Wednesday, March 29, 2006

Socio-Legal Studies Annual Meeting

The annual jamboree of the Socio-Legal Studies Association is underway at Stirling University in Scotland. I and my colleague, Julian Webb, have organised a stream on the legal profession. When we set this up, we weren't sure if it would attract any interest. There was a lull then suddenly we had offers. There are four sessions, two of which have taken place.

The first was presented by speakers from the Queensland Law Society in Australia (Malcom Hinton and Sharon Burke). They described how the federal structure of Australia was trying to create a national legal profession across the six states and territories. In this respect Australia is similar to the US where the states regulate the bar. And because it is the states' jurisdiction, the federal government can't impose a national structure on them. It has to be a coordinated approach between and among states and the federal government. While it's coordinated, the timing between states has introduced lags with some states far ahead of others, especially New South Wales, Victoria, and Queensland, which are the biggest states and have the most lawyers.

The impetus for this appears to have come from consumer resentment at poor delivery of legal services. So much of the new regulatory structure focuses on consumer impact rather than professional misconduct as perceived by fellow professionals. This of course puts professionalism--as arcane knowledge implemented and evaluated by similarly skilled individuals--under the spotlight and says professionalism needn't be so impenetrable after all.

What is peculiar is that unlike the US where one qualifies as an attorney, Australia has in some states the same divisions that the UK does between barristers (advocates) and solicitors (transaction lawyers). But in moving from a state-based structure to a national one, they are not removing these largely redundant distinctions and introducing a single legal profession. On the contrary, the divisions will be reinforced in legislation. Some cultural hangovers are hard to understand.

The second session had papers by Lynn Mather of the Baldy Center for Law & Social Policy at Buffalo, NY. She discussed tobacco litigation in the US and the UK. After a poor start in the US, lawyers, both public (states' attorneys general) and private (personal injury plaintiffs lawyers), are beginning to make headway against "Big Tobacco". There are all kinds of economic incentives for lawyers to pursue these cases. Also states have clout in forcing tobacco companies to the bargainning and settlement table. In the UK--both England and Scotland--it's been the opposite. The two key cases collapsed. The English case, led by Martyn Day, was fought by the tobacco companies at the stage of whether the plaintiffs should receive state funding (legal aid) to pursue their claims. The defendants were successful in killing off the litigation at this stage, compelling the plaintiffs from filing a new suit for ten years.

In Scotland the court took the view that the plaintiff was at fault, despite the evidence to show that "Big Tobacco" modified cigarettes over the years to deliver varying amounts of nicotine to sustain addiction. These two cases have effectively stifled any further litigation in this matter.

It is also clear that in the UK there is not a well-developed plaintiffs' bar as in the US. There is not the same incentive as provided by contingency fees in the US. Nor, as in the US, is there an accepted practice of courts imposing punitive damages. The paper raised a huge number of questions about legal culture, the legal professions, the use of ADR, and more.

Joe Little of the University of Florida Law School talked about the different approaches courts take to lawyer immunity from negligence claims. There are various claims made as to why lawyers should enjoy such immunity. Usually it applies only to advocates, so a business transaction lawyer can by sued. One rationale is that lawyers owe a duty to the court which overrides the duty to the client. This has met with varying success in the US, UK, New Zealand, and Australia.

Within the US it is losing ground as clients challenge more. In the UK it has after an extremely slow start now turned around with lawyers receiving less and less protection from the courts. New Zealand, too, has abandoned the protection of lawyers from their clients' wrath. By contrast, Australia has turned its face against this trend and is reinforcing lawyer immunity, which they did in late 2005. Whither lawyer immunity? Who knows?

There will be more from the SLSA meeting as it progresses.

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