Letter by Brian Kennedy

9/5/2003 12:10 AM
Subject: Item on lack of legal ethics
Friday, March 31st, 2000
w w w . t a i p e i t i m e s . c o
By Brian Kennedy
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.