ILEC 2014, Session 6

by Paul Maharg on 12/07/2014

Session 5 – I was presenting, so no summary.  For once I just talked to a script, no slides, since I had about 12 mins.  Shamani Ragavan, Neil Gold and Nigel Duncan presented, while my colleague from ANU Liz Curran did a fine intro to & demo of a Giving Voice to Values mini-session that went down well, and linked in with what the other speakers were saying, too.

Session 6, final session, day 2 – am in a part of the campus that doesn’t seem to have wireless coverage, so am w/processing this and will post up later.  First up, Christopher Whelan, ‘Called to the Bar in 2014: Moral hazard or professional morality?’  Christopher is talking on the radical changes to the regulation of barristers and sets of chambers in recent years.  What effect might these changes have in re-shaping barristers’ professional ideologies (including ethics)?  Christopher focused on the new Code of Conduct for barristers – it provides, he said, a laboratory environment (my expression) to examine the ‘”symbiotic” relationship between “public”, “private”, and “self-“ regulation in order to better understand the evolving nature of “professional” regulation in a competitive market economy’ (his abstract).  In the future chambers will develop into small niche sets, and mega-chambers.

Next, Bobette Wolski, Bond U, Queensland: ‘A critique of proposals for new Rules of Conduct for legal representatives in mediation – arguments for maintaining the status quo’.  The basic situation she was talking about – currently lawyers who represent parties in mediation are governed by the legal profession’s general rules of professional conduct, and make no provision for mediation.  Some commentators have argued that these rules are inappropriate for an incompatible with mediation.  They want to see rules for higher standards of disclosure, good faith participation, fair dealing and use of non-adversarial interest-based negotiation.

Bobette doubted this claim.  First, she said that the rational given for the proposals is flawed, and neither practical nor desirable to insist on full candour and the other issues above.  Second, she evaluated the rules governing lawyers in Australia, UK and the USA, and commented that the rules were appropriate in UK & USA because consistent with the aims of mediation.  They allowed discretion re the above issues, but still encouraged lawyers to behave according to the core values of the legal profession.  Some interesting issues raised here.  Eg standards of candour…  if mediators are treated as court, mediators must inform courts of relevant binding authorities and legislative provisions, and there’s no duty to disclose other information.  If they’re treated as another party, no duty to disclose authorities and legislation, no obligation to share other information with parties.  She argued that mediators should be treated as opponents/other parties, not as courts.

Finally Julian Webb, on ‘Regulating education and training in a liberalised legal services market: the experience of England & Wales’.  He considered the recommendations of the Report, together with the responses of the main frontline regulators as an attempt to respond to the social complexity of legal services education.  The changes brought about by the LSA 2007 have been accompanied by a growing strategic focus on education and training as a regulatory tool in its own right.  He pointed out how we tore up assumptions: in the real world:

  • the level of qualification may be only weakly correlated to competence
  • there was less need for full-service lawyers
  • the relationship between cost and quality of service is NOT linear
  • quality is more than technical competence — so-called soft skills, systems matter, etc.

An assessment?  Julian gave us opportunities and risks:


  • Fits with regulatory direction of travel and new political economy
  • better aligns the academic, vocational end continuing stages of LSET
  • puts ethics and values more centre stage= demoralisation of professional regulation
  • transforms’competence’ from a relatively static, passive concept, to one that is active and continuing
  • supports the opening up of new flexible qualification pathways and careers within the legal services sector.


  • liberalises/flexibilises too much
  • further ‘bureaucratises’ learning
  • creates divisions between first and second class pathways – increasing liminal workforce
  • creating new access problems without adequately resolving existing ones
  • implementation: resources and mechanisms for change?  Pony express or snail mail?
  • collaboration between regulators/regulators and others

Great presentation (though as his colleague on LETR I would say so…), certainly one that spoke to my experience as being a colleague on LETR.  You don’t spend two years of your life on a project like this and put it away easily — it leaves a mark.  But a year on, it’s becoming increasingly historical; time to put it aside,  (while observing the movements of regulators in the second phase of LETR that’s ongoing), and move on.

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