Practising Pluralism: Regulating Lawyer Conduct in Pacific Island Countries: Fiji, Kiribati, and Vanuatu

Abstract

This thesis presents the findings of the first comprehensive academic investigation of lawyer regulation and practice in Pacific Island Countries (PICs). Good lawyers are in high demand in PICs as facilitators of trade and economic activity and access to justice; champions for the rule of law; and technical experts in the ongoing projects of decolonisation and protection of indigenous cultures. However, in most Pacific jurisdictions, existing regulatory systems typically lack resources and capacity to regulate lawyers effectively, creating serious negative consequences for clients, the administration of justice and inevitably for trade and investment.

Utilising documentary analysis and ethnographically informed fieldwork conducted in three jurisdictions: Fiji, Kiribati, and Vanuatu, this thesis describes how state and non-state systems regulate lawyer conduct in practice and how lawyers in these PICs conceive of being a 'good lawyer.' It finds that lawyer conduct is influenced by a plurality of actants from both state and non-state sources, requiring lawyers to perform a complex 'dance' to navigate conflicting professional, customary and social norms. The empirical findings also demonstrate that reform of laws regulating lawyers is both technically and politically complicated, with challenges compounded by bureaucratic capacity constraints, embedded normative pluralities and other factors such as scale and geography.

These empirical findings lead to the theoretical argument that regulators who wish to intervene to strengthen lawyer competence and ethics in PICs need to go beyond strategic interventions in legal education, professional development, supporting professional associations of lawyers, and law reform (although all those are necessary). What is required are innovative regulatory approaches that are better adapted to local contexts and constraints than the existing and (mostly) outdated models. To aid in such a development, the thesis proposes a 'pluralist-relational approach to lawyer regulation,' which was developed abductively from the empirical data and draws from theories of pluralism, relationality and regulatory compliance.

There are three main advantages of a pluralist-relational approach. First it emphasises the need to understand lawyer regulation empirically, extending analytical depth beyond existing scholarship that primarily relies on comparative approaches with regulation in the Global North and involves a needs/deficit lens to evaluate existing regulatory frameworks. Second, it enables a regulator to develop a holistic understanding of the complex and relational factors that influence lawyer conduct in PICs, ensuring a deeper understanding of the compliance puzzle. Third, by applying a pluralist-relational approach to lawyer regulation, a regulator can formulate adaptive and context-sensitive regulatory and enforcement strategies that work 'with the grain' of locally embedded systems.