‘To act is to be committed, and to be committed is to be in danger’: the vulnerability of the young lawyer in ethical crisis

ABSTRACT

This paper takes as its starting point the phenomenon of young lawyers in ethical crisis. The teaching of ethics in the classroom and the ethos and environment of the law firm have created dissonance: knowing what it is right to do but being unable to do it. In examining this phenomenon, we develop the idea of commitment as a source of duty, loyalty, and courage that enables someone to accept and overcome reluctance to act ethically. Our conceptual framework combines two models: Fineman’s radical view that vulnerability is universal, but ameliorated by the assets available to the individual, and Rest’s four component model that provides a taxonomy of precursors for ethical action and resilience. We consider how the structures and the relationships between law schools, regulators and law firms, acting in combination, support or degrade ethical resilience and development of a commitment to ethical action. We close by considering how changes to the structure planned by one regulator in England and Wales deplete the assets available to the young lawyer and thereby the profession.

KEYWORDS:

• Professional ethics
• vulnerability
• Martha Fineman
• James Rest
• legal education
• legal profession

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Wingate and another v Solicitors Regulation Authority, [2018] EWCA Civ 366; [2018] 1 WLR 3969, per Rupert Jackson LJ, [121] ‘the word “integrity” in a professional code of conduct means something more than mere honesty. It involves adherence to the ethical standards of one's own profession’.

2 For example Ronald M Pipkin, ‘Law School Instruction in Professional Responsibility: A Curricular Paradox’ (1979) 4 American Bar Foundation Research Journal 247; Roger Cramton and Susan Koniak, ‘Rule, Story, and Commitment in the Teaching of Legal Ethics’ (1996) 38 William & Mary Law Review 145; Julian Webb, ‘Conduct, Ethics and Experience in Vocational Legal Education’ in Kim Economides (ed), Ethical Challenges to Legal Education and Conduct (Hart 1998); Donald Nicolson and Julian Webb, ‘Taking Lawyers’ Ethics Seriously’ (1999) 6 International Journal of the Legal Profession 109; Julian Webb, ‘Teaching Ethics to the Legal Profession: Is There a Better Way?’ (2000) 3 Legal Ethics 128; Kim Economides and Justine Rogers, ‘Preparatory Ethics Training for Future Solicitors’ (Law Society of England and Wales 2009) <https://ore.exeter.ac.uk/repository/bitstream/handle/10036/64973/TLS%20Ethics%20Report.pdf?sequence=1&isAllowed=y> accessed 1 April 2022. The concept of commitment used in the latter is not identical with our use of the word. A variety of resources and approaches in a range of jurisdictions can be found at International Forum on Teaching Legal Ethics and Professionalism, ‘International Forum on Teaching Legal Ethics and Professionalism’ (International Forum on Teaching Legal Ethics and Professionalism, No date) <http://www.teachinglegalethics.org/> accessed 1 April 2022.

3 Sharon Dolovich, ‘Making Docile Lawyers: An Essay on the Pacification of Law … ’ (1998) 111 Harvard Law Review 2027; Robert Granfield, Making Elite Lawyers (Law Book Co of Australasia 1992).

4 See discussion and sources cited in Donald Nicolson, ‘Calling, Character and Clinical Legal Education: Inculcating a Love for Justice from Cradle to Grave’ in Fiona Westwood and Karen Barton (eds), The Calling of Law: The Pivotal Role of Vocational Legal Education (Ashgate 2014), p 65.

5 Duncan Kennedy, ‘Legal Education and the Reproduction of Hierarchy’ (1982) 32 Journal of Legal Education 591; Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System – A Critical Edition (Critical America Series): 56 (Critical ed edition, NYU Press 2004).

6 Rebecca Ashton, ‘Professional Courage: What Does It Mean for Practitioner Psychologists?’ (2017) 3 Educational Psychology Research and Practice 2.

7 We recognise that attempts have been made to use the word as a term of art in sociology, psychology and philosophy, albeit with no consensus definition.

8 We do not consider potential conflicts that arise when professional ethics and other sources of ethical imperative are in contradiction. For one such discussion see William H Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (Harvard University Press 1998).

9 ‘Act honestly and with integrity, in accordance with legal and regulatory requirements and the SRA Standards and Regulations, including

• Recognising ethical issues and exercising effective judgment in addressing them.

• Understanding and applying the ethical concepts which govern their role and behaviour as a lawyer.

• Identifying the relevant SRA principles and rules of professional conduct and following them.

• Resisting pressure to condone, ignore or commit unethical behaviour.

• Respecting diversity and acting fairly and inclusively.’ (our italics), Solicitors Regulation Authority, ‘Statement of Solicitor Competence’ (Solicitors Regulation Authority, 25 November 2019) <https://www.sra.org.uk/solicitors/resources/cpd/competence-statement/> accessed 1 April 2022.

10 For recent examples in law, see, in the USA: Muriel J Bebeau, ‘The Defining Issues Test and the Four Component Model: Contributions to Professional Education’ (2002) 31 Journal of Moral Education 271; Neil Hamilton, ‘Assessing Professionalism: Measuring Progress in the Formation of an Ethical Professional Identity’ (2008) 5 University of St. Thomas Law Journal 470; Clark D Cunningham, ‘“How Can We Give up Our Child?” A Practice-based Approach to Teaching Legal Ethics’ (2008) 42 The Law Teacher 312; Clark D Cunningham and Charlotte Alexander, ‘Developing Professional Judgment: Law School Innovations in Response to the Carnegie Foundation’s Critique of American Legal Education’ in Michael Robertson and others (eds), The Ethics Project in Legal Education (Routledge 2011); Neil W Hamilton and Verna E Monson, ‘Ethical Professional (Trans)Formation: Themes from Interviews about Professionalism with Exemplary Lawyers’ (2012) 52 Santa Clara Law Review 921; Neil Hamilton, Verna Monson and Jerome Organ, ‘Empirical Evidence That Legal Education Can Foster Student Professionalism/Professional Formation to Become an Effective Lawyer’ (2014) 10 University of St. Thomas Law Journal 11 (discussing the relationship between the influential Carnegie report and Rest’s model at fn 34); Milton C Regan Jr and Nancy L Sachs, ‘Ain’t Misbehaving: Ethical Pitfalls and Rest’s Model of Moral Judgment’ (2016) 51 New England Law Review 53.

In the UK and Ireland: Webb (n 3); Graham Ferris, ‘Values Ethics and Legal Ethics: The QLD and LETR Recommendations 6, 7, 10, and 11’ (2014) 48 The Law Teacher 20; Nicolson (n 5) above; Freda Grealy, ‘Experiential Training for Real-Life Professional Impact: The Formation of Professional Identity in Trainee Solicitors through a Discrete Intervention Course on Ethics and Lawyering Skills’ (2018) 52 The Law Teacher 295.

11 These four components are implicit in the competence statement. See Solicitors Regulation Authority (n 10) above.

12 Martha Fineman, ‘Equality, Autonomy, and the Vulnerable Subject in Law and Politics’ in Martha Fineman and Anna Grear (eds), Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Ashgate Publishing Limited 2013), p 21.

13 There is a potential alignment here with Bourdieu’s concepts of ‘capital’: cultural, social and economic: Pierre Bourdieu, ‘The Forms of Capital’ in J Richardson (ed), Richard Nice (tr), Handbook of Theory and Research of the Sociology of Education (Greenwood Publishing Group 1986).

14 See Andrew Boon, Legal Ethics at the Initial Stage: A Model Curriculum (Law Society of England and Wales 2010). There is considerable latitude in how ethical issues are addressed in this course: Quality Assurance Agency, ‘Subject Benchmark Statement: Law’ (Quality Assurance Agency, November 2019) <https://www.qaa.ac.uk/docs/qaa/subject-benchmark-statements/subject-benchmark-statement-law.pdf?sfvrsn=b939c881_16> accessed 1 April 2022, para 1.4.

15 Solicitors Regulation Authority, ‘Solicitors Qualifying Examination (SQE)’ (Solicitors Regulation Authority, September 2021) <https://www.sra.org.uk/sqe/> accessed 1 April 2022.

16 Martha Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law and Feminism article 2, p 13.

17 Necessary, perhaps, but not sufficient: Donald Nicolson, ‘Making Lawyers Moral? Ethical Codes and Moral Character’ [2005] Legal Studies 601.

18 For the example of dental students who felt they ‘should be able to develop their own values’ see Muriel J Bebeau and Verna E Monson, ‘Professional Identity Formation and Transformation across the Life Span’ in Anne McKee and Michael Eraut (eds), Learning Trajectories, Innovation and Identity for Professional Development (Springer 2013). For a more dramatic (fictional) exposition of the issue, see Woody Allen, ‘If the Impressionists Had Been Dentists’, Complete Prose (reprint, Picador 1998).

19 This approach to regulation prescribes what is to be achieved by way of professional standard, based on core ethical principles, rather than dictating detailed rules to be followed (which may not be suitable for all forms of practice). For discussion of this development and of some alternative regulatory approaches, see Andrew Boon, ‘Professionalism under the Legal Services Act 2007’ (2010) 17 International Journal of the Legal Profession 195. Regulatory models that check the internal auditing mechanisms of institutions tend to generate an auditable product that satisfies the regulator but does not necessarily either support or even accurately record the state of ethical conduct. actually present, see Michael Power, The Audit Society: Rituals of Verification (Oxford University Press 1999); Jerry Z Muller, The Tyranny of Metrics (Princeton University Press 2018). In moving from prescription of the content and delivery of the LPC (input), to an examination only SQE (outcome), the SRA is applying this form of regulation to the pre-qualification stage and therefore to law schools and others who might deliver preparatory courses.

20 For example, Solicitors Regulation Authority, ‘Statement of Solicitor Competence’ n 10, A3.

21 Solicitors Regulation Authority, ‘SRA Code of Conduct for Solicitors, RELs and RFLs’ (Solicitors Regulation Authority, 25 November 2019) <https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/> accessed 1 April 2022, 7.7.

22 In other words, there is no sensitivity in the discourse to the problem of unethical obedience to authority. See: Herbert C Kelman and V Lee Hamilton, Crimes of Obedience: Towards a social Psychology of Authority and Responsibility (Yale University Press 1989).

23 Peadar Kirby, Vulnerability and Violence: The impact of globalisation (Pluto Press 2006). The initial four are physical, human, social and ecological/environmental.

24 Fineman (n 17) 22-23.

25 Fineman, ibid 23.

26 The alternative is that work and classroom exposure operate in parallel, with the young lawyer attending classes on a part time basis whilst working.

27 Christopher J Whelan and Neta Ziv, ‘Privatizing Professionalism: Client Control of Lawyers’ Ethics’ (2011) 80 Fordham Law Review 2577; Ronit Dinovitzer, Hugh P Gunz and Sally P Gunz, ‘Reconsidering Lawyer Autonomy: The Nexus Between Firm, Lawyer, and Client in Large Commercial Practice’ (2014) 51 American Business Law Journal 661. The nature of such challenges differs according to practice context. See, for example, comments on students intending to go into business law in Richard Moorhead and others, ‘The Ethical Identity of Law Students’ (2016) 23 International Journal of the Legal Profession 235.

28 Pam Jenoff, ‘Going Native: Incentive, Identity and the Inherent Ethical Problem of In-House Counsel’ (2011) 114 West Virginia Law Review 725.

29 See Thomas Connelly, ‘“Zombie” Corporate Lawyer Avoids Being Struck off for Dishonesty after Being Left “Physically and Emotionally Drained” by Workload’ (Legal Cheek, 6 February 2018) <https://www.legalcheek.com/2018/02/zombie-corporate-lawyer-avoids-being-struck-off-for-dishonesty-after-being-left-physically-and-emotionally-drained-by-workload/> accessed 1 April 2022; John Hyde, ‘“Overwhelmed” Junior Struck off after Concealing Court Orders’ [2020] Law Gazette <https://www.lawgazette.co.uk/news/overwhelmed-junior-struck-off-after-concealing-court-orders/5105198.article> accessed 1 April 2022.

30 John Hyde, ‘Solicitor Who Endured “abominable” Working Conditions Is Struck off by High Court’ [2018] Law Gazette <https://www.lawgazette.co.uk/news/solicitor-who-endured-abominable-working-conditions-is-struck-off-by-high-court/5068281.article> accessed 31 March 2021.

31 Debra Cassens Weiss, ‘Fired BigLaw Associate Claims Firm Violated Implied Ban on Firing People Who Raise Ethics Concerns’ [2017] ABA Journal <http://www.abajournal.com/news/article/fired_biglaw_associate_claims_firm_violated_implied_ban_on_firing_people_wh/> accessed 1 April 2022; John Hyde, ‘SDT Bars Whistleblower despite “horrendous” Work Environment’ Law Gazette (28 January 2019) <https://www.lawgazette.co.uk/news/sdt-bars-whistleblower-despite-horrendous-work-environment/5069054.article> accessed 1 April 2022.

32 Max Walters, ‘Juniors Demand Answers from SRA on Protection from “Toxic” Work Environments’ Law Gazette (13 February 2019) <https://www.lawgazette.co.uk/juniors-demand-answers-from-sra-on-protection-from-toxic-work-environments/5069264.article> accessed 1 April 2022.

33 Carol M Rice, ‘The Superior Orders Defense in Legal Ethics: Sending the Wrong Message to Young Lawyers’ (1997) 32 Wake Forest Law Review 887; John Hyde, ‘Junior Lawyers “Lose Confidence” in SRA after Matthews Prosecution’ Law Gazette (11 May 2020) <https://www.lawgazette.co.uk/news/junior-lawyers-lose-confidence-in-sra-after-matthews-prosecution/5104230.article> accessed 1 April 2022.

34 The prominent cases in England and Wales are all women: Solicitors Regulation Authority, ‘Emily Jane Scott – 558810’ (Solicitors Regulation Authority, 6 November 2017) <https://www.sra.org.uk/consumers/solicitor-check/558810/> accessed 1 April 2022; Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin), [2018] 4 WLR 163; Solicitors Regulation Authority, ‘Claire Louise Matthews – 609787’ (Solicitors Regulation Authority, 20 December 2019) <https://www.sra.org.uk/consumers/solicitor-check/609787/> accessed 1 April 2022. The case against Claire Matthews, which was remitted to be reheard by the Solicitors’ Disciplinary Tribunal, was withdrawn by the SRA, restoring her to the Roll. <https://www.lawgazette.co.uk/news/struck-off-junior-matthews-free-to-practise-after-two-year-ordeal/5112178.article>’ accessed 22 April 2022. The withdrawal of this case was preceded by an inquiry into workplace culture within SRA regulated law firms, see Solicitors Regulation Authority ‘Workplace Culture Thematic Review’, (Solicitors Regulation Authority, 8 February 2022) <https://www.sra.org.uk/sra/research-publications/workplace-culture-thematic-review/> accessed 22 April 2022. The review included contributions from over 200 solicitors into workplace culture. This has been followed by a consultation on a change to the SRA Standards and Regulations to include positive duties on solicitors, and their firms, to refrain from bullying, harassment, or discrimination and to challenge behaviour, individually and institutionally, that does not meet the required standard: Solicitors Regulation Authority, Rule Changes on Health and Wellbeing at Work (Solicitors Regulation Authority, 4 March 2022) <https://www.sra.org.uk/sra/consultations/consultation-listing/health-wellbeing-profession/ > accessed 22 April 2022. Taken together, these developments are indicative of a sharper focus on the necessity of a supportive working culture within law firms.

35 Steve Bird, ‘Lawyer Whistleblower Struck off despite Revealing Misconduct’ The Telegraph (2 February 2019) <https://www.telegraph.co.uk/news/2019/02/02/lawyer-whistleblower-struck-despite-revealing-misconduct/> accessed 1 April 2022.

36 Catherine Gage O’Grady, ‘Cognitive Optimism and Professional Pessimism in the Large-Firm Practice of Law: The Optimistic Associate Contributed Article’ (2006) 30 Law & Psychology Review 23, 48.

37 Solicitors Regulation Authority, ‘SRA Standards and Regulations’ (Solicitors Regulation Authority, 25 November 2019) <https://www.sra.org.uk/solicitors/standards-regulations/> accessed 1 April 2022. The SRA STARS constitute a regulatory framework based upon a set of core principles, rules on professional standards and business management, supplemented by guidance notes and an enforcement strategy. It has elements of outcomes focused regulation but is closer to a traditional code. See Solicitors Regulation Authority (n 22). There are few examples of enforcement action under STARs at present.

38 Solicitors Regulation Authority (n 22).

39 Solicitors Regulation Authority, ‘SRA Code of Conduct for Firms’ (Solicitors Regulation Authority, 25 November 2019) <https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-firms/> accessed 1 April 2022.

40 Ibid, introduction. See also the proposed change to the codes of conduct to promote ethical obligations to challenge inappropriate behaviours, Solicitors Regulation Authority (n 35).

41 See Connelly v The Law Society [2007] EWCA 1175. The ‘Connolly defence’ does not assist the junior lawyer under pressure. The statement that ‘my senior made me do this’ means that it is not possible to demonstrate a genuine and honest belief in their own decision and action. The defence has yet to be tested under the STARS.

42 Solicitors Regulation Authority (n 41) rules 3.11 and 3.12.

43 Ibid, rules 3.9 and 3.10.

44 Jonathon Bray, ‘A Culture of Fear?’ (Legal Futures, 12 April 2017) <https://www.legalfutures.co.uk/blog/a-culture-of-fear> accessed 1 April 2022.

45 Bird (n 36).

46 Vivien Holmes, ‘“Giving Voice to Values”: Enhancing Students’ Capacity to Cope with Ethical Challenges in Legal Practice’ (2015) 18 Legal Ethics 115, 118.

47 Rest’s components 1 and 2.

48 Rest’s component 3.

49 Rest’s component 4.

50 Muriel J Bebeau, James R Rest and Darcia Narvaez, ‘Beyond the Promise: A Perspective on Research in Moral Education’ (1999) 28(4) Educational Researcher 18, p 22.

51 Muriel J Bebeau and Stephen J Thoma, ‘Moral Motivation in Different Professions’ in Karin Heinrichs, Fritz K Oser and Terence Lovat (eds), Handbook of Moral Motivation: Theories, Models, Applications (Sense Publishers 2013) p 475.

52 Bebeau, Rest and Narvaez (n 52) 22.

53 See example in Holmes (n 48) above.

54 Stephen J Thoma and Muriel J Bebeau, ‘Moral Motivation and the Four Component Model’ in Karin Heinrichs, Fritz K Oser and Terence Lovat (eds), Handbook of Moral Motivation: Theories, Models, Applications (Sense Publishers 2013), p 52.

55 Ibid 51.

56 Ibid 52.

57 The clinic is often seen as a more authentic method of enabling ethical behaviour, by contrast with the problems of the code-based classroom course. See, for examples: Lawrence K Hellman, ‘The Effects of Law Office Work on the Formation of Law Students’ Professional Values: Observation, Explanation, Optimization’ (1990) 4 Georgetown Journal of Legal Ethics 537; Hamilton (n 11); Julian Webb, ‘Inventing the Good: A Prospectus for Clinical Education and the Teaching of Legal Ethics in England’ (1996) 30 The Law Teacher 270; Catherine Gage O’Grady, ‘Preparing Students for the Profession: Clinical Education, Collaborative Pedagogy, and the Realities of Practice for the New Lawyer’ (1997) 4 Clinical Law Review 485; Janine Griffiths-Baker, ‘Ethical Education through the Student Law Clinic’ (2002) 5 Legal Ethics 24; Nigel Duncan, ‘Ethical Practice and Clinical Legal Education’ (2005) 7 International Journal of Clinical Legal Education 7; Nicolson (n 5); JoNel Newman and Donald Nicholson, ‘A Tale of Two Clinics: Similarities and Differences in Evidence of the Clinic Effect on the Development of Law Students’ Ethical and Altruistic Professional Identities’ (2016) 35 Buffalo Public Interest Law Journal 1; JoNel Newman and others, ‘Theatre and Revolution in Clinical Legal Education’ (2019) 26 Clinical Law Review 465; Anil Balan, ‘Investigating the Feasibility of Using Student Reflective Journals to Understand How Clinical Legal Education Can Develop the Ethical Competence of Law Students’ (2020) 54 The Law Teacher 116; Anil Balan, ‘Using Interpretive Phenomenological Analysis (IPA) to Understand the Development of Legal Ethical Competence through Reflection in a Clinical Learning Environment’ (2021) 55 The Law Teacher 467.

58 Corresponding with the compulsory teaching of ethics in the US ABA accredited law school: Solicitors Regulation Authority, ‘Legal Practice Course Outcomes 2019’ (Solicitors Regulation Authority 2019) <https://www.sra.org.uk/globalassets/documents/students/lpc/lpc-outcomes-2019.pdf?version=4a5c48> accessed 1 April 2022, p 7.

59 For example, David Luban, ‘Lawfare and Legal Ethics in Guantánamo’ (2008) 60 Stanford Law Review 1981 or the Lake Pleasant Bodies case.

60 See for example William H Simon, ‘Virtuous Lying: A Critique of Quasi-Categorical Moralism’ (1999) 12 Georgetown Journal of Legal Ethics 433’ Stuart A Scheingold and Austin Sarat, Something to Believe In: Politics, Professionalism, and Cause Lawyering (Stanford University Press 2004).

61 Laws and ethical codes are an important part of the institutional support for ethical resilience, see Lynn Stout, Cultivating Conscience: How Good Laws Make Good People (Princeton University Press 2010). It is the whole social structure that facilitates ethical action or aggravates ethical vulnerability.

62 See SRA (n 60) 7: ‘students should be able to identify and act in accordance with the core duties of professional conduct and professional ethics’ [our italics]. That codes themselves are insufficient is also argued in Nicolson (n 18).

63 Moral sensitivity and moral judgment. See Robby Marcum, ‘Tracing It Back: Law School and Legal Misconduct Student Note’ (2014) 39 Journal of the Legal Profession 273. On the LPC, as Webb points out, this tends to result in a ‘heavily rule-based or “black-letter”’ approach to professional ethics’ above (n 4) 129.

64 Bebeau (n 11) 284.

65 This has been a further longstanding source of debate in the literature. Advantages and disadvantages of the different approaches in the Anglo-Welsh undergraduate degree are discussed in Boon (n 15) 32ff and in Maxine Evers and Lesley Townsley, ‘The Importance of Ethics in the Law Curriculum: Essential or Incidental?’ (2017) 51 The Law Teacher 17, concluding at p 21 that a pervasive approach is to be preferred. The consensus as to the purpose of the US JD has, perhaps, enabled that jurisdiction to emphasise the centrality of ethics to that purpose through a pervasive approach: Deborah L Rhode, Professional Responsibility: Ethics by the Pervasive Method (Little Brown & Co 1994); Russell G Pearce, ‘Legal Ethics Must Be the Heart of the Law School Curriculum Symposium: Recommitting to Teaching Legal Ethics- Shaping Our Teaching in a Changing World’ (2002) 26 Journal of the Legal Profession 159.

66 Webb (n 3), 290.

67 The Bar Standards Board, has held to the view that a self-standing assessment is desirable (even if other elements are pervasive): Derek Wood, ‘Bar Standards Board Review Of The Bar Vocational Course Report Of The Working Group’ (Bar Standards Board 2008) <https://www.barstandardsboard.org.uk/uploads/assets/aba3e9cc-a368-48d3-a74a8f64db13278e/bvcreportfinalwithannexesasonwebsite.pdf> accessed 1 April 2022, at paras 101-103. In the current model of bar training, there are pervasive elements, but, unlike the SQE, there are also self-standing ethics assessments during the course and in the workplace: Bar Standards Board, ‘Bar Training: Curriculum and Assessment Strategy’ (Bar Standards Board 2021) <https://www.barstandardsboard.org.uk/uploads/assets/482b158c-0000-4a93-9db34a4944c31499/Curriculum-and-Assessment-Strategy-August-2021.pdf> accessed 1 April 2022, pp 22–23 and 25.

68 Moral sensitivity, moral judgment and moral motivation.

69 Cunningham and Alexander (n 11) 82.

70 Moral motivation and moral character. This optimism has not been borne out empirically: Emma Oakley and Steven Vaughan, ‘In Dependence: The Paradox of Professional Independence and Taking Seriously the Vulnerabilities of Lawyers in Large Corporate Law Firms’ (2019) 46 Journal of Law and Society 83.

71 Bebeau and Thoma (n 53) 480.

72 Jason M Satterfield, John Monahan and Martin EP Seligman, ‘Law School Performance Predicted by Explanatory Style’ (1997) 15 Behavioral Sciences & the Law 95.

73 O’Grady (n 37).

74 Catherine Gage O’Grady, ‘Behavioral Legal Ethics, Decision Making, and the New Attorney’s Unique Professional Perspective’ (2014) 15 Nevada Law Journal 671, 680, 686.

75 Ibid 682.

76 Ibid 685.

77 O’Grady (n 37) 49.

78 O’Grady (n 76) 682.

79 Christine Parker and others, ‘The Ethical Infrastructure of Legal Practice In Larger Law Firms: Values, Policy And Behaviour’ (2008) 31 UNSW Law Journal 158; O’Grady (n 76) 681.

80 Thoma and Bebeau (n 56) 51.

81 Bebeau and Thoma (n 53) 495.

82 Ibid 476.

83 Ibid 482.

84 Ibid, 483.

85 Anne Colby and William Damon, Some Do Care: Contemporary Lives of Moral Commitment (Free Press 1994); Hamilton and Monson (n 11). The exemplars had human, social and physical assets as well as existential assets that supported their moral commitments.

86 See the striking off of a solicitor of good record for an inexplicable attempted theft: John Hyde, ‘Solicitor Struck off for Dubai Mobile Phones Theft’ Law Society Gazette (31 July 2019) <https://www.lawgazette.co.uk/news/solicitor-struck-off-for-dubai-mobile-phones-theft/5071191.article> accessed 1 April 2022.

87 Bebeau and Thoma (n 53).

88 Hamilton and Monson (n 11).

89 This was a major insight of those communitarian commentators who criticised liberal theory with its autonomous agents who chose their values rather than agents who were constituted by their values. See: Alasdair MacIntyre, After Virtue: a Study in Moral Theory (Duckworth 1985); Michael J Sandel, Liberalism and the Limits of Justice (Cambridge University Press 1998). Most rescuers are not motivated by ethical theory but by what is ‘obviously’ right conduct: Samuel P Oliner and Pearl M Oliner, Altruistic Personality: Rescuers of Jews in Nazi Europe (Simon and Schuster 2002). In the case of a professional code there is a higher likelihood of a conscious decision playing a significant role, together with professional socialisation.

90 Baldwin (n 1).

91 Max Planck, Scientific Autobiography and Other Papers (Frank Gaynor tr, Greenwood Press Publishers 1968) 33-34.

92 Jack Mezirow, ‘An Overview of Transformative Learning’ in Knud Illeris, Contemporary Theories of Transformative Learning (Routledge 2008); Hamilton and Monson (n 11).

93 Neil W Hamilton and Verna E Monson, ibid; Colby and Damon (n 87).

94 Oakley and Vaughan (n 72).

95 Values are not capable of simple aggregation and as one set of values come in, other values can be crowded out, see: Bruno S Frey, Not Just for the Money An Economic Theory of Personal Motivation (Edward Elgar Publishing 1997); Michael J Sandel, What Money Can't Buy: The Moral Limits of Markets (Penguin 2012).

96 Bebeau and Thoma (n 53) 55.

97 Kelman and Hamilton (n 23).

98 Neil Rose, ‘Solicitor “Embarrassed by Wasted Costs Order” Faked Invoice to Cover up Payment’ (Legal Futures, 28 November 2016) <https://www.legalfutures.co.uk/latest-news/solicitor-embarrassed-wasted-costs-order-faked-invoice-cover-payment> accessed 1 April 2022; Jonathon Bray, above n 46; Solicitors Regulation Authority v James n 35.

99 Timothy W Floyd, ‘Moral Vision, Moral Courage and the Formation of the Lawyer’s Professional Identity’ (2009) 28 Mississippi College Law Review 339.

100 Alan Rogers, What Is the Difference? A New Critique of Adult Learning and Teaching (NIACE 2003).

101 Irwin D Miller, ‘Preventing Misconduct by Promoting the Ethics of Attorneys’ Supervisory Duties’ (1999) 70 Notre Dame Law Review 259.

102 O’Grady (n 76), 695, 687.

103 Ibid 694.

104 Ibid 685.

105 Andrew M Perlman, ‘Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology’ (2007) 36 Hofstra Law Review 451. Catherine Gage O’Grady, ‘Wrongful Obedience and the Professional Practice of Law’ (2013) 19 Journal of Law, Business & Ethics 9; Holmes (n 48) 123.

106 Catherine Gage O’Grady, ‘A Behavioral Approach to Lawyer Mistake and Apology’ (2016) 51 New England Law Review 7.

107 For example, Solicitors Regulation Authority (n 10); Bar Standards Board, ‘The Professional Statement for Barristers’ <https://www.barstandardsboard.org.uk/media/1787559/bsb_professional_statement_and_competences_2016.pdf> accessed 1 April 2022.

108 Sharon Nodie Oja and Patricia J Craig, ‘Moral Motivation and the Role of the Internship in Professional Preparation’ in Karin Heinrichs, Fritz K Oser and Terence Lovat (eds), Handbook of Moral Motivation: Theories, Models, Applications (Sense Publishers 2013) 590.

109 O’Grady (n 76) 682.

110 Ibid 694.

111 See Brown v Guardian Royal Exchange [1994] 2 Lloyd’s Reports 328 and TSB v Robert Irving & Burns [1999] Lloyd’s Reports IR 528.

112 See Morritt LJ in Robert Irving at [20].

113 Different pressure may operate when young lawyers can enter sole practice at the outset, or in the very early parts, of their career. Hostile colleagues may not be present as adverse influences, but neither are supportive colleagues (outside formal or informal incubators and mentoring schemes). Given the strong attachment of the legal professions in England and Wales to mandatory pre-qualification work-experience as a pre-eminent location for authentic learning of practice and regulatory restrictions on the point at which sole practice is possible, we do not delve into the pressures on sole practitioners in this paper.

114 Jean Lave and Etienne Wenger, Situated learning: Legitimate peripheral participation (Cambridge University Press 1991). Here the manager ‘put apprentices where they can work for him most efficiently, … Because … apprentices are so occupied with profit-making tasks, [they] rarely learn many tasks … ’ (p 78).

115 Richard Moorhead, ‘Corporate Lawyers: Values, Institutional Logics and Ethics’ (CEPLER 2015) 07/2015 <http://epapers.bham.ac.uk/1984/1/cepler_working_paper_7_2015.pdf> accessed 1 April 2022; Richard Moorhead and others, ‘Designing Ethics Indicators for Legal Services Provision’ (Legal Services Board 2012) <https://www.legalservicesboard.org.uk/wp-content/media/designing_ethics_indicators_for_legal_services_provision_lsb_report_sep_2012.pdf> accessed 1 April 2022; Richard Moorhead and Steven Vaughan, ‘Legal Risk: Definition, Management and Ethics’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2594228> accessed 1 April 2022.

116 Irving L Janis and Leon Mann, Decision Making: A Psychological Analysis of Conflict, Choice and Commitment (The Free Press 1977).

117 Solicitors Regulation Authority (n 16).

118 George E Miller, ‘The Assessment of Clinical Skills/Competence/Performance’ (1990) 65 Academic Medicine S63.

119 This despite the requirement of the competence statement that a newly qualified solicitor be capable of ‘Resisting pressure to condone, ignore or commit unethical behaviour’, Solicitors Regulation Authority (n 10).

120 Solicitors Regulation Authority, ‘Workplace Environment: risks of failing to protect and support colleagues’ (Solicitors Regulation Authority, 7 February 2022) <https://www.sra.org.uk/solicitors/guidance/workplace-environment/> assessed 22 April 2022.

121 Nicolson (n 18).

122 Robert Granfield and Thomas Koenig, ‘It’s Hard to Be a Human Being and a Lawyer: Young Attorneys and the Confrontation with Ethical Ambiguity in Legal Practice’ (2002) 105 West Virginia Law Review 495.

123 Laurel Terry, Steve Mark and Tahlia Gordon, ‘Trends and Challenges in Lawyer Regulation: The Impact of Globalization and Technology’ (2012) 80 Fordham Law Review 2661, p 2682.

124 Solicitors Regulation Authority (n 35).

125 Donald C Langevoort, ‘Lawyers, Impression Management, and the Fear of Failure’ (2016) 51 New England Law Review 75.

126 Graham Ferris (n 11).

127 For a model both based on Rest and in a distinctly vocational context, see Freda Grealy, above (n 11).

128 See Griffiths-Baker (n 59); Duncan (n 59); and Alexander (n 11).

129 Tigran W Eldred, ‘Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility’ (2016) Michigan State Law Review 757.

130 Mary C Gentile, Giving Voice to Values: How to Speak Your Mind When You Know What’s Right (Yale University Press 2012); Holmes, above (n 48); Carolyn Plump, Giving Voice to Values in the Legal Profession: Effective Advocacy with Integrity (1 edn, Routledge 2018), Anneka Ferguson, ‘Creating Practice Ready, Well and Professional Law Graduates’ (2017) 8 Journal of Learning Design 22. For further discussion of Gentile’s work in the context of legal education, see Graham Ferris, Uses of Values in Legal Education (Intersentia 2014), chapter 9.