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Ethics must be more than myth

I was recently shocked to learn two things about the Taiwanese legal system. First, legal ethics and professional responsibility are not, generally, taught in Taiwan's law schools. Second, legal ethics and professional responsibility are not tested on the Taiwan Bar exam.

These are major failings on the part of the Taiwanese legal education and admission system. They are failings that need to be remedied as part of our move towards legal modernization.

By way of contrast, in California, legal ethics is a required course in any approved law school, either as a one semester class or a full year. After the second year of law school, students must take the California State Bar's examination on professional ethics. Failure to pass that test makes the student ineligible to take the full bar exam at the end of their law studies.

I would strongly advise the Taiwan Bar examiners to implement a similar arrangement in the very near future. It is important that legal ethics be both taught in the law schools and tested on the Taiwan Bar exam. The reason for the emphasis on ethics being tested is the fact that law students anywhere, but particularly in Taiwan, tend to ignore any subject which is not to be tested.

Placing legal ethics on the bar exam, or as a separate test prior to the exam, would highlight the importance that the Taiwan Bar examiners place on the subject.

The ethics test should consist of a number of "real life hypotheticals" which require the test taker to examine the facts of the case, determine what the legal ethics issue or issues are, apply the law and come to a conclusion. The test should not consist of simply reciting what the "rule" is.

The reason for this is two-fold; first I noticed during the year I taught at Soochow School of Law that Taiwanese law students are long on memorization and very short on the ability to practically apply what they have so diligently memorized. Unfortunately our educational system seems to have raised a generation of parrots. It is time to change that, particularly in the professional schools.

The second reason for a focus on "real life hypotheticals" is that in real life, ethical problems do not come neatly packaged in a way that allows an attorney to simply regurgitate a "rule" and have the solution. Ethical problems in real life law practice tend to be factually confusing and generally fall into a gray area.

I would make the same comments regarding the teaching of legal ethics. It is not enough for the law professor to simply sit up at the podium and recite a long list of rules that the diligent law students write down and memorize. Teaching legal ethics must go beyond that to examine real cases, to understand the rhyme and reason behind the rules. Legal ethics education must engage the law students in practical problem solving and decision making.

Attorneys in any society wield considerable authority and power. To handle that authority, that power, responsibly requires a strong code of ethics and professional responsibility. Towards that end the Taiwan Bar needs to institute, at the earliest possible date, legal ethics testing into the bar exam. Otherwise the old joke will continue to be true: What do unicorns, leprechauns and honest attorneys all have in common? They are all mythical beasts.

Brian Kennedy is a member of boards of Amnesty International Taiwan and the Taiwan Association for Human Rights.
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