Category Archives: Legal Profession

Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases

Mar 24, 2011 Laurel TerryLegal Profession

Laurel Terry

For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system.   In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship.  Her voice has made a difference.  For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h). The resulting resolution, which was supported by a number of entities, was adopted. As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” and requires prosecutors to “seek to remedy the conviction” if they have clear and convincing evidence that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit.  This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors.  As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report. I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and (h), which is what the relevant entity in my home state of Pennsylvania recently recommended.

The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law.  Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.  This is a broader problem than one might realize.  For example, in 2010, the International Bar Association, the Organization of Economic Cooperation and Development, and the United Nations Office on Drugs and Crime jointly developed a survey on “Risks and Threats of Corruption in the Legal Profession.”    The Survey was distributed to IBA member and 642 professionals from 95 countries responded.  Although the Survey cautioned that its results might not be statistically significant, it also stated that the Survey represented “a first attempt to shed light” on issues that included the legal profession’s perception of corruption in their own jurisdiction.   Nearly half of the respondents stated that corruption was an issue in the legal profession in their own jurisdiction.  Approximately 20% of the responding lawyers from the U.S. and Canada thought corruption was an issue in the legal profession in their country.  (This contrasts with approximately 15% of lawyers in Australasia, 32% of lawyers in the EU, and 90% of lawyers in the Commonwealth of Independent States.) Continue reading "Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases"

Evaluating the Independence of In-House Counsel – Making Sense of Judicial Pronouncements

Feb 21, 2011 Richard ParnhamLegal Profession

Richard Parnham

Particularly for those of us who live in Europe, Suzanne Le Mire’s new paper on in-house counsel independence is an interesting addition to the existing literature. In September 2010, the European Court of Justice (ECJ) gave its final ruling in the Akzo Nobel Chemicals and Akcros Chemicals v Commission test case regarding the availability of legal privilege for corporate counsel in relation to European Union competition investigations. In the course of its judgment, the Court made some fairly forthright assertions about the lack of independence of in-house lawyers – notwithstanding that the lawyer at the centre of the case was a member of their country’s national bar association.

While the controversial ECJ judgment is discussed in Le Mire’s paper, the case is not central to the issue she wishes to discuss. Instead, Le Mire goes back to first principles: in her introduction, she briefly discusses the pros and cons for companies employing independent in-house counsel – what are the specific challenges those lawyers face? what are their advantages? Here, Le Mire cites Lewis A Kornhauser when she argues that that “independence is not a goal in itself, but a pathway to another goal, such as credibility, or breadth of knowledge”. Continue reading "Evaluating the Independence of In-House Counsel – Making Sense of Judicial Pronouncements"

Queensland Law Firms Partner with Regulators and Researchers to Improve Firms’ Ethical Culture

Jan 24, 2011 Elizabeth ChamblissLegal Profession

Elizabeth Chambliss

The American Bar Association Ethics 20-20 Commission should pay some serious attention to Australia. With the Legal Services Act 2007 slated to come into full effect on October 6, 2011, with the licensing of Alternative Business Structures for law practice in England and Wales, all eyes—well, some keen eyes, anyway—have been on the U.K. and its establishment of a regulatory framework for these new organizational forms.  But Australia has been regulating “alternative business structures” since 2001, when New South Wales became the first state to allow incorporated law practices (ILPs). Australia’s National Legal Profession Model Bill 2006 includes provisions allowing law firms to have non-lawyer directors and shareholders, and Australia, so far, has the only experience regulating publicly listed law firms. Australia,therefore, has a head start in thinking about the regulation of law practice organizations, whether they be traditional partnerships or alternative, corporate, forms.

Perhaps the most laudable feature of the emerging Australian model is its emphasis on law firm self-assessment and the collaboration this engenders between regulators, researchers, and firms. This collaboration was on full display at the 2010 International Legal Ethics Conference, in a pair of papers analyzing the data on law firm self-assessment, one from a regulatory and the other from a research perspective. Continue reading "Queensland Law Firms Partner with Regulators and Researchers to Improve Firms’ Ethical Culture"

The More We Know, the More We Know We Don’t Know

Dec 15, 2010 Kay-Wah ChanLegal Profession

Kay-Wah Chan

Carole Silver is one of the scholars who actively researches and writes on the legal profession in the context of globalization.¹  However, as Silver in this recent article reminds us, there still are many unexplored issues and unidentified data.  In this article, researchers will find an abundant source of research ideas.  Silver first stresses the significance of “sound empirical evidence” (p. 1014) for policy-makers when they formulate the regulatory framework.  She then goes on to identify the actors and activities to be investigated and the relevant data to be collected.  In addition, she also suggests possible organization(s) to house the research.

Although Silver writes from an American perspective, the research framework that she suggests, with relevant modifications/adjustments, can be adopted for other jurisdictions.  Similar data-collection and research conducted in the main economies and financial centers in the world—for example UK, Japan, China, Germany, Australia, Canada, Hong Kong, Singapore, France—will supplement each other and help in completing a reasonably comprehensive picture of the real situation of the legal services in the context of globalization. This will be useful for policy-making and enhance its credibility. Continue reading "The More We Know, the More We Know We Don’t Know"

Exposing the Regulatory Reform Agenda of Large Law Firms

Nov 3, 2010 Christine ParkerLegal Profession

Christine Parker

Lawyers and legal academics, especially in the US, have been very interested in the radical changes taking place to the regulation of the legal profession in England and Wales. These reforms will allow alternative “business structures” for law firms and put in place an independent “super-regulator” overseeing the legal profession. Similar reforms have already been instituted in Australia, generating their own share of interest. Much of the debate has focused on the possibilities of law firms incorporating and publicly listing their shares.  The most strident proponents of the new regulation welcome it as important economic innovation, while critics herald these developments as the collapse of the profession as we know it.

John Flood’s paper, “The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation”, forthcoming in Current Sociology and currently available on SSRN, provides a though-provoking analysis of how large law firms “are undermining, modifying, escaping and ultimately reconstructing professional regulation regimes.”  Flood’s paper was part of an excellent panel at the International Legal Ethics Conference in Stanford in July 2010, which included papers by Judith Maute and Andy Boon that also provided nuanced and sociologically insightful perspectives on the reforms overcoming the English legal profession. Continue reading "Exposing the Regulatory Reform Agenda of Large Law Firms"

Lessons for the Survivors

Jul 22, 2010 Sida LiuLegal Profession

Sida Liu

When one of the world’s leading authorities on the legal profession writes about the demise of law firms, we should pay some good attention to it. Arguably, the financial crisis in 2008 changed the mindset of many law firm partners and their associates around the world, but to what extent? What lessons can law firms learn from this abrupt downturn after years of expansion both domestically and abroad? John P. Heinz’s article offers insights on the reasons of corporate law firms’ continuous expansion in the past decade and why their developmental strategies led to the failure of many firms in the financial crisis.

Large corporate law firms, despite their variations in areas of practice and professional expertise, follow similar strategies in their management. As Heinz points out, competition among law firms was heightened in the late 20^th century by ready access to comparative data concerning the business of the firms. As a result, “profits per partner” has become the single most important statistic in evaluating a law firm’s performance. Indeed, a law firm chairman even described it as “our stock price” (p. 69). Heinz argues that this unitary evaluation standard has led to risky strategies in recruiting/eliminating partners and diversifying practice areas, with the goal of getting a profits per partner “higher than the next firm’s” (p. 70). When the corporate law market was booming, firms often had enough profit margins to afford those risky strategies, such as focusing on high-value financial transactions work. But now, the negative consequences are clearly seen in many large law firms across the world. Continue reading "Lessons for the Survivors"

Women and BigLaw: a New Look at the Problem

Jun 14, 2010 Carole SilverLegal Profession

Carole Silver

In the 1970s, during the rise of what was then known as the women’s movement, one popular T-shirt proclaimed: “I haven’t come a long way, and I’m not a baby.” It was a clever riposte to a high-profile cigarette ad campaign of the era that linked smoking and feminism. That T-shirt slogan is one that female lawyers at large firms today might want to adopt as their own.¹

In his new article, Eli Wald sheds light on why women in BigLaw have not yet come “a long way.”  He explains that large law firms have adopted a professional ideology of hypercompetitiveness, which has transformed the firms into sites where the opportunity to pursue a balanced life is, by definition, completely absent.  This is “bad news for women lawyers and for the prospect of greater gender equality in the legal profession.”² (P. 2287).  In fact, it’s bad news for everyone:  according to Joyce Sterling and Nancy Reichman, in the same symposium, “the long hours are taking their toll on male associates as well,” which is confirmed also by Dau-Schmidt et al in the Michigan alumni study. Continue reading "Women and BigLaw: a New Look at the Problem"

Armageddon for the Legal Profession?

May 21, 2010 Andrew BoonLegal Profession

Andrew Boon

Legal professionalism is prophesied an apocalypse with increasing frequency. The territory covered by The End of Lawyers? is the threat posed by IT.

Susskind’s big idea is that technology will create a future where lawyers are not the dominant interface between citizens and the law. Acting as a consultant to law firms on IT has confirmed his view that they suffer from conservatism, hostility to innovation and resistance to information technology. He chaired the UK Advisory Panel on Public Sector Information, currently sponsored by the Ministry of Justice, and remains the IT adviser to the Lord Chief Justice of England and Wales. His ideas are glimpsed in the directions that the UK government has taken since Susskind’s 1996 bestseller, The Future of Law. One of his   predictions, online legal communities–cross between Facebook and Wikipedia–sponsored by government surfaced in the Community Legal Service. His ideas have more traction in the UK, but are as transportable as the technology around which they are woven. Continue reading "Armageddon for the Legal Profession?"

Can Legal Education Be Globalized?

Jan 11, 2010 John FloodLegal Profession

John Flood

Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)

The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty. Continue reading "Can Legal Education Be Globalized?"

Europe’s Competition Regulators Force its Bar Associations to Reform

Nov 20, 2009 Richard ParnhamLegal Profession

Richard Parnham

I have a personal reason for reviewing Laurel S. Terry’s account of the European Commission’s recent investigation into the European professional services market. As a former senior writer on The European Lawyer magazine, I was a first-hand witness to many of the events described in her paper, including the 2003 Brussels conference she mentions.

The main purposes of Professor Terry’s paper is to describe an ongoing EU initiative, which has the stated aim of making Europe’s professions– including its legal professions–more efficient and competitive. In all likelihood, the end result of the events described in Terry’s paper will be that many of Europe’s bar associations will be forced to liberalize their regulatory frameworks. What is more, she believes that, in an increasingly globalized world, other countries may decide to follow Europe’s lead. She fears such countries may decide to conduct their own investigations into their professional services markets, using a similar methodology to that employed by the EU. Continue reading "Europe’s Competition Regulators Force its Bar Associations to Reform"