Od ogólności do pozorności (moralnej). Próba refleksji interdyscyplinarnej na marginesie rozważań nad etyką szczegółową.
published in: Etyka. Deontologia. Prawo, P. Steczkowski (red.), Rzeszów, Poland 2008;
Post - conference Book cover (designed by me):
http://www.koprodukcje.pl/papers/etyka_deontologia_prawo_red_psteczkow
english abstract soon.. english abstract soon..
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Capital Markets, Globalisation and Global Elites
by John Flood
TRANSNATIONAL LEGAL PROCESSES - GLOBALISATION AN DPOWER DISPARITIES, Michael B. Likosky, ed., pp. 114-134, Cambridge University Press, 2002
Globalization is forcing various groups to come together to create a system of private ordering. Capital markets is... more
Globalization is forcing various groups to come together to create a system of private ordering. Capital markets is used as an example of the interaction of elite law firms, investment banks.
Keywords: globalisation, capital markets, investment banks, law firms
Normative Bricolage: Informal Rule Making by Accountants and Lawyers in Mega Insolvencies
by John Flood
Co-authored with E Skordaki and published in GLOBAL LAW WITHOUT A STATE, G. Teubner, ed., pp. 109-131, Dartmouth: Aldershot, 1997
The Maxwell bankruptcy was the first big international insolvency, one that moved into primary proceedings... more The Maxwell bankruptcy was the first big international insolvency, one that moved into primary proceedings simultaneously in London and New York. This set up a battle between British administration and US Chapter 11. The intervention by certain individuals who had thought about the consequences of such bankruptcies, including lawyers and judges, enabled a private system of law to emerge to handle these incommensurable systems.
The Cultures of Globalization: Professional Restructuring for the International Market
by John Flood
PROFESSIONAL COMPETITION AND PROFESSIONAL POWER: LAWYERS, ACCOUNTANTS AND THE SOCIAL CONSTRUCTION OF MARKETS, pp. 139-169, Y. Dezalay & D. Sugarman, eds., Routledge 1995
An analysis of how large law firms became part of the globalization process at the end of the 20th century. The paper... more An analysis of how large law firms became part of the globalization process at the end of the 20th century. The paper looks at how globalization and culture influence each other and how professional services are treated. It examines what law firms do in globalization and how the rise of the MDP was initially perceived as a challenge to the hegemony of the law firm. The paper has an enduring interest as the UK Clementi review of legal services revives many of the hopes and fears present at that time.
Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice
by John Flood
The rise of the large global law firm is analyzed. The analysis covers the reach of large law firms, their different... more
The rise of the large global law firm is analyzed. The analysis covers the reach of large law firms, their different types of work, and the ways in which they construct legal arrangements to enable transnational business. This entails looking at what lawyers actually do. Professionalism and issues of multidisciplinary practice are also considered.
Keywords: large law firms, globalization, transnational, international, lawyers
Resurgent Professionalism? Partnership and Professionalism in Global Law Firms
by John Flood
published in REDIRECTIONS IN THE STUDY OF EXPERT LABOUR, S. Ackroyd, G.D. Muzio, J.F. Chanlet, eds., Palgrave, 2008
The industrialization of legal practice is leading to an increased tension between professionalism and business as... more The industrialization of legal practice is leading to an increased tension between professionalism and business as varieties of the prevailing ethos in large law firms. Using historical and biographical data of law firms this tension is examined with the result that professionalism is, on the legal profession's own terms, dying out. Only in rare niche, smaller firms can residues of professionalism be located.
Will There Be Fallout from Clementi? The Global Repercussions for the Legal Profession after the UK Legal Services Act 2007
by John Flood
Miami-Florida European Union Center Jean Monnet/Robert Schuman Paper Series, Vol. 8, No. 6
The paper presents the historical arguments that led to the Clementi review of the legal profession and its... more
The paper presents the historical arguments that led to the Clementi review of the legal profession and its culmination in the Legal Services Act 2007. There were two strands: one based on consumerism (too many complaints about lawyers' services); the other based on a sustained investigation by the competition authorities into professions' restrictive practices (anti-competitive unless proved in the public interest). These led to the abandonment of traditional forms of organization for lawyers' practices (alternative business structures) and the imposition of a new regulatory structure for the profession (oversight and frontline regulators).
In the second part of the paper I examine the trends in lawyers' practices as currently pursued and as envisaged by the Act as aligned with our conceptions of professionalism. Using two hypotheticals: Tesco Law, and Goldman Sachs Skadden, I chart a move from professionalism to deskilling and proletarianization in the legal profession, not unlike that which existed in the 19th century.
This dystopian view, which is essentially a top down conception of the legal industry, is contrasted with a more optimistic view based on the changes in the idealization of careers and life as represented by Generation Y. This is augmented by the changing nature of work, ie, post-Fordist, within organizations which in a number of ways escapes control and measurement because the distinctions between production and consumption, work and leisure allied with distributed network forms of production blur the boundaries that we have taken for granted. In contrast to the socio-economic approaches, I argue that we must examine conceptions of career, inclusion and exclusion, vocation, and community in order to understand how the professions will adapt to the postmodern condition.
Straight There No Detours: Direct Access to Barristers (Report 2008)
by John Flood
Co-authored with Avis Whyte: report for the Bar Council
With the inception of the Legal Services Act 2007 following the Clementi Report on new ways of providing legal... more
With the inception of the Legal Services Act 2007 following the Clementi Report on new ways of providing legal services in the UK, the Bar is moving to alter the way it practices. Traditionally, the Bar has been a referral profession relying on solicitors and other professionals to instruct barristers when legal opinions or advocacy is sought. In recent years the Bar has attempted to open the barristers' profession to more direct access from clients thus bypassing solicitors.
This has had a mixed reaction among barristers and barristers' clerks. Some see it as the route to a modern diverse profession while others see it as potentially harming these traditional relationships between barrister and solicitor that have been built up over many years. Among solicitors this has been met by their own moves to become advocates in the higher courts.
The report presents findings from research carried out among barristers, clerks, chambers chief executives, and users. Data were collected via interview, survey, and documentary sources. It shows that barristers represent value for money for clients because of lower overheads than solicitors. But the current rules in place that regulate how barristers carry out direct access work do more to hinder than encourage users.
The report concludes that since the Legal Services Act will permit "alternative business structures" which will directly compete with barristers, and solicitors, an expansion of direct access work is one way of countering the effects of these changes.
Lawyers As Sanctifiers: The Role Of Elite Law Firms In International Business Transactions
by John Flood
Indiana Journal of Global Legal Studies vol 14, 2007
International large law firms are vital to the globalization of business transactions. Their role is generally ignored... more International large law firms are vital to the globalization of business transactions. Their role is generally ignored however. This paper analyzes their role using a theoretical gloss derived from Luhmann and the Jesuits. Various examples of transactional work are presented to illustrate the sanctification role.
Lawyers, Law Firms and the Stabilization of Transnational Business
by John Flood
with F. Sosa in Northwestern Journal of International Law and Business vol 28, pp 489-525, 2008
Globalization is having profound effects on the practice and the organization of law. In the field of cross-border... more Globalization is having profound effects on the practice and the organization of law. In the field of cross-border transactions the role of the state and its legal system has diminished such that private ordering through contracting is now the key mode of lawmaking. The vast majority of private ordering is undertaken by large law firms with international practices. Moreover, these law firms tend to adopt Anglo-American common law principles when putting together transactions. Yet within Europe there is competition from the law firms of the civil law countries, which are becoming adept at identifying markets not fully taken over by the American and English firms. But in order to understand the roles of lawyers in such cross-border transactions, we start from Abel and Lewis' question: what is that lawyers do? By using a number of case studies of transactions and disputes, we attempt to theorize how it is that lawyers create enabling and support structures for transnational business. We draw on Luhmann's ideas of stabilization of expectations and Gilson's depiction of lawyers as transaction cost engineers to help explain our findings.
Ambiguous Allegiances in the Lawyer-Client Relationship: The Case of Bankers and Lawyers
by John Flood
(Revised May 2009) The relationship between law firms and banks has a long history. Bankers and lawyers constantly... more
(Revised May 2009) The relationship between law firms and banks has a long history. Bankers and lawyers constantly work together on transactions so that their relationships are deep and enduring. Through the use of ethnography and interviews this paper examines this relationship and that of the lawyer and client. Because of the unusually tight relationship between bankers and lawyers, the lawyer-client relationship needs to be reconstituted. It is not possible to perceive it as merely a dyadic relationship; it is now multi-polar. Even though clients may be sophisticated repeat players, clients are caught up in a relationship where they will always be secondary to the primary relationship of banker and lawyer.
Keywords: lawyer-client, banks, lawyers, transactions
The Vultures Fly East: The Creation and Globalisation of the Distressed Debt Market
by John Flood
ADAPTING LEGAL CULTURES, D. Nelken, ed., pp 257-278, Oxford: Hart, 2001
Corporate insolvency and bankruptcy have given rise to new markets, including global ones, in which lawyers have been... more Corporate insolvency and bankruptcy have given rise to new markets, including global ones, in which lawyers have been key players. This paper examines the role of lawyers in informal restructuring through an analysis of the London Approach and the rise of the distressed debt market.
The Transformation of Access to Law and Justice in England and Wales 60 Years On
by John Flood
It is the 60th birthday of legal aid in the UK. The question asked in this paper is: has legal aid reached the end of... more
It is the 60th birthday of legal aid in the UK. The question asked in this paper is: has legal aid reached the end of its life or is it about to enter a new third age? The UK has the highest spend on legal aid of any country in the world, running to over £2 billion a year. The vast majority of this goes on criminal legal aid of which a considerable portion pays for very high cost criminal cases. Civil legal aid is the rump receiving whatever is left over after criminal work has been paid for.
Over the last 60 years legal aid has gone from near universal coverage to a very limited range of work which is now mostly taken up with family and welfare aid. Means and merits tests exclude most people from accessing legal aid.
The supplement/replacement to legal aid has come from the insurance industry with After the Event and Before the Event insurance policies guaranteeing some access to law and justice. Third party litigation funding is also gathering force.
The largest component, however, of civil justice in the modern era is in auxillary forms of justice, most notably in the rise of complaints procedures and ombudsmen. In the example used in the paper, the Financial Ombudsman Service, is ranked as the busiest adjudicator in the country dealing with over 700,000 complaints a year.
Legal aid has been shrunk by government and has now become part of a mixed model of the delivery of legal services. Whether this will be sufficient to fight Beveridge's five ‘Giant Evils’ of Want (poverty), Disease, Ignorance, Squalor and Idleness (unemployment) is still an open question.
Transnational Lawyering: Clients, Ethics and Regulation
by John Flood
LAWYERS IN PRACTICE: ETHICAL DECISION MAKING IN CONTEXT, Lynn Mather & Leslie Levin, eds., University of Chicago Press, Forthcoming
Transnational lawyering is essentially transactional lawyering on a bigger and more complicated scale. The scale and... more
Transnational lawyering is essentially transactional lawyering on a bigger and more complicated scale. The scale and pace of the work leaves little time in the lawyer’s day for reflection on ethical conundrums. Lawyers have to work to tight, drop-dead deadlines because the financing arrangements in play can impose severe costs on clients if delay builds up. In addition to putting in the hours lawyers must be hunting for the next tranche of business to keep their associates and colleagues occupied. Their capacity for producing business is an integral element in their progression in the firm: their power, their remuneration. Each year they also have to face a public ranking exercise undertaken by the legal directories. The argument of this chapter is that, although transactional lawyers are aware of some ethical issues, these get scant concern in day to day practice, and are often ignored. Often rules are invoked to protect the lawyer from future attack rather than to protect clients’ interests, eg. rules on money laundering. A number of case studies (derived from observation, interviews, and documentary sources) based on takeovers, property finance transactions, and the creation of new financial products are deployed to tease out how ethics and corporate law practice intersect. A coda to this is the new development by the key frontline regulator in England and Wales to implement a virtual abandonment of conflicts of interests rules for “sophisticated” corporate clients. This raises the spectre of a new double deontology for transnational lawyers in the global field of law.
Keywords: regulation, law firms, globalization, ethics, transnational
The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation
by John Flood
Current Sociology, Forthcoming
The recent history of the legal profession is presented as one where the re-regulation of the profession, as... more
The recent history of the legal profession is presented as one where the re-regulation of the profession, as epitomized in the Legal Services Act 2007, has placed the large law firm at the centre as a site of regulation in its own right. The legal profession has redefined its professional character from that of autonomous producers to employed lawyers who now exercise discretion within tightly constrained corporate limits. This is paralleled by the move away from individualistic codes of conduct towards entity-based regulation.
(This is Version 3 of this paper and has a different emphasis from Version 1 which also available at SSRN. It is for this reason I have left both versions on SSRN.)
Keywords: ethics, regulation, globalization, legal profession, large law firms
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Megalaw in the UK: Professionalism or Corporatism--A Preliminary Report
by John Flood
The rise of the large global law firm is analyzed. The analysis covers the reach of large law firms, their different... more The rise of the large global law firm is analyzed. The analysis covers the reach of large law firms, their different types of work, and the ways in which they construct legal arrangements to enable transnational business. This entails looking at what lawyers actually do. Professionalism and issues of multidisciplinary practice are also considered.
Doing business: the management of uncertainty in lawyers' work
by John Flood
Apparently naive, but in fact not, is the question: What do lawyers do? Many scholars assume the central role of the... more Apparently naive, but in fact not, is the question: What do lawyers do? Many scholars assume the central role of the lawyer is that of the advocate, but among lawyers working in law firms advocacy consumes little of their time. Similarly, the term 'lawyer' provides hardly any meaning in itself. The research presented here is based on a participant-observation study of a corporate law firm. The central thesis proposed, in the light of case studies of the selling of a shopping mall and the arranging of a bank loan, is that business lawyers are engaged in managing uncertainty for both their clients and themselves. Managing uncertainty is accomplished through interaction rather than appeals to the law.
Barristers' clerks: The Law's middlemen
by John Flood
An ethnographic study of the barrister's clerk, the agents who work for barristers. They negotiate fees, manage... more An ethnographic study of the barrister's clerk, the agents who work for barristers. They negotiate fees, manage diaries, control careers among many other things.
Professionals Organizing Professionals: Comparing the Logic of US and UK Law Practice
by John Flood
The paper examines differences between collegial partnerships and managed partnership businesses. It uses ethnographic... more
The paper examines differences between collegial partnerships and managed partnership businesses. It uses ethnographic evidence from a study of a large law firm in Chicago and interview data from partners in City of London large law firms. It shows that MPB is fast becoming the norm for organizing law practices and that bureaucratic managerialism is helping to turn law firms into highly fissionable entities.
Keywords: professions, lawyers, law firms, US, UK, bureaucracy