论刑事律师的利益冲突规制

作为律师职业伦理中的重要规则,利益冲突及其规制在我国刑事领域受到了不应有的忽视。规制利益冲突体现了律师消极的忠诚义务,是司法程序理性运行的要求,也有助于维护律师的职业形象。根据利益冲突的严重程度,可将利益冲突划分为直接的利益冲突和间接的利益冲突。基于对利益冲突的严重性、实体真实的发现、当事人获得律师帮助的权利、律师自由执业的机会等因素的考虑,律师存在强制性规避和任意性规避两种方式。违反利益冲突规则既会使律师个人承担责任,也会带来程序性的法律后果。目前,律师利益冲突的规制在我国尚处于起步阶段,未来在利益冲突的类型划分、律师规避、法律后果以及司法审查等方面都有待进一步完善。     

Gendering the Legal Complex: Women in Sri Lanka's Legal Profession

Drawing upon feminist standpoint theory and interviews with pioneering women lawyers in Sri Lanka, I argue for a focus on women as a distinct category in ‘legal complex theory’. I consider the following questions in making this claim. What were the internal structures of the legal profession that the older generations of women lawyers encountered as they entered the profession and as they took up positions of leadership? In what ways, if at all, was the ‘culture(s)’ within the profession patriarchal? In what ways, if any, did the entry and advancement of women impact these internal structures of the profession and its culture(s)? And what can we learn from these experiences in predicting the future trajectory of the legal profession? The analytical expansion that I propose reveals gender-based dynamics within the legal complex, such as gender-stereotyped perceptions about women lawyers within the profession, the ‘feminization’ of the profession, and ‘gender segmentation’ within its different spheres.     

Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct

Based on extensive archival research, this article offers a political account of the six-year process in which the ABA developed its latest ethics code for lawyers, the Model Rules of Professional Conduct. The article casts doubt on the validity of several functionalist and critical theories about the provenance and significance of professional ethics codes generally and the ABA's codes in particular. It evaluates the Model Rules process as an instance of de facto law making by a private group. And it identifies a lawyer's "professionalism-in-fact"–a set of common themes in the way lawyers currently think about the field of legal ethics. At the same time, however, the article stresses the ethical pluralism and structural differentiation of today's legal profession and roots the ethical preoccupations of various types of lawyers in the circumstances of their particular practices.     

Five Years Later: Reconsidering the Original ABA Report on MDP

Reconsidering the original report issued in 1999 by the ABA Commission on Multidisciplinary Practice, this essay suggests that that report properly attempted to deal with questions of legal ethics that might arise if the practice of law by lawyers were integrated into an enterprise in which nonlawyers had a significant degree of ultimate control, but that the commission, perhaps because of undue time pressure, neglected to pursue these questions deeply enough. This essay suggests that more was needed than a proposed mechanism for self-certification of compliance with rules of legal ethics, coupled with possible review of compliance. The "more" that was needed, this essay further suggests, was a proposal for the licensing of an enterprise in which lawyers do not have exclusive ultimate control, as a precondition to permitting lawyers in the enterprise to offer legal services to the general public. Thus, before it could offer legal services to the general public, such an enterprise would need to comply with requirements for obtaining a license, and noncompliance with rules of legal ethics could bring into play traditional disciplinary measures including, where appropriate, suspension or revocation of the license.     

董事忠实义务及其扩张

董事忠实义务在本质上是董事信义义务,与勤勉义务并列,成为约束董事行为的法定机制。董事忠实和勤勉义务均建立在公司与董事之间的信义关系基础上,均以维护公司整体利益为宗旨,但规制重点不同。忠实义务主要规范董事与公司之间利益冲突关系,勤勉义务旨在推动董事发挥聪明才智,两者共同成为评价董事履职的主要标准。忠实义务与民法中禁止自己代理和双方代理的规则之间关系密切,但在制度功能和义务要素上仍有重大差别,不能彼此替代或混为一谈。随着现代社会中公司交易复杂化以及公司集团现象普遍化,规制公司与董事利益冲突的公司法规则正在从“绝对禁止”向“禁止缓和”发展,忠实义务主体则已适度扩张至控股或主要股东,成为补充调整股东与公司关系的特殊机制。     

Natural Law,Basic Goods,and Fiduciary Altruism

Even though fiduciary duties take the highest position in the spectrum of legal altruism, and legal fiduciary altruism sometimes differs from moral fiduciary altruism, natural law morality is not necessarily useless in helping to explain, determine, and justify concrete rules in fiduciary law. Five specific inspirations, in addition to divergences, can be drawn by a closer look at the seven basic goods of John Finnis’ natural law theory. First, the basic good of life may help to determine the boundary of the best interest test under the duty of loyalty. Second, the basic good of play, in particular the distinction between business community and play community may help to justify the separate treatment between civil agency and commercial agency regarding the unconditional power of immediate termination. Third, practical reasonableness may help to explain the rule against set-off under the duty of no conflict. Fourth, different cultural notions of sociability may lead to distinct understandings with regard to the no-profit rule. Fifth, different attitudes towards knowledge in various religious beliefs may create distinct understandings about the burden of informed consent.     

Debate over the concept of the competent lawyer in Japan “What skills and attitudes does Japanese society expect from lawyers?”

It has been 2 years since legal education reform started in Japan. The Justice System Reform Council envisioned the 21st century lawyer as a lawyer who “not only has highly developed professional legal knowledge but also has acquired strong legal ethics based on wide cultural knowledge and rich humanity” (Recommendations of the Justice System Reform Council—For a Justice System to Support Japan in the 21st Century—(June 21, 2001)). Since then, all interested parties have been trying to specify the qualifications needed to be a competent lawyer: What lawyering skills and professional attitudes does Japanese society expect from lawyers; how can they be acquired; and how can they be examined or evaluated? In this paper, I first briefly describe the traditional legal training system and the traditional image of the lawyer in Japan. Second, I look at the history of legal training system reform; summarize images of the lawyer each that interested party envisions, and review the current status of the reform. Then, I explore the optimum way to reinforce the quality and quantity of the legal profession in Japan.     

The Practice of Law With LGBT‐Parent Families

In this article, I examine how a history of legal conflict has produced a constantly evolving professional identity for lawyers representing lesbian/gay/bisexual/transgender (LGBT) clients on family matters. Drawing on in‐depth interviews with 21 lawyers, I describe variation across areas of specialization, advertising, clientele, and access to professional networks. In addition, I focus on how sociopolitical and legal context shapes professional identity and practice for these lawyers, demonstrating the importance of practice location for this group of lawyers. Although interviews were conducted prior to national marriage recognition, these findings provide insight into the future development of the LGBT family law profession post‐Obergefell.     

法律职业的特征解析

何谓法律职业 ,无疑是法律职业研究中的核心问题。本文以社会学关于职业内涵的界定为参照 ,试图通过对法律职业的六个特征的具体解析来揭示法律职业的内涵。这六个特征是学识性、独立性、同质性、组织性、规范化和垄断性     

Specialization and Prestige in the Legal Profession: The Structure of Deference

The process of specialization is now well advanced within the legal profession, and the specialties have acquired clearly varying levels of prestige among the practicing bar. What are the characteristics of the specialties, or of the lawyers who practice in them, that might account for these variations in prestige? In describing the prestige differences and several of the variables that might be thought to account for them, the authors analyze the results of a survey of a large random sample of Chicago lawyers. Among the findings are a strong relationship between prestige within the legal profession and the type of clients that the specialty serves, a substantial correlation between prestige and the degree of intellectual challenge presented by the subject matter of the specialty, and the perhaps surprising result that prestige is not significantly associated with the income earned by lawyers practicing in the specialty. The authors conclude that legal specialties that regularly confront personal suffering lose social standing as a result, that prestige within the profession is directly proportional to the degree to which the specialty facilitates the conduct of corporate enterprise, and that the varying prestige of the specialties is likely to affect the political and professional power of the lawyers who practice in them and to influence the patterns of recruitment of lawyers into law practice.     

Lawyers' ethics in Italy – an historical treatment with some comments on recent changes in approach

This article examines the code of ethics of Italian lawyers in a historical perspective. It takes account of the many books on lawyers' ‘etiquette’ published along the centuries, varied according the different roles of lawyers, solicitors, assistants in the administration of justice and client's interests protection. It focuses the attention of the reader on the statutory rules enacted in the corporative legal system, and then by rules of the Italian Bar Council, which are equated to normative rules, according to the jurisprudence of the Italian Constitutional Court and the Italian Supreme Court. The essential content of the code of ethics concerns general principles of behavior, the relationship among lawyers, the attitude of the lawyer toward their clients, the contacts with judges. Also problems of competition are investigated and the permanent conflict of the Italian Bar Council with the Competition Administrative Authority.     

Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales

The Australian state of New South Wales (NSW) was the first jurisdiction to fully deregulate law firm structure and allow alternative business structures in the legal profession. At the same time it also introduced an innovation in regulation of the legal profession, requiring that incorporated legal practices implement ‘appropriate management systems’ for ensuring the provision of legal services in compliance with professional ethical obligations. This paper presents a preliminary empirical evaluation of the impact of this attempt at ‘management‐based regulation’. We find that the NSW requirement that firms self‐assess their ethics management leads to a large and statistically significant drop in complaints. The (self‐assessed) level of implementation of ethics management infrastructure, however, does not make any difference. The relevance of these findings to debates about deprofessionalization, managerialism, and commercialism in the legal profession is discussed, and the NSW approach is distinguished from the more heavy‐handed English legal aid approach to regulating law firm quality management.     

行人违章交通事故归责原则异议

行人与机动车驾驶者均要求有效率地使用道路,管理者也有同样的要求。法律应如何面对各方面的效率需求?何种效率才是法律本身所追求的价值?是否像有的学者所指责的“取效率而弃公平”?本文以法律经济学分析方法,分析认为该条例所牺牲的恰恰是社会效率。     

实然与应然——法律伦理之可能

法律伦理及法律伦理学是否可能取决于从法律伦理行为事实能否推导出法律伦理行为应该。然而,单纯从行为事实是推不出行为应该的,只有通过法律目的判断以及法律伦理行为事实和法律目的之关系判断才能从法律伦理行为事实如何推导出法律伦理行为应该如何。法律伦理行为之应该经由人们的实践活动可以变为现实,其具体保障在于法律伦理良心、法律伦理名誉及底线法律伦理的法律化。     

Conflict over Conflicts of Interest: An Analysis of the New NIH Rules

Concern over research integrity at the NIH led to the adoption of strict conflict of interest rules in 2005. An outcry from NIH scientists followed. This paper analyzes the legal and ethical issues raised by the new rules, and suggests potential areas for modification.     

Would responsible medical lawyers lose their patients?

This essay presents an analytic approach to understanding patients' responsibilities. Prompted by arguments in Margaret Brazier's article 'Do No Harm--Do Patients Have Responsibilities Too?', the paper demonstrates how medical lawyers can attempt to answer the questions Brazier raises, particularly regarding the translation of ethical responsibilities into legal ones. It suggests that the expansive nature of medical law as a discipline renders increasingly unhelpful the paradigm 'autonomous patients' found in a narrowly understood medical ethics. The great variety of contexts in which analysis takes place--some more, and some less 'medical'--implies a need in each case to presume that there might be radical variation in the responsibilities (legal and ethical) of different patients. It is therefore argued that instead of a one-size-fits-all paradigm of 'patients', always possessive of the same rights and freedoms, medical lawyers must be prepared to conduct analysis around more particular, nuanced concepts of the patient, and ultimately in a frame of legal and political rather than moral theory.     

The Obligations and Expectations of Couples Within Families: Three Modes of Interaction

What kinds of family structures emerge after a couple relationship is formed? How are obligations perceived towards the family of origin and the family of the partner? How are obligations perceived towards the older generation and towards children? How are conflicts of interest approached or resolved? How are the obligations arising from these personal relationships affected by gender, ethnicity, culture and religion? This paper reports some findings from a qualitative study of 39 men and women aged 25–40 which investigates the social context for the legal regulation of couple relationships; whether marriage, cohabitation or civil partnerships.     

中国律师的职业定位

律师职业是现代法治的必备元素,独立而完善的律师阶层以保障民权、制衡公权为己任。职业化使得中国律师走向独立,这同时又是去行政化的过程。商业化因素在这一过程中起着不容忽视的正面和负面作用,应当施以公允的评价并进行一定的控制。在忠诚的前提下,律师对于委托人亦应当保持必要的独立。考量中国司法制度运行的现状,律师如何保持同公、检、法三机关的独立是一个亟待解决的问题。     

律师执业精神初探

具有中国特色的社会主义律师文化,是律师行业的精神支柱,而律师执业精神是律师文化的核心。加强律师文化建设,必须形成符合社会主义法治理念要求和律师职业特征的律师执业精神,并以此作为整个律师行业的价值追求取向。本文提出了律师应注意培养的十种执业精神,希望对律师文化建设有所裨益。     

In Search of the Nature and Function of Fiduciary Loyalty: Some Observations on Conaglen's Analysis

Fiduciary law is in a state of flux. We know that the core obligationof a fiduciary is an obligation of loyalty, but we are lesssure what ‘fiduciary loyalty’ encompasses. We knowa fiduciary has duties not to profit or put himself in positionsof conflict, but how these duties interact with other non-fiduciaryduties (whether tortious or contractual or otherwise) is moredifficult to discern. Against this background, Conaglen hasmade a recent contribution to our understanding of the fiduciarydoctrine. He suggests that fiduciary loyalty offers a subsidiaryand prophylactic form of protection for non-fiduciary duties.This article considers his analysis, and argues that it is notsupported by case law and creates a number of inexplicable implicationsfor the fiduciary doctrine. In view of these difficulties, Conaglen'sanalysis should be rejected.