WG Comparative Studies of Legal Professions
Chair: Richard Collier
Kay-Wah Chan | Macquarie University
What Wrong Have They Done? Veteran Lawyers’ Ethical Misconduct in Japan
After the implementation of the Justice System Reform, there has been a substantial increase of lawyers (called "bengoshi" in Japanese) in Japan. As a result, there were concerns that legal ethics would deteriorate. My earlier empirical investigation found that there seems no serious ethics concern. It also tends to indicate that bengoshi who joined the profession after the launch of the justice system reform remained less prone to commit misconduct than their senior peers. Kyoko Ishida (2017) through a different methodology also found that senior bengoshi were more prone to be disciplined. However, did the veteran bengoshi and the junior bengoshi commit different kinds of misconduct? Are the veteran bengoshi more prone to commit any particular type(s) of misconduct? As pointed out by Kyoko Ishida (2017), there is a need to examine the issue whether there are “typical disciplinary cases for typical generations”. This paper empirically analyses, compares and contrasts the cases in which veteran bengoshi and junior bengoshi were disciplined. It will investigate and analyse the types of misconduct that they committed, the penalties they received, and the issue of repeated violations. Such analysis will further our understanding of veteran bengoshi’s ethical misconduct in Japan. This is crucial for identification of the contributory factors of the phenomenon that veteran bengoshi tend to be more prone to be disciplined. Contributory factors may include both internal factors (which arise from within the lawyer regulatory system) and external factors (such as the social, political, historical and/or cultural environment of veteran bengoshi's practice). This research will contribute to the academic discourse on socio-legal studies on legal ethics. Identification of the contributory factors will also highlight areas for appropriate improvement to be made by policymakers and/or regulators.
Susana Santos | ISCTE-IUL, CIES-IUL
Women lawyers and the professionalization of Pro Bono activities in large law firms
The paper aims to describe the situation of pro bono in Portugal, focusing in the large law firm and the lawyers who work in this organizational environment. The idea of centring the work in the context of large law firm came from evidence in the field that shows this kind of organization has a profound impact on the kind of work lawyers do and in its professional values, but also because large law firms have been promoting structured programmes of pro bono and, at last, the Portuguese context has been extremely permeated by the influence of this specific type of practice.
At this stage of the research the intention is more descriptive than comprehensive, even if we try to formulate some hypotheses to promote the discussion. The first hypothesis follows class theories and dominance theories and starts with the idea that the implementation of pro bono services can be considered as a form of preservation and sometimes a way to achieve new forms of power by the ruling class. The second hypothesis tries to engage organizational and individual effects of the activity of pro bono in the law firm and in lawyers. On an individual effect, we focus our attention on women lawyers. From the data collected one trend seems to appear, the presence, by large, of women in pro bono committees. One of the possible explanations advanced is related to the difficulties for women to get access to power positions inside the law firm. By dedicating their time to pro bono activities, women expect to receive recognition from their fellow partners and to improve their possibilities to have a successful career. Another type of explanation is related to class structure and the position occupied by women from the dominant class inside the family and in society. Until recent times, women we’re not expected to work or to have a professional career and so they engaged in different forms of charity work, usually related to organizations in the dependence of the catholic church. Working with poor communities or in their name was a way to maintain their privileges and reputation.
Methodologically, we combine content analysis of law firms’ websites, reports on pro bono activities and corporate social responsibility (CSR), in-depth interviews with lawyers with the responsibility of implementing pro bono in their firms, a clearing house and nineteen young lawyers working in six large law firms in Portugal.
André Carneiro Leão | Universidade Federal de Pernambuco
Beyond the jail: uma cartografia do movimento de resistência ao encarceramento em massa no Brasil
A questão do encarceramento em massa tem sido estudada largamente nas últimas décadas. Os estudos de Loïc Wacquant (1999; 2003) e David Garland (2001) são exemplares do impacto desse fenômeno nos países do Norte global. As particularidades da hiperinflação da taxa de aprisionamento nos países da América Latina também estão sendo debatidas, com destaque para os trabalhos mais recentes de Maximo Sozzo (2016). Esses trabalhos, entretanto, não aprofundaram a questão da resistência, social e política, a esse fenômeno. O presente trabalho pretende suprir parcialmente essa lacuna por meio de uma cartografia do movimento de resistência ao encarceramento em massa no Brasil. Inspirado pela metodologia da cartografia simbólica de Boaventura de Sousa Santos (1989) e por sua forma de olhar e construir a sociologia (pós-abissal) (SANTOS, 2006, 2010), pretendemos identificar como os movimentos de familiares de presos, as assessorias jurídicas populares e grupos sociais anti-cárcere têm se articulado em torno de propostas e ações estratégicas para conter o crescente aprisionamento da juventude negra e pobre do Brasil. Os dados serão coletados por meio de entrevistas, inicialmente com as instituições que compõem a recém criada Rede de Justiça Criminal, seguindo a busca por entrevistados, por indicação espontânea dos atores, até a saturação. Os resultados serão confrontados com os documentos e manifestos pelo desencarceramento que têm sido lançados e assinados por diversos grupos sociais. Pretende-se verificar especificamente como o direito tem sido mobilizado por essas instituições (litigância estratégica no judiciário ou advocacy nas reformas legislativas, por exemplo) e qual o papel que os grupos de assessoria jurídica popular têm desempenhado na correlação de forças envolvida na implementação de políticas públicas de (des)encarceramento.
Pedro Fortes | Oxford
The Legal Network: Examining the Multiple Dimensions of the Legal Profession
This paper examines the legal profession as a complex multidimensional network. The professional groups are evaluated according to different characteristics that emerge from various influencing factors. From the market perspective, accumulation of capital appears as the relevant factor. From the state perspective, power within the organisational bureaucracy of a BAR is significant. From the perspective of academia, legal knowledge emerges as an important sign of prestige. Additionally, from a philosophical perspective, professional independence also seems to be an important factor to evaluate the different legal professions. These multiple aspects are somehow interconnected through a complex web of human relationships and a complex combination of factors defines prestige within the economic, academic, organisational, and professional legal elites. Interestingly, this paper contributes to the literature with a theoretical analysis that moves beyond the dualisms of the hemispheres of the legal actors and their clientele, providing an innovative perspective that captures a more fragmented, diverse, and complex professional setting.
Benoit Bastard | Institut des sciences sociales du politique, ENS Paris-Saclay
Who benefits from discipline? Reflection on the role of bar associations and the segmentation of the profession
In a recent research on the French legal profession, I had the opportunity to study disciplinary processes. In three French bar associations, including that of Paris, I studied the treatment of 22 cases referred to the Disciplinary Board, an autonomous body belonging to the profession.
The study shows two types of action: the exclusion of "penniless" lawyers (lawyers in extreme difficulty due to illness, bankruptcy, etc.) and the punishment of "rogues" lawyers, (lawyers whose misconduct ranges from minor opportunistic offenses to large-scale swindles). A striking fact: these are almost exclusively lawyers in the judicial sphere. Business lawyers are absent from this sample without knowing how the dysfunctions affecting them are treated.
Based on the description of this situation, this contribution proposes a reflection on the use of discipline and the segmentation of the bar. Even though the disciplinary process concerns only the segment of judicial lawyers, professional bodies value it as a means of asserting their autonomy. Even though everything shows that segmentation is still strong or even growing, the profession relies on the symbols and values that justify maintaining its specific situation. In France at least, such operations are carried out successfully and, despite threats, the profession maintains its status and benefits.
Cecilia Blengino | Università degli Studi di Torino (Italy)
Silvia Mondino | Università degli Studi di Torino (Italy)
The role played by the clinical movement converting legal education into justice education: clinical legal education’s transformative power
The paper explores the present season of Clinical Legal Education (CLE) focusing on the role played by current legal clinical movement improving a bottom up transformation process both of legal education systems and concrete actions of implementation of human rights.
Theoretically founded on the proposal of American realism to overcome the dogmatic approach adopted by traditional legal education systems, the “learning by doing” method introduced by CLE originated from the idea to provide future lawyers the awareness about breaks and gaps that separate law in action from law in the books, integrating social science methodologies and legal practice. After being considered in the ‘70s a crucial tool for critical legal studies to polemicize against the reproduction of hierarchy by the traditional legal education systems, legal clinics have been progressively absorbed in US law school curricula, partially losing its critical dimension in favor of professionalizing goals.
Nevertheless – due to the globalization process and the crisis both of justice and educational systems – the rise of a global clinical movement seems to get this method to learning law back to its original aims. The innovative wave of a new clinical movement aimed to transform legal education into justice education is spreading all over the world, involving today also EU civil law educational systems, that had been impermeable before. Spreading of CLE mainly takes shape as a “bottom up” process, thati is progressing thanks to very peculiar epistemic community of “legal clinicians”. It emerged through a five year long participant observation in the meetings, workshops and trainings for trainers where “legal clinicians” meet to share competences, methodologies and experiences, both at international, regional and local levels. Far from the rigidity of academic roles, law professors, lawyers, ONG, activists consider themselves as a part of this community, linked by the common aim to use reflective practice methods as ways to fill the gaps in the justice systems. and with the goal of training a new model of legal experts focused on human rights protection with an intersectional approach to the problems.