Ching, J

Jarman, J

Nottingham Trent Institutional Repository (IRep)

“Put yourself in my place…”Vulnerability theory and ethical dilemmas in a fractured legal sectorProfessor Jane ChingAssociate Professor Jane JarmanWorkshop on Professionalism & Vulnerability : University of Leeds27 October 2017  “Hello, Jane?  You might not remember me but you taught me five years ago.  Sorry to bother you, but have you got a minute …?”30 October 201730 October 2017Legislation & Regulation: compounding rather than ameliorating ethical dilemmas? • A fractured legal services context• The Legal Services Act 2007 s1–“promoting competition in the provision of services”–“encouraging an independent, strong, diverse and effective legal profession”• Codes of Conduct and neoliberalism – OFR and the conduct of solicitors• Competition between firms, within firms and between professions – Fragmentation of the sector– Case study – intellectual property work and branding: solicitor vs. registered trade mark attorney. • Tension with in house counselThe need for resilience • resilience at two levels: –of the firm against other providers, other professions and the unregulated sector, –and by the individual against senior lawyers or non-lawyer managers under pressure30 October 2017Our working definition of ethics  “1 the arrangements made by society for the delivery of legal services and in particular of the legal profession, its structures, roles and responsibilities (sometimes termed macro legal ethics); and2 the roles and responsibilities of individual lawyers in the provision of legal services together with the ethical implications of those roles (sometimes termed micro legal ethics): and3 the wider social context, especially the philosophical, economic and sociological context in which lawyers work”Richard O’Dair, Legal Ethics Text and Materials (Butterworths 2001), p 5Skills for Justice, ‘Route Maps of Entry Legal Profession’ (Skills for Justice) <http://www.sfjuk.com/wp-content/uploads/2012/12/Visio-RouteMapsOfEntryLegalProfession_FullMap-0513.pdf> accessed 8 February 2015Miller’s pyramid: resilience & ethical “competence”? 30 October 2017George E Miller, ‘The Assessment of Clinical Skills/Competence/Performance’ (1990) 65 Academic Medicine S63The myth of ethical resilience at the point of qualification • Miller’s pyramid and a definition of competence• Legal education and the preparation for “good practice”– The hectic environment and context– Pressure for training contracts and paralegal positions– Competition for “panel” based work– Pressure from clients and supervisors• Problems inherent in developing expertise in ethical action– Impact of specialisation– Allegiance to “the family”– Risk management as a factor in infantilising ethical reasoning30 October 201730 October 2017 10Ethical competence at the point of qualification?  Australia Canada BarSRA QLTS SRA EMSRA SQE TMIdentify code/rules X X xUnderstand code X X X X X XUnderstand/apply principles behind the code X XApply code/follow rules (implies in straightforward contexts) X X X XIdentify ethical issue X X X X XApply judgment/critical thinking X X XIdentify how to act/own limitations/necessity to ask XX generalX generalX generalIdentify appropriate source of help XAsk for help X XAwareness of difficulties in so doing XMake effective use of answer/guidance X XResist pressure to act unethically XMake decision/resolve dilemma/ "respond appropriately" X XAct responsibly/ethically/with integrity X XThe missing resource: The trusted outsider & the academy as proxy• The special place of the vocational lecturer and the “practitioner tutor”– Ethical mentors emerge rather than being appointed• The need to maintain and enhance the “practice based” context– Comparison with medicine• Need for a resilience “script” for action• What next?30 October 2017Put yourself in my place … see if you can stand the awful hurt I feel insideThe Isley Brothers, ‘Put Yourself in My Place’. 30 October 2017

"Put yourself in my place...". Vulnerability theory and ethical dilemmas in a fractured legal sector

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