Professionalism in higher education:important not only for lawyers

This article considers how, in light of the changing legal profession and higher education, academia could address professionalism training. The authors put forward an argument that, if professionalism is to be understood as a set of skills, values and attitudes required for any lawyer, it is now a good time to consider how these could be taught and assessed in law and non-law degrees. The formation of professional values and attitudes is a long process that continues throughout a person’s life. The earlier students are exposed to professional values, attitudes and skills, the better the quality of service these future lawyers will provide to the public. Taking into account the Legal Education and Training Review (LETR) recommendations, the article suggests some practical ways as to how professionalism could be developed in higher education.

designing + (dis)assembling disputes: an ethnography of disputes & lawyers in the construction industry

The UK construction industry is notorious for the sheer amount of disputes which are likely to arise on each building and engineering project. Despite numerous creative attempts at “dispute avoidance” and “dispute resolution”, this industry is still plagued with these costly disputes. Whilst both academic literature and professional practices have investigated the causes of disputes and the mechanisms for avoidance/resolution of these disputes, neither has studied in any detail the nature of the construction disputes and why they develop as they do once a construction lawyer is engaged. Accordingly, this research explores the question of what influences the outcome of a construction dispute and to what extent do construction lawyers control or direct this outcome? The research approach was ethnographic. Fieldwork took place at a leading construction law firm in London over 18 months. The primary focus was participant observation in all of the firm’s activities. In addition, a database was compiled from the firm’s files and archives, thus providing information for quantitative analysis. The basis of the theoretical framework, and indeed the research method, was the Actor‐Network Theory (ANT). As such, this research viewed a dispute as a set of associations – an entity which takes form and acquires its attributes as a result of its relations with other entities. This viewpoint is aligned with relational contract theories, which in turn provides a unified platform for exploring the disputes. The research investigated the entities and events which appeared to influence the dispute’s identity, shape and outcome. With regard to a dispute’s trajectory, the research took as its starting point that a dispute follows the transformation of “naming, blaming, claiming…”, as identified by Felstiner, Abel and Sarat in 1980. The research found that construction disputes generally materialise and develop prior to any one of the parties approaching a lawyer. Once the lawyer is engaged, we see the reverse of the trajectory “naming, blaming, claiming…” this being: “claiming, blaming, naming…” The lawyers’ role is to identify or name (or rename) the dispute in the best possible light for their client in order to achieve the desired outcome – the development of which is akin to the design process. The transformation of a dispute and the reverse trajectory is by no means linear, but rather, iterative and spatial as it requires alliances, dependencies and contingencies to assemble and take the shape it does. The research concludes that construction disputes are rarely ever completely “resolved” as such. Whilst an independent third party may hand down a judgment, or the parties may reach a settlement agreement, this state is only temporal. Some construction disputes dissipate whist others reach a state of hibernation for a period of time only to pick up momentum and energy some years later. Accordingly, this research suggests that the concept of “dispute resolution” does not exist in the UK construction industry. The ultimate goal should be for parties to reach this ultimate and perpetual state of equilibrium as quickly and as cost effectively as possible: “dispute dissolution”, the slowing down of the dispute’s momentum. Rather than focusing on the design and assemblage of the dispute, the lawyers’ role therein is, or should be, to assist with the “disassembling” of the dispute.

Women Lawyers and the Struggle for Change in Conflict and Transition

This article examines the particular experiences of female ‘cause lawyers’ in conflicted and transitional societies. Drawn from an ongoing comparative project which involved fieldwork in Cambodia, Chile, Israel, Palestine, Tunisia and South Africa, the paper looks at opportunities, obstacles and the obduracy required from such lawyers to ‘make a difference’ in these challenging contexts. Drawing upon the theoretical literature on the sociology of the legal profession, cause-lawyers, gender and transitional justice, and the structure/agency nexus, the article considers in turn the conflict\cause-lawyering intersection and the work of cause-lawyers in transitional contexts. It concludes by arguing that the case-study of cause-lawyers offers a rebuttal to the charge that transitional justice is just like ‘ordinary justice’. It also contends that, notwithstanding the durability of patriarchal power in transitional contexts, law remains a site of struggle, not acquiescence, and many of these cause-lawyers have and continue to exercise both agency and responsibility in ‘taking on’ that power.

Lawyers & Truth Recovery Mechanisms: South Africa

Focusing on post-apartheid South Africa, the report explores the role of lawyers in truth recovery mechanisms.

The report was prepared by Dr Rachel Killean and draws on a series of interviews conducted in South Africa (with legal academics, ‘struggle’ lawyers, state lawyers, judges and human rights activists) as part of the wider Lawyers, Conflict and Transition project.

Dr Killean begins with an overview of the various roles the legal profession has played in South Africa, both during the apartheid era and post-transition.

The first half of the report then explores the role of lawyers as professional participants – firstly at the South African Truth and Reconciliation Commission and secondly in the Marikana Commission of Inquiry.

The report then considers the notion of lawyers as subjects of truth recovery, looking in particular at the Special Legal Hearing on the legal profession as part of the South African Truth and Reconciliation Commission.

In the concluding section Killean reflects on the extent to which lawyers influence the procedures and outcomes of truth recovery mechanisms and offers some concrete suggestions as to how the involvement of lawyers in such processes might be more effectively managed.

With regard to lawyers as subjects of truth recovery, she acknowledges the limitations of the South African model but posits that the endeavour must be applauded, not least because it demonstrated that it is possible to scrutinise the role of the legal profession in past conflict, and that it is worth wrestling with the associated challenges.

Report of Committee on Minimum Wage Enforcement of the San Francisco Chapter of the National Lawyers Guild.

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Consumer protection in the banking sector : reviewing the Code of Banking Practice

This article explains the relevance of the Code and its place in the regulatory framework, discusses some of the key issues arising in the recent review (as identified by consumer advocates1), and explains the relationship between the Code and the Financial Ombudsman Service.

Learning to reflect in the first year of legal education : the key to surviving legal education and legal practice

Lawyers and law students suffer significant rates of depression and substance abuse. This paper suggests that Law Schools have an obligation to assist students to develop the emotional intelligence necessary in order to cope with the stressful nature of legal practice. We draw on Schön’s discussion of the indeterminate zone of professional practice to suggest that reflective practice is the means by which students can become sufficiently emotionally intelligent to become balanced and happy lawyers. We suggest that incorporating reflective practice in intentional curriculum design in the first year of law is an effective first step in assisting students to develop the emotional intelligence necessary to survive the study and practice of law.

Engaging with the promises of education : African refugee students in Australian secondary schools

The research reported in this paper investigated the engagement of students who arrived in Australian secondary schools as refugees from Africa. Enrolment of large cohorts of refugees from Africa is a relatively new phenomenon in the English-speaking West. The literature provides evidence that emotional engagement with the promises of schooling is strong for many of the young African refugees. Students envision successful professional careers as doctors, engineers, lawyers, and IT experts; they envision returning to their country as professionals able to help the people. The question investigated in this paper is: How does schooling in Australia impact on young African refugees’ education and career aspirations? Engagement is understood in Bourdieuian terms as dispositions to be and to become an educated person. This is a disposition which entails fundamental belief in the value of the stakes of schooling. The data analysed in the paper were produced in a study undertaken in the state of Queensland where 5000 of the 39 000 African refugees who have arrived in Australia since 2000 have settled. Semi-structured interviews were conducted with students and their parents and teachers after arrival in an intensive language school, and then after transition to a regular secondary school. The findings show both the durability and malleability of educational dispositions in conditions of dramatic social change occasioned by refugee experience. Engagement in the stakes of schooling is both built and eroded as students flee their homelands for countries of refuge. Previously unimaginable educational dreams are possible for some; but for others, long-held dreams become unattainable. The paper concludes with recommendations for better supporting young people through this re-shaping of self.

Legal Issues Relating to the Notification of Australian Data Breaches

Advances in information and communications technologies during the last two decades have allowed organisations to capture and utilise data on a vast scale, thus heightening the importance of adequate measures for protecting unauthorised disclosure of personal information. In this respect, data breach notification has emerged as an issue of increasing importance throughout the world. It has been the subject of law reform in the United States and in other international jurisdictions. Following the Australian Law Reform Commission’s review of privacy, data breach notification will soon be addressed in Australia. This article provides a review of US and Australian legal initiatives regarding the notification of data breaches. The authors highlight areas of concern based on the extant US literature that require specific consideration in Australia regarding the development of an Australian legal framework for the notification of data breaches.

The impact of “empirical facts” on legal scholarship and legal research training

Lawyers have traditionally viewed law as a closed system, and doctrinal research has been the research methodology used most widely in the profession. This reflects traditional concepts of legal reasoning. There is a wealth of reliable and valid social science data available to lawyers and judges. Judges in fact often refer to general facts about the world, society, institutions and human behaviour (‘empirical facts’). Legal education needs to prepare our students for this broader legal context. This paper examines how ‘empirical facts’ are used in Australian and other common law courts. Specifically, the paper argues that there is a need for enhanced training in non-doctrinal research methodologies across the law school curriculum. This should encompass a broad introduction to social science methods, with more attention being paid to a cross-section of methodologies such as content analysis, comparative law and surveys that are best applied to law.

Professional Responsibility and Legal Ethics in Queensland

With the commencement of the Legal Profession Act 2007 (Qld) and the establishment of the Legal Services Commission, the legal profession and legal services market in Queensland has experienced significant changes to its regulatory environment. Professional Responsibility and Legal Ethics in Queensland provides a detailed explanation and analysis of these changes. The book will assist lawyers to plan for successful practice within this new environment by examining such topics as: • The scope and application of key provisions within the Legal Profession Act; • The role, functions and policies of the Legal Services Commission; • The ethical and regulatory implications of operating as an Incorporated Legal Practice or as a Multi-Disciplinary Partnership; • Developments affecting trust accounts and client money dealings more generally; • Recent case law, Tribunal decisions and Legal Services Commission guidelines in relation to the new conduct standards of Unsatisfactory Professional Conduct and Professional Misconduct; and • The impact of the new legislation and regulatory environment on a range of traditional ethical duty categories such as the duty to communicate, costs and billing practices, as well as the paramount duties to the court and to the administration of justice. An invaluable reference for legal professionals, this book is also an important resource for law students grappling with questions raised by legal ethics and their application to the workplace.

Does Chinese traditional values matter in regulating China's company directors? Preliminary findings from surveys in Hong Kong

Much has been said about Chinese corporate governance and the new laws on companies. While most literature focuses on either the political or the legal doctrinal issues, this paper argues that Chinese traditional values do matter in Chinese corporate governance. The object of this paper is to report on the preliminary findings of a project supported by the General Research Fund in Hong Kong (HK). Thus far the survey results from HK respondents support our hypothesis. As such, traditional Chinese values should be on the agenda of the next round of company law reforms in China.