Visualising Preston’s Ethical Decision-Making Model

I have posted about this before, but given public policy debates on issues such as inequality, refugees, climate change, etc, I thought it might be useful to post this simplified model of ethical decision-making again. I contend that decision-makers are obliged to make explicit the process by which a position is chosen. The notion of “accountability” implies that an account of a decision should be possible, before the decision is acted on. The same applies to subsequent reviews, i.e. “should we continue to act as we have done?” It seems to me many policy decisions prefer economics and utility, to values, ethics, consequences, dispositions, and character. Undoubtedly many policies involve complex considerations. As part of this we can use some simple tools to tease out the threads of difficult problems.

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A pervasive approach to teaching legal ethics?

Recently I was teaching in an advocacy skills workshop. Something happened in the workshop that reminded me of on an interesting paper presented by Michael Robinson at 3ILEC in 2008: ‘Providing Ethics Learning Opportunities throughout the Legal Curriculum’ (Paper presented at the The Third International Legal Ethics Conference, Gold Coast, Australia, 13-16 July 2008)). That paper has since been published and is available at: http://eprints.usq.edu.au/6293/2/Robertson_LE_2009_PV.pdf

Michael proposed ‘a model that makes it possible to provide law students with legal ethics learning opportunities throughout the legal curriculum’ (p 61). The paper provides a detailed approach to curriculum design to provide such opportunities.

I like the word, ‘opportunity’, it reminds me of a term used in medical general practice, ‘opportunistic vaccination’. That refers to a situation where a child presents to a doctor with some complaint and during the consultation the doctor ascertains whether the child is up to date with her or his vaccinations. If the child is not up to date, the doctor offers to bring the vaccinations up to date at that session.

I agree that a directed pervasive approach to curriculum design is important, but I also think that adopting the ‘opportunistic vaccination’ approach could be a powerful and practical way to encourage graduate lawyers to recognise ethical issues when they arise.

Back to my workshop – the graduates were split into two groups with one acting for the plaintiff and the other acting for the defendant. For logistical reasons we had to keep all the graduates in the same room at this time. The graduates were enthusiastically engaged in the preparation and within their own group energetically debating factual issues and strategic approaches to examination-in-chief and cross-examination. It did not take long for the volume of the discussions to get very loud. There erupted a bit of good-natured fencing about members of each group eavesdropping on the discussions of the other group.

I stepped in at that point and suggest we chat about that for a moment. Imagine, I said, that you are at court taking instructions from a client in one corner of the foyer, when you realise you can overhear your opponent in the same matter taking instructions from her or his client close by. What should you do?

Most of the graduates immediately volunteered that it would be unethical to eavesdrop on a privileged discussion between a lawyer and her or his client. There was some further discussion about what practical steps should be taken to remedy the situation. One graduate also commented that it was a bit similar to finding your opponent’s brief of instructions, and that it would be wrong to pick up the brief and read it. There was a discussion about written and unwritten ethical rules, and the topic of personal and professional values.

This side discussion only took a few minutes, but it seemed to produce a great deal of interest given the graduates were ‘experiencing’ a potential dilemma. After that discussion, the graduates did quieten down a bit when they returned to their advocacy work.

It would be possible to ‘script’ learning opportunities like this, but I am really interested in the spontaneous ‘opportunistic vaccination’ approach, which connects to ideas of reflection-in-action and reflection-on-action as part of professional skills. It does mean that we as teachers need to stay engaged with what is happening in the room while the graduates are doing group work, be sensitised to opportunities, and be ready to provide an informed approach to discussion about the ethical issues.

Is this something we leave to lecturers to pursue at their discretion? Is it something with which lecturers might need some help to develop? What do you think?

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