NewLaw NewLegalEducation

By Justine Rogers

I was lucky to be part of an invigorating panel discussion hosted by The Australian recently, as part of their Legal Week initiative. I joined two colleagues, our Dean, Professor George Williams, and Associate Professor Michael Legg, as well as Gilbert+Tobin lawyer, Sam Nickless.

It was a wide, free-flowing discussion of the current and future changes to the profession, what Williams called ‘a once-in-a-century process of disruption in the legal market’, and the meanings these have for practice and for legal education. I thought I’d share here some of the main changes discussed and their significance for legal education and the law school.

The Changes:

1. Automation of legal services and its integration with services delivered by people.
2. The possibility for technology to increase access to justice.
2. Unbundling of legal services and flexible, ad hoc and assorted teams brought together for certain projects.
3. Professional ethics centred less and less in the profession and professional association and more in organisations and even the mode of legal service delivery itself.
4. Ethics of introducing new technology to clients or helping them with their artificial intelligence.
5. The globalisation of law – where clients, for instance, are from other jurisdictions.
6. The changes to law firms and their business arrangements, specialisations and recruitment practices, including firms coming from overseas to recruit UNSW Law (or Australian) students.
7. Cross-border disputes and the extent to which Australian courts can remain forums for litigation.

What They Mean for Legal Education and the Law School:

1. Urgent need to answer questions about the value that a person adds as a lawyer.
2. Law schools may need to focus on the ‘professional’ things computers can’t do (or can’t do as well): certain forms of problem solving and analysis, integrity, ethics, professional relationships, creativity and imagination.
3. Law combined with computer science, maths or engineering will add to classic combinations.
4. All law students must understand technology (coding and programming, for instance) regardless of their other degree.
5. Law students must develop capacities in team work and project management.
6. Law students need to be able to identify and address ethics and accountability issues in a range of contexts, when working with external lawyers, non-lawyer professionals and, crucially, with technology.
7. Law students need to understand not just other, non-Australian legal systems but also the cultures in which law operates.
8. Law schools need to help their students appreciate the range of different firms in Australia and the region in making their career decisions.

Without wanting to sound too home-team-y, we’re already doing some pretty fabulous stuff at UNSW Law to support each of these and, through a mini curriculum review, we’re about to do a whole lot more.

(The full video and an edited transcript of the discussion is here.)

The importance of regulatory context: some questions for legal educators

By Justine Rogers

ANU College of Law hosted its annual legal ethics roundtable last week. The theme was ‘reimagining lawyer regulation’.

The regulatory ideas presented raised many worthwhile questions for legal education. I’ve selected two here.

From the talk given by keynote speaker, Professor Leslie Levin, expert in the legal profession, ethical decision-making and lawyer discipline, University of Connecticut:

1) How do we teach law students to be professional when the primary influence over their ethical attitudes, decision-making and compliance will be their particular, divergent work contexts?

Building on other research, Levin’s study of some 1300 lawyers revealed that of all the determinants of future ethical behaviour, most decisive is practice context (workplace, type of client, court etc) and the behaviour of those who inhabit it. Far less so or less significantly are the things that students need to disclose for admission (such as mental health).

Context shapes the importance given to the professional bodies outside the workplace when deciding what values and rules are worth following, such as, the associations, the regulators (or the disciplinary architecture), the court, and the insurers. For instance, big firms look within their own firms and otherwise interact with insurers, prosecutors are less concerned with criminal liability (when does that happen?), in-house counsel don’t worry about discipline, whereas sole practitioners do. In other words, different things matter to different practices.

Levin asked: How do we create professional training, sanctions, and incentives in order to motivate lawyers to behave the way we want them to and to teach them what positive norms there are in the profession? How do we regulate lawyers if context (what matters in each context) is the key variable?

This also means we need to think about how to develop professional integrity and core ethical skills among students for contexts that will introduce, emphasise and enforce professional values in very different ways.

From the talk given by Dr Stephen Tang, Lecturer, ANU College of Law:

2) What is the proper role of behavioural ethics (or any applied psychology) in legal ethics courses?

Behavioural (Legal) Ethics is ‘trending’ in legal ethics education. Popularised by books like Thinking Fast and Slow, and Nudge, this scholarship argues that people are fundamentally irrational and use cognitive short cuts that can lead to suboptimal decision-making. At UNSW Law, we use behavioural legal ethics material in our core course to allow students to better identify, prepare for and discuss ethics issues. Our material includes this leading Robbennholt and Sternlight piece and this wonderful series of ‘Ethics Unwrapped’ videos from UT Austin, both of which were commended by Tang.

This material is useful, he argued, at least as a set of cautionary tales of how irrationality can contribute to immorality and discrimination in routine, subconscious ways. But his concern with behavioural ethics, or the behavioural economics or applied psychological approaches from which it derives, is how the information can be used  – and is used – to manipulate behaviour, even if in a benignly paternalistic or ‘nudging’ way. Equally concerning, its use is usually guided by simplistic, narrow, short-term and consequentialist (eco-based) ideas of people’s motivations and values.

When regulating lawyers, he argued, we need to contemplate and include professional narratives, and organisational climates, and cultures – or more complexity. We will have, then, a better chance of success in fostering certain positive behaviour because we will understand bigger psychological dimensions and developments over time, not just quick, aesthetic behavioural changes, of the same sort as the etched image of a fly in a urinal used to lead to cleaner bathrooms (yes, that’s a real example of applied psych). “If regulation is inescapable, then we must understand people in context. We need to have a sense of our own limits as regulators when deciding what other people decide.”

Similarly, I would say, when teaching students behavioural ethics to more effectively engage in ethical discussions, it must involve a commitment to use the information transparently and inclusively as a way of better understanding and discussing mistakes and fallibilities, of broadening the range of harms considered, and not ruling out or underestimating other motivations, explanations and solutions.

Cheating at University

Photo Credit

Justine Rogers

Last week I was asking students in my ethics class to discuss legal values and what ones they’d picked up from law school. They raised a range of things, from compassion to competition. But one student said, “No plagiarising, no cheating, being honest in your work!”. “It’s drummed into us from Day 1”, one added.

I was rather chuffed to hear this, but I am not sure I can or should be too pleased. The research shows that these are problems affecting all Australian universities, though unevenly across them and within the disciplines. Sydney University has just released part 1 of report, ‘an approach to minimising academic misconduct and plagiarism at the University of Sydney. Its focus is detection and prevention. The Report shows that most instances of misconduct were categories of negligence (lack of understanding or carelessness about how to cite and reference). The rest, the active fraud, is where it gets disturbing.

There’s the less-straight-forward (as far as severity of categorisation goes) collusion and recycling, but most of it is outright dishonest plagiarism and ghost writing, or getting someone else to do the work and submitting it as your own. Ghost writing, in particular, is becoming more prevalent and difficult to regulate. Students are taking advantage of sophisticated and therefore hard-to-detect online services, marketed to them, ones like MyMaster. These fraudster strategies affect most directly take-home assessments, but now students are adapting the technology available to cheat in exams. They are using their phones and watches to bring in material, using loo breaks to quickly check the internet, taking photos of confidential papers, and one I hadn’t thought of in my old cheating (paper-based) days:* paying impersonators to come and take the exam on their behalf. Other categories found in the report were fraudulent medical certificates or other bad faith uses of special consideration.

A summary of the Report’s recommendations (produced by the Academic Misconduct and Plagiarism Taskforce, Sydney University, 2015: 2):

Postcard from Mexico

Anna Cody

 

Experiencing another law school, and particularly another legal clinic using clinical education methodology is always eye opening.   For the last 9 months I have been collaborating with the National Autonomous University of Mexico, Human Rights program legal clinic. It has given me some fascinating insights into both the Mexican legal and political system, as well as what it’s like to be a law student in the biggest public university in Latin America.

The clinic here focuses on access to information in migration matters and disability rights cases. They have made over 100 access to information claims with some success but which demonstrate how un-transparent the immigration detention system is.  And as most clients are from Central America and are on their way to the USA, the clients don’t want to stay in Mexico to pursue their legal rights when they are mistreated, tortured or detained illegally. The disability rights cases challenge the automatic use of ‘guardianship’ for many people with disability. They have also supported various people seeking de-institutionalisation. Students are an integral part of these cases, researching them, interviewing and advising clients and representing clients in court. Cases in Mexico are mostly run on the papers without oral evidence, submissions or argument.

Three insights

1. Students, the world over, thrive when given responsibility for their legal work, and are supported in their learning by thorough and effective supervision. The students in Mexico are given a lot of responsibility and in order to succeed in this, they need intensive support from their supervisor who meets with them, drafts documents and discusses some of the pitfalls of the civil system. Writing in plain language is even more of a challenge in Mexico than in Australia where students receive little training in how to communicate effectively.

2.  Despite the various criticisms of Australian ethical frameworks and regulatory system, having some ethical rulings and requirements are definitely preferable to not having any at all. In Mexico there is no ethical code to guide and regulate lawyers. It is a real discussion between supervisor and students about how to influence a judge and whether or not paying bribes is appropriate. The fact that this can be discussed openly is a tribute to both teacher and students. And yet for an Australian lawyer this explicit form of “influencing” by bribe is shocking. It strikes me how hard it is to continue to act in good faith as a lawyer and to believe in a legal system which relies on bribery. This has meant some fascinating discussions with students about what our role is within a legal system as lawyers.

3. When we are working with clients with disability and teaching students about their and our own ableism, it’s essential to design a clinical course with people with disability at the centre. This means integrating speakers, readings, class content which has people with disability giving their perspectives. One of the most powerful classes which the Mexican clinic teaches its clinical students provides perspectives of people with disability, who are not clients. The clinic invites a member of the Colectivo Chuhcan, a collective formed by and for people with psycho-social disability to discuss their experiences of the health and legal system in order to give students an insight into these issues.

These are just 3 of the insights of my time in Mexico, on sabbatical from UNSW.

The Legal Ethics of Better Call Saul

One of my students sent me this resource, a blog written by a New York ethics lawyer on the legal ethics of Better Call Saul. Better Call Saul is the spin-off and prequel to Breaking Bad – and is, in my view, a better show (get on it – you needn’t have watched Breaking Bad!).

The phrase “Better Call Saul” is the grubby slogan of Saul Goodman, the ethically depraved lawyer in Breaking Bad. In the prequel, he’s struggling public defender and elder-lawyer, Jimmy McGill – and hasn’t yet transformed into his badder-self. The show raises a bunch of legal ethics and procedural issues, which the blog analyses. Of course, it’s also, and perhaps more importantly, about the personalities, pressures and rationalisations that shape ethical behaviour, and how we judge that behaviour in ourselves and others.

Well worth watching, if not incorporating into the law classroom.

Justine Rogers

Wellness for Law

China in the World Centre, ANU, photo: Melissa Castan

Justine Rogers

I attended the National Wellness for Law Forum last week. The 2-day event brought legal academics, practitioners, consultants and students to leafy ANU in Canberra to exchange their research and ideas about law student and lawyer psychological distress, and their solutions.

Linking the talks was a background debate about whether wellness is an individual brain phenomenon or one driven most significantly by neoliberalism and other social and political factors – I hope we can agree that it’s both, and much more than this, and that ‘treatment’ must be multi-layered and won’t always be called ‘treatment’. The Forum shared many approaches to supporting and improving wellbeing – in the classroom, law schools, in firms  – and at the bench!  – including mindfulness and creativity, developing ethical, interpersonal and emotional capacity, and legitimate flexible work.

One of the presenters said that treatment was useless or, more carefully, that no matter what coping strategy one chose, it didn’t materially matter. The focus, they argued, needs to be on prevention at the organisational level. After my initial reaction

The “Good Lawyer” Quiz

Two of my former colleagues from the UMKC School of Law, Professors Nancy Levit and Douglas Linder, recently published a book entitled “The Good Lawyer“, Oxford University Press (2013), which  “[t]akes the reader on a fascinating and insightful tour across space and time to uncover the qualities that make for the best lawyers” and “[o]ffers suggestions for concrete quality reforms while also exploring broader ethical issues.”

This book is, in some ways, a successor to their previous “The Happy Lawyer: Making a Good Life in the Law”, Oxford University Press (2010).

Levit and Linder have now provided in the ABA Journal a fascinating quiz (with answers) that highlights some of the  critical and at times surprising findings in the “Good Lawyer”.  It can also be taken interactively online.

While the book and quiz are necessarily US-legal practice focused, they will still be highly relevant to the practice of law outside the US, especially in other common law countries.

Colin B. Picker

Introducing Behavioural Legal Ethics

Justine Rogers

Search the TV channels most nights, and you’re likely to come across the lawyer with “moral pluck”. You know, the witty and resourceful lawyer who has become, according to William H. Simon, the most depicted lawyer of popular culture. You’ll know him (and it’s almost always a ‘him’); the one who’s willing to commit moral transgressions to support an informal, sympathetic set of values. A local example is Cleaver Greene, the brilliant but slightly sketchy Sydney barrister in the series, Rake.

But it’s not just writers who are interested in lawyers’ ethics, legal scholars have long tried to understand their nature and effects. And now there’s a new approach that examines it from the perspective of psychology. It’s called Behavioural Legal Ethics.

Don’t let the psychology connection put you off. Rather than the waving about the diagnostic model like a judgmental teacher’s pointer, the starting position of Behavioural Ethics is that most people who do bad are not inherently bad. Research from this field has shown that these are simply normal people responding to environmental pressures, using typical modes of human thinking. In this way, for our purposes, rather than: Why are lawyers bad? Or, Which kinds of lawyers are bad? The question becomes: How can good lawyers do bad things?

Two examples of typical human thinking that can influence ethics are our obedience bias and our over-confidence in our own ethicality. In law, the role morality and partisan bias that characterises the ‘zealous advocate’ relies on and demands additional cognitive framing and filtering. Driven by our need for a stable identity, these patterns of thought serve our particular social and professional situations, including, for lawyers, the legal institutions in which they work. These processes can result in ethical lapses or blindspots or even the circumvention of ethics altogether. Through this approach, ethics and the thinking that it involves becomes something very social and very human.

This past semester, I have incorporated this new legal scholarship in our course, Lawyers Ethics & Justice, at UNSW Law  and I have found it immensely valuable. Among many things, it gives students a handrail to engage with the rest of the material. More specifically: