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 be