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Legally Speaking

 

Issue: October, 2006
Author: John M. Burman

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Ethically Speaking - Teaching Ethics (and other things) in Jordan

Jordan. The name meant virtually nothing to me. I knew it was a country in the Middle East and I thought it was located near Israel and Iraq (it is, it turns out, between them). But would I go there? That, I would have to consider.

It was the fall of 2004. A representative of ABA/CEELI (the American Bar Association’s Central and Eurasian Law Initiative) asked if I would go to Jordan to, with others, conduct an assessment of legal education in that country. The concept was appealing. I love to travel, and I especially love to travel and teach or consult about legal education. But why Jordan? And why me?

A friend of mine (Chris Scott), who had formerly been the Country Director for ABA/CEELI in Russia, and with whom I had worked in Russia during the summer of 2000, had moved to Jordan to work for the United States Agency for International Development (USAID). USAID is the primary funder for ABA/CEELI, and that organization was looking for some folks to conduct an assessment of legal education in Jordan, and my friend had mentioned my name.

I contacted Chris by e-mail in Jordan. “Was it safe?” I asked. “Sure,” he replied, “probably safer than Russia.” So I agreed to go, particularly as one of the other two team members was to be another friend, Professor Marcia Levy (then at Denver University School of Law, and now at Hofstra), who had replaced me in Russia as the Clinical Education Specialist for ABA/CEELI. She and I had met in Moscow, and I was eager to see and work with her again.


The Assessment

In December of 2004, I walked out of the last Torts class of the semester and onto an airplane, bound, ultimately, for Amman, Jordan. I met Marcia at DIA and Patrick Vovan (the third member of the assessment team–a French lawyer) in Amman. Over the next several days we met with dozens of Jordanians: lawyers, law students, judges, and two cabinet Ministers (the Ministers of Higher Education and the Minister of Justice) in an attempt to learn about the Jordanian legal system, in general, and the legal education system, in particular. We also visited three law schools where we had the pleasure of meeting with students, and we met with most of the deans of Jordan’s 22 law schools.

We learned a lot, though not nearly enough. We prepared a report, “Assessment of Legal Education in Jordan.” That report was part of an attempt to upgrade Jordan’s judicial system (ABA/CEELI had been invited to Jordan by the then Minister of Justice to assist in trying to improve its judiciary). While assessing the judiciary and considering how to improve it, it quickly became apparent that legal education was an integral link in the system, and it too should be addressed.

During our visit, we learned that law is an undergraduate program in Jordan, as it is in most of the world. It is “taught” almost exclusively by the lecture method, a method that really doesn’t teach much of anything, and which has been aptly described as the process by which the professor’s notes become the students’ without passing through the minds of either. As one young Jordanian lawyer said to us, the lecture method he experienced at a Jordanian law school “kills your brain.” And while changing from lectures to other methods of instruction is, in my view, a critical step in changing that perception, which is wide-spread in Jordan, and improving legal education, it is both a long-term and difficult goal.

After only a couple days in Jordan, I called my wife and told her I had made a major mistake in not having her accompany me to Jordan. “You would not like it,” I said, “you would love it.” There were, I said, three things that already stood out. First, the history and culture are fascinating (we had visited the ancient city of Petra, which is the most remarkable manmade creation I have ever seen–those of you who saw “Indiana Jones and the Last Crusade” got a glimpse of Petra when Indiana Jones entered a temple carved into the rocks in search of the Holy Grail–that “temple” is a small part of Petra). Second, the food is astonishingly good. Third, the people are wonderful. Next time, I said, I would not come alone.

Talking to judges in Jordan was not unlike talking to judges in Wyoming. We heard similar complaints about the lack of professionalism among lawyers and a general need to improve the ethical standards of the profession.

We learned that legal education in Jordan is more than attending and graduating from law school. After receiving an undergraduate degree in law, graduates who wish to become lawyers must serve a two-year apprenticeship as (unpaid) trainee lawyers working for experienced lawyers (those with more than five years of experience). The theory is good. Before becoming lawyers, trainee lawyers learn the practicalities of law practice. And from what we learned, some of the apprenticeships are very good. The lawyers involved take their responsibilities seriously and provide a good experience for the trainee lawyers. Too often, however, the apprenticeships are not a good experience. Trainee lawyers spend time as unpaid clerical help for lawyers and don’t learn a lot about being lawyers. They learn, instead, how to run errands, how to make copies, and how to make tea or coffee.

After completing the two-year training period, trainee lawyers are allowed to take the bar exam, the final step to becoming a “registered” (licensed) lawyer. The Jordanian Bar Association is responsible for registering (admitting) lawyers, and it is then responsible for regulating the practice of law, including sanctioning lawyers for violating the Code of Ethics, which, as discussed below, seldom happens.

Law schools are, of course, generally part of universities. The Bar Association then establishes the requirements for admission to the bar, including the training period. Judges don’t control or have any significant involvement in either, meaning that any systemic change requires the involvement of three different and independent groups (the universities, the Bar Association, and the judiciary). Not surprisingly, the three don’t always, or even often, agree on what should be done or how it should be done.

After our visit, we prepared the Assessment of Legal Education in Jordan, which was published and distributed in Jordan in 2005 by the ABA and USAID as part of Judicial Upgrading Strategy [in Jordan] Assessment Series. The assessment identified a number of challenges that we perceived.

To try and meet the challenges in Jordan, the assessment contained a series of recommendations, both short-term and long-term. One suggestion was to “[o]rganize a workshop to bring together the stakeholders in legal education to discuss proposals for reform, both short-term and long-term, and train the trainers about innovative and interactive teaching and evaluation methodologies.”


The Workshop

The follow-up to the assessment was a conference: “Enhancing Education at Jordanian Law Schools,” held in September of 2005. Both Professor Levy and I were invited to appear at the conference, but she was unable to attend. I agreed to return if I could borrow the ABA’s driver for an excursion to Petra (Petra is a couple hundred kilometers south of Amman) with my wife. That worked. We also managed to visit the ancient city of Jerash, built by the Romans and home to hundreds of pillars and an ancient stone road in which one can see, and feel, chariot ruts).

One of the gaps we noticed in preparing the assessment, and which was discussed at the workshop, is the complete lack of instruction about legal ethics at Jordanian law schools. Although a Code of Ethics has been in effect in Jordan since the late seventies, it is generally unknown to and not followed by many lawyers. One reason is likely that the code is not taught at any Jordanian law school, meaning that few lawyers even know about it, and even fewer have read it. The judges, however, repeatedly expressed concern about unethical conduct by lawyers in their court rooms.

The conference made several significant proposals for change, including increasing the number of credit hours required to get a law degree, making changes to the law schools’ curricula, and improving skills training at law schools. If fully implemented, legal education could improve significantly in Jordan.


The Practicum

After the conference, the ABA signed Memoranda of Understanding (MOUs) with three Jordanian law schools (the University of Jordan, Philadelphia University (Amman used to be called “Philadelphia’), and Yarmouk University), The MOUs are designed to improve teaching and learning at the law schools at the three universities.

The first step in trying to improve teaching and learning was to provide teacher training. The idea was to try and show and persuade Jordanian law professors to adopt more interactive methods of teaching, instead of relying on lectures. The ABA sponsored such a training seminar in December of 2005.

Another step was to develop a practicum for law students from the three law schools. The first two weeks were to be devoted to skills training, and the last two weeks students were to be placed with law firms, NGOs (non-governmental organizations), or government law offices. The program was entitled the “2006 Tamayyaz Practicum (“Tamayyaz” means “excellence.”)

I had the privilege of being invited to teach during the first two weeks of the practicum during June of 2006. The ABA developed an ambitious program with five areas to be covered: (1) legal ethics. (2) client interviewing; (3) legal research; (4) legal writing; and (5) legal English. Covering any one of those areas in two weeks would have been a tall order. Tackling all five was very ambitious, to say the least. I was asked to and agreed to teach legal ethics, client interviewing, and legal English.

Eleven students were selected from each of the three law schools, for a total of 33 students. We generally met from 9:00 to 1:00 or 1:30, with a half-hour break at 11:30. To say we crammed a lot into that time would be an understatement. It worked because we had a group of extremely talented and motivated students.

You may be wondering how an American who does not speak Arabic can teach to a group of Jordanian law students, many of whom are not fluent in English. (Although most Jordanian law students speak some English, and some speak it very well, only a handful of the students spoke and understood English well enough to not need translators. As a general matter, Jordanians speak English better than any non-native English speakers I have ever met. English is truly the second language of Jordan). The answer is “with the assistance of extremely good translators.” Let me explain how it worked.

I wore a wireless microphone and a wireless headset. Each of the students, aside from the three or four who did not need translation, also wore a wireless headset and had a microphone in front of him or her. I spoke in English. Translators in a booth at the back of the room heard me via the microphone, and simultaneously translated what I said into Arabic. The students then heard the Arabic translation, and not me. When I asked questions, which I am wont to do and which I do frequently, I asked them in English. The students, however, heard them in Arabic. They answered in Arabic, but I heard the answers in English.

All the translation was done simultaneously, so there was virtually no delay. The translators had to translate not just the language (English to Arabic or Arabic to English), but legal concepts as well. They were remarkable. I never had to modify what I wanted to say. We had in-depth discussions of complex legal issues, and the translators were always able to facilitate them. (Simultaneous translators work in teams. One will translate for about fifteen minutes, and then switch with the other. It is, I am told, an incredibly demanding job–which I have no trouble believing. Such translators must switch back and forth frequently, sometimes several times per minute).

With the miracle of simultaneous translation, we had classes very much like those in the U.S., or anywhere else, where everyone speaks the same language. If you don’t believe that language is power, try teaching in a language that most of the students don’t understand, and have them answer in a language that you do not understand.

I found that the students were much like students in America, or in Russia, where I have also had the pleasure of teaching extensively. They want to learn to be lawyers. And they don’t want to be bored. Consequently, they leapt at the chance to learn some of the skills that lawyers need and use every day. Interviewing clients, for example, was a foreign concept (foreign in that they had received no training in doing it; not foreign in that lawyers in Jordan need to know as much about interviewing clients as lawyers in the U.S.), something that all the theoretical knowledge in the world will not teach. And yet there may be nothing that lawyers do more than talk to prospective or actual clients.

The only way to learn the skills lawyers need, in my book, is to practice them. To teach client interviewing skills, for example, we had students interview each other while they were observed and critiqued by their peers. While that may not sound like a novel concept, it is not a required part of the curriculum at most law schools in this country, or anywhere else. One may, in the U.S., graduate from law school, pass the bar, and receive a license to practice law and have never talked to a client or learned or practiced how to do it. (Maybe that’s why it’s “the practice” of law–we really don’t know what we’re doing, at least for quite a while). One can, of course, participate in client-counseling competitions, clinical programs, and/or courses such as lawyering skills which provide excellent training in how to talk to clients or prospective clients.

In Jordan, students generally do not have the option of learning how to interview clients, even if they want to, and unless they learn how to interview clients during their apprenticeship, they never have the chance to learn such skills. They just start practicing.

Teaching legal ethics in one day (four hours) to students who had had no exposure to the field was an interesting challenge. At the University of Wyoming, as at all ABA accredited law schools, a course in legal ethics, called “Professional Responsibility,” is a required subject. The required class meets three hours per week for 14 weeks, for a total of 42 hours. That amount of time allows for comprehensive coverage of a subject that may be the most important, at least in terms of the time lawyers spend thinking about ethical issues, of any in law school. Compressing that into four fours meant that many topics could not even be mentioned.

I decided to focus on three areas: (1) why worry about legal ethics? (2) the importance of client confidentiality; and (3) the importance of detecting and avoiding conflicts of interest. Even focusing on those three areas was a lot for four hours.

As mentioned earlier, the Jordanian Bar Association is the authority which regulates the admission and conduct of lawyers in Jordan. Pursuant to that authority, it adopted a Code of Ethics in 1979. Although the code is somewhat dated, it covers many of the areas that are traditionally covered by such codes, including confidentiality and conflicts of interest. I had been provided a copy of the Jordanian code in English. It served as the basis for our discussion of legal ethics.

First, the code provided a general framework for discussing the importance of legal ethics. Second, it addresses the issue of confidentiality in some detail, including creating exceptions to the duty, and even a duty to disclose information in certain circumstances. Third, the code emphasizes the importance of ensuring loyalty to a client by avoiding certain conflicts of interest.

The starting point for any discussion of legal ethics is the nature of the relationship between a lawyer and his or her client. And while the specifics of law vary from country to country, the nature of the relationship is essentially the same. A lawyer represents a client, not the lawyer’s own interests. Once students understand that general concept, the specifics make sense. Unless students have discussed the nature of the relationship, however, they haven’t really thought about or figured out what they will be doing during their careers.

Learning of any kind is generally enhanced by examples. To introduce both the concept of confidentiality and the prevalence of conflicts of interest, we used short role plays, which served to highlight the issues. To illustrate the tension between client confidentiality and the safety of others, a client made a threat to a lawyer to harm another person. The question then becomes how far the duty of confidentiality should extend. Conflicts of interest were shown by having two parties to a commercial transaction come to one lawyer with a request to write up their supposed agreement. The conflicts arise when it becomes clear the parties have not thought of “details,” such as when delivery should occur and how payment should be made. The same issues arise here, and in every other country, though the answers may be different given the relevant codes of ethics.

When the issue of client confidentiality clashes with protecting others from possible harm, Jordan takes a much different approach than we do in Wyoming, but one that is taken in a number (eleven) of other U.S. jurisdictions. That is, the need to protect others takes priority over a lawyer’s ethical duty of confidentiality.

In Wyoming, the new rules that became effective on July 1, 2006, continue the principle that lawyers should be given discretion, at least ethically, to determine whether to disclose a client’s intent to cause harm to another: “A lawyer [in Wyoming] may reveal [confidential] information to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a criminal act.” The commentary to the rule makes it clear that the lawyer need not, however, reveal such information. “The lawyer has professional discretion to reveal information in order to prevent such criminal acts . . .” Whether the lawyer has a legal duty (arising out of the law of torts) is not clear, although there is authority to suggest that such a duty exists, and the author has taken the position that such a duty should exist.

Jordan takes a different ethical approach. Instead of giving lawyers discretion to reveal potential harm to another, a Jordanian lawyer must reveal such information.

While the general rule is similar: “The lawyer shall keep the secrets of his client . . . [and t]his duty includes those who work in his office . . . ,” disclosure is sometimes required. The rule of confidentiality shall not apply ”[i]n case the client has announced his intention to commit a crime, so that the lawyer shall make the disclosure to the limit and scope which prohibits the consequences of the crime, or to the limit that protect the person who might get hurt.” Which approach is “right,” is a question that can be discussed endlessly. Whatever the answer, lawyers must know, however, what the ethical obligation is in the jurisdiction where they practice.

Wyoming lawyers must avoid certain conflicts of interest. “A lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” The rule in Jordan is similar: “The lawyer shall be devoted and dedicated to his duty towards the client . . . The lawyer shall refrain from . . . [r]epresenting conflicting interest.” Although the term “conflicts of interest” is not defined in Jordan, the concept is the same.

Four hours of legal ethics cannot, of course, replace a full course devoted to that subject. It can, however, raise some questions that will cause students to think about what they are doing and what they will be doing, both now and in the future.

Teaching interviewing skills does not vary much. As mentioned above, the heart of teaching skills is practicing them, not listening to someone talk about how to do them. As in Wyoming, students appeared to thoroughly enjoy the chance to practice interviewing, and, as here, they are always surprised at how much they have not learned, and that there is more to interviewing a client or prospective client than just talking to him or her.

After the students had completed interviewing each other, I wanted some exercise to try and pull everything together and involve as many of them as possible in doing so. I could not figure out what to do, so I asked Marilyn, my wife. She suggested a group interview, in which all the students were a firm and I was the prospective client. Each student would be allowed to ask one question or make one statement. So that’s what we did. The idea worked very well. Each of the 33 students either asked me a question or informed me of some important concept, such as client confidentiality. While some of the questions and/or statements were not particularly good (and most of the students wanted to redo theirs as soon as he or she had had a turn), collectively the students did very well. And I hope they started to see the importance of planning and structuring an interview.

After finishing client interviewing, I got to relax for a few days. Professor Paul Brietzke, on leave from Valparaiso University School of Law, taught legal research, and Eric Putzig, the Assistant Director for ABA in Jordan, taught Legal Writing.

After Legal Writing, we spent a few days on Legal English, a subject that is not, of course, taught in the U.S. The idea, in a country such as Jordan, is to discuss the importance of English to the practice of law. (As virtually all international transactions are now done in English, it is really not possible for a Jordanian lawyer to have much of a practice unless he or she is fluent in English and can represent English-speaking clients who want to do business in Jordan, or Jordanian clients who want to do business with individuals or entities in other countries.) In addition to discussing the value of English, the students compared some American law with similar laws in Jordan–laws, that is, which appeared similar but upon careful reading lead to dramatically different results.

Since the English language ability of the students varied considerably, I divided them into four firms, each of which contained at least one student who was fluent in English. They then had to work through the American and Jordanian laws and write a memo, in English, for me. Their work was remarkably good.

We finished the classroom component of the practicum by having students participate in a role-play which raises the issue of whether a prosecutor can ethically imitate a defense lawyer, with the objective of saving at least one life. As here, where I have used the same role-play with lawyers and students, the scenario resulted in persons taking completely different sides, and realizing, I hope, that law is difficult. There is generally no easy answer, only arguments for more than one side and different policies to encourage. And somewhere in there, lawyers have to represent their clients, not just themselves.

My reaction to the classroom part of the practicum was to rate it as among the best teaching experience of my life. Asking a teacher to evaluate a class, however, is sort of like asking a fisherman to evaluate fishing. You really need to talk to the fish (or the students). Here is what a few of them had to say, in their own words.

“[T]hank you about tamayyaz program its very interesting and very important.”

“[I] can say that i was really fortunate for having the chance to get useful information and tips . . .”

“[T]he programme was very good . . .”

The long-term effect of efforts to change legal education, of course, cannot be measured in the short-term. And even assuming the long-term effect is beneficial, only a small fraction of the law students in Jordan took part in or will take part in such practica. Nevertheless, we all know that Rome was not built in a day, and legal educational reform, whether in this country, Russia, or in Jordan, takes time, and happens incrementally, one person at a time.

The biggest mistake we could make is to want or expect dramatic, measurable results in a relatively short time. We need, instead, to believe in and support the process, knowing that the fruits of our labors may be years, or even decades, away.


John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu.


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