Experiential Learning in Preparing
Lawyers to Encounter Corruption
Nigel Duncan and Sally Hughes
Please read the hand-out before our presentation, if you have time.
www.city.ac.uk/law
Anti-Corruption Academic Initiative
• The OECD, the IBA and the UNODC
http://www.track.unodc.org/Education/Pages/ACAD.aspx
• How does this prepare the individual to
face this challenge?
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Teaching only the law:
• May encourage efforts to minimise ethical rules through
interpretation
• Fails to develop capacity to :
– Recognise ethical dilemmas;
– Analyse and justify ethical decisions;
– Internalise and adopt professional values;
– Implement the ethically proper response.
An inevitable apprenticeship
• Sullivan et al, Educating Lawyers, “law school years constitute
a powerful moral apprenticeship”.
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Four Component Model of Morality (Rest, 1983)
Reasons (or predictors)
Moral Blindness
Faulty Reasoning
Lack of Motivation
Ineffectiveness
(Character or Competence)
Professional Misconduct
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Four Component Model of Morality (Rest, 1983)
Moral capacity
(predictors)
Operational definition
Moral sensitivity
Capacity to interpret ambiguous clues in real-life
settings
Moral judgment
Capacity to analyse moral issues and provide
justifications for decisions
Moral motivation
Capacity to internalise and give priority to
professional values
Moral
implementation
Capacity for empathic interaction and problem
solving
Effective Professional Conduct
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Corruption
• Ambiguous, hard to detect and counteract.
• Core descriptors of corruption
–
–
–
–
–
–
covert or secret
conspiratorial (ie by more than one person)
trades in (usually mutual) personal advantage
penalises unknowing third parties
no obvious complainant or witness to the wrong-doing
societal acceptance, whether politically, socially or in the workplace
– enabled by organisational, social or political culture
– creates fear of repercussions for disclosure, including informal
and formal penalties for complicity, exclusion and damaged
prospects
• Assumed to be associated with undemocratic regimes
and developing countries
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Countering corruption
There is a high expectation of lawyers in the US
and UK as:
- upholding the rule of law
- validating lawfulness and integrity in personal
and commercial dealings
- monitoring suspicious transactions and identity
- upholding the public interest in legal
proceedings
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Whistleblower as hero
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Case Study: Whistleblowing
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Blowing the whistle on HMRC - the UK
tax authority
Lawyer Osita Mba disclosed to government bodies a secret
deal between a senior government official and Goldman
Sachs, letting them off more than £10million in tax. Mba
registered a protected disclosure.
The Public Accounts Committee found lack of
compliance with the law, lack of independence, uneven
treatment of taxpayers, loss of money to the Exchequer.
The National Audit Office agreed procedures had not
been followed and proposed new measures to strengthen
legal controls and governance.
There was widespread condemnation of unfair, secret tax
treatment of rich companies.
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But …
Anti-terror laws were used to investigate a suspected press
leak by Mba (he hadn’t). He was suspended from his job.
The NAO report also
• Stopped short of introducing independent controls on
private settlements.
• White-washed five questionable (unnamed) settlements
by describing them as “reasonable”.
• Undermined Mba’s concerns as based on “partial
understanding”.
• Administrators told the PAC that taxpayer “confidentiality”
was essential and overrode transparency.
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However,
• PAC hearings over 2 years examined corporate tax
evaders and their legal and financial advisers’ activities
• Wide investigation and revelations in the press
• Parliament threatens a new criminal offence of
“aggressive tax avoidance”
• HMRC chief who made the original deal leaves
government and takes a ‘revolving door’ job with HSBC.
• Evidence given to a High Court Judicial Review
vindicates Mba’s original position.
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Outcomes
• Public attention was focussed on a wide range of problems
surrounding “aggressive” tax avoidance.
• The High Court dismissed the application for Judicial Review on the
ground that the evidence only disclosed admitted maladministration.
• HMRC chief’s evidence admitted he had blocked their decision to
reject the deal with Goldman Sachs in response to pressure from
Government ministers not to antagonise the company.
• Government ministers encouraged Mba’s treatment. The use of
RIPA investigation against him was revealed in 2014.
• The UK Government has refused to sign up to EU joint tax
avoidance measures in order to remain “tax competitive”.
• Mba no longer works for HMRC
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Encountering a corrupt culture
The whistle-blower:
• did not act alone
• used court, political and administrative
institutions
• followed legitimate procedures
• focused on the issues, not personal grievance
• planned survival
– PIDA registered disclosure
– did not appear vulnerable to career threats
– brought an action for detriment
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Issues raised for teaching/learning
• Legalism was used to defeat the anti-corruption arguments
as well as to uphold them.
• The whistleblowers’ remedies are not only legal.
• Do the concepts used to explain the tax settlements
(‘reasonableness’, taxpayer confidentiality) fully justify
undermining the rule of law and departures from equality
under the law?
• Whistleblowers need the analytical ability to see when
something is wrong, the moral courage to challenge it and
the judgment to know when to do it.
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Factors for teachers and practitioners
• The client’s standpoint and the adversarial nature of advice
and support even if litigation is not reached.
• Are certain concepts ‘overriding’ or ‘relative’, eg:
confidentiality and privacy in dealings with the state?
• Lawyers have defined reporting and gatekeeping functions in
many places. Do they have more generalised public interest
functions, in which case is a greater level of tolerance justified
when they raise concerns?
• Should professional lawyers use a morally relative
framework?
– Are there boundaries – such as not advising in favour of actions
that are illegal (a) in the jurisdiction or (b) generally; or
– immoral generally; or contrary to the public interest?
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How assist students to develop these capacities?
• Experiential methods that engage the affective as well as
the cognitive domain.
• Hartwell: teaching legal ethics and professional
responsibility in small, highly interactive seminars had a
strong positive impact on students’ moral judgment.
• Bebeau: introducing comprehensive ethics curriculum
had marked impact on student scores on Defining Issues
Test.
• Gentile, Giving Voice to Values: well-established
approach to developing capacity for moral
implementation.
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References
Bebeau, M, ‘Influencing the Moral Dimensions of Dental Practice’ in Rest and
Narvaez, (eds), Moral Development in the Professions: Psychology and Applied
Ethics, (1994, Hillsdale: Ehrlbaum)
Cunningham, C, & Alexander, C, ‘Developing Professional Judgment’, in Robertson
et al (eds) The Ethics Project in Legal Education, (2010, London: Routledge)
Duncan, N, ‘Addressing Emotions in Preparing Ethical Lawyers’ in Maharg &
Maughan (eds), Teaching and Reaching the Whole Student – the Impact of
Emotions on Learning (and Teaching) the Law. (2011, Dartmouth: Ashgate).
Duncan, N, ‘A future for legal education: personal and professional development
and ethics’ (2015, Notts LJ, )
Hartwell, S, ‘Promoting moral development through experiential teaching’. 1994, 1
Clinical Law Review 505-540.
Kohlberg, L, Essays on Moral Development Vol. 1: The Philosophy of Moral
Development. (1981 San Francisco: Harper and Row).
Rest, J, ‘Background: Theory and Research’, in Rest and Narvaez (above)
Sullivan, W, et al, Educating Lawyers: Preparation for the Profession of Law,
Carnegie Foundation for the Advancement of Teaching, (2007, San Francisco:
Jossey-Bass)
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