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12 Legal Ethics iii (2009)

handle is hein.journals/lethics12 and id is 1 raw text is: Editorial Duncan Webb and Christine Parker THE POLITICS AND EVERYDAY PRACTICE OF LEGAL ETHICS Ethics of any sort seeks to answer the question of how I ought to act. Legal ethics seeks to answer that question for a lawyer. It perhaps bears noting that almost all of the time the question does not trouble a practising lawyer. The proper course of conduct is usually so obvious that no actual deliberation is required. Legal ethics focuses on troubling cases, perhaps giving the false impression that legal practice is riddled with ethical binds. As we deliberate in the pages of this journal what is (are) the proper framework(s) within which to determine that question, we might perhaps bear two things in mind. The first is that any proposal which requires us constantly to turn our minds to the question of what is the proper course of conduct is unlikely to be workable. The second is that any framework must deliver-that is to say it must provide actual and concrete guidance. Perhaps we must face up to the fact that this is an impossible dream. Philip Schrag's analysis of teaching ethics through role-playing might, unintentionally, support this approach. He describes a fascinating exercise in which he requires students to consider a relatively complex ethical scenario concerning that hoary old chestnut of pretrial discovery. Many students, he reveals, initially engage in the same reprehensible concealment as the litigant in the actual case on which the scenario is based. Others take more laudable courses of action, with the odd one resolving to shred or burn the offending documents. The scenario requires the student to decide whether as counsel for a drug company he or she should conceal 'smoking gun' documents from litigants whose daughter has been grievously harmed by the company's negligence. One troubling observation is that (at the outset at least) students tend to adopt an approach which is both in breach of legal and ethics rules, and runs counter to what most ordinary people would consider proper. Schrag proceeds in his paper to explain how the exercise is skilfully used to encourage students to critique their decision-making processes and consider the context of such decisions more carefully. In an assiduously managed process he traps students into realising the error of their ways and watches as the scales fall from the students' eyes and they undergo an 'amazing transformation'. While Schrag is modest in his claims of the long-term effect of the teaching method on the behaviour of students in later legal practice, the fact that students can be routinely ambushed into revealing a proclivity to ethical breach raises a real challenge.

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