Clinical Pathways to Ethically Substantive Autonomy

There is no shortage of support for the idea that ethics should be incorporated into the academic and professional curriculum. There is a difference, however, between, on the one hand, teaching professionals about ethics, and, on the other, demanding that they give ethical expression to the range of professional skills they are expected to apply daily in their work. If this expression is not to be perfunctory, ethical judgement must be genuinely integrated into the professional skill set. The mark of integration in this regard is the capacity for autonomous judgement. Ethical autonomy cannot be achieved by a mechanical, rule-bound and circumstance-specific checklist of ethical do’s and don’ts, and it is only partially achieved by a move from mechanistic rules to ‘outcome based’ processes. Rather, professional ethical autonomy presupposes not only a formal understanding of the requirements of an ethical code of conduct, but a genuine engagement with the substantive values and techniques that enable practitioners to interpret and apply principles confidently over a range of circumstances. It is not then, that ethical skill is not valued by the legal profession or legal education, or that the shortfall of ethical skill goes unacknowledged, it is rather that the language of professional ethics struggles to break free from the cautious circularity that is the mark of its formal expression. To require a professional to ‘act in their client’s interests’, or ‘act in accordance with the expectations of the profession’ or act ‘fairly and effectively’ are formal, infinitely ambiguous and entirely safe suggestions; to offer a substantive account of what, specifically, those interests might be, or what expectations we should have, are rather more contentious. Fears of dogma and a narrowing of discretion do, of course, accompany the idea of a search for ethical substance, and caution is to be expected in response to it. Notwithstanding these anxieties, there would appear to be no coherent alternative to the aspiration to substantive autonomy, and this must remain the goal of teaching legal ethics. In light of this, the problem facing educationalists is then perhaps expressed more diplomatically in terms of how ethical skill might be substantively developed, imparted, and integrated into a genuinely comprehensive conception of professional skill.

Clinical education can go a long way to solving this problem: exposure to the practical tasks of lawyering is the surest and best way of raising consciousness in this regard: ‘Hands-on’ is good - and consciousness-raising is a step in the direction of autonomy, but raw experience and elevated awareness is not enough. We know that our most influential theories of learning tells us that it is in the process of reflection upon problem solving that the practitioner begins to take autonomous control of skill development. In the view of the author, reflection, requires content and direction, and in this paper, with the aid of three models of skill integration inspired by Nigel Duncan’s detailed analysis and video reconstruction of the ethical and technical skill deficiencies brought to light by R v Griffiths, we attempt to specify what might be understood in this regard: Reflective content refers to the discrete interests and values that compete to produce tension in what we will refer to the ‘matrix’ of concerns that feature in all forms of dispute resolution; reflective direction points to an engagement with the resources and techniques that can empower critical and autonomous judgment. In the context of a clinical process broadly structured by the insights of Wenger and by Rest’s model of ethical skill, guided reflection so specified thus serves as an interface between on the one hand, indeterminate ethical form, and, on the other, the substantive ethical wisdom to be found in the repository of values that underpin the very idea of the legal enterprise.