Professional Legal Ethics Critical Interrogations

by Nicolson, Donald; Webb, Julian

• ISBN13: 9780198764717
• ISBN10: 0198764715
• Format: Hardcover
• Copyright: 2000-03-23
• Publisher: Oxford University Press

Summary

Ethics and regulation have become catchwords of the late 1990s, yet relatively little has been written about the ethical discourse and regulation of the legal professions in England and Wales. This book represents the first attempt to subject the ethical discourse of the English legalprofessions to in-depth analysis and sustained critique. Drawing on insights from moral philosophy, social theory, the sociology of the legal profession, public law theories of regulation, and the extensive American literature on lawyers' ethics, it argues that, in seeking to provide definitiveanswers to particular problems of professional conduct, professional legal ethics has failed to deliver an approach which requires lawyers actively to engage with the ethical issues raised by legal practice. Through an analysis of the core issues facing lawyers, the authors locate this failure inthe profession's reliance on a liberal and adversarial role morality that conceptualises the ethical values of human dignity, autonomy and equality in a formalistic and narrowly legalistic manner. This encourages lawyers to overlook the real invasions of these values so often wrought by upholdingclients legal rights, and to ignore the competing claims of affected third parties, the wider community and the environment In seeking to move beyond critique, the authors develop throughout the book a contextual approach to individual ethical decision-making and outline a range of institutional,regulatory and educational reforms which, they suggest, could form the basis for a more ethical brand of professionalism. Professional Legal Ethics: Critical Interrogations is a wide-ranging and thought-provoking analysis written for lawyers, ethicists and policy-makers interested in this neglected area of professional ethics and regulation.

Author Biography

Donald Nicolson: taught at the Universities of Cape Town, Warwick and Reading before taking up a post at the University of Bristol in 1992. Here he teaches jurisprudence, legal methods, criminal law and gender and the law. He also has a research interest in evidence theory. He is on the editorial board of Evidence and Proof and Legal Ethics and the founder and Director of the University of Bristol Law Clinic.
Julian Webb: After completing a research degree at Warwick University in the early 1980s, Julian held various teaching and research posts in London before moving to the University of the West of England, Bristol in 1988, where he was consecutively a senior and principal lecturer in the Law Faculty and, finally, Professor of Socio-Legal Studies. In March 1999 he returned to London as Professor of Law at the University of Westminster, where he continues to teach and research in the areas of dispute resolution, legal ethics and legal education. He is articles editor of

Table of Contents

Introduction	1	(9)
Lawyers and Justice	1	(3)
Defining Professional Legal Ethics	4	(1)
Aims, Methods, and Arguments	5	(5)
The Philosophical Context: Theoretical Approaches to the Content and Status of Ethics	10	(41)
Introduction	10	(1)
The Scope of Philosophical Ethics	11	(2)
Deontological Ethics	13	(8)
Introduction	13	(1)
Kant's Ethics	14	(2)
Contemporary Deontology	16	(2)
Gewirth's Principle of Generic Consistency	18	(3)
Consequentialism	21	(8)
Introduction	21	(1)
Egoism	22	(2)
Utilitarianism	24	(1)
Utilitarianism Defined and Defended	24	(2)
Criticisms of Utilitarianism	26	(2)
Rule-Utilitarianism	28	(1)
Virtue Ethics	29	(5)
Introduction	29	(1)
The Virtues of Character	30	(1)
The Virtue Tradition	31	(2)
Evaluation	33	(1)
Psychology, Feminism, and the Ethic of Care	34	(4)
Postmodernism and the Ethics of Alterity	38	(11)
Introduction	38	(1)
The Meta-Ethical Debate	39	(4)
Meta-Ethics and the Postmodernist Critique	43	(3)
The Ethics of Alterity	46	(3)
Conclusion	49	(2)
The Social Context: Professional Ideals and Institutional Settings	51	(33)
Introduction	51	(1)
The Ideals of the Legal Professions	52	(2)
The Procedural Context	54	(3)
Characteristics of the Adversary System	54	(1)
Challenges to Adversarialism	55	(2)
Professional Structures and Institutional Contexts	57	(6)
Introduction	57	(1)
The Modern Institutions	58	(1)
Professionalism: In Whose Interests?	59	(1)
Representation and Intra-Professional Segmentation	60	(2)
Globalisation and Cross-Border Practices	62	(1)
The Demographic Context	63	(3)
The Educational Context	66	(4)
The Business Context	70	(12)
Introduction	70	(1)
An Overview of Practice Trends	71	(2)
Professional Organisations and Ethics	73	(3)
Client Relations: Business Versus Ethics?	76	(5)
Summary	81	(1)
Conclusions	82	(2)
The Regulatory Context: Ethics and Professional Self-Regulation	84	(39)
Introduction	84	(2)
The Institutions of Self-Regulation	86	(9)
Introduction	86	(1)
The Current Position	87	(3)
Reform of Self-Regulation	90	(5)
The Codes of Conduct	95	(21)
The Functions of Ethical Codes	96	(1)
An Overview of the Codes	97	(3)
The Form and Focus of the Codes	100	(1)
Introduction	100	(1)
Rules of Conduct	101	(3)
Ethical Rules	104	(5)
Evaluation	109	(2)
Reforming the Codes	111	(5)
The Enforcement Mechanisms	116	(7)
Introduction	116	(2)
The Professions' Disciplinary Procedures	118	(2)
Reforming the Enforcement Mechanisms	120	(3)
Duties to the Client: Autonomy and Control in the Lawyer-Client Relationship	123	(37)
Introduction	123	(1)
Boundaries of Autonomy	124	(6)
The Meaning of Autonomy	124	(1)
The Problems with Paternalism	125	(1)
Just a Matter of Degree?	125	(2)
Lawyers, Clients, and the Pathology of Paternalism	127	(1)
Egoism and Client Interests	128	(1)
Moralism and Lawyer Autonomy	129	(1)
The Legal Basis of Lawyer-Client Relations	130	(5)
Introduction	130	(1)
The General Scope of the Retainer	131	(1)
The Agency Relationship	132	(3)
Control in the Lawyer-Client Relationship	135	(11)
Manipulating the Client in the Lawyer's Interest	135	(5)
Manipulating the Client in the Client's Interest	140	(1)
The Client's Lack of Technical Knowledge and Strategic Awareness	140	(2)
Client Irrationality	142	(1)
The Case for Client Consent	143	(2)
Can Clients Sanction Lawyer Paternalism?	145	(1)
Client Control of Lawyers	145	(1)
Autonomy: A Critique and Re-evaluation	146	(4)
`Autonomy-in-Relation'	146	(2)
The Problems with the Contractual Basis of the Retainer	148	(1)
The Problems with the Transactional Form of the Retainer	149	(1)
Reconceptualising Duties to the Client	150	(6)
The Principle of Good Faith	151	(2)
Trust as a Professional Duty	153	(2)
Towards a Principle of Trust	155	(1)
Conclusion: Implications for the Form and Focus of the Codes	156	(4)
The Lawyer's Amoral Role and Lawyer Immorality	160	(22)
Introduction	160	(1)
The Lawyer's Amoral Role	161	(8)
Introduction	161	(1)
Written Discourses on Professional Legal Ethics	162	(3)
The Ideological and Institutional Background to Neutral Partisanship	165	(4)
Criticisms of Lawyer Behaviour	169	(11)
The Role-Differentiation Thesis	169	(2)
Excessive Zeal and Harm to Others	171	(4)
Harm to Lawyers	175	(3)
Insufficient Zeal and Harm to Clients	178	(2)
Conclusion	180	(2)
Justifying Neutral Partisanship	182	(31)
Introduction	182	(1)
Neutral Partisanship and the Adversarial System	183	(8)
The Arguments	183	(2)
Evaluating the Arguments	185	(1)
The Adversarial System and Truth	185	(3)
The Adversarial System and Legal Rights	188	(1)
The Adversarial System and Fairness	189	(1)
Conclusion	190	(1)
Neutral Partisanship and Liberal Values	191	(14)
The Arguments	191	(2)
Evaluating the Arguments	193	(1)
Criminal Defence Work	194	(3)
Other Legal Work	197	(8)
Neutral Partisanship and the Institutions of Liberal Government	205	(4)
The Arguments	205	(1)
Evaluating the Arguments	206	(3)
Conclusion	209	(4)
Reforming the Lawyer's Amoral Role	213	(35)
Introduction	213	(1)
Alternatives to Neutral Partisanship	213	(6)
`It's Good To Talk'---Moral Dialogue	214	(1)
Conscientious Objection---Refusal to Assist	215	(3)
Pulling Punches---Qualified Representation	218	(1)
Moral Activism and Ethical Foundations	219	(4)
A Contextual Approach to Immoral Ends and Means	223	(1)
Immoral Ends and Decisions to Represent	224	(11)
Introduction	224	(1)
Criminal Defence	225	(2)
Criminal Prosecution	227	(3)
Civil Litigation, Negotiation, and Facilitative Work	230	(1)
A Duty to Represent?	230	(3)
Factors Relevant to Representation Decisions	233	(1)
Conclusion	234	(1)
Immoral Means and Lawyer Tactics	235	(10)
Introduction	235	(1)
The Current Approach	235	(1)
Gaps and Uncertainties	235	(5)
General Criticisms	240	(2)
The Contextual Approach	242	(3)
A Decision-Making Schema for Morally Activist Lawyers	245	(3)
Confidentiality	248	(29)
Introduction	248	(1)
The Current Position	249	(4)
Criticisms of the Current Position	253	(3)
Justifying Confidentiality	256	(7)
General Justifications for Confidentiality	256	(2)
Specific Justifications for Lawyer Confidentiality	258	(4)
Conclusion	262	(1)
A Contextual Approach to Confidentiality	263	(12)
Alternatives to the Current Position	263	(3)
Confidentiality and Context	266	(1)
The Case Typology	266	(3)
The Information Typology	269	(1)
Harm to Lawyers	269	(1)
Harm to the Interests of the Administration of Justice	270	(2)
Harm to Others	272	(3)
Conclusion	275	(2)
Conclusion: Towards a More Ethical Profession	277	(16)
The Dominance of Formalism and Liberalism	277	(3)
The Contextual Alternative	280	(3)
Possible Objections to a Contextual Approach	283	(3)
Institutionalising an Ethical Professionalism	286	(7)
Bibliography	293	(30)
Index	323