THE POWER AND LIMITS OF TEACHING ETHICS IN THE CLASSROOM

by
Professor Raul C. Pangalangan
University of the Philippines


I remember how I felt every time a disciplinary case came before the
Supreme Court involving a former student for gross and willful violation
of the canons governing the conduct of members of the bench or the bar.
The question I asked myself and my colleagues in the Supreme Court who
were once law teachers was: Where did we fail? But then, there are
those who believe that ethics like virtue cannot be taught. They are
attributes each individual develops from childhood and through life as a
consequence of interrelationships in the home, at school, and the
community.

-- Irene R. Cortes, Towards Effective Teaching of Legal Ethics, in ESSAYS
ON LEGAL EDUCATION (1994)


In the past decade, international institutions and foreign aid programs have
focused on the need to insulate institutions from corruption, and an important part of that
effort has focused on cleansing the legal profession and the courts. As the Philippines
takes part in that global effort, I invite you to re-examine the tried-and-tested strategies
for promoting ethics in the legal profession, and to ask whether much of this work is
wasted in what Filipinos call sermonizing, i.e., the tendency to preach from the pulpit
oblivious to whether the faith is lived out in the streets and outside the temples.


Historical Framework of Legal Education in the Philippines

Following the defeat of the Spanish colonial government in Manila, the
Revolutionary Government of 1898, during its brief existence, established a national
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university (the Literary University of the Philippines). A Faculty of Law was created,
patterned after Continental European law schools. It had a six-year curriculum, which
combined, on one hand, philosophy and political economy, and on the other, traditional
law courses that we will recognize today: the civil code, the penal code, political and
administrative law, commercial law, procedural law and public international law.

The Spanish-American War no sooner broke out and, with Americas invasion of
the Philippine islands, followed the Filipino war of resistance. The Philippines became
Americas colony, and after a decade-long pacification effort, in 1911, the Americans
established the first American-style law school in the Philippines, the University of the
Philippines (hereinafter, the U.P.) College of Law.

Thus began the transplantation, virtually wholesale, of an entirely new system of
law and legal education. The U.P. used the case-method devised at the Harvard Law
School, and adopted the common law reliance on decided cases. It discarded the
traditional lecture method, and pioneered in the country the Socratic method, based on a
question-and-answer format. The law course also became a post-baccalaureate degree,
following American practice, instead of a first university degree as practiced in many
European jurisdictions. However, huge chunks of laws inherited from the former Spanish
colonizer remained, governing mainly penal law and civil law, together with the civil law
reliance on annotators. The principal body of law inherited from the Americans was
constitutional law, which established, for the nation, the rule of law tradition, which
has persisted through the changing seasons in the political life of our country.
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Today, there are more than 80 law schools all over the country. It is difficult to
say how far the case method has taken root, or conversely, how far the Spanish legacy of
the civil law has been uprooted. On one hand, Supreme Court decisions are
systematically reported, and case-law expressly declared to be a source of law. Legal
reasoning, in judicial decisions, law practice and published articles, are rich in case
citations. On the other hand, the most persistent civil law influence lies in the lawyers
mind-set, which which seeks a pervasive, internal rationality within a statute code, which
favors the tight textual reading of statutes and deters the creative, sometimes flamboyant,
interpretations of laws seen in American judicial decisions. Statute codes remain, e.g.,
the Civil Code, the Revised Penal Code, and more focused codification projects (e.g., the
Family Code), and every major reformer purports to think up new encompassing codes.
A generation of famous annotators continues to hold sway as authoritative publicists,
though again they are slowly dying out.


The Stage of Normativization

We have begun with the premise that, in order to promote legal ethics, it is
important to codify ethical standards. The formalization of ethical standards in the
Philippine legal profession began when the Philippine Bar Association, a private,
voluntary society of lawyers, in 1917 adopted Canons 1-32 of the American Bar
Association (ABA) Canons of Professional Ethics, and in 1946, adopted further Canons
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33-47. When the Philippine bar was formally integrated, the Integrated Bar of the
Philippines adopted in 1980 a proposed Code of Professional Responsibility, which they
submitted to the Supreme Court and which the Court promulgated in 1987. The Code
consists of four parts: The Lawyer and Society; The Lawyer and the Legal Profession;
The Lawyer and the Courts; The Lawyer and the Client.

Indeed its enforcement has constitutional foundations. The charter vests the
Supreme Court with the exclusive power over admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged (Const. art. VIII 5.5). The
Court has actually promulgated the Rules of Court, which sets forth rules on Admission
to the Bar (Rule 138) and Disbarment and Discipline of Attorneys (Rule 139.B).


Parallel to this, the Department of Justice issued Administrative Order No. 162 in
1946 (when the supervision of the lower courts was still lodged with the Department)
containing canons of judicial ethics. In 1989, the Supreme Court promulgated a Code of
Judicial Conduct.

The inherited wisdom among lawyers is that ethics must be transformed from
open-ended moral duties into formal codes of law. At the outset, therefore, there is a
clear preference for clarity and fixity in the rules, versus the open contestation of the
philosophers on what is right and what is wrong. If we judge the advance of legal ethics
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in the Philippines by the test of codification, the existing codes and the enforcement
mechanisms certainly meet global standards.

This overweening trust in words and rules ignores entire schools of thought e.g.,
Legal Realism (Karl Llewellyn, Bramblebush) or Critical Legal Studies (Roberto
Mangabeira Unger, The Critical Legal Studies Movement) that have demonstrated the
malleability of meaning and the elasticity of language, captured in Holmes admonition:
Certainty is an illusion and repose is not the destiny of man. The Filipino legal
imagination is, in the language of jurisprudence (or Legal Theory), excessively
Formalist, and has remained oblivious to more sophisticated intellectual developments
abroad. In fact, the U.S. Supreme Court, reversing a Philippine Supreme Court decision
(when the Philippines was still a U.S. colony), had occasion to comment on the
Philippine courts mechanistic reasoning, saying that the separation of powers cannot be
seen as setting fields of black and white, dividing it into watertight compartments
with mathematical precision.


The Teaching of Norms

Both the Report of the Study Group on the Bar Examinations (chaired by Justice
Amerufina Melencio-Herrera, created in 2003) and the Reform Proposals submitted by
Justice Vicente V. Mendoza acknowledge the place of the bar examinations in shaping
legal education in the Philippines. The subject of Legal Ethics is included as one of the
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eight subjects in the Philippine bar examinations. This is doubly significant. One, as a
practical mater, it means that law schools will teach, and students will study, the codes of
professional conduct (Irene R. Cortes, Legal Education: The Bar Examination as a
Qualifying Process, 53 Phil. L.J. 130 (1978)). Two, as an institutional matter, it shows
that the Supreme Court no less, pursuant to its power over admission into the bar, has
placed the full weight of its authority behind the strengthening of ethical standards.

At the same time, Justice Irene Cortes says that what this means is the teaching of
the substantive and procedural content of legal ethics as a subject in the law curriculum
and the bar examinations, and concedes that, indeed, that is all that can be taught in the
law school classroom (Irene R. Cortes, Towards Effective Teaching of Legal Ethics,
ESSAYS ON LEGAL EDUCATION (1994)). Further in this direction, the campaign to
strengthen legal ethics has taken the form of increasing the number of hours of instruction
at various levels. For law students, the reforms in the bar examinations have proposed
increasing the weight given to Legal Ethics (infra.) For lawyers, the Mandatory
Continuing Legal Education requires almost a third of the lecture hours in Legal Ethics.
For judges, there is likewise an increase in the instruction in Legal Ethics.

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The Concentrated Approach versus the Pervasive Approach

Justice Cortes uses the term concentrated approach to describe the teaching of
legal ethics in one self-contained course exclusively on this subject. She contrasts it to
the pervasive approach in which professors in all law school courses incorporate ethical
perspectives in their subject: in commercial law, the duty of disclosures before the SEC;
in agency and partnership, the relationship of trust amongst the parties; or in evidence,
the principles protecting relationships covered by testimonial privilege.

She says that the concentrated approach is of varied effectiveness. The overeager
will jumpstart the teaching of Legal Ethics in the early years, before the students know
enough about law to agonize over laws dilemmas. Yet when the pervasive approach has
been tried in many other areas of law, the result is that the particular interest in this case
legal ethics becomes all-present but oft-ignored. In other words, in the mass of laws
and cases packed into one semester, the ethical perspective is the first one that goes out
the window. Worse, given the pressures from the bar examinations toward blackletter
rules, ethical perspectives will be seen as poor second-class cousins to hornbook
doctrine. I will go back to this very important issue of lawyers and law students attitude
to Legal Ethics.


Use of Decided Cases in Legal Ethics

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The next problem is pedagogy. The case-method, as developed by Dean
Christopher Columbus Langdell of the Harvard Law School, aimed to make law a
scientific discipline by using actual cases as the laboratory from which we can
generalize the actual rules by which we live, or in Holmes felicitous phrase, the oracles
of the law. For teaching Legal Ethics, this in fact should be a step forward. After all,
how can you teach the dos and donts of lawyers unless these rules come to life in the
context of actual ethical dilemmas brought before the courts?

On the other hand, for law schools, by the time the law professor takes up the case
with his students, the ethical dilemma is already resolved indeed, rather authoritatively
by the Supreme Court. While this may not be a problem elsewhere where teachers and
students are not deferential to Supreme Court decisions, in the Philippines, it poses a real
challenge. The effect on the law school classroom is that the Supreme Court decision
forecloses any real ethical debate. The game is not to understand how the Court resolved
the moral dilemma. Rather it is to remember what the Court said, in case the question is
asked in the bar examinations.

Contrast this to business schools, and how they use case-studies. These are
open-ended problem-based cases. Just like in laws case method, they examine detailed
facts and problems, not abstract propositions. However, unlike law school, there is no
single, right answer to the problem, and much more an answer given by a Supreme
Court which is infallible because it is final. Thus business schools foster ethical
debate, law schools deter them.
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Finally, the business school approach frankly acknowledges the gray areas in
ethics, where rules yield no black-and-white solution. Again, contrast that to the
tendency of law schools to seek the single, right answer in a Supreme Court decision,
completely oblivious to the penumbra shading from white to gray that emanates from
blackletter rules. I ask you: If your goal is to produce morally-attuned lawyers, which
way is better? Who is the more ethical lawyer: the one who memorized all the dos and
donts and remembered what the Supreme Court said? Or the one who candidly
recognizes the bona fide dilemmas, the gray areas, and genuinely agonizes?

(A practical note. The law schools case method is cheaper. The cases are
published full grown in the Supreme Court Reports Annotated. The business schools
approach is expensive. The case studies are written much like short stories and
reviewed and edited by panels of experts, all of whom are commissioned for the task.)

In answering, please note that when Holmes said that decided cases are important
because law is nothing but a prediction of what the courts in fact will do, and nothing
more he also said that law must work by imagining the bad man who doesnt care a
whit about good or evil and will decide solely on a rational basis, to avoid pain and seek
profit.


Dos and Donts Degenerate into Sermonizing
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I have thus far tried to cast a doubt on the wisdom of current campaign to
strengthen Legal Ethics by producing more codes and requiring more classroom hours.
We must, I insist, look at what we do inside the classroom and ask whether it actually
produces more ethically attuned attorneys.

Justice Irene Cortes lamented that the Legal Ethics course can merely teach the
substance of the rules on professional conduct, but cannot guarantee that these ethical
standards are absorbed by the students. Indeed, students enter law school in their 20s,
when their moral compass is already set by family, community and friends, and two
hours a week over sixteen weeks learning Legal Ethics can do little to change them.

This has actually been widely acknowledged but there is what I consider a
characteristically Filipino twist. If merely teaching the rules is not enough, then some
teachers say we should do more: we must moralize. We must preach goodness and
rectitude to the students, hector them to join the forces of light, and demonize the forces
of darkness. Does this work?

First of all, if we build on the Cortes assumption that their moral formation is just
about complete by the time students get to law school, this will not redeem their sinful
souls. At best, it will make them feel guilty while they keep on doing what they used to
do. Indeed, it seems part of the medieval Roman Catholic mindset that feeling guilty is
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actually a good thing, that it somehow assuages the sin if you say that you really didnt
have fun doing it.

Second, the sermonizing may actually deter moral behavior. In idealizing the
forces of light versus blackening the forces of evil, it actually posits an unrealistic model
of rectitude that may be impossible to sustain in the real world. In other words, if
Holmes rule-bound lawyer assumes the bad man, the moralizer builds legal ethics
around saints. Contrast that to the case-study approach in business schools, which asks
not just what ought to be but also what can be done.


The Power of Example

George Malcolm no less recognized these limits and embarked on a most
interesting experiment in pedagogy, one that his successor Irene Cortes would speak of
three decades later.

Malcolm began his 1949 book Legal and Judicial Ethics by lamenting the
iniquities of the legal profession, and the emergence of the lawyer as the pettifogger,
the shyster, the runner, the touter, the rustler, the leguleyo, the picapleito, all the ilk who
live by sharp practices.

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To teach his students that honorable dealing between lawyers is to be expected,
he said:

The roll will not be called. The student will keep a record of his own attendance.
At the last meeting of the class, he will make a written report of the number of his
absences. When the examination is held, the lecturer will not be present, but the
participants will be placed on their honor neither to give nor to receive assistance.

(He does not say how the experiment worked.) Moreover, to teach that law is a
profession not [] a business dedicated to the ideal of service and not of monetary or
political gain, he donated his lecturers fees to a Prize for the biography of the late Chief
Justice Jose Abad Santos to encourage legal scholarship.

Irene Cortes would speak of this as the law professors gatekeeper function in
the legal sub-culture. She quoted an NYU law professor:

Law teachers should start and finish classes on time. We should respect the time
of students, as we expect them to respect ours, by keeping appointments or letting
students know in advance if we cannot be available. Grading of papers should
take precedence over all but the most urgent of personal or professional
considerations.


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A Plea for a Sociological Approach
Thus far, we are trapped between the proverbial rock and a hard place. On one
hand, we teach the hard rules of legal ethics, because that is what will be asked in the bar
examinations and that is what local lawyers consider the true legal ethics (in contrast to
lofty moral debates). On the other, we acknowledge that teaching just the rules is not
enough, and what will push the students toward ethical behavior is a moral urge which
no sooner degenerates into guilt-tripping moralizing.

What I propose is to make students understand the why of legal ethics, not the
what (as in what are the rules?) or the how (as in how do I go around the rules?).
The why will entail the following.

First, it will entail the sensitization of students to ethical dilemmas. In other
words, Legal Ethics remains in the realm of the intellectual does not cross over into the
realm of guilty-inducement but aims to ensure that the student or lawyer is
intellectually aware that his decision or action has a moral dimension. You will recall the
sage advice: The unexamined life is not worth living. Here, we compel the law student
or lawyer to examine his day-to-day choices as ethical choices, whether it is a seemingly
innocent postponement, or deferment of cross-examination to the next hearing, or less
innocent, like finding padrinos with the court.

For this, the case study is the best mechanism, not decided cases, and the seminar
or workshop type discussion is more fruitful, rather than the hard Socratic.
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Second, any serious campaign for Legal Ethics in the Philippines must look at its
sociological milieu. Already, in the United States and Japan, sociological studies abound
to examine the decline in values. For instance, Yale Law Dean Anthony Kronman, in
The Lost Lawyer, examined how the rise of the big firms weakened the attorney-client
relationship, the organic bond that is the cornerstone of all legal ethics. He noted that all
the rules of Legal Ethics were drawn in the classical age when attorneys came face-to-
face with their clients in sustained relationships of trust, and contrasted that to the
business-like transactions where the rainmaker who wins the trust of the client is
different from the workhorse who must deliver the job.

In the Philippine context, this means looking at the moral universe of the Filipino.
When we speak of conflicts of interest, how do we reconcile the legal definitions with the
true allegiances of Filipinos in real life, where all relationships are translated into kin-like
obligations? When we speak of cleansing the profession, should we not upgrade the
salaries and offices of our judges, and ensure that they maintain their stature vis--vis the
lawyers who appear before them? When we speak of justice, should we not confront
the cultural tendency toward awa (mercy) and kapwa tao (good neighborliness)?