Different Conceptions of Public Service

A. Public Service

Altruism is the unselfish concern with the welfare of others. During the industrial revolution, particularly during the period between 1840 and 1880, the Victorians laid the foundations of civically minded democracy.⁸ In the public schools, the likes of Thomas and Matthew Arnold urged on privileged young men the moral duty of working for the good of others.

Implicit in Pound’s notion of public service is the idea of a higher motivation than profit. Professions were a public benefit because their cultural rejection of selfishness was service. What Pound actually meant by public service was more difficult to pin down. He saw the very act of maintaining a profession, and thereby the integrity of lawyers, the legal process and the rule of law, as a public service. He observed that, whenever lawyers had been discouraged or had been weakly organised, from ancient Rome to the American frontier, abuse was rife and the public interest suffered.¹⁰

⁸ S Heffer, High Minds: The Victorians and the Birth of Modern Britain (London, Random House, 2013).

⁹ Pound, The Lawyer from Antiquity to Modern Times (n 1) at 5.

¹⁰ ibid, at XXV and 40.

Pound cited three concrete examples of ways in which bar associations in the United States prioritised the public good over self-interest. First, unlike businessmen, they were not competitive with each other. Pound said that, if a lawyer discovered something ‘useful to the profession and so to the administration of justice through research or experience he publishes it in legal periodicals...

The notion of public service emerging in Victorian society appeared to be par­ticularly influential on the emerging solicitors’ profession. The gentlemanly veneer, aspirations to collegiality and mounting of public lectures on legal innovations, fitted well with the idea of professional work as public service.

B. Social Service

In the twentieth century, public service became more closely identified with gov­ernment financing of services essential to the public. The idea of ‘a public service’ covered water, power and waste removal, but also health care, education and law enforcement. The advent of the welfare state after the Second World War added medi­cine and legal advice and assistance to the list of public services the state aspired to provide. Combined with changes in the legal services market, competitiveness between firms and threats of strike action by legal aid lawyers, legal aid threatened Pound’s genteel conception of public service.

As law itself became a public service, there may have been a subtle shift in the ethos of the profession, away from wider notions of public service towards an ethic of dedicated service to individual clients.^[2294] The ‘spirit of public service’ may even have led to creation of a ‘social service ethos’ in those parts of the legal profession closely involved with legal aid.^[2295] This may even have begun to tie the idea of public service to the performance of legal aid work. It was certainly consistent with the idea that the profit motive was not the dominant reason for professional work.

It may be no coincidence that the exposure of lawyers to ordinary people since the Second World War, and the changing terms of engagement, apparently led to a fall in public esteem. A survey of respondents in three London boroughs in 1967-68 revealed a broadly positive perception of lawyers, with many thinking that they charged fair prices, were honest, and gave both rich and poor equal attention.^[2296] These positive perceptions were contradicted by respondents also thinking that lawyers would do anything to help their clients and often overcharged.

Negative perceptions grew in the succeeding decades, when public service claims were increasingly queried. This may have been due to a variety of factors, from the world-wide growth of consumerism, better information or increased contact with pro­fessions by ordinary people. In the US, the President, and Chief Justice, even rebuked the profession for its low public standing, which opinion polls suggested was due to its ‘greedy and self-serving’ image.^[2297] By 1987 the Law Society’s own research showed that, compared with similar occupations, solicitors were only perceived as less dishon­est and avaricious than estate agents.^[2298]

C. Statutory Definition

The definition of service became somewhat more concrete when government tried to restrict the use to which practising certificate fees could be put.^[2299] The Solicitors Act 1974, section 11(3) originally stated that ‘[a]ll fees received by the Society under subsection (1) shall be applied in such manner as the Society may think fit for the purposes of the Society’. The Access to Justice Act 1999, section 46 restricted the pur­poses for which the income from practising certificates could be used to regulation, education and training.^[2300] These purposes were further defined by statutory instru­ment before reaching their current form in the Legal Services Act 2007 (LSA 2007).^[2301] The LSA provides that the Legal Services Board must ensure that any rules covering the use of money raised by practicing fees include regulation, including education and training, and the following purposes:

(c) the participation by the approved regulator in law reform and the legislative process;

(d) the provision by relevant authorised persons, and those wishing to become relevant authorised persons, of reserved legal services, immigration advice or immigration ser­vices to the public free of charge;

(e) the promotion of the protection by law of human rights and fundamental freedoms;

(f) the promotion of relations between the approved regulator and relevant national or international bodies, governments or the legal professions of other jurisdictions.^[2302]

The permission to use practicing fee income for the provision of free reserved services, and immigration advice, reflects persistent attempts by government to develop pro bono as part of a strategy for providing access to justice.

III.