Burglar Contextualised Scenario

Nick Johnson

Learning Outcomes

To help students examine the relationship between lawyer and client and explore the boundaries of the relationship;
To sensitise students to the potential conflict between client instructions, effects on third parties and personal integrity;
To enable students to consider the practical action a lawyer should take when faced with ethical or moral dilemmas.

Teaching Structure/Format

The ideal size for the group would be 16. In a 60 minute seminar, the session would contain two elements:

a preliminary discussion exercise, which explores the tensions between professional codes and personal morality - 15 mins.
the contextualised scenario, which provides the opportunity for active analysis of ethical issues which have been introduced to a group of students at an abstract or conceptual level. Alternatively the scenario could be presented to the group as a problem solving exercise to which they would be invited to identify relevant sources of authority (see below) - 45 mins.

The discussion exercise

This would focus upon a short discussion of the nature of the solicitor-client relation based upon the following quotation:

"Yes, we can doubtless gain your case for you; we can set a whole neighbourhood at loggerheads; we can distress a widowed mother and her six fatherless children and thereby get you six hundred dollars to which you seem to have a legal claim, but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things legally right are not morally right. We shall not take your case, but will give you a little advice for which we will charge you nothing. You seem to be a sprightly, energetic man; we would advise you to try your hand at making six hundred dollars in some other way".

[Abraham Lincoln, whilst in practice in Springfield, USA]

The discussion could be structured around the particular issues that fitted the module objectives in examining the lawyer's relationship with her client. Thus, an exploration of personal morality, social justice and unbridled 'hired gun' approaches, could invite students to identify from quotation the values underlying the 3 interests (personal morality, social justice and hired gun).

Students are being asked to adopt the role of a practising solicitor during the discussion of the scenario. The scenario (or scenarios) should be discussed in groups of four. Their views would be presented to the whole group for discussion with the tutor acting as facilitator. Thus they are asked to prepare for the seminar by reading selected extracts from The Guide to the Professional Conduct of Solicitors (www.guide-on-line.lawsociety.org.uk).

The Scenario:

Your client has been charged with aggravated burglary. Although the stolen property was found at your client's house, there is no forensic evidence to link him to the scene of the crime. The identification evidence is weak and you believe that you would have a good chance to destroying it in court. Your client puts forward an alibi, namely that he was in bed with his girlfriend at the relevant time. You decide that he should plead not guilty.

Shortly before the trial, your client tells you at a confidential meeting that the alibi was a lie although both he and his girlfriend are willing to testify to its truth. He also tells you that he was guilty of the offence.

Moral Context/Underlying Ethical Issues:

The underlying dilemmas are between the duty to the client, the duty to the court and a solicitor's own moral position.

Can the solicitor act if the client insists on pleading not guilty? Yes, but limitations on the way case can be conducted. D cannot give evidence or make any statement asserting his innocence. Nor can the alibi defence be used. BUT can still act and concentrate on weakening the ID evidence (see Guide, Rule 21.20) Lake Pleasant bodies case (Luban, " Lawyers and Justice" Princeton UP 1988 p.53). Is the situation any different for a barrister?
What is the scope of the duty of confidence; reflections on the adversary system of justice?
How should the solicitor advise the client? In practice, may be best to tell the client that it is in client's interest to terminate the retainer. On defending the guilty, see Iain Banks "Dead Air" Abacus 2002 p.331.

Assessment of Learning Outcomes

It is not necessary to assess summatively each learning opportunity and an exercise such as this should be successful if all students have participated, shared their understanding and reflected upon the experience. Further feedback can be given or more focused reflection encouraged utilising a variety of methods that could be adopted for assessing the learning outcomes of the scenario, a few of which are described below.

1. Simple self assessment

For each learning outcome below (a. - c.) invite the students to reflect upon the extent which they agree that their understanding/achievement of the outcome has occurred on (e.g.) a five-point scale such as:

Outcome has been achieved:

Very well
Well
Somewhat
Not well
Not at all

Learning outcome:

Understanding of lawyer/ client relationship
Potential for conflict between client instructions, effects on third parties and personal integrity understood
Practical action to be taken when faced with ethical or moral dilemmas identified

If any students records a 'not well' or 'not at all', ask them to reflect why this was so?

2. Simple peer and self assessment

Ask students to evaluate their own and the rest of their group's performance according to the following (on a scale of 1 -5; 1 = outstanding, 5 = has much more to offer):

Active participation/contribution
Ideas and imagination
Leadership/direction
Reflection/insight

Create other topics to suit your own objectives.

3. Tutor feedback

Provide brief comments verbally or in writing based upon defined criteria (such as those above)

4. Reflective comment

Ask students to record their observations, thoughts and key insights or dislikes from the exercise.

5. Traditional essay or analytical account

The exercises can also firm the basis for a more traditional propositional knowledge based enquiry. This would be achieved by asking the student to write a brief essay focusing on the subject in some contested form. For example,

"Lawyers should only comply with their professional Code. Their personal morality is more than irrelevant, it is a positive impediment to representing the client's interests fully and effectively." Discuss.

Relevant Professional Codes:

The Guide to the Professional Conduct of Solicitors (http://www.guide-on-line.lawsociety.org.uk) and the Code of Conduct of the Bar of England and Wales (http://www.barcouncil.org.uk). Guidelines on fair prosecuting are in the Code for Crown Prosecutors at http://www.cps.gov.uk/Home/CPSPublications/Scheme/code.htm

Supporting Philosophy, Theology,
Religious Studies, History of Science and Philosophy of Science

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