Legal Ethics Education: Seeking-and Creating-a Stronger Community of Practice

• Author: Justine Rogers
• Position: Associate Professor, Faculty of Law & Justice, University of New South Wales, Sydney
• Pages: 61-109

Legal Ethics Education: Seeking—and Creating—a

Stronger Community of Practice

JUSTINE ROGERS*

ABSTRACT

This Article uses Community of Practice (“CoP”) frameworks and insights to

examine legal ethics, a vital but challenging part of legal education and prac-

tice. CoP is a template to explain how the knowledge we learn is inseparable

from the social situations in which it is “practiced” and how the processes

through which we learn can be understood as a trajectory toward becoming

competent knowers within a community. Increasingly, CoP also captures how

communities might be initiated and sustained to advance that practice or expert

domain. CoP theory illuminates the difficult conflicts both in teaching and in

learning legal ethics, conflicts driven by the clash between “ethics-as-rules”

and “ethics-as-judgment.” Using CoP ideas, this Article argues that legal

ethics suffers from a confusing mission and an academic-professional commu-

nity that is not as strong or interactive as it should be. But the CoP framework

also offers possible solutions. This Article shares the author’s and others’

efforts to improve and align legal ethics. It also outlines what would be essen-

tial features for a vibrant community in stewardship of this domain. The Article

focuses on the Australian context with close comparison to that of the United

States.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

I. COMMUNITY OF PRACTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

A. STRAND ONE: BECOMING A COMPETENT AND INVESTED

MEMBER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

B. STRAND TWO: COMMUNITIES AS STEWARDS OF THEIR

DOMAINS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

C. CRITICISMS OF COMMUNITIES OF PRACTICE . . . . . . . . . . 71

* Associate Professor, Faculty of Law & Justice, University of New South Wales, Sydney. © 2023, Justine

Rogers.

61

II. LEGAL ETHICS TEACHERS’ LEARNING TRAJECTORIES AND

COMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

A. THE TEACHING AND WORKPLACE COMMUNITIES . . . . . . 73

B. WIDER COMMUNITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

III. LEGAL ETHICS PRACTICE: ETHICS AS RULES VS. ETHICS AS

JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

A. ETHICS-AS-RULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

B. DISCOVERING A PRACTICE: ETHICS-AS-JUDGMENT. . . . . 84

IV. LAW STUDENTS AND THEIR LEARNING TRAJECTORIES . . . . . . 90

V. ALIGNING TWO PRACTICES: THE UNSW LAW AND JUSTICE

APPROACH TO LEGAL ETHICS EDUCATION . . . . . . . . . . . . . . . 95

CONCLUSION: THE LEGAL ETHICS ACADEMIC-PROFESSIONAL

COMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

INTRODUCTION

Legal ethics education has noble objectives: to help ensure lawyers fulfil their

roles as social trustees, gatekeepers of justice, and members of a privileged com-

munity. It seeks to cultivate professional identities that are ethical, competent, re-

flective, and healthy.

1

Formally, legal ethics is central to the mission of the law

school.

2

Standard 1.3.3 of the Australian Law School Standards, produced by Council of Australian Law Deans

(“CALD”) and the Australian Law School Standards Committee (“ALSSC”), provides as a template statement:

“The Law School’s mission encompasses a commitment to the rule of law, and the promotion of the highest

standards of ethical conduct, professional responsibility, and community.” AUSTL. L. SCH. STANDARDS,

Statement of Mission and Objectives, Standard 1.3.3 (Council of Austl. L. Deans & Austl. L. Sch. Standards

Comm. 2020), https://cald.asn.au/wp-content/uploads/2020/07/Australian-Law-School-Standards-v1.3-30-Jul-

2020.pdf [https://perma.cc/RD63-THNP] [hereinafter CALD STANDARDS]. Standard 301 of the American Bar

Association (“ABA”) Standards and Rules of Procedure for Approval of Law Schools states that “[a] law school

shall maintain a rigorous program of legal education that prepares its students, upon graduation, for admission to

the bar and for effective, ethical, and responsible participation as members of the legal profession.” STANDARDS

AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS, Objectives of Program of Legal Education,

Standard 301(a) (Am. Bar Ass’n 2022–23) [hereinafter ABA STANDARDS].

Yet, after surveying the international literature, one might fairly see it as

the educational task to avoid. Steven Lubet, an American law professor, opened a

1988 article with: “‘I teach legal ethics.’ In all of legal education there may be no

four words that evoke more pity and pathos than those.”

3

In 2006, Australians

1. The addition of “healthy” reflects the growing interest from the profession and the academy in lawyers’

wellbeing, in recognition of its association with ethical practice.

2.

3. Steven Lubet, I Teach Legal Ethics, 13 J. LEGAL PRO. 133, 133 (1988).

62 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:61

Michael Robertson and Kieran Tranter described a general lack of enthusiasm in

legal ethics teaching and low consensus about what this teaching (and thus legal

ethics) might entail.

4

Earlier, Robertson had described the discipline of legal

ethics as having a bad reputation, in part because the ethical part of it was patchy

and given incoherent emphasis.

5

Robertson and Tranter also questioned the

impact of legal ethics teaching on lawyers’ practice, saying that its learning out-

comes were neutral or, at best, uncertain.

6

These are just some of the ambivalent

attitudes that have been expressed by legal ethics teachers about their role.

Deborah Rhode diagnosed American legal ethics education as having a “mis-

match between institutional resources, student expectations, and faculty aspira-

tions.”

7

Moreover, she explained, the “consensus among experts in professional

responsibility is that courses in the subject are among the most difficult to

teach.”

8

What of students? In an early evaluation of the core legal ethics course that I

designed and teach at the University of New South Wales (“UNSW”) Law and

Justice,

9

just under half of the sixty-five students surveyed expressed cynicism or

worry about being trained in how to speak to others about ethics. They directed

concerns at both the academic community and the profession: “It’s extremely

frightening to think of how to [speak up] at a law firm.”; “[To use the skills I

have learned, I would need] evidence from the law firms that being ethical is in

their interests—not just from academics whose articles sound like a bunch of

technical argle-bargle.”

10

In many ways, their responses accord with the organi-

zational management literature, which shows that employees need to know that it

is safe and worthwhile before they will raise ethical or risk issues with seniors.

11

Nonetheless, these law students were also asking for a guarantee from the

4. Michael Robertson & Kieran Tranter, Grounding Legal Ethics Learning in Social Scientific Studies of

Lawyers at Work, 9 LEGAL ETHICS 211, 216 (2006) (referring to the performance of Australian legal ethics edu-

cation until around 2003).

5. Michael Robertson, Challenges in the Design of Legal Ethics Learning Systems: An Educational

Perspective, 8 LEGAL ETHICS 222, 239 (2005).

6. Robertson & Tranter, supra note 4, at 217. But see Christine Parker, What Do They Learn When They

Learn Legal Ethics?, 12 LEGAL EDUC. REV. 175, 186 (2001) (suggesting that “it is possible for many students

to gain some moral guidance and awareness from learning the rules, if they are taught in a way that makes them

relevant to practice.”).

7. Deborah L. Rhode, Teaching Legal Ethics, 51 ST. LOUIS L.J. 1043, 1047 (2007).

8. Id.

9. Justine Rogers, Lawyers, Ethics & Justice End of Course Survey (2014) (unpublished research) (full set

of evaluative findings on file with the Georgetown Journal of Legal Ethics) [hereinafter LEJ Survey]. This eval-

uation of the course was an Office for Learning and Teaching (“OLT”)-funded study as part of a wider “UNSW

Sydney self-management, success, and wellbeing” community of practice. Survey response was sixty-five stu-

dents, conducted in 2014 with ethics approval 14068.

10. Id. (two student responses to survey question, “what could be done differently to enhance the effective-

ness and/or relevance of the course?”).

11. For a discussion, see Justine Rogers, Since Lawyers Work in Teams, We Must Focus on Team Ethics, in

NEW DIRECTIONS FOR LAW AUSTRALIA 483, 488–89 nn.28–46 (Ron Levy, Molly O’Brien, Simon Rice, Pauline

Ridge & Margaret Thornton eds., 2017).

2023] LEGAL ETHICS EDUCATION 63