Online research in philosophy

Comparative case studies of lawyer deviance and discipline offer a unique perspective on how and why lawyers misbehave, how regulatory bodies respond, and the efficacy of those responses. Such studies also provide valuable pedagogic tools, opening the eyes of law students to the ways in which they, too, could transgress ethical rules. This special issue builds on my two books on misbehaving lawyers in New York and California by presenting vivid accounts of such lawyers in the UK, Canada, Australia, New (...) Zealand, and the Netherlands. (shrink)

The handling of cases under the Coal Health Compensation Schemes, set up in 1999 to compensate miners suffering from workplace medical conditions, resulted in over 100 solicitors from more than 30 firms facing disciplinary proceedings. Three were struck off, three suspended and over forty fined following the largest investigation ever mounted by the regulator. This article examines the political and regulatory context of the scandal, describes one of the cases presented to the Solicitors' Disciplinary Tribunal and examines the relevance of (...) theories of transgression to professional disciplinary matters. It concludes by considering the regulatory impacts and implications of the scandal. (shrink)

Governance and discipline of the legal profession is a highly topical issue in the New Zealand and has been the subject of recent reform, with a move to a more co-regulatory structure. An explanation of that context follows, together with an overview of how the Disciplinary Tribunal under the Law Practitioners Act 1982 and its successor under the Lawyers and Conveyancers Act 2006 approach strike-off or suspension as the penalty in what would currently be termed 'misconduct' cases. Case studies and (...) comparisons of the responses under the prior and current regimes are included. Finally some conclusions are drawn about whether the sanctioning of lawyer deviance is changing. (shrink)

Inspired by the work of Richard Abel, the authors conduct a N=1 study into the career path and disciplinary records of a Dutch immigration advocate. Their aim is to offer explanations as to why some lawyers seem so impervious to discipline. The authors analyse the case from three different angles: (1) characteristics of the disciplinary system (2) the social network of the advocate in question, including his professional network, and (3) the advocate?s personality. According to the authors, the key to (...) explaining non-compliance with ethical rules lies in the interaction between these three perspectives. In the case of the immigration lawyer a lack of professional socialization and the fact that he operated on his own, without substantial feedback or criticism from his social network were important explanatory factors. The article also offers a detailed insight into the effects of an accelerated disciplinary proceeding in which a local bar president ex officio assumes a new role. (shrink)

This article tells the story of attempts to improve the regulation of lawyers in Victoria, Australia 1975-2012. It also tells the parallel story of one Victorian solicitor, Issac Brott, who was the subject of multiple complaints about his conduct during that same period of time but against whom professional discipline proved both ineffective and irrelevant.

Peter A Joy reviews Assessing Lawyer's Ethics: A Practitioner's Guide by Adrian Evans.

Lawyer misbehaviour occurs in every country and regulators often struggle to address it effectively. This article looks at six case studies of disciplined lawyers in Australia, Canada, the Netherlands, New Zealand and the United Kingdom. It notes the similarities in the cases and to disciplined lawyers previously described in case studies in the United States. In particular, these case studies involved male lawyers predominantly working in solo or small firms who were insufficiently exposed to positive professional values early in practice. (...) They were willing to lie to achieve their goals and were motivated, at least in part, by money. The article considers how the love of money, the behavioural disposition known as Machiavellianism, and the need to maintain self-esteem may have affected the lawyers' conduct. It also discusses the need to deal more effectively with recidivists, like the lawyers in these case studies, and identifies some possible regulatory responses to recidivism. (shrink)

This paper tests Harry Arthur's theory that there is an “ethical economy“ of lawyer regulation in Canada, in which Canadian law societies use their regulatory powers only in high reward/low risk cases - ie, where the practitioner is less likely to resist their authority and the offence is morally unambiguous. Analysing reported cases from 2009 in British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia the paper concludes that Arthurs' description still accurately characterises the regulation of lawyers by Canadian law societies. (...) The paper then conducts a case study of law society and court cases related to one Canadian lawyer, Anthony Merchant, to assess whether the ethical economy is inevitable, or whether a different approach to lawyer regulation can and should be undertaken. (shrink)

Alice Woolley reviews Crime and Guilt by Ferdinand von Schirach.

On 1 August 2008 the Lawyers and Conveyancers Act 2006 came into force. It provides the terms of the current regulatory bargain struck between the state and the New Zealand legal profession. Barely 16 months later the profession was served notice that the basis of that bargain might radically change. To an academic lawyer with a practising certificate, this is both a tantalising research opportunity as well as a professionally unsettling prospect. Part 1 of this paper explores the current regime (...) of co-regulation in New Zealand, barely bedded down after substantial reform. Part 2 suggests some potential case studies where such failure to exhibit integrity is egregious and traverses the impediments to researching why such lawyers fail. Part 3 asks whether a wholesale change to external regulation would better advance competency and integrity and reduce lawyer deviancy. (shrink)

Philosophical discussions of legal ethics should be oriented around the generative problem , which asks two fundamental questions. First, how does the lawyer's role generate reasons? Second, what kinds of reasons can this role generate? Every extant theory of legal ethics is based on a solution to the generative problem. On the generative method , theories of legal ethics are evaluated based on the plausibility of these solutions. I apply this method to three prominent theories of legal ethics, finding that (...) none is based on a fully satisfactory solution to the generative problem. This method has important implication for the study of legal ethics. Philosophically, it moves theoretical debates about legal ethics closer to other debates about the sources of normativity, like those concerning promises. Further, this method identifies a realworld dimension to these theoretical debates. Focusing on the generative problem allows for the empirical verification of hypotheses about legal ethics that have, to date, largely been conjectured. (shrink)

Many suggest that professionalism as traditionally understood is all but dead in today's legal marketplace. Some scholars believe that 'professional' orientations based on managerialism and influenced by profitability have seen the demise of the lawyer's traditional professional identity. This paper argues otherwise. A pilot qualitative study of new Australian lawyers indicates that professional ideals can still flourish. Participants both understood the traditional ideals and sought to incorporate them in their own developing sense of professionalism. This paper reviews the experiences of (...) 11 early-career Australian lawyers in their first year of practice. Preliminary results suggest that certain experiences are crucial to developing and retaining a broad sense of professionalism: finding a balance between autonomous/independent work and close mentoring and supervision; realizing that legal practice is not merely a rational and rule-based activity, but one that involves ongoing uncertainty, including the uncertainly of dealing with 'real' people displaying 'real' emotions; and reaching a comfortable 'value convergence' between one's own values and those modelled by colleagues. (shrink)

The objective of this paper is to discuss the tradition of adversarialism as it relates to mediation and to suggest ways in which good practice can be encouraged amongst mediation advocates. Mediation is a key mechanism for dispute resolution in the English and Welsh jurisdiction. The practice of the lawyers involved in the mediation process is shaped by various factors including training, codes of practice, behavioural norms and court guidance. The default skill set the legal professionals bring to the process (...) is founded on the principle of adversarialism which is not suited to the core values of mediation. The developing professional group of mediation advocates, many of whom are from the legal professions, may benefit from a voluntarily assumed code of practice. The alternatives are to include provisions covering behaviour in mediation into existing codes of conduct for legal professionals and the adoption of more collaborative pre-meditation agreements which include lawyers. A combination of these measures is recommended as a way to assist the process of realignment of the advocate role from that of legal adversary to collaborator. (shrink)

This article is currently available as a free download on ingentaconnect.

Descriptions of the relationship between lawyers and journalists range from 'uneasy' and 'sometimes prickly' to 'strained and often combatant.' This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both lawyers (...) and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles which guide lawyers' interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist's lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public. (shrink)

This article is currently available as a free download on ingentaconnect.

Conflict of interest has been a leading issue in the Canadian legal profession over the last three decades, and it shows no sign of abating. No other issue has so consistently and dramatically dominated both the practice of law and its regulation in Canada. This article describes the conceptual and political battles that have been fought over conflicts of interest in Canada during this time. These battles reveal deeper ontological divisions about the practice of law in Canada. The clash over (...) conflicts of interest exposes competing conceptions of what it means to be a lawyer in Canada in the twenty-first century and how the legal profession should be governed. The conflicts of interest debate increasingly centres on the duty of loyalty owed by lawyers to their clients. (shrink)

This article examines the influence of the City law firms, operating through their representative body, the City of London Law Society, in shaping the ?professional rules governing conflicts of interest in England and Wales, including a recent failed attempt to allow firms to act for sophisticated clients on either side of the same transaction.? It compares English developments with those in the US and Canada finding that, in all three, it is argued that conflicts rules should be relaxed to meet (...) the needs of sophisticated clients and address the economic realities of legal practice. It argues however that in England the CLLS lobbied for change to promote the economic interests of large law firms whilst paying scant regard to the public interests in publicly owned companies having independent representation, in lawyers maintaining independence from powerful clients, in promoting competition, and in maintaining public confidence in the profession. ?It considers what this tells us about corporate lawyers? approach to their professional role. Finally it considers the future of conflicts regulation in large firms in England and Wales given the introduction of alternative business structures and the move to principles based, outcomes focussed, and entity regulation. (shrink)

In Australia, since 2004, there has been a move to expand the range of models for legal practice. Lawyers may now incorporate a legal practice, which may have non-legal directors and shareholders. They may also enter into a partnership with a range of non-legal professional partners. This change is happening at the same time that legal practice culture is moving from a professional service model to a business-oriented model. Increased pressures have been thrown into the mix by the global financial (...) crisis and the downturn in the legal market. Inevitably, these changes have created new conflict problems. When a lawyer is responsible to both clients and shareholders, how can that conflict be resolved? What are the roles of non-legal directors or partners? What if they have ethical or legal duties which conflict with a lawyer?s duty to a client? When a corporate legal business is listed on the stock exchange, what pressure may that bring to bear on the business model of the legal practice? How can all of these issues be resolved in grim financial times? The author will examine all of these issues in light of Australian and international experiences with new lawyering patterns and the global financial crisis. (shrink)