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Abstract
This paper asks the question of why, in some cases, a client is precluded from demanding of their lawyer that they act for them and their adversary simultaneously. We accept that in numerous instances a lawyer can act for clients whose interests may diverge (or in some cases do in fact diverge) providing informed consent has been obtained. This paper enquires as to why the line between waivable and non-waivable conflicts is drawn where it is, and examines the theoretical underpinning of the waiver rule and its boundaries. It does so by first looking at the client autonomy argument for allowing waivers. It then turns to explore the paternalistic justifications for rendering a consensual waiver of a conflict inoperative. Finally it looks at those cases where a waiver is not permitted that are left unexplained by paternalism. It argues that paternalism, properly understood, is a legitimate justification for most refusals to accept a waiver of conflict. However, a residual body of cases remain unexplained by paternalism. Those cases are best explained by the propensity of the law and the legal profession to protect its institutional values and interest.
Notes
[2] A second aspect of the duty of loyalty, lawyer–client conflict, is clearly more problematic and raises issues of the ability of the self-interested lawyer to negotiate any waiver. In light of this, this paper will concentrate on waivers in client–client conflicts.
[3] For example a situation where two business partners wish to dissolve the partnership amicably would be an actual conflict of interest: Taylor v. Schofield Peterson [1999] 3 NZLR 434.
[4] A classic example is where a solicitor acts for a mortgage lender and purchaser: Mortgage Express Ltd v. Bowerman & Partners (a firm) [1996] 2 All ER 836.
[5] This is apparent from Ethical Consideration 5-20 of the Model Code which provides:
A lawyer may represent several clients whose interests are not actually or potentially differing. Nevertheless, he should explain any circumstances that might cause a client to question his undivided loyalty. Regardless of the belief of a lawyer that he may properly represent multiple clients, he must defer to a client who holds the contrary belief and withdraw from representation of that client. | |||||
[6] See R. Epstein, The legal regulation of lawyer's conflicts of interest (1991) 60 Fordham Law Review 579 for an analysis of the conflicts problem from this perspective.
[7] See Fisons Corp. v. Atochem N. Am., Inc., No. 90 Civ. 1080, 1990 WL 180551, at 5 (SDNY 14 November 1990) for an example where the knowledge of the lawyer of the client's affairs was seen as a highly relevant countervailing factor; also State v. Vanover, 559 N.W.2d 618, 634 (Iowa 1997). Although see: Developments in the law—conflicts of interest in the legal profession (1981) 94 Harvard Law Review 1244 at 1295–1296 where it is argued that any concurrent retainer where the interests are at all adverse will result in a loss to one client. For an argument that clients should be free to bargain for low quality legal services: see Hyman & C. Redford, And such small portions: limited performance agreements and the cost/quality/access trade-off (1998) 11 Georgetown Journal of Legal Ethics 959; F. Zacharias, Limited performance agreements: should clients get what they pay for? (1998a) 11 Georgetown Journal of Legal Ethics 915.
[8] See Practice Rule 6(2)(b) of the Solicitors Practice Rules 1990. The Law Society of Scotland appears to embrace a blanket prohibition on conflicts, however, in reality this is mitigated by a number of exceptions which are similar to those outlined above. See r 3 and r 5.1 of the Solicitors (Scotland) Practice Rules 1986.
[9] &art1;122(2)(c) Restatement (Third) of The Law Governing Lawyers.
[10] Thus &art1;15.01(2) of the Guide of the Law Society of England and Wales provides: “Even if an actual conflict of interests exists and is disclosed to the client and the client consents to the solicitor acting, the solicitor must not accept the instructions”. With limited exceptions Rule 3 of the Solicitors (Scotland) Practice Rules 1986 provides: “A solicitor shall not act for two or more parties whose interests conflict”.
[11] The extent of the conflicts rules in England and Wales is currently under discussion with a draft of the soon to be in force Solicitors' Practice (Conflict) Amendment Rule currently available at http://www.lawsociety.org.uk/professional/conduct/consultations.law. Incidentally this rule would prohibit the law firms conduct in Marks and Spencer plc v. Freshfields Bruckhaus Deringer [2004] EWHC 1337 (Ch), [2004] 3 All ER 773, [2004] 1 WLR 2331 and therefore be consistent with that decision.
[12] See J. Berg, Understanding waiver (2003) 40 Houston Law Review 281 for a general discussion of the doctrine of waiver, including waivers of conflicts.
[13] Clark Boyce v. Mouat [1994] 1 AC 248; [1993] 3 NZLR 641.
[14] Exemplified by EC 7.7 of the Code which provides that “… the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer”.
[15] Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606 per Lord Upjohn, at 636.
[16] Solicitors Practice Rules 1990 in England and Wales make it clear that a solicitor may never act for vendor and purchaser in an actual conflict of interest situation and there is a blanket ban on acting concurrently if the seller is selling or leasing as a builder or developer: Rule 25.01(2) (a)(ii).
[17] In some jurisdictions a property settlement agreement is deemed void unless independent advice has been taken by both parties, see for example, s 21F of the Property (Relationships) Act 1976 (NZ).
[18] See for example para. 11 of the commentary to Model Rule 1.7(a) which provides:
a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, but common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them. | |||||
[19] Rule 1.7(a) of the model rules and para. 6 of the commentary; Ethical Consideration 5-15 of the Model Code provides inter alia: “A lawyer should never represent in litigation multiple clients with differing interest” and &art1;122(2)(b) of Restatement (Third) of The Law Governing Lawyers. For the position of English Solicitors see cl 4.1(f) of the Law Society's Code for Advocacy.
[20] See for example G.C. Hazard, Conflict of interest in estate planning for husband & wife (1994) 20 Probate Law 1, 13 where it is argued that where interests conflict the concept of co-representation is incoherent and oxymoronic.
[21] Rule 1.7(b)(1) American Bar Association Model Rules of Professional Conduct (2002 edition).
[22] Reasonable belief is defined in the Rules as denoting that “the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable”.
[23] American Bar Association Model Rules of Professional Conduct (2001 edition). The rule proceeds to note that this is an exercise that must be undertaken in respect of each client in a multiple retainer independently. The 2002 rules do not have this commentary. Paragraph 15 of the commentary to the 2002 rules provides that “Consentability [to a waiver] is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent to representation burdened by a conflict of interest”. And refers back to para. (b)(1) of the rule. This simply reinforces the fact that it is the lawyer's task to decide whether the conflict may be waived.
[24] D.E. Rosenthal, Lawyer and Client: Who's in Charge? (Transaction Publishers, 1974), pp. 106–115.
[25] See also EC5-1 which provides: “The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client”.
[26] See for example EC 5-14 which provides:
Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant. | |||||
[27] That rule provides: “A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment …”. A substantially similar rule is articulated in DR 5-105B as regards an existing retainer and the duty to terminate.
[28] DR 5-105(C).
[29] DR5-105B.
[30] EC 5-15.
[31] This is consistent with the longstanding observation that lawyers tend to systematically assume that a lawyer's view of what is the better course of action is a better guide for action and as such tend to manipulate their clients in a paternalistic manner. See for example R. Wasserstrom, Lawyers as professionals some moral issues (1975) 5 Human Rights 1 at 19.
[32] While a breach of ethical prescriptions will not be negligence per se it will be a useful guide to the court of a departure from acceptable standards, however, the plaintiff will still have to show the necessary causative link between the loss and any professional breach: Pressley v. Farley (Fla App D1) 579 So 2d 160, 16 FLW D997; Sipes v. Petry 812 SW2d 4289; Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 249 Ill, Dec.303, 736 N.E.2d 145, 157 (2000); Mirabito v. Liccardo [1992] 4 Cal.App.4th 41, 45, 5 Cal.Rptr.2d 571.
[33] &art1;121. Note that the Restatement is prefaced by the proviso that the conflict is prohibited “unless all affected clients and other necessary persons consent to the representation under the limitations and conditions provided in &art1;122”. See also R. Donoghue, Conflicts of interest: concurrent conflicts (1998) 11 Georgetown Journal of Legal Ethics 319.
[34] This tracks the position of the Privy Council in Clark Boyce v. Mouat [1993] 3 NZLR 641, [1994] 1 AC 428; [1993] 4 All ER 268 (PC) which accepted earlier dicta in Farrington v. Rowe McBride & Partners [1985] 1 NZLR 83, 90 that in some conflict cases “there will be some circumstances in which it is impossible, notwithstanding such disclosure, for any solicitor to act fairly and adequately for both [clients]”.
[35] Such a potential conflict is generally able to be waived, but if it does in fact transpire and become an actual conflict it may require the lawyer to withdraw from the retainer: Clay v. Doherty [1985] 608 Fed Supp 295, 302. In this regard the lawyer must look to future events: L.R. Patterson, An analysis of conflict of interest problems (1986) 37 Mercer Law Review 569.
[36] &art1;122. Informed consent is there stated to exist where “the client or former client have reasonably adequate information about the material risks of such representation to that client or former client”. See also &art1;130 which deals specifically with non-litigious matters and provides;
Unless all affected clients consent to the representation under the limitations and conditions provided in &art1;122, a lawyer may not represent two or more clients in a matter not involving litigation if there is a substantial risk that the lawyer's representation of one or more of the clients would be materially and adversely affected by the lawyer's duties to one or more of the other clients. | |||||
[37] &art1;122 comment (b).
[38] For a sample of the case law see Sapienza v. New York News [1979] 481 F.Supp. 676 (SDNY 1979); Chateau De Ville Prods., Inc. v. Tams-Witmark Music Library, Inc. [1979] 474 F.Supp. 223 (SDNY 1979); Klemm v. Superior Court [1977] 142 Cal.Rptr. 509 (Cal.Ct.App.). It will be only in the most extraordinary circumstances where a lawyer may act for clients in litigation with opposing interests. The facts of MGIC Indem. Corp. v. Weisman [1986] 803 F.2d 500 (9th Cir.) perhaps provide such an example where one client was both plaintiff in right of a shareholder and defendant in right of director in respect of litigation against the company. Also Valley Title Co Superior Court [1981] 124 Cal App 3d 8867, 177 Cal Repr 643, 652.
[39] &art1;122(2)(b) of Restatement (Third) of The Law Governing Lawyers.
[40] Civil co-defendants may seek to shift responsibility for loss to each other. Special problems also arise in insurance litigation where the interests of an insurer (who has a right by virtue of the insurance policy and the doctrine of subrogation to conduct litigation) may diverge from those of an insured where all the loss is not fully covered, or where facts come to light where coverage is in doubt. See E. Pryor & C. Silver, Defense lawyers' responsibilities part II: contested coverage cases (2001) 15 Georgetown Journal of Legal Ethics 29.
[41] See &art1;128 generally and Comment g(iii) to &art1;122 of Restatement (Third) of The Law Governing Lawyers. For a wider discussion see also B.A. Green Conflicts of interest in litigation: the judicial role (1996) 65 Fordham Law Review 71 at 71–72; also N. Moore, Conflicts of interest in the simultaneous representation of multiple clients: a proposed solution to the current confusion and controversy (1982) 61 Texas Law Review 211, where the author eschews any public or institutional element of the no-waiver rule as an inappropriate limit on client autonomy.
[42] &art1;122(2)(c) Restatement (Third) of The Law Governing Lawyers.
[43] &art1;122 commentary (g)(iv) provides: “In general, if a reasonable and disinterested lawyer would conclude that one or more of the affected clients could not consent to the conflicted representation because the representation would likely fall short in either respect, the conflict is non-consentable”. This is notwithstanding that the commentary to &art1;121 dealing with conflicts generally states in comment (c)(iv) that “This Section employs an objective standard by which to assess the adverseness, materiality, and substantiality of the risk of the effect on representation”.
[44] See Baldasarre v. Butler above n 44 for an example. For a similar Commonwealth approach see Pickersgill v. Riley Privy Council, 25 February 2004, Privy Council Appeal No. 12 of 2003.
[45] In re Kamp [1963] 40 N.J. 588, 594, 194 A.2d 236.
[46] It is of note that the courts generally take a dim view of any situation where a lawyer acts for two parties who are negotiating the terms of a contract of sale: see Baldasarre v. Butler p1998] 604 A.2d 112, 120 where the court concluded“the representation of a buyer and a seller in connection with the preparation and execution of a contract of sale of real property is so fraught with obvious situations where a conflict may arise that one attorney shall not undertake to represent both parties in such a situation”. See also In re Lanza 65 N.J. at 352, 322 A.2d 445.
[47] See for example Bristol and West Building Society v. Mothew [1998] Ch. 1, 16–17 per Millett LJ, also the words of Lord Walker of Gestingthorpe in Hilton v. Barker Booth and Eastwood (a firm) [2005] UKHL 8, para. 30. The foundational Commonwealth authority which establishes the fiduciary basis of the duties owed is Moody v. Cox & Hyatt [1917] 2 Ch. 71 which was applied in Hilton v. Barker Booth and Eastwood (a firm).
[48] Frost & Sutcliffe v. Tuiara [2004] 1 NZLR 782 at para. 24 per Tipping J (obiter).
[49] See for example Farrington v. Rowe McBride & Partners [1985] 1 NZLR 83 where Richardson J said in respect of the ability to waive a conflict:“there will be some circumstances in which it is impossible, notwithstanding such disclosure, for any solicitor to act fairly and adequately for both”. Approved by the House of Lords in Lord Walker of Gestingthorpe in Hilton v. Barker Booth and Eastwood (a firm) [2005] UKHL 8, para. 31 and by the Privy Council in Clark Boyce v. Mouat [1993] 3 NZLR 641; [1994] 1 AC 428; [1993] 4 All ER 268.
[50] For example EC 7.8 of the Code which provides that:
A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations. … In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for himself. | |||||
[51] For defences of versions of the ‘standard conception’ or hired gun approach to lawyers ethics which place the highest value on client autonomy see M. Freedman, Understanding Legal Ethics (1990); S. Pepper, The lawyer's amoral ethical role, a defense, a problem, and some possibilities (1986) American Bar Foundation Research Journal 613; S. Pepper, Counseling at the limits of the law: an exercise in the jurisprudence of lawyering (1995) 104 Yale Law Journal 1545 at 1599; C. Fried, The lawyer as a friend (1976) 85 Yale Law Journal 1060; and T. Schneyer, Some sympathy for the hired gun (1991) 41 Journal of Legal Education 11.
[52] Thus it has been said (in a complicated multi-defendant lawsuit),”[i]t is not for the court to second guess decisions of the various defendants … [or] to compel a party to engage separate counsel [they] may not be able to afford". Kaiser v. Stewart [1997] No. CIV.A.96-6643, 1997 WL 186329, at 4 (E.D. Pa. 10 April).
[53] J. Heller, Legal counseling in the administrative state: how to let the client decide (1994) 103 Yale Law Journal 2503; T. Floyd, Realism, responsibility and the good lawyer: Niebuhrian perspectives on legal ethics (1992) Notre Dame Law Review 587, 606.
[54] W. Simon, Lawyer advice and client autonomy, in: D. Rhode (Ed.) Ethics in Practice: Lawyers' Roles, Responsibilities and Regulation (Oxford, 2000); the same example is examined in W. Simon, Lawyer advice and client autonomy: Mrs Jones case (1991) 50 Maryland Law Review 213; also M. Spiegel, The case of Mrs Jones revisited: paternalism and autonomy in lawyer–client counselling (1997) Brigham Young University Law Review 307.
[55] Much of the scholarship on ‘client centred counselling’ suffers from this fallacy in that it proceeds on the basis that a lawyer can empower a client to make decisions wholly uninfluenced by the views of the lawyer who merely facilitates the decisions of the client. See for example D. Binder et al., Lawyers as Counsellors: A Client Centred Approach (1991).
[56] S. Ellman, Empathy and approval (1992) 43 Hastings Law Journal 991.
[57] See Pepper, Counseling at the Limits of Law, above n 51, p. 1557 where it is observed that many clients go to a lawyer for the very reason that they want the lawyer to assist them (or decide for them) over these hard questions. Pepper concludes that there is a kind of paternalism in such an approach which is consistent with client autonomy.
[58] This rule will extend to parties who are both on the same side but whose interests may diverge. For example a driver and passenger in a car who are plaintiffs against the driver of another car with whom they collided have differing interests, especially if there is any possibility that the first driver was at all negligent: Weinberg v. Underwood [1968] 244 A.2d 538 (N.J.). See also Klemm v. Superior Court [1977] 142 Cal. Rptr. 509, 512 (Ct. App.) for a discussion of the family law issues.
[59] See Z. Eiger & B. Rutan, Conflicts of interest: attorneys representing parties with adverse interests in the same commercial transaction (2001) 14 Georgetown Journal of Legal Ethics 945.
[60] A. Kronman, Paternalism and the law of contracts () 92 Yale Law Journal 763.
[61] &art1;19 Restatement (Third) of The Law Governing Lawyers; Zacharias (1998a), op. cit., p. 915; Johnson v. Jones [1982] 652 P.2d 650 (Idaho); Cohen v. ROU 146 N.J. 140, 679 A.2d 1188, 1199. Note, however that even the ability to limit the obligations of the lawyer by consent is restricted to those cases where “the terms of the limitation are reasonable in the circumstances” under &art1;19(1)(b).
[62] See F. Zacharias, Waiving conflicts of interest (1998b) 108 Yale Law Journal 407 for the following example:
Suppose, for example, that a criminal defendant's alibi witness has personal reasons for not wanting to appear at the defendant's trial. The witness's lawyer is known to be the best defense lawyer in town. That lawyer is willing to represent the defendant, but only on the condition that the defendant waive the conflict of interest and agree that the lawyer need not use the alibi defense if it would entail calling the witness-client to the stand. The defendant may reasonably conclude that he is better off with this lawyer arguing insanity or reasonable doubt than he would be if a different, but lesser, lawyer who has no conflict argues the alibi defense. | |||||
[63] F. Zacharias, Limits on client autonomy in legal ethics regulation (2001) 81 Boston University Law Review 199.
[64] EC 5-15. A similar approach based on the lawyer's view of whether the interests of the client can be protected is taken by the Model Rules: Rule 1.7(b)(1) provides that a lawyer may act where “… the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client”.
[65] See for example Model Code EC 7-12.
[66] Such a view is consistent with the approach in the cases which suggests that if the client is unable to consent due to the complexity of the issue, or their own lack of sophistication then any purported consent is ineffective and should be ignored: Kelly v. Greason [1968] 244 N.E.2d 456, 462 (N.Y.); In re Boivin [1975] 533 P.2d 171, 174-75 (Or.); Baldasarre v. Butler [1993] 625 A.2d 458, 467 (N.J.).
[67] Luban describes it as “loaded indeed—and cocked and dangerous”: D. Luban, Paternalism and the legal profession (1981) Wisconsin Law Review 454 at 466. See also P. Tremblay, On persuasion and paternalism: lawyer decision-making and the questionably competent client (1997) Utah Law Review 515; M. Spiegel, The story of Mr G: reflections upon the questionably competent client (2000) 69 Fordham Law Review 1179.
[68] See J. Webb & D. Nicolson, Professional Legal Ethics: Critical Interrogations (Oxford, 1999), p. 126.
[69] This example uses the analysis of Luban, op. cit., at p. 472 and facts from A. Kronman, The Lost Lawyer (Cambridge, MA, Belknap Press, 1993), p. 129. Luban's analysis is procedural in that it purports to examine the reasoning processes of the client and conclude whether they are coherent. Conversely a substantive approach may be taken in which the decision taken and the effects it will have on the client are examined in light of the attributes and aspirations of the client. See, for example, D. Kennedy, Distributive and paternalistic motives in contract and tort law, with special reference to compulsory terms and unequal bargaining power (1982) 41 Maryland Law Review 563 at 638.
[70] In this sense many tests of competence approach circularity in that they take the decision under examination as effective evidence that consent is impaired. A good argument exists that when a consent based analysis is used it is necessary to look outside of the decision under examination for evidence that consent is impaired: Thompson, Paternalism in medicine law and public policy, in: D. Callahan & S. Bok (eds) Ethics Teaching in Higher Education (1980), pp. 246 at p. 252.
[71] See R. Barr & B. Friedman, Current development 2001–2002: joint representation of criminal co-defendants: a proposal to breathe life into Section 4-3.5(c) of the ABA Standards Relation to the Administration of Criminal Justice (2002) 15 Georgetown Journal of Legal Ethics 635 at 441 for a critique of informed consent along these lines in respect of concurrent representation of criminal co-defendants.
[72] For an example see Wheat v. United States [1988] 486 US 153 where one reason put forward for prohibiting counsel from acting for co-defendants notwithstanding their waivers by Rehnquist CJ was that “[the lawyer's] position in representing both men would become untenable, for ethical proscriptions would forbid him to cross-examine [the first defendant] in any meaningful way. By failing to do so he would fail to provide petitioner with effective assistance of counsel”. The case also refers to protection of the institutional interest.
[73] See Webb & Nicolson, op. cit., p. 140.
[74] Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (1993), pp. 222–223. Note the exactly opposite view taken in C. Sunstein & R. Thaler, Libertarian paternalism is not an oxymoron, The University of Chicago Law School John M. Olin Law and Economics Working Paper No 185 (2nd series), p. 4 where it is claimed: “The false assumption is that almost all people, almost all of the time, make choices that are in their best interest or at the very least are better, by their own lights, than the choices that would be made by third parties”.
[75] C. Haysworth, former Chief Justice of the Court of Appeals for the Fourth Circuit stated:
It is for the lawyer to decide what is morally and legally right, and, as a professional, he cannot give in to a client's attempt to persuade him to take some other stand … the lawyer must serve the client's legal needs as he sees them, not as the client sees them. | |||||
[76] Kronman (1993), op. cit., p. 130. It is of note that parts of the Model Rules appear to endorse such an approach, thus Rule 1.16(3)(c) provides, for example, that a lawyer may terminate a retainer where “a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent”.
[77] Law Society of Scotland, Law Society Guidelines “Conflicts of Interest” (as amended in 1999).
[78] A number of scholars identify an attribute of practical wisdom which they claim that a competent lawyer ought to possess to equip them for these decision-making tasks. Kronman (1993), op. cit., p. 41; G. Postema, Moral responsibility in professional ethics (1988) 55 New York University Law Review 61 at 68; Nagel, The Fragmentation of Value in Moral Questions (1979). The concept is essentially based on the Aristotelian notion of phronesis: see particularly from Aristotle's Nicomachean Ethics as well as The Politics. Simon claims that it is the same as his contextual judgment in W. Simon, The Practice of Justice—A Theory of Lawyer's Ethics (Cambridge, MA, Harvard University Press, 1998), pp. 23, 138.
[79] Carter, Justifying paternalism (1977) 7 Canadian Journal of Philosophy 133 at 136.
[80] Kronman (1993), op. cit., p. 130. Interestingly Kronman never states that the lawyer ought to refuse to follow a client's instructions even where they are ill founded, though this appears implicit in his approach. Rather he states (at p. 131) that “[A] time will come when [the lawyer] must decide whether to do his client's bidding nonetheless. A lawyer may elect to do so, assuming the client's objective is a legal one, without violating any rule of professional responsibility as these are at present defined. But he is likely to experience the decision as a difficult one and to feel that he has not served his client as fully as he might”.
[81] See C. Jolls, C. Sunstein & R. Thaler, A behavioural approach to law and economics (1998) 50 Stanford Law Review 1471 for an overview of an approach which seeks to accommodate human frailty in an economic approach; also C. Camerer et al., Regulation for conservatives: behavioural economics and the case for asymmetric paternalism (2003) 151 University of Pennsylvania Law Review 1211.
[82] See Sunstein & Thaler, op. cit.
[83] See for example G. Dworkin, Paternalism, in: R. Wasserstrom (Ed.) Morality and the Law (1971), pp. 107, 120; Luban, op. cit., at p. 463.
[84] See in particular Jolls et al., op. cit.
[85] C. Sunstein, What's available: social influences and behavioral economics (2003) 97 Northwestern University Law Review 1295.
[86] Amos Tversky & Daniel Kahneman, Judgment under uncertainty: heuristics and biases, in: D. Kahneman, P. Slovic & A. Tversky (Eds) Judgment under Uncertainty (1982), pp. 3, 11.
[87] See R. Korobkin, The status quo bias and contract default rules (1998) 83 Cornell Law Review 608; W. Samuelson & R.J. Zeckhauser, Status quo bias in decision making (1988) 1 Journal of Risk and Uncertainty 7.
[88] An example which carries considerable persuasive force is that of whether or not to opt-in to an employer subsidised pension plan by filling out the relevant two or three pages of paperwork. A pension plan may be highly advantageous and clearly be in the interests of the majority of employees. However, it is well established that in such a situation the uptake of the plan will be well below the rate one would expect if all employees were making rational choices. Thus a strong argument can be made for making such plans opt-out rather than opt-in. See Sunstein & Thaler, op. cit.; also B. Madrian & D. Shea, The power of suggestion: inertia in 401(k) participation and savings behavior (2001) 116 Quarterly Journal of Economics 1149.
[89] See R. Painter, Advance waiver of conflicts (2000) 13 Georgetown Journal of Legal Ethics 289 for an analysis of the weaknesses of default rules in conflict situations using an economic analysis.
[90] G. Hazard, Personal values and professional ethics (1992) 40 Cleveland State Law Review 133 at 134; P. Bourdieu & R. Terdiman, The force of law: toward a sociology of the juridical field (1987) 38 Hastings Law Journal 805 at 807.
[91] See K. Kruse, Lawyers should be lawyers, but what does that mean? () 14 Washington University Journal of Law & Policy 49, for a discussion of the place of adversarial ethics in what it means to be a lawyer.
[92] See for example “the principle of loyalty to a client is a basic tenet of the Anglo-American conception of the lawyer–client relationship”: C. Wolfram, Modern Legal Ethics s 7.1.3, 316. (1986).
[93] T. Shaffer, Faith and the Professions (1987).
[94] W. Simon, Ethical discretion in lawyering (1988) 101 Harvard Law Review 1083 at 1134; Simon (1998), op. cit., pp. 23, 138.
[95] W. Bradley Wendel, Civil obedience (2004) 104 Columbia Law Review 363 arguing that a lawyer must, in acting for his or her client, apply the law in good faith and with regard to the substantive meaning and not merely formal expression of the law, accordingly the law should be seen to preclude a moral basis that dictates an alternative course of action. See also R.W. Gordon, A new role for lawyers?: the corporate counselor after Enron (2003) 35 Connecticut Law Review 1185 at 1200.
[96] It is of course accepted that there may be compelling economic reasons for a lawyer to seek to act for more that one client simultaneously, including the fees generated, continued service to a valued client, and not sending a lucrative client to sample the services of a competitor; see Zacharias (1998b), op. cit, at p. 422. However, more subtle forces may also be at work. For example, a lawyer may refuse a lucrative retainer in the face of a conflict of interest in order to protect a valuable professional reputation even though a waiver might be in the client's interest. See Moore, op. cit., at p. 228. L. Sheinman, Ethical practice or practical ethics? The case of the vendor–purchaser rule (2000) 3 Legal Ethics 27 at 48.
[97] This interesting neo-Weberian historical analysis of the English vendor–purchaser rule would suggest that a considerable institutional interest influenced the formulation of that rule.
[98] R. Graham, Moral contexts (2001) 50 University of New Brunswick Law Journal 77.
[99] D. Kennedy, Freedom and constraint in adjudication: a critical phenomenology (1986) 36 Journal of Legal Education 521.
[100] See F.C. Zacharias, Reconciling professionalism and client interests 36 (1995) William & Mary Law Review 1303, where it is argued that lawyers put considerable emphasis on zeal due to the fundamental professional commitment to clients.
[101] Such a ‘market control’ view can be seen as founded in the thought of Max Weber. See for example, M. Weber, Law in Economy and Society, translation by A.M. Henderson et al. (Cambridge, MA, Harvard University Press, 1954), p. 202; M. Weber, The Theory of Social and Economic Organisation, translation by A.M. Henderson & T. Parsons (New York, Free Press, 1947), p. 142. See also R.M. Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press, 1977); E. Freidson, Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago, Chicago University Press, 1986); R. Abel, Between the market and the state: the legal profession in turmoil (1989) 52 Modern Law Review 285; R. Abel, The Legal Profession in England and Wales (Oxford, Blackwell, 1988), pp. 8–18.
[102] That is to say that lawyers enter a ‘compact’ to organise and regulate themselves in a manner which is in the wider interests of the community in return for the privileges which are attached to the profession such as the monopoly on legal work and a professional income. See for example C. Menkel-Meadow, in: S. Parker & S. Sampford (Eds) Legal Ethics and Legal Practice: Contemporary Issues (Oxford, Clarendon Press, 1995), pp. 39–40; A. Paterson, Professionalism and the legal services market (1996) 3 International Journal of the Legal Profession 137.
[103] R. Granfield, Lawyers and power—reproduction and resistance in the legal profession (1996) 30 Law & Society Review 205.
[104] Laker Air v. Pan Am World Air [1984] 103 FRD 22, 27.
[105] See &art1;128 generally and Comment g(iii) to &art1;122 of Restatement (Third) of The Law Governing Lawyers. For a wider discussion see Moore, op. cit.
[106] For example Yablonski v. UMWA [1971] 448 F.2d 1175, 1179. For a pre-Code example see In re Boone [1897] 83 F 944, 948 where, in considering lawyer disqualification, it was observed that the inherent powers of the court are necessary for “the protection of the profession itself”.