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Ethics by the pervasive method — the case of contract

Published online by Cambridge University Press:  02 January 2018

D R F O'Dair
D R F O'Dair*
Affiliation:
University College London1
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Extract

‘the duty of the law schools is to help its students to understand the ultimate significance of the lifework they have undertaken: to see the ultimate purpose of a lawyer's work… .’ [Brainard Currie]

The Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) has recently called upon academic law teachers of the undergraduate degree in law to take more of an interest in professional ethics. This means that academic law teachers can no longer set the subject aside as something to be dealt with during vocational legal education. Professional ethics must be taught pervasively, ie at each stage of legal education. This paper argues, however, that professional ethics must be taught pervasively in a further sense: even within the undergraduate curriculum, the task of educating tomorrow's lawyers in professional ethics cannot be left to one or more specialists in the subject.

Type
Research Article
Information
Legal Studies , Volume 17 , Issue 2 , July 1997 , pp. 305 - 322
Copyright
Copyright © Society of Legal Scholars 1997

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References

1. This article was written when the writer was Visiting Research Fellow at the Keck Centre for the Study of Legal Ethics and the Legal Profession at the Stanford Law School during the academic year 1995-1996. The writer would like to acknowledge the help provided by Professor Rhode, the Director of the Keck Centre, the generous financial support provided by the Alexander Maxwell Law Scholarship Trust and the support and encouragement of Professor Dawn Oliver Dean and Head of Department Faculty of Laws, UCL.

2. Brainard, Currie ‘Reflections on the Course in Professional Responsibility’ (1969) 22 Journal of Legal Education 48 at 55.Google Scholar

3. See The Lord Chancellor's Advisory Committee on Legal Education and Conduct Consultation Papers, The Initial Stage (June 1994) (the First Consultation Paper) and The Vocational Stage and Continuing Professional Development (June 1995) (the Second Consultation Paper) and its subsequent First Report on Legal Education and Training (April 1996) (the Report).

4. Report ibid para 2.11.

5. See generally Rhode, Deborah L ‘Ethics by the Pervasive Method’ (1991) 42 Journal of Legal Education 31.Google Scholar

6. SirBlackstone, William, cited in Johnson, Philip E Reason in the Balance — The Case Against Naturalism in Science Law & Education (Downers Grove Illinois, IVP, 1995)Google Scholar.

7. Stephen, Pepper ‘Counselling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering’ (1995) 104 Yale LJ 1545 at 1549.Google Scholar

8. The following example is inspired by the work of William H Simon, especially ‘Ethical Discretion in Lawyering’ (1988) 101 HLR 1083, to which the writer is indebted.

9. See Moses v Macferlan (1760) 2 Burr 1005 at 1007, per Lord Mansfield.

10. For the suggestion that the current position is not a timeless tradition of lawyering, see Thomas L Shaffer ‘The Unique, Novel and Unsound Adversary Ethic’ (1988) 41 Vand L Rev 697.

11. Hemdon, William H and Weik, Jesse W Herndon's Lincoln vol 2, p 345 Google Scholar, note cited in Luban, David Lawyers and Justice: an ethical study (Princeton, NJ: 1988) at p 174.Google Scholar

12. Ibid.

13. See Jane, Stapleton Product Liability (London: Butterworths, 1993) p 356 Google Scholar, n 26, citing Thornton, M and Ellis, T ‘The United Kingdom’ in Kelly, P and Attree, R (eds) European Product Liability (London: Butterworths, 1992) at pp 429, 470, 471.Google Scholar

14. See Rhode, Deborah L ‘Why the A B A Bothers: A Functional Perspective On Professional Codes’ 59 Texas Law Review 689 at 691–692, 720–721.Google Scholar

15. See generally the work of ProfessorRichard, Abe.1 and especially Legal Profession in England and Wales (Oxford: Basil Blackwell, 1988) at p 30 Google Scholar and ch 12.

16. See generally the discussion of the Ford Pinto case by Luban, David and Rhode, Deborah L in Legal Ethics (New York: Foundation Press, 2nd edn, 1995) at pp 358–378 Google Scholar.

17. The Guide to the Professional Conduct of Solicitors (London: The Law Society, 7th edn, 1996).Google Scholar

18. Ibid. para 16.01.

19. Paragraph 16.02 provides that: ‘The duty to keep a client's confidences can be overridden in certain circumstances.’ The commentary provides (n 1) that: ‘The duty of confidentiality does not apply to information acquired by a solicitor where he or she is being used by the client to facilitate the commission of a crime or fraud, because that is not within the scope of a professional retainer.’.

20. Ibid. para 17.01.

21. See generally Wetlaufer, Gerald B ‘The Ethics of Lying in Negotiations’ (1990) 75 Iowa LR 1219.Google Scholar

22. See generally Simon, William H A Theory of Legal Ethics (Cambridge: Harvard University Press, 1997)Google Scholar chs 1–4 and ‘Ethical Discretion In Lawyering’ (1983) 101 HLR 1083.

23. Hepple, B A ‘The Renewal of the Liberal Law Degree’ (1996) 55 CLR 470.Google Scholar

24. Ibid at p 474 (original footnotes omitted). Note also Professor Birks' comment that ‘there is extraordinarily little knowledge in the (university) law school system about civil and criminal procedure or about all matters relating to legal practice, including professional ethics… the general neglect of the subjects assigned to the vocational phase casts a shadow over the great achievements of the university law schools in the rest of the field’ (emphasis added): Birks, P B H (ed) Reviewing Legal Education (Oxford: OUP, 1994) ch 3 at p 20 Google Scholar.

25. See Woolf, Lord Access to Justice — Final Report (London: HMSO, 1996) paras 53–60 at pp 128–130Google Scholar.

26. See Family Law Act 1996, ss 13, 14 and 29.

27. See generally Looking to the Future — Mediation and the Grounds for Divorce (Cmnd 2799) (Lord Chancellor's Department, London: HMSO, 1995).

28. See generally, Twining, William, ‘Legal Skills and Legal Education’ (1988) 3 Law Teacher 7.Google Scholar

29. See Luban, David ‘Epistemology and Moral Education’ (1983) 33 Journal of Legal Education 636 Google Scholar.

30. Report, above n 4 at para 2.4.

31. ‘The Adventures of Rollo’ (1952) 2 University of Chicago Law School Record 3 at 23.

32. Legal Aid — Targeting Need (Cmnd 2854) May 1995 at para 8.13–8.16. The conclusions of this Green Paper on this point were affirmed in the subsequent White Paper Striking the Balance — the Future of Legal Aid in England and Wales (Cmnd 3305) June 1996 (the White Paper).

33. Report, above n 4, ch 4, esp at 4.3–4.6.

34. Menkel-Meadow, Carrie J ‘Can a Law Teacher Avoid Teaching Legal Ethics?’ (1991) 41 Journal of Legal Education 3 Google Scholar.

35. Cramton, Roger C ‘The Ordinary Religion of the Law School Classroom’ (1978) 29 Journal of Legal Education 247 Google Scholar; Sherr, A and Webb, J ‘Law Students, the external market and socialization: Do we make them turn to the City?’ 16 Journal of Law and Society 225 CrossRefGoogle Scholar; Elkins, G ‘Rites de passage: Law students telling their lives’ (1985) 35 Journal of Legal Education 27 Google Scholar.

36. Report of the NY State Law Rev Commission, Study of the Uniform Commercial Code. Legislative Doc No 65 at 113 (1954) evidence of Professor Karl Llewellyn, cited by William T Vukowich ‘Lawyers and the Standard Form Contract System: A Model Rule That Should Have Been’ (1993) 6 Georgetown Journal of Legal Ethics 799 at 837.

37. Charles Fried ‘The Lawyer as Friend’ (1976) 85 Yale Law Journal 1060 at 1078; May, William F ‘Professional Ethics, Setting Terrain and Teacher’, ch 9 of Callahan and Bok (eds) Ethics Teaching in Higher Education (York: Plenum Press, 1980) at p 145 Google Scholar.

38. Above n 34 and preceding text.

39. Above, text following n 24.

40. Oliver, D ‘Teaching and Learning: Pressures on the Liberal Law Degree’ in Birks, P B H (ed) Reviewing Legal Education (Oxford: OUP, 1994) at p 78 Google Scholar, citing Ramsden Leaning to Teach in Higher Education (London, 1992). I have omitted the original citations.

41. W Brent Cotter Professional Responsibility Instruction in Canada: A Coordinated Curriculum for Legal Education (Federation of Law Societies of Canada, 1992).

42. Note, however, Professor Cooter's worrying if realistic observation that ‘law teachers are committed to independence and autonomy at the cost of curriculum-wide structure’, ibid at 3–17 (and see n 17 of Professor Cotter's text for an amusing and illustrative account).

43. It is currently proposed that each student should thereafter take one course which contains a substantial ethics component, thus ensuring that the major issues are considered in a context which is of interest to the student. See Deborah L Rhode ‘Into the Valley of Ethics: Professional Responsibility and Educational Reform’ (1996) 58 Law and Contemporary Problems 139 at 142–143.

44. As a further consequence, I have tried to confine myself to a discussion of the cases to be found within the well known and widely used casebooks.

45. [1934] 2 KB 394, CA.

46. See, generally, P S Atiyah ‘Contract and Tort’, ch 2 of Jowell, J L and McAuslan, J P W (eds) Lord Denning: The Judge and the Law (London: Sweet and Maxwell, 1984)Google Scholar.

47. Fuller, Lon and Randall, John D ‘Professional Responsibility: Report of the Joint Conference of the ABA-AALS’ (1958) ABA Journal 44: 1159–62Google Scholar.

48. See especially Luban, David Lawyers and Justice: an ethical study (Princeton NJ: Princeton University Press, 1988) chs 4 and 5Google Scholar.

49. [1995] Ch 259, CA.

50. Evans LJ at 292E.

51. That: (i) the agreement on its true construction did not confer a right to surrender (277B, 291G); (ii) even if the court was wrong in relation to (i), the defendant was entitled to rectification of the contract because, even if it did not actually know of the plaintiff's mistake, it had behaved unconscionably (280D); (iii) the plaintiff's representatives had no authority to agree to grant a right to surrender (282H); (iv) the plaintiff was a victim of a misrepresentation and (v) the correspondence did not satisfy the formalities of s 2 of the Law of Property (Miscellaneous Provisions) Act 1989.

52. [1936] Ch 575.

53. Above n 18 and following text.

54. Above n 20 and following text.

55. For a summary of the arguments for strict confidentiality norms see Fred C Zacharias ‘Rethinking Confidentiality’ (1989) 74 Iowa Law Review 351.

56. For a statement of the arguments underlying this proposal, see Schwartz, Murray L ‘The Professionalism and Accountability of Lawyers’ (1979) 66 California Law Review 669.CrossRefGoogle Scholar

57. Model Rules of Professional Conduct 1980 draft, cited in Deborah L Rhode and David Luban Legal Ethics above n 16 at p 431.

58. MRPC 4.1, 1.6. Cf Model Code of Professional Responsibility DR 4–101(c)(3) which, though broader, does not permit disclosure on these facts unless the client's non-disclosure would be criminal.

59. [1990] 1 AC 831.

60. George Mitchell (Chesterfie1d)Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803, HL.

61. MRPC rule 4.3 (1980 Discussion Draft) cited Gillers, and Simon, Regulation of Lawyers Statutes and Standards (New York: Little Brown and Co, 1996)Google Scholar.

62. Above n 59 at 859G-H.

63. Surrey County Council v Braider Homes [1993] 1 WLR 1361, CA.

64. Jaggard v Sawyer [1995] 1 WLR 269, CA.

65. See Heydon, J D Economic Torts (London: Sweet and Maxwell, 2nd edn, 1978) at 44 Google Scholar, citing Brown v Spamburger (1959) 21 DLR (2d) 630.

66. See rule I. 1 (d) conduct damaging to the good repute of the profession (above n 58 and following text) and principle 17.01 (above n 20 and following text). See also principle 12.01: n 2 provides that ‘A solicitor must not accept instructions which would involve the solicitor in a breach of the law…’.

67. DR 7–102. However, for doubts as to the true construction and efficacy of this provision, see Pepper above n 7 at 1587–1594. Cf MRPC rule 1.2d, which seems to give the lawyer much more latitude in the business of giving advice which may lead to a breach of obligation, whether civil or criminal, by allowing the lawyer to give advice about the legal consequences of a proposed course of conduct. If consequences includes the probabilities of the state imposing an effective sanction the problem disappears in the hypothetical considered in the text.

68. See Pepper above n 7.

69. Holmes, Oliver Wendell ‘The Path of the Law’ (1907) 10 Harvard Law Review 457 Google Scholar.

70. May & Butcher V R [1934] 2 KB 17n.

71. Sale of Goods Act 1979, s 8(2).

72. Freedman, Munroe Lawyers Ethics in an Adversary System (New York: Bobbs-Merrill Company, 1975) pp 68, 74Google Scholar.

73. See Pepper above n 7 at 1598 and nn 123, 124.

74. Principle 21.07 says that ‘Solicitors who act in litigation, whilst under a duty to do their best for their client must never deceive or mislead the Court’. Comment 5 adds, delphically, ‘A solicitor would be guilty of unbefitting conduct if he or she called a witness whose evidence is untrue to the solicitor's knowledge, as opposed to his or her belief’.

75. See Mnookin, Robert H and Kornhauser, Lewis ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Google Scholar Yale LJ 950.

76. Principle 19.01. See also Commentary paragraph 1: ‘Any fraudulent or deceitful conduct by one solicitor towards another will render the offending solicitor liable to disciplinary action…’.

77. Cf rule 4.1 of the MRPC provides that: ‘In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person’. Comment [2] provides that: ‘This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact depends on the circumstances. Under generally accepted conventions in negotiation, certain types of statements are not normally taken as statement of material fact. Estimates of price or value placed on the subject matter of a transaction and a party's intentions as to an acceptable settlement of a claim fall into this category …’.

78. See generally Wetlaufer, Gerald B ‘The Ethics of Lying in Negotiations’ (1990) 75 Iowa LR 1219 Google Scholar.

79. SI 1994/3159.

80. EC Council Directive 93/13/EEC.

81. The point is controversial. See Susan and Christopher Bright ‘Unfair Terms In Land Contracts: Copy Out Or Cop Out?’ (1995) 111 LQR 655.

82. Principle 21.07 and comment 3.

83. Murray Schwartz above n 56.