A Leadership Role for Law Schools? A Leadership Role for Law Schools? A Leadership Role for Law Schools? Ethical Lawyering and Professional Identity

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1 Ethical Lawyering, Professional Identity, and the Public Good: Law Schools? Canadian Bar Association Envisioning Equal Justice Summit Vancouver, B.C April 2013 Bruce P. Elman Professor of Law 1 In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them. --Felix Frankfurter, Professor Harvard Law School; Justice United States Supreme Court 2 In every field that we studied, the most overlooked aspect of professional preparation was the formation of a professional identity with a moral code of service and responsibility. -- Lee Shulman, President, Carnegie Foundation Law students should be viewed as members of the legal profession from the time they enter law school. --The American Bar Association Statement (1986) 3 4 Ethical Lawyering and Professional Identity The Acquisition of Knowledge/Scholarship Competency; Adherence to the Rules of Professional Conduct Ethics; Collegiality and Civility; Personal Characteristics: Integrity, Honour, Leadership, Independence, Spirit and Enthusiasm; Service in the Public Good; and Balanced Commercialism. 5 The Law School Mission How can we create a culture of Ethical Lawyering? How do we help students develop their Professional Identity? 1. What we teach; 2. Our Research and Scholarship; 3. What we say; 4. How we act; 5. Our dedication to Community and Public Service 6

2 1. Curriculum: What We Teach Uniform national requirement for entry to Bar Admission programs including: National Requirement: Skills Competencies 1.1 Problem-Solving 1.2 Legal Research 1.3 Oral and Written Legal Communication Competency Requirements Ethics and Professionalism 1. Curriculum: What We Teach (2) Substantive Legal Knowledge 3.1 Foundations of Law a. principles of common law and equity; b. the process of statutory construction and analysis; c. the administration of the law in Canada.. 1. Curriculum: What We Teach (3) 3.2 Public Law of Canada a. the constitutional law of Canada, including federalism and the distribution of legislative powers, the Charter of Rights and Freedoms, human rights principles and the rights of Aboriginal peoples of Canada; b. Canadian criminal law; and c. The principles of Canadian administrative law. 1. Curriculum: What We Teach (4) 3.3 Private Law Principles a. contracts, torts and property law; and b. legal and fiduciary concepts in commercial relationships. Note: These requirements do not address Access to Justice issues except in the most general way. Law schools have attempted to address Access to Justice by weaving these issues into mandatory basic courses, optional law in context courses, and clinic courses. None of these made it onto the FLSC list of competency requirements. 1. Curriculum: What We Teach (5) By contrast, Standard 302(b)(2) of the ABA, Recodification of Accreditation Standards, states: A law school shall offer substantial opportunities for student participation in pro bono activities. Schools are also encouraged to address The obligations of faculty to the public, including participation in pro bono activities Research and Scholarship Do we place a high enough value on Research and Scholarship on the Legal Profession, Legal Ethics, and Access to Justice issues? Do we reward it sufficiently? Do the criteria for Promotion, Tenure, and Renewal give appropriate weight to Service to the Profession and Service to the Community? Do we encourage pro bono activities? Do we give appropriate recognition/credit to/for Student Research Assistance? Do we always appropriately acknowledge and credit the work of others (Plagiarism)? 12

3 3. What we say A Code of Discipline for Law Students Setting the Expectations The Mission Statement Public (and Private) Statements by the Dean and other Leaders of the Law School A Discipline Code for Law Students Every Law Student: LEXpectations 1. Academic Misconduct 2. Discriminatory Conduct 3. Demeaning and Uncivil Conduct 4. Other Unprofessional Conduct Lack of respect/civility shown to fellow students Failure to respond in a timely fashion to s or rude/condescending attitude towards support staff A Code of Discipline for Law Students (2) Failure to report serious incidents of misconduct in law school Failure to take reasonable steps to prevent discrimination and other unprofessional conduct Denigrating clinic clients Needed: Appropriate, Timely, and Public Disposition of Cases of Bad Behaviour. Every Law Student ENGAGE intellectually Choose personally challenging courses and interact thoughtfully with your professors and classmates, recognizing that the Law School is more than simply a place to earn a professional credential; Stimulate your mind by participating in a breadth of intellectual activities, such as moot court, reviews and journals, outside speaker presentations, and special programs; and Demonstrate your academic interests within the Law School and across the University community through opportunities like speakers seminars, symposia, and activities in other faculties and departments. 15 An Aspirational Statement for Every Law Student (2) EMBODY integrity Be truthful, candid, and fair, even if your actions go unnoticed; know that acting honourably often requires effort; Articulate your personal code of ethics in the context of the rules governing the Law School and the legal profession; Use ambiguous situations as an occasion to cultivate sound judgment, and avoid even the appearance of impropriety; and Transform controversy and conflict at the Law School into opportunities to work constructively with others for the benefit of the community. Every Law Student (3) LEAD effectively Assess your own leadership style; work to enhance your strengths and address your limitations; Seek or create outlets for leadership in student government, clubs and organizations, community service, pro bono activities, and the classroom; Learn from your mistakes and share credit for your successes; and Sustain organizational success by developing future leaders: learn to communicate, delegate, and motivate.

4 Every Law Student (4) BUILD relationships Find a mentor; be a mentor; Get to know students, faculty, and staff with diverse backgrounds, nationalities, and points of view; Meet and learn from alumni working in the areas of the law and of the world that interest you and then provide similar support for students after you graduate; and Invest in personal relationships, knowing that they will last a lifetime. Every Law Student (5) SERVE the community Volunteer for a service activity designed to benefit the community; Engage in pro bono activities before you graduate; and Identify public issues that are important to you, form connections with others involved with these issues, and work to make a difference. Every Law Student (6) PRACTICE professionalism Treat everyone with respect, even in the midst of disagreement; Collaborate with others to achieve common goals; be mindful of the appropriate time and place for competition; and Take pride in your work and responsibility for your actions. Every Law Student (7) LIVE with purpose Be more than your grades; Take steps regularly to preserve your physical and emotional well-being; strive for balance in your personal and professional lives while at the Law School and beyond; Make deliberate personal and career choices based on your own values, needs, and goals; and Serve as a positive ambassador for the Law School and the legal profession. 4. How We Act Students Need Role Models/Examples to Inculcate a Model of Ethical Lawyering; The Behaviour of those Role Models who are presented to them every day for three years can undermine what we teach and what we produce in our scholarship; Similarly, the active Pro Bono work of those Role Models and have an enhancing effect on what we teach and write about Public/Community service. A Best Practices Guide for Law Professors (and the Professional and Clinic Staff) is a Best practice for Every Law School Community and Public Service Benefits of pro bono work: Institutional Benefits: Enhanced reputation; Assist in recruitment and retention of students, faculty and staff; Improve Law school morale and student and faculty performance; An improved positive image. 24

5 5. Community and Public Service (2) Personal and Professional Benefits: Bridge the Gap between Theory and Practice; Improve Lawyering skills; Develop professionalism; Provide Networking opportunities with members of the Bar, Bench, and Community; Mentoring opportunities; Develop Cultural competence; Ground commitment to and understanding of need for social justice: The Trickle up effect. 5. Community and Public Service (3) Should we have a mandatory pro bono obligation? Legal Work or not? Does Credit Work Qualify? Hardship cases? How Do We Reward Pro Bono Work? Keirstead and Abner (Learning Professionalism in Practice): Law school and continuing professional development (including in-house curricula and programs) do not appear to have been a significant source of learning about professionalism and ethics. Supports and process for learning ethics and professionalism may be available in law schools but in a muted form. Law school, bar admission, and continuing professional development were, with few exceptions, not identified within the learning curriculum. Conclusion: First, recognize that law school is limited in what it can teach and the outcomes it can ensure. Query: If this is true for education on ethical professional identity, is it also true for the development of a concern or sensitivity towards to access to justice issues? 27 28

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