Watergate and Legal Ethics Evolution

The Watergate scandal is a significant event for the development of legal ethics scholarship. This essay explains the significance of the scandal in development of legal ethics scholarship. This essay argues that the conduct of the lawyers involved in the Watergate scandal and the undermining of the public confidence in legal profession were some of the main reasons why legal ethics scholarship developed to respond to these issues. This essay also discusses the importance of ethics in legal profession and refers to applicable legal rules in the UK with reference to ethics in the legal profession.

One of the first critiques on the Watergate scandal and its relationship to the legal profession was made by Chief Justice Warren Burger of the United States Supreme Court, wherein he noted that there were some ethical deficiencies in the American Bar. This critique coming from the highest judicial office in the United States brought to fore the damage to the public trust in the legal profession in the aftermath of the Watergate scandal. As many lawyers were involved in the Watergate scandal, the criticism of the Chief Justice on the deficiencies of the American Bar in the context of legal ethics reinforced the public perception of the legal profession and made the argument for strengthening of legal ethics education. This led to the development of courses on legal ethics which are taught in all law schools in the United States. Similar effects were also seen in other countries like the United Kingdom.

The relationship between law and ethics is an important one as lawyers are expected to abide by some ethical principles in their work. Nevertheless, it is a general perception that lawyers are not ethical, with the term ‘lawyers’ ethics’ being described as ‘a great oxymoron’.

Given this presumption about the supposed incompatibility between legal profession and ethical conduct, there is now a development of scholarship and theories about legal ethics that are important to understanding how professional ethics for lawyers came to be developed and how they are incorporated in rules. It is essential to have a system of legal ethics because this is important to raising public confidence in the legal profession. It may also be noted that there are some ethical issues that are considered to be significant in the legal field, including, conflict of interest and information on costs. It is imperative for the legal profession and regulatory bodies to respond to such ethical issues through rules and regulations. This point is taken up later in the essay. First, a brief explanation of ethics, its differentiation from laws and norms, and the ethical theories related to legal profession are discussed below.

Ethics are not the same as norms as explained by Herring, where he writes that while a breach of ethical principles indicates a character flaw, a breach in norms does not necessarily do so and may simply need a reminding of the norms. Similarly, there is a difference between law and ethics, which means that while something may not be required in law it may be so in ethics. To explain further, in ethics the “focus is on whether the act is a good thing to do”, which is a moral consideration, whereas laws are normative in nature. Another important aspect of ethics is that unlike norms and laws, ethics are not always clearly made out and professionals may have to apply different approaches in order to determine whether a particular action is ethical or not. Three common approaches are outcome based (utilitarian), character based (virtue ethics), and rule based (deontology). An outcome based approach will see the professional make a decision based on the consequences of the decision; a character based approach will see the professional consider character aspects like kindness or charity while making the decision; and a rule based approach will see the professional consider the actions on the basis of their inherent morality or goodness. While these theories about ethics have been developed in academic scholarship, the application of these theories do not always lead to the most appropriate results in professional actions even though the actions are justified in theory.

In order to simplify the understanding of ethics for lawyers, regulations are made so that they are able to know which acts are considered to be unethical; it is argued that this approach is more appropriate as it is not focussed on the morality of the lawyers or their clients, but the morality of the acts that they do or propose to do. Moreover, regulations are more effective because they can be enforced. The Legal Services Act 2007 is important to the governance of the profession and the Legal Services Board has been established for the purpose of influencing regulation. Prior to the passage of this law, the legal profession was self-regulated; now regulation related to legal ethics is done through the Legal Services Board, which is the oversight regulator, and complaints against lawyers are consolidated at the Office for Legal Complaints. Thus, earlier the Law Society regulated its own affairs through the Solicitors’ Code of Practice, and Guide to the Professional Conduct of Solicitors. Complaints against solicitors were heard by the Solicitors Complaints Bureau.

The Legal Services Act 2007 notes the regulatory objectives based on the centrality of ethical standards specified as professional principles under Section 1. There are also professional Codes of conduct, disciplinary tribunals and education for the purpose of informing professional behaviour. The professional Code of Conduct have three distinct forms: (i) standards set by the professional body laying down certain ‘virtues’ of the legal profession; (ii) principles related to general responsibilities of lawyers; and (iii) rules that prescribe specific conduct. For solicitors, the Solicitors Regulation Authority (SRA) Code of Conduct 2011 is applicable and it contains the includes Principles, Outcomes and Indicative Behaviours that are based on ethics. Principles include acting in the best interest of the client; outcomes are mandatory and are supplemented by indicative behaviours and conduct.

Apart from the regulation on legal ethics, an important consequence of the public scandal involved in the Watergate event is in the teaching of legal ethics as a part of the law course. In the United States, where the Watergate scandal took place, legal ethics began to be taught in the earnest in 1974 after the American Bar Association made it mandatory for the ABA accredited law schools in the United States to teach a course in professional ethics. This is not to say that there was a paucity of scholarship on legal ethics prior to 1974, because legal ethics had been written about in the period prior to 1974 as well both in the United States and in other countries of the world. However, the Watergate scandal led to much public concern about the lack of legal ethics and this led to the mandatory teaching of legal ethics in law schools in the United States. At the present time, American law schools are required to teach American Bar Association (ABA) Model Rules of Professional Conduct. In the UK, legal ethics is a part of legal scholarship and a dedicated journal called Legal Ethics is also published on the global and comparative perspectives of legal ethics. These steps are taken to advance the scholarship and the understanding on legal ethics based on the awareness of the role of professional ethics in legal profession, partly due to the Watergate scandal.

To conclude, the Watergate scandal did expose the need for the legal profession to respond to the ethical deficiencies in the legal practice through norms, rules, and the development of legal education on legal ethics. Subsequently, there has been significant development of ethics scholarship as well as development of regulatory norms and laws for the enforcement of legal ethics. Therefore, it can be said that the development of legal ethics has been done academically as well as normatively. The teaching of the legal ethics in law courses is an important aspect. Also important is the development of Codes and regulations, which has been done in the UK.

Bibliography

Books

Boon A, The Ethics and Conduct of Lawyers in England and Wales (Hart Publishing 2014).

Herring J, Legal Ethics (Oxford University Press 2017).

Journals

Burger W, ‘The l973 Sonnet Memorial Lecture’ (l973-4) 42 Fordham L.Rev 227.

Pearce RG, ‘Teaching ethics seriously: Legal ethics as the most important subject in law school’ (1997) 29 Loy. U. Chi. LJ 719, 723.

Terry LS, ‘US Legal Ethics: The Coming of Age of Global and Comparative Perspectives’ (2005) 4 Wash. U. Global Stud. L. Rev. 463.

Woolley A, ‘Philosophical Legal Ethics: Ethics, Morals and Jurisprudence – Introduction, the Legitimate Concerns of Legal Ethics’ (2010) 13 Legal Ethics 168.