Open any textbook on applied ethics, and you will find the same issues arising again and again: global economic justice, climate change, criminal punishment, world hunger, corporate responsibility, animal welfare, biotechnology. Philosophers don’t agree on much, but almost all of them will tell you that these issues are the biggest ethical challenges of our time. In fact, ask any theologian, and they will probably tell you the same thing (although they would probably add homosexuality and abortion to that list).
Before starting law school, I did a master’s degree in philosophy, where I focused my studies on ethics. And predictably, these were the issues that kept arising.
When I decided to start studying law, I was excited to learn that legal ethics was a core part of the law school curriculum. I had assumed that a course on legal ethics would address the ethical dilemmas that lawyers face, given the role they often play in these issues. I was looking forward to this because I know that if and when I become a lawyer, these will be the issues that I face.
The unfortunate reality, however, is that the legal profession is not actually interested in teaching law students about acting ethically. They want to teach us about behaving respectfully to people of other cultural backgrounds, about conducing ourselves civilly with judges and opposing counsel, and about respecting the interests and privacy of clients.
But this is not legal ethics. This is legal etiquette. And while it is an important part of ensuring a smoothly functioning legal profession, it has more to do with cultural norms of behaviour and almost nothing to do the big questions of right and wrong. This is not to say that we shouldn’t study legal etiquette. We should. But calling it legal ethics distracts scholars and students from the real ethical issues that lawyers face, and the countless ways lawyers are complicit in creating – and indeed, acting to perpetuate – injustice and evil.
Unfortunately, there are too many examples of this. Take Choc v Hudbay. Lawyers for a large mining company are working to prevent that company from facing legal responsibility for the violent actions of a security company it hired in Guatemala. Look at the massive ethical issues here: Given the power of many multinational corporations, should they not be responsible for the consequences of their work on communities in foreign countries? What role do Hudbay’s lawyers play in perpetuating the suffering of those Guatemalan villagers? What role do they play in perpetuating environmental degradation and pollution in Guatemala? What are the consequences of that environmental harm for future generations and other species?
Lawyers that represent large corporations face ethical dilemmas simply as an implication of the ethical dilemmas those corporations face. What are the ethical implications of representing a corporation that uses sweatshops in poor countries? Or a corporation that drills oil in a fragile ecosystem? Or a corporation that develops military equipment? Or a corporation that owns hundreds of factory farms? These are important questions, to which the volumes written about them can attest. Any law student that will one day represent one of these corporations must think seriously about these questions.
Now consider Canada v Bedford. Crown lawyers fought for years to defend laws that put poor women in prisons because they tried to make their legal employment safer. Again, there are massive ethical questions here: Is the state ever justified in imprisoning people for non-harmful activities? Are Crown lawyers responsible for perpetuating harm and injustice to sex workers? What role should they play in response to inequitable distributions of wealth in Canadian society?
As with corporate lawyers, Crown lawyers face ethical dilemmas as an implication of the ethical dilemmas that governments face. What are the ethical implications of government surveillance of internet use? Or forming trade agreements with repressive authoritarian regimes? Or in allowing basic needs like education and housing to become increasingly inaccessible to an increasingly large segment of society?
Reasonable people will disagree about how to answer these questions, and I am not trying to defend one position or another. What I am suggesting, however, is that these are the issues that a legal ethics curriculum ought to address. These are the most important ethical challenges we face, and lawyers can often play an important role in perpetuating them, or simply allowing them to continue.
It is true that the legal profession has started to address some important ethical issues. For instance, the concern about access to justice has become more widely recognized, and important work has been done to begin addressing it. But it is only the tip of the iceberg. And if we are to start taking legal ethics seriously, we need to acknowledge that we still have a long way to go.