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Original Articles

Globalization of Professional Ethics? The Significance of Lawyers' International Codes of Conduct

Pages 29-57 | Published online: 01 May 2015

  • Head of the School of Law, University of Westminster, London, UK.
  • Professor of Law and Sociology, University of Westminster, London, UK.
  • It is suggested that the polarised profession identified by Heinz and Lauman (J. Heinz & E. Laumann, Chicago Lawyers: The Social Structure of the Bar (Chicago, Ill., American Bar Foundation and New York, Russell Sage Foundation, 1982)) has now fully emerged in the UK, with significant implications for professional ethics. Firms serving influential clients and operating in the corporate sector have a strong commercial-entrepreneurial ethos, whereas those firms serving the individual, non-influential clients and markets are seeking to retain a traditional professionalism rooted in the idea of public service—G. Hanlon, “A Profession in Transition? Lawyers, The Market and Significant Others” (1997) 60 Modern Law Review 798 at 799, and see also J. Flood, “Megalaw in the UK: Professionalism or Corporatism? A Preliminary Report” (1989) 64 Indiana Law Journal 569, C. Stanley, “Enterprising Lawyers: Changes in the Market for Legal Services” (1991) 25 Law Teacher 44.
  • A. Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge, Polity Press, 1991) and see also B. D. Santos Towards a New Common Sense: Law Science and Politics in the Paradigmatic Transition (London, New York: Routledge, 1995).
  • P. Selznick, “The Idea of A Communitarian Morality” (1987) 75 California Law Review 445.
  • R. Abel, “The Decline of Professionalism” (1986) 49 Modern Law Review 1.
  • S. Lukes, Power: A Radical View (London, Macmillan, 1974).
  • J. Toulmin, “A Worldwide Common Code of Professional Ethics?” (1991/2) 15 Fordham International Law Journal 673.
  • There has been a recent increase in attention to the issue of how codes of ethics might best be analysed and compared (see D. Nicolson, “Mapping Professional Legal Ethics: The Form and Focus of the Codes” [1998] Legal Ethics 51 and L. E. De Groot-Van Leeuwen & W. T. De Groot “Studying Codes of Conduct: A Descriptive Framework for Comparative Research” [1998] Legal Ethics 155). We have not adopted the structures outlined by these authors but agree broadly that production, audience, focus, communication and function are central. It will be seen that this article deals with these issues pervasively.
  • The professions originally represented were Avocat/Advocaat/Rechtsanwald (Belgium), Advokat (Denmark), Avocat (France), Rechtsanwalt (Germany), Dikigoros (Greece), Barrister or Solicitor (Ireland), Avvocato or Procuratore (Italy), Avocat-Avoué/Rechtsanwalt (Luxembourg), Advocaat (Netherlands), Advogado (Portugal), Abogado (Spain), Advocate, Barrister or Solicitor (United Kingdom). The Bars of Austria, Cyprus, Finland, Norway, Sweden, Switzerland and Czechoslovakia had observer status (CCBE pamphlet, 1992).
  • “... on such subjects as competition and intellectual property, company law and lawyers' pensions” (id.).
  • Id.
  • See L. S. Terry, “An Introduction to the European Community's Legal Ethics Code Part I: An Analysis of the CCBE's Code of Conduct” (1993) 7 Georgetown Journal of Legal Ethics 1 for a detailed account of the process of drafting the code, starting with a draft prepared by a Scottish solicitor in 1983, and J. Toulmin, “Ethical Rules and Professional Ideologies”, Paper for the Cornell Law School seminar in Paris, 4–5 July 1997 at p.13.
  • “CCBE Code of Conduct for Lawyers in the European Community” in N. Taylor (ed), The Guide to the Professional Conduct of Solicitors (7th edn., London, Law Society, 1996), p.172 and para. 1.5.
  • The CCBE Code refers to the “... continued integration of the European Community and the increasing frequency of the cross-border activities of lawyers within the community...” (Preamble, para. 1.3). The Services Directive (EC Directive of 1977 on Lawyers' Services) permits the rendering of occasional legal services in the host State rather than establishment. The Diplomas Directive (EC Directive of 1989 on Mutual Recognition of Diplomas) provides for the recognition of legal qualifications gained in one EU State in another EU State subject to either an aptitude test or adaptation period (most States have opted for the latter).
  • Supra n. 10.
  • Hence the “Guide”, supra n.14.
  • Terry, supra n. 13, and “An Introduction to the European Community's Legal Ethics Code Part II” (1993) 7 Georgetown Journal of Legal Ethics 348.
  • See the IBA Website at <http://www.ibanet.org.>
  • For example, Committee J of the Section on Business Law has been central to the adoption of international practices relating to cross-border insolvency.
  • “International Code of Ethics of the International Bar Association” (see The Guide, supra n.14, p.159).
  • Id., “Preamble”.
  • International Bar News, Summer 1995, p. 47.
  • Supra n. 22, paras. 8 and 20 (hereafter “IBA Code”).
  • Supra n. 14, para. 1.3.1 of the Preamble (hereafter “CCBE Code”).
  • Deontology, the study of duty, suggests a system of ethics with a “given” moral content, an internal logic and a mode of evaluation where the morality of actions are considered independently of consequences (J. Pearsall & B. Trumble (eds), The Oxford English Reference Dictionary (Oxford & New York, Oxford University Press, 1995), and see D. Luban, “Freedom and Constraint in Legal Ethics: Some Mid-course Corrections to Lawyers and Justice” (1988) 49 Maryland Law Review 424 at 428).
  • CCBE Code, para. 1.6
  • Id.
  • IBA Code, “Preamble”.
  • CCBE Code, para 1.5
  • US lawyers are not covered by the CCBE Code which governs relations between lawyers from the different European Union states (id., paras.1.3 and 1.5).
  • CCBE Code, para. 5.8.
  • IBA Code, Rule 3.
  • Id., Rule 10.
  • Id., Rule 4.
  • CCBE Code, para. 5.1.
  • IBA Code, Rule 17.
  • Id., Rule 6.
  • CCBE Code, para. 2.2.
  • Id., paras 2.3.1. and 2.3.2.
  • Id., para 3.2
  • Id., para. 3.1.2.
  • Id., para. 2.7.
  • Id., para. 2.1.1.
  • Id., para. 3.14.
  • IBA Code, Rule 10.
  • CCBE Code, para. 3.9.
  • IBA Code, Rule 7, CCBE Code, para. 5.5.
  • IBA Code, Rule 11.
  • CCBE Code, para. 5.8.
  • IBA Code, Rules 6 and 10.
  • Id., Rule 6.
  • CCBE Code, para. 4.
  • Id., para.4.4.
  • See for example The Code of Conduct for the Bar of England and Wales (London, Bar Council, 1990), as amended, which imposes a duty only to inform the court of “relevant decisions and legislative provisions” and “procedural irregularities” (para. 6.10.) and discussion by Terry, supra n.13 at pp.36–7.
  • IBA Code, Rule 13.
  • CCBE Code, para. 3.2.
  • CCBE Code, commentary on Section 3.
  • IBA Code, Rule 14, and CCBE Code, para. 2.3.
  • IBA Code, Rule 5.
  • CCBE Code, commentary on para. 5.3.
  • Id., paras. 5.3.1 and 5.3.2.
  • IBA Code, Rule 2.
  • Nicolson, supra n.9.
  • IBA Code, Rule 20.
  • Id., Rule 8.
  • Id., Rule 21.
  • CCBE Code, para. 2.6.
  • Id., para. 2.5.
  • CCBE Code, para. 3.8, IBA Code, Rule 15.
  • IBA Code, Rule 16.
  • Id., Rule 17.
  • CCBE Code, para. 3.5.
  • Id., para. 3.8.
  • IBA Code, Rule 18.
  • CCBE Code, paras. 3.3.1 and 3.3.2.
  • Id., para. 3.3.3.
  • P. Abrams, A. Boon & D. O'Brien, “Access to Justice: The Collision of Funding and Ethics” (1998) 3 Contemporary Issues in Law 59.
  • IBA Code, Rule 12.
  • IBA Code, Rule 1.
  • Id., “Preamble”.
  • CCBE Code, para. 5.1.1.
  • Id., para. 5.9.
  • IBA Code, Rules 17–18, 16 and 10.
  • A mischievous suggestion, but one with some substance in that the drive towards convergence/harmoni-sation is in fact driving lawyers to divergence in following codes (see Terry, supra n.19).
  • J. Flood, “The Cultures of Globalization: Professional Restructuring for the International Market” in Y. Dezalay & D. Sugarman (eds), Professional Competition and Professional Power: Lawyers, Accountants and the Social Construction of Markets (London, Routledge, 1995) at p140.
  • A. Abbott, The System of Professions: An Essay on the Expert Division of Labor (Chicago, Ill., University of Chicago Press, 1988).
  • K. Dillon, “Out of the Robes and into the Ring” Legal Business, May 1993 at p 46.
  • In 1988 British law firms generated £300 million in overseas earnings (Law Society Gazette, Lawyers' foreign earnings up 259: v. 86, p. 2. 1989).
  • Y. Dezalay & B. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of an International Legal Order (Chicago, Ill., University of Chicago Press, 1996).
  • Paris, Court of Appeal 1991 [1993] ADRLJ 167.
  • J. Flood & E. Skordaki, “Normative Bricolage: Informal Rulemaking Among Lawyers and Accountants” in G. Teubner (ed), Global Law Without a State (Aldershot, Ashgate/Dartmouth, 1997).
  • P. Ruttley, “The WTO's Dispute Settlement Mechanism” (1997) 2 Amicus Curiae 4.
  • R. Abel, “Transnational Legal Practice” (1993–5) 44 Case Western Reserve Law Review 737.
  • Id., at p.743.
  • So, for example, solicitors are permitted to be in partnership with registered foreign lawyers in England and Wales, provided such lawyers do not conduct litigation or advocacy (The Guide, supra n. 14, Principle 8.01, pp.140–1).
  • See, for example, id., para. 8.01, note 5.
  • G. Choudhuri, “Denton Hall Pulls Out of the U.S.“, The Lawyer, 1 March 1999, p.1.
  • Abel suggests that law firms from the USA, the most heavily represented overseas, have fewer than 2,000 lawyers in foreign branches and many of these are local lawyers (supra n. 91 at p.738).
  • R. Tyler, “When in London...“, The Lawyer, 30 June 1998, pp.18–19.
  • R. Tyler, “Over Here—in Partnership”, The Lawyer, 30 June 1998, pp. 22–23.
  • J. Flood, “Megalawyering in the Global Legal Order: The Cultural, Social and Economic Transformation of Global Legal Practice” (1996) 3 International Journal of the Legal Profession 169.
  • Supra n.95.
  • See generally T. J. Johnson, Professions and Power (London, Macmillan, 1972). Abel (supra n. 95, at p.762) argues that powerful jurisdictions, with major international business, should negotiate the lowering of foreign barriers. He does however, propose that each jurisdiction should establish a register of foreign lawyers practising in that jurisdiction, identify areas of reserved practice and disciplinary proceedings and facilitate the requal-ification of foreign lawyers. He suggests that foreign jurisdictions should not try to regulate the fees of overseas lawyers and that contingency fee arrangements should be permitted and home disciplinary proceedings should apply at the instance of clients.
  • Flood, supra n. 103.
  • CCBE Code, para. 1.2.
  • “... it is neither possible nor desirable that [the rules of each bar] should be taken out of their context nor that an attempt should be made to give general application to rules which are inherently incapable of such application” (id., para. 1.2.2).
  • Supra n. 14.
  • Id., Principle 9.03, note 3, at p.145.
  • Terry, supra n.19 at 378, notes that it has been cited in a few French cases and US disciplinary tribunals.
  • M. S. Larson, The Rise of Professionalism,: A Sociological Analysis (Berkeley, Los Angeles, Cal., University of California Press, 1977), R. Abel, The Legal Profession in England and Wales (Oxford, Blackwell, 1988).
  • In Abbot's analysis (supra n. 88) professions are territorial: they protect their sphere of work against rival occupations using specialist knowledge. Their objectives are both economic and social; power, material and social capital. See also T. C. Halliday & L. Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press, 1997).
  • R. Cotterell, Law's Community: Legal Theory in Sociological Perspective (Oxford, Clarendon Press, 1995).
  • R. Badinter, “Role of the International Lawyer” (1995) 23 International Business Lawyer 505.
  • G. C. Hazard, “The Future of Legal Ethics” (1991) 100 Yale Law Journal 1239.
  • CCBE Code, para. 1.1.
  • Id.
  • S. Picciotto, “The Control of Transnational Capital and the Democratisation of the International State” (1998) 15 Journal of Law and Society 58 at p.64.
  • Id., at pp. 70–1.
  • In most jurisdictions, professional ethics reflect the desire of professionals to be independent, particularly from state control, and the demand for autonomy in the way work is conducted. This trend is probably less pronounced in civil law countries and reversed in the communist countries during the cold war. In Eastern Europe the lawyer was not bound solely by client loyalty but by loyalty to the State. Lawyers were formerly under a duty to persuade clients to avoid proceedings which conflicted with the interests of the community or society, an orientation which will change as lawyers in the former Soviet bloc now redefine their basic affiliations (M. Bohlander, M. Blacksell & K. M. Born “The Legal Profession In East Germany—Past, Present And Future” (1996) 3:3 Internatio nal Journal of the Legal Profession 255), hence the interest of lawyers from these States in issues of professionalism.
  • D. Sugarman, “Bourgeois Collectivism, Professional Power and the Boundaries of the State: The Private and Public Life of the Law Society, 1825–1914” (1996) 3 International Journal of the Legal Profession 81.
  • V. Olgiati, “Self-Regulation of Legal Professions in Contemporary Italy” (1997) 4 International Journal of the Legal Profession 89.
  • That is, lawyers in these different countries have located themselves in different relationships to the state so that in England, for example, professional self-government is seen as a pillar of civil society and a bulwark of liberal political society (Abel, supra n. 112 at p.8).
  • Id., p.353.
  • Id., p.349.
  • Halliday and Karpik suggest that lawyers have participated in the rise of modern political liberalism through the creation of rights which protect citizens and confine States. Lawyers impede or facilitate that political transformations involved through the courts, buttressed by bar self-governance. Independent legal professions are therefore structurally linked to the rule of law, separation of powers and independence of the judiciary (supra n.113 at p.21).
  • S. S. Silbey, “‘Let Them Eat Cake’: Globalization, Postmodern Colonialism, and the Possibilities of Justice” [1997] Law & Society Review 207 at p.230.
  • Id.
  • Badinter, supra n. 115.
  • Supra n.128 at p.212.
  • Id.
  • Id., at p.217.
  • See T. C. Halliday, Beyond Monopoly: Lawyers, State Crises and Professional Empowerment (Chicago, Ill., University of Chicago Press, 1987), Halliday and Karpik, supra n.113, and Johnson supra n.105.
  • Ibid., at p.14 quoting K. Lynn, “The Professions” [1963] Daedalus 653.
  • See M. Burrage, “Mrs. Thatcher Against the “Little Republics”: Ideology, Precedents, and Reactions” in Halliday and Karpik, supra n.113, p.125.
  • Larson, supra n. 112.
  • Toulmin, supra n. 13 at p.13.
  • Take access to justice as an example. Because civil law procedures are less confrontational and less expensive than such procedures in the common law countries. there may less need for the addition of alternative methods of dispute resolution to supplement court procedures in civil law countries than in common law countries (id., at p.8).
  • Id.
  • Id. at p.16.
  • Hazard, supra n 116 at p.1246.
  • Lillicrap v. Naldel & Co. [1993] 1 All ER 724.
  • Although lawyers can have a duty of partisanship in an inquisitorial system (M. Taruffo, “The Lawyer's Role and the Models of Civil Process” (1981) 16 Israel Law Review 5, and J. Leubsdorf “The Independence of the Bar in France: Learning from Comparative Legal Ethics” paper at the symposium “Lawyers' Practice and Ideals: A Comparative View”, Paris, July 1997).
  • G. Condlin, “Bargaining in the Dark: The Normative Incoherence of the Lawyer Dispute bargaining Role” 51 Maryland Law Review 1 at pp.68–78.
  • A. Boon, “Client Decision Making in Personal Injury Schemes” (1995) 23 International Journal of the Sociology of Law 253.
  • The Guide obliges a solicitor to “refuse to take action which he or she believes is solely intended to gratify a client's malice or vindictiveness” (para.12.01 note 6).
  • The latest edition of the Guide explicitly states that “where two or more of the principles in practice rule 1 come into conflict, the determining factor in deciding which principle should take precedence must be the public interest and especially the public interest in the administration of justice” (para. 1.02, note 6, “Basic principles—additional guidance” p.2: note the examples given in the Guide under para. 7 of situations where a solicitor may find a conflict between rule 1(c) (client's best interests) and 1(b) choice of solicitor where “the public interest demands that the latter takes precedence...”).
  • Hazard, supra n.116, and see J. Noonan, “The Purposes of Advocacy and the Limits of Confidentiality” (1966) 64 Michigan Law Review 1485.
  • J. Weinstein, “On the Teaching of Legal Ethics” (1972) 72 Columbia Law Review 452, and J. F. Sutton & J. S. Dzienkowski, Cases and Materials on the Professional Responsibility of Lawyers (St. Paul, Minn, West Publishing Co, 1989) at p.3.
  • T. W. Giegerich, “The Lawyer's Moral Paradox” (1979) 6 Duke Law Journal 1335.
  • Lawyers in Japan may appear to be at a relatively low level of professionalisation generally. The State exercises a high degree of control over entry to the profession (E. I Chen, “The Legal Training and Research Institute of Japan” [1991] Toledo Law Review 975), recognises only litigators as lawyers and subjects non-contentious work to competition from non-legal professions. This has a significant cultural impact, arguably positive, on the work and cultural values including public esteem (G. Dal Pont, “The Social Status of the Legal Professions in Japan and the United States: A Structural and Cultural Analysis” (1994–5) University of Detroit Mercy Law Review 291). Japan has a more significant in-house sector than legal professions in the West, and this has stronger affinities with the corporation than the profession. (K. Rokumoto, “The Present of Japanese Practicing Attorneys: On the Way to Full Professionalization?” in R. L. Abel & P. S. C. Lewis (eds), Lawyers in Society: The Civil Law World (Berkeley, Cal., University of California Press, 1988), A. B. Levine, “Professionalization of the Japanese Attorney and the Role of Foreign Lawyers in Japan” (1986–7) New York Journal of International Law and Politics 1061, J. M. Ramsayer, “Lawyers, Foreign Lawyers and Lawyer Substitutes: The Market for Regulation in Japan“ 27 Harvard International Law Journal 499, Kitahama Law Office, The Legal Profession in Japan http://compuserve.com/homepages/Kitahama/Legproj.htm). It should be noted that overseas lawyers have been accepted in Japan since 1985. In 1993 approximately 75 practised there, 66 per cent from the USA and 23 per cent from the UK (S. Ota and K. Rokumoto, “Issues of the Lawyer Population: Japan” (1993) Case Western Reserve Journal of International Law 315 at 330).
  • Flood, supra n.103
  • E. Greenwood, “Attributes of a Profession” [1957] Social Work 45. See also T. Parsons, “Professions” in D. Sills (ed), International Encyclopedia of the Social Sciences (New York, Macmillan and The Free Press, 1968), pp.536–47.
  • Abbott, supra n. 88.
  • O. Fiss, “Against Settlement” (1984) 93 Yale Law Journal 1073.
  • This view of the complex relationship between ethics and culture is consistent with Bourdieu's argument that the juridical field is a “structured socially patterned activity or practice,... disciplinarily and professionally defined“, which is “strongly patterned by tradition, education, and the daily experience of legal custom and professional usage”: R. Terdiman, “Translator's Introduction to P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ “ (1987) 38 Hastings Law Journal 805.
  • Nicolson, supra n. 9.
  • Flood, supra n. 3.
  • J. Flood, “Globalisation: The Context: The Globalizing World” (1995) 23 International Business Lawyer 509 at p.512.
  • A. Giddens, supra n. 2 at p.17.
  • Id., at p.20.
  • Id., at p.53.
  • Shame bears on self-identity because shame represents anxiety about the adequacy of the biographical narrative and the feeling that “it cannot withstand engulfing pressures on its coherence or social acceptability” (id., at p.65).
  • M. Davis & F. Elliston (eds), Ethics and the Legal Profession—An Educational Text (New York, Prometheus Books, 1986).
  • It has been suggested that there are four categories of client, each of which category poses different ethical problems: (i) adults, i.e. competent self-sufficient adults, (ii) the aberrant, i.e. the minor, the incompetent, the ignorant or poor, (iii) the artificial client, i.e. the business entity, (iv) the accused (L. R. Patterson, “On Analyzing the Law of Legal Ethics: An American Perspective” (1981) 16 Israel Law Review 28 at 35).
  • See I. Kant, The Critique of Practical Reason (1788), and S. J. Kupfer, “Authentic Legal Practices” (1996) 10 Georgetown Journal of Legal Ethics 33.
  • Lawyers, for example, could be given more discretion in deciding, for example, who they will act for and how they will act (supra n. 167 at p.88).
  • This is consistent with Foucault's view that discipline, the enforcement of normalising judgements, in society, just as in closed communities, such as armies or prisons, is fostered by hierarchised, continuous and functional surveillance—P. Rabinow, The Foucault Reader (Harmonsworth, Penguin,1991) p.192.
  • Selznick's example of the large corporation is apposite. He asks whether the corporation, in reality, owes obligations only to shareholders in considering a hostile takeover. What of the interests of employees or the nation? A communitarian morality considers all of these interests as open ended, not a neatly prescribed set of obligations (supra n.5).
  • “Community” is not a special purpose organisation but a framework for life; “community” implies integration, shared symbolic experience and self regulating activities groups and institutions (Id., at 449).
  • The attempt to map a postmodern ethic is therefore built on the notions of reflexivity, the recognition and accommodation of difference (i.e. reciprocity). In this way it attempts to deal with the main problems presented by postmodern analysis; the revival of pragmatism and the failure of foundational beliefs, the incommensurability of values and the fragmentation of self (see Kupfer, supra n.167 at pp.62–7).
  • Id.
  • Giddens, supra n.4 at 212.
  • W. J. L. Calkoen, “Globalization of the Legal Profession” (1995) 23 International Business Lawyer 502.
  • See W. Simon, The Practice of Justice: A Theory of Lawyers' Ethics (Cambridge, Mass., Harvard University Press, 1998) who proposes that, rather than pursuing an orientation towards “the dominant view” (or client-centred orientation) or a public interest view, the extent to which lawyers should follow rules depends on the context in which the ethical problem arises (and see Kupfer, supra n.167).
  • See T.D. Campbell, “Moral Autonomy for Lawyers: A Review of William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics” [1998] Legal Ethics 201; L. Sheinman, “Looking for Legal Ethics” (1997) 4 International Journal of the Legal Profession 139, and Nicolson, supra n. 9.
  • CCBE Code, para. 2.2.
  • D. McBarnet, “Law, Policy and Legal Avoidance: Can Law Effectively Implement Egalitarian Policies?” (1998) 15 Journal of Law and Society 113 at pp.118–19. But cf. R. W. Gordon, “The Independence of Lawyers” (1988) 68 Boston Law Review 1.
  • Halliday and Karpik, supra n.113 at p. 361.
  • Id., at p.2.
  • Picciotto, supra n. 119.
  • Abel, supra n. 95 at pp. 743 and 749.
  • Hanlon, supra n. 1.
  • See Halliday and Karpik, supra n. 113 at p.361.
  • H. W. Arthurs, “Lawyering in Canada in the 21st Century” (1996) 15 Windsor Yearbook of Access to Justice 202 at p.209.
  • International Bar News, Summer 1995, p.23.

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