Barker, D --- "Professional Responsibility and Regulation" [2008] LegEdDig 14; (2008) 16(1) Legal Education Digest 53

• Professional Responsibility and Regulation

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Professional Responsibility and Regulation

D L Rhode &G C Hazard, JR

Foundation Press, 2007 (2^nd Ed) 295 pp

There has been a growing tendency to attempt to conceptualize Professional Responsibility. It is appropriate therefore that a Second Edition of Rhodes’s and Hazard’s book on this subject has recently been published by Foundation Press. Both its authors are well qualified to write on this topic with Professor Rhode being the Foundation Director of the Stanford Center on Ethics at Stanford University. Geoffrey C. Hazard, JR, is a Professor at Hastings College of the Law, University of California, having served as a member of the ABA Ethics 2000 Commission.

For those who wish to understand the whole ambit of Professional Responsibility the content is well explained and follows a logical sequence.

Although the text has been written primarily for an American readership, it does attempt to maintain a comparative element, and for readers from outside the United States covers themes which will resonate with lawyers from most jurisdictions.

Chapter I — The Profession and its Regulation sets the scene with regard to a consideration of what the membership of a profession implies. This incorporates an examination of a matter of concern in most jurisdictions relating to the ongoing reduction in self-regulation by the legal profession.

The authors also relate how the profession’s efforts to prevent the ‘unauthorised practice of law’ by non-law competitors have been eroded by market pressures and technological advances. This chapter also contains a comprehensive review of ‘Professional Norms, Law, Morality and Legal Ethics’ with the threshold question as to what is the ‘ethics’ in legal ethics and how is it related to the law of lawyering?

Chapter II — The American Legal Profession and Bar Regulatory Structures complements and carries on the themes of the opening chapter by dealing with an historical account of the development of the profession comparing its origins in mid-fourth century B.C.E. in Greece with the more sophisticated professional structure of the Roman era. This account embraces the evolution of a professional legal culture in both the European Continental and English systems, culminating in an examination of early Anglo-American legal practices. Other topics touched upon include bar regulatory structures, professional associations and the consequential diversifying of the legal profession.

One of the strengths of the text is the manner by which the authors respond to the challenge of examining elements of legal practice a topic often glossed over by other legal writers. This may be illustrated by the review in Chapter III — The Forms and Economics of Legal Practice where the authors explain that the term ‘law practice’ is ‘an abstraction that covers a wide range of professional activities whose only common denominator is that lawyers engage in them.’

Chapter IV — The ‘Constitutional’ Functions of the Legal Profession illustrates another feature of the book which is the way the contents have been structured so that the topics of each chapter flow seamlessly into those of the following chapter. This enables the reader to able to understand the many complexities which form part of a legal practice. An example of this is the juxtapositioning of Chapter VI — The Adversary System, Confidentiality, and Alternative Dispute Resolution between Chapter V — Basic Professional Norms and Chapter VII — Transnational Practice.

Chapter VIII — Conflicts of Interest deals comprehensively with this controversial topic

for which the legal profession is often highly criticised. It incorporates the report of a survey on behalf of the American Bar Foundation which would surprise critics by its outcomes. This reveals that large firms in the United States of America estimate that they turn away anywhere from a third to a half of all potential cases because of conflicts of interest, whilst for small firms the ratio is five to ten percent of prospective business for the same reason.

On the same basis Chapter IX — Access to Justice examines another controversial subject affecting the legal profession which is the wide perception that America has too much law and too little justice. The review of these perceptions by the American public makes interesting reading particularly with regard to its conclusions that much of the difficulty could be that the public is poorly informed or deeply ambivalent about access to justice. In the view of the authors there is an underestimation of the true costs of the legal process, with a misunderstanding as to the extent of litigiousness among those able to afford litigation, whilst there is a reluctance to subsidise adequate legal services for the disadvantaged.

As to be expected in a text which incorporates Regulation in its title, there is a continued emphasis on regulatory issues throughout the text and Chapter X — Regulating the Market for Legal Services focuses on the response by the American Bar to regulatory issues.

For legal educators Chapter XI — Qualifications for the Bar encapsulates all aspects of legal education including educational structures, multiple constituencies with competing agendas, even incorporating an aside to take account of William Twinings’ ‘Pericles and the Plumber’ and then continuing to consider the quasi-Socratic style of law school teaching.

In the same way in Chapter XII — Competence and Discipline the authors attempt to grapple with the complexities of competence. They recognise that one of the problems ‘lies in identifying the problem to be addressed’, with definitions of competence in bar ethical rules and reported decisions being ‘formulated at high levels of abstraction.’

The text culminates in a one page Epilogue, where the authors endeavour to précis into one page the contents of the previous 289 pages. Again it focuses on the theme of the increasing pressures of competition and commercialism on legal practice which can give rise to ‘collegiality and civility’ leading in the opposite direction. The authors caution that if today’s lawyers do not actively seek solutions to their own regulatory problems then others may do so for them.

This is a challenging book for all concerned with both education and training for the legal profession and to those involved in legal practice.

Professor David Barker AM

Editor