Dear Legal Ethics Readers,
I am delighted to introduce to you the 2022 round up of articles in this double issue of our journal. We have a diverse and stimulating group of papers spanning areas of interest as broad as the limits of ethical advocacy in family law, the ethics of practice in asylum law, the vulnerability of young lawyers in ethically contentious areas, how to build success through ethical engagement with early-stage law students, disciplinary responses to sexual misconduct by legal practitioners and trends in legal ethics research.
In the first article Deanne Sowter addresses ‘The bounds of legality: an exploration of the limits on ethical advocacy in family law’. The article explores the positivist conception of the bounds of legality in the context of family law, in both adversarial and non-adversarial contexts. Sowter argues that the bounds are insufficient in family law and are in need of further delineation. In doing so she provides us with a rich set of theoretical tools to inform change to and in family law and the professional rules that govern lawyers in these contexts.
In the second article Tamara Butter sets out her research findings in ‘Ethics in practice in asylum law: asylum legal aid lawyers’ moral reasoning in respect of “hopeless cases”.’ Butter’s article provides us with a deeper understanding of lawyers’ ethics in practice in publicly funded asylum cases in the Netherlands. She engages with Dutch asylum legal aid lawyers’ moral reasoning in ‘the hopeless case’, drawing upon Parker’s four approaches to moral reasoning in legal practice. She examines the applicability of this taxonomy developed in an Australian common law context, indicating its relevance to the Netherlands, a civil law jurisdiction.
Thirdly, Jane Ching, Graham Ferris and Jane Jarman consider young lawyers in ethical crisis in ‘“To act is to be committed, and to be committed is to be in danger”: the vulnerability of the young lawyer in ethical crisis.’ Their article focuses on the disjunction between the teaching of ethics in the classroom and the culture that meets young lawyers when they enter into law firm based practice. In examining this and in drawing upon Fineman’s radical view of vulnerability and Rest’s model of the precursors of ethical action and resilience, they develop the concept of commitment as a form of duty, loyalty, and courage so as to provide a means to support young lawyers to accept and then overcome reluctance to act ethically. They explore how law schools, regulators and law firms, acting in combination, may influence ethical resilience and development to ethical action.
Fourthly, Anna Cody and Sandy Noakes examine ‘Valuing diverse students: an ethical response to building success in first year law students and broadening the legal profession.’ They posit the importance of a diverse legal profession across all areas of law and legal practice types as a means for everyone to be well served by the law and by lawyers. They examine how law schools may play a role in ensuring that students from diverse backgrounds are admitted into legal education and are supported to succeed. They draw upon a theoretical model of ‘transition as becoming’ to analyse first-year law student experiences at Western Sydney University Australia, leading to insights into how the curriculum can be harnessed to support inclusive success. They argue that our understanding of law students’ cultural capital may need to be expanded and the law school environment changed to reflect this, in place of strategies aimed at supporting students to assimilate into law school culture as currently drawn.
Fifthly, Jennifer Schulz, Christine Forster and Kate Diesfeld address ‘The discipline of, and failure to sanction, sexual misconduct by Australian legal practitioners.’ Schultz, Forster and Diesfeld have examined all sexual misconduct tribunal and court legal disciplinary cases from 2000 to 2020 across all Australian jurisdictions. They argue that given the seriousness of sexual misconduct in a professional relationship, such allegations should result in immediate disciplinary action for the sake of victim protection and the protection of the wider public. Their study reveals that decision-makers tend to require a criminal conviction for sexual misconduct before they hold a disciplinary offence to have been committed. Their examination provides in-depth insights into the ways in which sexual misconduct is characterised within the disciplinary context, how it is explained and that its portrayal is not located within the discourse of victim protection. They conclude that disciplinary norms and practice are consequently in need of reform.
In the final article in this issue Lijana Valančienė and Dovile Valančienė critically analyse ‘Trends in legal ethics research: a bibliometric analysis.’ They examine the dominant theoretical aspects and identify the nature and intellectual structures of legal ethics research through a bibliometric analysis of the relationships and interconnections between legal ethics in global legal research. They note the growth of legal research outputs over the period of their study, 1991–2020, as well as the nature of those outputs and the disciplines within which they are situated. They demonstrate that the field of legal ethics is a broader, deeper and more complex phenomenon than professional codes and rules, which encompasses legal education, ethical rules and personal morality as well as ethical decision-making processes, social and cognitive factors.
I very much hope you enjoy reading this rich array of excellent research and that it spurs you on in your own fields of endeavour. I am heartened by the breadth of the work in this issue as well as the variety of traditions it draws upon, the scholars it references and the range of methods employed in the six studies presented within it.
I shall shortly be handing over the General Editorship of Legal Ethics to John Flood who will no doubt take the journal from strength to strength. John’s work exemplifies critical engagement with the sociology of the legal profession, ethical debates in practice, the values of professions and professionals and the education and regulation of lawyers. He will be introducing his team of Articles Editors to you shortly. In the meantime, I would like to thank those who have supported me and the work of the journal at various points during my six years as General Editor: Andrew Francis as Articles Editor throughout, and in the earlier years of my Editorship also Adam Dodek who served as an Articles Editor and Suzanne Le Mire who served as Editor of the Reports, Comments and Notes section. I am very grateful to the Editorial Board for their continued support of the journal and the team at Taylor and Francis, and in particular Gemma Parsons, who between them undertake all the work behind the scenes. I have also received invaluable help from the office holders of the International Association of Legal Ethics, including great encouragement and wise counsel from the late and much missed eminent legal ethicist Deborah Rhode.
None of this would be possible without the academics and practitioners who submit their work for consideration and the very many of you, the legal ethics scholarly and practising community, who accept peer review assignments and who thus contribute magnificently to the strength and quality of the work that the journal publishes. Thank you to you all for your patience during a turbulent time punctuated by the difficulties associated with Covid-19. I am extremely grateful.
All the best,