Tag Archives: ethics

“Formal education in the law does not prepare lawyers for the moral challenges of the profession”

There is so much that South African Universities can learn from developments in the US and UK where law schools have been around so much longer. Yes, South Africa is different in some respects and it’s a unique legal system in a country that is partly third world and we shouldn’t just follow Eurocentric models yaddah yaddah…but it also makes no sense to re-invent the wheel. The SA legal system is based on a mixture of Roman-Dutch and English law and our legal education system is also very similar to that in Europe.  Therefore, if these countries are discovering that their legal education systems are failing to prepare lawyers for the challenges of lawyering in the 21st C, we need to sit up and take notice.

While many of our university law departments do have legal aid clinics which allow students practical experience at lawyering, there is still much work to be done on creating more innovative curricula.

As Magda Slabbert, Professor of Jurisprudence for Unisa points out in her paper on the Requirement of Being a Fit and Proper Person:

“Formal education in the law does not prepare lawyers for the moral challenges of the profession. The ultimate aim of legal training is to enable the student to become a successful attorney or advocate. Knowledge is important in order for the lawyer to be able to make a convincing case for either side in a dispute. –

BUT… 

“What this sort of learned cleverness does not require is either a developed capacity to judge what is right or a disposition to seek it”

(from Eshete A “Does lawyer’s character matter?”)

So what’s happening in the US that we can learn from?  Below are a few points from an article you can read in its entirety here.

  • Legal educators from more than 30 law schools across the country have joined together to make experiential legal education the norm and not just an afterthought.
  • Northeastern University School of Law offers an interesting example because, almost 50 years ago, it pioneered a cooperative model of legal education that integrates theory and practice by requiring students to fulfill all the traditional classroom work while also spending a year immersed full-time in practice settings as diverse as law firms; judges’ chambers; and prosecutor, public defender and legal aid offices
  • The group was formed to ensure that law graduates are ready to join the legal profession with a full complement of skills and ethical and social values necessary to serve clients and the public interest, now and in the future.
  • The symposium will bring together lawyers, judges, students, legal educators and others to begin to forge a new model for legal education and the profession.
  • There is growing recognition across the legal profession and in legal education that business as usual is not acceptable and the time is now to provide more and better educational opportunities for law students, who are the profession’s greatest assets. The alliance is adopting innovative curricula that combine theory and practice to help students puzzle through the challenges and ensure that the profession remains vibrant, dynamic and relevant. This group of legal educators is committed to educating students to hit the ground running, with experience helping clients, collaborating with colleagues, resolving disputes, facing adversaries, drafting documents and interacting with judges, so that these lawyers are ready to solve legal challenges right away.
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Oath, What Oath?

I came across the MBA Oath a few weeks ago and immediately started wondering about a similar oath for attorneys.  I know in South Africa attorneys swear an Oath at the admission ceremony in court – something about upholding the Constitution and being a fit and proper person.  I’m struggling to recall the words so I am trying to get hold of that Oath.

My first call yesterday was to the Cape Law Society. They couldn’t help. I am fascinated by this. Nevermind that that they can’t recite it, that it is not written on their walls, but they don’t have a copy of it that they can make available to me. It’s as if the ethical underpinnings of the entire profession…are, um, MIA.

I decided to take it further so I emailed…well, let’s just say, I emailed someone VERY SENIOR in terms of attorneys in SA. He responded “Great Idea!” and kindly passed on my query – and today I got an email from the head of another province’s law society.  Who says I should contact the High Court. So that’s 2 provincial law societies unable to provide a copy of the Oath that every one of the 57 000 attorneys alive in this country is supposed to be upholding.  

So I called the High Court a  few minutes ago.  The various registrars are unable to help me, I should apparently wait for the Deputy Judge President’s secretary (who is involved in the swearing in of attorneys from time to time, so I gather) to answer the phone. This will probably be on Monday.

And we wonder why the legal profession is perceived as lacking in ethics.

While I endeavour to get hold of the current Attorney’s oath, here is a little background on the MBA Oath:  It was started by Harvard MBA students in 2009, largely as a response to the global financial crisis. This crisis “prompted many in the public and in the press to question whether business schools are successfully executing their missions of educating leaders for society. How did we get into this crisis? Why didn’t business school professors sound the alarms in advance of the meltdown? Why were so many MBAs involved in the decisions leading up to the crisis? Are MBAs so concerned with increasing their personal wealth that they ignore ethics and their responsibilities to society?”

I believe as lawyers we should be asking exactly the same questions of ourselves.

  • How did we get into a situation where lawyers are by and large regarded as sharks?
  • Why are law school professors not sounding the alarm?
  • Why are so many lawyers involved in the deals leading to global financial crises?
  • Are lawyers so concerned with increasing their personal wealth that they ignore ethics and their responsibilities to society?

And I think the time might be ripe for an Attorney’s Oath – one that goes far deeper than swearing to uphold the Constitution.  This is the MBA Oath which I think is a wonderful basis for the development of one for attorneys.

THE MBA OATH

As a business leader I recognize my role in society.

•  My purpose is to lead people and manage resources to create value that no single individual can create alone.

•  My decisions affect the well-being of individuals inside and outside my enterprise, today and tomorrow.

Therefore, I promise that:

•  I will manage my enterprise with loyalty and care, and will not advance my personal interests at the expense of my enterprise or society.

•  I will understand and uphold, in letter and spirit, the laws and contracts governing my conduct and that of my enterprise.

•  I will refrain from corruption, unfair competition, or business practices harmful to society.

•  I will protect the human rights and dignity of all people affected by my enterprise, and I will oppose discrimination and exploitation.

•  I will protect the right of future generations to advance their standard of living and enjoy a healthy planet.

•  I will report the performance and risks of my enterprise accurately and honestly.

•  I will invest in developing myself and others, helping the management profession continue to advance and create sustainable and inclusive prosperity.

In exercising my professional duties according to these principles, I recognize that my behavior must set an example of integrity, eliciting trust and esteem from those I serve. I will remain accountable to my peers and to society for my actions and for upholding these standards.

This oath I make freely, and upon my honor*. 

I believe in having a BHAG. (Big Hairy Audacious Goal). Wonder if I can get  5000 attorneys to sign an Attorneys Oath (that I better get working on) by the end of 2012?

* US Spelling – they leave out letters 😉

The Dream of a Common Language

In the last few months I’ve wished I had a clearer explanation of what I do. I tend to end up explaining what I used to do (lawyer, Educational director of non-profit college, law lecturer) to arrive in a round-about way at what I do now.  I’m not sure a job title is all that important. But it does make it hard to design a business card. What am I supposed to put under my name?

Titles aside, I do have a clear sense that my mission (at least for the next while) is:

To contribute to the conscious transformation of the legal profession.

This draws many blank stares. Perhaps it’s the fact I use “conscious” and “legal” in the same sentence? I believe the phrase “conscious law” does not have to be an oxymoron. It is possible to practise law in a way that is just, equitable and humane and it is possible to develop a legal system that is efficient and effective and gives people dignity.

We live in exciting times. There is a global shift towards a new way of being in the world. New ways of eating, living, building, communicating, doing business – because, simply put, people are realising that continuing to do things as we used to, is killing both ourselves and the planet.  Recognition of this global shift is no longer the preserve of New Age hippies expounding on vegetarianism and communal living. It covers every industry and it’s reaching the legal world too.(For a list of 100 Spiritual leaders who all, in some way, write about this global shift, you can look here)

So I don’t have a title but I’m realising I am not alone. I have dreamed of a common language (phrase borrowed from the wonderful poet Adrienne Rich) to talk to others who are writing and thinking about law, legal systems and legal professionals in a new way, a more conscious way. Today, stumbling around the internet, I came across the book Lawyers as Peacemakers: Practicing Holistic, Problem-Solving Law by Kim Wright. And linked to this I’ve found

People who speak this language of a conscious transformation in law!

I don’t feel I’m such a voice in the wilderness anymore! Here’s a brief introduction to some of the people I hope, over time, to be able to call my thinking partners. I’ll be writing about each of these people as I research them and hopefully get in touch with them. (Unfortunately this sort of research doesn’t pay the rent – an obstacle I’m trying to overcome)

David B. Wexler:  Blah: Professor of Law and Director, International Network on Therapeutic Jurisprudence, University of Puerto Rico, and Distinguished Research Professor of Law and Professor of Psychology, University of Arizona. Interesting:  He writes of …a bench and bar that better serves society, and a legal profession composed of counselors, leaders, and peacemakers.

Pauline H. Tesler: Blah: co-founder of the International Academy of Collaborative Professionals, co-editor of the journal The Collaborative Review, fellow of the American Academy of Matrimonial Lawyers, author of Collaborative Law: Achieving Effective Resolution in Divorce without Litigation, and in August 2002, was co-recipient (with Stu Webb) of the first American Bar Association “Lawyer as Problem Solver” award. Interesting:  In this emerging jurisprudence, as the overarching purpose of our professional work shifts from winning  legal victories to providing meaningful conflict resolution services for our clients, what kind of person the lawyer is matters equally as much as the power of the lawyer’s intellect. 

Jeff Brown:  Blah: author of Soulshaping: A Journey of Self-Creation. He calls himself an author, film maker, grounded spiritualist – and used to be a criminal lawyer. Interesting: To the extent that you identify and honour your true path in this lifetime, you will know genuine satisfaction, real peace in your skin.. You will be infused with vitality and a clarified focus, new pathways of possibility appear where before there were obstacles.

James Melamed:  co-founder of Resourceful Internet Solutions (RIS) and Mediate.com, founder of The Mediation Center in Eugene, Oregon, former Executive Director of the national Academy of Family Mediators, and professor of Mediation at the Pepperdine University School of Law’s Straus Institute for Dispute Resolution.

Dolly M. Garlo: Blah:  RN, JD, PCC is President of Thrive!!© Inc. (www.AllThrive.com) and Founder of Creating Legacy™ (www.CreatingLegacyNetwork.com) Interesting: “Turns out there is a harmony of voices in our profession—caring, committed professional lawyers who also understand that the work is not about issues or cases or parties, but about people, and how the law impacts and affects them”

Sunny Schwartz: Blah: Esq, Program Administrator, San Francisco Sheriff’s Department and author of Dreams from the Monster Factory: A Tale of Prison, Redemption, and One Woman’s Fight to Restore Justice to All. Interesting“Wright’s book is a beautiful and palpable illustration that will bring a more dignified and effective approach to American jurisprudence. Reading this book will benefit us all and is a must read for lawyers, judges, clients and the general community, as reading this book enhances our humanity.”

Linda Warren Seely: Blah: Director of Pro Bono Projects, Memphis Area Legal Services, Inc. Interesting: “ a different vision of how conflicts can be resolved, using all of the intelligences and many alternative tools to bring about real and meaningful change in people’s lives.”

John Lande: Blah: Isidor Loeb Professor and Director, LL.M. Program in Dispute Resolution, University of Missouri School of Law. His scholarship focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation. Interesting: He writes a book review of Kim Wright’s book and says she “ has compiled a treasure trove of ideas and wisdom for lawyers who want to use their heads and hearts to help clients in humanistic ways. 

Stuart Webb: founder of collaborative law, has appeared on the CBS Evening News and in The New York Times and The Wall Street Journal, and in August 2002, was co-recipient (with Pauline Tesler) of the first American Bar Association, “Lawyer as Problem Solver” award. Webb founded Collaborative Law in 1990, after becoming disillusioned with the acrimony and negativity traditionally associated with divorce. Since then, he has trained other lawyers in forty states and in Europe.

Cheryl Conner: Blah: Founder, New Prospects Collaborative, Boston, former law professor and Asst. U.S. Attorney Cheryl Conner Cheryl Conner is a thought leader, lawyer, professor and activist who, throughout her life, has empowered girls and women lawyers to powerfully be themselves for the sake of the world around them. Interesting: After practicing law as an Asst. U.S. Attorney, an Asst. A.G., as Mass. Senate Counsel and a lawyer at Goodwin, Procter, she turned to academia, where she pioneered holistic approaches to lawyering. By supporting the individual creative spirit, the inner journey and the power of collaboration, she helps unleash your fire to be your most expansive, authentic, creative self. She holds the view that these gifts are sorely needed in a system-wide collaborative effort to re-create our social institutions and save our planet.

Gretchen Duhaime: As Founder of Practicing on Purpose LLC, Gretchen developed a wellness model designed to help lawyers strive for balance and purpose in life and law. As a work-at-home mom with a toddler and baby, Gretchen’s life is built on feminine values and work/life integration. Interesting! Her journey to help other women live balanced lives began with her undergraduate Women’s Studies thesis, which gave new meaning to Simone de Beauvoir’s Le Deuxieme Sexe by setting excerpts to music sung by a capella soprano. Gretchen’s pre-law school career brought integration and collaboration to male-dominated industries and organizations, through a systems-thinking lens.

Diane Diel: past President, State Bar of Wisconsin, President-Elect, International Academy of Collaborative Professionals. She has served on the Professional Ethics Committee of the State Bar (1986-1992) and on the Trust Account Working Group (2004-2007) which restated trust account record keeping and advance fee management rules applicable to lawyers in the State of Wisconsin. She is a frequent trainer and speaker on collaborative practice and on ethical topics.

Kim Schavey: All interesting: As an M.B.A., J.D. and minister, Kim Schavey shares her perspective on the evolution of the legal profession. As a student of New Thought metaphysics for over a decade, she talks about how she sees a common path of interconnectedness and transcending the win/lose mentality of the courtroom and how the evolution is influenced by a pendulum swing of masculine and feminine energies. Kim calls for a balancing of these energies in the law and financial industries. Referring to Ken Wilber’s work, she talks about the evolution of the species, not as mutation of genes but in terms of adding truths to human consciousness.

Darity Wesley: Founder of the Lotus Law Center (www.LotusLawCenter.com), Darity practices  “A New Kind of Law™” which incorporates integrity, caring and compassion into 25 plus years of business law and strategy and is a national expert in data and technology licensing. Chief Privacy Guru and founder of Privacy Solutions, Inc. (www.PrivacyGurus.com).

So there you go! A whole bunch of people who talk about conscious law, renaissance law, ethics and humanity and morality, holistic approaches to lawyering, collaborative practice, Practicing on Purpose…

This is just the beginning of my journey. But today I am happy. These are my people. I’m finding a home.