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PROFESSIONS, GENERALLY Professions are associated with distinctive presentation, values and norms Some seem to run counter

to the ordinary morality of society Professions defined Self-regulating occupations controlling a socially important area of work, defining consumer needs and determining the way in which those needs are met Greenwood All professions have five features Systematic theory, authority, community sanction, ethical codes, professional culture Defining feature of professions They deploy generalized and systematic knowledge in the community interest, rather than in their individual self-interest Functionalist perspective (benign) Sociologists Orientation to the public good = key functions of professions Works for the benefit of society beyond the professional sphere Commitment to exemplary performance internalized in the process of work socialization and reinforced by voluntary associations of members and rewards for achievement Monopoly perspective Professionalization is the aggressive pursuit of market monopoly Far from serving the public good, professional protectionism and exclusion of competition forces up the price of work, resulting in incompetent service Professional ethics = smokescreen for conspiracy against the laity More realistic perception Professions moral commitments lie somewhere between the two extreme Professional ethics holds in uneasy juxtaposition the two faces of professionalism the one monopolistic, even narcissistic, and the other benign, even altruistic Pound Profession defined Group of men pursuing learned art as a common calling in the spirit of public serviceno less a public service because it may incidentally be a means of livelihood

PROFESSIONAL NORMS Norms defined Behavior patterns inevitably developed by groups of people Some descriptive of standard behavior

Some are injunctive Concerned with what people ought to do Durkheim Complex societies accommodate a range of different normative systems parallel to those of wider society Professional ethics = one of the most developed examples Distinctive moral orientation emerges from the way that individuals do their work and from the values emerging from the coalition of interests of the occupation generally Criticism No substantial difference between occupational norms and those of wider society Boyle Four possibilities for the relationship between social norms and professional norms 1: Professional norms are the same as ordinary norms of behavior 2: Professional norms specify how professionals must relate ordinary norms to the situations in which they find themselves 3: Professional norms take into account the role of the professional in applying ordinary norms 4: Professional norms are completely independent of ordinary norms Each possibility can be justified to some extent Each proposition can be true, depending on the circumstances Professional ethics often require more than society does While there are arguably significant differences in norms of different groups, they influence each other Professional norms may be more influential than some other types Often help to define or change law. Law is sometimes used to change professional norms Distinction between descriptive norms (people follow unthinkingly) and norms with more social force Professional ethics crosses between law and morals Providing formal sanctions for rules not made directly by the state, but under its authority Does not happen immediately Organizational diversity is often seen as a threat to professional cohesion and professional norms

PROFESSIONAL RULES There is a clear connection between the rules of professional conduct, the values they represent, and how they serve the public good

PROFESSIONAL CODES Codes of behavior = final stage of professionalism Represent both the point when the professional community is sufficiently defined to be represented in writing and when its ethical commitments can form the basis of a contract with society for the provision of legal services Generally serve one of two purposes Codes of ethics = outward facing Articulate professional values for a range of interested parties Codes of conduct = internally focused Set out restrictions and provide guidance on behavior Legal professions codes are a compromise between the two Provide regulation for members Address a wider audience by articulating values Criticism of legal professions codes Contain little genuine ethical material, or little that is enforceable as opposed to aspirational Represent only a single piece of a larger mosaic of considerations that are morally relevant to a lawyers conduct Codes of conduct are not exhaustive statements of professional responsibility

LEGAL PROFESSION, SPECIFICALLY Legal profession defined Comprising traditional twin branches: solicitors and barristers Legal profession currently has an uneasy relationship with the state Law Society Core values of the solicitors profession are independence, integrity, and confidentiality Criticism Lawyers should prioritize different values EX: Goal of professionalism should be public service Particularly important in England and Wales Anachronistic Largest and wealthiest firms have little contact with public EX: Prime professional value should be promoting the moral autonomy of clients Relations between branches of the profession have been tense

But rivalry has been superseded by competition with state Reflects circumstances of creation State creates professions Civil service becomes the cultural and social exemplar of occupational and social success Professions emerge independently (from below) Profession becomes exemplar

PROFESSIONAL ETHICS AND MORALITY

LEGAL ETHICS AND MORALITY Professional ethics of lawyers Analysis of the distinctive features of professionalism

ETHICS AND MORALITY, GENERALLY Durkheim No social function could exist without moral discipline Moral ethics = form of moral discipline Some elements contained in regulations (enforceable) Some elements are merely an aspiration to high moral standards Beauchap and Childress Widely accepted criteria for judging the ethicality of actions Respect for individual autonomy Non-maleficence (not doing harm) Beneficence (doing good) Justice Core values not unique to lawyers The increasing emphasis on the individual in contemporary society is projecting the autonomy of individuals into the position of dominant value Implication for lawyers Explore options with clients, including ethical issues, but encourage them to make their own moral choices

SELF-REGULATION OF PROFESSION Johnson Alternatives to the self-regulation that defines professionalism (state/community control) Argument for self-regulation

Members in the profession understand the issues involved, and have a strong interest in delivering those services well and in making and enforcing rules for all members Government cedes self-regulatory power to the profession Increasingly skeptical Continues to see professionalism as solution to abuse of power in relationships with consumers

CLIENT AUTONOMY

PROFESSIONAL AUTONOMY/CONFLICT OF INTEREST Independence = value in all lawyer codes Defined in the legal profession Exercising judgment free from the influence of others, particularly clients but also the state

ADVERSARIALISM/ADVERSARIAL PROCESS The adversarial trial carries distinctive moral responsibilities Every stage requires an ethical approach Opportunities and temptations to subvert justice makes lawyers ethics more important in an adversarial process than in other judicial systems The role lawyers must fill in an adversarial system requires a distinctive morality that is necessary for the system to operate, but which courts hostile public opinion

THE STANDARD CONCEPTION GENERALLY Set of obligations created by the adversarial model Core principles Partisanship, neutrality, duty to the court Neutrality + Partisanship = morally ambiguous role for lawyers Lawyers must do everything possible within the limits of the law to protect the rights of people that they do not care about If lawyers are not neutral about their clients they will be excessively zealous and self-righteous Which may work against the clients interests

Neutrality allows lawyers to reconcile their duty of partisanship with their potentially conflicting duty to the court Neutrality and partisanship are both central to the issue of who lawyers should accept as clients and what they are entitled to do on their behalf Neutrality and partisanship mean that lawyers avoid responsibility for having to assist a client to achieve a purpose about which the lawyer would otherwise have moral qualms Balancing duties of partisanship and neutrality with duty to the court demands a complex set of responsibilities and puts lawyers under considerable moral pressure Luban The SC denies the lawyers personal moral responsibility for role acts by appealing to the fact that the role itself is good Justification for this standard conception of the lawyers role It reinforces the notion of equality before the law, itself a social good, particularly in a society of pluralistic values Also means that, instead of striving to do justice, lawyers must follow rules which may, or may not, lead to justice being done

THE STANDARD CONCEPTION PARTISANSHIP Lawyers role in an adversarial system = partisan Defense of the clients rights Not ensure a fair result, seek the truth, arbitrate, or explore possibility or compromise Must take the clients side even when she considers the client to be morally wrong Must be oblivious of the impact this has on others Brougham The obligation to zealously defend the clients rights means that a lawyer must present both the clients case in the best possible light and ensure that the other partys case is seen in the worst possible light Lawyer must pursue the clients every preference Provided that it is not an illegal purpose/does not require illegal means Broughams conception is no longer widely shared, but some version of partisanship is still at the root of a lawyers duty to her clients Lawyers must maximize the likelihood that the clients objectives will be attained

THE STANDARD CONCEPTION NEUTRALITY Requires lawyers to adopt a neutral stance in relation to their client and case

Role is to advance that case whatever view the lawyer may have of it Requires that lawyers advance causes they find morally repugnant But they are not personally, legally, professionally, or morally accountable for the means or the ends achieved Moral neutrality Defined Duty not to select between clients on moral grounds EX: Cab-Rank rule Barrister must accept briefs in the other that they are received Emotional neutrality Defined Lawyers must be emotionally detached form their clients purposes Interested only in the facts Divested from all emotional elements and all that does not fall within legal rule Ensures they can offer dispassionate advice, resist emotional involvement with the client, and focus on the legal merits of the case Should be indifferent with regard to the final outcome of litigation

THE STANDARD CONCEPTION DUTY TO THE COURT In an adversarial system, partisanship is counterbalanced by a wider duty to the system Advocacy This is expressed as a duty to the court May involve no more than an obligation not to mislead Modern trend Obligation to the court is wider than this

CLIENTS BEST INTERESTS

JUSTICE VS. LEGALISM Pursuit of justice = defining value of lawyers Fundamental concern of the legal process and those working within it Many faces Substantive, procedural, social Rawls Social dimension has two key principles

Offices and positions must be open to everyone under conditions of fair equality and opportunity Offices and positions must be of the greatest benefit to the least-advantaged members of society Natural justice defined The principles which must be followed in the application of rules, whatever their content, to particular cases Jackson Two principles necessary to ensure that law is applied impartially/objectively No man should be judged without a hearing. Judges should be free from bias Less attractive side of this coin Lawyers are particularly identified with legalism Legalism defined The demand that due process be observed Solicitors new rule 1: where core duties conflict, the public interest in the administration of justice takes precedence Public interest defined The common good of the community

CAB-RANK RULE Barristers only. Solicitors dont have cab-rank rule Importance stems from the imperative of representation in the adversarial system Ensures every person has a champion Consequence Lawyers must argue a case they do not believe in or pursue ends they do not agree with Encourages lawyers to take unpopular clients Increases social goods (civil liberties, human rights, access to welfare) Provides legal precedents that establish rights for the general population NO equivalent rule in the US Rational basis for rule Ensures that any solicitors firm can instruct any private practice barrister on behalf of any client, maximizing equal access to justice. Ethical basis for rule Justice is served only if every person can secure representation. Provides formal protection for advocates from identification with their clients in the minds of the public Can say their professional rules require them to do so Consistent with principle of presumed innocence before conviction As advocates, must accept a case unless they have a valid reason for not doing so

Requires that they accept any brief to appear before a court in which they practice Must accept briefs in the order they arrive Having accepted a brief, they cannot withdraw from a case because a preferred case comes along, except in specific circumstances He is satisfied that his brief or instructions have been withdrawn His professional conduct is being impugned Some other specific reason If they withdraw, there are specific requirements for return of the brief EX: Must explain to professional client the reasons for doing so Ceasing to act Must cease to act if Continuation would cause them professional embarrassment Phrase embodies all reasons, such as lack of skill or time, which justify refusing the brief in the first place Cannot withdraw simply because the court has made an order which makes it difficult for them to do their best for their client (same with solicitors) Legal aid has been wrongly obtained and the client refuses to remedy the situation To continue to act would involve a breach of the law or professional conduct rules Observance of rule = Patchy If the Bar Codes many exceptions do not avail, barristers might discover prior obligations in order to refuse a brief Lord Steyn, Hall v. Simons It is not likely that the rule often obliges barristers to undertake work which they would not otherwise accept.

ROLE MORALITY AND AMORAL TECHNICIAN

SOLICITORS, GENERALLY Not bound by the cab-rank rule

Can decline to act for clients when acting as advocates in the same manner they can on other occasions, as long as the reasons are not proscribed in their code or by the Act Rule 2.01(b): A solicitor must refuse or cease to act if you have insufficient resources or lack the competence to deal with the matter Aimed at ensuring solicitors do not act in cases which are beyond their knowledge or expertise, or where they have insufficient support to deal with them Rule 2.01(2): Once a client has been accepted, the solicitor must not terminate the relationship except for good reason and upon reasonable notice. EX: Breakdown of confidence between solicitor and client EX: Solicitor is unable to get proper instructions Can happen if Client is set on a course of conduct to which solicitor has grave moral objections Client fails to make agreed payments on account Either the solicitor or client suffers bankruptcy or incapacity

BARRISTERS, GENERALLY

ZEALOUS ADVOCACY Difficult to effectively balance diligence or zeal in representing clients with fidelity to the ideals of justice or the public good

LEGAL EDUCATION Underlying purpose of government/profession = Increase prevalence of ethical behavior in legal practice Possibility of achievement and means of doing so are contentious Ambitious to expect education to raise standards of morality Notable that major disciplinary infractions often occur well after legal education Some evidence that curriculum affects student motivations and values Socializing impact of legal education is difficult to test Dominant view = It is negative ethically

Goodrich Law school teaches formality, neutrality, and objectivity, rejecting the personal, and hence bias, passion and commitment Impact also negative in terms of attitude to public service work and helping disadvantaged Webb Criticism of black letter approach Narrow, doctrinal study instills in law students the values of individualism, competitiveness, legalism, and authoritarianism Teaching and assessing rule handling techniques encourages lawyers to uncritically accept established power relationships Creating responsible jurists who become zealous promoters of hierarchy Research Legal education has generally negative effect on students moral reasoning Shifts attitudes and values toward a conservative view of the legal role Shifts attitudes away from idealism and towards instrumentalism Shifts career intentions away from legal aid, public service, or government work Evidence largely from US, but English study showed similar shift in UK students There are measures more likely to achieve beneficial effects than others Concern the structure, content, and methods for an ethically based legal education

MARKET CONTROL/FUTURE OF LEGAL SERVICES/INSTITUTIONS OF REPRESENTATION UK: Future of professionalism in England and Wales = Uncertain Most analysis suggest that growth of legal profession sowed seeds of declining market control Undoubtedly nurtured by high cost of legal services and detrimental effect this had on access to justice in the growing rights culture UK: Professions loss of control over market for legal services began with the prosaic issue of the solicitors conveyancing monopoly UK: Court and Legal Services Act, 1990 Bodies other than the Bar can seek right to accredit their members in the exercise of advocacy rights, and bodies other than the Law Society can accredit members to conduct litigation Others got direct professional access Solicitors lost exclusive right to brief barristers Advice agencies can claim legal aid for clients and compete with solicitors for legal aid Access to justice is an aspect of market control

Surplus of lawyers should make legal services cheaper, at cost of their power and prestige UK: Woolf Report, 1998 Reduced lawyer control over litigation by introducing pre-action protocols, increased judicial control, and incentives to settlement Heavily encourages alternative methods of dispute resolutions

GETTING CLIENTS Advertising UK: Advertising legal services is now permitted, but regulated by the Bar and SRA Fees and methods of charging can be advertised, but certain other claims are banned Solicitors advertising must comply with the code and any legal regulations Publicity permitted provided it is not misleading or inaccurate Publicity on charges must be clearly expressed Can claim to be experts in a particular field, provided they can justify such a claim ASA requirement that it is legal, decent, honest, and truthful Personal contacts UK: Solicitors Code does not prevent solicitors from seeking clients by contacting other solicitors or professional connections. Cold calling is not acceptable But does not include other lawyers existing or potential professional or business connections, commercial organizations, or public bodies Referrals UK: 2007 Rules permit referral fees, subject to certain conditions Solicitors should not become so reliant on an introducer as a source of work that this affects the advice you give to your client Unclear how this warning will be policed Danger Solicitors may be hesitant in giving away any advice to clients that causes conflict with the referrer Justice Lightman Clients are not merchantable commodities to be bought and sold

NOT PERMITTED CONTINGENCY FEES (us = ok) Defined Arrangements whereby the lawyer is paid a fee by the client only if the case is won, in which case the fee will be a percentage of the amount recovered UK: Still unlawful under common law against champerty and Solicitors Act of 1974 Ethical principal for ban Prevention of conflicts of interest between lawyer and client, and to uphold probity in court proceedings by lawyers Lawyers who handled cases on a no-win, no-fee basis, or who were paid a proportion of the winnings, would have a personal interest in stirring up anothers litigation Promotes the integrity of the legal process and lawyers role as an officer of the court Consequences of charging unlawful contingency fee Solicitor will not recover fee, or even disbursements from client But if client already paid money to solicitor, it cannot be reclaimed Agreement = Unenforceable, not void or voidable Solicitors may be liable for costs of other side if case is lost If case is won, question of a cost order against loser arises No direct authority here. Arguable that if liability for costs between solicitor and client is unenforceable, then there is no basis for ordering losing party to pay such costs Solicitor could be subject to disciplinary proceedings US: Contingency fees held responsible for litigation explosion and defensive practices by manufacturers and service providers (negative social consequences)

NOT-PERMITTED SPECULATIVE FEES Defined Solicitor agrees to be paid only what the losing side is ordered to pay in costs, and arrangements whereby a clients fees are paid by third parties or even the solicitor himself UK: Prohibited or affected by common law prohibiting maintenance Persons with no direct interest in a dispute should not intermeddle and encourage spurious litigation, causing grief and possible financial loss to the other side Today, few people consider maintenance to be unethical Access to justice is a more serious concern State is largest maintainer of litigation of all, through legal aid

UK: Main constraint on overworking = Assessment of costs by the court after the event

PERMITTED CONDITIONAL FEE ARRANGEMENTS (CFAs) UK: Government introduced conditional fee arrangements to replace legal aid in wide range of cases Kind of exception to ban on contingency fees Defined Solicitors and barristers can agree with client that fee will be paid only if case is won If case is won, fee may be increased up to 100% of normal fee, excluding disbursements Cannot be used in criminal cases If case is lost, client will not pay a lawyers fee but will have to pay disbursements, and have to bear costs of any insurance policy covering litigation that he had taken out Losing client ordered to pay costs of winner Access to Justice Act 1999 Allowed success fee and cost of insurance premium to be recovered in costs from other side if case was won Insurance companies required to abide by conditions. Solicitors forbidden from dealing with unregulated companies No win, no fee

PERMITTED FEES HOURLY OR FIXED FEES UK: Hourly fees are still the normal fee arrangement Solicitors Paid by the hour for actual work done Routine transactions = Fixed fee normally negotiated Method used by LSC to control costs in civil cases = Contracting (solicitors agree to a contract to do a fixed number of case starts/year for fixed yearly fee) Civil Justice Counsel aims to negotiate set fees with major players in types of litigation Practitioners Opposed to fixed fees because they result in scrimped work Barristers Quote a fixed fee for particular advice or drafting and a daily rate for court work Also paid fixed fees in some civil work Traditionally attempted to avoid problems of conflict of interest inherent in fixing fees by denying any interest in the issue (clerks do the negotiations) Disbursements defined Payments made by solicitors to third parties on behalf of their clients

Now no professional rules restraining lawyers from undercutting each other Undercutting Not an ethical issue. Relates to desire of profession to maximize income Lawyers say it encourages fee shopping and low standards of work i. Overcharging = Bigger issue than undercharging Pressure from commercial clients for fixed rather than hourly fees Aimed at controlling overwork and overbilling But hourly charging encourages inefficiency as well as overcharging

PUBLIC SERVICE, GENERALLY Difficult to pin down relationship between public service and professionalism Professional rules of conduct rarely formalize or state positively public service obligations Most conceptions of public service are about eschewing self-interest Pound The very act of maintaining a profession, and thereby the integrity of lawyers, the legal process and the rule of law, is a public service Cites ways that US bar associations abjured self-interest and contributed to the public good 1) Professionals, unlike employees, did not go on strike 2) Professionals, unlike businessmen, are not competitive with each other 3) Professionals acted collegially with each other Mungam and Thomas Decline of public service in legal practices is result of advent of legal aid Public funding of access to justice caused wider notions of public service to give way to an ethic of dedicated service to individual clients

PRO BONO PUBLICO Pro bono publico = New face of public service But demand for legal services by the state = Price profession pays for any continuing monopoly making demonstrable forms of public service a new overhead of professional practice Pro bono publico is not yet established as a professional obligation Advantage of involvement of professional bodies To address the delicate balance between ethics and commercialism

Ensure publicity is used sensitively and to promote the profession as a whole Profession should do more to preserve the integrity of pro bono by defining such work more closely and controlling references in firm brochures and publicity Professional bodies have strongest incentive for high profile public activity like pro bono That large firms were the focus of pro bono among solicitors is not surprising US research shows opportunity for pro bono is a lifestyle reward used to attract and keep staff Ability to afford pro bono explains strong correlation between successful firms and the high volume of pro bono public work performed Success of some large firms in internally promoting pro bono public has changed In firms committed to pro bono, there has been a shift from informal, individual action towards organized, corporate provision of mass services Because it has aligned with corporate volunteering, emphasis shifted from conventional representation to corporate charitable activity of a general kind Certain work alienates certain clients, so some interests are underrepresented Largest group of pro bono participants in large firms are trainees UK: Solicitors and barristers have ambivalent attitude towards pro bono Fear formal commitments might fail Concerned about standards and public funding for legal services Issue: What form should professional efforts take? Competing interests Southworth Provision of legal services for the poor would benefit from removing the established professions from them Lawyers interest in providing such services may be to prevent others gaining a hold on legal services market, but expecting them to supply full access to justice is too ambitious Nuffield Report Profession should focus on quality of pro bono, rather than quantity Should not aim to ensure all lawyers do a little, but rather that what is done is useful Should concentrate on cases that will advance social welfare and rights generally by creating new law Legal services pro bono publico only warrants praise when justice for client is primary consideration Free work should be performed to the same standard of service that a paying client receives

Nuffield Foundation report Proposed definition of pro bono work that professional bodies could include in their rules, expanding traditional conception to include transaction and community work, but excluding dubious categories and charitable activity without a legal dimension Free services will continue to be provided for a variety of reasons. Whether they should or can provide satisfactory access to justice is moot Nosworthy Providing such services for the wrong reasons impugns the motives to such an extent that it is not an ethical act Advocates argue that motive does not matter. What matters is the work done