Rose, Alan --- "Comment" [1998] ALRCRefJl 1; (1998) 72 Australian Law Reform Commission Reform Journal 1

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Reform Issue 72 Autumn 1998

This article appeared on page 1 of the original journal.

Comment

In 1991, the Fordham Law Review published an article ‘Professional Discipline in 2050: A Look Back’. The essay was based on a speech by Ted Schneyer, a Professor of Law at the University of Arizona.

The essay gives Professor Schneyer’s view - one worth considering - of how ethical issues will be dealt with by the legal profession in 2050. In his ‘crystal ball review’ of the late 1990s to 2050, Professor Schneyer predicts significant shifts in ethical practices.

Presently, most complaints against lawyers are by individuals concerned with false advertising, fee abuse and lack of communication. Although the profession views these as ethical problems, they are more akin to consumer complaints. In Professor Schneyer’s view, the profession’s approach - to ‘cleanse’ itself by removing or disciplining ‘bad apples’ - is flawed. The more responsive the disciplinary process, the more grievances it receives and the higher the cost of regulation.

Ethics will change, according to the professor, from a focus on individual practitioners to team responsibility. After all, many ethically sensitive tasks, such as fee setting, are performed by central, bureaucratic staff.

Professor Schneyer predicts a future where more egregious professional misconduct will be dealt with pro-actively by a national disciplinary body.

In this context, firm dissolution, the analogy to disbarment, is almost unheard of, fines are common, and public notices of firm overbilling may drive down the price of a firm’s stock. The transformation from vocation to market-orientated profession is complete.

This is one view of the future. It doesn’t appear so fanciful in the light of the extraordinary changes induced by the consumer movement, the development of a national, corporatised legal profession, the advance of the managerial judge and the impact of technology on litigation processes.

The Commission’s reference into the federal civil litigation system provides a timely opportunity to consider these issues. Who knows - changes such as those predicted by Professor Schneyer may be just around the corner.