In a new post at Slaw, Alice Woolley discusses some of the problems with a virtue ethics approach to legal ethics from a behavioral perspective.
Prospective employers and recent law grads identify ethics and professionalism as crucial competencies for new lawyers. In a recent article Professor Neil Hamilton summarized various empirical studies showing that legal employers rank “integrity, honesty and trustworthiness” as a crucial quality in a prospective lawyer hire, regardless of the type of legal work for which the lawyer is being hired. Similarly, new graduates view professionalism as one of the most important skills for the new lawyer. In his article Hamilton notes a survey by Canada’s own Federation of Law Societies in which lawyers who graduated between 2007 and 2012 indicated that “ethics and professional skills” are essential competencies in legal practice (survey data is here).
From this review Professor Hamilton suggests various conclusions. One is that employers should try to identify hiring criteria to identify those candidates with the necessary “integrity, honesty and trustworthiness” (p. 17). Another is that law schools should incorporate competencies related to “values and virtues”, such as “Commitment to self development toward excellence at all competencies; Initiative/drive/strong work ethic; Integrity, honesty, and trustworthiness; Self awareness, the capacity to recognize strengths and weaknesses, seeks/responsive to feedback” (p. 28) . . . .
The far bigger issue with Hamilton’s study and recommendations, however, is their underlying assumption that it is ethical people (and lawyers) who create ethical practice. This assumption is wrong. It is true that the kind of person I am will affect the choices I make. However, that is demonstrably true not in relation to my possession of particular moral virtues, but is rather true in relation to my personality – whether, eg, I am an introvert or an extrovert – and in relation to my development of good moral judgment (as a matter of reason and intuition). Further, the kind of person I am will affect my behaviour in a far less significant way than will the circumstances in which I find myself. As I have discussed in a number of papers (see, eg, here, here and here) there is far greater consistency of behaviour by different people within a single situation than there is from the same person across different situations. When, for example, a test is administered in circumstances that enable cheating, students generally will cheat; when a test is administered in circumstances that discourage cheating, students generally won’t cheat.
What this means is that if we want ethical legal practitioners we not only need to identify what constitutes ethical practice in particular practice settings, we also need to create a culture and circumstances of legal practice that encourage those behaviours, and discourage those which are unethical. If, for example, unethical recording of billable hours is an issue in large law firm practice, the circumstances of practice in a law firm, and the regulation of law firms (by clients or by regulators) need to be designed to discourage unethical billing. Trusting individual lawyers to be ethical, or trying to hire honest lawyers, is unlikely to make any material difference in creating that sort of good behaviour (or any other).
As always, read the whole thing.