LEGAL ETHICS Volume 17 . Part 2 . 2014 

Hart Publishing is pleased to let you know that Volume 17. Part 2 of Legal Ethics is now published.  3 Articles with Canadian content.

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Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms

Margaret Thornton

Abstract: Although women comprise almost 50 per cent of the practising legal profession in Australia and elsewhere, numerosity is insufficient to overcome the ‘otherness’ of the feminine in corporate law firms. Despite measures to recognise the ethic of a balanced life for those with caring responsibilities, these initiatives are undermined by the contemporary imperative in favour of competition. This article argues that there is a hypermasculinist sub-text invoked by the media reporting of a flurry of mergers between super-élite London-based global law firms and Australian firms with an eye to expansion in the Asia-Pacific. It is suggested that the incommensurability of the discourses of flexible work and hypercompetition symbolically revives and sustains the masculinity of super-élite law firms as the gender tipping point draws nigh. To illustrate the thesis, the representation of the two discourses in the print media between 2011 and 2012 are considered, drawing primarily on The Times (London) and The Australian(Sydney). 

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The Culture of Bullying in Australian Corporate Law Firms

Joanne Bagust

Abstract: Despite the fact that corporate law firms attract some of the most intelligent and productive minds in business today, they have failed to cultivate a workplace that facilitates healthy and balanced lives for their practitioners. Workplace stress in the sector is manifest in a culture which continues to sanction ‘rite of passage’ work practices which bolster earnings for those at the apex but are proving sickening to many. This culture inhibits basic ethical human interaction based on decency and respect and cultivates oppression through fear of failure. Not surprisingly then, bullying is tolerated and lawyer attrition is rife, particularly for junior women lawyers.

This article considers the impact of bullying in Australian corporate law firms. Foucauldian thought is utilised in order to better understand first, how the organisational culture in major law firms continues to authorise practices which prove injurious to practitioners’ health and secondly, the resulting lawyer attrition. It is argued that the ‘disciplinary technologies’ being adopted by management function to assure an economy of power relations which not only facilitates conformity with the values and imperatives of the firm but also, the quelling of subversion and resistance to its effects.

Standpoint theory is adopted to examine the workplace harms being borne by junior lawyers through a narrative ‘Snapshot’ of the experience of a female, mature-aged, junior lawyer working as a solicitor at a top tier Australian corporate law firm. Her detailed account illuminates recent quantitative empirical research into the experiences of Australian women lawyers and lays bare the culture of fear and workings of power, violence and marginalisation within the firm.

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‘Love Law, Love Life’: Neoliberalism, Wellbeing and Gender in the Legal Profession—The Case of Law School

Richard Collier

Abstract: In recent years the issue of wellbeing has moved centre stage across jurisdictions within a wide range of debates relating to economic, cultural and political changes associated with neoliberalism. This is the backdrop against which the legal profession has itself begun to pay increasing attention to the issue of wellbeing in law. This article explores an aspect of this debate that has tended to be neglected thus far, namely the relationship between the neoliberal corporatisation of universities, gender and questions of wellbeing in the legal profession and law schools. It assesses the meaning of wellbeing in the context of law and considers changes in universities that, it is argued, have reshaped understandings of the academic subject and (legal) academic labour in ways that have potential implications for this debate around wellbeing in law. Focusing on gendered dimensions of these shifts, the article argues that the growing literature around wellbeing raises significant questions about legal ethics, values and gender equity in law, as well as about legal professionalism and the place and purpose of legal education and research. Arguing against an individualising logic that would depoliticise personal experience, the paper suggests a complex re-gendering of social relations is having contradictory implications for understanding these contemporary debates around wellbeing, equality and diversity in law.

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Queer Insights on Women in the Legal Profession  

Jena McGill and Amy Salyzyn    flag-of-canada

Abstract: In the past decade, members of the legal profession in Canada and other common law jurisdictions, including England and the United States, have directly engaged the question of how to retain women in private practice environments.  As a result, the ‘retention of women’ discourse has emerged as a dominant lens through which issues of gender equity in the legal profession are identified and analysed. The goal of this article is to build upon existing critiques of the ‘retention of women’ discourse by asking what insights Queer theory might bring to ongoing debates about the ‘retention of women’ in the legal profession.  The analysis charts the rise of the ‘retention of women’ issue in Canada and other common law jurisdictions and connects the ‘retention of women’ discourse with Queer legal theory.  Drawing on select tenets of Queer theory, the article then considers how the ‘retention of women’ debate reconstitutes conventional notions of lawyer professionalism and recasts the boundaries of ‘insider’ and ‘outsider’ lawyers.  The article concludes, first, that Queer theory is a useful theoretical lens though which discussions about the ‘retention of women’ in the discourse of legal professionalism can be meaningfully examined, and, second, that a Queer theory lens reveals fundamental limitations of existing approaches to the ‘retention of women’ question in the common law world.

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Expanding the Pathways to Gender Equality in the Legal Profession

Hannah Brenner

Abstract: The problem of gender equality among lawyers has been a subject of significant research, study and action across the globe. It is well known that despite women’s entrance into law school in relatively equal numbers to men over the past few decades, they remain significantly under-represented in positions of leadership and power across sectors of the legal profession. Progress has come to a standstill, making this a particularly critical time to examine the ways we conceptualise the problem and rethink the solutions. The legal profession, as a gatekeeper of equality and as an institution committed to the preservation of rights, should be emblematic of gender equality. Responsibility for addressing the problematic gender dynamics is something that lies with the entire profession and should be framed as a matter of ethics. To date, the conversation on this issue has been relatively insular and this essay argues for an expansion of this conversation to include the entire bar. Toward this end, this essay suggests that there are new ways to think about pathways to gender equality by expanding the boundaries that have defined the problem. First, it has been defined in a way that focuses almost exclusively on those already engaged in the practice of law, often at the highest echelons of (private) practice to the exclusion of other sectors, especially legal education.  Second, the existing movement has almost unilaterally focused on the structural impediments within the legal system or the characteristics of law practice itself that exist as roadblocks to women, ignoring significant barriers that are not necessarily unique to women lawyers but impede the progress of women generally. The movement  also often fails to extend beyond geographic borders of a particular country, thereby eliminating the potential for a global conversation. In crafting solutions, there has been little acknowledgement of the role of legal education.

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The Ethics of Relational Jurisprudence

Hilary Sommerlad

Abstract: The Ethic of Care was one of the most significant strands of the ferment of revolutionary ideas and practices which emerged during the period from, roughly, the mid 1960s to the early 1990s.  The feminist critique of rights based discourse and the social imaginary which it inspired shared many of the features of other critical movements.   Further, elements of its utopian vision of a society grounded in connectedness, compassion, reciprocity and particularism, its anti-legalism and call for a relational jurisprudence have either been realised or remain influential.  Its critique of law is therefore of more than historical interest.  It was, however, flawed by its apparent acceptance of the law’s claims to impartiality and neutrality.  The main part of the paper will, therefore, be a discussion of the development of the English common law, in which it will be argued that the persistence of archaic discourses, together with law’s imbrication in all aspects of social life, necessarily generates reasoning which is not grounded in impartial, abstract principles but is rather routinely contextualised by pre-existing power relations.  It will further argue that the critique overlooked the extent to which the discourse and structures of community and the practice of ‘care’ have been sources of oppression, whilst aspects of formal legal discourse are fundamental to improving women’s status. This point is highlighted by the role of neo-liberal and neo-conservative discourses and policies in realising some features of ‘Difference Feminist’ thought, and the paper will conclude by considering how the erosion of rights in England and Wales is impacting particularly severely on women.

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A Spotlight on Judicial Regulation in Australia

Suzanne Le Mire and Gabrielle Appleby

The Trials, Tribulations and Troubling Revelations of Government Lawyers in Canada

Micah B Rankin  flag-of-canada

Conflicts of Interest in Canada: The McKercher Decision  

Alain Roussy  flag-of-canada

The Former Legal Director of the London Times, Legal Professional Privilege and the Duty Not to Mislead the Court in England and Wales

Lisa Webley


Four reviews of Robert K Vischer, Martin Luther King Jr and the Morality of Legal Practice: Lessons in Love and Justice

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