Research Project: Ethics in Large Law Firms
Associate Professor Christine Parker
Email c.parker@unimelb.edu.au, Tel 8344 1093, Room 755
Overview of Research Project
Previous research has demonstrated that the commercialism and culture of many law firms can contribute to ethical breaches and reduce lawyers' capacity even to 'see' ethical issues. Since the organisational (law firm) context of legal practice has an influence on unethical behaviour, some scholars have suggested that law firms should be encouraged or required to implement 'ethical infrastructures', that is organisational policies, procedures, incentives and cultures that promote ethical discussions and ethical practice.
I am working on a research project to examine and evaluate the implementation of ethical infrastructure in large and commercialized law firms in Australia. The larger project will be based on empirical research to understand how law firm leaders and junior lawyers think about key ethical issues in large law firms – such as billing, conflicts of interest, complaints handling and duties to the court and justice versus duty to the client – and how law firms might be better organized and managed to encourage ethical judgment and behaviour in relation to these issues. The research project will also involve more traditional legal doctrinal research as to the standards of professional conduct required by law in these areas; as well as research into what the more philosophical and applied ethics literature tells us about what can and should be ethically required of large law firm lawyers.
We will be comparing our findings with similar research to be done in the US, UK and New Zealand by other teams of academics. I am working with the Legal Services Commissioners in New South Wales, Queensland and Victoria in doing the Australian research.
A preliminary article summarizing the issues for research is available from Christine Parker or Pip Nicholson: Christine Parker et al, “The ethical infrastructure of legal practice in larger law firms: values, policy and behaviour” University of New South Wales Law Journal, 31(1), 2008, 158-188.
Specific Research Topics for Students
A range of specific research topics are available for students. These topics include topics that will involve doctrinal research, research into the socio-legal literature around ethics in large law firms, research into relevant philosophical/applied ethics literature, and possibly some fairly simple empirical research. I am happy to try to design topics to suit individual students.
Suggested topic areas include:
Doctrinal:
- Professional responsibility law and conflicts of interest in large law firms: What do large law firms need to do about avoiding conflicts of interest? What counts as a robust information barrier? Are current rules too inflexible for large law firms? Do common current practices comply with the law?
- The above topic could be researched in relation to Australia, NZ, UK, US or any other country in which a student has an interest.
- Some students might wish to consider whether lawyers could and should be held legally liable in a specific scenario where lawyers were involved in advising corporate clients that were subsequently found to have acted unethically or illegally. Scenarios include the document shredding by tobacco companies allegedly to avoid liability in the McCabe case, the recent decision that directors of James Hardie breached their duties in leaving asbestos claimants inadequately compensated or bribery of Saddam Hussein and his regime by the Australian Wheat Board.
Socio/Legal or Empirical:
- An empirical study of what large law firms say about ethics on their websites and publicity material: What do they emphasise – duty to the court or duty to the client? Do they publicise their pro bono activities? What about work/life balance policies? Do they claim to have ethics partners, ethics committees? What sort of language do they use? Who are they trying to impress – clients, potential employees?
- What do we know about the ethical hazards and opportunities of large law firm practice? What do we need to research further? There is a growing body of empirical and socio-legal literature (mainly from the US) that examines different aspects of large law firm organization and practice in general and its ethical implications in particular. Students could focus on an aspect of this literature in which they are interested, critically review what we do and do not know from this literature, whether it might apply in Australia and what further empirical research would be necessary to push our knowledge further. Specific topics might include ethical hazards and opportunities in particular areas of practice (eg tax, bankruptcy, mergers, litigation); organizational behaviour and structures in large law firms and how they affect ethics; incentive and reward systems in large law firms including hourly billing; and so on…
Philosophical/Applied Ethics:
- Is there a place for virtue ethics in large law firm practice? Eg critical examination of Anthony Kronman’s, The Lost Lawyer.
- Is there a place for the lawyer as gatekeeper of their clients’ ethical and legal compliance in large law firm practice? Eg critical examination of adversarial versus responsible lawyer and moral activist theories of lawyering by authors such as Jack Coffee, William Simon, Robert Gordon, David Luban, Milton Regan and others.
- The ethics of the large firm lawyer in literature or popular culture eg Michael Clayton the movie, the John Grisham novels and movies, and so on, in the light of scholarly literature on lawyer ethics.
Policy or Practice Oriented:
- Should regulators be able to discipline large law firms as firms (not just the individual lawyers)?
- What should a new law graduate look for in a large law firm if she wants to ensure she is able to make and act on her own ethical judgments?
- How should Victoria regulate incorporated legal practices? Are the models for requiring incorporated law firms to self-assess their own ethical management systems in NSW and Qld appropriate?
Assessment
Class Participation: 10%
This mark will be based on the student’s presentation of their work-in-progress at a date to be determined in the last three weeks of semester. Students will not be expected to have finalized their research. They will be expected to define their topic; explain and critically reflect on the way they researched the topic; and, present an outline of their paper and preliminary findings. Students will have about 15 minutes to present with an additional 5-10 minutes class discussion on each presentation.
Research Essay: 90% (8000 words)
Due: 27 November 2009
Seminar Meetings and Time Commitments
The majority of students’ time and effort in this seminar will be devoted to research activities and writing outside class. There will be three classes at the beginning of the semester to introduce the research area, allocate research topics and make sure students are equipped to do their own research. We will then meet twice as a group during the semester to discuss progress and any common difficulties. These will be group meetings so that we can learn from each other, both in terms of the research methods and subject matter that has cross-cutting relevance to multiple students’ research topics.
The class meetings will consist of:
- Two class meetings (3 hours each) in weeks one and two of semester (i.e. the weeks of 27 July and 3 August) to introduce the subject area, relevant research methods and challenges, and to develop and assign specific topics.
- A series of library sessions to learn relevant research skills. This will consist of 3 to 6 one hour sessions starting in week 3.
- Two progress meetings in which students exchange experiences with the research with each other. These meetings enable students to discuss their research task and their experience in carrying it out; determine and justify their research methodology; outline and explain the framework for the research task that they have undertaken; share their experiences in writing and finalising the research and preparing for publication or dissemination. These will be scheduled to suit people’s timetables in Week 5 (beginning 24 August) and 8 (beginning 14 September).
- One on one meetings between students and the seminar teacher if required to help the student define the topic or assist in research direction. It will usually be up to the student to ask to schedule a meeting if they feel they need it. In general we encourage all students to raise any questions and issues they have in group meetings so that all can learn from each others’ experience with the research enterprise.
- Research symposium: two three hour classes in which students present their research to each other in the last three weeks of semester.