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.
Our experience in Oñati
Regulating Lawyers Through Disciplinary Systems workshop (26-27 April 2018) brought together seventeen scholars from 10 countries (Australia, Brazil, Japan, Lithuania, New Zealand, UK, Singapore, South Korea, Spain and United States). The participants had a shared passion to understand the range of choices in regulating lawyers through disciplinary systems, which in turn offers insights into how various legal systems construct the lawyer’s role within their rule of law. The disciplinary systems represented countries with well-developed legal systems, emerging and fragile democracies and non-democratic legal systems. The six panels explored lawyer disciplinary systems in the United States, Europe, three BRIC countries (Brazil, China and South Africa), Oceania, and Singapore, Japan and South Korea. Multiple common questions and themes emerged over the two day discussion. Identifying the goals of the various disciplinary systems was not always easy. Every system had challenges in evaluating effectiveness, in part because of different standards that can be used to define and measure effectiveness. The role of efficiency was a challenge within each system, in part because of the need to balance public protection with fairness to the regulated person in typically under-resourced agencies. The systems represented a wide range of approaches to transparency, with an emerging sense within the group that transparency is an important value across systems. The various systems offered different paths to admission to practice, leaving an open question of how admission criteria shape the disciplinary system. The scope of lawyer monopolies (i.e., the role of lawyers and non-lawyers within a legal system) varied widely within the systems, leading to a central question about the value-added of lawyer regulation. Finally, some countries have predominant self-regulation, some have predominantly external (government) regulation, and others provide a mixed system. Each choice has strengths and weaknesses. The participants look forward to ongoing conversations on these important themes. Finally, the organisers of the workshop would like to take this opportunity to thank the International Institute for the Sociology of Law (Onati) and its staff for their tremendous support and effort, without which the workshop would not have been as fruitful and successful as it was.