Showing papers by "Christine Parker published in 2004"

Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings

Abstract: Enforceable undertakings are now used extensively by both the Australian Competition and Consumer Commission (ACCC) and other Australian regulators to formalise decisions to forego enforcement litigation on the basis that offenders will correct their misconduct and comply in the future. A 'fairness' critique warns that regulators might exert undue pressure in negotiating enforceable undertakings and that the terms agreed might be inappropriately broad and not legally authorised. A 'bias' critique argues that enforceable undertakings favour business above the public interest in taking tough court action against business offences. The article draws on empirical research into the ACCC's use of enforceable undertakings to show how they are used in practice, and argues that, if appropriately implemented, enforceable undertakings can be a valuable 'restorative justice' alternative to traditional regulatory enforcement action, simultaneously addressing both fairness and bias concerns.

Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings

Abstract: Enforceable undertakings are now used extensively by both the Australian Competition and Consumer Commission (ACCC) and other Australian regulators to formalise decisions to forego enforcement litigation on the basis that offenders will correct their misconduct and comply in the future. A ‘fairness’ critique warns that regulators might exert undue pressure in negotiating enforceable undertakings and that the terms agreed might be inappropriately broad and not legally authorised. A ‘bias’ critique argues that enforceable undertakings favour business above the public interest in taking tough court action against business offences. The article draws on empirical research into the ACCC's use of enforceable undertakings to show how they are used in practice, and argues that, if appropriately implemented, enforceable undertakings can be a valuable ‘restorative justice’ alternative to traditional regulatory enforcement action, simultaneously addressing both fairness and bias concerns.

A Critical Morality for Lawyers: Four Approaches to Lawyers' Ethics

Abstract: Drawing on the scholarship of legal ethicists and case studies of Australian legal practice, this article proposes a set of conceptual tools for assessing the ethics-in-practice and moral judgment of Australian lawyers. The article proposes that different approaches to legal ethical reasoning can be distinguished by the ways they answer the following questions: (1) to what extent should lawyers' ethics be determined by a special and particular social role that lawyers should play? (2) how should lawyer and client relate to one another in relation to ethical issues? Should one's view of morality prevail over the other? (3) what is the lawyer's obligation towards law and justice? (4) to what extent should lawyers in their daily work make sure they care for people and relationships? On this basis I identify four broad approaches to ethical reasoning in legal practice: adversarial advocate; responsible lawyer; moral activism; and ethics of care. A fifth approach, based solely on the law of professional responsibility and rules of professional conduct, is discussed and dismissed as an invalid ethical approach.

Law Firms Incorporated: How Incorporation Could and Should Make Firms More Ethically Responsible

Abstract: Legal ethics mostly sees the individual lawyer as the focus of responsibility for ethical behaviour. Law firms are rarely held responsible for ethical conduct. Yet the current trend in Australia is to allow the incorporation of law firms (with Queensland's new legislation being the latest example of that trend). This paper examines the responsibility of law firms, as organisations, for ethical issues within the regulatory system for disciplining lawyers and in the context of the commercial pressures on ethical conduct within firms (particularly large commercial law firms). This paper argues that the incorporation of law firms provides a well overdue opportunity to develop an ethics of the responsibility of the law firm as a business, and thereby to significantly improve the ways in which lawyers handle the ethical problems that arise where profitable clients want lawyers to act in their private interests but not necessarily in the public interest. It is often irrelevant what the legal status of the law firm is (ie partnership or corporation), the significant thing is to develop ethical and regulatory models for making both firms and individual lawyers responsible for ethics and conduct. The advent of incorporation raises an opportunity to develop the principles of ethical and regulatory responsibility that ought to be applied to all law firms.