1. www.city.ac.uk/law 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.

2. 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?

3. www.city.ac.uk/law 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”.

4. www.city.ac.uk/law Four Component Model of Morality (Rest, 1983) Reasons (or predictors) Moral Blindness Faulty Reasoning Lack of Motivation Ineffectiveness (Character or Competence) Ineffectiveness (Character or Competence) Professional Misconduct

5. www.city.ac.uk/law Four Component Model of Morality (Rest, 1983) Moral sensitivity Moral judgment Moral motivation Moral implementation Effective Professional Conduct Capacity to interpret ambiguous clues in real-life settings Moral capacity (predictors) Operational definition Capacity to analyse moral issues and provide justifications for decisions Capacity to internalise and give priority to professional values Capacity for empathic interaction and problem solving

6. www.city.ac.uk/law 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 work- place –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

7. www.city.ac.uk/law 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

8. www.city.ac.uk/law Whistleblower as hero

9. www.city.ac.uk/law Case Study: Whistleblowing

10. www.city.ac.uk/law 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.

11. www.city.ac.uk/law 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. PAC hearings examine legitimacy of lawyers’ and accountants’ behaviour. Revelations of unfairly different tax treatment of big corporations and ordinary individuals, and different penalties on corporate tax evaders and welfare benefit cheats. Parliament threatens new criminal offence of ‘aggressive tax avoidance’. Hartnett’s behaviour exposed. He took early retirement and was later reported to have a ‘lucrative’ job with HSBC.

12. www.city.ac.uk/law 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.

13. www.city.ac.uk/law 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

14. www.city.ac.uk/law 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

15. www.city.ac.uk/law 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.

16. www.city.ac.uk/law 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?

17. www.city.ac.uk/law 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.

18. www.city.ac.uk/law 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)