This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.
Chapter
11. Alternative dispute resolution
Chapter
9. Negligence and lawyers
This chapter examines the circumstances in which a barrister and solicitor can be sued in negligence or for breach of contract. Clients can sue a solicitor based on the law of contract, the law of fiduciary duty, and the law of negligence. In general, a client is going to face an uphill battle in suing a solicitor or barrister. In relation to a breach of contract, it can be difficult to establish the breach of reasonable skill. In relation to negligence, proving breach of a duty of care and the causation of a loss is problematic.
Chapter
10. Litigation
This chapter explores the ethical issues that arise around litigation. It discusses theories of litigation, including disputes over whether litigation is ‘good’. The attitude that anything that helps a client to win in litigation is justified is rarely accepted these days, and there is a need for lawyers to weigh up their duties to the court and to their clients. The chapter covers the adversarial system of litigation in England and Wales, and inquisitorial adjudication. This can create tensions for lawyers between their duties to their clients and their duties the justice system and to the general public. The chapter also covers both criminal and civil litigation proceedings. In addition, the chapter considers advocacy services and the duties that litigators owe to the court.
Chapter
12. Third parties
This chapter explores how lawyers can balance their obligations to promote their clients’ interests and their obligations to third parties. While there are circumstances in which duties are owed to third parties, these are limited. The law and ethical codes struggle to ensure that, even when these duties are imposed, they are not used to undermine the relationship between lawyer and client. The regulations ensure that the lawyer never acts against the best interests of the client. The chapter explores the guidance issued by the professional codes of practice. It also looks at the practice of giving an undertaking, which is an important aspect of some lawyer’s work.
Chapter
14. Lawyers’ social responsibilities
This chapter examines the responsibilities that lawyers have to society and the greater good. While the professional codes tend to focus on duties to clients, there are some limited duties to the public good. These are found in the duties under the criminal law, and the broader duty to the court and justice system. Lawyers also recognise an obligation to the greater good by means of their pro bono work. However, this is not undertaken by every lawyer. A particularly topical issue is the extent to which duties to respond to the climate emergency should be balanced with their duties to clients. Some lawyers increasingly present a public profile as advocates for certain causes or political positions and this can create problems.
Chapter
15. Applying ethical theories
This chapter explores the application of the principles discussed in the preceding chapters to specific cases. It imagines how four lawyers might respond to three different scenarios. The first is taken from criminal law. The other two are taken from commercial law and family law. The four lawyers represent different schools of thought on lawyers’ ethics. This gives readers the chance to think through how taking a different general ethical approach might impact on their response to a particular scenario. It also might help readers more clearly identify which broad ethical theory they support. It shows how ethical disputes can have considerable practical significance.
Chapter
2. The social context of the legal profession
This chapter looks at lawyers in a broad social context. Lawyers hold a position of privilege within society by virtue of their knowledge about the law. It explores why lawyers have this special status and the role that they play in the broader society. This is coming under challenge as a range of other individuals and groups seek to take on what might be traditionally seen as legal work. There is also a tension between the wish to maintain the integrity of the legal profession, while increasing access to it. The chapter shows that the legal profession is under challenge from a number of directions.
Chapter
4. The regulation of the legal profession
This chapter considers who is allowed to become a solicitor or a barrister. It also considers what training they must have completed. The profession of solicitor has recently undertaken some radical, and controversial, changes in relation to training. The chapter goes on to examine the nature of the ethical guidance issued by the profession through its Codes of Practice. It sets out the general principles which underpin the guidance for solicitors and barristers. There is discussion of the different ways in which the legal professions are regulated. The work of the Solicitors Regulatory Authority (SRA) and the Bar Standards Board (BSB) is explained.
Chapter
13. Lawyers’ social responsibilities
This chapter examines the responsibilities that lawyers have to society and the greater good. While the professional codes tend to focus on duties to clients, there are some limited duties to the public good. These are found in the duties under the criminal law, and the broader duty to the court and justice system. Lawyers also recognise an obligation to the greater good by means of their pro bono work. However, this is not undertaken by every lawyer.
Chapter
15. Applying ethical theories
This chapter explores the application of the principles discussed in the preceding chapter to specific cases. It imagines how four lawyers might respond to three different scenarios. The first is taken from criminal law. The other two are taken from commercial law and family law. The four lawyers represent different schools of thought on lawyers’ ethics.
Chapter
2. The social context of the legal profession
This chapter looks at lawyers in a broad social context. Lawyers hold a position of privilege within society by virtue of their knowledge about the law. It explores why lawyers have this special status and the role that they play in the broader society. It shows that the legal profession is under challenge from a number of directions.
Chapter
3. The regulation of the legal profession
This chapter considers who is allowed to become a solicitor or a barrister. It also considers what training they must have completed. The chapter goes on to examine the nature of the ethical guidance issued by the profession. There is discussion of the different ways in which the legal professions are regulated. The work of the Solicitors Regulatory Authority (SRA) and the Bar Standards Board (BSB) is explained.
Chapter
10. Alternative dispute resolution
This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. It also considers what attracts clients to use these forms of dispute resolution.
Chapter
11. Third parties
This chapter explores how lawyers can balance their obligations to promote their clients’ interests and their obligations to third parties. While there are circumstances in which duties are owed to third parties, these are limited. The law and ethical codes struggle to ensure that, even when these duties are imposed, they are not used to undermine the relationship between lawyer and client. The regulations ensure that the lawyer never acts against the best interests of the client.
Chapter
8. Negligence and lawyers
This chapter examines the circumstances in which a barrister and solicitor can be sued in negligence or for breach of contract. Clients can sue a solicitor based on the law of contract, the law of fiduciary duty, and the law of negligence. In general, a client is going to face an uphill battle in suing a solicitor or barrister. In relation to a breach of contract, it can be difficult to establish the breach of reasonable skill. In relation to negligence, proving breach of a duty of care and the causation of a loss is problematic.
Chapter
9. Litigation
This chapter explores the ethical issues that arise around litigation. It discusses theories of litigation, including disputes over whether litigation is ‘good’. The chapter covers the adversarial system of litigation in England and Wales, and inquisitorial adjudication. It also covers both criminal and civil litigation proceedings. In addition, the chapter considers advocacy services and the duties that litigators owe to the court.
Chapter
9. Making Best Use of Law to Define Issues
This chapter discusses the use of the legal knowledge in practice. A good general working knowledge of legal principles for effective legal practice should enable a lawyer to get initial ideas about the legal shape of a case so as to be able to draw up a proper research plan. Without a good general knowledge it can be difficult to know where to start, or to spot areas of a case that might require legal analysis. The chapter explains the use of practitioner sources (i.e. statutes and statutory instruments, case law, books and journals, online resources, and other lawyers); the importance of strategic legal research; planning research and presenting findings; the ways in which law is used in litigation; and combining law and fact to define a case. Once full analysis of facts and law has been put together to define a case, the resulting legal elements and the factual allegations that show the legal elements comprise the issues in the case. These issues are then the focus for all decisions on procedure and evidence, and for case management once proceedings are issued.
Book
A Practical Approach to Effective Litigation analyses the key skills needed to handle a case effectively. At a time of rapid and wide-ranging change in the delivery of legal services, the current edition reworks the text to take into account the implications of the implementation of the Jackson Review, and to see effective litigation clearly in the context of concerns about funding, case management by the court, costs, and the growing use of alternative dispute resolution. The volume has a strong focus on the needs of the legal practitioner, the decisions to be taken at each stage of a case, and the criteria to apply in making those decisions. This is all securely based in references to relevant Civil Procedure Rules and decided cases, with checklists and commentary to assist in the project management of a case. The work also focuses on the skills a lawyer needs to work effectively. This includes skills in dealing with a client, drafting legal documents, and presenting a case in court. Throughout the work the emphasis is on demonstrating how to use law effectively, how to develop a case, and how to present persuasive arguments. Lawyers operate in an increasingly complex environment, faced with challenges in funding a case, in managing a case to avoid sanctions, and in using complex rules to best effect. The work addresses the use of legal knowledge and skills within this rapidly changing context, bearing in mind not least that the pace of change is likely to continue with the developing use of IT, and the widening use of alternative business structures.
