Le Brun, MJ --- "Editorial" [2001] LegEdRev 1; (2001) 12(1&2) Legal Education Review iii

Editorial

[T]he way we act in front of our students, in their view, inevitably provides them with models of how to act ... Every lesson is a lesson in action, in how to act or behave in certain situations with certain tools and materials given certain conditions and limitations. Every lesson has its moral ... Teaching is an activity that can be done well or poorly; is an activity that calls for courage, temperance, prudence, and justice in the teacher (to name only the cardinal virtues) ... How do we treat our students when they ask questions? Are we solicitous, or are we defensive, or are we simply open?1

Legal education in Australia is markedly different today from what it was, say, a decade ago. Changes in curriculum, teaching approaches, and assessment strategies have occurred that could not have been easily predicted in the late 1980s. The introduction of generic and lawyering skills into the undergraduate law curricula, the situating of legal knowledge in the context of its use, and the creation and adoption of more creative and wide-ranging assessment tools, to name three innovations, have changed the way many, if not the majority, of students learn law, learn about law, and learn about legal practice in Australia.

Although we may pride ourselves in Australia on the attention that we have given teaching and the scholarship of teaching in the past few years, our efforts have been neither thorough nor systematic. Important aspects of the law curricula have been ignored or have escaped scrutiny. Many, if not most, law teachers would agree that teaching for learning of legal ethics and professional responsibility (“LE/PR”) has been neglected in Australian law schools for the most part, at least until recently. This situation stands in sharp contrast to that in the United States where a group of dedicated teachers and scholars have developed a rich literature that describes and analyses teaching and learning in LE/PR.

The impact of the scholarship of these individuals and an increasing awareness of the importance of ethics to education in law are coming to the fore in Australia and elsewhere. For example in 1999, the United Kingdom-based law journal The Law Teacher published an issue entitled “Ethics in Education.” It contained articles from law teachers in American, Australian, Canadian, and English universities as well as comments from the Chair of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct. In Hong Kong this year, Australian consultants Paul Redmond and Chris Roper have written in their draft report on legal education in the former British colony of the need to include LE/PR education in the law curricula.2 The importance of LE/PR teaching in Australia has also become more widely acknowledged in the word of individual academics themselves. To illustrate on a more personal note: the same year that the ethics edition of The Law Teacher was published, I began work on improving the quality of student learning of LE/PR pursuant to the award of a National Teaching Fellowship3 and a grant by the Committee for University Teaching and Staff Development (“CUTSD”). The CUTSD grant built on the work that I began in the United States under the Fellowship.4 This special edition of the Legal Education Review draws these formal initiatives to a close. Several articles in this volume were written as a result of the meetings that I had with American legal ethics teachers as well a consequence of the workshops that I have held on LE/PR teaching in Australia. As more articles have been submitted to the Legal Education Review by legal ethics teachers than could be incorporated in one volume, the next edition of the Review will also include more commentary on teaching LE/PR.

This edition of the Review does not adopt the journal’s conventional format. Rather, it is divided into four sections: one in which American scholars reflect on their work as teachers of legal ethics and describe some of the successes that they have had in their teaching; the second in which scholars describe the work that they are doing in the field in Australia; a third in which Adrian Evans describes his survey of Monash University Law graduates and outlines his preliminary findings; and a fourth in which I describe the work that I undertook for the National Teaching Fellowship.

In Part 1, entitled Reflections on the Teaching of Legal Ethics and Professional Responsibility, Jim Moliterno sets the tone for the section. In “Experience and Legal Ethics Teaching,” he describes some of the pleasures to be gained from teaching LE/PR.

Legal ethics was once thought to be among the least important things about which American legal educators teach. Today, legal ethics is regarded as a quite important thing about which to teach. Someday soon, I expect, legal ethics will be regarded as the most important thing about which American law schools teach. (emphasis added)

Tom Shaffer continues this reflective mode on somewhat of a more spiritual plane. In “On Tending to the Ethics in Legal Ethics: Two Pedagogical Experiments,” he describes two techniques that he has perfected “well enough to justify suggesting them to other teachers.” Shaffer provides a workable definition of ethics – “deliberation, discernment, giving words to our morals” – and then proceeds to explain how he uses student writing to good effect. Shaffer also discusses what can be learned “in and from the [legal] clinic,” explaining, almost poetically, why clinical education provides such a rich resource for learning about legal ethics.

The importance of experiential learning is woven throughout the volume of the Review. Doug Frenkel picks up this theme in his discussion of the importance of teaching judgment in law schools. He draws on his extensive experience as a clinician and describes the approach that he has adopted to the teaching of LE/PR, focusing on the cultivation of judgment.

David Wilkins offers a critical analysis of legal ethics teaching in the academy, and he also chronicles “one effort by Harvard Law School’s Programme on the Legal Profession ... to transcend the standard limitations of traditional law school ethics courses and to lay the foundation for the development of a theoretically coherent, practically realisable, and normatively attractive understanding of lawyer professionalism.” In his article he describes the course that he and Dr Linda Emanuel, Assistant Director of the Harvard Division of Medical Ethics, developed, entitled “Ethical Dilemmas in Clinical Practice: Physicians and Lawyers in Dialogue.”

The articles in Part I provide an appropriate backdrop against which we can reflect on recent efforts by legal academics to improve the teaching of LE/PR in Australia. In the articles in Part 2 of the Review, we move from reflecting on the teaching of LE/PR to descriptions and evaluations of the current work of Australian legal academics.

Castles further develops the experiential theme introduced in Part 1. She draws on what she has learned as a private practitioner to improve the quality of teaching and learning in LE/PR. In her article she emphasises the need to teach LE/PR using “real life experiences.”

Hamilton, in a similar vein, describes one of the products of the ambitious effort of the Faculty of Law at the Queensland University of Technology to revamp its undergraduate curriculum in law. She discusses the approach adopted in the subject “Law, Society, and Justice” and how she has enlivened her teaching with the use of video.

The articles by Zariski and Le Brun focus on the teaching of LE/PR using information technology, including video. Zariski reports on the subject “Legal Practice and Transaction” that he offers in part on-line using the WebCT software platform at the School of Law, Murdoch University. His description of learning in the subject is (like Parker’s) enlivened considerably by inclusion of student comment and feedback. In “Producing Multi-Media Teaching/Learning Materials for Teaching Legal Ethics and Professional Responsibility: And the Lesson Is ... Soldier On’ I describe the development of a CD-ROM designed to improve student learning of LE/PR in order to encourage others to develop multi-media teaching/learning materials for law students and legal practitioners.

Christine Parker’s article provides a bridge from the accounts of what is being done today in Australia to what students learn when they learn LE/PR. Building on the previous curriculum- development work of her colleagues, she describes in detail the subject “Law, Lawyers, and Society” and outlines her recommendations for improving student learning of the subject.

In Part 3 of the Review we shift focus from the “Why?” “How?” and “With what?”discussed in Parts 1 and 2 to address learning outcomes of graduate lawyers. In his article, Evans provides preliminary evidence of the need to conduct, and the value of conducting, research into lawyers’ values. His conclusions are based on a survey that he conducted of Monash University law student graduates from 1980-1998. Although Evans’ general findings cannot be extrapolated to other populations of lawyers with any degree of accuracy, they do provide insight into lawyers’ values, thus making provocative reading for those interested in thinking about what we as teachers of LE/PR can do to help our students think and act ethically.

In the final article in this collection I outline the work that I have undertaken pursuant to the National Teaching Fellowship. I describe how some scholars in Australia see their world as teachers of LE/PR, and I identify some of the problems that the academy will need to address if LE/PR teaching is to flourish in Australian law schools.



MJ Le Brun

Editor, Special Edition

Hong Kong

July 2001

1. TD Eisele, Must Virtue be Taught? (1987) 37 J of Leg Educ 495, 506.
2. P Redmond & C Roper, “Legal Education and Training in Hong Kong: Preliminary Review,” Hong Kong, May 2001.
3. In the final article in this edition, “Enhancing Student Learning of Legal Ethics and Professional Responsibility in Australian Law Schools by Improving Our Teaching” I describe the work that I undertook for the Fellowship and acknowledge those who shared their ideas so generously with me.
4. In “Producing Multi-Media Teaching Materials for Teaching Legal Ethics and Professional Responsibility for Australian Law Schools: And the Lesson is ... Soldier On,” I describe the process of the production of a CD-ROM devoted to teaching for learning in legal ethics and professional responsibility.