Is Adversarialism Dead? New Foundations for Legal Process and Lawyers' Ethics

Australian and New Zealand Legal Ethics Colloquium
Hosted by the Legal Issues Centre at the University of Otago Faculty of Law
9 - 10 February 2012

This colloquium will explore the need for new ethical frameworks, beyond adversarialism, to support new and emergent forms of legal work, particularly those currently being opened up by increasing deregulation of the legal services market. Adversarial ethics no longer sit comfortably with modern legal practice, especially that taking place outside, or challenging, the mainstream. Clients do not always want, or need, a gladiatorial contest and, over time, adversarialism may inflict unnecessary harm on lawyers, those whom they are supposed to serve as well as innocent third parties. But what new ethical theories or perspectives should lawyers turn to in order to meet challenges confronting the civil justice system? And what kind of ethics is required for alternative dispute resolution? This colloquium will examine the extent to which post- or non-adversarial ethics might inform and enrich standards of legal work before, during and after civil trials. We also need to examine whether ethical obligations should attach to those who are not gladiators, should the parties themselves, and those funding litigation, owe ethical duties, if not a legal duty to the court? We invite consideration of the following trends:

• Possible consequences for legal policy and ethics in New Zealand of the recent emergence of commercial litigation funders in Australia and Europe;
• Implications for civil procedure and legal ethics of shifting from a party and lawyer-controlled, adversarial system of litigation to one in which judges, clients, funders and others exert far greater influence;
• How e-discovery will re-shape professional relationships which may be transformed through increased use of expedited and impersonal processes;
• The rise of client preference for non-combative styles of lawyering, eg "collaborative" divorce proceedings; and
• The impact on professional ethics of the transfer of ownership of law firms from partners to public shareholders.

Other contributions on lawyers' ethics, the moral philosophy of legal practice, lawyers, empirical studies on lawyers and legal practice, the regulation of the legal profession, or ethics education are also welcome though we shall be concentrating on exploring the ethical dimension to civil justice reform. This is compatible with the approach taken in the International Legal Ethics Conference (ILEC) series and at previous Australian and New Zealand Legal Ethics Colloquia held at the University of Canterbury in Christchurch in 2005, and at the University of Southern Queensland in Toowoomba in 2010.

Report

A report written by Kim Economides and Selene Mize for LawTalk is available here (PDF 1.2 MB).

Colloquium Organising Committee

• Kim Economides (co-Chair)
• Selene Mize (co-Chair)

General Enquiries: for any general matters relating to this Colloquium please email law@otago.ac.nz.