Regulating Lawyers through Disciplinary Systems
Coordinators: Kay-Wah Chan (Macquarie University), Judith McMorrow (Boston College Law School), Sida Liu (University of Toronto)
Description of the meeting
While the profession of lawyers exists in the legal systems of many countries and places, their roles in the respective societies and economies may vary, depending on the historical, political, social, cultural and/or economic development of that country or place. However, there usually is a system or mechanism to regulate the conduct of the profession. At the minimum level, it may at least require the lawyers to be competent and not negligent in conducting their professional duties. Lawyers in many jurisdictions have ethical obligations beyond this duty of competence to clients. They may have other ethical obligations to clients such as loyalty and confidentiality. They may also have ethical duties to courts, other members in the profession, and/or the public. They may be required to behave “properly” in their non-professional conduct including their private personal life. Some may have obligations to the state or its agencies. Are there differences in the priority among these different obligations?
What are the main objectives in establishing the ethical regulatory systems in the different jurisdictions? Is the system for protecting the clients (consumers), the legal system (justice, smooth operation, and public trust), the profession (reputation and public trust), and/or the state’s power? If there are multiple objectives, is there a ranking of priority among them? What is/are the common ethical misconduct committed by lawyers? Are there differences in different jurisdictions? Are some lawyers (e.g. less or more experienced) more prone to commit ethical misconduct than others?
Usually, when a lawyer has violated an ethical obligation/duty, the lawyer may be subject to disciplinary process. The mechanism however may vary from places to places. Who are entitled to start the process? The disciplinary power may be exercised by the profession itself, an independent body, a state agency or a state appointed body. Why was the disciplinary power granted to the current regulatory authority? Is the process efficient, transparent and effective? Is it simple or complicated, costly or not? Is there abuse of the process? If such is the case, who abuses the system? Is the disciplinary mechanism effective in achieving its objective(s)? What are the possible consequences when a lawyer is found responsible for the misconduct and liable to be penalised? There may be a range of different possible penalties such as mere warning, suspension from practice for a specified period or disqualification. In some instances, the lawyer concerned may also be subject to criminal liabilities and punishment. What is the rationale for imposition of a particular sanction but not the other possible penalties? Will a lawyer’s attitude such as remedial action and/or attitude throughout the disciplinary procedure be relevant?
In all these aspects, there likely are differences and similarities among different jurisdictions. Are the differences due to their different historical, political, social, cultural and economic development? Are the similarities due to the fact that there is a universal set of ethical values for the legal profession, irrespective of the different local situations? Are the similarities due to globalisation or other forces/factors (external and/or internal)? Some jurisdictions have introduced regulatory reform regarding their legal profession. Why did they introduce the reform? What impact does the reform have on lawyers’ ethics?
To answer these questions, this workshop has invited scholars and researchers from 13 countries/places around the world, each of whom has deep knowledge in the lawyer regulatory system in at least one particular jurisdiction. They will present papers and discuss about the system, development, or other issues of disciplinary actions against lawyers in different jurisdictions. A wide range of jurisdictions will be covered, from advanced economies to developing countries, from well-established democracies to newly established democracies. It will cover common law, continental civil law and socialist civil law jurisdictions. There will be presentations about jurisdictions in North America, Europe, Israel, Africa, Asia and Oceania.
Given the diversity of jurisdictions that will be covered, it is expected that the discussions in the workshop and subsequent publications of the papers will enrich the current literature and understanding on the sociological aspects of lawyers’ disciplinary systems, particularly from a comparative perspective.