Wednesday, July 30, 2008

Lawyers and Clients

I am revising a paper I submitted a while ago to the Journal of Law and Society on lawyer-client relationships. The argument is that while we conventionally view lawyer-client relationships as a dyads, they are in fact more complex. This is especially so in relation to lawyers' clients who are borrowing money from banks to finance projects. (This of course sounds funny right now in the present economic circumstances, but there was a time when banks did lend money.)

So a better way of perceiving these relationships is to think of them as at bottom triadic or more likely multipolar. Lawyers are often placed in conflictual settings by having to satisfy multiple constituencies, some of whom are bigger repeat players than others.

This paper follows on from one I published a long time ago on the management of uncertainly in lawyers' work which was interpreted through the lens of the lawyer-client relationship. For the sake of continuity I have just put this paper up on SSRN.

Monday, July 28, 2008

Was Clementi the First?

The Clementi proposals in the Legal Services Act 2007 are radical. Alternative business structures will usher in "Tesco Law" and "Goldman Sachs Skadden". I've been doing some archival research lately and found that these ideas were first proposed 23 years ago in 1985 by Steven Brill in The American Lawyer.

In one of the most prescient articles ever written, Brill wrote:

Wall Street's Sullivan & Cromwell and Shearson Lehman/American Express have begun secret negotiations aimed at a deal in which S&C would become the first law firm to be acquired by a financial services conglomerate....Under terms of the proposed S&C buyout--which would be dependent on S&C successfully moving to overturn...Code of Professional Responsibility rules prohibiting nonlawyers from sharing in lawyers' fees--S&C would, as one source close to the deal puts it, "become an integrated part of the package of services Shearson Lehman/American Express can offer major corporations....when the deal is done, we're going to restructure S&C's fees so that in mergers and acquisitions they'll charge a percentage of the deal, the way investment bankers do."

It was fiction, as Brill said, but I wonder if he realized it could become true? He does say in the article, "Sure, the idea in its totality is off the wall for many reasons..." Not any more.

Sunday, July 20, 2008

Globalization of Crime

I am teaching my Miami Law School summer class in London right now. And this year I decided to include in my Global Lawyering class a small section on the globalization of crime. I wanted to include David Cronenberg's excellent movie, Eastern Promises, with Viggo Mortensen and Naomi Watts, which shows the activities of the Russian Mafya in London engaged in prostitution, drug trafficking (working with the Afghans, Chechnyans, and Turks), and smuggling. It is also filmed close to where I live in east London.

Of course when one does something like this--and I did say small section--it inevitably balloons and everything one reads concerns global crime or violence, e.g., UBS being investigated by Congress for dodgy money transfers and tax evasion; BAE directors being arrested in transit for suspected bribery in Saudi arms deals. (We are having to depend on the US to take over this investigation after the UK government caved in to Saudi demands to halt it.) Although, I've had one student comment that he can't see how this is to do with globalization.

However, what really encapsulated the essence of my teaching popped up in an article in today's (19 July 2008) Financial Times, titled, "Bulgarians Ponder Impeaching Leader." In it was the glorious paragraph:
One Olaf [EU Commission anti-fraud office] inquiry involved the illegal import into Bulgaria of Chinese rabbit meat, which was resold to customers in the EU after being repacked using false Argentine health certificates.
Can't beat that!

Thursday, July 17, 2008

If You've Been a Government Bigwig, What Do You Do Afterwards?

My question is prompted by Lord Falconer's recent hooking up with Gibson Dunn & Crutcher as "senior counsel". That means he isn't a partner but looks like one. Gibson's PEP is running at $1.9m. He is going to become a member of the firm's dispute resolution team.

He is one of a line that is growing. The former attorney general, Lord Goldsmith QC, joined Debevoise & Plimpton within the last year. And some years ago, Margaret Thatcher's cabinet colleague, Lord Howe, consorted with Jones Day.

There is a reluctance for these former barristers to return to the Bar. Some others have rejoined the Bar, eg. Michael Howard and some other lesser known Conservative ex-ministers.

If you have been in government for any length of time, then there is no organizational infrastructure to fall back on. In effect, one has to start over. That is stressful. Given that outlook, it is not unexpected to see these lawyer-politicians searching for a graceful, relatively easy re-entry to a profession that fails to reward public service in quite the same way as perhaps the US legal profession views its door revolvers.

Of course the big one is Tony Blair who last practised law so long ago, he wouldn't know where the courts were let alone know how to argue a case. (And given his highhanded attitude towards the law, he'd probably end up in the dock rather than being outside it.) His alternatives were Middle East envoy (but with no effective pay), the rubber chicken dinner talk circuit (profitable but not to the same extent as Bill Clinton), and now a senior advisory post with JP Morgan because of "his unique perspective on global political issues and emerging trends". He's reputed to be getting $1m for his part-time post.

There are more barristers in government than solicitors. Whether this is because those with political ambitions choose to become barristers or vice versa, I don't know. Whichever it is, barristers know that they can't necessarily return to the position they previously possessed before government.

One comment made to me in my research on barristers' clerks, is that no matter how eminent or senior or however highly remunerated, a barrister is always fretting about where the next case will come from. Some obviously love the insecurity of the star performer. Others prefer to cash out in a more secure and comfortable environment.

But one question I can't answer is why they are all joining US firms and not British ones? Do they know something the Americans don't?