Vol. 10 No. 11 (November 2000) pp. 607-609.

THE ETHICS AND CONDUCT OF LAWYERS IN ENGLAND AND WALES by Andrew Boon and Jennifer Levin. Oxford, England: Hart Publishing, 1999. 418 pp. Cloth $54.00. ISBN 1-84113-018-4.

Reviewed by Thomas M. Hilbink, New York University Institute for Law and Society, tmh7053@nyu.edu

Every American law student is currently required to take a semester- length course in professional responsibility and ethics. To become a lawyer, each state requires that applicants to the bar pass the Multistate Professional Responsibility Exam (MPRE). Yet, the term "legal ethics" regularly meets with snorts of laughter and skepticism from the general public, who believe the two words constitute an oxymoron. The reaction is not surprising, considering well-publicized cases of lawyers sleeping through capital trials, engaging in paper wars of attrition on behalf of large corporate clients seeking to avoid liability for obvious wrongs, and soliciting clients in ways best suited to snake-oil salesmen. Recent bestseller and feature film A CIVIL ACTION (Harr 1995) similarly presented the lawyers and judge in the Woburn toxic tort trial as morally ambiguous individuals. Such incidents, however, represent a decidedly unscientific sample of lawyers. Legal ethics expert Stephen Gillers believes that the increased emphasis on ethics in law schools and profession in the past 25 years has made lawyers and judges far more conscious of ethical rules (if not more ethical).

The ambiguous results of America's system of professional ethics education hasn't stopped Andrew Boon and Jennifer Levin from arguing for such a requirement in the United Kingdom -- where one does not currently exist. Their new book, THE ETHICS AND CONDUCT OF LAWYERS IN ENGLAND AND WALES, serves as the centerpiece of their efforts. Boon and Levin intend the volume to help fill the gap in English and Welsh legal education, producing a textbook for students in law faculties that will help reinvigorate ethical practice in a professional world they believe has been weakened as a result of deprofessionalization and commercialization.

There is a certain nostalgia to the book's mission. Without much in the way of empirical evidence, Boon and Levin imply that there was once a time when lawyers were more ethical, more influenced by professional norms and practices. This, they argue, was in the day of the Inns of Court. In its day aspiring attorneys were trained within a tightly-knit, collegial, professional fraternity that in the process of training conveyed not only the substance of law but also served as a model of how a lawyer must act and behave in practice. With the massive expansion of the legal profession and the rise of university-based law faculties, this all-around type of training diminished significantly.

Despite such nostalgia, Boon and Levin's views of ethics and lawyering are greatly influenced by recent trends in those fields. To the extent the authors advocate an

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"ideal" of ethics, they argue for something akin to William Simon's justice-based ethics as set forth in his book, THE PRACTICE OF JUSTICE (1998). Boon and Levin are more concerned with substantive outcomes than strict adherence to procedure or zealous advocacy on behalf of clients. Lawyers should reinforce a view of justice consistent with the goals of the liberal state: fair treatment of social groups and individuals (p. 25). Their view of lawyering is similarly influenced by recent trends in lawyering theory stemming from the growth of the American clinical legal education movement. Lawyers, they write, should not act so as to contribute to "professional mystification and domination of clients" (p. 400), what they believe to be the traditional approach. Rather, attorneys should take a "client-centered" approach, advising, informing, helping, and "encouraging clients to achieve appropriate and satisfactory solutions to their problems" (p. 400).

For the American professor or student, this textbook will seem very different from those used in analogous courses in the U. S. Most dissimilar is the fact that it is not a casebook. Indeed cases are mentioned and cited, but they do not serve as the organizing pedagogical theme. I do not intend to imply that this is a flaw as I am not a zealous Langdellian, but it is important to point out all the same. Rather, the book summarizes and discusses codes, statutes, cases and studies in densely packed chapters. The authors offer a general overview of the legal profession, its structure, governance, and ethics; dedicating individual chapters to lawyer-client relationships, obligations to third parties, confidentiality, conflicts of interest, and fees and costs among others. For the student or scholar who knows nothing about how law and ethics are practiced across the pond, the book offers an excellent, though often dry, overview of the major issues and ideas at play in England and Wales.

Because of its exclusive focus on England and Wales, the book as a whole couldn't serve as the primary textbook in an American professional responsibility classroom. Still, the book can be of use to such an audience. The discussion of the underpinnings of legal ethics and professionalism in the book's opening chapters incorporates a massive number of concepts and ideas along with discussion of voluminous empirical data. A professor interested in tying ethics and the profession to philosophical, sociological, and historical roots would be hard pressed to find a better overview.

Part of the value of the above-mentioned discussion lies in the fact that, unlike most textbooks on the topic, Boon and Levin's volume is solidly grounded in sociolegal scholarship. The footnotes alone provide a canonical listing of the most important works in the field -- a great asset for those commencing research on legal ethics and the legal profession in the Anglo- American legal world. Even more significantly, by providing an empirical basis for its observations, the authors offer an understanding of law practice in action, not simply how it is expected or assumed to be practiced according to professional codes and celebratory bar dinner speeches.

My main concern with the book is pedagogical. Because the book is intended as a textbook, it seems only fair to judge it on that basis: with a student audience in mind. (Having taken a professional responsibility course and the MPRE in the last two years, I feel I can speak with some expertise from this perspective.) Although the book is thick with data, its scholarly exegesis does little to force students to think

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about how they themselves might handle ethical dilemmas. The book takes a passive approach to teaching, akin to a professor standing before a class and lecturing. This allows students to absorb material without beginning the process of processing and applying the ideas to actual cases and dilemmas.

In other words, the book fails to make students place themselves in the position (albeit hypothetically) that attorneys find themselves in quotidian practice. Students need not grapple with the immensely difficult, though at times seemingly simple, decisions that steer their actions in one direction or another. Ultimately, it is in the application that these rules become murky, muddled by circumstance and pressure from clients, economic concerns, and superiors. Although it fairly lays out the various positions on ethics questions, the exposition doesn't challenge the reader to develop his or her ethical compass. The skilled professor would deal with this in class, of course, but it is reasonable to expect the book itself to begin the process and encourage such thinking.

Unlike many subjects in legal education, ethics are a lively and exciting topic. It is no coincidence that television producers in this country, on shows such as L. A. LAW, LAW AND ORDER, and THE PRACTICE, make ethical conflicts the central theme of their programs. People enjoy grappling and watching others grapple with such questions. Yet, THE ETHICS AND CONDUCT OF LAWYERS does little to bring this vibrancy to the reader. Its discussions are dry and measured, balanced and removed. This is not to say that a textbook should make entertaining students its central goal. At the same time, there is no reason that the drama and controversy inherent to the topic need to be tamped out in order to maintain scholarly propriety.

The underlying goals of the authors are honorable and right. In a country where many consider the idea of legal ethics an oxymoron, I agree that students need regular and frequent exposure to matters of ethics and legal practice. If the end goal is to be realized, however, it will require approaching the subject matter in ways that make the subject more than a scholarly debate. Ethically-driven lawyers must actively engage in the analysis of their actions. Pedagogically, this book does not advance far 'enough towards that important end.


Harr, Jonathan. 1995. A CIVIL ACTION. New York: Random House.

Simon, William H. 1998. THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS. Cambridge: Harvard University Press.

Copyright 2000 by the author Thomas M. Hilbink.