THE WIDER CONTEXT: LEGAL ETHICS WITHIN A CHANGING PROFESSION

In 1988 Abel wrote:

One reason for writing this book is my hope that its description of the social organisation of the legal profession will enable and stimulate others to undertake the more difficult task of studying the content and form of their daily activities.^[524]

‘Studying the content and form of...

daily activities’ is what I have tried to do in this book, although I concede that interviewing lawyers about their practice cannot be equated with ‘studying the content and form’ of what they do. In undertaking this task I did not encounter a wealth of other academic enquiry into conflicts of interest. There has likewise been limited academic writing on legal ethics, certainly until the past few years.^[525] Even within that literature, the subject of conflicts of interest between the clients of law firms, and firms’ reaction to those conflicts, is not addressed in any detail. When the subject is raised it is seldom discussed with reference to any empirical study of solicitors’ practice. The only available reference points are the judgments delivered in those comparatively few cases in which the courts have been asked to intervene in order to bar a given firm from acting. Where the subject of ‘conflicts’ is raised within the literature it is treated cursorily, as conduct prohibited under the rules and therefore outside the scope of proper professional practice.^[526] Other writers have identified the willingness of some firms of solicitors to act in the face of conflict as a developing problem, but not one which they have then gone on to explore in any depth.^[527]

My task, as I defined it, was to gain a better understanding of the practice of major law firms when confronting an actual or potential conflict of interest, and having done that, to review and evaluate that practice in the light, first, of the regulatory framework governing the profession, and second, by reference to the common law. The research objectives, in other words, were to examine solicitors’ practice, to evaluate the practice and the rules and to consider the relationship between the two, and thereafter to assess whether the present rules required amendment.

Such an investigation is timely given the changes in the legal and commercial environment since the rules governing solicitors’ conduct were drafted. These changes include, most obviously:

—increased competition, now sanctioned and positively encouraged by government;

—deregulation, for example of financial services, which in turn has opened up additional fields of work for solicitor firms;

—increased mobility of solicitors between firms;

—the development of the ‘mega’ firm;

—greater demand for legal services across the board; and

—the growth in consumerism, as manifested in the demand for higher quality, specialist, and cheaper services.

It is beyond the scope of this book to explore the implications of these research findings for other, larger questions concerning developments in the legal profession—for example, the case for and against continued self-regulation; the appropriateness of further mergers between solicitor and accountancy firms; and, most fundamentally, the viability of maintaining a unified profession with a single ethical and regulatory framework. I have examined just one problem area. That, on my understanding, is what empirical research is best able to do. It is not feasible to conduct an empirical study of ‘legal ethics’. Empirical research has to focus on the particular, but that is a necessary starting point for any consideration of wider issues of practice and principle. Discussion of any area of legal practice is likely to be richer for being informed by a good understanding of how practitioners see their world, and how they (even if erroneously) construe the ethical dilemmas which confront them.

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Source: Griffiths-Baker Janine. Serving Two Masters: Conflicts of Interest in the Modern Law Firm. Hart Publishing,2002. — 227 p.. 2002

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