Pub Date : 2016-07-02DOI: 10.1080/1460728X.2016.1240882
Anna J. Lund
Professional regulatory bodies can be empowered to suspend a regulated member’s licence, pending payment of a fine or costs award made against the member. Previous case law from the Alberta Court of Appeal suggested that a regulated member could not avoid this manner of licence suspension by making use of insolvency proceedings. This precedent appears to have been overtaken by two recent Supreme Court of Canada (‘SCC’) decisions. These recent decisions on insolvency law limit the ability of professional regulatory bodies, including legal regulators, to discipline their members. The cases – Alberta (Attorney General) v Moloney (‘Moloney’) and 407 ETR Concession Co v Canada (Superintendent of Bankruptcy) (‘407 ETR’) – involved licence suspension provisions, which allow regulators to deny an individual the benefit of a licence until the individual pays a specified debt. The SCC was asked whether a regulator could continue such a suspension once the underlying debt had been discharged (that is, released) in bankruptcy. The SCC answered ‘no’. This update describes the prior precedent, how it has been overtaken by the 2015 SCC decisions and how Canadian professional regulatory bodies can continue to protect the public and maintain the integrity of their professions within the constraints set by insolvency law.
{"title":"Insolvency law’s limits on the disciplinary powers of professional regulators: an update from Canada","authors":"Anna J. Lund","doi":"10.1080/1460728X.2016.1240882","DOIUrl":"https://doi.org/10.1080/1460728X.2016.1240882","url":null,"abstract":"Professional regulatory bodies can be empowered to suspend a regulated member’s licence, pending payment of a fine or costs award made against the member. Previous case law from the Alberta Court of Appeal suggested that a regulated member could not avoid this manner of licence suspension by making use of insolvency proceedings. This precedent appears to have been overtaken by two recent Supreme Court of Canada (‘SCC’) decisions. These recent decisions on insolvency law limit the ability of professional regulatory bodies, including legal regulators, to discipline their members. The cases – Alberta (Attorney General) v Moloney (‘Moloney’) and 407 ETR Concession Co v Canada (Superintendent of Bankruptcy) (‘407 ETR’) – involved licence suspension provisions, which allow regulators to deny an individual the benefit of a licence until the individual pays a specified debt. The SCC was asked whether a regulator could continue such a suspension once the underlying debt had been discharged (that is, released) in bankruptcy. The SCC answered ‘no’. This update describes the prior precedent, how it has been overtaken by the 2015 SCC decisions and how Canadian professional regulatory bodies can continue to protect the public and maintain the integrity of their professions within the constraints set by insolvency law.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":"19 1","pages":"320 - 323"},"PeriodicalIF":1.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2016.1240882","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59985105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/1460728x.2016.1209811
A. Boon
ABSTRACT This article analyses the regulatory handbooks produced by the new regulators for solicitors and barristers, the main legal professions in England and Wales, following the Legal Services Act 2007. It focuses on the new codes of conduct and the 10 high-level regulatory standards that are a feature of each handbook. The article examines the ways in which key interests have been dealt with in the handbooks from the perspective of the historical narratives of the legal professions and their publications, including their previous codes of conduct. It is found that the barristers’ and solicitors’ codes project different ethical orientations towards the supposedly universal ‘standard conception of the lawyer’s role’ based on the principles of neutrality and partisanship. The origins, meaning and significance of the high-level standards are considered. They are found not to reflect the content of the codes of conduct or to communicate cherished elements of the professions’ historical narratives. It is argued that this is problematic in terms of the professional functions of regulation, education and communication.
{"title":"The legal professions’ new handbooks: narratives, standards and values","authors":"A. Boon","doi":"10.1080/1460728x.2016.1209811","DOIUrl":"https://doi.org/10.1080/1460728x.2016.1209811","url":null,"abstract":"ABSTRACT This article analyses the regulatory handbooks produced by the new regulators for solicitors and barristers, the main legal professions in England and Wales, following the Legal Services Act 2007. It focuses on the new codes of conduct and the 10 high-level regulatory standards that are a feature of each handbook. The article examines the ways in which key interests have been dealt with in the handbooks from the perspective of the historical narratives of the legal professions and their publications, including their previous codes of conduct. It is found that the barristers’ and solicitors’ codes project different ethical orientations towards the supposedly universal ‘standard conception of the lawyer’s role’ based on the principles of neutrality and partisanship. The origins, meaning and significance of the high-level standards are considered. They are found not to reflect the content of the codes of conduct or to communicate cherished elements of the professions’ historical narratives. It is argued that this is problematic in terms of the professional functions of regulation, education and communication.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":"19 1","pages":"207 - 233"},"PeriodicalIF":1.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2016.1209811","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59985009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/1460728X.2016.1243861
S. Villios
The potential for those who have been overlooked or excluded by a testator to contest a will is a real risk, and it raises the possibility that a practitioner involved in drafting the will could fa...
{"title":"Will drafting – clarifying the scope of the duty owed by a solicitor to a client and to the intended beneficiaries in Australia","authors":"S. Villios","doi":"10.1080/1460728X.2016.1243861","DOIUrl":"https://doi.org/10.1080/1460728X.2016.1243861","url":null,"abstract":"The potential for those who have been overlooked or excluded by a testator to contest a will is a real risk, and it raises the possibility that a practitioner involved in drafting the will could fa...","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":"19 1","pages":"328 - 330"},"PeriodicalIF":1.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2016.1243861","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59985234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/1460728x.2016.1209810
P. Baron, L. Corbin
ABSTRACT Over recent years, lawyer misconduct and regulation of the profession have been topics of considerable interest. Yet, when the topic of legal ethics is raised, the focus tends to be on lawyer conduct external to the firm: lawyer conduct in court; lawyer conduct vis-a-vis client; or lawyer conduct vis-a-vis opposing counsel or the judiciary. The recent National Attrition and Re-engagement Study (NARS), however, raises a different aspect of legal professional ethics. This Report found a widespread incidence of bullying, intimidation, discrimination and harassment within law firms, primarily affecting though not confined to, female lawyers. Of course, bullying and associated behaviours are not confined to the legal profession. But these behaviours are at odds with a profession that purports to be deeply concerned with the ethical conduct of its members. Arguing that ‘ethics begins at home’, this paper suggests NARS raises uncomfortable questions about legal professional ethics: if law firms cannot treat their own staff members ethically, what does that say about the firm’s approach to ethical conduct more generally? And if this culture is as widespread as the report suggests, what does this say about the ethics of the legal profession as a whole?
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Pub Date : 2016-07-02DOI: 10.1080/1460728X.2016.1247538
F. Bartlett
Advocates’ immunity protects both barristers and solicitors from civil suit where their impugned actions are performed in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’. In May this year, the Australian High Court handed down their decision in Attwells v Jackson Laic Lawyers Pty Ltd in which they retained the advocates’ immunity doctrine in Australian law. The decision described here, therefore, changed little in Australian law. It also continued this jurisdiction’s outlier status as the only country to make advocates completely immune from civil liability. Many had predicted a different result. For some time, there has been a growing body of academic critique, and some case law, suggesting that a change is needed. When Australian courts in Giannarelli v Wraith accepted the English doctrine from Rondel v Worsley in 1988, there was some critical commentary. Nearly 20 years later, in the D’Orta decision, the High Court affirmed the immunity, but narrowed the ‘central justification’ for its retention to protecting ‘finality of judgments’ from collateral attack; ‘the principle that controversies once resolved are not to be reopened except in a few narrowly defined circumstances’. This is of particular importance, the Court said, because judicial decisionmaking is to be conceived ‘as an aspect of government of society’.
辩护人的豁免权保护大律师和初级律师免受民事诉讼，如果他们的受质疑行为是在法庭上进行的，或“在法庭外进行的工作导致影响案件在法庭上进行的决定”。今年5月，澳大利亚高等法院宣布了他们在Attwells v Jackson Laic Lawyers Pty Ltd案中的判决，他们在澳大利亚法律中保留了辩护律师的豁免原则。因此，这里所述的决定对澳大利亚法律几乎没有改变。它还延续了这个司法管辖区作为唯一一个使律师完全免于民事责任的国家的例外地位。许多人预测的结果与此不同。一段时间以来，越来越多的学术批评和一些判例法表明，需要做出改变。1988年，当澳大利亚法院在Giannarelli v Wraith案中接受了Rondel v Worsley案中的英国原则时，出现了一些批评性的评论。近20年后，在D ' orta案的判决中，高等法院确认了豁免，但将保留豁免的“核心理由”缩小为保护“判决的终局性”免受附带攻击;“争议一旦解决，除非在少数特定情况下，否则不得重提的原则”。最高法院表示，这一点尤为重要，因为司法决策应被视为“社会治理的一个方面”。
{"title":"Remaining the same, staying different – Attwells v Jackson Lalic Lawyers","authors":"F. Bartlett","doi":"10.1080/1460728X.2016.1247538","DOIUrl":"https://doi.org/10.1080/1460728X.2016.1247538","url":null,"abstract":"Advocates’ immunity protects both barristers and solicitors from civil suit where their impugned actions are performed in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’. In May this year, the Australian High Court handed down their decision in Attwells v Jackson Laic Lawyers Pty Ltd in which they retained the advocates’ immunity doctrine in Australian law. The decision described here, therefore, changed little in Australian law. It also continued this jurisdiction’s outlier status as the only country to make advocates completely immune from civil liability. Many had predicted a different result. For some time, there has been a growing body of academic critique, and some case law, suggesting that a change is needed. When Australian courts in Giannarelli v Wraith accepted the English doctrine from Rondel v Worsley in 1988, there was some critical commentary. Nearly 20 years later, in the D’Orta decision, the High Court affirmed the immunity, but narrowed the ‘central justification’ for its retention to protecting ‘finality of judgments’ from collateral attack; ‘the principle that controversies once resolved are not to be reopened except in a few narrowly defined circumstances’. This is of particular importance, the Court said, because judicial decisionmaking is to be conceived ‘as an aspect of government of society’.","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":"19 1","pages":"324 - 327"},"PeriodicalIF":1.0,"publicationDate":"2016-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2016.1247538","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59985298","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-07-02DOI: 10.1080/1460728x.2016.1248677
Sarah Winsberg
ABSTRACT Lawyers and judges in the early American republic were surprisingly reluctant to penalise colleagues for malpractice and misconduct towards clients. Though they were part of a legal culture obsessed with preserving lawyers’ moral rectitude, they nonetheless remained sceptical of attempts to address malpractice. This article explores that apparent contradiction. I analyse allegedly wronged clients’ unsuccessful attempts to seek legal satisfaction, whether in civil, criminal, or professional suspension proceedings. I find that the period’s public-spirited legal ethics was in fact a major contributor to these former clients’ difficulties. Legal reformers worried constantly about the dangers to the republic of too-zealous advocacy, which might undermine the public interest. These concerns helped render the opposite problem – of lazy or even duplicitous client ‘advocacy’ – invisible and irremediable. Stories from the past, I argue, help illuminate a tendency to overlook malpractice that continues to this day.
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Pub Date : 2016-07-02DOI: 10.1080/1460728x.2016.1205874
Alina A. El-Jawhari
ABSTRACT Victoria’s Model Litigant Guidelines (MLGs) aim to regulate the conduct of government parties in civil disputes in a manner that goes beyond the ethical duties of ordinary litigants. Despite the sheer number of disputes involving the Victorian government to which the regime applies, little academic attention has been given to Victoria’s MLGs. The article explores the nature and extent of the regulatory force exerted by the MLGs by applying regulatory theory to the MLG regime. Particular attention is given to applying Ayers and Braithwaite’s theory of Responsive Regulation that includes situating the guidelines within their regulatory pyramid. The analysis finds that in the absence of a distinct regulator, the MLG regime is predominantly self-regulatory. The responsiveness of the MLGs appears to be restricted owing to an absence of public involvement in the MLG regime. The article also highlights that likely challenges to the MLG regime as a mode of regulation include the nature of the regulatory context, the decentralisation of government services, the lack of publicly available information on the government’s adherence to the MLGs and the content of the MLGs themselves.
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Pub Date : 2016-01-02DOI: 10.1080/1460728X.2016.1188539
Matthias Kilian
When Wieland Horn, the long-time chief executive of the Munich Bar (Rechtsanwaltskammer Munchen), retired in 2007, few, if any of his colleagues and friends knew what he had up his sleeve. After le...
{"title":"All hail the MDP: the German Federal Constitutional Court paves the way for multidisciplinary service firms","authors":"Matthias Kilian","doi":"10.1080/1460728X.2016.1188539","DOIUrl":"https://doi.org/10.1080/1460728X.2016.1188539","url":null,"abstract":"When Wieland Horn, the long-time chief executive of the Munich Bar (Rechtsanwaltskammer Munchen), retired in 2007, few, if any of his colleagues and friends knew what he had up his sleeve. After le...","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":"19 1","pages":"163 - 168"},"PeriodicalIF":1.0,"publicationDate":"2016-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728X.2016.1188539","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59984753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-01-02DOI: 10.1080/1460728x.2016.1190103
Tim Dare
‘Legal ethics’ is a broad church, embracing the legal regulation of lawyers as well as the empirical, historical, sociological and – since the mid-1970s – philosophical study of legal practice. Ethics and the Law is the first book-length introduction to this last, philosophical, thread. Brad Wendel is a singularly appropriate author for such an introduction. He is a lawyer and a philosopher, a leading contributor to contemporary philosophical legal ethics, and he writes clearly and engagingly. Ethics and the Law is divided into two parts. The first part introduces a range of philosophical issues raised by the ethical analysis of legal practice; the idea of role differentiation; reflective equilibrium and the form of common justifications of legal practice; the justification of the legal system itself, particularly the adversary system; connections between leading positions in the philosophy of law and legal ethics; questions about the relationship between citizens and government and the notions of obligation and obedience; and the challenge of unjust laws. The second part is motivated by appreciation that the role of lawyer is not monolithic: there are many ‘law jobs’ – lawyers work as criminal defenders, as prosecutors, within civil litigation, as in-house or company counsel, representing clients in courts or as adviser or counsel in matters never likely to be independently examined, and so on. These roles raise distinct ethical issues that are identified and discussed in chapters dedicated to each of the selected law jobs. This is for the most part a very good introduction. The book displays its author’s mastery of an impressive range of material. It includes engaging and deeply troubling cases, such as the one it starts with, in which client confidentiality leads lawyers to sit on a confession that might have spared an innocent man 25 years in prison, gives a sense how justification might proceed in applied ethics, and in legal ethics in particular, and draws connections between legal ethics and broader philosophical issues. The chapters on the multiple roles of lawyers in the second part are both nuanced treatments in their own right and an important reminder of the need for proper regard to the detail of particular roles within law. Too many write as though all lawyers work in court, or deep in the shadow of litigation. Wendel’s introduction is a reminder that that is not so, and why it matters. Inevitably, there are quibbles. The authors of introductory texts tread a fine line when drawing connections between their topics and broader issues: the connections can enrich new readers’ understanding of the core topic, or puzzle and confuse. Mainly, I think Wendel gets it right but occasionally he delivers a perfectly good introduction to some aspect of social or moral philosophy without making its connections to legal ethics very clear. Chapter 4, on the philosophy of law, is a useful primer on legal positivism and natural law theory, for instan
{"title":"Ethics and the law: an introduction","authors":"Tim Dare","doi":"10.1080/1460728x.2016.1190103","DOIUrl":"https://doi.org/10.1080/1460728x.2016.1190103","url":null,"abstract":"‘Legal ethics’ is a broad church, embracing the legal regulation of lawyers as well as the empirical, historical, sociological and – since the mid-1970s – philosophical study of legal practice. Ethics and the Law is the first book-length introduction to this last, philosophical, thread. Brad Wendel is a singularly appropriate author for such an introduction. He is a lawyer and a philosopher, a leading contributor to contemporary philosophical legal ethics, and he writes clearly and engagingly. Ethics and the Law is divided into two parts. The first part introduces a range of philosophical issues raised by the ethical analysis of legal practice; the idea of role differentiation; reflective equilibrium and the form of common justifications of legal practice; the justification of the legal system itself, particularly the adversary system; connections between leading positions in the philosophy of law and legal ethics; questions about the relationship between citizens and government and the notions of obligation and obedience; and the challenge of unjust laws. The second part is motivated by appreciation that the role of lawyer is not monolithic: there are many ‘law jobs’ – lawyers work as criminal defenders, as prosecutors, within civil litigation, as in-house or company counsel, representing clients in courts or as adviser or counsel in matters never likely to be independently examined, and so on. These roles raise distinct ethical issues that are identified and discussed in chapters dedicated to each of the selected law jobs. This is for the most part a very good introduction. The book displays its author’s mastery of an impressive range of material. It includes engaging and deeply troubling cases, such as the one it starts with, in which client confidentiality leads lawyers to sit on a confession that might have spared an innocent man 25 years in prison, gives a sense how justification might proceed in applied ethics, and in legal ethics in particular, and draws connections between legal ethics and broader philosophical issues. The chapters on the multiple roles of lawyers in the second part are both nuanced treatments in their own right and an important reminder of the need for proper regard to the detail of particular roles within law. Too many write as though all lawyers work in court, or deep in the shadow of litigation. Wendel’s introduction is a reminder that that is not so, and why it matters. Inevitably, there are quibbles. The authors of introductory texts tread a fine line when drawing connections between their topics and broader issues: the connections can enrich new readers’ understanding of the core topic, or puzzle and confuse. Mainly, I think Wendel gets it right but occasionally he delivers a perfectly good introduction to some aspect of social or moral philosophy without making its connections to legal ethics very clear. Chapter 4, on the philosophy of law, is a useful primer on legal positivism and natural law theory, for instan","PeriodicalId":42194,"journal":{"name":"Legal Ethics","volume":"19 1","pages":"182 - 185"},"PeriodicalIF":1.0,"publicationDate":"2016-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/1460728x.2016.1190103","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"59985209","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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