Accommodating Diversity in Practice
Long title
The Limitations of Codes of Professional Conduct - Accommodating Diversity in Practice at Law School
Author(s)' contact information
Bond University, Queensland, Australia
Conference title
International Legal Ethics Conference VI
Conference location
City University London
Country
Australia
Year
2014
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Abstract
Many commentators regard the ‘one code fits all’ approach to regulation of the legal profession as unsatisfactory especially in light of the fact that legal practitioners are increasingly engaged in diverse practice settings some of which are non-adversarial in nature. This paper identifies and evaluates alternative ways of regulating the legal profession so as to accommodate diversity in practice. It discusses the possibility of promulgating:
1. multiple specialised codes for different areas of law (family law, criminal law, bankruptcy law and so on)
2. multiple specialised codes for different processes (such as litigation, mediation, unassisted negotiation);
3. ‘middle-level’ codes, somewhere in between general codes and a totally discretionary approach to legal ethics. Middle level codes might be based on a number of factors such as subject matter, process, task, lawyer position (e.g. sole practitioner versus large firm) and client position (e.g. individual versus corporate client);
4. a contract model in which lawyers and clients can contractually choose the ethical obligations under which they want to operate.
Given the lack of consensus on this issue and the fact that all of these models of regulation are inherently limited, the author concludes that the best and most likely possibility is the continued regulation of the profession through one general uniform code of conduct. If this is indeed the case, then the challenge of modifying adversarial traits – assuming modification is necessary, and of educating for diversity in practice, might fall to law schools. The paper offers some suggestions for meeting this challenge.
1. multiple specialised codes for different areas of law (family law, criminal law, bankruptcy law and so on)
2. multiple specialised codes for different processes (such as litigation, mediation, unassisted negotiation);
3. ‘middle-level’ codes, somewhere in between general codes and a totally discretionary approach to legal ethics. Middle level codes might be based on a number of factors such as subject matter, process, task, lawyer position (e.g. sole practitioner versus large firm) and client position (e.g. individual versus corporate client);
4. a contract model in which lawyers and clients can contractually choose the ethical obligations under which they want to operate.
Given the lack of consensus on this issue and the fact that all of these models of regulation are inherently limited, the author concludes that the best and most likely possibility is the continued regulation of the profession through one general uniform code of conduct. If this is indeed the case, then the challenge of modifying adversarial traits – assuming modification is necessary, and of educating for diversity in practice, might fall to law schools. The paper offers some suggestions for meeting this challenge.
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