Advocates’ Ethical Capacities

Research that a team of us from UCL have conducted for the Advocacy Training Council (now the Inns of Court College of Advocacy) into the ethical capacities and advocates has just been published.The full report can be found here. The executive summary is as follows:

This research examines the ethical knowledge and skills acquired by new advocates.  It provides an evidence base to support improvements to ethical education and training.  It does so through a survey of 349 advocates (barristers, solicitors and some Chartered Legal Executive advocates) and 77 interviews with a sample of advocates.   Both the survey and interviews garnered views on ethical training and interviews assessed how new advocates would respond to a set of ethical problems.  The survey also considered advocates’ values and their influence on ethical decision making.

The interviews revealed a range of approaches to ethical problems amongst those we interviewed.  In broad terms, expert assessments suggested a range of problems common to all work areas covered. Those performing well demonstrated a strong knowledge of professional principles and rules and confidence in their application of those rules and principles to the problems we posed to them.  Such high performance was rare; even amongst the best interviewees there were generally some, albeit occasional or more minor, weaknesses on some questions.

Weaker interviewees did not spot most of the duties and principles engaged by the scenarios; failed to balance competing duties; and, showed a lack of confidence when considering implications for case handling.  The poorer interviewees tended to demonstrate such problems more frequently; tended not to recognise significant ethical dimensions to a problem; showed a stronger tendency to rely on intuitive responses to problems; treated ethical dilemmas as tactical not ethical problems; and/or, got relevant rules and principles wrong.   The poorest (a small minority) appeared to have a very limited grasp of ethical principles.  These problems were also reflected in our assessors’ views on training needs.

Interviewees did not perceive the basic knowledge deficits that our experts sometimes found, but did see a need for approaches that developed confidence in the application of ethical constructs to their practices.  Whilst there were concerns about the quality of vocational ethics education, survey respondents and interviewees felt that the professions needed to concentrate on improving ethics training once practitioners entered practice as pupils or trainees and that this improvement needs to be engendered across the life course of advocates’ careers.

Much of the professional focus on ethics training sees it as a rational, rule-based process; but our consideration of personal values in the report shows how professional decisions can be influenced by personal factors.  An advocate that better understands his or her own values may better understand and improve their own decision making. An understanding of the subjective elements of ethical decision making may merit inclusion in ethical training.  There is also a particular need for advocates to develop shared and ethically informed approaches to how to deal with uncertain fact situations and the inevitable tensions to be reconciled in ethical decision making.

This was a fascinating study to conduct. I would like to thank the Advocacy Training Council for commissioning it, the Legal Education Foundation for funding it, the advocates and judges who helped with the research, and all the advocates who participated in the interviews. That they were willing to do so is a testament to their professionalism.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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2 Responses to Advocates’ Ethical Capacities

  1. Pete says:

    This was an extremely interesting read Professor – I wondered if there’s any possibility of asking one of your experts or more experienced advocates to draw up some form of “model” answer to the scenarios you posed?

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