The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School

Research output: Contribution to conferencePaperResearchpeer-review

Abstract

In Australia and many other common law jurisdictions, legal practitioners are governed by
a single generic code of professional conduct (where the profession is a divided one, there
is often a code for solicitors and another for barristers). Many commentators regard the
‘one code fits all’ approach to regulation of the legal profession as unsatisfactory given
that legal practitioners are increasingly engaged in diverse practice settings some of which
are non-adversarial in nature. These commentators argue that multiple codes of conduct
are required to deal with this diversity, and in particular, to help curb excessive adversarial
behaviour in processes where such behaviour might be inappropriate.
This paper is in two parts. The first part identifies and evaluates alternative ways of
regulating the legal profession so as to accommodate diversity in practice. It discusses the
possibility of promulgating:
1. multiple specialised codes for different areas of law (family law, criminal law,
bankruptcy law and so on) and/or for different processes (such as litigation, mediation,
unassisted negotiation);
2. ‘middle-level’ codes, somewhere in between general codes and a totally discretionary
approach to legal ethics. Middle level codes might be based on a number of categories
including task, subject matter, lawyer position (eg sole practitioner versus large firm) and
client position (eg individual versus corporate client);
3. a contract model in which lawyers and clients can contractually choose the ethical
obligations under which they want to operate.
Given the lack of consensus on this topic and the fact that all of these models of
regulation are inherently limited, the author concludes that the best and most likely
possibility is the continued regulation of the profession through one general uniform code
of conduct. If this is indeed the case, the challenge of modifying adversarial traits –
assuming modification is necessary, and of educating for diversity in practice, falls to law
schools. Part two of the paper offers some suggestions for meeting this challenge. It
considers the variety of ways in which non-adversarial values and methods can be
incorporated into the curriculum, learning objectives, learning and teaching methodology
and assessment regimes.
Original languageEnglish
Publication statusPublished - 2017
EventThe Commonwealth Legal Education Association 2017 conference - Melbourne , Australia
Duration: 22 Mar 201723 Mar 2017
http://www.clea-web.com/events-conferences/melbourne-2017/

Conference

ConferenceThe Commonwealth Legal Education Association 2017 conference
Abbreviated titleCLEA 2017
CountryAustralia
CityMelbourne
Period22/03/1723/03/17
Internet address

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school law
legal profession
lawyer
profession
regulation
family law
Law
bankruptcy
learning objective
common law
criminal law
mediation
jurisdiction
moral philosophy
regime
firm
curriculum
lack
Teaching
learning

Cite this

Wolski, B. (2017). The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School. Paper presented at The Commonwealth Legal Education Association 2017 conference, Melbourne , Australia.
Wolski, Bobette. / The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School. Paper presented at The Commonwealth Legal Education Association 2017 conference, Melbourne , Australia.
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abstract = "In Australia and many other common law jurisdictions, legal practitioners are governed bya single generic code of professional conduct (where the profession is a divided one, thereis often a code for solicitors and another for barristers). Many commentators regard the‘one code fits all’ approach to regulation of the legal profession as unsatisfactory giventhat legal practitioners are increasingly engaged in diverse practice settings some of whichare non-adversarial in nature. These commentators argue that multiple codes of conductare required to deal with this diversity, and in particular, to help curb excessive adversarialbehaviour in processes where such behaviour might be inappropriate.This paper is in two parts. The first part identifies and evaluates alternative ways ofregulating the legal profession so as to accommodate diversity in practice. It discusses thepossibility of promulgating:1. multiple specialised codes for different areas of law (family law, criminal law,bankruptcy law and so on) and/or for different processes (such as litigation, mediation,unassisted negotiation);2. ‘middle-level’ codes, somewhere in between general codes and a totally discretionaryapproach to legal ethics. Middle level codes might be based on a number of categoriesincluding task, subject matter, lawyer position (eg sole practitioner versus large firm) andclient position (eg individual versus corporate client);3. a contract model in which lawyers and clients can contractually choose the ethicalobligations under which they want to operate.Given the lack of consensus on this topic and the fact that all of these models ofregulation are inherently limited, the author concludes that the best and most likelypossibility is the continued regulation of the profession through one general uniform codeof conduct. If this is indeed the case, the challenge of modifying adversarial traits –assuming modification is necessary, and of educating for diversity in practice, falls to lawschools. Part two of the paper offers some suggestions for meeting this challenge. Itconsiders the variety of ways in which non-adversarial values and methods can beincorporated into the curriculum, learning objectives, learning and teaching methodologyand assessment regimes.",
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language = "English",
note = "The Commonwealth Legal Education Association 2017 conference, CLEA 2017 ; Conference date: 22-03-2017 Through 23-03-2017",
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Wolski, B 2017, 'The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School' Paper presented at The Commonwealth Legal Education Association 2017 conference, Melbourne , Australia, 22/03/17 - 23/03/17, .

The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School. / Wolski, Bobette.

2017. Paper presented at The Commonwealth Legal Education Association 2017 conference, Melbourne , Australia.

Research output: Contribution to conferencePaperResearchpeer-review

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Wolski B. The Limitations of Codes of Professional Conduct – Accommodating Diversity in Practice at Law School. 2017. Paper presented at The Commonwealth Legal Education Association 2017 conference, Melbourne , Australia.