John Flood

Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice

The rise of the large global law firm is analyzed. The analysis covers the reach of large law firms, their different types of work, and the ways in which they construct legal arrangements to enable transnational business. This entails looking at what lawyers actually do. Professionalism and issues of multidisciplinary practice are also considered.

The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation

The size and scope of global law firms has made them difficult to encompass within a single regulatory jurisdiction. As the UK government sought to take control of the legal profession and market by removing self-regulation and introducing external regulation under the Legal Services Act, the large law firms were able to countermand the new regime. Through a combination of associations like CityUK, the City of London Law Society, as well as through individual firms, large law firms lobbied successfully to reinstate a new form of self-regulation known as AIR. The elites of the legal profession constructed a new logic of professionalism that accorded with the firms’ ideologies and government’s market-oriented objectives. Further attempts to consolidate their position at the EU and at the GATS levels are still in negotiation. Despite the legal market shifting to a more diffuse combination of actors, of which lawyers are only a segment, elite law firms have apparently strengthened their hold. En raison de la taille et du périmètre d’action des cabinets d’avocats mondiaux, il est difficile de les faire chapeauter par une seule juridiction réglementaire. Alors que le gouvernement britannique cherchait à contrôler la profession et le marché juridiques en supprimant l’autoréglementation et en introduisant une réglementation externe avec le Legal Services Act (Loi sur les services juridiques), les grands cabinets d’avocats purent annuler la nouvelle réglementation. Par le biais d’une combinaison d’associations comme CityUK, la City of London Law Society, ainsi que par celui de cabinets individuels, de grands cabinets d’avocats ont exercé des pressions et réussi à réintroduire une nouvelle forme d’autoréglementation connus sous le nom AIR. Les élites de la profession juridique ont élaboré une nouvelle logique de professionnalisme qui répondait aux idéologies des cabinets et aux objectifs orientés vers le marché du gouvernement. D’autres tentatives de consolidation de leur position aux niveaux de l’UE et de l’AGCS sont encore en cours de négociation. Malgré le glissement du cadre juridique vers une combinaison plus diffuse d’acteurs, dont les avocats ne sont qu’un segment, les grands cabinets d’avocats ont semble-t-il renforcé leur position. El tamaño y alcance de los bufetes de abogados globales han hecho difícil que estos puedan integrarse dentro de una sola jurisdicción regulatoria. Conforme el gobierno británico buscaba tomar el control de la profesión legal y del mercado al deshacerse del sistema de auto-regulación y al introducir normas externas conforme a la ley de servicios legales ( Legal Services Act), los grandes bufetes fueron capaces de anular el nuevo régimen. Gracias a la combinación de asociaciones como CityUK y la City of London Law Society, así como también a través de despachos jurídicos individuales, los grandes bufetes de abogados realizaron exitosas prácticas de lobby para reestablecer una nueva forma de auto-regulación conocida como AIR. La élite de la profesión legal desarrolló una nueva lógica de profesionalismo que sigue las ideologías de los bufetes y los objetivos del gobierno orientados al mercado. Aún siguen en negociaciones los intentos de los bufetes de consolidar su posición en la UE y en los niveles GATS. A pesar de que el mercado legal se está moviendo hacia una combinación más difusa de participantes, de los que los abogados sólo representan un segmento, los bufetes exclusivos han reforzado aparentemente su posición.

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.

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.

Partnership and Professionalism in Global Law Firms: Resurgent Professionalism?

There is a tension between the values of professionalism and of business in law, which, although it has been present for a long time, has taken a new turn with globalisation. Professionalism is undergoing a crisis of confidence as the state is intervening more in the regulation of the legal profession and the nature of legal work is becoming more mechanised and commodified. While the practice of law has traditionally been organised around the concept of partnership, often combined with some form of charismatic authority, partnership, as opposed to corporate structures, is now being stretched to its limit as a coherent form of governance in professional service firms. We may instead legitimately state the ‘industrialisation’ of legal practice is emerging (Bierman and Gely, 2003: 970).

Corporate lawyer–client relationships: bankers, lawyers, clients and enduring connections

ABSTRACT Formal representations of lawyer–client relations are often characterised by their regulative aspects, including codes of ethics and practice. In this article I look inside the relationship by returning to the sociology of Georg Simmel, who closely examined the basic units of sociality, especially dyads and triads. Using examples drawn from empirical research on corporate lawyers and clients and banks, I open up the lawyer/client dyad and show that in most cases the practices of lawyers and banks add noise and interference to the relationship. The reason is that in many situations the basic unit of analysis for lawyer–client relationships should be the triad rather than the dyad. Whereas dyads are fundamentally stable, triads are the reverse, as they allow for alliances and defections creating permanent uncertainty. I take a number of examples where clients suffered in the alliances formed between their lawyers and the banks, leaving them on the periphery. It is time to recast the lawyer–client relationship as one fraught with ambiguity and instability, which raises questions about the nature of professionalism.

The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market

Cab Rank Rule Research Summary Why this? Why now? In May 2012 the LSB commissioned Prof. John Flood (University of Westminster) and Prof. Morton Hvvid (University of East Anglia) to carry out a literature review analysing the impact on the market of paragraphs 601-610 of the of the Bar Standards Board’s (BSB) code, otherwise known as the ‘cab rank rule’. The LSB published The Cab Rank Rule: Its Meaning and Purpose in the New Legal Services Market on 22 January 2013. Since at least the 17th Century it has been an important principle for the Bar that everyone who might benefit from having representation should have access to a suitable barrister. More recently this desire to ensure access to justice, of which representation is arguably a crucial element, was enshrined with the Legal Services Act 2007 (“the Act”) as one of the eight regulatory objectives. However, while the formal cab rank rule is clearly aimed at ensuring access to justice, it might equally be argued that its requirement for each individual barrister to offer services to all, could act as a barrier to barristers looking to specialise. As far back as 1776, when Adam Smith’s The Wealth of Nations was published, economists have been aware of the wider economic benefits specialisation can deliver for an efficient, competitive market. Thus the cab rank rule could potentially both undermine its own aim to improve access to justice (by reducing opportunities for specialisation and so the provision of niche services) and also damage other regulatory objectives, such as to promote competition. While paragraphs 601-602 of the BSB’s code sets out the core principles of the cab rank rule, paragraphs 603-607 outline a series of exemptions and exceptions to the rule, perhaps recognising that its absolute status is less relevant in 2013. The fact that so much of legal aid work, where access to justice may be thought paramount, is exempt serves only to highlight this tension between principle and rule. In practice therefore the impact of the rule on the regulatory objectives is complex, and the LSB believed, worthy of closer analysis. A further reason for undertaking this study now is the desire of the BSB, in the context of the Act, to move from a regulatory framework based on highly elaborated rules to one more closely aligned with the outcomes set out within the Act. This itself raises a number of questions for the cab rank rule. Could it be reframed as a principle? What impact does the rule currently have? What would happen in the absence of the rule altogether? This research paper considers these issues and more through an analysis of the available literature, supplemented by interviews with the profession. The Findings: The report found no evidence of the rule being actively monitored or enforced by the regulator. In terms of impact, it could not be shown that it ensured representation. There was little evidence that it was understood within the market: indeed specialisation by some Chambers arguably demonstrated that the rule was regularly breached. That is not to say that the principle itself of representation for all was not followed in spirit by the profession, but just that is it not clear whether the desire to offer representation is driven as much or more by the professional principle or by economic calculations. It certainly would seem that, in England and Wales at least, clients who at one time may have been considered unattractive e.g. terrorists are now, through the wider publicity benefits they might offer, perhaps somewhat more attractive than many other types of client. In the end the report seeks to probe the future benefits of a rule, which while having significant professional benefits, is limited in its practical application? The range of exemptions and exclusions, including those barristers offering direct public access, already limit the practical scope of the rule. Whether measured by complaints or disciplinary findings, the authors argue that there is no evidence that the rule is applied beyond a general desired professional principle. The report concludes that, as the profession moves from a rulebook to a code of principles or outcomes, it would seem appropriate to consider whether the cab rank rule could similarly be moved to a principles basis. Here the report noted that the New York State Bar Client Rights number 10 provides one possible model: “You may not be refused representation on the basis of race, creed, color, age, religion, sex, sexual orientation, national origin or disability.” If modernised to reflect our national perspective on protected characteristics and supplemented with the additional protections that “you may not refuse to provide representation based on the popularity or otherwise of the client, case/crime or defence” the report provides one basis for the retention and reform of the cab rank rule in line with the strong ethical foundations that underpin the Bar. The LSB will be interested in hearing the views of stakeholders, both professional and consumer, on the report’s analysis and its suggestions for the way ahead.

The Collegial Phenomenon: The Social Mechanisms of Cooperation Among Peers in a Corporate Law Partnership by Emmanuel Lazega

Montesquieu (1689–1755) became a celebrity on publishing his Persian Letters wherein he wrote about the difficulties of self-knowledge and those associated with different types of government. He explored this in more detail in his Spirit of Laws where in particular he focused on democratic, monarchical and despotic forms of government. Democracy imposes many requirements of self-abjuration on its members in order to maintain its stability. It is always prone to corruption. Montesquieu’s ideas permeate our thinking about social institutions to this day. How much we have learned from his ideas is another matter. For example, where there are direct lines of control and authority, there seems to be less reliance on concepts of collegiality and sharing of values. No matter how hard organisations try—even through attempts such as those inspired by Martin Lukes, Chief Personal Ethics Champion of a-b glöbâl1—resistance builds up among “co-humans”. Some organisations are able to do democracy better than others: among them are law firms. As partnerships, law firms embrace ideals of collegiality and equality that obtain in structures of collective responsibility. Corporate law firms, in particular, boast of this on their websites. Law firms are important institutions in modern society. Although they range from the tiny to the gigantic, corporate law firms are mainly in the upper reaches of the legal community. The range of work they encompass is vast, especially in relation to globalisation and private ordering where their influence can be greater than that of the nation state. They are involved in major dispute resolutions heard in public and private arenas.2 They hire the best and the brightest from the academy and pay among the highest salaries to their associates. With profiles like these, corporate law firms ought to be among the most enlightened institutions. Unfortunately not. Over the last year, Allen & Overy, a leading City of London large law firm, complained that it had a 25% associate turnover rate. Apparently making partner is becoming harder and takes longer. With more than 1,000 lawyers, a law firm can be a hard place in which to govern and create a community. In exceptional cases, law firms can fail to maintain their practices and expire, as did the multinational firm, Coudert Brothers. Despite changes in size, problems of administration and geographical spread, most corporate law firms strive to retain the ideals of partnership. Why do they do this? In a world that worships managerialism, why does the anachronism of partnership continue to endure? And, as important, how do they do this?