ABSTRACTFormal representations of lawyer–client relations are often characterised by their regulative aspects, including codes of ethics and practice. In this article I look inside the relationship by returning to the sociology of Georg Simmel, who closely examined the basic units of sociality, especially dyads and triads. Using examples drawn from empirical research on corporate lawyers and clients and banks, I open up the lawyer/client dyad and show that in most cases the practices of lawyers and banks add (...) noise and interference to the relationship. The reason is that in many situations the basic unit of analysis for lawyer–client relationships should be the triad rather than the dyad. Whereas dyads are fundamentally stable, triads are the reverse, as they allow for alliances and defections creating permanent uncertainty. I take a number of examples where clients suffered in the alliances formed between their lawyers and the banks, leaving them on the periphery. It is time to recast the lawyer–client re... (shrink)

A classic avenue that victims can take to hold a corporation to account and obtain redress for the harms they have suffered is civil litigation. In the past decades, such attempts have been pursued against corporations in the tobacco industry, the pharmaceutical industry, the asbestos industry or industries working with asbestos and, more recently, the extractive industries. However, it is notoriously difficult for victims whose rights have been violated by corporations to obtain effective redress in civil procedures. A rich body (...) of burgeoning scholarly literature and policy documents has addressed the extent to which systematic and institutional factors are obstacles to victims seeking justice for corporate misconduct. In this article, we will not focus on these systemic and institutional factors but on the role of corporate defence lawyers as their functioning also impacts the capacity of victims of corporate wrongdoing to effectuate their rights. We will address the question of what can be expected from a legal-ethical point of view from corporate defence lawyers advising and representing their corporate clients in large-scale civil liability cases. As a partial answer, we will develop a critique of amoral lawyering as a working philosophy in this context. In addition, we will touch upon the feasibility of a possible alternative. (shrink)

In this article, we contribute to sociological literatures on morality, professional and institutional contexts, and morally stigmatized ‘dirty work’ by emphasizing and exploring how they mutually inform one another in lawyers’ work activities. Drawing on interview data with 58 practitioners in the commercial legal industry in Singapore, we analyze how they experience professional and institutional constraints on the expressions of morality in their work. Our findings illustrate how a dominant managerial and economic focus maintains and reproduces a constrained form (...) of morality, limited to instrumental, utilitarian and commercial ends, and subordinated to lucrative client and firm interests. We discuss our findings in terms of the need to research and reform professions in ways that support more rounded and unconstrained moral reflexivity and autonomy in how work is undertaken and valued. This in turn has implications for how organizations and professions might achieve alternative moral institutional orders, and for legal work to avoid the moral and social taints of dirty work. (shrink)

ABSTRACTThis paper draws on interviews with 57 corporate finance lawyers working from global law firms based in the City of London. Drawing on this data, we highlight common themes of taking deals at ‘face value’, being the lawyer-technician who uses the law to effect his client’s wishes, and not ‘pushing’ ethics. We suggest that there is an apathy – a lack of concern or interest – about ethics on the part of corporate lawyers. This apathy stems (...) from various sources. It is linked to assumptions about the sorts of clients that large law firms are willing or not willing to act for, and assumptions about the ‘right sort of people’ the firm hires and retains; it is linked to strong notions of role morality; and it is founded on the classic legal ethics ‘standard conception’ principles of neutrality and non-accountability. Our data also highlights a lack of ethical infrastructures in large firms, and a lack of ethical leadership from law firm partners for the associates and trainees working for them. (shrink)

We are all familiar with the old adage that hard cases make for bad law. This symposium riffs off that idea to inquire whether soft law can make for ethical lawyering? To interrogate this q...

Among key emerging societal principles to which a lawyer owes a high degree of fidelity are those that advance sustainability and that combat corruption. This essay considers the character of those...

There are two main questions that any account of corporate lawyers’ moral obligations needs to answer: (1) Do corporate lawyers have moral obligations to third parties? and (2) In cases of conflict between obligations to the corporation and obligations to third parties, which should prevail? This Article offers answers to these questions in the context of lawyers working in medical corporations. I argue that lawyers do have moral obligations to third parties, and that in (...) cases where patients’ rights are being violated by a medical company, patients’ rights should prevail. Consequently, attorney–client confidentiality rules should be relaxed to allow for attorney disclosures in egregious cases of potential harm to third parties. (shrink)

In Australia, since 2004, there has been a move to expand the range of models for legal practice. Lawyers may now incorporate a legal practice, which may have non-legal directors and shareholders. They may also enter into a partnership with a range of non-legal professional partners. This change is happening at the same time that legal practice culture is moving from a professional service model to a business-oriented model. Increased pressures have been thrown into the mix by the global (...) financial crisis and the downturn in the legal market. Inevitably, these changes have created new conflict problems. When a lawyer is responsible to both clients and shareholders, how can that conflict be resolved? What are the roles of non-legal directors or partners? What if they have ethical or legal duties which conflict with a lawyer?s duty to a client? When a corporate legal business is listed on the stock exchange, what pressure may that bring to bear on the business model of the legal practice? How can all of these issues be resolved in grim financial times? The author will examine all of these issues in light of Australian and international experiences with new lawyering patterns and the global financial crisis. (shrink)

Despite increasing numbers of women lawyers, gender segregation within the legal profession in the United States continues. The present article examines interorganizational differences in the employment of 34 men and 34 women lawyers in 12 in-house legal departments that varied by size and industry in corporations located in the northeast United States. There were differences among the firms with respect to the number, position, and salary of men and women lawyers. The findings suggest that women in-house counsel (...) do not enter the same type of practice or organizations, obtain the same positions, or earn the same salaries as men. The differential employment patterns, the article concludes, stem largely from organizational contingencies, such as a firm's market position, perceived needs, the kinds of rewards and training offered, and recruitment strategies. It also suggests that men's and women's differential location in the labor pool results not from their own career choices but from employer's hiring and work-allocation decisions that provide them with different experiences and expertise, which in turn constrain future employment options. (shrink)

This book proposes a new model of professional ethics enabling lawyers to advise clients upon both the law and ethics. This will better protect clients, and society, and enhance lawyers' professional obligations. The current model of legal ethics, developed in the 19th century, specified that the role of lawyers was only to interpret the law, not also to give ethical advice. This was acceptable to lawyers, clients, and society at that time. However, this is not the (...) case now and legal ethics no longer reflects the needs of modern legal practice. This book draws on moral philosophy to present a new model of legal of ethics that explains the analytical process to include ethical advice. It analyses the potential harm of the present model to the legal profession who have duties to the law and justice that may compete with demands by clients to serve them. Further, lawyers' duty to clients to act in their best interests is sometimes not adequately fulfilled as legal ethics does not permit lawyers to give ethical advice even if it may be in clients' best interests to do so. The work includes a detailed case study of corporate law practice to show why a new legal ethics is required. Other case examples are provided to demonstrate that lawyers practicing in all areas of law encounter ethical issues and they too will benefit from a new legal ethics. The book will be essential reading for students, academics, lawyers and professional bodies. (shrink)

“Daily Mail”, “Centros”, “Überseering” and “Inspire Art”: The ECJ has triggered by applying the principle of freedom of establishment step by step the competition between EU corporate legal systems. Entrepreneurs and investors within the EU now can choose between the various corporate legal forms of the various member states when deciding where and how to carry out their business. “Corporate Business Forms in Europe” is the first compendium including a review and description of the most important types (...) of corporate business forms in the newly enlarged Europe. In particular with respect to the proposed directive concerning the transfer of the registered office of a company from one member state to another under perpetuation of its legal capacity this compendium becomes an indispensable reference book for investors/businessmen, lawyers and students providing practical information starting with the formation and ending with the winding up of the various types of corporate entities presented. The team of authors comprises lawyers and professionals from the various countries concerned with a profound background in corporate law. (shrink)

Since 1985, I have divided my professional life between teaching philosophy and practicing law in Northampton, Massachusetts. I am part of two excellent professional communities, the faculty of Smith College and the Hampshire County Bar. Making allowance for the usual sources of adult unhappiness--one gets divorced, has a drug or alcohol or gambling problem, a debilitating disease or injury, a child in jail, etc.-! -, we Northampton lawyers seem generally to be a happy lot. We are public-spirited, appearing disproportionately (...) on the boards of local nonprofit corporations. I know of no local polls on the question but our fellow townspeople appear to hold us in good esteem. We get on well with one another-- perhaps rather better than do my academic colleagues. Our chief source of professional anxiety is attracting remunerative employment in a highly competitive labor market. Still, virtually everyone seems to make at least a passable living and some obviously prosper. Very few of us have burned out and left practice. When we talk shop we often complain about particular judges, our clients and occasionally other lawyers, but never about the value of our profession. We do not often indulge in abstract speculation. (My lawyer friends take no interest at all in my writings on jurisprudence.) But our demeanors do not bespeak inchoate unhappiness with our professional lives. We are evidently pro! ud of what we do. (shrink)

This article starts with a critical reflection on John Westlake’s reading of the history of empire and the English/British East India Company – for him, essentially, the proper concern of ‘constitutional history’ rather than international law. For Westlake, approaching this history through the prism of nineteenth-century positivist doctrine, the Company’s exercise of war powers could only result from state delegation. Against his warnings to international lawyers not to stray from the proper boundaries of international legal inquiry, the article proceeds (...) to recover Hugo Grotius’s theory of corporate belligerency in his early treatise De iure praedae. For Grotius, corporations could wage public war on behalf of the state yet, at the same time, were in law capable of waging private war in their own right. The article proceeds to reflect on the practice of corporate belligerency in the centuries separating Westlake and Grotius; it concludes with observations on the implications of Grotius’s theory of corporate belligerency today. (shrink)

The questions -- The purpose of morality and law -- The past and the future -- What is religion? -- What is the rule of law? -- The families of religion : western religions -- The families of religion : eastern religions -- The families of law -- A brief tour of secular law -- Money, banks and corporations -- Secularisation and religious decline -- Reasons for the decline of religiosity -- Secularisation of government -- The rise of the (...) class='Hi'>lawyers -- Who rules the world : lawyers or economists? -- What is wrong with the law? -- Scientific progress and the law -- A way of living -- A billion years from now. (shrink)

This article analyses the ethics of how community engagement and dialogue as applied by a mining corporation in Chile led to erosion of the community’s psychological freedom despite being aligned with best practice. This article details how a mining company squeezed the psychological freedom of the community in order to obtain an agreement between the period of 2000 and 2016. The findings focus particularly on a 9-month period between 2015 and 2016 when the company undertook intense community engagement. The article (...) identifies six corporate action phases undertaken which curtailed the community’s psychological freedom as paying off local leaders; challenging via courts of law; co-opting community lawyers; prohibiting a key debate during dialogue; and remaining silent after failing to honour its own self-imposed rule. The findings label the company’s community engagement as contradictory; while it conducted transitional and transformational engagement in formal spaces, it also engaged in unethical strategies in the informal spaces of community engagement. The result was overall community consent and an even more fragmented community. This article finds that when it limits the psychological freedom of participants, who are already divided as a group, corporate–community engagement can be viewed as ethically problematic. Based on analysis of the literature and an empirical case analysis, this article contributes a test for assessing the ethics of CCE. (shrink)

“There's a new whistleblower in Washington,” according to CNN News. He is Food and Drug Administration scientist David Graham, who claims that the FDA failed to warn the public about certain drugs' dangerous side effects and pressured him to change his research's conclusion that the arthritis drug Vioxx caused heart attacks. Another Washington whistleblower, Dr. Jonathan Fishbein of the National Institutes of Health, alleged that he was fired because “he had raised concerns about sloppy practices that might endanger patient safety” (...) in a study of the AIDS drug nevirapine.Graham and Fishbein thus joined the ranks of whistleblowers who have gained some prominence in recent years for their reporting of corporate or institutional misconduct. The best-known whistleblowers—the FBI's Coleen Rowley, Enron's Sherron Watkins, and WorldCom's Cynthia Cooper, who together received Time magazine's Whistleblower Person of the Year Award in 20024 - focused public attention on the reform of corporate accounting and legal practices. (shrink)

This article addresses one of the more disturbing questions raised by the major financial failures of the recent past; namely, how it could be that professionals, highly trained both in ethics and technical disciplines, should apparently collude with management in corporate misbehaviour. The article builds on evidence suggesting that professionals in employment contexts find ways of adapting in order to minimise perceived or actual conflict between their professional and organizational obligations and that this, in turn, may affect the way (...) in which they exercise professional judgment. It uses identity theory to propose that professionals may adopt modified identities when employed and that these identities may be expressed, in part, in the way in which they resolve ethical dilemmas. The article reports on the results of a qualitative study in which corporate counsel showed evidence of adopting these identities. The findings suggest that this line of research offers insight into a far more complex world of employed professionals than that traditionally hypothesised and that the popular approach of regulators and others to monitoring corporate governance by appointing professionals as gate-keepers within the organization is perhaps problematic. (shrink)

The role of corporate counsel in the corporate governance process has been long overlooked. This paper uses recent comments by Breeden as the springboard for a discussion of the issues surrounding significant roles for lawyers in corporations. It considers these both from a practical and a theoretical perspective and identifies why it is problematic merely to assume hiring lawyers will ensure good compliance both in terms of legal and ethical obligations.

Despite the fact that corporate law firms attract some of the most intelligent and productive minds in business today, they have failed to cultivate a workplace that facilitates healthy and balanced lives for their practitioners. Workplace stress in the sector is manifest in a culture which continues to sanction 'rite of passage' work practices which bolster earnings for those at the apex but are proving sickening to many. This culture inhibits basic ethical human interaction based on decency and respect (...) and cultivates oppression through fear of failure. Not surprisingly then, bullying is tolerated and lawyer attrition is rife, particularly for junior women lawyers. This article considers the impact of bullying in Australian corporate law firms. Foucauldian thought is utilised in order to better understand first, how the organisational culture in major law firms continues to authorise practices which prove injurious to practitioners' health and secondly, the resulting lawyer attrition. It is argued that the 'disciplinary technologies' being adopted by management function to assure an economy of power relations which not only facilitates conformity with the values and imperatives of the firm but also, the quelling of subversion and resistance to its effects. Standpoint theory is adopted to examine the workplace harms being borne by junior lawyers through a narrative 'Snapshot' of the experience of a female, mature-aged, junior lawyer working as a solicitor at a top tier Australian corporate law firm. Her detailed account illuminates recent quantitative empirical research into the experiences of Australian women lawyers and lays bare the culture of fear and workings of power, violence and marginalisation within the firm. (shrink)

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the (...) twin evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals. (shrink)

Lawyers defending extractive corporations in transnational human rights and environmental cases tend to reflect the dominant ‘resolute advocacy’ model of litigation, which directs lawyers to aggres...

Firms’ choice of legal regime is not uniform. Despite Delaware’s significant advantages and success in attracting corporations, many firms still choose to incorporate in their home state, and some firms incorporate in a third state, most notably Nevada. Several factors - lawyers’ advice, political influence in the home state, and relative costs of out of state incorporation - were identified as contributing to these patterns. Yet none of these factors neither their combination, fully account for firms’ choices. This Article (...) suggests that unidentified heterogeneity, potentially in managers’ preferences for legal protection, might have contributed to, and could help in explaining, these patterns. Among other factors, this heterogeneity could result, for example, from variations in market forces and, in turn, private benefits that managers extract. Introducing heterogeneity in managers’ preferences, this Article suggests that managers that share a relatively strong preference for insider protection should be less inclined to incorporate in Delaware, and more inclined to incorporate in their home state where they have political clout, or in Nevada if their strong preference for protection is not satisfied in their home state. The analysis is too preliminary for normative implications to be derived, rather the Article suggests that more research into firms’ heterogeneity and their choice of law could prove valuable. (shrink)

In its roughly 25 years of existence, the trial consulting profession has grown dramatically in membership, recognition, and breadth of practice. What began as a small activist group of social scientists volunteering their expertise to assist in the defense of Vietnam War protestors has evolved into a diverse set of professionals from a range of educational and professional backgrounds. In spite of such enormous growth, the work of trial consultants has gone largely unexamined. Trial Consulting takes an in-depth look at (...) the primary activities of trial consultants, including witness preparation, focus groups and mock trials, jury selection, change of venue surveys, and attorney presentation style. It also examines the profession's struggle to define itself, resisting certification and licensure requirements and settling instead for a set of practice standards. The authors draw upon empirical and other scholarly work in the social sciences, recommended "best practices" from trial lawyers, and the written and spoken recommendations and reflections of the trial consultants themselves. Addressing a broad spectrum of topics ranging from handwriting analysis to medical malpractice cases, they also suggest reforms for improving the profession and the efficacy of the trial consultant in the courtroom. The result is a critical analysis of what trial consulting truly adds to, and detracts from, the administration of justice. This book is an indispensable guide for practicing and aspiring trial consultants as well as the judges, attorneys, and psychologists who work with them. Trial Consulting provides a thought-provoking statement on the state of the profession, and students and professionals alike will benefit from the challenges it offers. (shrink)

The integrity of corporate product advocates (advertisers and salespersons) is questionable for the same reason the integrity of lawyers is questionable. In both cases the requirements of a professional role inevitably lead to forms of deception. However, the integrity of lawyers has been taken to be a more serious issue than the integrity of product advocates. I consider why this is so, and I conclude that we should pay more attention to the integrity issue in the (...) class='Hi'>corporate case. In addition, I consider a parallel set of arguments that purport to justify a lack of integrity among product advocates and lawyers respectively. According to these arguments, a great social good is obtained from the institutions, corporate and legal, of which these persons are essential participants. Against these arguments, I emphasize the overriding importance of integrity, both within institutions and in society at large. (shrink)

ABSTRACTAt its core, corporate social responsibility concerns the impacts of businesses on their surroundings. Despite their significant economic and geographic presence, and despite the varied disciplinary and conceptual lenses used to study CSR, there is very little existing work looking at law firms and their own CSR policies. This paper fills part of that gap. In August 2014, we reviewed the websites of the top 100 English law firms, as ranked by the trade publication The Lawyer. We were interested (...) in public disclosures made by those law firms on CSR. These were widespread. The majority of the top 100 firms say something to the wider world about CSR. However, what is said varies significantly. This is, perhaps, unsurprising. What is more surprising is that so few firms explain why they are committed to CSR. Where firms do make disclosures on CSR, these tend to group around the following three areas: pro bono and community giving; (ii... (shrink)

This article analyzes the origins of the “responsible corporate officer” doctrine: the trial of Joseph Dotterweich. That doctrine holds that an officer may be personally liable for the criminal act of a subordinate if the officer was, in some indefinite way, able to prevent the violation. Applying this doctrine, the prosecution of Dotterweich entailed strict liability for a strict liability offense. The underlying offenses—the interstate sale of one misbranded and adulterated drug and one misbranded drug—were said to be strict (...) liability offenses. And then, with respect to Dotterweich as the corporation’s general manager, the government argued that he was strictly liable because he stood in “responsible relation” to the company’s acts. The government never tried to prove that the company, Buffalo Pharmacal, was negligent, nor did it try to prove that Dotterweich was negligent in his supervision of the employees of Buffalo Pharmacal. The prosecutor and judge were candid about this theory throughout the trial, although the judge conceded that it seemed bizarre and unfair. The defense lawyer repeatedly sought to inject what became known throughout the trial as the “question of good faith,” but was circumvented at almost every turn. What would thus seem to be the crux of any criminal trial—the personal fault of the defendant—was carefully shorn from the jury’s consideration. The government’s theory was so at odds with intuitive notions of liability and blame that, as one probes into the case, and looks at the language used in the government’s appellate briefs, imputations of moral fault inevitably crept in. Yet the government was not entitled to make such accusations, as it had pruned moral considerations from the trial. The article argues that the responsible corporate officer doctrine can never enjoy a secure place in our legal system. First, the doctrine is at a minimum in tension with, and often in direct opposition to, basic principles of the criminal law; and second, the doctrine fails, when followed to its logical conclusions, to accord with basic notions of fair play. The article concludes that the responsible corporate officer doctrine is either unnecessary, in cases in which the evidence establishes personal fault, or unjust, in cases in which it creates liability in the absence of personal fault through the unspecified notion of “responsibility.” The Dotterweich case illustrates what is contemplated by the latter possibility, and why it is problematic in any judicial system that purports, in the words of the Model Penal Code, “to safeguard conduct that is without fault from condemnation as criminal.”. (shrink)

The desire to use established corporate law skill sets in the pro bono context has lead some lawyers to extend pro bono services to charitable and non-profit organisations. But does the provision of free legal services to well-funded organisations constitute pro bono work, and how can providers of pro bono legal services best prioritise among competing organisations? The author surveys various sources of formal and informal regulation in Singapore and selected Asian and other common law jurisdictions and suggests (...) that when distinguishing between non-profit organisations with different levels of funding, a coherent guideline would evaluate whether the payment of legal fees would deplete economic resources to the extent of significantly impairing organisation programmes. (shrink)

How do we deal with difference personally, interpersonally, nationally? Can we weave a cohesive social fabric in a religiously plural society without suppressing differences? This collection of significant essays suggests that to truly honour differences in matters of faith and religion we must publicly exercise and celebrate them. The secular/sacred, public/private divisions long considered sacred in the West need to be dismantled if Canada (or any nation state) is to develop a genuine mosaic that embraces fundamental differences instead of a (...) melting pot that marginalizes. An ethics of difference starts with a recognition of difference, not as deviance or deficit that threatens but as otherness to connect with, cherish, and celebrate. The book begins with the suggestion that our inability to come to terms with social plurality is not fundamentally the fault of religious differences, and that a public/private split inadequately deals with matters of basic difference. It then explores how encouraging people to live out their respective faiths may open new possibilities for respectful, honourable, and just negotiations of contemporary dilemmas arising out of the multicultural fabric of Canadian life. Towards an Ethics of Community introduces readers to some of the most challenging and divisive dilemmas we face in this increasingly pluralistic, postmodern world — issues such as family and domestic violence, Aboriginal rights, homosexuality and public policy, and female genital mutilation. This is a book truly global in scope and significance. (shrink)

"Golf day 2005 @ federal golf club, red hill." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (196), pp. 7.