Breadcrumbs

TEACHING PROFESSIONAL RESPONSIBILITY: THE WAIKATO EXPERIENCE

BY KAYE TURNER*


DISCLAIMER: This article has been scanned from a printed source. It has been proof-read but may still contain errors or inconsistencies. Please refer to a printed version for complete accuracy when quoting from this document.



I. INTRODUCTION

The inculcation of an appropriate professionalism among students was a core objective identified by the foundation Dean, Professor Margaret Wilson, and staff of the School of Law at the University of Waikato. Their "vision" of graduates of the School included "graduates who can serve their clients well and ethically" and "graduates who are efficient, skilled professionals".[1] These goals were to be achieved by infusing appropriate teaching material and assessment tasks throughout all the law courses taken by students in their four years of undergraduate study for the LLB degree. The successful achievement of these goals would be signalled by an appropriate degree of professionalism in the work of students, including the timeliness of work, the professional presentation of work, and the quality of the legal research, writing and communication exhibited by students. In particular, the Legal Method course, one of three first year courses for all law students, would provide the platform for the development of professionalism throughout the degree. In addition, a fourth year course was mooted to give students an option of adding, just prior to graduation and entry to the workforce, further specific understanding of the concepts and practice of a profession.

In the first semester of 1994 a half course in Professional Responsibility was taught for the first time in the School, by the writer. The course was completed by forty-two students, who comprised thirty-five per cent of the Law 4 students.[2] This article describes and discusses the experience of developing and teaching such a course, and raises some issues for future directions in the course.

II. COURSE DEVELOPMENT

The Professional Responsibility course was positioned in a particular way and this influenced decisions about the course content and teaching delivery. It was developed as unique to the Waikato undergraduate degree (in the New Zealand context), with a particular appeal to both the judiciary and the legal profession.[3] The impetus for the Waikato course also came, implicitly, from the increasingly international context of law teaching, and particularly the need to match effectively the content of the Australian law degrees. Four Australian university law schools (New South Wales, Wollongong, Newcastle and Tasmania) have compulsory courses related to the legal profession and professional responsibility. Many of the twenty-four Australian law schools have optional courses about lawyers and society or legal ethics. Griffith University Law School has established a National Institute for Law, Ethics and Public Affairs and the Law Foundation of New South Wales has created a Standing Committee on Teaching Professional Responsibility.[4] The Law Council of Australia, in its policy on legal education, identified "a commitment to the highest ethical principles of the legal profession" as one of the essential features of an acceptable law course of studies. There are signs that the Australian law schools are taking on the challenge of providing a stronger emphasis on teaching customer service skills to their students.[5]

The Waikato course in Professional Responsibility was to be taught as a "bridge" between law study and the practice of law and, at the same time, as a course relevant to all professional work that was law-related. Because it was seen as necessary to gain some knowledge of the range of topics encompassed by "professional responsibility" in order to present oneself as a graduate with expertise in the area, lecture attendance was compulsory, and attendance registers were maintained. Unless seventy-five per cent of classes were attended, a student could not complete the course. The assessment for the course focused on a substantial research paper individually prepared by each student, on a topic of his or her choice agreed with the lecturer, and related to the subject matter of professional responsibility.

The objective of the course was established as providing students with an understanding of the concept of professionalism, its theory and practice, and its meaning for lawyers. This objective was reinforced by the external context in which the course was being offered for the first time. This context was characterised by declining public respect for lawyers; concerns of the legal profession's governing bodies and leaders for the ethical standards of lawyers; and questioning and division within the profession itself of the value and purpose of existing as a profession. These issues had an international context as well as a national one:

    Community polls show that the social esteem in which lawyers are held, in general, is low, and that they are regarded as grasping and not particularly honest or scrupulous. One reason for the increased interest in legal ethics is the public criticism of the behaviour of lawyers. Many leaders of the profession believe that by raising ethical standards, by increasing penalties and by creating more efficient enforcement procedures there will be an improvement in the public perception of lawyers. This may take place but at present there is a sense of despair among leaders of the legal profession that, no matter what they do or say, the public does not understand what lawyers are or what they do. ... Many lawyers feel isolated and think people hate them. In fact a recent article on the fact that more and more lawyers are dating each other states: "Lawyers are attracted to each other because we repel everybody else".[6]

III. COURSE CONTENT AND DELIVERY

The course began with a focus on professions in general and the legal profession in particular. This section examined the characteristics of a profession and the features of those who may legitimately be labelled professionals. The contending approaches to this issue were explored, and it was noted that there are two current and opposed views: one, that the professions have passed through a "golden age" and are on the decline; and the other that the professionals are the new elite, and will remain so for some time to come. There was discussion of current cynicism and pessimism in the legal profession, of the ways in which these attitudes are conveyed to clients, and of whether or not they run counter to a need for lawyers to uphold respect for the law as an ethical requirement of professional practice.

The first section was followed in the second week by a thorough canvassing of the development and structure of the New Zealand legal profession. This was seen as a necessary foundation for future participation in the profession, and for a clearer understanding of the privileges and responsibilities of professional status. Points which were emphasised were:

* the expectation, from the earliest establishment of the legal profession in New Zealand, that lawyers would play key leadership roles in the wider society;

* the continuing influential role of the District Law Societies in the organisation and discipline of the profession;

* the association of lawyers with law reform initiatives;

* the association of the profession with legal education and training;

* recent trends in the New Zealand legal profession, including the development of "mega-firms", the increasing business orientation of law firms, the impact of technology on law practice, and the increasing gender and ethnic diversity of practitioners.[7]

From this material, it was hoped that students would develop an appreciation of the traditions of the legal profession in New Zealand, and some sense of the broader responsibilities implied by these traditions, particularly in law reform, legal education and community leadership.

In the third week, there was a more specific focus on the rights, duties and responsibilities of lawyers. The students were introduced to the international context within which lawyers operate, through the "United Nations Basic Principles on the Role of Lawyers". Then the national context was set, with a preliminary examination of the Rules of Professional Conduct for Barristers and Solicitors. Students examined the general principles governing the way in which lawyers must behave in their professional capacity, the sources of those principles in both statute and common law, as well as in the rules of disciplinary tribunals and professional associations, judicial statements and legal writings, and the range of sanctions for contravention of the principles.[8] Within that general framework, some emphasis was given to the duty to accept work and continue to act; the duties to inform, advise and obey instructions; the duty of confidentiality; the duties of competence and care; and the duties of loyalty, fairness and candour. The fourth week of the course highlighted a deeper range of issues in relation to legal competence, and other duties to clients.

The disciplining of lawyers, that is, the regulatory environment in which lawyers function, was covered in the fifth week. The focus was twofold. First, there was a detailed look at the requirements of statute, the Law Practitioners Act 1982. Then there was an examination of current proposals for reform of the complaints and disciplinary procedures, using the Ruck paper as a basis for the discussion.[9] Students were intrigued by the impact of the behaviour of a very small proportion of the legal profession. Twenty-three lawyers were struck off during the five-year period 1989-1993 (inclusive), out of an approximate membership of 6000 in the New Zealand Law Society. Yet the impact of the behaviour of those lawyers on lowering public perceptions of all lawyers had been considerable, and had also contributed to pessimism in the profession itself.[10]

Week six gave special attention to the issues involved in handling other people's money, and students engaged in a case-study discussion of the Renshaw Edwards situation, one of the problematic challenges facing the disciplinary procedures of the profession in recent years. In the seventh week, another case study, the Clark Boyce v Mouat case, provided the back drop for an examination of conflicts of interest, the variety of difficulties they may pose in a variety of practice types, and judicial attitudes towards them.

Week eight was devoted to a smorgasbord of other current ethical issues, including those posed by advertising, and the duty of confidentiality. At this point in the course students were expected to have covered a fairly demanding range of reading materials, and to have a sound basic understanding of the fundamental concepts of professionalism. In terms of "bridging", it was time to bring in some outside voices for the remainder of the course. These fresh perspectives were provided by an ethics specialist with a strong academic background in philosophy and a strong professional background in the practice of health ethics; a practitioner with long experience in a range of practice types and a special professional focus on the issues of customer focus and client service in the legal profession; a member of the profession with responsibility for ethics and discipline matters at the District Law Society level; a judge with a background in both law practice and academia, within New Zealand and overseas; and an information technology expert with a special focus on effective media presentation.

Interwoven with the material presented by outside speakers was material and discussion presented and led by the lecturer, to draw student attention to the changing nature of the profession and, in particular, the likely impact of globalisation (significantly enabled by information technology) on the practice of law. This was seen as important in familiarising students with probable and possible changes in the legal profession: for example, the possibility of a growing "portfolio" approach to work,[11] constant re-training over a working life, and work performed in alliances with lawyers in other countries to achieve the global twenty-four-hour practice. The underlying globalisation theme fitted well with the concerns and challenges raised by the guest contributors to the course. Students were exposed to the changing profile of law practice in New Zealand, particularly partner and firm volatility since the early 1980s. They learned that increasing differentiation in the profession applies as much to financial differentiation as to other factors such as gender and race. They began to comprehend that the practice of law is likely to be very different in their working lives from what it has been for most of their predecessors in the profession. They also began to see the possibility that law work in the future has the potential to be consistently intellectually challenging, and that the role of professionals such as themselves is likely to involve a consistently higher degree of difficulty for more of the time than most of their predecessors have experienced. Technology and changing work practices may liberate the law graduates of the 1990s from some of the previously inevitable mundanities of professional legal business, but will also mean that they are expected to deliver more high quality intellectual work than their predecessors for more of the time.[12]

Throughout this part of the course, students were also working independently on their research projects. These covered a very wide range of topics, from the feminisation of the legal profession, through conflicts of interest in small New Zealand rural law practices, to the viability of ISO 9000 standards[13] in law practice. A number of students focussed on advertising and its implications; on the impact of information technology on professionalism; and on the ethical dilemmas of different aspects of practice, including criminal law, and conciliation and mediation. Barrister retention, discipline regulation reform, and client satisfaction with lawyers' service were among other topics of the research. Overall, the student research essays represented a portfolio of concerns relating to the future of law practice and legal professionals.

IV. POSSIBLE FUTURE COURSE DEVELOPMENTS

The Professional Responsibility course is a modest effort to introduce students to a range of current professional legal concerns, and to prepare them for the likelihood of ongoing, demanding change in the legal profession throughout their working lives. Great efforts are made to avoid any overlap with the ethical components of the course taught by the Institute for Professional Legal Studies (IPLS). The IPLS course is the primary explanation for the emergence of the Waikato course as a course in professional responsibility rather than legal ethics. The fact that the Waikato course is not a legal ethics course has also influenced the modes of teaching delivery. These were focused on lectures, presentations and discussions, rather than on the case study method favoured in most legal ethics courses. There is evidence of a student demand for a more participative teaching methodology, including more emphasis on a case study approach, and this is an issue that will need to be addressed in the future delivery of the course. The main dilemma is not to intrude upon the territory and approaches of the IPLS, while at the same time responding to a student hunger for practical skills which will help them to address the ethical challenges of professional life immediately upon their entry to the legal profession, or to areas of work related to legal practice.

Another challenge for the development of the course in the future will be to respond to the need identified by Sir Ivor Richardson in his delineation of crucial issues for New Zealand lawyers and for their education for the twenty-first century:

    redefining the relationship between professional responsibility and commercial performance both within the megafirms and through the range of legal practices in the country.[14]

At present, this issue is approached in the course only obliquely, by the (still superficial) consideration of issues related to quality service delivery of consistently professional work by lawyers, and how that can best be achieved. The underlying assumption is that fee-generating performance and ethical performance can and do go together. However, their continued achievement in the legal profession of the future is likely to involve more dedicated attention to the issues known in management jargon as "working smart": in particular, using information technology and restructured work teams to achieve greater output with less stress. To become convincing, these approaches need to be worked with in a more explicit "hands on" way in the course itself, and students should be introduced to possible techniques for achieving a good productivity/ethics/rounded life mix. Otherwise, they can be forgiven for suspecting that the jargon disguises new approaches to exploitation, rather than new approaches to satisfying work.

The other major issue facing the legal profession currently, not as yet addressed in the course, is the challenge of demonstrating that lawyers, in fact, "add value" in the work they do. This challenge involves countering the argument that lawyers are mere "rent seekers", that is, engaged in essentially unproductive work, redistributing wealth in society, rather than producing wealth.[15] To meet this challenge successfully would require concentrated analysis of the current work of lawyers, from both micro- and macro-economic points of view, and ways of achieving greater focus on the value-added dimensions of law work. Doing this kind of analysis is not really possible within the confines of a half course, and is presently, therefore, a perspective accessible only to those students who do a combined degree in law and management studies as part of their Waikato programme.[16] It is probably necessary to address this issue explicitly within the course sooner rather than later, as the "lack of value-added" argument already underpins the efforts of the government to shift resources away from legal education to other allegedly more productive sectors of the economy. It is also important for students to understand the issues well to enable them to shape their future work in economically and socially productive ways.

The immediate future of the professional responsibility course at the Waikato Law School is that it will be taught in 1995 as a half course, with only minor modifications in course content and delivery. The longer-term plan is that professional responsibility will be taught as a full course in 1996, including at least the following additional dimensions:

* more simulation-based teaching of ethical dilemmas in legal professional practice;

* practical exercises and theoretical material to enhance students' ability to achieve greater professional productivity, particularly through effective utilisation of technological capability;

* deeper attention to the positioning of legal professionals as wealth-contributors in society, and to enhancing students' capacities to recognise and foster wealth-producing activities in legal professional practice.

V. CONCLUSION

The Waikato experiment is to teach a course in professional responsibility in a way which will draw out for students some of the concerns which are likely to occupy them during their working lives. It places these concerns in a context which emphasises their traditional origins. This is because professional responsibility raises concerns only if one has a fundamental belief in the value, viability and worth of professions and in the existence of legal professionalism.

The Waikato Law School was established as

    a conscious attempt by the New Zealand Council of Legal Education to move towards a new form of legal education that reflected a conceptual, contextual and critical approach to the study of law and the legal system.[17]

This new form of legal education, however, does not eschew the integral (and integrative) value of professionalism. Indeed, Foundation Dean Wilson posited this value of legal professionalism as providing just such an integrative function within the Waikato Law School itself, between the type of education with which the School feels academically comfortable, and the ability of Waikato graduates to compete effectively on the employment market.[18] The course in Professional Responsibility, therefore, is one part of an evolving strategy to equip Waikato law graduates with a range of legal skills for law practice in the 1990s and beyond. Integrity and service are seen at the Waikato Law School, as McKay J saw them,[19] as components of legal professionalism into the twenty-first century, even if the precise parameters of just what constitutes appropriate "integrity" and "service" may alter with time and circumstance.




[*] BA LLB (Auckland), MA (London), Senior Lecturer in Law, University of Waikato.

[1] Record of Staff Planning Meeting, February 1992.

[2] Waikato law students take 12 compulsory law subjects in their first three years of study; only in Year 4 are they able to choose any optional subjects. There are approximately 20 optional fourth year courses, from which students must select the equivalent of six full courses.

[3] Strong support for the introduction of the course had been voiced at the School's Boards of Studies by the representatives of the judiciary and the profession.

[4] MacDonald, B An Update of a Survey of the Teaching of Professional Ethics in Law Schools of New South Wales (1992) 1, 3.

[5] Professor David Weisbrot, newly appointed Dean of Law at Sydney University, reported in Campus Review, March, 1994.

[6] Ross, S D and Goldring, J "Legal Ethics - Teaching an Oxymoron?" (paper delivered at ALTA Conference, Christchurch, 1993) 1.

[7] Spiller, P "The Legal Profession" in New Zealand Legal History (forthcoming).

[8] Disney, J, Redmond, P, Basten, J, and Ross, S Lawyers (2nd ed 1986) 597-599.

[9] Ruck, G "Discipline Within the Legal Profession" (New Zealand Law Society, 1993).

[10] Potter, "Public standing in the hands of individual lawyers" (1993) 398 LawTalk 1.

[11] Handy, C The Age of Unreason (1989).

[12] Arcus, D Presentation to Professional Responsibility class, School of Law, University of Waikato, 8 June 1994.

[13] This refers to the International Standards Organisation system of quality certification for manufacturing and service industries.

[14] Richardson, "Educating Lawyers for the 21st century" [1989] New Zealand Law Journal 86, 89.

[15] Ramsay, I "What Do Lawyers Do? Reflections on the Market for Lawyers" (1993) 21 International Journal of the Sociology of Law 355, 358.

[16] Approximately one-seventh of Waikato Law School's total student body are currently enrolled in the combined degree in law and management studies, and so a significant proportion of the students do have independent access to the concepts and tools for engaging in such an analysis.

[17] Wilson, "The Making of a New Legal Education in New Zealand: Waikato Law School" [1993] 1 Waikato Law Review 1, 2.

[18] Ibid, 18.

[19] McKay, "Professions At Risk" (1993) New Zealand Law Journal 104.