In countries outside the developed world, although writers have written commentaries on specific legal codes, very little attention has been given to legal writing which has focused specifically on the ethics of the legal profession. This book makes a special contribution in that regard providing, as it does, a comparative study of prevailing efforts to enhance ethical standards in a profession potentially in crisis and under much public scrutiny. Countries which have been examined include the UK, the US, Canada, South Africa, and countries in the Pacific, South East Asia and the Caribbean. Valuable guidance and learning are provided on such topical issues as wasted costs orders, conflicts of interests, legal and judicial codes, confidentiality, privilege and the ethics of the criminal process, where the jury system comes in for critical evaluation. This book will be a valuable text on the ethics and status of the profession. It will be of considerable interest to law students, practitioners and legal academics, Bar Associations, Attorneys-General and Directors of Public Prosecutions as well as members of the judiciary.

Foreword

vii

Acknowledgments

xi

Table of Abbreviations

xvi

A Crisis in Legal Ethics

1

(8)

Excess of lawyers

1

(1)

Greater consciousness

2

(1)

Governments' intervention

2

(1)

Business v profession

2

(1)

The English position

3

(2)

Canada

5

(1)

The United States of America

6

(1)

How the Third World copes with the crisis

7

(1)

Concluding remarks

7

(2)

The Law -- A Business Rather Than a Profession?

9

(12)

Introduction

9

(2)

Law firms

11

(1)

Novel business ways of delivery

12

(1)

For-profit plans

13

(1)

Prepaid legal plans

13

(1)

Permissibility of these plans

14

(1)

Canadian plans

14

(1)

Position in the Caribbean

15

(1)

England and Wales

16

(1)

Conclusion

17

(4)

Access to Justice

21

(16)

Fundamental obstacle

21

(1)

Constitutional development

21

(1)

The world economic order changes

22

(2)

The effect of the legislative changes

24

(1)

What changes have taken place with legal aid overseas?

24

(2)

How lack of resources obstructs

26

(1)

Fee structure

27

(1)

Contingency fees

28

(1)

Canadian courts lead the way

29

(3)

What are the arguments in favour of contingency fees?

32

(1)

The future of access to justice in the case of hard-pressed governments

33

(1)

Concluding comments

34

(3)

Immunity From Suit

37

(8)

Rondel v Worsley

37

(2)

Saif Ali v Mitchell

39

(1)

Irony in the history of immunity from suit

40

(2)

Hall v Simons

42

(2)

Concluding comments with special reference to the application of Hall v Simons to developing countries

44

(1)

Professional Responsibility of Lawyers

45

(12)

Introductory remarks

45

(1)

Basis of contractual liability

45

(2)

Concurrent liability in contract and tort

47

(1)

The impulse to do practical justice in lawyers' liability

48

(2)

Breaches of trust

50

(2)

How duties of a solicitor are to be carried out

52

(1)

Remoteness and foreseeability

53

(1)

Further relations between lawyer and client

53

(1)

Identity of the client

54

(1)

Concluding summary

55

(2)

Wasted Costs

57

(18)

Is the wasted costs jurisdiction justifiable or practicable?

57

(1)

Basis of jurisdiction

58

(5)

Further case law on the subject in England, New Zealand and Canada

63

(9)

Conclusion

72

(3)

Confidentiality and Legal Professional Privilege

75

(18)

(A) Confidentiality in general

75

(6)

(B) Legal professional privilege

81

(10)

(C) Concluding summary: application of the rules to developing countries

91

(2)

Conflicts of Interest and Chinese Walls

93

(22)

The history and background

93

(1)

The nature of the interest

93

(1)

Scope of this review

94

(20)

Concluding remarks, with special reference to conflict in Third World countries

114

(1)

Self-Regulation and Discipline in the Profession

115

(18)

Introductory remarks

115

(1)

Part I -- self-regulation

115

(4)

Part II -- discipline

119

(6)

Part III -- judicial codes

125

(6)

Concluding summary

131

(2)

Ethics of the Criminal Process

133

(20)

Respective functions of prosecutor and defence counsel

133

(2)

When may defence counsel withdraw his services?

135

(1)

Duty of confidentiality

135

(1)

Does counsel deliver justice?

136

(1)

The ethics of the English system

136

(2)

The position overseas

138

(1)

How do the ethics of the defence attorney stand in newly-independent countries?

139

(2)

The prosecution

141

(1)

Functions of prosecutors

141

(1)

Who prosecutes? To whom responsible?

142

(1)

The fairness of the trial

142

(2)

Police powers vis-a-vis suspects and persons charged

144

(1)

Negotiated justice

145

(1)

The jury

146

(5)

Concluding comments

151

(2)

Alternative Dispute Resolution

153

(16)

Current thinking on the subject

153

(1)

The position in England: are lawyers being converted?

154

(3)

ADR in developed countries

157

(3)

Newly-independent and overseas dependent territories

160

(4)

The lawyer as mediator

164

(1)

Online dispute resolution (ODR)

164

(1)

Privilege and ADR

165

(1)

Alternative avenues of help in the UK

165

(1)

Small claims and short process tribunals

166

(1)

Conclusion

166

(3)

Epilogue

169

(4)

Bibliography

173

(8)

Index

181

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