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Main Index
Index:
* Your Time Managing Your Most Important Asset
* Writing For Clients
* Aim High, Start Now
* Enhancing Professionalism
* Your Time Managing Your Most Important Asset
Where to Begin?
Learn to keep an accurate daily log. It will help you determine how you are actually spending your time. Every five minutes, record exactly what you did. Log your activities this way for at least a couple of weeks. Yes, it's tedious, but it will help you get in the habit of tracking your time, which will also help you identify non-productive, water-cooler kinds of activity. A certain amount of down time is probably essential to a healthy work life, so the goal is not to eliminate this time but to learn to control it, so you're assured of meeting your billable-hour goals.
What Next?
Follow the general time-management guidelinesplan your day, set priorities, delegate, control interruptions, set aside time for concentrated work, return phone calls in batches, and so on. Also, consider these law firm-specific tips:
Report all your time Don't try to appear more efficient by reporting less than the actual time you spent on a project. BIG mistake. You'll create expectations that will be increasingly difficult to meet while still performing quality work. Also, you put yourself in the position of giving away a firm assetyour time. This is overstepping your authority.
Keep up with your time logs Keep contemporaneous records of your work. If you reconstruct a record of your work on a project days or weeks after the work is completed, you're sure to either overlook or overestimate time spent. The result will be either unfair to the firm or the client.
Know client billing policies and procedures Take the time to learn your firm's policies on billing time. What if a partner pops in after you've worked on a matter for Client A for 30 minutes and talks to you for 15 minutes about Client B. You then go back to working on Client A's project for another 15 minutes? Do you report 45 minutes for Client A and 15 minutes for Client B? What if the reporting increment is 30 minutes?
Familiarize yourself with your billing system. A large client may have a general billing code along with three, four or even 100 subordinate billing codes for different kinds of work and different components of a company. You must accurately account for the amount of time spent, and you must properly record how and for whom that time was spent.
Manage your billable goal daily Divide up your annual billable-hour goal and manage it on a daily basis. You don't want to find yourself so far behind that it's literally impossible to catch up by the end of the year.
Ask for time and research budgets up front You need to know more than the deadline and the form (memo, client letter, etc.) for an end product.. Ask how many hours you may spend on the task. You won't know at first how much time it normally takes to do many of the things you'll be asked to do.
Likewise, ask how much money you can spend on online research. Take time to understand your firm's pricing and billing arrangements. Does the firm have a flat-rate or transactional subscription? How do those charges translate to client billings? With a full understanding, you can assess more easily where you stand relative to budget.
What happens when you use up your time or research budget? The smart thing to do is to stop and advise the assigning attorney of the situation. Let the attorney know how much more time you anticipate requiring to complete the project and ask whether to proceed.
In legal research, one of the toughest questions to answer is ''How do I know when I have enough?'' Right now, you may not be able to make that call on some projects. By asking for a budget guideline on each project and consulting with the supervising attorneys along the way, you'll meet their expectations. At the same time, you'll have a more realistic idea of the amount of work in your queue and where you stand with your billable-hours goal.
The Pay-Off: Balance
Look around the firm. Which partners seem happiest, generate the most business and attract people whom want to work for them? They're the ones who find time to golf or bike, go to an occasional book-club meeting, or meet their spouses for dinner without turning it into a client meeting. They've learned to manage their time and lead a balanced, full life.
You might be able to ''gut it out'' for a few weeks or so, working 18 hours a day, seven days a week. But if you adopt this routine as a lifestyle, you'll short-change yourself and quickly burn out. The best thing you can do for yourself and your firm is to learn to manage your time, so you can enjoy a balanced lifestyle.
LexisNexis version of Time Matters 5.0 Manage your time more effectively
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As a new attorney, you're faced every day with multiple deadlines, court appearances, meetings research and all the other demands of representing clients. An overloaded in-basket here, a few dozen unanswered e-mails there... The problem isn't that you don't have enough time; it's how to manage the time you've got.
Handle all matters and documents relating to a case or client
Manage time-sensitive matters (court filings, calendar management, case docketing)
Track the time you spend researching a case for purposes of firm billing and much more, all from a single, easy-to-use interface.
Best of all, the LexisNexis version of Time Matters gives you single-click access to the LexisNexis Total Research System, including LexisNexis Case Summaries, Shepard's Citations, analytical content from Matthew Bender, and more than 3.3 billion public records.
And now...add back-office capabilities with Billing Matters 5.0
Billing Matters has the features that make Time Matters the most award-winning, most widely used case management system, plus everything you ever wanted in firm billing. Completely integrated with Time Matters or available as a stand-alone package, Billing Matters is designed to handle basic billing needs plus advanced requirements, such as trust accounting, budgeting, and productivity reporting.
Streamline your research, case and billing activities with the LexisNexis version of Time Matters 5.0 and Billing Matters 5.0
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* Writing For Clients
| Three building blocks to help you do it by Louis J. Sirico Jr. and Nancy Schultz |  |
When you communicate with lay clients, consider the expectations and hopes those clients probably have for communications from their lawyers. Several likely expectations come to mind:
Reassurance
Demonstration of competence
Clarification of the procedural status of the matter, and explanation of what happens next
Clear explanation of applicable law
Presentation of available options and consequences
Predictions about how matters are likely to be resolved
Demonstration of concern for the client as a person
Clear explanation of fees and costs
Respect for the intelligence and contributions of the client
This list demonstrates the complexity of the client's needs and expectations and the difficulty of meeting them all. Whether you are trying to persuade a client to accept a settlement, adopt some other specific course of action, or merely trying to persuade the client that you know what you are doing and are taking good care of the client's matter, every communication with a client has persuasion as a goal. How do we accomplish this difficult task?
Here are three suggestions:
Use appropriate language
Provide useful information
Inspire confidence
Use Appropriate Language and Provide Useful Information
Use language the client will understand and provide only details that will have significance to lay clients. Although technical legal language and the details of legal processes and authorities may be necessary to persuade other lawyers or judges, they will only confuse and frustrate your clients. For example, suppose you are writing to your client about the possibility of entering into a plea bargain. You wish to explain the process thoroughly, and thus your first draft might look like this:
Before you plead guilty to a lesser charge, you should be aware of what exactly plea bargaining means; the nature of the crimes with which you were charged; the nature of the lesser offenses with which you could be charged; and the consequences of plea bargaining.
Plea bargaining is the process whereby the accused and the prosecution negotiate a mutually satisfactory disposition of the case. Before a court can accept a guilty plea, it must first make sure that you enter the plea with a complete understanding of the nature of the charge and the consequences of your plea. There are basically four kinds of pleas.
You can plead not guilty to the entire indictment; you can plead guilty to the entire indictment; where two or more offenses are charged, you can plead guilty to one or more, but not all, of the offenses charged or guilty to a lesser offense with respect to any or all of the offenses charged (providing that there is a factual basis for the crime); or you can plead not responsible by reason of mental disease or defect. In plea bargaining, you should be prepared to concede some or all of your guilt in exchange for certain sentencing concessions.
However, you must be advised that the prosecutor may recommend a specific sentence. This, however, does not cabin the judge's discretion, unless he or she previously agreed to the proposed plea. Plea bargaining is not a constitutional right. Thus, as I stated earlier, it is my best judgment based on the history of prosecutors, the nature of the offense, and your background, that the prosecutor will plea bargain.
This example uses terminology the average client will find difficult to understand, and it provides far more detail than the client really needs or can process at this point. If the client has specific questions, you can address them in a subsequent letter or in a personal conversation.With this in mind, you might revise your draft to read this way:
Before we begin discussions with the prosecutor, I would like to offer a brief explanation of what plea bargaining means and what its consequences are. Plea bargaining is a negotiation between the prosecutor and the accused. The goal is to reach a mutually satisfactory agreement that resolves the charges without the need for a trial. Before a court can accept a guilty plea that results from plea bargaining, it must first make sure that the accused completely understands the nature of the charge and the consequences of the plea.
When we talk to the prosecutor, we will discuss both the offenses to which you may plead and the appropriate sentence. If you decide to plead guilty, you may plead guilty to some or all of the offenses charged or to a lesser offense that may be included. In plea bargaining, you should be prepared to concede some guilt in exchange for sentencing concessions. The prosecutor may recommend a specific sentence or the judge may use his or her own discretion.
Here is another example of a letter that is almost guaranteed to leave the client with more questions than it answers. It casually tosses around legal jargon and concepts without explanation and has a stream of consciousness flow that suggests the writer was thinking the problem through for the first time as the letter was being written. These characteristics are highly unlikely to encourage client comprehension or create trust in the lawyer.
Once again, to address recovery against Mr. Walker, there is still the issue of his negligence. Negligence is a cause of action that will allow a victim to recover against an individual who has committed a legally recognized wrong. If you would like me to continue with your case, I will send you another letter that goes into more detail about following this theory for recovery.
I must tell you though that because you were not wearing your seat belt, you may be regarded as being contributorily negligent in causing your own injuries.
I must research that issue to find out if our state is a comparative negligence jurisdiction. If it is, your amount of recovery will be reduced or barred based on how much you contributed to your own injuries. In light of this issue, you may want to consider whether it is worth going ahead with this claim or seeking an alternative recourse with Mr. Walker.
Here is a rewrite that the client should have a better chance of understanding. It simplifies the language, does not throw around concepts the client may or may not be familiar with (or that the client may not even need to understand), and clearly lets the client know what the lawyer is thinking and intends to do next.
We may sue Mr. Walker on the basis of his negligence. A victim of negligence may recover against an individual who committed a legally recognized wrong. Thus we must show that Mr. Walker caused the accident by doing something careless or illegal. Because you were not wearing your seat belt, a court may decide that you had a role in causing your own injuries. I must research that issue to find out whether a court in this state might decide that you should receive less money or no money because you were not wearing your seat belt.
Inspire Confidence
The client needs to believe that you are competent and that you have the client's best interests at heart. If you cannot convey these messages, you may not have many clients to represent. For example, suppose you are explaining to a potential client how you will handle the client's problem and what your services will cost. Feeling a little uncertain because of your inexperience, you might draft this paragraph:
At this point I have tried to give you a general idea of where you are with regard to the law and the penalties you face. Considering the severity of the charges levied against you, it is inappropriate at this time for me to advise you as to a definite course of action. As we discussed at our meeting, if you wish to obtain my services, I will need a $500 retainer check before I proceed. This check will be deposited in an escrow account and drawn upon at a rate of $100/hour. Please be aware that a case of this magnitude will probably be time consuming. However, realizing that you are not a wealthy woman, I will see to it that the initial $500 covers you at least up to the point where I can advise you as to a definite course of action.
There is no reason to rewrite this paragraph it should never have been written in the first place. While you must discuss fees with a prospective client, you should not ask a client to part with $500 when you seem to be saying that the case may be too complex and serious for you to handle with any degree of assurance.
Tell your client what $500 will buy. Presumably, you will use the initial five hours to conduct research and perhaps begin negotiations with opposing counsel. Then you will be ready to advise your client on a course of action. If this is your plan, state it in your letter. By presenting a concrete plan, you will promote confidence in your abilities.
Here is another example. Suppose you represent a client charged with embezzlement. You are advising him that a defense he has suggested will fail. You might draft this paragraph:
You have expressed what you consider may be a viable defense to these charges. You stated that you originally began stealing the money as an act of retaliation against the bank, because bank officers ignored some alleged sexual harassment charges you asserted against a female executive vice president. Unfortunately, my research did not uncover any evidence that retaliation for ignored sexual harassment charges is a viable defense to any of your criminal charges. Although you felt that it would be your way of compensating yourself for the alleged abuse, there is no guarantee that a court would have believed your story and awarded you any compensation. Thus, I disagree that this is a viable defense and may only be considered by the judge as being a reason for your actions.
After reading your draft, you would recognize its shortcomings. Although it explains that the law does not support the client's proposed defense, it does not demonstrate an understanding of the client's perspective. Therefore, it will not contribute to a good rapport with the client. You might revise the letter this way:
You have offered a defense to these charges. You stated that you originally began stealing the money as an act of retaliation against the bank because bank officers ignored sexual harassment charges you asserted against a female executive vice president.
Unfortunately, the law does not recognize retaliation for ignored sexual harassment charges as a justification for committing criminal acts. Although you felt that you were compensating yourself for the alleged abuse, the law requires that you pursue legal action in order to receive compensation. We can still pursue such an action if you would like to.
In addition, even though the sexual harassment will not be a defense to the criminal charges, the judge or the prosecutor may consider it in imposing a sentence or negotiating a plea bargain. I will certainly raise the sexual harassment with the prosecutor and the judge.
Here is a final example. In this letter, the lawyer seems to think the client can handle his own case:
First, your concern about the robbery is understandable. However, under the circumstances and without more information, I cannot in good conscience advise you as to the relative strength of your position. Your possible legal vulnerability notwithstanding, a minimum showing of four basic elements would be required for Ms. Graves to be successful against you. A successful demonstration of negligence on your part by Ms. Graves requires that 1) you had a clearly identifiable duty to protect tenants from harm outside of your building; 2) you breached (failed to fulfill) your duty to protect; 3) she suffered actual harm or damage; and 4) your failure to protect was the causal link to her suffering harm.
What is the client likely to think upon receiving this letter?: ''Am I liable or not? What was I going to pay this lawyer for anyway?'' After reading this letter, the client will not have much confidence in the lawyer. You should not give clients definite answers when you do not have them; however, at least you should explain how the elements of the law might apply to the client's situation.
Clients are a crucial audience. You must persuade your clients that you are the kind of lawyer they can trust to handle some of the most difficult and significant events of their lives. An essential part of a successful legal career is learning to communicate with clients in a way that they can understand and that inspires their confidence.
Louis J. Sirico Jr. joined the Villanova faculty in 1981, and is the Director of the Legal Writing Program. His books include: ''Legal Research'' (2nd ed. 2001) (with Nancy Schultz); ''Persuasive Legal Writing for Lawyers and the Legal Profession'' (1995) (with Nancy Schultz); and ''Legal Writing and other Lawyering Skills'' (3d ed. 1998) (with Nancy Schultz). Professor Sirico is the author of numerous articles on legal research and writing, property, and constitutional law. He was the founding Editor-in-Chief of the American Journal of Criminal Law and an Associate Editor of the Texas Law Review. He is a frequent speaker at conferences on legal research and writing.
Nancy Schultz is at Chapman University School of Law where she coaches teams for interscholastic competitions in trial and appellate advocacy, negotiations, and client counseling. Her teams have competed on the national level in all areas. Professor Schultz has co-authored three texts in the research and writing field, and has organized and presented numerous programs at national gatherings of legal writing professionals and other legal educators. In addition, she regularly conducts workshops on legal writing, negotiations, and client counseling for practicing lawyers in private firms, corporations and government agencies.
This is taken from chapter 10 of ''Persuasive Writing for Lawyers and Other Legal Professionals'' second edition, by Louis J. Sirico, Jr., and Nancy Schultz, published this fall by Matthew Bender.
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* Aim High, Start Now
| Realize Your Dreams with a Personal Business Plan By Felice C. Wagner |  |
It is often said that if you dont plan your career, someone else will plan it for you. No where is this truer than in the legal industry. Pushed and pulled in so many directions, it is increasingly difficult for todays attorneys to stay the course and meet their own goals as well as those of their firms.
Whether it is your career path or your client development and relationship management efforts, your personal success lies in your ability to avoid the distractions and focus on what matters most.
Personal business planning is not about writing a 50-page manifesto outlining every detail of every day of your professional life for the next 10 years. In fact, personal business planning can be as simple as you make it. Its about taking inventory of where you are, determining where you want to go and building a road map of action toward the career youve always wanted. Once you have the plan, all you have to do is revisit it every periodically to check your course and make any necessary adjustments.
Still skeptical about the usefulness of personal business planning? Consider the following:
Personal business planning allows you to chart a career course that matches your specific skills, abilities and interests.
Its a tool that can help you to align your own goals with those of your firm.
Having a written personal business plan makes it easier for you to review and revisit your goals on a regular basis, making sure that you will not stray too far off course.
Because it can take years to develop legal business, a business plan focuses you on what you need to do now to insure that youll have business down the road.
In todays highly competitive, highly specialized marketplace, a written plan of action will help you and your firm focus time and resources on those opportunities that offer the greatest chances for success.
As youre bombarded with new ideas and opportunities, your plan can help you stay focused. When the vast array of possibilities present themselves, your plan can serve as a personal Constitution that forces you to make a careful analysis before making amendments or changing course.
Finally, a properly written plan will help you measure and recognize the results of your efforts over time.
Here are some simple steps you can take to build your own person business plan:
Take an inventory of where you are. The first step in the personal business planning process is to survey your current situation. Often it helps to ask yourself a series of tough questions. What are your strengths and weaknesses? What practice areas and professional activities most interest you? What is the status of your network and your reputation? How does your personal situation compare with external factors such as your firms goals and objectives? Are your goals in line with the objectives of your firm? What about the status of your competition, both internally and externally? Are you looking to succeed in a field packed with attorneys having similar skills and goals? What are the trends taking shape in your geographic region, in your practice area and in your clients industries? For each client or prospective client, you should consider:
Past performance and future opportunities
The strength of your current relationships
Internal political, economic or reorganization activities that could impact client purchasing policies or your existing relationships
External political, regulatory or economic developments
Any other outside forces affecting your clients and potential clients
The state of your competition
Your core competencies as they relate to key client challenges and objectives
The clients level of urgency for overcoming challenges and achieving objectives vis-a-vis the speed at which you can deliver solutions
Do your goals and objectives capitalize on these trends? Given this analysis, what threats do you need to avoid and what new opportunities can you capitalize on?
Determine where you want to go. Now you know where you are, but where do you want to go? Think about creating a mission statement for yourself. I know it sounds corny, but the mere exercise of trying to come up with one is enlightening. Answer this question: ''why am I practicing law and what do I want to achieve?'' The answer doesnt have to be unique or earth shattering it just has to answer the question.
Also, your mission statement doesnt have to be long or particularly eloquent. In fact, you should try to keep it to one sentence. The most important thing to remember is that whether you want to become a partner in your firm, help the less privileged, become a judge, move in-house or start your own firm, your mission is yours and yours alone. Your parents were right you can do and be anything you want.
Build a map for getting there. Now you can being developing your personal business plan by plotting the steps between your current situation and your destination as described in your mission statement. To do that, you must first establish your long-term goals and then identify the intermediate steps and daily action that you need to take to achieve them. The following discussion should help clarify this planning terminology:
Establish long-term goals. First, to accomplish your mission, think about what long-term goals you will need to achieve. For example, if your mission is to become a partner, you might want to set long-term goals of winning a certain amount of new business or developing a new practice area. You might also speak with those people responsible for making partnership decisions to hear what they want to see you accomplish in order to support the decision to make you a partner. Once you know their expectations, you make exceeding them one of your long-term goals. If you are already a partner, your goal might be to develop a certain percentage of new business from existing clients over a period of time.
Set intermediate steps. Then, to accomplish these long-term goals, think about what steps you must take to reach them. To continue the above example, you might make it your objective to win two new clients that represent a certain percentage of your long-term business development goal. You might also want to work on three projects in the new practice area that you plan to develop. If your goal is to develop new business with existing clients, you might set a goal of having a certain number of face-to-face meetings with your current clients to discuss their current legal issues.
Start taking daily action now. Finally, to accomplish this years objectives, think about what short-term strategies or steps you can start taking immediately. For example, to succeed in winning two new clients you might determine that you need to build your referral network and become more visible in your practice area. As a result, you could take a leadership role in an association and begin writing articles and giving speeches. You might run for office in a Bar Association section in which you have an interest. Or, you might join Toastmasters to hone your speaking skills. To identify writing opportunities, you might decide to develop better relationships with key people in your firms marketing department so that they think of you when there is a writing opportunity that suits you.
To accomplish your objective of working on three projects in a new practice area, you might determine that you need guidance and additional skills. As a result, you could identify a mentor with experience building new practice areas. To further develop your skills, you could consider taking continuing legal education courses or seeking out opportunities to work on matters in which you can develop the skills you need to be successful.
To achieve the objective of developing additional business from existing clients, you might start by scheduling regular entertainment outings with key clients and, in the meantime, educating yourself about your their businesses. Whats going on in their industries? Who are their primary competitors? What legal needs might these clients have that your firm is not currently serving?
The key to building your road map is to make sure that each activity you plan to undertake has a clear deadline and is as specific, objective and measurable as possible. (e.g., ''I will take two CLE courses in complex litigation techniques by June 1'' or ''I will entertain Mr. Jones from ABC, Inc. once each quarter.'') Also, when it comes to planning, the biggest landmine is complexity and procrastination. Try to avoid creating a plan that overwhelms you or anyone you tell about it. And, remember that any plan is better than no plan at all. Strive to keep your plan simple and start taking action now.
Conclusion As an attorney, youre well versed in the areas of analysis and logic. In every instance, you look at the current situation and connect the dots to accomplish the desired objective. Apply the same approach to personal business planning and the dots you connect will lead you to the career youve always wanted to have.
Felice Wagner, a former practicing attorney, is CEO of Sugarcrest Development Group, Inc., a D.C. firm that gives seminars and training programs throughout the country on business development and client loyalty. She can be reached at (202) 462-7046 or felice@sugarcrest.com. Want to see how you measure up as a rainmaker? Take the Rainmaker Reality Check today!
www.sugarcrest.com
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* Enhancing Professionalism
| Practitioners Opinions on Reducing Defalcations and Misconduct through Post-Admission Ethics Assessment |  |
19 September 2006
Adrian Evans
Monash University, Australia
[Comments are invited to the author at Adrian.Evans@law.monash.edu.au
Not for republication without permission]
Introduction
At the IBA Annual Conference in Auckland in 2004, I suggested to delegates that it is
desirable for the legal profession to put more emphasis into prevention of unethical,
negligent and criminal behaviour via an accreditation process that goes beyond
competency (the prevailing agenda in many expressions of professionalism) and
address some of the personal elements that can influence conduct. This emphasis was
intended not only to limit disciplinary events and reduce thefts of clients' funds, but
fundamentally to inculcate a more rounded culture of contemporary professionalism:
one that recognises not just competence, but also values awareness, altruism,
autonomy and ethical behaviour.
At that time I believed that the best route to achieve these improvements was via
accredited specialisation alone, that is, by mandating certain additional assessable
tests of specialists ethical performance, which would then trickle down to other
practitioners. Since then, and with the benefit of a subsequent empirical investigation
of Australian specialist practitioners views, I am now persuaded that, while
accredited specialists professionalism can be addressed in this manner, the process of
enhancing professionalism among all lawyers could be definitively advanced with the
assessment of all lawyers performance. In this paper, I discuss the empirical research
which has led to this conclusion.
The essential enquiry in this task was the exploration of the views of experienced
practitioners about ethical assessment, a task which was both difficult and political,
for such assessment has the potential to provide a tool for member bars and regulators.
The latter group is waiting in the wings in many jurisdictions and looking for a
mechanism to reduce complaints and compensable events when bars do not act.
Yet the prospect of outside intervention need not be a spectre. Accountable methods
of improving lawyers' ethics may well be attractive to the profession, as Stephen
Parker suggests:
'It would be utopian to suggest that any simple document, akin to the oath
taken by medical doctors, could by itself change anything at all. It may be,
however, that there are lawyers who would welcome a change in the ethos of
what 'lawyers do' but who cannot afford to strike out on their own lest
advantage is taken of them....It may be...that some larger criteria should be
proffered by which the proposed actions of lawyers may be measured.'1
Parker did not say so, but his allusion to competitive advantage raises the possibility
of assessing legal professionalism, against which some practitioners and indeed whole
firms might seek to rank themselves and say, in effect, to others, this is my
assessment, what is yours?2
At the centre of the concept of professionalism is the notion of ethical behaviour. At
the moment, a lawyers worth is judged only on the basis of vague perceptions of their
reputation. That reputation is an unknown mixture of generalized judgments about
two essential ingredients: competence and ethics, both broadly understood.
Competence is sometimes assessed, but never ethics. Yet the measurement of ethics
would make it transparent as a concept and accessible for rating purposes, for which
there will be a market. Lets not forget that there are certain client groups, for example
transnational agencies, government departments and legal aid providers, who will
conceivably prefer to engage lawyers whose reputations are based on something more
tangible than reputation.
It is not the purpose of this paper to set out a detailed road map for assessing ethics
an altogether more expensive and resource intensive exercise than could be
accomplished in this setting but the groundwork is laid for that exercise by
identifying some possible initiatives in assessment and in establishing practitioners
reactions to those initiatives. It is and will be important to know what practitioners say
about certain initiatives well in advance of their trialling or introduction.
First however, it is necessary to mention two objections to assessing ethics. The first
objection is that assessment could reduce lawyers autonomy and independence.
Hilary Sommerlad observes:
'As soon as it is conceded that professional knowledge and expertise may be
subjected to analysis in terms of its component skills, then that professional
knowledge and expertise no longer belongs entirely to either the profession or
the individual solicitor but ... belongs to external monitors of those procedures
and skills.....[S]uch an approach which aims at ''understanding legal
competence and defining the lawyer's role'' (citing Avrom Sherr, quoted in
Legal Aid Board Press Release on Franchising, 1st August 1994) strikes at the
root of the professional monopoly; the mystification of the
'knowledge/expertise' through stress on its indeterminacy is what enables
professionals to create and retain their market, and independence.'3
Though Sommerlad refers to measurement of conventional items like 'competencies'
in skills, management and organisational ability, rather than the quality of less
tangible lawyer' attributes such as values, ethics and 'professionalism', her view is that
measurement of legal skills' components may reduce independence (arguably, a key
element of professionalism) because it makes lawyers' controllable by outside forces,
bodies and individuals. Further (and although there is no evidence to this effect4), it is
conceivable that the background presence of state regulation might psychologically
discourage and de-motivate some individuals from attempting to improve their
professionalism. Such individuals might take a minimalist, compliance approach
rather than one of self-improvement.
It is not possible to determine whether or not lawyers effective independence and
personal motivation is reduced by professional assessment, but conceding the virtue
of self-governed assessment of the sort anticipated in this paper might well be a sign
of real adaptability to perceived consumer dissatisfaction and regulatory pressure.
Such adaptability might well be the essence of occupational survival rather than a sign
of decline. It is also possible that agreement to some reduction in independence, for
example, by consenting to a law society proposal for client comment on
communication skills or to testing of ethics, would be an antidote to increased outside
control of those professional indicators. The argument might be: how can a rating
agency, for example, a regulator like the United States Securities and Exchange
Commission, hurt independence, in practice, by rating lawyers according to their
ethics? The higher a lawyers integrity, the argument might go, the less susceptible
they might be to outside or undue influence. Assuming a rating process itself were
methodologically legitimate and reasonable,5 is not a higher rating for ethics, or
almost any rating for ethics, not a boon to long-term survival, autonomy and
independence?
The second objection to the assessment of professionalism relates to the possibility
that some clients make demands on lawyers that work against certain ethical
obligations, leading to the question: what definition of ethics applies and what within
that definition is to be assessed? If, for example, in some well-known ethical cultures
which place zealous advocacy at the very pinnacle of duties, the idea of ethics rating
or assessment is seen as a client disincentive because the client just wants a killer -
ethics assessment (except on a very narrow base), might be completely unworkable.
There are two questions that might be asked here: first, does the international legal
community wish to tacitly support a single ethical approach in all cases? Secondly,
why cannot the technique of ethics assessment focus not on whether one ethical
system is superior but rather on complexity, so that a lawyers personal rating for
ethical consciousness would look at, for example, their degree of values awareness,
their knowledge of the various bases of ethical decision-making (which includes
zealous advocacy but need not be dominated by it) and finally, the individual capacity
for complex ethical judgment?
The empirical study described below considered these questions from a preventative
perspective: that is, what could be introduced that might limit future malpractice,
negligence, misconduct and even defalcation?
An Australian Investigation in Support of a Preventative Approach
An investigation of experienced Australian practitioners views as to the possibilities
for preventative assessment of certain elements of legal professionalism was
undertaken by the author between 2001 and 2005.6 The objective was to decide how
best to assess professional elements, especially ethical elements, in such a way as to
avoid any one approach to ethical decision-making.
Survey Methodology
This essentially qualitative investigation was based on a multi-stage research design,
which was intended to balance the cost of the process against reasonable outcomes.
To begin with, a formal scoping investigation of eight individuals (legal professional
leaders) was conducted in Melbourne, in relation to local perceptions as to the
elements of professionalism.
The results of that essentially heuristic investigation were then used to develop and
refine an instrument for use with a main, qualitative research cohort of 30 experienced
Victorian legal practitioners, chosen randomly from the list of current accredited
specialists. Both groups participated in detailed, recorded interviews which allowed
detailed exploration of relevant themes, sufficient, because of that detail, to emulate
the results that might have been available from a large quantitative investigation.
The combined process has permitted a (parochial7) determination, inter alia, of the
contents of a possible suite of measures of legal professionalism and the possibilities
for implementation, that is, the practical and political issues to be considered in
making the process work.
The design adopted in this investigation tried to build the factors of professional
acceptance and affordability into the detailed questions of and discussions with
interviewees. Additionally, in this design, considerable attempts were made in the
conduct of interviews to seek interviewees opinions without initial reference to the
possibility of future regulator interest in the proposals under discussion.
While discussion with interviewees often turned to likely regulator interest, this occurred
only after exploration of their own opinions as to necessary elements of
professionalism and the acceptability to peers of various proposals for improvement.
The research hypothesis was that there may be certain elements of legal
professionalism, that is, practical and desirable normative characteristics of the
lawyers role, that could be crucial in improving behaviour if they are identified and
assessed in some way, at an appropriate point after admission to practice.
The hypothesis surmised that, consequent upon the insights from the Australian Lawyers
Values Study,8 identification of the relevant elements and of the likely approaches to
their assessment was not likely to be productive at the actual point of lawyers
admission to practice. Essentially, the Australian Lawyers Values Study shows that
the impact on the elements of professionalism of the academic phase of legal
education appears too limited, while that of the practice environment is likely to be
too great, to permit useful assessment of those elements at the time of admission.
Much of the complexity in assessing legal professionalism is best represented in
qualitative text and visual displays rather than statistical relationships; although the
latter can of course give more precision to findings when extensive data is available
and tests exist to represent that information. While minimal quantitative techniques
were used in this study, most of the analysis was based on text analysis and is also
displayed visually.
In order to provide the necessary depth in analysing the opinions of the interviewees,
each interview was recorded, transcribed and then analysed with the assistance of the
research software, NVivo.9 The approach taken to reporting on the analysis is to set
out the themes derived from the interviews, according to the categories of concerns
created within the software during the analysis or coding of each of the 30
interviews. Often, the successive coding of new interviews added to and varied
existing coding in prior interviews, as thematic associations became clearer. For each
category, primary, secondary and tertiary themes were identified by the software
coding process and are displayed in the following pages. Relevant quotations from the
interviews are also used to illustrate the import of themes where appropriate. The
categorical text displays are followed by visual models (derived via the analytical
software) to represent the full depth to the inter-relationships of interviewee opinions
and assist observation, interpretation and summative statements.
A qualitative approach to analysis is necessarily different to a quantitative
investigation. The latter relies on sample design to permit statements about the
majority or percentage in favour, etc., where the result can be considered
representative of the whole group and not due to chance alone. In the following
analysis, terms such as the majority are generally avoided because qualitative
analysis relies on the researchers interpretation of recurring themes rather than sheer
numbers of responses. Except in a very few cases, the terminology used contemplates
at best, a consensus of opinion, where that appears justified by the themes exposed
through NVivo.
Awareness of Values and Ethics as a Contribution to Ethical Behaviour
Background
If active testing for integrity may be too controversial for general professional
endorsement, the same might not be said for the more limited concept of testing
lawyers awareness of their values and of ethical concepts, as a professional
enhancement strategy. Values and ethics awareness seeks to be revealing of what is,
rather than changing to what might be, although the hope is that enhanced awareness
might lead to better behaviour. In the following section, interviewees reactions to the
possible introduction of (1) values and ethics awareness training and (2) testing
processes, as a post-admission initiative, are discussed.
There is no incontrovertible evidence that lawyers better awareness of ethics leads to
better ethical behaviour,10 but the plausibility of some connection is evident in some
recent research. Thus, there are indications from the Australian Lawyers Values
Study that a personal understanding of so-called behaviour-relevant values (BRVs),
that is, those values which appear to be related to intentions about behavioural
choices, do bear some relationship to reported behaviour. BRVs, especially among
women, appear to have an observable effect, not due to chance, on ethical decisionmaking.
11 In the focus group discussions within that study, the workplace behaviours
of the first and second-year respondents12 appeared to be increasingly informed by the
values reflection that they commenced at the start of their participation in the research
process and were continuing to engage in as they entered practice.
To the extent that awareness of values may have some relationship to behaviour (or,
expressed in the negative, that ignorance of values helps to maintain the status quo), it
seemed desirable to question respondents to ascertain whether a measure of enhanced
values and ethical awareness would be acceptable to practitioners as a useful
contribution to improving behaviour.
Although this question was most often discussed in the context of accredited
specialists, the following display sets out the major empirical findings in relation to
the awareness of values and ethical principles as an indicator of ethical behaviour:
Opinions of Interviewees
Testing for Awareness of Values and Ethics
Yes, testing is useful:
...I prefer to deal with colleagues who are ethical I would not be threatened in addressing those issues in an examination process.
test in an examination setting for conflicts awareness, for reasoning and capacity to exercise judgment, for the level of pervasive ethical understanding:
...last year, if I had introduced in the exam a fatal ethical issue (which we do want the candidates to understand), the question could have been answered quite quickly and the rest of the [technical] discussion would have been unnecessary. May be a case therefore for separate questions re [different] ethics [issues] - but I still think integrated questions can also be discussed, but maybe only if they do not contain ethically definitive issues, leaving the latter to separate questions.
...we definitely need exams on ethics issues... and because the Law Institute is
swamped with new lawyers and there are predators circling, including in the business
specialisations), they should be trying to push very, very hard this excellence thing,
which should include ethics - yes its a business advantage to people.
no, its an issue, but its overstated:
...perhaps a bit of [ethics], but I personally think that the ethics side of it has been blown out of all proportion.
...ethics should be more structured and more regular and apply to everybody, not just
specialists.
Interviewees were clearly persuaded that testing in an examination setting for
conflicts awareness, for ethical reasoning and for the capacity to exercise (ethical)
judgment, that is, for the level of pervasive ethical understanding, is the key approach.
A significant sub-group agreed with such testing but preferred an interview process to
a written examination. The model below sets out the full range of interviewee opinion.
The main point to note in this model is the discussion about whether ongoing testing
of values and ethics awareness makes any difference to a lawyer, after their
immersion in the practice environment? In other words, will better awareness change
behaviour?
Figure 1:
Visual Model of All Themes Connected with
Testing for Values and Ethics Awareness
relevance to hypothesis:
(10) TESTING FOR VALUES & ETHICAL AWARENESS
(10 3) YES, TESTING IS APPROPRIATE
(10 3 6) but, will it change actual behaviour?
(10 3 6 1) at least it raises awareness
(10 3 6 2) uncertaiin in effect on behaviour
(10 3 2) which issues to test?
(10 3 1) method of testing
(10 3 11) look at the Migration Agents Bd training process
(10 3 8) but it will compete for exam space
(10 3 10) but would it lead to GP disregard for ethics?
(10 3 3) it is some sort of endorsement of ethical sensitivity
(10 3 4) it's still worth while, despite 5 yrs of conditioning
(10 3 4 1) NOT 'despite' - but BECAUSE OF 5 yrs experience
(10 3 5) linking competence and ethics testing is intriguing
(10 3 7) valuable for small practitioners
(10 3 9) market testing process as a business advantage
(10 4) NO
(10 4 14) no, its for all lawyers the whole ethics thing has been blown out of all proportion
(10 4 9) regulation counts, not ethical awareness
(10 4 1) it says only that you've stayed out of trouble
(10 3 1 2) test in concrete, area-specific settings
(10 3 1 3) add an additional question to the exam
(10 3 1 4) use the 'letter of advice'
(10 3 2 1) test conflicts of interest awareness
(10 3 2 2) test for reasoning and capacity to make a judgment
(10 3 2 3) test 'non-fatal' & 'fatal' issues separately
(10 3 2 4) test the 'level of ethical incorporation'
(10 3 2 5) test 'pervasive' ethical awareness
Observations and Interpretation on the Model of Awareness of Values and Ethics as a
Contribution to Ethical Behaviour
Some respondents were not sure about exam-based testing, preferring the in-depth
personal interview by peers, because of their intuition that this is more revealing of
complexity and ethical depth. Yet, the sense that testing was both important and
achievable was pronounced.
But one interviewee referred to her speciality environment (family law) to point to
regulatory change as the more effective influence on behaviour:
I dont think [an] exam [that tests ethics] will help people to be more ethical. I
think the culture will be turned around more by things like the pre-hearing
procedures rules, because that forces the practitioner to address the issues [of
mediation, consent, etc]. Everybody knows what the right thing to do is, what
they should do and what the right answer is...and thats not necessarily going
to have an impact I think.13
However, no one thought that new practitioners knew what the right [ethical] thing to
do was. Independently of that study, the Australian Lawyers Values Study
established, inter alia, that awareness of values and ethical principles is likely to
improve actual behaviour.14 The sense among some interviewees was that, despite
their uncertainty as to whether a direct, strong relationship existed between
practitioners increased values awareness and their better behaviour, their intuition
was that such a link existed. This is a crucial finding because it supports a connection
between testing awareness of values and ethics and the prospect of better behaviour. It
is the testing process that is crucial to this connection.
The linkage between these two
propositions (that awareness and behavioural improvement are associated) was
repeated in this qualitative investigation. Whether strong or weak, any prospect of
linkage was considered by interviewees to be sufficient to justify an assessment of
values and ethics awareness.
Similarly, interviewees perception that assessment for increased awareness of values
and ethical principles would improve behaviour was accompanied by a sense that
newly admitted practitioners understanding of ethics is basic only and that there
needs to be a countervailing ethical force exerted on the (often adverse) conditioning
process that can set in, after admission to practice:
...yes, absolutely, I think you should have ethical awareness because the
people [who have been adversely conditioned] havent been exposed to that
information, if theyre exposed to the information then at least they have it and
might be able to make some better decisions about how they continue to
practise, perhaps better ways to do things. A lot of educated people will take
this on board, especially a lot of younger people.15
Interviewees had a generally strong sense of a probable linkage between enhanced
levels of awareness of values / ethics and of better ethical behaviour. Whether or not
such assessment should occur for all lawyers or just sub-sectors such as accredited
specialists was, in a sense, peripheral to their support for the concept of such
assessment. The observation was made by some interviewees that the continuing
professional development (CPD) process would provide the vehicle for such testing,
but there is no testing in that arena in most jurisdictions, as yet.
There was a clear view that outcomes or results from major cases or transactions
remain the major determinators of personal achievement and client satisfaction (and
hence competence must remain at the top of the list of professional elements), but
there was also a strong sub-theme that ethical awareness and behaviour were crucial
supporting elements. Older specialists in particular were very reflective in relation to
the notion of assessing ethical understanding, of the ability to remain calm under
pressure and to make complex ethical judgments, as worthy of encouragement and
appropriate for assessment, in addition to competence. Among this last group, the
strong view was that a peer interview process was the only way to really get to grips
with a lawyers actual capacity for complex ethical judgment.
Qualitative, peer-based assessment of a practitioners ethical depth and capacity for
judgment via a panel process - was intrinsically preferred over the less expensive
examination testing (for both general practitioners and accredited specialists), because
exams were seen as insufficiently sophisticated for these purposes. Cost nevertheless
played some part in interviewees support, at least, of exam-based ethics assessment.
However conducted, ethical assessment was almost universally supported as a post-
admission agenda, though views differed as to the best time to undertake same. The
minimum period suggested was three years after admission to practice.
The only real hesitation about ethics assessment among interviewees was the expected
cost of the process, though even this factor was thought to be less of a concern if the
stakes for the profession were raised by a sufficiently unsavoury disciplinary scandal
and the potential for outside regulators to become involved was emerging.
Advocacy for Change
There appear reasonable grounds, based on this research, to suggest that assessment
for values and ethics awareness could play a useful role in improving ethical
behaviour and that such assessment ought to be taking place sooner - but not too soon
- rather than later - in the professional life of every lawyer. A judgment would be
required as to the appropriate time after admission at which to conduct this
assessment, but again indications from this investigation are that the three-to-five year
period after admission is sufficient to allow for some experience of practice to
infiltrate a lawyers ethical consciousness, but not so much as to prevent or check
their responsiveness to the tangible feedback provided by an ethics assessment
process.
In addition to the above investigation of ethics testing, a number of other specific
suggestions for improving professionalism were put to respondents. The following
section summarises the results in relation to those other proposals.
Summaries of Specific Enhancements to Professionalism
The NVivo model in Figure 2 and the commentary which follows, summarises results
about the usefulness of certain specific enhancements to improving professional
behaviour:
Figure 2: Summary of Findings Regarding Improvements to Professionalism
(8 3) Key Issues in Disciplinary History
(8 3 9) mandatory disclosure & show cause
(8 3 9 5) relevant priors, not so much the number
(8 3 9 5 2) always a case-by-case issue
(8 3 9 5 3) threshold - financial dishonesty
(8 3 9 5 3 1) [connection to ethics testing]
(8 3 3) offence-free period better than bar
(8 3 6) prefer referees for renewal at 5 yrs
(10 2) Key Issues in Ethical Testing
(10 2 3) it is some sort of endoresement
(10 2 3 4) still worth while, despite 5 yrs of conditioning
(10 2 3 4 1) not 'despite' - because of 5 yrs experience
(10 2 3 4 1 6) but, will it change actual behaviour?
(10 2 3 4 1 6 1) at least it raises awareness
(5 7) Key Issues in CPD
(5 7 9) introduce pervasive ethics in CPD
(5 7 9 14) [maybe pervade better ethics to GPs]
(5 7 9 1) attendance without audit is meaningl
(5 7 9 5) test CPD learning, but
(5 7 9 5 11 1) mandate study groups
(5 7 9 5 1) cost would be high
(5 7 9 5 2) 'enormous implications' for the LIV
(5 7 11) accredit study groups
(5 7 10) accredit providers
(1 6) Key Issues in Client Rating
(1 6 4) ok in principle re comm~ skills
(1 6 11) client comm'n not being handled well
(1 6 6) risk of case result dependence
(1 6 5) invasion of client privacy
(1 6 5 1) very few of my clients would consent
(1 6 5 1 2) professional referees more reliable
(1 6 5 1 2 1) better to expand referee process
(4 2) Key Issues in File Audit
(4 2 5) scary, because risks must be taken
(4 2 5 1) creating benchm'k of reasonable risk
(4 2 5 1 10) select 10% of last 3 years files
(4 2 5 1 10 1) and look for what~
(4 2 5 1 10 1 1) the range of acceptable approaches
(4 2 5 1 10 1 2) signs of administrative efficiency
(4 2 2) files reflect your professionalism~
(4 2 2 1) if you knew it was coming
(4 2 1) messy lawyers not always incompetent
(4 2 3) blow scheme costs out the window
(4 2 6) qualified no - intrusive of clients
(7 6) Key Issues in Psychological Testing
(7 6 2) psychological tests are rubbish
(7 6 2 7) ok, but some clients want a killer
(7 6 3) alternatively, via a panel
(7 6 3 11) no, its oppressive & infringes civil liberties
(7 6 3 11 15) its an admission issue
(7 6 3 11 15 5) no, too early to test at admission
(7 6 3 11 15 2) fairer to test at admission
(9 1) Key Re-Testing Issues
(9 1 2) objectively, it has some merit
(9 1 2 4) By analogy to drivers' re-testing~
(9 1 2 4 1) early candidates now too comfortable
(9 1 2 6) the currency is debased - threshold?
(9 1 4) maybe better to test CPD rigorously (9 1 9) not affordable
Disciplinary History
Interviewees with the introduction of a requirement for a practitioner to demonstrate a
satisfactory disciplinary history at some point after admission to practice, as a
condition of renewal of a practising certificate, providing that a type of show cause
process was attached so that no perverse findings resulted from too harsh
administration of a general rule. The cost of such procedures was not seen as
significant because most practitioners would have no relevant history. Between three
and five years after admission was seen as the best time period at which to assess this
issue, as the best compromise between community protection and sufficient time to
demonstrate any necessary reformation.
Continuing Professional Development (CPD)
The potential of CPD to improve all aspects of a practitioners competence if
accompanied by provider accreditation and participant learning assessment, seems
incontrovertible. Change is overdue. Although interviewees subjective support for
this initiative was limited, usually because of personal dislike of assessment but
otherwise for reasons of cost, most were objectively in support of assessment of CPD
as a logical progression form the existing non-assessable schemes.
Client Rating and File Audits
Ideally, client rating ought to be invaluable to lawyers as a means of improving a
range of skills and ethical sensitivities. However, practical difficulties including client
cooperation are for the present considered insuperable by interviewees, except for
relatively small groups of corporate clients, among whom a feedback process could
usefully be trialled. Outside this narrow context, standardised surrogate clients (now
under trial in some jurisdictions, with actors assuming client roles) and randomised,
client file audits appear to be both more accessible and more acceptable techniques in
gathering information about practitioners interpersonal skills.
While the cost of both audits and surrogate clients is again a discouraging factor to the
profession, quantification may be assisted by sampling and/or random selection of
practitioners. The gain in proficiency from auditing file maintenance standards on a
random basis is likely to be attractive to consumer advocates and regulators-in-thewings
over time, particularly as experimentation becomes more widely known.
Psychological Testing of Integrity and Values Awareness
The profession as a whole is nervous of the negative possibilities of quantitative
psychological testing of lawyers integrity. Voluntary participation in psychological
testing processes in order to improve on the traditional approach to selecting staff by
an interview and referees, is unlikely. Nevertheless, the fact that interviewees in this
study were aware of and understood (a self-destructive) client demand for dishonest or disingenuous lawyers,16 seems to justify a need for some process to reduce the
numbers of such practitioners.
While there was some serious and strongly expressed support for the concept of
psychological testing of lawyers, active testing for integrity was too proactive for
most interviewees. The more limited concept of testing lawyers awareness of their
values and of their sense of complexity in ethical judgment received much more
consistent support, as mentioned above. Ideally, the CPD system would be the ideal
method of implementation of such assessment, if it were itself enhanced by the
accreditation of providers and learning assessment.
Re-testing of Accredited Specialists
It is beyond understanding to see how the logic of continuing assessment of members
proficiency can be sidelined indefinitely by the legal profession. Professionals
accountability is ever upwardly mobile. Re-testing is opposed by lawyers for
understandable reasons of annoyance with any need to re-establish a superior level of
skill and knowledge. However, the combination of the current basic, not to say
primitive, CPD process (with no re-testing for general practitioners or accredited
specialists), renders their proficiency marginally less credible with each year, as
practitioners age and their capacity for integrating new law gently though steadily
declines. Re-testing of accredited specialists at least, was seen as necessary and
perhaps inevitable.
Implementation Costs
Interviewees awareness of the benefits involved in testing elements of
professionalism was always tempered by the compliance agenda: not so much the
legitimacy of compliance, but its cost. Thus they were generally inclined to argue for
affordability when any initiatives that might improve professional behaviour were
discussed. These interviewees were self confident and self assured, convinced they
were doing a good job for their clients, yet also well aware that their performance was
partially determined by the degree of efficiency and fairness of the wider systems of justice. The notion that their own standards played a role in the utility of the wider
system met with ready acceptance.
Quite radical suggestions for increased monitoring of lawyers met with careful, considered responses. Standards of competence and ethics in general practitioners were seen as under considerable pressure. Some urged immediate introduction of ethics-related initiatives but most wanted to see what their peers thought, after this research is publicised, before committing themselves further.
Throughout this research process, a factor in the reluctance of many interviewees to
engage with particular self-governing initiatives that might increase the cost of selfinterested behaviour, stemmed from their concern about who would bear the cost of
implementation. Interviewees were unhappy that the profession would initially pay for
any major initiatives and that such payment would be followed by clients collective
contribution through higher legal fees. The fact that the cost would be passed on did
not detract from interviewees concerns but emphasised them, because even they
perceive many legal services to be too expensive relative to value. They are
apprehensive of further client price resistance and potential competitors in some
specialisations. They were not perturbed by increasing the overall cost of poor
behaviour: their concerns were far more immediate and reflected, as much as
anything, concerns for their clients access to justice.
Yet cost transfer to clients is a given, regardless of the source of change. If the
profession were to decide to trial some of the initiatives suggested in this paper, it
would initially pay through higher levies on practising certificates. Similarly, if a
regulator such as a Legal Services Board or Fidelity Fund were to require the same
trial, or just proceed to implement something from scratch, the profession would pay
and then partially shift the burden to clientele.17 Any increase in the expected
standards of legal practitioners will come at a cost.
Conclusion
Perhaps the most single surprising finding arising from this empirical investigation is
the prominence which all interviewees, including the relatively hard-bitten accredited
specialists, wished to give to ethical considerations in their assessment of the elements
of professionalism. Although this emphasis upon ethics might have been expected of
professional leaders, who seem prone to make pronouncements about such issues, the
coal-face lawyers were also of this view.
Naturally, a researcher must beware the risk that statements of intention do not
automatically translate into behaviour, but the analysis suggests that, among the main
cohort of practitioners, these intentions were sincere. Also, the support for ethics
assessment was not unanimous: there were a few interviewees who were also quite
clear about prioritizing business success in legal practice over the means employed to
achieve that success.
The sheer weight of business pressure has not stopped calls for professional rather
than commercial behaviour, when the two are in apparent conflict, and the
consistency of these calls over the years testifies, if nothing else, to the continuing
aspiration to remain ethical despite the apparently contradictory commercial pressures
of legal practice. Bar associations can remain central to this quest, but it is now
increasingly commonplace to call for the law societies and member bars, as the major
institutions concerned, to be bypassed18 in favour of community and presumably
regulator control. Before this occurs, it is worth offering up a last opportunity to those
societies and bars to act. I suggest it will require only one more major incident in
some jurisdictions, for regulators to step in and mandate ethics assessment in a postadmission context. Regulators who could act decisively include client protection
Funds that compensate clients for both defalcations and negligence and who are under
pressure to take action to control the costs of such compensation. Professional
indemnity insurers are also candidates over the medium term to assess ethical
performance in an effort to control premium costs.
Regulatory involvement in the affairs of lawyers is not unprecedented. Governments
have unceremoniously despatched law societies from key regulatory roles when they
considered circumstances required it.19 Abel suggests that the threat, or even the possibility of threat of external pressure for reform, is needed before a law society
reacts and does something about poor lawyer performance.20 Based on past
experience, it is likely that it will be a matter of time only before circumstances
emerge in any one jurisdiction, that will call for a far more comprehensive effort to
improve legal professionalism than the piecemeal approach taken to date.
The assumption in the professionalism debate is that better, profession-initiated
structural systems surrounding client care, attention to fairness and access to justice
will encourage those who are willing to change. However, those who should not be in
legal practice anyway (for example, because their motivation is exclusively
monetary), will be untouched by aspiration. Some of those individuals may respond if
their individual behavioural propensities are assessed, that is, regulated.
The suggestions in this paper for assessing those elements of professionalism that may
usefully improve professional behaviour are examples of legal regulation, but,
because the exercise could involve an assessment of values awareness, it could also
have an aspirational effect which would not cost a great deal to implement. In a
sense, the objective here is to find that balance between aspiration and compulsion,
where maximum encouragement may be given to self-governance, with just so much
prospect of external compulsion as is helpful in galvanizing that aspiration in the
direction of behavioural improvement.
---------------------------------------------
1 Stephen Parker, Senate Cost of Justice Discussion Papers - Legal Ethics, No 5, Senate Standing Committee on Legal and Constitutional Affairs, Australian Government, Canberra,1992, p 115, para 6.88
2 Deborah Rhode has also suggested that their may be benefits from assessing superior ethics in lawyers: 'Lawyers as well as clients also need further information about law firms and other legal employers. Bar and public interest organisations should help develop best practice standards and ways to assess compliance. Such standards could require procedures concerning ethical training, supervision, diversity, pro bono service and related concerns. The point should be to reward lawyers for socially responsible behaviour and to encourage individuals to select practitioners with strong ethical
reputations. See Deborah Rhode, In The Interests of Justice: Reforming the Legal Profession, New York, OUP, 2000, p 210
3 Hilary Sommerlad, Managerialism and the Legal Profession: A New Professional Paradigm, (1995) 2(2/3) International Journal of the Legal Profession 159-195 at p 182
4 Deborah Rhode states, in relation to the effect of law school mandatory pro bono requirements upon law student motivation to offer voluntary services after admission to practice, that there is no evidence that those law students currently volunteering will decline if those who are not, are made to do so.
Deborah Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students in Ethics in Practice, New York, OUP, 2000, pp 264-269
5 This assumption begs the whole premise of rating, but of course, peer-derived standards are not necessarily the best standards, as experience of lawyers self-regulation in complaint handling has made clear all too often. Nevertheless, lawyers who develop their own methods to assess professionalism beyond competence would be evidencing a concern to respond to social demands and might be concerned to see that their methodology was robust enough to withstand regulator and academic scrutiny
6 This work was completed towards an ongoing doctoral investigation of the elements of legal professionalism.
7 in relation to the views of lawyers practising in the Melbourne metropolitan area, Victoria, Australia
8 Adrian Evans and Josephine Palermo Zero Impact: Are Law Students Values Affected by Law School? 8(2) Legal Ethics 240-264 (Winter 2005)
9 The research software, NVivo, takes its name from the Latin in vivo (in a living thing) and points to the likeness of the text analysis process to the exploration of complexity in a living organism. Thus, the words of the living interviewee provide a window to that organism and in some cases, particular phrases or quotations stand out as especially significant of that individuals persona. Much as one of the professional leaders, a senior judge, pointed to the crucial importance of self-understanding of values to the professional function (Letter to author, 30 August 2001), NVivo utilises a special coding
function which permits self-revealing phrases and sentences to be coded and named in vivo, that is, as a living, shorthand statement of an underlying and deeper meaning.
10 Jayne Barnards advocacy of renewable bar admissions in the United States, as a method of testing ethics knowledge after admission, is also premised on the likelihood of this connection. See Jayne W Barnard and M Greenspan, Incremental Bar Admission Lessons from the Medical Profession, 53 J Legal Educ 3, 2003, pp 340 -367
11 Adrian Evans and Josephine Palermo Australian Law Students Values: How They Impact on Ethical Behaviour15 (1 & 2) Legal Education Review 1-24 (December 2005)
12 That is, articled clerks or PLT students (first-years) and newly admitted practitioners (second-years).
13 Extract from interview with accredited specialist AC18
14 See generally Adrian Evans and Josephine Palermo, Zero Impact: Are Law Students Values Affected by Law School? 8(2) Legal Ethics 240-264 (Winter 2005).
15 Extract from interview with accredited specialist AC15
16 Such clients are self-destructive in the sense that they ordinarily require their lawyers to treat them honestly while simultaneously dealing with their opponents dishonestly, if the need arises. The supposed bifurcation of lawyers allegiances is unlikely to remain indefinitely. Sooner or later, such lawyers dishonest tendencies are likely to infiltrate their client dealings as well.
17 Progressively, the funds that were formerly available to support legal regulation from the interest on clients trust balances, will be reducing as the effects of electronic conveyancing also reduce the balances held in practitioners trust accounts over time. See Adrian Evans, E-Transfers A Threat to Funding, 25 November 2005, The Australian, p 24
18 See, for example, Christine Parker, Regulation of the Ethics of Australian Legal Practice: Autonomy and Responsiveness, (2003) 25(3) UNSW Law Journal 676-703 at 702.
19 Most recently in the case of Australia, in Queensland.
20 Richard Abel, Why Does the ABA Promulgate Ethical Rules? (1981) 59(4) Texas Law Review 639-88. Thr plausibility of this power relationship has been endorsed by Christine Parker, Just Lawyers, Oxford University Press, Oxford, 1999, p 148
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