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 Springer 2009
Journal of Business Ethics (2009) 88:21–34
DOI 10.1007/s10551-009-0104-2
The Managerial Law Firm
and the Globalization of Legal Ethics
ABSTRACT. The processes of economic integration
induced by globalization have brought about a certain
type of legal practice that challenges the core values of
legal ethics. Law firms seeking to represent the interests of
internationally active corporate clients must embrace and
systematically apply concepts of strategic management and
planning and install corporate business structures to sustain competition for lucrative clients. These measures
bear a high conflict potential with the core values of
legal ethics. However, we observe in parallel a global
consolidation of these core values through an enhanced
cooperation of national professional bodies, the use of
international codes, and comparative legal ethics teaching
and research. Furthermore, state regulation of the legal
profession is concerned with preserving the core values of
legal ethics to conserve the lawyer’s role in upholding
the rule of law. This article defends that legal ethics is
adapting to the pressures exerted by ‘‘managerial’’
approaches to legal practice without this altering core
values that underlie legal ethics.
KEY WORDS: comparative legal ethics, international
codes of ethics, law firm management, law firms, legal
ethics, professional ethics, professions
Introduction
In the last two decades, legal practice has changed
most dramatically where lawyers represent large
and internationally active corporate clients (see, for
example, Heinz et al., 2001, p. 342). Law firms
seeking to represent such clients have engaged in
Bjorn Fasterling worked as a German lawyer on corporate
transactions and international arbitration cases. Part of his
practice took place in the German office of a US American law
firm. For the last 5 years he has been teaching business law in
France as a professor at EDHEC Business School and is
member of the EDHEC Leadership & Corporate Governance Research Centre.
Bjorn Fasterling
strategies of global expansion to keep up with their
activity (Thomas et al., 2001; Silver, 2002; Spar,
1997; Sokol, 2007). In this sector, law firms have
proved most successful when they have systematically embraced and implemented strategic management concepts to achieve competitive advantages
(Muir et al., 2004), installed a central command
structure, and heavily invested in human resources
(Spar, 1997, Sokol, 2007). These approaches to legal
practice will be described as ‘‘managerial.’’
Legal ethics1 seeks to ensure that private legal
practice by independent professionals serves to
uphold the rule of law. Lawyers basically serve the
rule of law by representing client interests in accord
with the integrity of a justice system. This implies that
a lawyer is potentially confronted with conflicting
objectives between the interests of justice, the client,
and the legal system (Hazard and Dondi, 2004). To
maintain the delicate balance between potentially
conflicting interests in the face of social, governmental, and economic changes is a constant challenge
for any legal ethics regime (Bachof and Martin, 1991).
The core values of legal ethics are the necessary prerequisites for the private legal profession if it is to
contribute to uphold the rule of law.2 Accordingly,
the core values of legal ethics could be summarized as
professional independence, client confidentiality,
avoidance of conflicts of interest, service to justice and
the justice system, and adherence to professional
virtues (collegiality, honesty, and integrity).
The managerial law firm’s approach to legal
practice appears to be antithetical to the core values
of legal ethics, particularly with regard to professional independence and the service of justice and
the justice system. The managerial law firm’s internationality, business structures, and focus on achieving competitive advantages could disrupt the delicate
balances that legal ethics tries to maintain.
22
Bjorn Fasterling
As some academic literature on legal ethics suggests,
the constant pressures on legal ethics exerted by the
managerial law firm could be viewed as an indication
that the legal profession is undergoing substantial
changes (for example, Abel, 2003, pp. 202–240;
Etherington and Lee, 2007; Sokol, 2007) or even
entering an era of ‘‘postprofessionalism’’ (Kritzer,
1999, p. 720). The emphasis on changes to the profession also echoes a key theme in organizational
literature according to which professional firms are
being transformed according to a new ‘‘archetype,’’
that of a ‘‘managed professional business’’ (for example, Greenwood and Hinings, 1993; Brock, 2006).3
Meanwhile, literature on institutional and organizational change explains the transformation of professions
by saying that they have shifted their ‘‘institutional
logics,’’ from fiduciary, public or idealistic to selfinterested, ‘‘corporate’’ or market-centred (for example, for the accounting profession, see Zeff, 2003a, b;
for accounting, architecture, and higher-education
publishing, Thornton et al., 2005).
This essay takes a different standpoint. It will
argue that there are sufficient indications that the
core values of legal ethics remain intact, despite the
strong pressures exerted by the managerial law firm.
We observe enhanced cooperation among national
professional bodies, the use of international codes of
legal ethics, and increased comparative legal ethics
research and teaching. All of these developments
foster the awareness that different legal systems share
the same core values of legal ethics. Likewise, state
regulation of the legal profession is concerned with
preserving the core values of legal ethics with the
objective of maintaining the lawyer’s role in
upholding the rule of law. Through a global consolidation of core values, legal ethics remains a
forceful determinant of the legal profession’s nature,
in spite of the development of the managerial law
firm. The persistence of these core values could be a
reason why the legal profession, unlike the accounting profession, has not been so severely struck by the
corporate scandals of the beginning of the 21st
century (see Shapiro, 2003 with respect to effective
conflict-of-interest avoidance).
The first part of this essay deals with the business
model of the managerial law firm and how it differs
from other forms of legal practice. The second part
will describe the tense relationship between the
managerial law firm and the core values of legal
ethics. The final section tracks the worldwide consolidation of the core values of legal ethics through
enhanced cooperation among professional networks,
comparative legal ethics research and teaching, and
present tendencies of state regulation of the legal
profession.
The business model of the managerial
law firm
The core values and rules of legal ethics do not
oppose the idea that a lawyer’s practice be managed
as a business. On the contrary, legal ethics are based
on the premise that private legal practice is able to
sustain itself and flourish. Any legal practice, be it a
sole practitioner or a law firm with more than 500
lawyers, could be viewed as ‘‘managerial’’ insofar as
it must employ resources efficiently and endeavour
to be profitable. However, if we left the discussion
here, we would deprive ourselves of distinguishing a
certain business model of legal practice that creates
specific challenges to legal ethics. For the purposes of
this article, we thus propose that the term ‘‘managerial law firm’’ be defined within the following
contours.
Target clients and client demands
Managerial law firms seek to represent large corporate clients with a high level of transactional activity
and significant international presence. The managerial law firm’s target clients include entities of large
corporate groups, banks, insurance companies, and
other large-scale professional investors. Of course, it
is not excluded that the managerial law firm may also
represent smaller companies, not-for-profit organizations or private individuals, but its main focus will
be on large corporate clients.
The targeted corporate clients regularly engage
external legal counsel for individual projects on a
case-to-case basis. They are sensitive to costs and
they have their own sophisticated legal management
systems, enabling them to monitor and evaluate
effectively the performance of external counsel
(Heinz et al., 2001, p. 348). While some may tend
to view the function of legal ethics rules as a compensation for the inability of clients to judge lawyers’
The Managerial Law Firm and the Globalization of Legal Ethics
performance (see, for example, Hadfield, 2000), this
is not applicable to the client market that the managerial law firm targets.
Long-term client–lawyer relationships, although
not impossible in such environments, are subjected
to permanent re-examination. When law firms
‘‘pitch’’ or take part in client-arranged ‘‘beauty
contests’’ for each client dossier, we can speak of a
culture of commodity relationships with high external counsel turnover to the detriment of relationship
lawyering with stable client bases (Baker and Parkin,
2006; Kritzer, 1999).
A targeted client dossier will often require legal
expertise in various jurisdictions and in multiple legal
practice areas. This is specifically relevant for complex matters that are often interlinked and are
heavily marked by global economic integration,
such as mergers and acquisitions, capital market and
securities transactions, competition, antitrust, and
intellectual property. In all of these, the managerial
law firm has incentives to propose one-stop solutions
in order to maximize business with clients, thereby
ensuring that no other competitor is retained to
work on other aspects of the same dossier (see also
Heinz et al., 2001, p. 344). To do this, the managerial law firm must expand its own reach across
borders, offering lawyers trained in different jurisdictions with different fields of expertise, to work on
common projects (Silver, 2007; Thomas et al.,
2001). The challenge for the law firm is to offer a
coherent, ‘‘seamless’’ service, that is, with a consistent quality level despite the dossier’s complexity and
cross-border nature.4
When law firms compete for individual client
dossiers and the targeted client, through its in-house
legal management system, has the skills to evaluate
the work of external counsels, the competition
becomes more severe than in other areas of legal
practice.
Corporate strategy, customer relations, and brand
development
Having to compete for clients on a case-to-case basis,
the managerial law firm’s management focuses on
generating competitive advantages. A professional
service firm must endeavour to make its services
more valuable to clients than those of competing
23
firms (Maister, 1993). The law firm must engage in a
systematic process of market analysis to anticipate
client demand and identify how prospective clients
value legal services (see Muir et al., 2004, p. 182).
The following presents the typical features of a
managerial law firm’s client-orientated approach:
• Full-time management: A managerial law firm
will appoint one, or a team of, managing partner(s) whose time is predominantly dedicated
to dealing with the firm’s strategic issues (and
not to legal work in itself). The managing
partner(s) will regularly seek assistance, either
from external management consulting firms,
and/or from non-lawyer management staff, to
implement a law firm’s strategy.
• Focus on business development: The managerial
law firm invests considerable resources in
business development activities independent
of actual client representation. Such activities
aim at developing and maintaining client networks, knowing and being able to anticipate
clients’ needs, and at the same time, making
clients aware of the law firm’s distinct qualities. Business development activities can take
various forms, as long as they offer the
opportunity to exchange information with
representatives of prospective clients. Examples of these are serving on boards of business
associations, attending or organizing conferences, round-table debates, and so forth.
• Performance measurement: In a strongly competitive environment, the managerial law firm
will be actively engaged in benchmarking
performance. It will systematically measure its
performance according to different criteria
and deduce from this analysis strategic
strengths and weaknesses. Law firm rankings
provide an aid to the managerial law firm’s
systematic performance measurement.5
• Communication of CSR programmes: Fairly
recently, managerial law firms have begun
communicating corporate social responsibility (CSR) programmes. They increasingly
mention environmental issues, community
involvement, charities, and employee welfare
as important concerns of the firm. In a recent
PriceWaterhouseCoopers law firm survey
(PWC, 2007), brand reputation, employee
Bjorn Fasterling
24
retention and attraction, as well as client
pressure with regard to CSR are key drivers
for firms in employing CSR programmes.6
Organizational elements
In offering ‘‘seamless’’ services that require manpower
and multiple capacities with a consistent quality across
multiple jurisdictions, the managerial law firm must
adopt an organizational structure with clearly defined
hierarchies and a centralized management conferred
with powers of command. Such organizational elements represent a departure from traditional legal
practice, with its informal governance based on
partnerships among independent equals. An intensive
recourse to the employee-lawyer and a flexible
business structure constitute the main organizational
elements of the managerial law firm:
• Intensive recourse to the employee lawyer: In managerial law firms, the equity partner is in the
minority. Most lawyers work as employees in
a distinct hierarchy as ‘‘associate,’’ ‘‘senior
associate,’’ ‘‘counsel,’’ and so forth. Additionally, it has become common to upgrade
employees to ‘‘non-equity partners’’ at an
intermediate stage towards full equity partnership. The above-mentioned law firm survey
(PWC, 2007) reports of ratios of up to six
employed lawyers to one equity partner, a
ratio unheard of in traditional legal practice.
Furthermore, traditional legal practice will
view the employee status of a newly recruited
lawyer as a transitional apprenticeship period
en route to equity partnership. For the managerial law firm, however, the permanently
employed lawyer is increasingly viewed as a
viable career alternative (see Baker and Parkin,
2006, pp. 1677–1678; Heinz et al., 2001,
p. 355).
• Flexible business structures: Keeping a high
number of employee-lawyers is also geared to
increase the profits of firm’s equity partners.
But since employing lawyers (and non-lawyer
personnel) means committing firm revenue to
the payment of salaries, high employee leverage is associated with high overhead costs.
The cost-intensive activity of the managerial
law firm provides managers with incentives to
advocate for more flexibility in a firm’s
financing opportunities and cost structures
while limiting its risks.7 The boldest suggestion so far is to open law firms to ownership
by a non-lawyer investing public, as is the
case in parts of Australia and soon, in the UK.
The managerial law firm’s pressure
on legal ethics
Legal ethics and the managerial law firm follow two
fundamentally different objectives, and the conflict
potential between them is high. Legal ethics is
concerned with the lawyer’s role in establishing just
relations between individuals and/or between individuals and the state, while the managerial law firm
seeks to assist clients with the legal aspects of their
commercial relationships.
The following does not intend to list in detail all
possible conflicts between a managerial law firm’s
practice and legal ethics. The intention here is to
show some basic conflicts between the frameworks
of the managerial law firm and the core values of
legal ethics. Three principal areas can be identified:
– first, a ‘‘seamless’’ international legal practice
enters into conflict with the basically national
design of legal ethics frameworks;
– second, the pronounced client orientation of the
managerial law firm questions the tenet in legal
ethics that a lawyer should not be dominated by
a single norm or interest;
– and finally, the client orientation, organizational
structure, and financing of the managerial law
firm potentially conflict with basic assumptions
about professional independence in legal ethics.
‘‘Seamless’’ cross-border legal practice and national
legal ethics
The rules of legal ethics are habitually formulated
through laws and jurisprudence, and are enhanced
by national, state, regional or local professional
The Managerial Law Firm and the Globalization of Legal Ethics
bodies with confined self-regulatory powers. We
will find abundant variants in the organizing and
enforcement of legal ethic frameworks throughout
different jurisdictions. It is not the purpose of this
essay to compare details. Suffice it to say that national law and national professional lawyer organizations will at least coordinate ethical frameworks,
their enforcement, and access to the legal profession.
The national character of legal ethics is challenged
by the extensive, cross-border legal practice of
managerial law firms. National ethics rules could
become impractical to apply when a lawyer or a
team of lawyers operate in several jurisdictions.
Despite the fact that national rules of legal ethics
share the same core values (see below), details can
vary considerably (Etherington and Lee, 2007;
Hazard and Dondi, 2004; Mark, 2001; Moore, 2005;
Terry, 2005). Even when the texts of the rules seem
identical, different cultural attitudes and institutional
environments lead to variant forms of application
and interpretation. A lawyer of a managerial law firm
working on a case involving more than one jurisdiction therefore easily becomes confronted with
conflicting rules, codes, and regulations.
• An example: A client in the USA retains a
USA-based law firm to perform the legal aspects of a corporate transaction involving
numerous targets in different jurisdictions.
The contract between the client and the law
firm provides for an extra payment to be made
to the law firm in the event of the transaction’s
success. Since German targets are involved,
the law firm invites a partner of its German
office to cooperate on the case. While reasonable contingency and other success-related
lawyer fees are in compliance with ethical
rules in the USA, they are, in principle, prohibited in Germany. The question is whether
the German lawyer can accept to work on the
case. The client contract will be subject to the
laws of a state in the USA, so that the German
prohibition of the success fee will not invalidate the contract. On the other hand, it is less
clear whether the German bar organization
should (and actually will) discipline the
German partner for practising law in Germany
under a success-fee regime valid in the USA.
25
Conflicts between national ethical codes are
habitually referred to the ‘‘double-deontology’’
principle (meaning that lawyers must comply with
the legal ethics rules of all jurisdictions where they
practice). Yet, the above example shows that indiscriminately accumulating national legal ethics rules is
either impractical or, if the double-deontology rule
is actually enforced, can paralyze international legal
practice in cases where national rules of legal ethics
contain incompatible provisions (see also Nicolson
and Webb, 1999, p. 62). The complex layering of
various national professional duties deserves a better
solution than a single conflict rule of double deontology. With regard to resolving conflicts between
legal ethics frameworks in international practice, the
most practical solution would be to design more
elaborate conflict rules that could use double deontology as a basic conflict principle but also take into
account specific types and situations. The formulation of more elaborate conflict rules could be
achieved through international networks of national
bar organizations as we will see below.
Perception of legal practice as a service versus balancing
of interest in legal ethics
The perception of legal practice as one which sells
legal services is reflected in website communications
or client newsletters of managerial law firms. Such a
perception is a prerequisite for any law firm seeking
to implement a strategy geared to generating competitive advantages. Management literature on the
legal profession willingly accepts the ‘‘commodity’’
perspective on legal practice. Spar (1997, p. 9) writes
that lawyers sell an:
…information based-service - a product whose value
lies in its customization, a product that is difficult to
stockpile or resell, and a product based inherently on
human, rather than physical, capital. Unlike many
service businesses, the services they sell vary substantially from one customer to the next.
Such a commodity perspective is difficult to
uphold, once you accept that legal ethics shapes the
nature of a lawyer’s practice. Consequently, Spar
(1997) does not make a single mention of legal ethics
26
Bjorn Fasterling
issues, or even the lawyer’s public commitment to
the rule of law, despite the fact that the rules of legal
ethics are essential factors of a law firm’s organization
and global expansion, the very theme to which Spar
dedicated her article.
From the standpoint of legal ethics, it would be
inaccurate to describe the lawyer’s professional role as
that of ‘‘providing legal services’’ to clients. Legal
ethics focuses on client representation and not on the
‘‘provision of legal services.’’ The difference goes
beyond mere terminology to the underlying meaning
of the lawyer’s work. If you provide services, you
seek to create value for clients. The legal representation of client interests is about serving the client
with justice, and thereby contributing to the rule of
law. However, even if we assume that providing legal
services to clients and client representation signify the
same activity in practical terms, the work-description
of the lawyer would still remain incomplete.
From the core values of legal ethics, we deduce
that a lawyer should serve multiple and sometimes
conflicting interests. An example can be read in the
preamble to the Council of Bars and Law Societies
of Europe’s (CCBE) Code of Conduct for European
Lawyers (CCBE, 2006a). A lawyer’s function would:
lay on him [the lawyer] a variety of legal and moral
obligations (sometimes appearing to be in conflict with
each other) towards the client, the courts and other
authorities before whom the lawyer pleads the client’s
cause or acts on the client’s behalf, the legal profession
in general and each fellow member in particular, the
public for whom the existence of a free and independent profession, […] is an essential means of safeguarding human rights in face of the power of the state
and other interests in society.
Similarly, Hazard and Dondi (2004) conclude
from a comparative examination of legal ethics
frameworks around the world that a lawyer should
not be dominated by a single norm or interest, adding
that a lawyer also has to make the various interests she
is serving concordant with her own interest of
earning adequate returns from practice. It becomes
clear that maintaining a delicate balance between
potentially conflicting objectives and interests is a
principal preoccupation of legal ethics, whose purpose is to preserve the lawyer’s role in contributing to
the rule of law, limiting power abuse, and protecting
individual human rights.
The managerial law firm’s focus on competitive
advantage leads to emphasizing the lawyer’s role as a
‘‘service provider,’’ which is fundamentally incompatible with the professional role underlying legal
ethics. This incompatibility does not prevent a
managerial law firm’s lawyers from complying with
the rules of legal ethics conferring them with duties
to interests other than those of the client. Nonetheless, the lawyer must then confront strong
motivational pressure to avoid entering into conflict
with such rules.
Another tendency that could lead to a deprioritization of the lawyer’s public role is the propensity
for measuring law firm performance. Rankings and
other forms of success measurement may, at first
sight, simply provide a benchmarking instrument for
law firms or offer useful information to potential
clients or job-seeking lawyers. However, a systematic benchmarking and ranking practice leads to a
neglect of the core values of legal ethics. To the
extent that a ranking or a success measure becomes
reputed and widely acknowledged, law firms may
feel pressured to change their priorities in order to
avoid the sanction of a bad score or ranking. The
striking point about law firm rankings and other
success measures is that the service of justice and the
justice system aspect of the legal profession are
broadly ignored. This is not due to a conscious neglect of a core value of legal ethics, but to the fact
that a lawyer’s commitment to justice and the justice
system is more difficult to quantify than factors such
as revenue, profit per equity partner or even client
satisfaction. In conclusion, the sole effort to quantify
the success of a law firm leads to a prioritization of
quantifiable over non-quantifiable values. This can
have pernicious effects on the authority of norms
based primarily on values which are less accessible to
quantitative assessment.
Pressures on professional independence
All codes of legal ethics will, in some form, express
lawyers’ needs for independence to fulfil their professional duties. This independence has two facets:
one is protective (a lawyer should be protected from
outside pressures that impair professional judgment);
and the other is self-disciplinary (lawyers should not
impair their professional judgment by pursuing
The Managerial Law Firm and the Globalization of Legal Ethics
personal interests or by succumbing to outside
pressures). Hazard and Dondi (2004, p. 147) list four
forms of independence which are open to ‘‘contaminating influences’’ likely to endanger a lawyer’s
independence. These forms are:
(a) independence from the state (including independence from the courts), (b) independence from improper influence of relationships a lawyer may have
with others, including other clients and a lawyer’s
colleagues, (c) independence from the client, and (d)
independence from improper influence of the lawyer’s
personal opinions about matters of politics, morality,
and the state of society. [Letters (a) to (d) inserted into
the quotation by the author.]
The managerial law firm increases the risk of
improper influences being exerted on (b) and (c).
With respect to (b), the managerial law firm
exposes lawyers, partners, and employee-lawyers
alike to managerial command structures and strong
internal competition. While equity partners compete
for a share of the firm’s net profits, employeelawyers compete for equity partnership. Most
employee-lawyers begin their careers with the
aspiration of becoming an equity partner. Evidence
for this attitude is the managerial law firm’s habitual
practice of recruiting young graduates as associates to
participate in a promotion-to-partner competition.
Galanter and Palay (1991) coined the term ‘‘tournament of lawyers’’ to describe how law firms base
their human resources strategy on a promotion-topartner competition to create greater leverage for the
firm’s human capital while preventing shirking by
non-equity lawyers within the firm. The ‘‘tournament,’’ despite being questioned (for example,
Rutherglen and Kordana, 1998; Wilkins and Gulati,
1998), is still widely accepted as an explanation for
law firm recruitment and career policies (Bainbridge,
2004; Heinz et al., 2001; Sokol, 2007).
Certain writers would presumably classify the
‘‘tournament’’ as an extreme form of ‘‘mercenary
culture’’ that would produce an ‘‘amoral transactional leadership style’’ within the profession
(cf. Sama and Shoaf, 2008, pp. 43–44). Without
pushing the problem that far, we could at least assert
that the internal competition within a law firm
strengthens motivations not to comply with legal
ethics rules and thereby increases conflict potential.
27
With regard to independence from the client,
severe competition for corporate client dossiers
results in a risk that an ethically stipulated client
representation develops into improper client influence. By making the creation of value for clients the
top priority, managerial law firms are under more
motivational pressure than other legal practices to
cede to influences that impair independent judgment (for case examples from US legal practice, see
Bainbridge, 2004). Some lawyers, facing strong
internal and external competition pressures, end up
not only violating ethical rules, but may also break
the law (for an instructive case example and in-depth
discussion, see Regan, 2004).
Global consolidation of the core values
of legal ethics through professional bodies
and state regulation of the legal profession
While the preceding section has shown how the
managerial law firm puts stress on legal ethics, this
section will describe the parallel development of a
global consolidation of the core values of legal ethics.
First, we will show how the core values of legal
ethics are being consolidated worldwide through the
international cooperation of national professional
bodies and an increase in comparative legal ethics
teaching and research. Then, we will summarize
essential regulatory developments that provide evidence for commitments of nation states to preserving
these core values, with the objective of placing
private legal practice in the service of the rule of law.
Global consolidation of the core values of legal ethics
through international codes of ethics and academic
research and teaching
We have seen that the internationalization of legal
practice through the managerial law firm challenges
legal ethics because of national and local structures.
However, processes of communication and wider
access to information brought about by globalization
not only cause economic integration and the related
increase of multi-jurisdictional legal practice; they
simultaneously facilitate international cooperation
among national bar associations, and encourage
28
Bjorn Fasterling
research and teaching of comparative legal ethics (for
a detailed historical account of international cooperation in legal ethics, see Terry, 2005).8
The most visible result of international cooperation
among national professional organizations is the
proliferation of international codes of legal ethics. The
International Bar Association has announced that it is
currently overhauling its International Code of Ethics
dating from 1988 (IBA, 1988). In 2002, the Union
Internationale des Avocats (UIA) published two
codes, the Turin Principles of Professional Conduct for the
Legal Profession in the 21st Century (UIA, 2002a) and
the Standards for Lawyers Establishing a Legal Practice
Outside Their Home Country (UIA, 2002b). The
Council of Bars and Law Societies of Europe (CCBE)
has recently updated its Code of Conduct for European
Lawyers (CCBE, 2006a), providing a number of
norms (that go beyond a mere double-deontology
rule) to clarify a lawyer’s ethical duties in cross-border
situations, and published a Charter of Core Principles of
the European Legal Profession (CCBE, 2006b). Apart
from these codes, we also find several codes of professional conduct applying to specific types of international legal practice, for example, international
commercial arbitration or pleading before international tribunals.9
We observe from the above that, despite divergence concerning details of national legal ethics
rules, there is a global consensus regarding core
values: all international codes of legal ethics express
the requirement for lawyers to safeguard independent judgment in order to fulfil their professional
duties. Another value is the lawyer’s obligation to
maintain confidentiality towards the client, with its
concomitant privilege of protection. Codes also
contain safeguards to avoid conflicts of interest and
refer to the traditional professional virtues of collegiality, honesty, and integrity. Finally, any international code of legal ethics will include a special duty
of service to justice and the justice system, and
emphasize that this service goes beyond the duty to
represent clients.
The objective of international codes is not to
unify or harmonize national legal ethics rules.
International codes of legal ethics pursue different
goals. The CCBE code of conduct, the UIA standards or the codes that apply in specific international
contexts seek to provide frameworks when national
rules of legal ethics are insufficient or inappropriate,
for example, in regulating cross-border activity and
situations of conflict among national ethical frameworks or regulating activity in contexts detached
from a national jurisdiction (such as commercial
arbitration, international tribunals, and so forth).
However, in the case of the CCBE Charter of Core
Principles or the UIA Turin Principles confined to
recalling the validity of the core values of the legal
profession, we find a more fundamental concern.
These codes take a clear stance on how we perceive
the lawyer’s role in society, by emphasizing that legal
practice essentially has a public function. This view
stands in contrast to a more market-orientated perception, in which a lawyer is a purely self-interested
economic agent in competition with other selfinterested agents for the provision of legal services
viewed as commodities in a market. The business model of the managerial law firm, as described
above, makes this perception appear plausible
because of exposure to strong competition and the
tendency to deprioritize the public function of the
lawyer. With the market-orientated perception
becoming more popular (also with academics) (for
an overview see Garoupa, 2008), the recent proliferation of ‘‘core values’’ serves as a strong reminder
of the importance of legal ethics in promoting the
rule of law, a constituent element of a democratic
society. If we wanted to preserve a market economy
and a democratic society without a legal profession
(that is, not regulated and disciplined by legal ethics),
we would have to suppose that market mechanisms
could effectively replace legal ethics in safeguarding
the rule of law. Strengthening the core values of
legal ethics is an alternative to admitting such a
premise.
The global consolidation of core values is brought
about not only by the proliferation of international
legal ethic codes and the cooperation among international bar organizations, but also by academic work
and professional training. The observation that,
despite divergence of rules in national legal ethics
frameworks, the legal profession around the globe
shares core values, is confirmed by authors of comparative legal ethics (for references, see note 8). Terry
(2005) provides information about an increased
interest in comparative legal ethics teaching and
training in the USA. Such training helps raise the
awareness of rule divergence and value convergence
among lawyers there. In Europe, comparative legal
The Managerial Law Firm and the Globalization of Legal Ethics
ethics training is less developed. The advance in the
USA could be explained, on the one hand, by the
wide presence of law firms from the USA in foreign
jurisdictions (see note 4), while European law firms,
with the exception of those from the UK, have
limited international presence and still often confine
their practice to their own jurisdictions. The relative
lack of interest in comparative legal ethics teaching
and training in Europe could also be explained by the
fact that even basic legal ethics courses are not or only
cursorily taught to members of the legal profession.10
Recent regulatory tendencies: preserving the lawyer’s
central role of serving the rule of law
When the UK government communicated that it
would reform the legal profession, it politically
marketed its project as ‘‘The Future of Legal Services
– Putting the Consumer First’’ (Department for
Constitutional Affairs, 2005). The Legal Services Act
of 2007 mentioned a number of regulatory objectives and listed ‘‘protecting and promoting the public
interest’’ and the ‘‘support of the constitutional
principle of the rule of law’’ as the first two items.11
This is a good example of the tension between the
‘‘market-centred’’ and ‘‘public’’ perceptions of the
legal profession in the context of the reform of
professional regulation. In this case, ‘‘public interest’’
received top place in the final version of the law.
Contrary to the government communication that is
largely inspired by economic perspectives on professional regulation, the legislator here is not fully
convinced that a reform of the legal profession be
only economically motivated.12 The final version of
the Act expresses that improving citizens’ rights and
access to justice remained a principal objective of the
reform (Goldsmith, 2008).
This example illustrates a trend observed in other
places: states are rethinking the structure of the legal
profession, which leads to reinvigorating rather than a
calling into question of the core values of legal ethics.
A main regulatory tendency is the transfer of
powers of regulation and professional oversight
from self-regulatory bodies to independent or state
authorities (as in the case of the UK with the
establishment of the Legal Services Board). Although
these changes were motivated by a certain disenchantment with self-regulation, they do not weaken
29
the core values of legal ethics defined above. We
view self-regulation not as a core value (see, however, CCBE, 2006b, which lists self-regulation
among its ‘‘core principles’’), as long as state regulation and oversight do not become so restrictive
that they impair professional independence.
The observation that state regulation has not
threatened, but on the contrary consolidated, the
core values of legal ethics applies to recent deregulatory tendencies. Literature on the transformation of
the legal profession tends to emphasize deregulation
(see, for example, Kritzer, 1999). However, deregulation and regulation have not led to deprofessionalization. More plausibly, they represent the
adaptation of the legal profession to the changes in
social, economic, and governmental environments
(see also Bachof and Martin, 1991). Adaptation is not
only marked by deregulatory tendencies, with regard
to the opening up of professional monopolies for
rendering legal services, in business structure, and in
entry to the profession, but equally by more intensive regulation to safeguard the core values of legal
ethics and the lawyer’s central role in contributing to
the rule of law, as we will discuss below.
Worldwide, we can distinguish between three
deregulatory tendencies in the market for legal services: the first is about opening up certain fields of
legal activity to non-members of the legal profession;
the second involves greater flexibility for law firms
to organize their business structures; and the third
concerns the integration of foreign-trained lawyers
in a national legal system.
• Loss of exclusivity: Here we note national legislation that allows other agents to engage in
certain types of legal activity formerly reserved
for members of the legal profession. Kritzer
(1999, p. 720) lists the loss of exclusivity of
the formal professions as one of the central
elements of what he calls ‘‘postprofessionalism.’’ We would remark, however, that the
loss of a lawyer’s exclusivity has, so far, always
been partial, that is, limited to certain types of
legal services, often small-scale or routine legal
tasks. It does not represent an assault on the
legal profession’s raison d’e╠étre, the upholding of
the rule of law.
• Flexible business structures: Greater flexibility
in organizing business structures concerns
30
Bjorn Fasterling
allowing multi-disciplinary practices (those
offering legal and other professional services,
such as audit and tax advice, under one
entity), or of offering more choices of entity
form. Formerly, in many jurisdictions, law
firms could neither enter into multidisciplinary practice nor adopt any entity form other
than a non-limited partnership. Today, many
jurisdictions are relaxing organizational restrictions in these respects. With regard to entity
choice, the final step, namely the opening
up of equity investment to nonprofessionals,
remains as an exception.
• Integration of foreign-trained lawyers in a national
legal system: This development is most advanced
within the European Union (EU), where the
fundamental freedoms of the internal market,
in particular, the freedom to provide services
and related European legislation, oblige European Member States to open the access for
foreign EU lawyers to a domestic market for
legal services (see Lonbay, 2005 for an informative overview).
Despite these developments, we may question
however whether the term ‘‘deregulation’’ accurately describes what is actually happening. Deregulation and regulation of the legal profession go hand
in hand. Hardly any project of deregulation is without regulatory safeguards to preserve the lawyer’s
role in promoting the rule of law. For example, in
Australia, where equity investment of nonprofessionals in law firms is now permitted, this
deregulatory measure was introduced with specific
regulatory obligations, such as those requiring
incorporated law practices to have a legal practitioner as
director responsible for the management of legal services to ensure compliance with legal ethics. It is too
early to predict whether the Australian measure will
succeed, serve as a model or even enhance the authority
of legal ethics, as Parker suggests (Parker, 2004).
Two examples of regulatory developments contrary to the deregulatory tendencies described above
are the prevention of conflicts of interest and the
strengthening of a lawyer’s so-called gatekeeper
obligations.
Conflict-of-interest regulation (regularly enhanced
by self-regulatory norms) obliges a lawyer to refuse
client representations when already engaged for an
adversary interest. Internal procedures that effectively
reduce the risk of such conflicts are to be established.
Some legal systems (for example, in the USA) apply
conflict-of-interest rules not only to the individual
lawyer but to an entire law firm, thereby preventing
lawyers of the same law firm from representing
adversary interests. Under such a regime, the possibility of a conflict of interest increases significantly,
the more the law firm grows and the more concentrated its targeted client market becomes. For this
reason, conflict-of-interest frameworks that are based
on such ‘‘imputation rules’’ must, in order to be
practical for large law firms, offer certain flexibility.
For example, they could offer the possibility that a
client may, under certain conditions, consent to the
law firm’s representation of an adversary interest (see
Griffiths-Baker, 2002). In legal ethics regimes where
conflicts of interest are not imputed to the lawyers
working within the same firm, clients are regularly
offered the possibility of raising complaints or litigating against law firms, with the argument that the
representation of adversary interests causes a breach of
duties. The threat of liability or disciplinary action
pressures law firms into examining possible conflicts
before accepting a client dossier. In legal ethics, the
conflict-of-interest rules still effectively prevent a
global law firm consolidation resembling that of the
accounting industry. Avoiding conflicts of interest
does not merely represent a demand from a client,
who may not wish that a law firm represent interests of
an adversary, but it is also in the public interest. A
lawyer serves the justice system by being an independent, if partial, representative of a party. This is in
disagreement with Heinz et al. (2001, p. 355), who
say that there is nothing ‘‘inherent in the character of
legal services that would prevent a substantially greater
concentration of the businesses in larger firms’’.
In our opinion, legal practice is inherently
adversary, and therefore, more sensitive to effective
conflict-of-interest provisions than other professions
(see also Hazard and Dondi, 2004, pp. 193–194,
Shapiro, 2003).
Another area where the conduct of lawyers is
being strongly regulated is the state’s use of lawyers for law-enforcement purposes, even against
the interests of clients. Such law enforcement is
particularly relevant for practice areas where legal
advice and services are intimately connected with a
The Managerial Law Firm and the Globalization of Legal Ethics
company’s business activities. In some jurisdictions,
lawyers are being held to report on material violations of securities laws (see, for example, Securities
and Exchange Commission, 17 CFR Part 205), or
on suspicious transactions to combat securities fraud,
money-laundering or terrorist financing (see for
example European Directive 2005/60 EC). A lawyer’s enforcement function is generally justifiable by
the core values of legal ethics that view the lawyer as
an independent agent of justice, with obligations to
the integrity of the justice system (although it conflicts with other core values of legal ethics, in particular, with maintaining client confidentiality). The
lawyer’s enforcement function is incompatible with
viewing legal practice exclusively as providing legal
services to clients. Proposed and existing legislation,
as well as the debates they prompt, are an expression
of the efforts to bring legal ethics to bear on establishing new delicate balances in the face of combating illegal activities.
Conclusion
This essay contrasts two parallel developments: the
emergence of the managerial law firm that puts
pressure on the core values of legal ethics around the
world, and the consolidation of the very same core
values through international cooperation of national
bar associations, comparative legal ethics teaching
and research, and recent regulatory tendencies.
Although these developments seem, at first sight,
contradictory, this essay proposes a more coherent
picture. We have shown how the consolidation of
the core values of legal ethics rests on the universal
common interest in maintaining the lawyer’s essential role in promoting the rule of law. The managerial law firm pressures legal ethics regimes into
adapting legal ethics rules without this leading to a
change in core values. A change in these core values
could only occur if the individual interests of clients
and lawyers were to prevail over the common
interest in the rule of law.
Notes
1
In this article, we will apply the term ‘‘legal ethics’’
in its most common understanding as a subcategory of
31
applied ethics. It is not only the sum of laws, jurisprudence, and norms of lawyers’ professional organizations
that regulate the lawyer’s profession, but also the manner in which they are put into practice (see also Hazard
and Dondi, 2004, p. 2; Nicolson and Webb, 1999,
p. 5). When we refer only to the rules, we will speak
of the ‘‘rules of legal ethics.’’
2
The term ‘‘core values’’ could mean ‘‘core principles’’ or ‘‘fundamental principles’’ (see also Goldsmith,
2008).
3
The theory of ‘‘archetype changes’’ towards a
‘‘managed professional business’’ is disputed, in particular, with regard to legal practice (see, for example, Ackroyd and Muzio, 2007). In an empirical study of UK
law firms, Pinnington and Morris (2003) show that
changes in structure and systems coexist with a continuity of professional values, contrary to an ‘‘archetype’’
change.
4
The international expansion of USA-based and
UK-based law firms has been extensively documented
in academic literature (see, for example, the work of
Silver, 2002, 2007; Thomas et al., 2001; Sokol, 2007;
Spar, 1997). In this literature, we find explanations of
why American (and more specifically New York-based)
and UK (and more specifically, London-based) law
firms have so far been the most influential in the market for legal services. The geography of law firm expansion, however, is not of essential interest to this article.
5
For example, the American Lawyer ‘‘Global 100’’
regularly ranks law firms throughout the world according to various categories such as most revenue, average
number of full-time lawyers, and profits per equity
partner. With the ‘‘FT 50’’, the Financial Times publishes a journalistic ranking of ‘‘innovative’’ law firms.
Bloomberg regularly publishes a global ranking for
mergers and acquisitions (M&A) practices based on the
total value of transactions handled by a law firm.
6
What is striking is that the language and content of
law firms’ CSR communications differ little from those
of their prospective clients. Only a few law firms focus
on social responsibility issues typical of the legal profession, such as serving to improve the justice system or
engagement in human-rights affairs and so forth. An
explanation could be that law firms prefer to model
their communication on that of their prospective clients
to demonstrate a closer identification with client preoccupations.
7
To date, the most popular form for the managerial
law firm is the limited liability partnership (LLP) found
in the UK and USA. In the USA, the LLP is, in principle, a partnership, where each partner is nonetheless
shielded from the negligence and misconduct of other
partners, and, in some cases, also shielded from the
32
Bjorn Fasterling
debts of the firm. The UK form is not a partnership but
a corporate entity without shareholders (just members);
it largely follows the rules of an incorporated company.
Despite its name, the LLP resembles a corporation more
than a partnership. Recent findings that ‘‘partnership
forms of governance’’ are best suited to ‘‘knowledge
workers’’ (see, for example, Greenwood and Empson,
2003) should therefore be reviewed, at least with
respect to the managerial law firm.
8
Comparative legal ethics has become a veritable
branch of academic study. It is thus impossible to cite
all relevant contributions. We could mention Hazard
and Dondi (2004), Barcelo and Cramton (1999),
Godfrey (1995), and Terry (for example, 2005, 2007) as
an introduction to the topic.
9
The most prominent example would be the International Criminal Court’s (ICC) Code of Professional
Conduct for Counsel of the International Criminal Court
(ICC, 2005). We can also note a trend towards a proliferation of professional codes for international arbitrators
(see Rogers, 2008).
10
For example, in Germany, the legal education curricula of most states do not provide for any obligatory
legal ethics courses, neither during university studies nor
during the professional internship period (Referendariat). In France, professional deontology is regularly
taught in lawyer school (Ecole des Avocats), yet only as
a subtheme of an introductory course. In the UK, legal
ethics is one subject of the Bar Vocational Course for
Barrister qualification. Post-qualification legal ethics
training is unusual in all three jurisdictions.
11
See part 1, paragraph 1 of the Legal Services Act,
2007 (c. 29) available at http://www.opsi.gov.uk/acts/
acts2007/ukpga_20070029_en_1 (last visited 21 December 2008).
12
In economic literature, professional services are
often referred to as ‘‘credence goods.’’ According to this
literature ‘‘information asymmetry’’ would be the main
source of failure of professional markets, because the
consumer could not judge the quality of a service as
well as the expert who offers it, and regulation is justified where the market equilibrium cannot correct such
market failure efficiently (see Garoupa, 2008).
Acknowledgements
The present article has benefited from the helpful comments of Jean-Luc Arregle, David Frenkel, Jutta von
Falkenhausen, and the participants of the Annual
Conference of the European Business Ethics Network
in Antalya (2008). Finally a thank you goes to Christine
Rivenq, who has reviewed the English language.
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