Lawyers v. Businessmen: Where Are the Bad Men?

Jan 11, 2012 Richard Moorhead1 comment

Richard Moorhead

In the glamorous/murky/elite/financially rewarding world of commercial law is it clients or lawyers who are the bad guys?  Put another way, does business corrupt law or do lawyers corrupt business?  This is the question that lies at the heart of Parker, Rosen and Nielsen’s paper.   Since the Savings and Loan scandals via WorldCom, Enron and latterly UK’s own Hackgate, corporate wrongdoing is often accompanied by the question, Where were the lawyers?  And as Big Law turns increasingly, well, ‘big’, the “is law a business or a profession” question is posed increasingly nostalgically, usually with deliberate exaggeration and answered only with speculation rather than evidence.  It is refreshing, therefore, to report on a study which is deals with the relationship between law and business empirically and with imagination which also deals with conceptually important questions.

Indeed, it is a central premise of professionalism that lawyers that they apply their specialist knowledge in the public interest.  That is lawyers should act to encourage lawfulness on the part of their clients.  They should encourage compliance.  Professional ethics courses tend to concentrate on the idea that it is a Holmesian ‘bad man’ client that pushes lawyers into ethically grey areas.  In particular that client (usually a businessman or criminal defendant–sometimes both) exploits a lawyer’s duty to zealously defend their client’s interests.  Corporate clients, as sophisticated players, with deep pockets and repeat business on offer, are able, so the theory goes, to corrupt their lawyer’s into finding ways of playing the system to the client’s advantage.  In simple terms the theory is lawyers good/clients + markets bad.  And, of course, markets win.  Parker and her colleagues ask the question: Is this an empirically testable proposition? And, once tested, is it an accurate proposition which is borne out by the evidence?  For those of you with short attention spans the answers are yes it’s testable and no, it’s not an accurate proposition.

Ingeniously, the study separates out lawyer attitudes to compliance and business client attitudes to compliance and then looks at how those businesses use those lawyers.  Do those who use lawyers value compliance more or do they, “exhibit a more resistant or game-playing approach to compliance?”  The answer is both: “Some businesses that use lawyers more value compliance more, while others exhibit a more resistant or game-playing approach to compliance.”  It is the latter part of the study which is particularly interesting.  It seeks to determine what influences clients towards one strategy or the other.  To a degree it is client choice: “clients generally pick lawyers who are aligned with the client’s commitments to compliance, but that some lawyers also influence their clients to take a legalistic, game-playing approach to law. Clients who are committed to compliance hire lawyers to help promote compliance in their organizations, and those who are committed to resistance hire lawyers to resist compliance.”

So there is some truth in the claim that a number of clients are Holmesian bad-men who then pick lawyers who will be likely to adopt their strategy of resisting or avoiding compliance with the law.   Clients + markets pick (or lead to) lawyers who are bad (if one accepts that resisting and avoiding compliance is bad, a topic much debated by adherents to zealous advocacy theses in corporate contexts).  Crucially, however, they go on to consider the extent to which lawyers contribute to, or ameliorate, the extent of the problem: taken as a whole do they tend to nudge clients towards compliance or avoidance?  Parker et al indicate, “Our data suggest that to the extent lawyers influence clients, it is towards game-playing, not commitment to compliance or resistance to compliance.”

Thus, to the extent that lawyers exert any moral agency they seem to be tending towards an unethical rather than an ethical position: “lawyers supply services that incline clients to increasingly accept legal risk and adopt a gamester approach to law and regulation.”  This is only one study, of course, and it is confined to Australian firms’ compliance with consumer and competition regulation, but it throws important and critical light on a key assumption behind the professionalization thesis. In the UK, the debate manifests around Alternative Business Structures and assumes that lawyers are more ethical than external owners.  This looks more questionable after this study.  In the US, and elsewhere, lawyers are seen as potential regulators of business as ‘gatekeepers’–virtuous proponents of probity.  Parker, Rosen and Nielsen remind us of the possibility that sometimes clients want their lawyers to be good, and (worryingly) sometimes their lawyers talk them out of it.

The Benefit of an Exterior View: Looking at Lawyers from an Outsider’s Perspective

Dec 2, 2011 Carole Silver

Carole Silver

Two years ago I had an opportunity to attend the “Future(s) of Professional Services Programme” organized by Harvard Law School and Oxford Said Business School.  It was a terrific conference in many respects, not least for its interdisciplinarity, bringing together scholars from business and law whose work focused on professional service firms. As a lawyer studying law firms in the context of globalization, the insight of the business scholars was enlightening: by placing law firms in the larger context of professional service firms and by bringing the framework of management and strategy to bear on the study of law firms, legal scholars gain a new perspective from seeing the same picture from a different vantage point.

In truth, conversations with law firm leaders and others that have informed my own work on globalization and the legal profession indicate that decisions about law firm globalization and strategy are neither so clean nor logical as some of the management and strategy school research suggests. Rather, law firms’ activities with regard to globalization often are as much reactive and opportunistic as strategic. Nonetheless, the analysis of the business school scholars reflects the reality of regulation outside of the US, in that regulators involved in international as well as foreign regulation of their domestic legal profession increasingly are not trained as lawyers and have little incentive to treat lawyers particularly differently than other professional service providers (see, for example, Laurel Terry, The Future Regulation of the Legal Profession: The Impact of Treating the Legal Profession as “Service Providers”).

Listening to my fellow conference participants explain their analyses of what law firms were doing, I came away thinking that their explanation of what should happen with regard to law firm strategic decision-making was spot-on, even if not completely convincing as capturing the reality of what actually was happening. It is clear that lawyers and law firm leaders — particularly in the US — have much to learn from getting outside of their own skin, both from those who study their organizations and work from another perspective and from those whose work focuses on the work of lawyers and law firms from other countries. I worry that lawyers and law firms in the US may not engage sufficiently with these external frameworks to consider the ways in which the distinctive approaches in the US support or undermine competitiveness.

A new article by Susan Segal-Horn and Alison Dean revives these lessons, providing insight into the topic of global strategies for elite corporate law firms. In The Rise of Super-Elite Law Firms: Towards Global Strategies, Segal-Horn and Dean consider the drivers of globalization for law firms as well as the question of what firms should pursue as global strategies. Their work is informed by in-depth interviews with lawyers at three of the top ten UK-based global law firms as well as a smattering of clients (PP. 201-202), and structured within the framework of “global industry drivers.” (P. 195.) In this way, they consider law as any other industry; that is, they approach law in the same context as the study of non-law firms in which management and strategy are considered crucial for leadership and decision-making.  This allows the reader to view the legal profession and law firms through an outsider’s perspective.

Segal-Horn and Dean approach the question of whether elite corporate law firms should pursue a global growth strategy by considering four areas of influence: market drivers, competitive drivers, cost drivers and government/regulatory drivers. Each area is further divided into forces that push towards globalization (“globalization enablers”) and those that inhibit global growth (“globalization inhibitors”). (PP. 203-209.) In all but the government/regulatory area, the enabling factors outweigh the inhibitors, pointing toward globalization as a sound strategic choice. According to Segal-Horn and Dean, the reason “super-elite legal firms invest[] in global strategies . . .  is about long-term competitive advantage. The globalizing firms are making a specific bet on the nature of the development pathway of the industry and therefore on what will matter in this industry in the near future.” (P. 210.) Regulatory barriers are acknowledged by global firms in their “develop[ment of] strategies which allow them to overcome local regulations on who can practice where.” (P. 210.) Their analysis is perfectly consistent with staffing patterns in global firms, where the norm is for lawyers to be educated and licensed in the jurisdiction where they practice (Silver, DeBruin Phelan & Rabinowitz, Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Global). In considering incentives and barriers to globalization, the authors’ approach in situating regulation simply as one of four forces shaping strategic decision-making is a useful construct for placing law in context, although may not be the emphasis placed on regulation in an analysis by lawyers. Their approach also will be useful for law firms in reconsidering global strategies in light of changes since the economic downturn.

I am left wondering how a similar sort of outside-looking-in framework for analysis might usefully be applied to legal education, another segment of the legal profession in the US facing substantial challenges. In simply identifying relevant elements within each of the four industry drivers, our understanding of the influences shaping decision-making might be sharpened. While it is common among critics of US legal education to point to medical and business schools as models for the direction law schools should follow, little analysis of the relative merits of each system have been offered; even less attention in this regard is focused on legal education regimes in other countries. But in looking outside of our own system, whether to the education of other professional service providers or of lawyers in other countries, useful lessons may be learned about our place in an increasingly competitive market.

When Law Firms Forget Their Culture…

Oct 19, 2011 John Flood1 comment

John Flood

Milton Regan has chronicled the troubled times of law firms before in Eat What You Kill: The Fall of a Wall Street Lawyer (2004). On both occasions the firms appear to have undergone profound changes in culture that have eventually destabilized them and either wrought dire consequences for the lawyers or caused the death of the firm. Regan is a methodical obituarist.

He ascribes two underlying causes to these cultural shifts. One is the tenuous hold a law firm has on its share of the market. Lawyers might move taking clients with them or new specialist firms might aggressively shift into an established market drawing business away from others. The firm’s mix of top quality work may get diluted with less valued work. The second is the organizational dynamics of the law firm. Law firms operate under continuing centrifugal forces as practice groups proliferate and new rainmakers join putting management in the position of persuading and cajoling others to stay. Emmanuel Lazega refers to these factions as composing a Montesquieu structure of interlocking competing networks. And there is the everpresent problem of ethical fading—lawyers inured to certain liminal behaviours—when lawyers may no longer realize how their behaviour may be characterized. There are two absences in Regan’s analysis: one is the role of regulation and its interaction with ethics and the other is the rise and domination of the professional services firm.

The law firm has become emblematic of the modern legal profession. Since the Cravath system came to idealize the growth and functioning of the law firm in the 20^th century, its development has been both inexorable and upward (Galanter & Palay; but cf. Wilkins & Gulati). Since the 1990s law firms have sought to recreate themselves as global entities competing with other global professional service firms (Flood).  For some this has entailed developing firm-specific capital (e.g. Skadden Arps [Caplan]) while for others it has meant a futile quest for dominance and riches (e.g. Finlay Kumble [Eisler]). In the 21^st century law firms are evolving into quite sophisticated professional service firms (PSF) with highly developed corporate structures. (See Morgan & Quack.) This situates Regan’s tale in an intermediate space between old-style lawyering and new-style conglomerate practice. We can read this story as the death rattle of the ancient regime.

Jenkens & Gilchrist was a small but high-end law firm in Texas with desires to grow, especially into New York. But its profits per partner (PPP) were insufficient to attract the best lateral hires even though by Texas standards it was successful. (See Sida Liu’s review of profits.) Having been through a bad spell in the early 1980s the firm had rebuilt itself but it remained at heart a regional law firm. Then enter stage left Paul Daugerdas in 1998.

Daugerdas was a lawyer and an accountant who had worked for Arthur Andersen and Altheimer & Gray where he had developed a tax shelter practice. (Both of these firms have subsequently folded.) He claimed he could bring in a book of business worth $6 million a year and moreover he wanted to be compensated based on his revenues, not those of the firm. After much argument over Daugerdas himself and the legitimacy of his work he was taken on. In his first year at Jenkens he generated $28 million in revenue, the firm’s PPP rose and the firm went from 77^th to 57^th in the AmLaw 100.

Within a couple of years of hiring Daugerdas the Office of Tax Shelter Analysis was formed by the government and the IRS went hunting for taxpayers who had bought illicit tax shelters. Jenkens & Gilchrist soon came within range and found itself mired in investor litigation which resulted in a multi-million dollar settlement against the firm. Despite this Jenkens was also investigated by the US Attorney’s Office in Manhattan and found itself rapidly losing lawyers—from 600 in 2001 to 144 in 2006. Once the firm had admitted that it had marketed fraudulent tax shelters the end was ineluctable. Jenkens paid a $76 million penalty and went out of business in 2007. Moreover, approximately 1,400 investors advised by Jenkens owed interest and penalties. Daugerdas, himself, went on trial for fraud in March 2011.  (See indictment here.)

Regan examines the case of Jenkens & Gilchrist in the light of competition dynamics and cultural segmentation. Jenkens was fortunate to find itself in a field of work which paid by the percentage rather than the hour, could be repeated, and also to an extent could be protected from external view. Competitively, Jenkens was ready to move into new and lucrative markets.

Inside the firm, however, it was known that there was risk attached to hiring Daugerdas but not how much. First, there was the question of the legitimacy of his practice and the risks it posed to the firm if challenged by the government. Jenkens seriously under-estimated the force of the IRS attack. Second, Daugerdas’s role in Jenkens was fraught in that he demanded his own compensation structure and that he wouldn’t necessarily be bound by firm policies. He was, in effect, a solo practitioner within the firm based in another office which was outside management’s control.

I have deliberately referred to Regan’s story as an obituary, one not just of a particular law firm but more of a dying old guard—a fossilized nomenklatura who are being replaced by sophisticated siloviki.The new corporatized professional service firms (Faulconbridge & Muzio)are less beholden to maverick leaders than to committees, risk managers (vide Enron and Andersen), and to potential external investors as liberalizing regulatory reforms course through the world. It is important to understand how (r)evolution in professionalism occurs so we can understand the new structures that are appearing before us. Many are based on the new emerging forms of regulation at national and global levels. These have come about through anti-competition authorities pursuing a free market agenda in respect of professional services and firms. One example is the introduction of outcomes-focussed regulation in the UK by the Solicitors’ Regulation Authority. (See Chambliss on regulators and ethical culture, the Legal Services Board “rationale of regulation”.) Although US lawyers might like to think that they will remain immune from foreign incursions into their self-governance, they are seriously mistaken as Laurel Terry’s work on GATS has shown.  How quickly and to what extent the US legal profession will find itself bound up in the new professionalism is open. Yet, in this respect, Regan’s story is a cautionary tale of a law firm’s collapse in the face of the expanding regulatory state.

References

Caplan, L. 1994. Skadden: Power, Money, and the Rise of a Legal Empire. Farrar, Straus & Giroux.

Eisler, K 1990. Shark Tank: Greed, Politics, and the Collapse of Finley Kumble, One of America’s Largest Law Firms. Beard Books.

Faulconbridge, J & Muzio, D. 2008. Organizational Professionalism in Global Law Firms. 22 Employment and Society 7.

Flood, J. 1996. Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice. 3 International Journal of the Legal Profession 169.

Galanter, M & Palay, T. 1991. Tournament of Lawyers: The Transformation of the Big Law Firm. University of Chicago Press.

Lazega, E. 2001. The Collegial Phenomenon: The Social Mechanisms of Cooperation Among Peers in a Corporate Law Partnership. Oxford University Press.

Morgan, G & Quack, S. 2006 Global networks or global firms? The organizational implications of the internationalisation of law firms, in Ferner, A et al, eds. Multinationals and the Construction of Transnational Practices: Convergence and Diversity in the Global Economy, Palgrave Macmillan.

Regan, M. 2004. Eat What You Kill: The Fall of a Wall Street Lawyer. University of Michigan Press.

Terry, L. 2010. From GATS to APEC: The Impact of Trade Agreements on Legal Services. 43 Akron Law Review 875.

Wilkins, D & Gulati, M. 1998. Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms. 84 Virginia Law Review 1581.

Trust in the World of the Global Lawyer

Sep 26, 2011 Susan Fortney

Susan Fortney

In many respects, law practice involves a brave new work of global lawyering.  On a daily basis, lawyers from Main Street to Wall Street represent clients with transnational legal needs.  At the same time, lawyers face pressure to reduce the costs of delivering legal services.  Cost containment initiatives include outsourcing legal work to subcontractors who provide services at a lower cost.  Whether legal work is sent to Indiana or India, outsourcing results in less personal connections between clients and the lawyers who originally were retained to handle the representation.  Increasingly, in-house counsel unbundle the corporation’s legal work, dividing the work among numerous law firms rather than relying on one firm to meet needs on a full-service basis. For many, these trends threaten the very fabric of the trust relationship between clients and their attorneys. In his forthcoming article, Big Law and the Marginalization of Trust, Professor Robert Vischer examines the role of trust in the current climate and economic reality of global lawyers. As the title suggests, the article considers whether trust is a casualty of the trends in the structure, operation, and regulation of law firms. Rather than simply declaring trust dead, Professor Vischer persuasively explains why trust is of vital importance to lawyers, the clients we serve, and society.

The article is particularly interesting in providing context for understanding the concept of trust and the role it plays in professional relationships. Professor Vischer starts by discussing the nature of trust and the difference between cognitive and affective trust, referring to the definition of trust as a “state of mind that enables its possessor to be willing to make herself vulnerable to another—that is to rely on another despite a positive risk that the other will act in a way that can harm the trustor.” (quoting  A Cognitive Theory of Trust by Claire A. Hill and Erin Ann O’Hara). The discussion of vulnerability is particularly timely given that a few experts have urged the 2020 Ethics Commission to consider adopting separate ethics rules to regulate large law firms that represent sophisticated clients who can presumably protect themselves and are therefore not vulnerable. This relates to Professor Vischer’s observation that different potential clients may require different degrees and manifestations of trust.

Professor Vischer examines the trends that strain the viability of what he calls “relational trust” between lawyers and their clients. These trends include globalization, the “disaggregation” of legal services, the rise of in-house counsel, the decline of self-regulation, and the multi-disciplinary practice of law. With each of these trends Profess Vischer considers the effect on trust as an attribute of the attorney-client relationship and the impact on the relationship. For example, what are the personal and professional liability implications for an attorney representing clients from around the world? Such clients may not be reluctant to sue the attorney for malpractice because the clients do not feel connected to the attorney. As pointed out by Professor Vischer, the lack of face-to-face interactions is not conducive to trust and trust diminishes as social distance increases. This risk reminded me of my own experience with a client representative who I knew only through telephone and electronic communications.  When the relationship was tested because of allegations by opposing counsel, I believe that the client may not have fully embraced my account of the situation. Since that time, I have wondered if the client’s assessment may have been different had the client and I had a stronger professional relationship.  Clients who don’t know their attorneys beyond a signature line on an email or a voice on a telephone conversation may be more inclined to sue their lawyers for malpractice. Findings from studies related to medical malpractice claims reveal that patients are less inclined to sue physicians when there has been good communication with patients, even when medical error occurs. Communication and interpersonal dealings help build trust between clients/patients  and their service providers. With heavier reliance on electronic communications and greater distance between clients and their attorneys, attorneys need to be intentional in taking steps to cultivate their relationships with clients. In this sense, fostering trust improves the quality of representation for clients, while lowering attorney’s liability exposure.

Fostering trust also promises to enhance attorney sense of professional fulfillment.  A close trust relationship with clients moves the attorney down the continuum from technician to valued shepherd and counselor.

A final aspect of trust relates to the professional relationships among attorneys, especially those who work together in law firms. On a daily basis, newspaper articles and internet posts bemoan the decline of collegiality and professionalism within firms. Associates condemn law firm managers who lay off associates rather than reducing profits per partner. Partners criticize associates when they act in a disloyal manner, such as when associates disclose proprietary firm information on popular websites.  Partners also lament when lateral moves disrupt the stability and economic foundation of their law firms. With lawyer mobility and disputes, lawyers question whether there is anything “firm” about law firm practice. Lawyers may not trust one another when their relationships with other firm lawyers appear to be temporary associations rather than long term commitments. As a result, lawyers may yearn for the revitalization of the traditional approach to partnership in which lawyers are committed to and trust their partners.

Thanks to Professor Vischer for providing a thorough analysis of the current trends that strain the attorney-client relationship. He gives readers an opportunity to seriously consider the role of trust plays in productive relationships.  As he persuasively asserts, trust not only matters, but is essential distinguishing feature of an attorney-client relationship.

How To Regulate the Legal Services Market? Starting From First Principles.

Aug 15, 2011 Andrew Boon

Andrew Boon

Dr. Christopher Decker and Professor George Yarrow are economists at the Regulatory Policy Institute, Oxford, who were commissioned to consider the “case for regulation” and the role of professions in the legal services market in the UK. Their report appears at a time when the professions in England and Wales are in the midst of a quiet revolution, precipitated by the Legal Services Act 2007 (LSA). The Act places a range of professional groups, from the mainstream solicitors and barristers to the more esoteric trade marks and patent agents, under the purview of the Legal Services Board (LSB), an “oversight regulator.” This means that the professions retain a large measure of regulatory control, over ethics and education for example, but that they, and the LSB, must pursue statutory objectives.

While much of the theory that Decker and Yarrow refer to is familiar to scholars of the legal professions, in Rick Abel’s work for example, it is valuable for scholars of professions and legal services to see the argument through the prism of another discipline. The report is accessible to those without an economics background and might therefore provide a better foundation for dialogue between lawyers, economists and others than presently exists. This potential to stimulate debate is not purely parochial. Although the report uses examples of the practices of the English professions, the general approach is an “in principle” analysis of the rationale for regulation. Such a study might undermine the basis of legal professionalism, but it might also doubt the rationale for regulation per se, even public regulation by an oversight regulator. Decker and Yarrow do not disappoint in this regard, but also point to the limits of economic analysis in answering the questions they were posed.

The LSB has statutory duties that appear to compete, for example promoting consumer interests and a strong and independent legal profession. In the two years it has been operating, the LSB has worked hard to navigate this difficult terrain. While economics informs other analyses of legal services provisions in England and Wales, it is unusual for regulators to fund theoretical projects. Commissioning a report that examines the economic rationale for regulation, that questions fundamental assumptions, is symptomatic of its open approach.

A particularly impressive feature of the report is a willingness to concede ambiguities and limits of economic analysis. Early in the report Decker and Yarrow concede that most of the economic analysis of legal professions and legal markets is in the tradition of modern neo-classical economics (MNC). This approach theorizes an efficient market equilibrium achieved by perfect competition. One of the features of the model is that any situation that does not conform to the unrealistic assumptions of the model is labelled a “market failure.” This, the authors suggest, is a common analytic misunderstanding. Rather, because MNC is an abstract theory, scarcely applicable to concrete situations, it has limited explanatory power.

While MNC has severe limitations, it is the foundation of public interest theories of regulation, which assumes capacity to correct market failures. In fact, it cannot. Decker and Yarrow argue that “market failures” such as information asymmetries between suppliers and consumers are too difficult or expensive to eradicate completely. In fact, they suggest reputation, one of the main priorities of professions and professional firms, is one of the most effective means of mitigating the impact of information asymmetry. Therefore, distinctions such as Queen’s Counsel (QC), awarded to elite advocates, are ambiguous. Challenged by the UK competition authorities as a restrictive practice, the QC fudge could also be seen as a reputational indicator helpful to consumers. For example, see Joel Poldony’s  sociological study of market competition.

Decker and Yarrow’s report suggests that the regulatory experiment in the UK is largely built on political conviction rather than economic facts. In fact although they find no evidence of cartelization or other anticompetitive practices among UK lawyers, the assumption of regulatory policy in the UK is that professions, left to their own devices, will favor their own members over members of the public. Indeed, Decker and Yarrow point out that changing regulation is often a way of shifting market advantage from one group to another.

The rights or wrongs of government intervention in the legal services market may not be the main point of Decker and Yarrow’s report. Rather they are considering whether any regulation of the market is necessary. Their starting point for an affirmative answer is that the provision of legal aid points to legal services being a necessary “social good,” and therefore, like public utilities, worthy of regulatory effort. This analogy, however immediately breaks down. Legal services, unlike gas or electricity, are not capable, for example, of being organized so as to facilitate cross subsidy. Large commercial firms at one end of the market make huge profits while legal aid firms at the other, are, increasingly, going out of business.
The decline of the legal aid sector in the UK points to the central problem in legal services regulation. Government no longer trusts that legal services suppliers (lawyers, as we used to call them), will take enough from transactions with consumers to ensure efficient supply. Therefore, although there is scant economic evidence that they do take more than they need to run an efficient service, it is assumed that lawyers do so, contrary to consumer interests. The regulatory oversight attempted by the Legal Services Act will either ensure that they are “more efficient,” or admit others (non-lawyers) to the market. This is the entry point for Alternative Business Structures, also to be introduced under the LSA, but not a phenomenon dealt with at length by Decker and Yarrow.

Those who are interested to read the report should note the availability of a supplementary collection of essays, many of which make valuable points on, or contribute important perspectives about, the report. The great value of Decker and Yarrow’s report is that it authoritatively supports and questions many of the economic assumptions on which the emerging regulatory philosophy, based on ideal competition, is based. As it is, a strong possibility is that legal services in the UK will become progressively de-regulated, albeit with a transitional period of public regulation. This, as Decker and Yarrow show, would be to replace one flawed system of regulation with another. Before that happens, other, more nuanced and empirical studies will, it is to be hoped, test the assumptions of the economic model, illuminating the theoretical shadows identified in this report.

Art Collectors or Archeologists?

Jul 7, 2011 Sida Liu

Sida Liu

Among scholars who study the legal profession, perhaps no one else has travelled as far as Yves Dezalay and Bryant G. Garth. They have studied international commercial arbitration across continents, they have investigated the political struggles between lawyers and economists in four Latin American states, and now their new book, Asian Legal Revivals, covers the history of lawyers and the state in almost ten different Asian countries. No matter if you like their findings or not, we must admire the effort required to bring together such a large variety of national and historical contexts to develop a general theory of lawyers in relation to the market and the state.

The theoretical contribution of this book to the scholarship on lawyers and politics is significant. In the vast academic literature on the legal profession, the relationship between lawyers and the state has been, oddly, inadequately theorized despite many good efforts in this direction in the 1980-1990s. By this book and their previous study on Latin America, The Internationalization of Palace Wars, Dezalay and Garth have outlined a relatively coherent theory of lawyers and the state. Following Pierre Bourdieu, particularly his flexible and inclusive concept of capital, the authors argue that lawyers do not necessarily seek market monopoly or take political action based on their professional ideology, but form various types of relations with the state based on their social and legal capital–they could serve as clerks, mediators, or spokespersons in different political contexts.

For post-colonial Asian states, the accumulation, attrition, and revival of legal capital appear to have a cyclical pattern: Phase I: investment of legal capital and its combination with local social capital; Phase II: use and demise of accumulated capital for market and political gains; and Phase III: a capital rebuilding process similar to the first phase. By the introduction of the concept of capital and the emphasis on the reproduction of the legal elite, Dezalay and Garth successfully problematize the theoretical opposition between lawyers’ market and political activities in existing scholarship.

However, this Bourdieuian approach to the legal profession also has its weaknesses. First, it focuses too much on the elite of the bar and pays almost no attention to the vast number of grassroots law practitioners. In none of the countries that the book covers do we see a good analysis of the production and diffusion of legal expertise in the broader legal community beyond the limited scopes of corporate law and public interest law, both of which are heavily influenced by foreign economic and political investments.

Second, Dezalay and Garth’s application of Bourdieu’s theory is a partial one because it bypasses two other central concepts in the theory, namely, field and habitus. By juxtaposing lawyers between the market and the state, or what Bourdieu would call the economic and political fields, the authors leave little autonomy for the legal system, or what Bourdieu would call the juridical field. The vastly different habitus of legal elites in different countries is reduced to various types of capital, without taking into account the structured and structuring effects of habitus to the field of law. As a result, the boundaries of the juridical field look extremely ambiguous. In other words, the authors give too much autonomy to individual agents of law but not enough attention to the structure of the economic, political, and juridical fields.

Those two weaknesses aside, the book does provide a unique theoretical lens for observing the comparative historical development of the legal profession in Asia. My last comment on this excellent book is methodological. When reading the book, I kept wondering what experts on the legal profession in each of the Asian countries would think of the analysis. To make an analogy, the authors resemble two art connoisseurs who travel around the vast territory of Asia to collect the best art works in each country, and then put them together in an Asian art collection. The collection is indeed spectacular and it enables an eye-opening cross-national comparison, but from this collection it is impossible to situate the art works in their respective cultural contexts or to gain a good sense of the whole field of art in each country. This is perhaps the inevitable methodological problem of comparative research, but my hope is that this thought-provoking book will inspire more “archeologists” of the legal profession across the world to conduct in-depth analysis on lawyers, market, and the state to support or challenge the theoretical thesis that Dezalay and Garth have rigorously outlined. After all, without archeologists, art collectors would have no art to collect.

A Newly Published Classic on the Ethics and Sociology of Corporate Lawyers’ Work

Jun 1, 2011 Christine Parker

Christine Parker

Here is one way of describing the ethical challenge facing contemporary lawyers:

Traditionally, professions transcended the seller-customer relation because they met the challenge of moral difficulties, including evil, and emerged not only unscathed but triumphant. Today, legal professionals, fearing they cannot resist, let alone control, the moral pollution around them, retreat into technical virtuosity and specialized expertise. Cleanliness has become the aspiration of the profession. Lawyers seek purity by defining their cases and their work solely in terms of the abstract norms of professional knowledge. At the same time, they argue that to do anything else is dangerous and potentially immoral. To be anything other than a supplier of technical information is to dominate clients. At its best, it is paternalistic. At worst, it is power mongering. The claim is that there is no ethical way for the lawyer to meet moral difficulties. (PP. 158-9.)

It is as apposite a criticism of corporate lawyers-and their abdication from ethical commitment-today as it was in 1984 when it was first written. The paragraph is found near the end of Professor Rob Rosen’s book on lawyers in corporate decision-making that has recently appeared as part of an initiative to publish “influential” unpublished doctoral theses-in this case from UC Berkeley’s sociology department. What an excellent choice for such a series! Although Rosen has drawn on and published parts of the thesis in journal articles, it is a real treat to have the whole thesis now readily available, and with a Foreword by Professor Sung Hui Kim.

In its time Rosen’s thesis was a groundbreaking piece of empirical sociological research and ethical analysis of the emerging phenomenon of inside counsel. It remains a “classic”-and still very timely-dissertation for two main reasons:  First, the design of Rosen’s empirical research is instructive and challenging for those of us who are interesting in doing sociology of the legal profession. Second, the way that Rosen combines sound and creative empirical sociological research with ethical insight, critique and analysis using literature on both the legal profession and organizations is an inspiring model for those who want to do solid social science research and make a normative contribution as well.

As Rosen points out in his preface to the 2010 edition, the methodology remains “distinctive”. The focus is on inside counsel, but the unit of analysis for the research is not individual inside counsel or their organizations, as it has been in most other studies of inhouse and other corporate lawyers. Rosen more productively chooses specific legal cases-particular instances of advice provided to industrial corporations-as his unit of analysis. That is, his object of study is not the person in the role of inhouse counsel, but the work that they do for the corporation in connection with the external lawyer and business manager. His methodology (explained in the original preface to the dissertation) thus involved first interviewing a range of inside counsel about their work. On this basis he identifies a number of specific problems or cases where legal advice had been provided. He went on to identify both the external lawyers and internal business managers involved in each case and interview them. This process yielded 70 interviews-but as Rosen points out, it is not the “counting” that is important, it is the ability to understand the complexity of how legal tasks are understood and structured from the perspective of the three groups of actors most centrally involved in creating and prosecuting them: “From these interviews with different participants, three versions of the same events emerged. I was thus able to reconstruct the problems to analyze the behavior of and the constraints facing the various actors.” (P. x.)

The substance of Rosen’s work in each of the substantive chapters is therefore based on rich description of particular cases in specific organizations from the point of view of several participants with different roles and commitments in each case:

Rosen’s study is therefore not based on interview data consisting of abstract pietisms or self-serving reflections from lawyers alone:

I therefore abandoned a set formula with abstract questions and concentrated on tracing the ramifications of particular decisions. The lawyers, who are used to answering specific questions about a case, like those presented in a deposition, seemed grateful for this more concrete method. In addition to being encouraged to focus on specific decisions, the lawyers also were asked how other lawyers handled or would have handled the same issue. … [This] prodded the lawyers to talk both about their action and about their reasons for acting. (P. xi.)

On this basis he is able to tell us about real products and real companies and the various legal services that become relevant in every day organizational life and processes. We learn about hiring and firing, about tax and patents, what happens when a chemical company starts selling to a beauty products manufacturer rather than a steel company, and what happens when a vitamin supplement becomes popular for the wrong reasons. We also find out about power struggles between lawyers and managers, and managers and managers, and how they are resolved.

There is much for scholars of the legal profession and legal ethics to learn here. It is often too easy think we are doing “law and society” type analysis of lawyers’ ethics when we begin and end with the lawyers’ view of his or her working world. But in this study the focus is on the lawyer’s work itself which inevitably leads Rosen to examine the connections between lawyers and the world of people and things in their organization and outside of it. It is only in understanding these relations (not just the lawyer’s view of them) that we can get any grip on the ethical world of the corporate lawyer, since ethics by definition involves how a person responds and relates to other people and things. In studying corporate lawyers’ ethics the questions must be: whose interests and influences (which other corporate actors? which other lawyers? in what relationships to one another?) are brought into action in what ways (through what processes of engagement, persuasion, argument, or threat? using what justifications to themselves and to others?) and with what effects (on people and things inside and outside the organization) through corporate lawyers’ work? This is the question that Rosen unfolds for us in this wonderful research. It should challenge those of us who work in this area to build on Rosen’s work and go even further tracing the lawyer’s work through not only the client and the external lawyer hired for the client, but also the lawyers and clients on the other side in contracts, disputes and litigation, the judges and those ordinary customers and others who might ultimately have been affected directly or indirectly by what the lawyers and their clients do together.

Rosen’s sound micro-sociology of lawyers’ work forms a robust basis for his more normative task – “my search for the bases of civic good in corporate legal services” (P. vii.) His empirical work informs us about the constraints and opportunities that individual lawyers experience in choosing to be either “rule-formalists” or “responsibility consultants”. Rosen goes on to connect this micro-sociology to broader themes in the sociologies of the legal profession and organizations in a most enlightening way. Ultimately Rosen addresses the (erroneous in his opinion) view that “certain choices are questions of business not of law” (P. 140.) by showing-empirically and normatively-that “rather than a split, a continuum exists between law and business. The law is not merely the formal derivative of public political processes. Law is part of all social processes.” Indeed. This is a central theme of law and society research, and here is a book well worth reading for how it demonstrates the value (in both senses of the word) of law and society research on corporate lawyers’ ethics.

The Micro-Sociology of Lawyers’ Actions

Apr 30, 2011 John Flood

John Flood

As an ethnographer I subscribe to Everett Hughes’s view:

I am suspicious of any method said to be the one and only. But among the methods I would recommend is the intensive, penetrating look with an imagination as lively and as sociological as it can be made. One of my basic assumptions is that if one quite clearly sees something happen once, it is almost certain to have happened again and again. The burden of proof is on those who claim a thing once seen is an exception; if they look hard, they may find it everywhere, although with some interesting differences in each case.

It is ethnography that enables us to go inside the black box. It is surprising then that the world of law is often neglected in the ethnographic milieu. Anthropologists engaged with it while studying kinship and exchange systems, seeming to take Durkheim’s idea that contract was at the base of the social division of labor. Yet one of the central features of the law is the court which is an alienating environment.

Thomas Scheffer and his colleagues decided to investigate the world of courts and they looked at American, German, Italian and English courts. Despite being social scientists and with some possessing legal training, they initially found the world of courts one which estranged them by making them feel unwelcome and awkward. How much of this was due to their naiveté and innocence we can only glimpse. Scheffer describes his initial encounter with court staff where he sat in the public gallery with his notebook. This “abnormal” conduct earned him the disapprobation of the court clerk and a move to the press gallery where writing was normally undertaken. It left him, however, with a poor view of the court.

Adversarial Case-Making takes on Scheffer’s journey through the arcane and esoteric world of the English Crown Court. In five chapters Scheffer attempts to make sense of the unworldly world of the court. His method is to take a series of slices in the activity of making a case. Although he cannot hope to provide a complete coverage, he tries to capture a series of moments that frame how lawyers engage in putting together and presenting cases. In Chapter 1 he examines the construction and failure of an alibi in an assault case. Chapter 3 looks at how expert testimonies are pitted against each other. The lawyer’s file and how it coordinates activity is the centre of attention in Chapter 5. In Chapter 7 the moralizing element is invoked as part of the learning process in the developing lawyer-client relationship. In the remaining three chapters Scheffer tries to theorize about his ethnography.

Scheffer starts with Kagan’s idealization of adversarialism as central to the US and UK courts where much of the case, especially in its preparation, is left to the lawyers. Adversarialism in its classic sense is in the UK less strident than the American.  Scheffer points out another dimension to adversarialism, that of the case emerging and being formed over time. As it goes through the procedural steps, it acquires more material—depositions, reports, etc—that create its being.

The two main sites of action we encounter in the book are the courtroom and the lawyer’s office. They differ in that one is public and the other private: the files supply a conduit between the two, so they become almost the obverse and reverse of each other.

We can see this at work in the rise and fall of the alibi in the assault case in Chapter 1. For Scheffer the case has a career that is almost separate from its participants. In this case the assailant was alleged to have head-butted her victim which she denied in her police interviews by stating she was not present. When defense lawyers begin to countermand the prosecution’s case they look for means of undermining the allegations. Statements of non-presence by the accused quickly become co-opted into the process and so are integrated into the procedural memory of the case. As Scheffer simply states: “Linda presented a minimal, but complete alibi” (p. 7). The solicitor’s role is to turn the minimal into a coherent narrative that can be presented in court by the barrister. In this process the alibi is examined more deeply and its inadequacies become apparent. The defense team believed they had the support of a co-defendant who would reinforce Linda’s claim that she was elsewhere when the assault occurred. Unfortunately, the defense found a recording of a police interview with the co-defendant that clearly undermined their belief and led to the fall of the alibi. Even though the alibi made it into court, it came across as feeble and disappeared from the barrister’s final address to the court. The procedure in raising the alibi for the defense lays it open to attack, critique and eventual defeat if the opposition forces are sufficiently strong as they were in Linda’s case. For Scheffer adversarial case-making demands risk-taking and not all risks are foreseeable.

In Chapter 3 we are led into the middle of a case where the accused is charged with indecent assault and his defense is that he was sleep-walking and therefore not responsible for what occurred. Both the prosecution and defense present expert testimony from scientific experts in the field. And for Scheffer this is an important point that it is not the court that requires the expert witnesses but that the parties require them, nevertheless their testimony must be impartial and for the benefit of the court. Experts share similar knowledge bases and training: expertise is also a diplomatic achievement (p. 91). Taking this last point we see that the uncertainties inherent in expert testimony—discussing the general while trying to apply it to the particular—must always be insufficient for the court and so leaves ample space for judicial interpretation of the evidence given.

What do we learn from Scheffer’s study of case-making? It is complicated and complex. It is iterative and repetitive. It is confusing and arbitrary. It is co-production embedded in a history of procedure and convention. Scheffer relies much on the interaction order of the court proceedings to understand what is happening and to see how the parties are making sense of this order. Some of this can be accounted for by things: the way the court is laid out; the manner in which the case file is put together (the types of documents, their order); how stories are told. The division of labour reflects this order in that the solicitor remains close to the file while the barrister articulates the case in court. Taking Scheffer at his word:

Court, file, and story—together with other materials—facilitate the hearing. The hearing as it is…is not feasible by means of direct interaction only. The resources add a sense of stability, historicity, and predictability. They fix past event, specify possible futures and steady expectations….In short, they turn the gathering into a procedural event (p. 188).

Adversarial Case-Making is both an insightful and frustrating book. At times it is over-laden with burdensome theory. If theory is to assist the reader, it should clarify and explain not hinder. Scheffer’s use of the science and technology studies literature is one example of a theoretical enterprise that has done much to clarify the inner workings of institutions. The comparison between the work of laboratories and lawyers’ offices and courts does illuminate.

There are insights into the complexity of putting cases together. Scheffer is able to show us the messiness and partiality of the process and make us wonder how it manages to function at all. It is almost as if the procedure is designed to prevent resolution rather than bring it about. Ideally, the book should be read in combination with others. For example, Steve Bogira’s Courtroom 302 offers reportage of a year in a criminal court where we can view the process from start to finish. Scheffer’s is necessarily episodic probing into moments. For students of the legal process it will add to their knowledge and perhaps help them see how cases are formulated in a more thoroughgoing and analytical way.

Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases

Mar 24, 2011 Laurel Terry

Laurel Terry

For years, Ellen Yaroshefsky of Cardozo Law School has been one of the leading scholars in the U.S. on issues related to legal ethics and the criminal defense system.   In an era in which legal scholars are sometimes accused of writing theoretical works that are of little practical use, she has a track record of successful applied scholarship.  Her voice has made a difference.  For example, after working on the issue in New York, Ellen Yaroshefsky and Fordham Professor Bruce Green signed the report from the ABA Committee on Ethics, Gideon and Professionalism that recommended that ABA the Section on Criminal Justice sponsor a resolution in the ABA House of Delegates to add Rules of Professional Conduct 3.8(g) and (h). The resulting resolution, which was supported by a number of entities, was adopted. As a result, ABA Model Rule 3.8 now imposes disclosure duties on prosecutors who know of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted” and requires prosecutors to “seek to remedy the conviction” if they have clear and convincing evidence that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit.  This ABA Model Rule change has led to a number of concrete state rule changes that impose new duties on prosecutors.  As of January 2011, two states had adopted the proposed revisions to Rule 3.8, three states had adopted a modified version of Rules 3.8(g) and (h), and eleven jurisdictions were studying the ABA resolution and report. I predict that many of these jurisdictions are likely to adopt Rules 3.8(g) and (h), which is what the relevant entity in my home state of Pennsylvania recently recommended.

The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law.  Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.  This is a broader problem than one might realize.  For example, in 2010, the International Bar Association, the Organization of Economic Cooperation and Development, and the United Nations Office on Drugs and Crime jointly developed a survey on “Risks and Threats of Corruption in the Legal Profession.”    The Survey was distributed to IBA member and 642 professionals from 95 countries responded.  Although the Survey cautioned that its results might not be statistically significant, it also stated that the Survey represented “a first attempt to shed light” on issues that included the legal profession’s perception of corruption in their own jurisdiction.   Nearly half of the respondents stated that corruption was an issue in the legal profession in their own jurisdiction.  Approximately 20% of the responding lawyers from the U.S. and Canada thought corruption was an issue in the legal profession in their country.  (This contrasts with approximately 15% of lawyers in Australasia, 32% of lawyers in the EU, and 90% of lawyers in the Commonwealth of Independent States.)

As a member of the U.S. legal profession, I found the survey results quite disheartening since they showed that lawyers in more than fifteen jurisdictions found that corruption was less of a problem for their legal profession than did U.S. lawyers.  (Lawyers from 20 jurisdictions (including the U.K.) believed that corruption was more of a problem than did U.S. lawyers.)   The Cardozo Symposium is important because it represents a positive effort to remedy problems in our legal system that might undermine societal confidence in the rule of law.   All members of society, but especially the legal profession, have a large stake in this effort.  So even if you don’t read anything else in the entire Symposium, you owe it to yourself to read Professor Yaroshefsky’s twelve page Foreword which summarizes the Symposium contributions.

Professor Yaroshefsky’s Foreword begins by pointing to several high-publicity cases that involved the failure to disclose fundamental exculpatory evidence to the defense, including the reversal of the prosecution of Senator Ted Stevens that led the U.S. Department of Justice (DOJ) to undertake an examination of its disclosure policies and practices.  The Symposium was based on the premise that there is a lack of clarity about the meaning of the U.S. constitutional “Brady obligation,” which requires prosecutors to disclose exculpatory evidence to the defense counsel and a lack of clarity about the timing requirements for this disclosure obligation.  The Foreword observed that prosecutors and defense counsel also disagree on the scope of the problem and that empirical research is difficult.  Accordingly, the Symposium’s goal was to shift the conversation from individual, blame-based rhetoric to one of working in concert to examine systemic change that would improve the disclosure process.

As the Foreword explains, seven organizations co-sponsored the Symposium, including three law schools, the National District Attorneys’ Association, the National Association of Criminal Defense Lawyers, the ABA, and the Justice Center of the New York County Lawyers’ Association.  The sponsors sought the attendance and participation of prosecutors, judges, defense lawyers, and academics from throughout the country.  The organizers asked the speakers to offer ideas from their discipline and practice areas on how to improve–and what lessons could be adapted to–the disclosure processes of the criminal justice system. Professor Yaroshefsky’s Foreword summarizes the remarks by the six morning speakers and four afternoon speakers, who were a diverse, interdisciplinary group that included two district attorneys, one defense counsel, and experts in medical errors, cognitive psychology, information management in police practices, organizational and psychology assessment tools, institutional design, and education and metrics of evaluation. Although the Foreword explains that both the morning and the afternoon session were following by responses from a panel that included prosecutors, defense counsel and judges, it did not summarize those panel remarks.  It did, however, summarize – albeit briefly – the remarks of Manhattan District Attorney-elect Cyrus Vance and the reports of the six Working Groups, which sought to develop “best practices” on the topics of prosecutorial disclosure obligations and practices, the disclosure process, training and supervision, systems and culture, internal regulation, and external regulation.  Finally, the Foreword presents the highlights of thoughtful articles by Rachel E. Barkow, Alafair S. Burke, Lawton Cummings, Bruce Green, Daniel S. Medwed, and Barry Scheck.  And you get all of this in only twelve pages! Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches (analogous to those described by other Jotwell contributors) can be used when designing legal systems and rules.

Evaluating the Independence of In-House Counsel – Making Sense of Judicial Pronouncements

Feb 21, 2011 Richard Parnham

Richard Parnham

Particularly for those of us who live in Europe, Suzanne Le Mire’s new paper on in-house counsel independence is an interesting addition to the existing literature. In September 2010, the European Court of Justice (ECJ) gave its final ruling in the Akzo Nobel Chemicals and Akcros Chemicals v Commission test case regarding the availability of legal privilege for corporate counsel in relation to European Union competition investigations. In the course of its judgment, the Court made some fairly forthright assertions about the lack of independence of in-house lawyers – notwithstanding that the lawyer at the centre of the case was a member of their country’s national bar association.

While the controversial ECJ judgment is discussed in Le Mire’s paper, the case is not central to the issue she wishes to discuss. Instead, Le Mire goes back to first principles: in her introduction, she briefly discusses the pros and cons for companies employing independent in-house counsel – what are the specific challenges those lawyers face? what are their advantages? Here, Le Mire cites Lewis A Kornhauser when she argues that that “independence is not a goal in itself, but a pathway to another goal, such as credibility, or breadth of knowledge”.

Importantly, this topic is not a matter of idle academic curiosity. Rather, as Le Mire illustrates, the question of whether an in-house counsel has, in fact, behaved “independently” of their employer tends to form an important part of the judges’ decision-making processes in specific cases (the Akzo Nobel judgment being just one of four cases discussed in this paper). As Le Mire also illustrates, the fact that different courts in different jurisdictions have assessed in-house lawyer independence (or lack of) using different criteria means there is a lack of commonality in different jurisdictions. Yet, because many in-house legal teams routinely operate on a cross-border basis, courts’ inabilities to assess the independence of in-house lawyers in a globally-consistent way is, arguably, unhelpful.

Just as importantly, as Le Mire points out, inconsistencies appear between what factors different courts will consider, when evaluating whether an in-house lawyer has behaved independently, when compared with their private practice equivalents. In light of this inconsistency, it is perhaps not surprising that Le Mire has included one test case for assessing independence: “that could be equally informative regardless of the employment situation of the lawyers concerned.”

After providing illustrative examples of apparent failures of in-house lawyer independence during an early part of her report, Le Mire sets out several different concepts of independence: capacity, status, power and relational. Briefly, these concepts can be describes thus: Capacity essentially means the “ability to engage in independent judgment”; Status may mean that the opinions of in-house lawyers are listened to, possibly because they are the “conscience of the company”; Power appears to relate to in-house lawyers’ ability to actively “do” things (or stop things being done) with the company; and Relational means that structural barriers are erected to minimize the risk that undesirable external factors may influence a in-house counsel’s advice.

Although the concepts of independence that Le Mire provides are useful, I find myself challenging the argument, which is good response to an article. Most importantly, not all theories of independence that Le Mire outlines are consistently defined and explained. For example, the concept of “Capacity”, which she states is the most serious aspect of an in-house counsel’s independence is, in fact, developed within the section of the paper headlined “The political concept of independence” – rather than explicitly signposted in its own right, as are the related concepts, “Status” and “Power”.  In a different vein, “Power” is cited as a theory defining in-house independence, in both the explanatory text and summary table – but not then explicitly mentioned in her illustrative court rulings.

Perhaps one of the most challenging conclusions reached by Le Mire is that her most valued concept of independence – capacity – is arguably the most difficult to assure. Ms Le Mire may rightly be critical of courts’ over-reliance on in relational mechanisms as for protecting the independence of lawyers. However, while relational mechanisms may not, in reality, be the panacea for guaranteeing in-house lawyers’ independence that some courts appear to consider they are, they at least have the value of providing clarity and predictability. By contrast it would, perhaps, be inevitable that any case relating to the independence of in-house lawyer that was determined by capacity alone would be wholly-facts specific. Justice in individual cases may well be served by such a development. Legal certainly would not.

In light of this, it is perhaps therefore not surprising that Le Mire is in favor of a combined approach for ensuring the independence of in-house lawyers. She advocates that the most important factor for assessing independence should be capacity, but this should then be supported by other factors such, such as relational, status or power considerations.

Of course, if the courts were, globally, to adopt Ms Le Mire’s approach to assessing the independence of corporate counsel, there would still be a degree of uncertainly of about whether in-house lawyers had behaved independently in specific scenarios. However, if courts could agree to use the same considerations, around the world, then at least in-house lawyers in many countries would, for the first time, enjoy the possibility of potentially being recognized as being “independent” by their own courts. And that development would, on a global basis, probably represent progress for many in-house lawyers, when compared with their status today.