Apr 2, 2012 Laurel TerryJotwellLegal Profession
Australia is the home to some of the world’s most interesting and provocative legal profession developments. For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms. Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms. As a result, Australia became the site of the world’s first publicly traded law firm. Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.
As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons. Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales. Continue reading "Regulation and Theory: What Does Reality Have to Do With It?"
Mar 24, 2011 Laurel TerryLegal Profession
Ellen Yaroshefsky,
Foreword to Symposium,
New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31
Cardozo L. Rev. 1943 (June 2010),
available at SSRN.
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"
Dec 6, 2019 Amy SalyzynLegal Profession
Elizabeth Chambliss,
Evidence-Based Lawyer Regulation, 97
Wash. U. L. Rev. 297 (2019), available at
SSRN.What should a modern legal service regulator look like? In some jurisdictions, like England and Wales, this question has resulted in dramatic reforms, such as taking the power of self-regulation away from lawyers. In contrast, much of the regulatory change in North America has involved relatively low-hanging fruit. Some new duties have been incorporated into codes of conducts, some economic restrictions have been lifted, and certain processes have been professionalized. There hasn’t been, however, any radical change.
For many years, the North American legal profession has defended this regulatory stasis with relatively simple appeals to broad concepts such as the “independence of the bar,” “the public interest,” and “professionalism.” In her recent article, Evidence-Based Lawyer Regulation, Elizabeth Chambliss argues that this approach is no longer sustainable and that “the profession’s authority over the regulation of legal services increasingly will require a commitment to evidence-based regulation.” In other words, if the legal profession wants to introduce—or even maintain—regulatory policies, it must offer convincing empirical data in support of such policies rather than simply lean on well-worn rhetoric. Continue reading "Building Better Lawyer Regulators"
Dec 2, 2011 Carole SilverJotwellLegal Profession
Two years ago I had an opportunity to attend the “Future(s) of Professional Services Programme” organized by Harvard Law School and Oxford Said Business School. It was a terrific conference in many respects, not least for its interdisciplinarity, bringing together scholars from business and law whose work focused on professional service firms. As a lawyer studying law firms in the context of globalization, the insight of the business scholars was enlightening: by placing law firms in the larger context of professional service firms and by bringing the framework of management and strategy to bear on the study of law firms, legal scholars gain a new perspective from seeing the same picture from a different vantage point.
In truth, conversations with law firm leaders and others that have informed my own work on globalization and the legal profession indicate that decisions about law firm globalization and strategy are neither so clean nor logical as some of the management and strategy school research suggests. Rather, law firms’ activities with regard to globalization often are as much reactive and opportunistic as strategic. Nonetheless, the analysis of the business school scholars reflects the reality of regulation outside of the US, in that regulators involved in international as well as foreign regulation of their domestic legal profession increasingly are not trained as lawyers and have little incentive to treat lawyers particularly differently than other professional service providers (see, for example, Laurel Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”). Continue reading "The Benefit of an Exterior View: Looking at Lawyers from an Outsider’s Perspective"
Oct 19, 2011 John FloodLegal Profession
Milton C. Regan, Jr.
Taxes and Death: The Rise and Demise of an American Law Firm, in Austin Sarat, ed.,
Law Firms, Legal Culture, and Legal Practice, 52
Stud. in Law, Politics, and Society 107 (special issue) (2010), available at
SSRN.Milton Regan has chronicled the troubled times of law firms before in Eat What You Kill: The Fall of a Wall Street Lawyer (2004). On both occasions the firms appear to have undergone profound changes in culture that have eventually destabilized them and either wrought dire consequences for the lawyers or caused the death of the firm. Regan is a methodical obituarist.
He ascribes two underlying causes to these cultural shifts. One is the tenuous hold a law firm has on its share of the market. Lawyers might move taking clients with them or new specialist firms might aggressively shift into an established market drawing business away from others. The firm’s mix of top quality work may get diluted with less valued work. The second is the organizational dynamics of the law firm. Law firms operate under continuing centrifugal forces as practice groups proliferate and new rainmakers join putting management in the position of persuading and cajoling others to stay. Emmanuel Lazega refers to these factions as composing a Montesquieu structure of interlocking competing networks. And there is the everpresent problem of ethical fading—lawyers inured to certain liminal behaviours—when lawyers may no longer realize how their behaviour may be characterized. There are two absences in Regan’s analysis: one is the role of regulation and its interaction with ethics and the other is the rise and domination of the professional services firm. Continue reading "When Law Firms Forget Their Culture…"
Oct 27, 2009 Tanina Rostain and John FloodLegal Profession
An invitation from the Legal Profession Section Editors
John Flood and Tanina Rostain
As legal profession scholars have observed, law practice is being reinvented at an ever-accelerating speed the world over. Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled—among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online shared platforms. In the corporate realm, multinational companies demand that their lawyers be available to provide services 24/7 in every corner of the globe. In the meantime, lawyers representing individuals, non-profits, and NGOs increasingly use new technologies and transnational resources and strategies to develop more effective and efficient models of service delivery. Despite this rapid pace of change, many lawyer regulatory regimes lag behind and continue to hew to a model of regulation tied to geographical jurisdiction and domestic legal norms.
In recent years, the field of the legal profession has benefitted from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession. Researchers have drawn on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings. Continue reading "An Invitation to a Global Discussion on the Legal Profession"
Nov 20, 2009 Richard ParnhamLegal Profession
Laurel S. Terry,
The European Commission Project Regarding Competition in Professional Services,
29 Nw. J. Int’l L. & Bus. (forthcoming 2009),
available at SSRN.
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"
Oct 26, 2009 Michael FroomkinLegal Profession
Legal Profession Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor John Flood
University of Westminster School of Law Continue reading "Meet the Editors"
