Andrew Boon

Professionalism Under the Legal Services Act 2007

The Legal Services Act 2007 represents an ambitious attempt to reconcile consumerism and professionalism. The Act created a Legal Services Board to oversee the regulation of the legal services market in England and Wales. The Board was also placed under a duty to promote consumer interests and to encourage an independent, strong, diverse and effective legal profession and to promote professional principles. The article examines the actual and prospective impacts of the Act on the legal professions, professional work, the regulatory system, regulatory method, professional ethics and legal education. It identifies threats posed to traditional conceptions of legal professionalism by the new regime and suggests ways that they might be mitigated.

Trials of Strength: The Reconfiguration of Litigation as a Contested Terrain

A market for litigation for solicitor-advocates in competition with barristers was introduced by the British government. The take-up by solicitors of these new rights of audience in the higher courts was less than expected. This paper examines four fields of practice - corporate, criminal defence, personal injury, and immigration - and shows how the market cannot be treated as a uniform field and that each field has its own culture that might be receptive or not to fresh ideas that disturb the status quo. Moreover, it shows that Abbotts argument that jurisdictional battles mainly occur at the margins of a professions remit may need to be modified. The turf war between barristers and solicitors in litigation is taking place within the core activity of legal practice not at the margin.

History is Past Politics: A Critique of the Legal Skills Movement in England and Wales

In the past thirty years legal practice changed so significantly that afundamental response was demanded of legal education. Making legalskills a compulsory component in the vocational stage was an incompleteresponse. It addressed the technical competence of lawyers but leftsignificant gaps in professional preparation in terms of content andmethodology. By focusing on the educational and pedagogic implicationsof the skills curriculum the clinical movement contributed to these gaps.The Lord Chancellors Advisory Committee on Legal Education andConduct has facilitated the consideration of a curriculum organizedaround a more imaginative integration of legal skills in order to beginto tackle these failings and prepare lawyers for the new economic andsocial challenges facing them. Solutions, however, must permeate everystage of legal education, requiring unprecedented levels of co-operationand interaction between the profession and the academy.

Globalization of Professional Ethics? The Significance of Lawyers' International Codes of Conduct

To what extent in the age of globalization is it possible to talk of a global legal ethics? The example of the International Bar Association is examined.

What Difference Does it Make? Facilitative Judicial Mediation of Discrimination Cases in Employment Tribunals

Mediation is promoted by government to reduce the volume, cost and formality of dispute resolution, but evidence of these benefits is inconclusive. A number of reports have analysed mediation of contract and similar cases in the County Courts but there has been little empirical work in the employment field. This article considers the findings of an evaluation of (facilitative) judicial mediation, piloted by the Employment Tribunal Service, for discrimination cases starting between June 2006 and March 2007. A matched analysis of the outcomes from one hundred and sixteen mediated cases, relative to an unmediated control group, found no significant impact of early resolution attributable to judicial mediation. This article digs deeper into the additional qualitative and quantitative evidence generated by the study to shed light on the process and outcomes. Detailed mediation reports completed by the judicial mediators and „in-depth‟ interviews are reviewed to describe the outcomes of mediation employment cases against the outcomes offered in law, the views and levels of satisfaction of claimants, respondents and representative are considered. Suggestions are made for either adjusting the facilitative mediation model or seeking an alternative that complements existing dispute resolution services, particularly those provided by ACAS.

Understanding lawyer default in England and Wales: An analysis of insurance and complaints data

ABSTRACT In England and Wales the arrangements for compensating victims of lawyer default, fraud, incompetence and misconduct are extensive. Solicitors, the largest profession, maintain a compensation fund. Both solicitors and barristers require practitioners to carry professional indemnity insurance covering liability to clients. An agency deals with complaints about all regulated lawyers. This article outlines the jurisdictions dealing with lawyer default and the mechanisms for delivering compensation. It uses publicly available data generated by insurance claims and complaints to identify the causes of lawyer default. It analyses the volume and value of claims, the incidence of liability by areas of work and by different types of complaint. The article concludes by considering the relevance of, and current limitations of, default data in understanding lawyer default and in shaping regulatory policy.

Cause Lawyers and the Alternative Ethical Paradigm: Ideology and Transgression

The traditional paradigm, or “standard conception”, of professional legal ethics holds that lawyers are not accountable morally for their lawful actions on behalf of the client or for the outcome of representation. The “twin pillars” of the standard conception, neutrality and partisanship, mandate their behaviour, commanding the lawyers’ distinctive “role morality” in an adversarial system. The principle of neutrality demands that they take clients, irrespective of the moral worth of their cause, and the principle of partisanship requires them to represent them to the best of their ability or, in some formulations, zealously. Cause lawyers appear to challenge this conception of lawyers’ ethics by undermining neutrality and partisanship. They deny neutrality, it is said, because they select their clients for the cause they represent. They deny partisanship because they make a moral imperative, furthering the cause, rather than the interests of their client, the main aim of representation. Pursuing these priorities, cause lawyers also risk contravening the professional rules that render these principles operational, for example, those subjecting partisan advocacy to a duty to the court. Such practises are anathema to the traditional ethical paradigm, for their challenge to established rules and their underlying basis and rationale; the independence and detachment of lawyers and the law and the pre-eminence of client goals. There are many questions arising from the practice of cause lawyers of potential interest to empirical researchers, students of the legal profession and ethicists. A striking feature of the phenomenon is the moral ambiguity of their position. On the one hand, cause lawyers present a deviant model of lawyering, representing values that are inimical to traditional notions of justice and ethics based on a due process, adversarial procedure and advocacy. On the other, they offer an alternative to the morally ambiguous role of “hired gun”, played by lawyers in such a process, by seeking personal commitment and involvement with clients as a basis for what they do on their behalf. A study of cause lawyers is potentially a case study of an alternative ethical paradigm, one that eschews standard applications of neutrality and partisanship in favour of allowing lawyers broad scope in deciding who to represent and on Legal Ethics, Volume 7, No. 2

The legal professions’ new handbooks: narratives, standards and values

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.

Lawyers in the dock: learning from attorney disciplinary proceedings

In Lawyers in the dock Rick Abel aspires to address the problem that white collar crime is under-studied and under-theorised while answering Shapiro’s call to understand the “. . . distribution of structural opportunities for trust abuse with an understanding of the conditions under which individual or organizational fiduciaries seize or ignore these illicit opportunities”. Given Abel’s background, it is no coincidence he takes lawyers as his subject, but they are also a pertinent choice; an archetypal white collar occupation, but also one that trades on its ethical commitment, individual and collective, in the market place. Despite this, the details of the backgrounds of disciplined lawyers, their failings and the procedures that deal with them are not well documented. It appears that Abel has only just begun the task of remedying this. Abel makes the case that this absence of data is particularly unfortunate because, at the very least, lawyers must be near the top of the scale of white collar crime. This is because, even among professionals, they depend on, and are uniquely positioned to exploit trust. As he explains in a lengthy introductory peroration: