: Empowerment & Responsibility in Legal Education

IJCLE Conference Durham 10-13th July 2012 Conference Paper Stream: Clinic for All? The Ethical Dynamics of Learning: Empowerment and Responsibility in Clinical Legal Education Stuart Toddington, Phil Drake, Jane Tobbell (The Law School, University of Huddersfield and Department of Psychology, University of Huddersfield)

The Future Changes to content, form, delivery and assessment of legal education. Withdrawal of legal funding. New lawyer/client relationship: Collaborative; Mediated; and/or Dialogic

A new lawyering approach? ...this approach [collaborative rather than adversarial] encourages both parties ... to enter into a contracted negotiation process with collaborative lawyers who are are engaged by both parties for the sole purpose of negotiating an agreement that all parties agree comprehensively settles all of the issues involved. [Baron and Corbin 2012, p. 116] ...such new forms of lawyering potentially require law academics to reflect on the assessment they set for their students, the lawyers of the future. In other words, the reliance on hypotheticals that asks students to advise on matters assuming that they were destined for a court hearing, may no longer be relevant. [ibid]

Integrated model of technical and ethical skill Technical and professional skills Ethical and reflective awareness Autonomy of judgment

Three models of skill application THE FIRST MODEL The Automatically Integrated Model Provisions of statute, professional code, interests of the client and technical and administrative skills all come together perfectly.

Three models of skill application THE SECOND MODEL The Problematically Integrated Model Economic and/or psychology that form the rationale behind the legislative intention are flawed or highly contentious. Ethically and philosophically uncertain.

Three models of skill application THE THIRD MODEL The Unintegrated Model The client interest and technical skill of the lawyer are antithetical to the universally understood and accepted moral intentions of the legislation. ie. Guantanamo Bay case. Subvert or nullify legislative and democratic purpose

An integrated model of professional legal skill Share an inter-subjectively stable and coherent stock of axiomatic and presupposed substantive ethical criteria. Hired Gun v Wise Counsel approach. Look at the psychology of learning which underpins the success of clinical practice. Clinical learning invests responsibility, autonomy and empowerment in learners. Increase and encourage ethical awareness of problem solving. Professional competence High degree of technical ability and capacity for autonomous, reflective and accomplished ethical judgment.

A universal focus of hope (Potter 2005: 24) Professionalism involves (Rowe et al 2012: 123-124) considering the interests and values of clients and others; providing high quality services at fair cost; maintaining independence of judgement; embodying honour integrity and fair play; being truthful and candid; exhibiting diligence and punctuality; showing courtesy and respect towards others; complying with rules and expectations of the profession; Managing law practice effectively and efficiently; engaging in professional self-development; and nurturing quality of life. Aims of the legal profession: providing access to justice; upholding the vitality and effectiveness of the legal system; promoting justice fairness and morality; and encouraging diversity.

Access to Justice Being able to hire a skilled legal representative . Access to all who require it. Failure to provide access to all is unethical and unconstitutional. Are legal professionals ethically developed to the extent that they are aware of this failure? Recognising the broader implications of your work Considering the interest and values of clients and others .

Summary The integrated approach to skills points to three phases of learning in a community of practice: 1. Autonomy and empowerment in practical (clinical) problem solving; 2. Consciousness-raising and a mediated reflection upon it; and 3. A jurisprudential foundation for contextual professional development

Autonomy and empowerment in practical (clinical) problem solving Hands on experience Productive designing the pace, nature and scope of learning. Interconnected-ness of problem solving Intellectually; manually; technically; socially; politically; culturally and ethically. Doing now turns into consciousness of the implications of doing. Mediated by reflection and more than just a list of expectations.

Consciousness-raising and a mediated reflection upon it Community of Practice Shared forum of focus and engagement Discussion and development along skill/ethics trajectory Common goals Communally reflexive critique of practice. Rest s Model of ethical awareness (Diagram - Duncan 2012) Interpreting ambiguous clues Analysis of ethical issues Action and priority Empathic interaction and problem solving. Four Component Model of Morality (Rest, 1983) Moral capacity Moral capacity (predictors) (predictors) Operational definition Operational definition Capacity to interpret ambiguous clues in real-life Capacity to interpret ambiguous clues in real-life settings settings Moral sensitivity Moral sensitivity Capacity to analyse moral issues and provide Capacity to analyse moral issues and provide justifications for decisions justifications for decisions Moral judgment Moral judgment Capacity to internalise and give priority to Capacity to internalise and give priority to professional values professional values Moral motivation Moral motivation Capacity for empathic interaction and problem Capacity for empathic interaction and problem solving solving Moral Moral implementation implementation Effective Professional Conduct Effective Professional Conduct

A jurisprudential foundation for contextual professional development Theoretical and philosophical focus of reflection and intellectual development. Professionalism is connected with theories about the relationship between legal validity, morality and ethics. Rule of recognition. Hart s debate with Fuller about the inner morality of law . Ethical dynamism and creativity in adjudication. The search for a coherent principle is an inevitable and crucial part of not only the judges role, but of the professional s understanding of that role and its implications and consequences. See Dworkin (1977) and Riggs v Palmer 1889 The very nature of the legal enterprise mandates us to strive to develop these virtues in a substantively justified way.