Towards a New Ethical Framework

FACULTY OF LAW

TOWARDS A NEW ETHICAL FRAMEWORK

FOR A LEGAL PROFESSION IN TRANSITION?

European Conference

Professional ethics is one of the burning issues facing the legal profession at the moment and it receives virtu- ally zero airtime in legal journals and in most partnerships. This has to change. Why is an abstract idea like ethics as important as other more immediately concrete problems […]? For the simple reason that if you lose your distinctiveness in any economic system, you lose your value in that system. Reputation is everything, and our code of ethics underpins everything we do as lawyers and, hence, our distinctiveness. (C. REES, “Why Eth- ics Are Good for You”, International Bar News, September 2000, 7)

Conference director:

Koen Raes (Professor of Applied Ethics, Ghent University)

25th and 26th October 2001

Het Pand - Ghent (Belgium) The organisation of this conference is made possible by the support of the Flemish Minister of Education and Formation as part of a specific action to promote research in Flanders internationally

The organizers also thank for their collaboration: Union Internationale des Avocats (UIA) Conseil des Barreaux de l’Union européenne (CCBE) Balie van Gent (Bar Association of Ghent) 2

Stad Gent (City of Ghent) Last update: 10th October 2001

CONFERENCE THEME

The legal profession is said to be a profession in a permanent state of revolution. Legal services evolve continuously both in depth and in width. Lawyers and firms now play a more active role vis-à-vis existing and potential clients. They have also diversified their services in various respects to become global players offering a wide range of specialized legal and other complementary services to their clients. These transformations have reinforced the primacy of law firms on the (inter-) national legal services market. The consequent shifts in the power relations between individual lawyers, law firms and bar associations inevitably give rise to conflicts between current legal practice on the one hand and the existing ethical framework on the other.

Do these transformations necessitate a new ethical framework for this legal profession in transition? It stands to reason that this question cannot be answered unequivocally. The answer is inevitably subject to the approach one chooses. Two viewpoints are traditionally dis- tinguished: a microscopic approach focused on individual professionals and a macroscopic approach focused on associations and other bodies within the legal profession. We should, however, add an intermediate viewpoint - at a so-called ‘mezzo-level’ - to understand the ethical challenges and pitfalls for law firms too. This conference is therefore directed to exploring the interaction between these perceptions and to providing an answer to topical problems related to current legal practice. The interaction between these changes and legal (ethics) education will be explored too.

Authoritative speakers from Belgium, the Netherlands, the U.K. and the U.S will address these problems. Their papers will be delivered in English. Please note that no simultaneous translation will be available.

This conference should therefore interest both legal practitioners and academics with legal or other backgrounds focusing on the legal profession, legal ethics and/or legal education.

SESSIONS

The conference programme comprises four sessions. Although the subjects are inevitably interrelated, emphasis will be put respectively on:

1. New traits among lawyers in a changing legal services market

The transformations in the legal services market have brought into prominence various new traits among lawyers, which influence the traditional lawyer-client relationship. Some of those traits will be highlighted in this first session.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 3

We will first explore new perspectives for regulations of the legal profession in which a new balance can be found between the pubic interest and workable competition.

The legal profession is facing the widespread introduction of mediation to resolve litigation matters as early as possible by party agreement. We will first focus on the ethical questions this new mode of dispute resolution poses to lawyers. The ethical rules by which lawyers should abide as mediators and the compatibility of these rules with lawyers’ codes of practice will be explored during the second presentation.

Recent case law in Belgium suggests that lawyers could be employees in law firms. The first presentation will address the question as to whether this case law could be the start of a new era for legal practitioners in Belgium and how this might affect the working relations within law firms and/or the relationship with clients? The second speaker will compare the Belgian situation to the existing situation in other countries. He will also focus on the needs of international law firms with regard to the legal description of the working relationship with their lawyers.

2. Ethical challenges for law firms in a changing legal services market

Law firms, often part of even larger international groups or alliances, have become the most important players on the legal services market. This session will be directed to exploring the ethical challenges encountered by law firms.

The first speaker will suggest different options for the exercise of the legal profession in order to meet the high quality standards imposed by clients. It will then be argued that practice management standards, written by lawyers for lawyers, can meet the unique needs of the legal profession and can enable practices to demonstrate their commitment to legal excellence. The ethical promises and pitfalls related to the use of information and communication technology will be explored during the last presentation.

The second part of this session will be focused on multidisciplinary practices or MDPs. The first speaker will explore the core values of the European legal profession will be either compromised or accommodated by MDPs. The underlying reasons for a ban of MDPs in Belgi- um will be elucidated during the second presentation. The final speaker will argue that clients’ interest would be better served by admitting that MDPs exist, by allowing them to exist openly and then regulate them in a manner consistent both with the core values of the legal profession and with the applicable EU legislation.

3. The role of bar associations in a changing legal services market

It could be argued that the governing bodies within the legal profession have to reconsider their self-regulatory powers in the light of the changes in the legal services market. This session will try to respond to various questions in this context.

During the first part of this session, we will reflect on the question as to whether self-regulation should be more client orientated. We will therefore explore the expectations of clients vis-à-vis their lawyers. The financial aspects of their relationship, e.g. conditional fees and other funding methods for legal services, will also be explored (subject to change). Finally, we will explore the promises and pitfalls of complaint handling based on a voluntary, client friendly complaint regulation for law firms.

The topics during the second part of this session are related to the self-regulatory power of the legal profession in the light of the globalisation of the legal services market. The first presentation will explore the current rules of ethics for the international practice of law. We

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 4 will then reflect upon the feasibility of an interdisciplinary governing body to supervise the professional activities on the legal services market. Finally, we will try to look beyond the globalisation of the legal services market (subject to change).

4. The impact of the changing legal services market on legal (ethics) education

Legal education will undergo major changes subsequent to the implementation of the Bo- logna declaration both in universities and other institutions of higher education in Europe. We should therefore explore the impact of this declaration on legal education and raise the question as to whether law schools will be ready to educate the lawyers for the next decenni- um after these modifications? The second presentation will allow us to reflect on the prospects for legal ethics education in particular. It will finally be argued that the role of legal education is to find a way to help young lawyers develop values that serve the client and the public.

PROGRAMME

Thursday, 25th October 2001

8.30 h: Registration

9.15 h: Introduction – Welcome

 Marc De Clercq, Vice-rector of the Ghent University

 Eduard Somers, Dean of the Faculty of Law, Ghent University

Session 1 - New traits for lawyers in a changing legal services market Chairperson: Jean Van Houtte (former rector of UFSIA (Antwerp) and Emeritus Pro- fessor of Law and Sociology, UFSIA)

Lawyers as entrepreneurs

9.30 h: Lawyers, bar associations and competition law: limits of regulation (Hugo Lamon, Esq., Council Member of the Association of Flemish Bars)

Lawyers as mediators

10.00 h: ADR: a new field of legal practice (Piet A. Wackie Eysten, Esq., De Brauw Black- stone Westbroek (The Hague) and Council Member of the Dutch Mediation Insti- tute and of ADR-centre for Industry and Commerce)

10.30 h: A code of practice for lawyers as mediators? (Hélène Casman, Professor at the Law Faculty University of Brussels, previously a practising Notary and trained mediator)

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 5

11.00 h: Question time

11.20 h: Coffee break

Lawyers as employees

11.40 h: Recent case law in Belgium regarding lawyers-employees (Willy Van Eeckhoutte, Professor of Law, Ghent University)

12.10 h: Lawyers in multinational practices (Jean-François Gerard, General Secretary of the IUS LABORIS International Employment law, Pensions and Employee Bene- fits Alliance)

12.40 h: Question time

13.00 h: Lunch

Session 2 - Ethical challenges for law firms in a changing legal services market Chairperson: Valérie Bauer (Secretary-general CCBE – Conseil des Barreaux de l’Union européenne)

Law firms as legal service providers

14.00 h: The law firm: a choice for a full integrated exercise of the legal profession in order to meet the high quality standards imposed by clients (Dirk Van Gerven, Member of the Brussels and New York Bars; Partner with Nauta Dutilh, Brussels)

14.30 h: Lexcel: the practice management quality mark (John Pickup, Sneior Consultant Moss & Haselhurst and Council Member and Chairman of the Lexcel Assess- ment Panel, Law Society of England and Wales)

15.00 h: Ethical and legal implications of on-line services (Mark Ford, Strategic Research Manager at Clifford Chance, London)

15.30 h: Question time

15.50 h: Coffee break

Multidisciplinary practices (MDPs)

16.10 h: Ethical issues affecting MDPs from a European legal perspective (John Fish, Esq., Partner with Arthur Cox, Dublin, and CCBE First Vice-President)

16.40 h: The Belgian perspective on MDPs (Jo Stevens, Esq., Council Member of the As- sociation of Flemish Bars)

17.10 h: MDPs: where client is king (Marc Vandemeulebroeke, Esq., Senior Partner Bogaert & Vandemeulebroeke, member of Landwell)

17.40 h: Question time

18.00 h: End

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°°°°°°°°°°

18.15 h: Reception in the Town Hall of the city of Ghent

19.15h: Diner

Friday, 26th October 2001

Session 3 - New roles for bar associations in a changing legal services market Chairperson: Jacques Leroy (Esq., First Vice-President UIA - Union International des Avocats)

Should bar associations care more about clients?

09.15 h: Bringing the good news from Ghent to Aix (Avrom Sherr, Woolf Professor of Leg- al Education, Institute of Advanced Legal Studies, University of London)

09.45 h: Rebuilding the cathedral – the effect of “modernization” on the professionalism and ethics of the English Bar (Peter Kunzlik, Associate Dean, Nottingham Law School, Head of the Centre for Legal Research and Professor of European Busi- ness Law. Barrister)

10.15 h: Dealing with complaints. The Dutch experience (Daan de Snoo, Head of the Legal Practice Department of the Dutch Law Society)

10.45 h: Question time

11.05 h: Coffee break

Bar associations and the globalized legal services market

11.25 h: Towards an internationalisation and interprofessionalization of legal ethics? (Koen Geens, Esq., Eubelius, Professor of Law, University of Leuven and Brus- sels)

11.55 h: The international practice of law under the current rules of ethics (Carl Bevernage, Esq., Partner De Bandt, Van Hecke, Lagae & Loesch – Linklaters & Alliance)

12.25 h: Elite law firms, globalisation and capital markets (John Flood, Professor of Law and Sociology, University of Westminster)

12.55 h: Question time

13.15 h: Lunch

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Session 4 - The impact of the changing legal services market on legal (ethics) education Chairperson: Koen Raes, professor of Applied Ethics, Ghent University

14.15 h: The impact of the Bologna declaration on legal education (Marc Luwel, Repres- entative of the Department of Education and Formation of the Flemish Govern- ment)

14.45 h: Through a glass darkly? Reflecting on the prospects for legal ethics education (Jeremy Webb, Professor of Law, Westminster University, London and co-editor of Legal Ethics)

15.15 h: Teaching legal ethics by teaching professional values (James E. Coleman, Seni- or Associate Dean Academic Affairs and Professor of Law, Duke Law School)

15.45 h: Question time

16.05 h: Coffee break

Closing debate - Conclusions 16.25 h: Discussion

16.55 h: Conclusions by the Conference Director (Koen Raes, Professor of Applied Ethics, Ghent University)

17.25 h: Reception

SPEAKERS

LAMON Hugo

Graduated in law from Louvain University (licentiaat in de rechten, 1985); Assistant at Limburg University - Limburgs Universitair Centrum (1992-2000); Admitted to the Brussels Bar (1986-1988) and since 1988 member of the Bar of Hasselt; Council Member of the Asso- ciation of Flemish Bars (after the recent legal change to become the Order of the Flemish Bars) and Chairman of the Department of Study and Advice (since 1988); Published articles concerning free trade practices, intellectual property and European law

WACKIE EYSTEN, Piet

President of the Dutch National Bar, 1986-1989; President of the Council of Bars and Law Societies of the European Union (CCBE), 1991; Member of the Advisory Committee to the Minister of Justice on ADR; Member of the European Advisory Council of CPR; Member of the Board of the ADR Centre for Industry and Commerce and the Netherlands Mediation In- stitute; Arbitrator with the Netherlands Arbitration Institute and the ICC, Paris; Member of the

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 8

LCIA, London. Publications include articles on arbitration and mediation in various professional journals.

CASMAN Hélène

Professor at the Law Faculty of the Free University of Brussels (VUB-ULB), teaching Family Law, Land Law and Specific aspects of the Notarial Profession. Previously a practicing Not- ary (Notariat Latin) in Antwerp (Belgium) from 1982 until 2000. Trained mediator

VAN EECKHOUTTE Willy

Professor dr. Willy van Eeckhoutte is professor at the faculty of Law of the Ghent University and teaches social security law and labour law in the three last years of the five-year-programme. He is editor of articles on social juridical topics in various journals and collections. He is member of the Board of scientific associations and author of a number of articles and books on social law. His 'Sociaal Compendium' has a part that deals with Labour Law and one with Social Security Law, both also translated into French (Mémento social and Com- pendium social). He is editor of parts of the Social Security Law from the International En- cyclopaedia of Laws, Kluwer Law International (The Hague, London, Boston), in which monographs are published of social security systems in different countries of the world.

GERARD Jean-François

Jean-François Gerard graduated in Law from the Université Libre de Bruxelles in 1988. He started his career as a lawyer in the Benelux law firm Loeff Claeys Verbeke. He worked with Thierry Claeys in the Employment Law department, where he became a specialist in Collect- ive Labour Law. He also acted as an assistant at the Faculty of Law (Université Libre de Bruxelles) for a period of six years, lecturing on different subject matters (inter alia Judicial Law and Labour Law). After this time he then worked in the arts sector as a Managing Dir- ector for various projects, the last of which was an international performing arts festival called “Kunsten FESTIVAL des Arts”. Jean-François Gerard is now in charge of the management of Ius Laboris, a new project that started in January 2001. Ius Laboris is an alliance of leading European law firms, specialising in employment, pensions and employee benefits law. The Alliance is based in Belgium, covering most of the major European jurisdictions. Almost 400 lawyers in 35 cities across Europe combine their expertise to offer clients specialist advice. Jean-François Gerard is the author of numerous legal publications (mainly on labour law topics) and has spoken at a variety of conferences.

VAN GERVEN Dirk

Dirk van Gerven (1962, Brussels office) mainly concentrates on corporate, securities and financial law. He regularly sits as arbitrator and furthermore assists larger companies in reor- ganizations and acquisitions. He is counsel to several stock exchange quoted companies. Resulting from his legal publications, he is also regularly consulted on legal issues relating to corporate and financial law. Dirk Van Gerven conducts litigation in corporate matters and financial law issues. He lectures furthermore corporate law at the University of Louvain. He has published frequently on corporate law, financial law and contract law, including editing a book on EEIG, and he speaks regularly on the above topics on seminars. He is a national reporter of subcommittee Q on Securities law of the International Bar Association. He joined the Brussels Bar in 1985, and became a member of the New York Bar in 1989. Dirk Van Gerven graduated from the University of Louvain (K.U.L.) in 1985. After spending some years at another law firm in Brussels, he joined NautaDutilh as a partner in 1999.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 9

PICKUP John

Admitted as a solicitor in 1961, John Pickup was Senior Partner of Moss & Haselhurst, a four-partner firm in Northwich, Cheshire, to which he is now a Senior Consultant. Elected to the Law Society of England and Wales Council in 1994, is a former President of the Chester and North Wales Law Society, and current Honorary Secretary. Appointed in 1995 as Chair- man of the Law Society's Sub-Committee with responsibility for introducing a Practice Stand- ards Certification Scheme, which on its implementation in 1998 became known as Lexcel, and has been Chairman of the Lexcel Assessment Panel since that date. Other Law Society responsibilities include being Chairman of the Joint Law Society and Institute of Legal Exec- utives Committee and being a Member of the Law Society's Higher Courts Advocacy Case- work Committee and Welsh Affairs Working Party. Sporting interests include being a Non- Executive Director of the England and Wales Cricket Board.

FORD Mark

Mark Ford (M.A.) is the Strategic Research Manager at Clifford Chance LLP, and is responsible for the day-to-day work of the R&D group within the firm, which was recently established to explore the impact of emerging technologies on the practice of law. He was a founder member of the firm's online services group, of which he was Business Manager until taking on his current position. Prior to that, he was also a key member of the development team for Clifford Chance's NextLaw service, the first online service created by the firm and one of the first online legal advice services in the world, whilst in practice as a solicitor in the firm's Me- dia, Computer & Communications group.

FISH John John Fish is a partner in one of Ireland’s leading law firms, Arthur Cox, based in Dublin. John has practised, for over forty years, in the commercial field with a particular emphasis on banking, mergers and acquisitions, European Community law and more recently in the area of private finance initiatives. John is also a qualified solicitor in Northern Ireland and spends a certain amount of his time in the Belfast firm of Arthur Cox. As a member of the Council of the Law Society of Ireland he serves on a number of committees within the Law Society including, chairman of the committees dealing with the issue of MDPs and money laundering. He is the first vice president of the Conseil des Barreaux de l’Union eurpéenne (CCBE) and is the chairman of a task force established by the CCBE to monitor European Commission proposals on the application of the Directive on money laundering to the legal profession.

STEVENS Jo

Jo Stevens (Antwerp, 6 September 1942) graduated in law from Louvain University (doctor iuris, 11 July 1966) is a member of the Antwerp bar, partner of Nelis-Stevens-Samyn-Groot- jans, advocates at Antwerp, and a deputy justice of the peace. He worked for ten years as a member of the Antwerp bars' governing body, the Order of Advocates, before becoming its president or Stafhouder (1992-1994). He is currently an assessor in the disciplinary court of appeals at Antwerp, and a council member of the Association of the Flemish Bars (after the recent statutory change to become the Order of the Flemish Bars), and Chairman of its Com- mission for Deontology. He published several books, articles and reports concerning the organisation and ethics of the profession, and more than 120 written opinions and papers concerning deontological questions.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 10

VANDEMEULEBROEKE Marc

Graduated in Law (1980); Special Law Degree in Business Law (1981); Admitted to Brussels Bar (1980); Senior Partner, Bogaert &Vandemeulebroeke; Head of Financial Services De- partment; Contributor for Belgium to the Financial Regulation Report; Co-author : “New Bel- gian Banking Law” (1994), “Economic and Monetary Union : A Catalyst for change ?” (1998), “Quel Avocat pour le 21ème siècle” (2000); various articles on stocklending, capital markets legal issues, financing techniques, internet; course on “Legal aspects of derivatives products” at Facultés Universitaires Saint-Louis, DES Gestion Financière; advising banks, broker- s-dealers, insurance companies; clearing houses

SHERR Avrom

Avrom Sherr, a pioneer of clinical legal education in the UK, is the first holder of the Woolf Chair in Legal Education. The Woolf Chair was created by a group headed by the former Chairman of the Institute's Board, Lord Woolf. In formal terms, the post was intended to un- dertake, and to promote and organize, activities of research and development in the field of legal education and training, for the benefit of the academic and professional legal communit- ies throughout the United Kingdom. The research remit encompasses all dimensions of legal education and training, ranging from the theoretical and philosophical positions, through sociological and economic influences, to vocational needs in relation both to knowledge and skills.

KUNZLIK Peter

Associate Dean, Nottingham Law School, Head of the Centre for Legal Research and Pro- fessor of European Business Law. Barrister, the Chambers of Miss Jean Ritchie Q.C., Lon- don.

DE SNOO Daan

Jurist. Deputy secretary general of the Dutch Bar Association. Amongst others responsible for the development of quality and IT programs and the installation of the Complaint and Dis- pute Regulation. Member of the Dutch Delegation with the CCBE. Member of the CCBE establishment, access to justice and IT committees. Member of the counsel of the Dutch service organization for law firms.

GEENS Koen

Born Antwerp, January 22, 1958. University of Leuven (Licentiaat Rechten, 1980, Doctor in de Rechten, 1986). Harvard Law School (LL.M., 1981). Doctoral Thesis (Ph.D., 1986) about "The regulation of the profession". Professor of Company Law, Financial law and Profes- sional responsibility at the University of Leuven (KULeuven) and Brussels. Editor in Chief, Company Law Review (TRV). President, Belgian High Council for Economic Professions (1992-1999). President, Federation for liberal and Intellectual Professions (since December 1999). Author and editor of numerous articles and books on company and financial law. Ad- mitted to the Brussels Bar in 1989. Founding Partner of Eubelius counsellors at law, formerly known as Dieux Geens Cornelis. Implied as a lawyer in many important M&A-transactions since 1992.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 11

BEVERNAGE Carl

Present Position: Partner of Labour Department, De Bandt, van Hecke, Lagae & Loesch - Linklaters & Alliance since 1971, Brussels office - Health Care Law Practice Group of De Bandt, van Hecke, Lagae & Loesch - Employment/ Pensions / Employee Benefits Practice Group of Linklaters & Alliance

Professional Experience: 1971 to date De Bandt, van Hecke, Lagae & Loesch, Brussels office – Partner; 1970 - 1971 University of Louvain - KUL - Institute for Labour Relations; Mem- ber of the Belgian High Council for Justice; 1968 - 1969 University of Louvain – KUL - Insti- tute for Labour Relations – Research assistant; 1988 - 1996 Member of The Belgian delegation to the CCBE; 1990 - 1992 President (Stafhouder) of The (Dutch-language) Bar of Brus- sels; 1997 to date Chairman of Ad Hoc Committee of the CCBE on the (WTO) liberalization of the legal profession

FLOOD John

Professor of Law and Sociology, University of Westminster (London).

Teaching & Research interests: Sociology of Law; Legal Profession; Globalization; Interna- tional Insolvency; Dispute Resolution; Law and Accounting; Regulation of Financial Services.

LUWEL Marc

Born: 27th February 1955, Hasselt (Belgium)

Education: Licencié in Physics (undergraduate), 1977, Free University of Brussels; Ph.D. in Physics, 1985, Free University of Brussels

Employment: (1) 1999-present: deputy head of the Private Office of the Flemish Minister of Education and training advisor to the Belgian Prime Minister; (2) 1992-1999: senior research- er at the Science and Innovation Administration of the Ministry of the Flemish Community; (3) 1990-1992: associate professor at the Ghent University in charge of research policy office; (4) 1988-1990: senior administrator of the Flemish Open University Centre; (5) 1985-1988: senior advisor to the Belgian Vice-Prime-minister

Other activities: 1980-1981 : Deputy Chairman of the Board of Administration of the Free University of Brussels; 1987-1991: Member of the Management Committee of the Belgian In- stitute for Public Health; 1991-1997: member of several committees of the Flemish Council for Science Policy; 1994-1997: Member of the board of the Eramus hogeschool (a non university institute of higher learning); 1995-1999: member of the OECD Workgroup on the Sci- ence System; 2000- : member of CSTP-OECD and ad hoc working groups; 2001- : member of the EU-High Level group on Evaluation; 2001 - : representative of the Flemish Govern- ment in the Board of the Flemish Inter-university Biotechnology Institute (VIB); 2001 - : Rep- resentative of the Flemish Government in the Board of the Flemish Science Foundation (FWO)

WEBB Julian

Qualifications & awards: BA (Hons) Law (UCE) 1981; LLM by research (Warwick) 1986; Adv. Dip. Socio-Legal Studies (ECHE) 1985 (with distinction); Elected Fellow of the Royal Society of Arts (FRSA), 1999.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 12

Previous Academic Appointments: Professor of Socio-Legal Studies, UWE Bristol, 1998-99; Senior/Principal Lecturer, UWE Bristol, 1988 to 1998; Visiting Lecturer in Law, Bristol Univer- sity, 1990-91; 1992-93; Lecturer in Law, Thames Valley University, 1986-88; Research Asso- ciate, Brunel University, 1985-87; Part-time Research Assistant, Warwick University, 1984.

External Activities: Articles Editor, Legal Ethics; Member of the International Advisory Board, International Journal of the Legal Profession; Convenor, Practice, the Professions & Ethics Subject Section of the Society of Public Teachers of Law (SPTL); Member, Teaching Advis- ory Panel, National Centre for Legal Education, Warwick University; Member, International Sociological Association/Research Committee on the Sociology of Law Working Group on Comparative Legal Professions.

COLEMAN James

A.B. 1970, Harvard University; J.D. 1974, Columbia University. A native of Charlotte, North Carolina, Professor Coleman's experience includes a judicial clerkship for the U.S. District Court for the Eastern District of Michigan, a year in private practice in New York, and fifteen years in private practice in Washington, D.C., the last twelve as a partner in a large law firm. In private practice, he specialized in federal court and administrative litigation; he also rep- resented criminal defendants in capital collateral proceedings. He has had a range of government experience. In 1976, he joined the Legal Services Corporation, where he served for two years as an assistant general counsel. In 1978, he conducted an investigation of two members of Congress as chief counsel for the U.S. House of Representatives' Committee on Standards of Official Conduct. In 1980, he served as a deputy general counsel for the U.S. Department of Education. On sabbatical from his law firm, he was a visitor at Duke Law School for the fall semester of 1989, where he taught a seminar on capital punishment. He joined the faculty full-time in 1991 and taught criminal law, research and writing, and a seminar on capital punishment. He returned to private practice in 1993, but continued to teach a seminar on capital punishment as a senior visiting lecturer. He rejoined the faculty full-time in 1996. He teaches criminal law, legal ethics, negotiation and mediation, and capital punishment

ABSTRACTS

Lawyers, bar associations and competition law: limits of regulations (Lamon Hugo)

Lawyers do constitute undertakings for the purpose of competition law. The Bar Associ- ations must be classified as associations of undertakings. The associations exercise their regulatory poser with a view of furthering the collective and individual interests of their members, which are in fact capable of disturbing normal competition. Nevertheless, the bar associations are also required to exercise their regulatory power in the public interest. They must ensure that individuals have access to the law and to justice. An analysis of the case law from the national competition authorities and the European Court of Justice gives some indic- ations for a new perspective for regulation of the legal profession in which a new balance has to be found between the public interest and workable competition.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 13

ADR: a new field of legal practice? (Wackie Eysten Piet)

In the US and the UK Alternative Dispute Resolution (ADR) has become part and parcel of the legal practice. An increasing number of commercial conflicts are settled through mediation or other forms of ADR. In recent years this phenomenon has reached continental Europe. In the Netherlands for instance the number of successful mediations is rapidly increasing. This new mode of dispute resolution poses specific questions of an ethical nature to lawyers, both in their role as counsel and as mediator. Mr. Wackie Eysten's paper will deal with these problems, based on his experience in both capacities.

A code of practice for lawyers as mediators? (Casman Hélène)

Mediation is an alternative to dispute resolution by court decision. Lawyers may play various roles in relation to mediation: by referring their clients to mediation, by advising their clients during and after mediation, by acting as consultant to the mediator, or by acting as mediators themselves. What requirements should a lawyer fulfil when acting as a mediator (aptitude, knowledge, skills, training and continuing education)? By what ethical rules must the mediat- or abide and how are these rules compatible with a lawyer’s code of practice (regarding neut- rality, impartiality, independence vs. conflicts of interests, confidentiality and privilege vs. concern for the welfare of children and attitude towards domestic violence)?

Recent case law in Belgium regarding lawyers-employees (Van Eeckhoutte Willy)

According to tradition attorneys are considered as independent or self-employed workers. This view goes back to the time when an attorney’s practice was that of an individually working person. In the last quarter of the 20th century that kind of organization became the ex- ception rather than the rule: attorneys are working more and more together in smaller or big- ger law firms. In that case a labour relation comes to existence with the firm, on which the or- dinary rules of law apply. This means that, under given circumstances, a labour contract can be discerned between an attorney and one of his colleagues or, more often, the law firm to which he belongs. A recent sentence of the Labour Court of Brussels gives a rare, but logic and anticipated example of application of these principles.

Lawyers in multinational practices (Gérard Jean-François)

Going further on the point raised by Professor Van Eeckhoutte, we will have a look at the existing situation in other countries, among others in France, where for the last 10 years there has been a law that allows lawyers (associate or even partner) to be employees of a law firm. We will then try to identify the needs of the international law firms as regards the legal description of the working relationship with their lawyers (as well as with the paralegals). We will see if changes and/or harmonization are sought by these firms (and if these are or would be possible according the national or international regulations), taking into account the evolution of the profession (globalisation, MDPs, ...)

The law firm: a choice for a full integrated exercise of the legal profession in order to meet the high quality standards imposed by clients (Van Gerven Dirk)

Difference between the professional company and the not integrated exercise of the legal profession - Choice of legal corporate form (incl. comparison with other countries) - Corpor- ate organization (evolution from a partnership with veto of each partner for each decision to a company managed from a centralized decision making process) - Liability for professional

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 14 negligence - Obligation of insurance - limited liability - Fee structure (fee on basis of turn over towards a lock step system) - Secrecy and other ethical issues - Creditor of the fee state- ments

Lexcel: the practice management quality mark (Pickup John)

Lexcel is the quality mark awarded by the Law Society of England and Wales to practices and legal departments that have been independently assessed as having achieved the Law Society's Practice Management Standards. Written by lawyers for lawyers, Lexcel directly meets the unique needs of the legal profession and enables practices to demonstrate their commitment to legal excellence through a well-managed practice and superior client care.

Ethical and legal implications of online services (Ford Mark)

This presentation will focus on two particular legal and ethical considerations (conflicts of interest and limitations on liability) and assess, from a UK perspective, how they may apply to the provision of legal services online. It will consider the different types of service that a law firm could provide online - from a basic information service to specific, tailored legal advice, as well as the nature of the lawyer-client relationship and in what circumstances this relationship arises.

Ethical issues affecting MDPs from a European legal perspective (Fish John)

The CCBE position regarding MDPs. Core values of the European legal profession. Will core values be compromised in an MDP? If so, why? Can core values be accommodated satis- factorily in an MDP? How are the interests of the Consumer of legal services affected? How will ethical rules of lawyers be maintained, observed and enforced in an MDP? How are these core values dealt with in other jurisdictions, e.g. United Kingdom and Australia? Note recent decisions of the New York bar and opinion of Advocate-general Léger in the Nova case. Whose ethical rules should prevail as between professionals? How may inter-professional disputes be resolved? How will ethical issues be dealt with where ancillary services are created?

A ban on MDPs in Belgium? (Stevens Jo) The situation in Belgium as to MDPs is unlike that in the Netherlands. Pursuant to article 8 of the by-laws of 11th October 1990 of the Belgian National Bar, it pertains to this body to indicate those professionals with whom a Belgian advocate may establish a MDP (sharing profits or sharing only costs). The Belgian National Bar has never indicated any profession that could prove eligible; on the other had the recent law on notaries public forbids them any integrated collaboration with other professions. The agreements signed by the Brussels Bar (French-speaking Order) with the governing bodies of the accountancy professions are therefore contrary to the by-laws of the profession, which are legally binding for each and every individual advocate. As a matter of fact until this day authorization of this kind of collaboration has not been applied for, -since accountancy partnerships are not interested in a collaboration on a pure costs-sharing basis, and most lawyer partnerships in Brussels comprise French-speaking and Dutch-speaking lawyers, the latter resorting under the Dutch-speaking Order of the Brussels Bar, which has never made similar agreements with the accountancy professions. In the meantime the law of 21st June 2001 has split up the Belgian National Bar into two independent professional bodies with regulatory powers: the Dutch- speaking and French-speaking Bar. When discussing the implementation of the Establishment Directive (9815/EC of 16th February 1998) - it should be noted that the Belgian parliament intends to make use of the possibility provided by article 11.5 to forbid MDPs to foreign lawyers who wish to enter the Belgian Bar - the parliamentary commission indicated already that at the

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 15 present time MDPs are prohibited for Belgian advocates by the said by-laws of the National Bar, and that in the future, the issue will come under the competence of the two new professional bodies. The Flemish Bar Association (the precursor of the Dutch-speaking Bar) has already decided on 13th December 2000, that MDPs with accountancy professionals will re- main prohibited. MDPs: where client is king (Vandemeulebroeke Marc)

MDPs already operate around the world. Clients interest would be better served by admitting that MDPs exist, by allowing them to exist openly, and then regulate them in a manner consistent both with the core values of the legal profession and with the applicable EU legislation. It is time for lawyers to be market driven and to learn to listen to their clients’ needs, as lawyers should always do. There is no ban on MDPs in Belgium except on profit-sharing structures. Most of the Belgian Bars continue to use lawyers core values as excuse to favour the old medieval and parochial approach of the profession, when there is a fierce competition from other countries. Time for change ?

Bringing the good news from Ghent to Aix (Sherr Avrom) This paper considers what we know about clients’ views of their lawyers from recent research work in Scotland and England and Wales. It also considers what we know of how clients view advice agency workers providing similar services. New forms of litigation, including conditional fee agreements, set up new areas of difficulty between lawyers and clients and there is a concern that current ethical rules may not cover the needs of the new forms of service agreement. The paper then considers whether all of this is “good news” and whether Robert Browning’s poem has any relevance to bar associations or clients. Rebuilding the cathedral – the effect of “modernization” on the professionalism and ethics of the English Bar (Kunzlik Peter) Topics: the impact of conditional fees and other novel forms of litigation funding; the impact of the advent of the extension of higher rights of audience to non-barristers (i.e. the erosion of the Bar's characteristic monopoly as a profession); the advent of the Community Defence Service; the recent OFT report on competition in the professions and the Bar's response to it; discussion of the ways in which these factors have affected the character of the Bar as a profession and have impacted directly and indirectly upon the Bar's ethical Code. Dealing with complaints. The Dutch experience (de Snoo Daan)

This presentation will give you an overview of the introduction of a new complaint regulation in the Netherlands. Three years ago the Dutch Bar Association started a project in cooperation with the Stichting Geschillencommissies, which introduces a voluntary, client friendly, complaint regulation for law firms. Topics of the presentation are, amongst others: Reasons for the introduction of the regulation, role of geschillencommissies in general, dealing with complaints, juridical aspects, relation with disciplinary procedures.

Towards an internationalisation and interprofessionalisation of legal ethics? (Geens Koen)

It appears that more and more ethical problems can only be solved in an international and/or interprofessional context, and even often that they find their very origin in such context. This becomes quite clear when one considers the situation of international partnerships or of interprofessional partnerships. It is no longer possible to search the answer to the difficulties created by such types of cooperation in a purely national and intraprofessional legal setting. When one profession or one nation allow what another is trying to forbid, those who apply

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 16 such national rules to cross border situations, will eventually have to compromise. The paper aims at demonstrating that it is preferable for the professions and their national regulators to strive for a common set of values and for an international/interprofessional rulemaking first.

The international practice of law under the current rules of ethics (Bevernage Carl)

The practice of law has changed dramatically over the last few decades. Whereas in the USA and Europe a majority of lawyers still work as actual liberal professionals, either on their own or in combination with a few colleagues, rendering advice and engaging in trial work within a particular jurisdiction, many others have formed large integrated service entities. While being incorporated in a particular jurisdiction or in various jurisdictions, they generally form transnational partnerships offering services to clients on a cross border basis. Trial work has become of secondary importance in the scope of services that are offered. The question thus arises whether the local codes of ethics and practice rules including qualifications and li- censing are a hindrance for the development of large international partnerships and an ef- fective cross border practice. The Code of Conduct of the CCBE and attempts by the IBA to formulate universal practice rules, as well as the liberalization of legal services within the GATTS are useful tools for determining the extent of the need for change.

Elite law firms, globalisation and capital markets (Flood John)

[TBA]

The impact of the Bologna declaration on legal education (Luwel Marc)

[TBA]

Through a glass darkly? Reflecting on the prospects for legal ethics education (Webb Julian)

The aim of this paper is to describe and analyse recent trends in the development of legal ethics education, drawing on experience in the UK and elsewhere in the Common Law world. It will suggest that there has been a marked but not wholly unqualified increase in academic interest and professional expectations as to the delivery of legal ethics courses. The paper will also consider the respective functions of university education and professional training in ethics. Particular themes in this part will include the consequences of professional regulation for teaching legal ethics; problems in balancing respective emphases on macro-, meso- and micro-ethics, and the possible tensions that exist between demands for professional competence and those educational objectives which primarily emphasize analysis and critique, or focus on the personal ethical and moral development of students.

Teaching legal ethics by teaching professional values (Coleman James)

The Rules of Professional Responsibility, which govern lawyers in the U. S., are porous standards, at best. They set a floor, and in some cases, impose obligations that conflict with the public's sense of morality. It has been suggested that the disconnect between a lawyer's professional obligations to his or her client and the lawyer's sense of morality has caused so many American lawyers to be unhappy in the profession. The role of legal education, therefore, is to find a way to help young lawyers develop values that serve the client and the public; and to educate the public about the values behind rules that seem amoral. Both efforts are necessary.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 17

REGISTRATION FEES

! The registration fee includes the conference proceedings to be published by In- tersentia.

Until 19th Oc- After 19th Oc- tober tober

For the two-day programme

Standard fee 450 € 500 €

Additional members of the same firm/ company/institute 340 € 375 €

Young professionals (no more than three years of legal prac- 270 € 300 € tice) and university staff

Students 180 € 200 €

For one-day programme

Standard fee 250 € 275 €

Additional members of the same firm or company 185 € 205 €

Young professionals (no more than three years of legal prac- 150 € 165 € tice) and university staff

Students 100 € 110 €

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 18

HOW TO GET TO THE CONFERENCE VENUE

By public transport

- Arriving at Brussels airport:

The airport City Express leaves from within the airport building (floor -2) and takes you to one of the main stations in Brussels (subsequently Noord/Nord, Centraal/Central and Zuid/Midi), wa- here you can switch to one of the many intercity trains(IC) to, or via "Gent-Sint-Pieters, Ghent's main railway station (Directions Brugge, Knokke, Blankenberghe, Oostende all stop in Ghent). Some trains run directly from the airport to "Gent-Sint-Pieters.

- Arriving by train in Brussels:

Switch to one of the many intercity trains(IC) to, or via "Gent-Sint-Pieters, Ghent's main railway station (Directions Brugge, Knokke, Blankenberghe, Oostende all stop in Ghent). Ghent is on the crossroads of the international lines "London - Brussel - Köln" and "Paris - Lille - Antwerpen"

- From the railway station "Gent Sint-Pi- eters":

Take tram 1, 10, 11 or 12 from the tunnel under the railway station (every 6 minutes), get off at the "'Korenmarkt" and cross the river "Leie" via the bridge "Sin- t-Michielshelling". Turn around the Sint Michaels church. "Het Pand" is situated next to the church.

By car

Entering Ghent from the E40 or the E17, follow the parking-route to P7, "Sint Michiels Parking". This parking is only 50 m away from 'Het Pand'.

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 19

HOTEL ACCOMMODATION

You can find a great variety of hotels in the historical heart of Ghent. More information is available here. For your convenience, we recommend the following hotels, which are located within walking distance from the conference venue (except Alfa Flanders).

 PoortAckere (*) - single rooms at 62 - 87 € - e-mail: [email protected] - url: http://www.poortackere.com

 IBIS Centrum Opera (***) - single rooms at 57.02 - 61.97 Euro - e-mail: h1455@accor-hotels.com - url: http://www.accor.com

 IBIS Gent Centrum - Sint Baafs (***) - single rooms at 73.13 Euro - e-mail: h961@accor- hotels.com - url: http://www.accor.com

 Gravensteen (***) - single rooms at 71.89 - 110.31 € - e-mail: [email protected] - url: http://www.gravensteen.be

 Novotel Gent Centrum (***) - single room at 118.99 € - e-mail: [email protected] - url: http://www.accor.com

 Sofitel Gent Belfort (****) - single rooms at 137,58 to 210,77 € - e-mail: h1673-hr@accor- hotels.com - url: http://www.accor.com

 Golden Tulip Alfa Flanders (****) - at 5 min from the conference venue using public transport - single rooms at 81.80 - 161.13 € - e-mail: [email protected] - url: http://www.goldentuliphotels.nl/gtgent

More information regarding these (and other) hotels can be found here. Please note that the aforementioned prices are as shown on the website of the city of Ghent (http://www.- Gent.be.)

Please check with the hotel for availability and exact prices.

SOCIAL EVENTS

We have scheduled the following social events:

 an informal gathering for speakers and participants arriving in Ghent on Wednesday evening in Het Pakhuis from 21 till 23 hours;

 a reception will be offered at the Town Hall on Thursday evening (18.15 h - 19.15 h);

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001 20

 we invite all participants to join the speakers at diner on Thursday evening in Restaurant Gruuthuus (part of the Novotel) at 19.30 h. Please note that this diner will NOT included in the registration fee;

 a reception will be offered in Het Pand on Friday (17.30 h - 18.30 h).

Please indicate whether you will attend these event on your registration form. More information on the locations is available on the conference website.

PERMANENTE VORMING

(For lawyers admitted to the Flemish Bars only)

De erkenningscommissie "permanente vorming" van de Vereniging van Vlaamse Balies heeft aan dit congres 12 juridische punten (6 juridische punten per dag) toegewezen.

Gelieve op uw inschrijvingsformulier uitdrukkelijk te vermelden of u, mits effectieve deelname, een aanwezigheidsattest wenst te ontvangen bestemd om als bewijs te dienen van deelname aan permanente vorming.

FURTHER INFORMATION

Please note that all papers will be delivered in English. No simultaneous translation will be available.

For further information, please contact the conference secretary:

Bart Claessens, Universiteit Gent, Faculteit Rechten, Vakgroep Burgerlijk Recht, Universiteitstraat 4, B-9000 Gent, tel: + 32 (0)9 264 69 30, fax: + 32 (0)9 264 69 83, e-mail: [email protected]

Or visit the conference website at http://www.law.rug.ac.be/gandaius/legalethics/index.htm

Towards a new ethical framework for a legal profession in transition – 25th and 26th October 2001