Get Ready, Lawyers’ Ethics, Go Go Go!

Practice makes perfect (or as close as)

Can we train for an Ethical Dilemma? I think we can.

Many of us train for emergencies or unexpected events.  We have learned that preparing for adversity helps us to respond to it.  We practice building evacuations, CPR, larger organisations have disaster management and recovery plans.

From a learning point of view, we know that our knowledge of information, mental procedures and psychomotor procedures can improve with practice.  In sport we practice physical skills such as a golf swing to learn good habits and to ‘hard wire’ our muscle memory.

You can probably discern where I am going with this.  I submit that lawyers need to practice their ethical-decision making skills as a part of their preparation for and response to ethical dilemmas.

It seems logical to me to start with undergraduate law students and to persist with this training through the practical legal training period and beyond.  Older lawyers need to keep up their training too.  (I am thinking of the boiling frog analogy: the ethical environment can change so slowly that the lawyer may not realise she or he has overstepped the ethical boundaries until it is too late)

I submit that working with an Ethical Decision Making Model (EDMM) is one very good tool to use as a part of our training.  I emphasise that it is a tool and not a prescription for success.

The EDMM is very useful because: it provides us with ‘way points’ to pause and reflect on factors relevant to our decision-making; it is a process that can be learned and remembered with practice; the process helps us to develop a systematic or methodical approach to responding to tangible and intangible problems; and adopting such a process assists us in giving an account of our decision-making for practice management, risk management and regulatory and disciplinary purposes.

I have set out an example EDMM below. [1] There are several varieties of such models and I encourage people to choose or adapt the variety that resonates with them. [2]

The first figure shows the way points: Assess the Situation, Assess the relevant Values, weigh the material Dispositional and Character factors, make a Comprehensive Assessment of the data collected, and then express and record the Decision.  This can be an iterative process with a number of cycles allowing for review and fine-tuning of the decision-making.

 

Fig. 1

 

The second figure opens up the Assess the Situation way point. We collect Facts, identify the Persons involved or affected, consider possible Alternatives in responding to the situation, investigate the immediate Consequences of each alternative and the longer-term consequences of the alternatives.

Fig. 2

 

Figure 3 explores the Values waypoint. We identify the Values material to the situation and to us. Values may include humanist values such as respect for life, ideas of justice and fairness, and the keeping of promises (covenantal integrity). Values would include professional values derived from the written and unwritten professional rules and also the relevant law. In considering values we should also investigate the consequences if the proposed decision were Universalised – what impact would that have long-term for the community generally and what are the implications for processes and procedures. Would the proposed response be procedurally sustainable?

Fig. 3

 

Figure 4 shows the Dispositional/Character factors way point. For lawyers that might involve asking ourselves “What kind of lawyer do I want to be?” The same question could be expressed more broadly: “What kind of law firm do we want to be?” “What kind of community do we want to be?” Then we can consider how our propose response to the ethical dilemma fits with our dispositional or character factors.

Fig. 4

 

At figure 5 we arrive at the Comprehensive Assessment way point. Here we examine and reflect on all the data we have gathered so far from each of the previous way points. As part of our assessment we may prioritise or give great weight to certain factors over others. We must provide reasons for doing this. We should test our assumptions and also verify or validate the data we have collected. We may be ready to frame a decision. Having done that, we would test that proposal for its fitness. Is it the most fitting decision given everything we know so far? Can we explain why? (If we cannot provide a plain language written explanation we may have a problem).

Fig. 5

 

The figure belows follows on from the previous statement. If called upon to do so, can we give an account of our decision? Can we show that the decision is not only desirable but feasible? Is it practical? Is it sustainable?

Fig. 6

 

Now we may be ready to express the decision and to proceed. Alternatively, through this process we may have identified potential gaps or blind spots in our data. If so, we should cycle through the process again, until we are confident we have executed the process using good material data.

Fig. 7

 

At first, this process may seem arduous. However, like learning times tables at school or evacuating a building, practice soon allows us to use such processes as second nature and it no longer seems too difficult. That said, each way point demands full attention and intellectual rigour; those are habits we can practice until they become second nature too.

Fig. 8

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1. I have drawn heavily on the model in Preston, N., Understanding Ethics. 3 ed. 2007, Sydney: The Federation Press.
2. See for example the DECIDE model in Le Brun, M., Enhancing Student Learning of Legal Ethics and Professional Responsibility in Australian Law Schools by Improving Our Teaching. Legal Education Review, 2001. 12(1 & 2): p. 269-285.

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