Law schools have the power to shape the future direction of ethical legal practice

Senior Lecturer at the University’s Sydney Law School, Mr Francisco Esparraga, third from the left, at the 2015 International Bar Association Conference in Vienna.

23 October 2015

Law schools have the power to shape the future direction of legal practice by educating legal practitioners within a context of ethics, according to Law academic from The University of Notre Dame Australia’s Sydney Campus, Francisco Esparraga.

Speaking at the prestigious 2015 International Bar Association Conference in Vienna earlier this month, Mr Esparraga said the challenge for Law schools was how legal ethics ought to be taught and what law students ought to be taught about the relationship between the law and ethics.

Mr Esparraga’s presentation in The Public and Professional Interest Division Showcase – ‘Blurred Lines – What it means to be a lawyer in the 21st century’, stated that there was no one magic formula to teaching ethics. Rather, he recommended a multiple-faceted teaching methodology underpinning the teaching of legal practice.

Mr Frank Esperraga

Mr Esparraga, a Senior Lecturer at the University’s Sydney Law School, said Law schools should not only focus on the principles of ethical conduct and the role and responsibilities of lawyers but also on the values that underpinned the principles of ethical conduct and professional responsibilities.

“They need to remind students that what is legal is not always ethical,” he said. “Law schools also need to remind students that the legal profession requires lawyers who think legally and ethically. The practice of law requires the capacity to see the ethical issue despite apparent legality and then to make intentional decisions about what to do.”

The Dean of the Notre Dame’s School of Law, Sydney, Professor Michael Quinlan said the University’s objective was to graduate students who not only excelled in their knowledge of the law as an academic discipline but also had developed the skills necessary to be great lawyers and well-rounded, ethical practitioners. “We see our commitment to ethics as one of the key differentiators of our School and I am always pleased when members of our academic staff are able to share their thoughts and learnings on teaching ethics,” Professor Quinlan said.

Mr Esparraga said admission to the legal profession required that a person be of good character – a primary standard for any law graduate wishing to practice with all jurisdictions subject lawyers to Rules of Professional Conduct and Practice.

“These rules identify the standards of conduct and practice for legal practitioners and reflect not only the legal profession’s expectations but also the community’s expectations that legal practitioners act ethically,” he said.

“Most commentators in this area emphasise that once the Rules of Professional Conduct and Practice are defined in a set of rules, they become a series of prohibitions rather than a model of positive behaviour. As such, they tend to induce a mindset in those whose conduct they govern, that which is not forbidden, is allowed.”

However, Mr Esparraga said the Rules of Professional Conduct and Practice were guidelines and did not provide answers to every possible ethical issue which legal practitioners face.

“The beacons emphasise attributes such as honest, integrity, the special relationship of lawyer and client, the duty and loyalty to the client, the higher duty owed to the court and the system of justice,” Mr Esparraga said.

“A major challenge for Law Schools is the fact that the ideas of professional ethics and professional conduct are often merged in the practice of the law. Legal ethics looks to the philosophical foundations of the operation of the law in society. Professional conduct focuses on the day-to-day behaviour of legal practitioners.”

Mr Esparraga said professional conduct should be seen as the end product of a continuum that begins at Law School with an understanding of ethical norms and manifests itself in a manner of behaving throughout legal practice.

For a the full transcript of Mr Esparraga paper, please go to this link

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