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Published online by Cambridge University Press: 09 June 2015
As the breadth and complexity of law increases, the focus of lawyers seems to narrow. Law is increasingly seen by lawyers and the public alike as a “business” rather than a “profession” with lawyers simply providers of legal services. The client is “job one”, with the nebulous concept of “the public interest” somewhere further down in the list of priorities and preoccupations of individual lawyers. Clients are, after all, the ones who pay, and it is their interests that must be served.
I would like to thank Janet Epp Buckingham, Mike Cormier, and Margaret Brockett for their insights into themes explored in this paper. Also, special thanks should be extended to my research assistants, Jacqueline Juselius, Sheila Jacques, Catherine Eckenswiller, Seanna-Lin Brodie-Keys and Heather Heavin. Their assistance was made possible through financial contributions from the Westminster Institute for Ethics and Human Values, the Law Foundation of Ontario, the Social Sciences and Humanities Research Council of Canada, and the College of Law Endowment Fund at the University of Saskatchewan.
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19. Supra note 16. Empirical studies were conducted in professional schools of education, journalism, nursing, psychology, accounting, veterinary sciences and dentistry.
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21. Esau, supra note 2 at 317.
22. The concept of what it means to be a good lawyer was the central theme of what has become one of the seminal works in American legal ethics scholarship. See Luban, D. ed., The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Totowa, NJ: Rowman & Allanheld, 1983).Google Scholar
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35. Kohlberg’s theory has been called the socialization view of moral development. The six stages as recounted by Rest and Narváez, supra note 16 at 5 are: Stage 1-The morality of obedience: Do what you’re told; Stage 2-The morality of instrumental egoism and simple exchange: Let’s make a deal; Stage 3-The morality of interpersonal concordance: Be considerate, nice and kind: you’ll make friends; Stage 4-The morality of law and duty to the social order: Everyone in society is obligated to and protected by the law; Stage 5-The morality of consensus-building procedures: You are obligated by the arrangements that are agreed to by due process procedures; and Stage 6-The morality of nonarbitrary social cooperation: Morality is defined by how rational and impartial people would ideally organize cooperation. Ponemon and Gabhart, in their article “Ethical Reasoning Research in the Accounting and Auditing Professions”, supra note 16 at 104 group Kohlberg’s stages into three groups: preconventional level (Kohlberg’s stages 1 and 2) where the individual makes the decision to do what is right to avoid punishment or to serve one’s own interests such that preconventional persons are not aware of differences among individuals; conventional level (Kohlberg’s stages 3 and 4) where the individual has a need to be a good person and desires to maintain rules and authority that support stereotypical good behaviour so as not to breakdown the system; and the postconventional level (Kohlberg’s stages 5 and 6) where the individual follows self-chosen ethical principles. Laws or social arrangements are valid because they rest on such principles, but when laws or rules violate these principles, someone who has attained this level of moral development, acts in accordance with the principle rather than abiding by the rule. For a graphic description of Kohlberg’s theory of moral development, see also Dickinson, supra note 7 at 186.
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39. Supra note 16.
40. Ibid, at 14.
41. Component 1: Moral Sensitivity—“It involves imaginatively constructing possible scenarios, and knowing cause-consequence chains of events in the real world; it involves empathy and roletaking skills.” Ibid, at 23.
42. Component II: Moral Judgment—“Once the person is aware of possible lines of action and how people would be affected by each line of action (Component 1), then Component II judges which line of action is more morally justifiable.” Ibid, at 23-24.
43. Component III: Moral Motivation—“Component III has to do with the importance given to moral values in competition with other values. Deficiencies in Component III occur when a person is not sufficiently motivated to put moral values higher than other values—when other values such as self-actualization or protecting one’s organization replace concerns for doing what is right.” Ibid, at 24.
44. Component IV: Moral Character—“This component involves ego strength, perseverance, backbone, toughness, strength of conviction, and courage. A person may be morally sensitive, may make good moral judgments, and may place high priority on moral values, but if the person wilts under pressure, is easily distracted or discouraged, is a wimp and weak-willed, then moral failure occurs because of deficiency in Component IV (weak character). Ibid, at 24.
45. Bok, supra note 2 at 28.
46. For example, Rule One of the Law Society of Upper Canada Professional Conduct Handbook (Toronto: The Law Society of Upper Canada, 1992) reads: “The lawyer must discharge with integrity all duties owed to clients, the court, the public and other members of the profession.”
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49 Rule Four of the Law Society of Upper Canada’s Handbook of Professional Conduct, supra note 46 reads: “The lawyer has a duty to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, and should not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.”
50 Grant, S. “Sex, Lies and Legal Ethics: Reflections on the Sources of Our Virtue” (1990) 24 Gazette 103.Google Scholar Grant suggests that lawyers fill many roles in their professional life including those of advocate and counsellor, facilitator or [sic] human collaboration, and public servant. Ibid, at 112.
51 Kennedy, supra note 30.
52 Take, for instance, questionable billing practices. Techniques such as double-billing, premium billing and efficiency billing appear to be widespread in Canada and the United States, even though such practices are considered unethical. See, for example, a recent ruling of the American Bar Association Standing Committee on Ethics and Professional Responsibility, Formal Opinion 93–379, “Billing For Professional Fees, Disbursements and Other Expenses” (Chicago: American Bar Association, 1993).
53 Gutmann, A. “Can Virtue Be Taught to Lawyers?” (1993) 45 Stanford L. Rev. 1759;CrossRefGoogle Scholar Shaffer, T. “The Profession as Moral Teacher” (1986) 18 St. Mary’s L. J. 195 at 242.Google Scholar For a summary of the legal literature on the subject of whether character can be taught see Moliterno, J. “An Analysis of Ethips Teaching in Law Schools: Replacing Lost Benefits of the Apprentice System in the Academic Atmosphere” (1991) 60 Cincinnati L. Rev. 83 at 94.Google Scholar For a discussion of the topic generally, see Darling Smith, B. ed., Can Virtue Be Taught? (South Bend, IN: University of Notre Dame Press, 1993).Google Scholar
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56 Supra note 11 at 275.
57 Redlich, N. “Law Schools as Institutional Teachers of Professional Responsibility” (1984) 34 J. of Legal Ed. 215;Google Scholar and Cotter, supra note 13 at 3–5.
58 Supra note 13 at 3-19.
59 Ackerman, R. “Law Schools and Professional Responsibility: A Task for All Seasons” (1984) 88 Dickinson L. Rev. 202 at 212;Google Scholar and Cotter, supra note 13 at 4–4.
60 I am indebted to Duckett, L. & Ryden, M. “Education for Ethical Nursing Practice” in Moral Development in the Professions: Psychology and Applied Ethics, supra note 16 at 56–57 Google Scholar for the functions of “advisor”, “facilitator” and “reinforcer”.
61 Esau, supra note 2 at 356.
62 Some such programs have already been developed for professional schools. See Bebeau, M. “Designing an Outcome-based Ethics Curriculum for Professional Education: strategies and evidence of effectiveness” (1993) 22 J. of Moral Ed. 313;CrossRefGoogle ScholarPubMed Brockett, M. “Ethics Forum Presentation to the Canadian Association of Occupational Therapists” (unpublished 1995:Google Scholar on file with author).