Bushwhacking the Ethical High Road: Conflict of Interest in the Practice of Law and Real Life

Abstract

A long‐standing scholarly tradition regards professions, in general, and ethics rules, in particular, as “projects” of market control. It is no surprise, critics charge, that in the latest assault on the monopoly of the American legal profession–waged by multidisciplinary professional service firms–lawyers are hiding behind their ethics rules to protect their turf. In this article, I report on an extensive empirical study of conflict of interest in private legal practice and look comparatively at other fiduciaries, among them, accountants, psychotherapists, physicians, journalists, and academics. I investigate the role of ethics rules that seek to insure fiduciary loyalty in structuring the delivery of services. How does social and institutional change, roiling the fiduciary world, threaten disinterestedness and loyalty and how, if at all, do fiduciaries respond? How is the regulation of conflict of interest accomplished? Where are the conflicts rules most likely to be honored or ignored? What incentive structures encourage compliance? What are the costs and unexpected consequences of compliance? What is foregone? And is it all worth it? In what might come as a surprise to many, I find that the legal profession takes conflict of interest more seriously than many of the rest of us. As the title implies, legal practitioners largely travel alone, bushwhacking through the underbrush snarling the ethical high road. As critical scholarship predicted, lawyers do enjoy a monopoly at the end of the road. But this monopoly is achieved, not by restraint of trade or some other artifice or stratagem of market control, but by lack of competition. It seems that no one else is trudging alongside the lawyers. Lawyers are not necessarily more ethical than the others; they just behave more ethically–at least with respect to conflict of interest. The question is why. And what difference does it make?

Opposition or cooperation: the relationships between lawyers and non-lawyer professionals in the US, 1999–2008

“…Despite this regulative standard, however, lawyers and accountants are increasingly collaborating with each other in the same space, if not a formal large-firm setting (Chambliss, 2001). Although the practice of accounting (and auditing) and lawyering overlaps, divisions of labor are inevitable (Shapiro, 2003). While acknowledging different skills and expertise (e.g.…”

“…However, this group of non-lawyers has been directly competing with big firm lawyers and solo practitioners to attract a larger number of and more lucrative clients within the US and beyond. Conflicts between the two occupations are sometimes extended to issues of professional competency, authority, and ethics in the workplace (Dezalay & Garth, 2004;Shapiro, 2003). There always exist sources of conflicts arising from struggles over business decisions (Nelson & Nielsen, 2000, pp.…”

“…1 This 'war of all against all' understanding of professions often obscures certain aspects of the relationships between the occupational groups and ignores the possibility of cooperation between them. Some research reports that lawyers possibly cooperate or make strategic alliances with other occupational categories (Chambliss, 2001;Dezalay & Garth, 2004;Shapiro, 2003); however, there is still ambiguity concerning the nature of these relationships. In other words, what kinds of relations do lawyers have with which non-lawyer professionals, and what are the consequences of such relationships?…”

Conflict of interest prevention clause in the constitution: The study of the Indonesian Constitution

“…Conflicts of interest, for instance, could affect how accounting companies audit financial statements, how judges rule in court, and how doctors treat patients [ 32 ]. Conflicts of interest problems play a significant and well-known role in many fields of law [ 33 ]. For instance, ethical norms restrict attorneys' capacity to represent both sides of a dispute, corporation law principles forbid company directors from acting on insider knowledge, and agency law regulations forbid trustees from mixing their own finances with those of the trust.…”

The Managerial Law Firm and the Globalization of Legal Ethics

“…Through a global consolidation of core values, legal ethics remains a forceful determinant of the legal profession's nature, in spite of the development of the managerial law firm. The persistence of these core values could be a reason why the legal profession, unlike the accounting profession, has not been so severely struck by the corporate scandals of the beginning of the 21st century (see Shapiro, 2003 with respect to effective conflict-of-interest avoidance).…”