Tuesday, April 27, 2010

Lawyers in Practice: Ethical Decision Making in Context at the Baldy Center, Buffalo

(Origami buffalo thanks to ORI_Q)
I got back from Buffalo, New York, yesterday as my plane flew out being chased by lightning and thunder storms that were the tail edge of the tornadoes raging over the US.


My reason for being at the Baldy Center, University at Buffalo Law School, was because I had been invited to contribute a paper on transnational lawyering by Lynn Mather and Leslie Levin. The conference had the aim of: examining:
How do lawyers resolve ethical problems in the everyday context of law practice? What issues commonly emerge in different practice specialties and what are the norms and rules for resolving them? This is the first conference that focuses on the empirical research on lawyers' work and their actual decision making in a wide variety of practice contexts.
Participants will examine the work of lawyers in a number of practice areas, identifying one or more ethical issues that arise in the practice area. Scholars will present their research, embedding lawyers' decision making in both the professional world of ethical codes and the social and economic setting of the workplace.
It was an intensive day including papers on solo or small firm lawyers:
  • plaintiffs' lawyers--professional norms and the need to generate business
  • divorce lawyers--client grievances and client relationships
  • immigration lawyers--the lying client
While these presentations often involved cases of personal challenges, the next session moved to a seemingly more remote sphere of the corporate practice. Papers included:
  • practice groups in large law firms--embedded ethics in practice groups
  • corporate litigators--ethics in discovery
  • In-House lawyers--ethics and allegiances
  • Transnational lawyers--conflicts and identification of client
The organizational context was further explored with reference to specialist lawyers:
  • tax lawyers--clients' interests or moral stewardship?
  • securities lawyers--guardians of the public realm?
  • patent lawyers--changing roles in defensive patent applications
Finally, we looked at public interest lawyers:
  • legal services lawyers--in context of social work
  • ethics of law reform lawyering--top down or bottom up?
You can read the abstracts of the papers on the Baldy website. The presentations contained a wide variety of empirical and theoretical approaches including ethnography, interviewing, statistical analysis, philosophical investigation among others. Theoretically, the papers considered the problems of attempting to capture the nature of lawyer-client relationships in shifting contexts; how do so many different types of lawyer fit within under the umbrella of the "legal profession"? what did it mean to talk in terms of a legal profession? how were ethics and regulation being balanced against each other? and how did this operate in a globalized world?

Plenty of questions and issues. We now are redrafting our papers we hope in a more integrated way that will work in the collection. We want this book to be of benefit to students as well as fellow academics and lawyers. Students often find their professional responsibility classes bear little resemblance to practice. This is a serious attempt to bring the dilemmas of practice to the student who can begin to comprehend the complexities of modern legal practice in its variety of forms.

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I had an extra day in Buffalo so my hosts, Lynn and Mike Mather, took me to see Niagara Falls. We get blase about the wonders of the world because of our constant exposure to them. I've made this mistake before in connection with the pyramids at Giza and the Taj Mahal. I almost made it again.

The Falls are big and very noisy. But as you approach them you hardly notice they are there. It's only when you look at them head on you see the long drop, the relentless pressure of water being squeezed into a smaller gap, and the mist that nearly obscures everything.

 (I never saw the owner of the shoe...)

I hadn't realized there were two sets of falls. And that you can take a boat trip around them. It's very wet as you can see from the blue people. Their raincoats are wishful thinking.

This is the second falls.


Standing below this makes me wonder who first went over by mistake...and what they were thinking.

And here are my hosts, Lynn and Mike Mather.


They took me around Buffalo itself which has some terrific architecture, especially from the time of Louis Sullivan. (See his Prudential Building.) Chicagoans will know what I mean. Sitting on the edge of Lake Erie it has at times a coastal feel which is heightened when you can drive across the border to Canada next door.
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Tuesday, April 20, 2010

Herbert Smith Knows Its Stuff!



The building above houses the law firm, Herbert Smith. It hovers over Liverpool Street station on a flexible foundation and although I've been in it, I have never felt it move. It's nice inside: a homage to modernism.


You can see the Mies van der Rohe Barcelona chairs in the background.

The reason for this post, however, is that Herbert Smith promoted 18 associates to partner of whom a third were women. But most important of all, is that one of them is my niece, Susannah Cogman. (And these are tough times for promotions.) She's good on white-collar crime and money laundering. And aren't those specialties needed right now....


Congratulations, Susannah!
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The Law Firm Has Defaulted on Its Bonds?



Anthony E. Davis sent me details of the $125 million bond issue by Dewey and LeBoeuf, which is over-subscribed. Now in the US there is nothing like the Legal Services Act 2007 that enables external investment in law firms. In fact the professional rules expressly prohibit non-lawyers having an interest in a law firm.

Anthony then asked: "Can somebody explain to me why this is different (or should be differently regulated) from raising equity capital?" (ie. as envisaged in the Legal Services Act.)

Well, I suppose the obvious answer is there's no equity. But that's not satisfactory. Imagine if the firm defaulted and had to be restructured. Who would own what, then? Would there be a debt-for-equity swap? Hardly.

The bondholders must be very confident. But then only a handful of firms have gone bankrupt...recently.

I think Anthony is right, Dewey and LeBoef has put itself in hock to outsiders. But as one colleague has said, "Debt be debt and equity be equity. Would it be any different if a firm defaulted on a loan?"
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Monday, April 19, 2010

From Ethics to Regulation


(Thanks to daniele esposito for computer ethics graphic)

I like the "Catholic PC" in the sketch. I wonder how ethical it really is?

I have put a new paper on SSRN.com titled, "From Ethics to Regulation: The Re-Organization and Re-Professionalization of Large Law Firms in the 21st Century".

The abstract reads: The recent history of the legal profession is presented as one where the re-regulation of the profession, as epitomized in the Legal Services Act 2007, has placed the large law firm at the centre as a site of regulation in its own right. The legal profession has redefined its professional character from that of autonomous producers to employed lawyers who now exercise discretion within tightly constrained corporate limits. This is paralleled by the move away from individualistic codes of conduct towards entity-based regulation.

Keywords: ethics, regulation, Legal Services Act, large law firms.

I would appreciate any comments.

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Tuesday, April 13, 2010

When It Goes Wrong.....

(Thanks to New Yorker)

This for my friend, Peter, who injured his foot recently....Get well....





<<<< The Foot!

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Monday, April 12, 2010

"Historic" Liberalization of Bar Rules.....

Avis Whyte and I wrote an article on direct access to the Bar which is due to be published shortly by the International Journal of the Legal Profession. Since articles generally take some time to reach the public arena, we put out a pre-print version here.

One of the problems facing barristers we found was the inability to write letters on behalf of their client, collect evidence and take witness statements, or to attend clients at police stations. These hark back to the glory days of the Bar being only a referral profession. And in the context of direct access to barristers by clients made no sense.

With the passing of the Legal Services Act 2007 that no longer holds true.

The Legal Services Board has granted the Bar Standards Board's application to remove these obstacles (mind you they made this application on April 1??). This means that the Bar can start behaving like normal lawyers who interact with clients rather than believing themselves to be the guardians of the holy writ of law.

It's only taken a hundred years or so to get here.
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Friday, April 09, 2010

Alternative Business Structures Creeping In....

(thanks to Jovialiste's Blog)

Two items caught my eye on the legal news this week that come on the tail of law firms taking over inhouse law departments and local authority legal departments forming joint ventures with law firms.

First, Penningtons, a large-ish law firm, has made a barrister up to partner. The first under the changes in the Bar Standards Board's rules brought in on April 1. (No, it isn't an April Fool's joke.) We will probably see more blurring of the professional divide between barristers and solicitors.

Second, in Scotland where lawyers had been fighting against changes in the English fashion (ie. ABS) the aye vote narrowly won in a referendum held by the Law Society of Scotland thereby liberating Scotland from the yoke of the traditional partnership and lawyer-only practices. The war isn't over yet.

The four largest law firms in Scotland had threatened to withdraw from the regulatory shield of the Law Society of Scotland and have themselves regulated by the (sassenach) Solicitors Regulation Authority if Scotland didn't change.

Maybe Scotland is changing but I doubt it. Any country that has as its national dish a sheep's stomach filled with the animal's heart, liver and lungs (ie. haggis--see below if you dare) is in dire need of serious treatment.

Ecchhh!!!???!!!

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Thursday, April 08, 2010

Georgetown Conference: Law Firm Evolution: Brave New World or Business as Usual?


MyLegal.com have written up the Georgetown conference. Here's their take on my panel on Capitalizing Law Firms:
John Flood put things into a sociological perspective by dividing law firms into 4 centuries: 19th century “patriarchal” with 3 partners and 40 managing clerks (a 1:20 ratio); 20th century “professional” with 20 partners and 40-100 assistants; late 20th/21st century “beaucratic” with 100 partners but with shrinking equity, salaried partners, permanent associates, staff attorneys, and professional support staff; and then the 21st century which is … well … Google. If nothing else, his choice of photos was pretty amusing (click here).
Their report on the session continues here. And you can get a better set of slides here.

I am writing up my presentation for the American Lawyer.
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