A Future for Professionalism?

In 1986 Abel noted the declining level of control that the legal profession exercised over the market for their services.^[519] This has continued, although the profession is still responsible for legal education, regulation, including codes of conduct, and disci­pline.

A. Predicting Changes in Key Elements of Professionalism

The advantage that professionalism has over other forms of control of expert knowl­edge lies in the exercise of discretion. Professionalism encourages discrimination in the application of knowledge in different situations. There is potential that reform of the legal services market may yet go further and that professional control of legal knowledge will be further diminished. The limits of change will depend on a number of factors, including the nature of legal knowledge, the maintenance of professional authority and the relationship with the state.

i. Control of Legal Knowledge

a. Demystification of Knowledge and Skill

Control of a distinctive field of knowledge is the rationale of professionalism.^[520] Constituted as a university discipline, knowledge acquires status^[521] and mystique.^[522] Law, while firmly established in the academy, is unusual in the field of professional knowledge in having a social scientific rather than pure science base. Law’s lack of a scientific base makes it particularly vulnerable to deconstruction.

In the 1990s both barristers and solicitors began to teach legal skills on their profes­sional courses. Even the skill of advocacy, declared by earlier generations of barristers to be achievable only through experience, underwent demystification.^[524] Solicitors declared there to be ‘no magic to advocacy’^[525] and litigants were advised to represent themselves in court.^[526] Peer review claimed to be able to accurately assess legal com­petence.^[527] This opened the way for new methods of external control of lawyers, from controlling the flow of work to legal aid providers to assessing the competence of advocates.^[528] The argument that legal work was indeterminate, and depended on the exercise of discretion, has been weakened.^[529]

b. Technologies

In the future, information systems and technology will perform tasks now performed by lawyers.^[530] A commoditised legal product is defined by Susskind as an ‘online solu­tion made available for direct use by the end user, often on a DIY basis’.^[531] Susskind suggests that the commoditisation of legal services is inevitable, as firms are led, by market forces and technological innovation, through a sequential process of stan­dardisation, systemisation and packaging.

Even if law firms do not commodify legal services, Alternative Business Structures will be more motivated to use technology to cut cost. The role of ABS in bringing commoditised legal products to the market is an aspiration of the LSA 2007 and an outcome predicted by the LSB.^[532] The intention is that lawyers will cease to dominate the interface between citizens and the law.^[533]

Susskind predicts that there will be a change in lawyers’ core business, with a stronger emphasis on dispute resolution and problem solving.

The Bar, the epitome of bespoke service and custom work, may be best suited to survive the commoditisation of legal services. This depends on the value placed on specialist consultancy and advocacy services in a market where large firms provide these services ‘in-house’. It is possible that the highly profitable commercial, chancery, tax and intellectual property sets might survive in the traditional model. Common law sets or those doing publicly funded work will have to adapt to the new market or they will go out of business. In any event, the control that the legal profession exercises over legal expertise will lie in education and training. There will be relatively weak control over practice in many legal workplaces.

c. Re-forming Communities

A technological revolution in the delivery of legal services will lead to changes in traditional units of delivery. It might be anticipated that law firms will withdraw from established areas of practice, like legal aid, and that lawyers working for ABS will fill the gap. The barrier between solicitors and barristers and the relationship between them will change. Solicitors are necessary to barristers as referrers of cases, whereas barristers are less necessary as pleaders or advocates. Barristers are therefore more likely to form barrister organisations or join larger solicitors’ firms, or other entities, which are better able to afford in-house advocates.

This re-formulation of work boundaries might have implications for training or for the way professions are organised.

ii. Professional Ideology

a. De-professionalisation

De-professionalisation typically refers to loss of control over the knowledge base and decline in the notion of service. These two factors are connected. If the legal profession does not offer an attractive career structure, it may lose its appeal as a destination for top graduates. In order to maintain recruitment to the profession it may be necessary to reduce time spent in education and training. If a long, generalist education is not considered necessary for all legal tasks, workers connected with these roles will lose status and could be excluded from professional membership. In these circumstances it is likely that the idea that the work is conducted in a spirit of service will diminish. This, in turn, is likely to increase the appeal of trade unionism, leading to increases in strike action by groups affected by low rates of legal aid.^[535]

Criminal barristers at the lower end of the scale had not seen their rates rise since 1997. In 2005, a strike by criminal barristers was averted by the promise of a review of legal aid payments by Lord Carter of Coles.^[536] The Carter Report noted that England and Wales had the highest per capita spending on criminal legal aid in the world. Attributing this to payment by the hour, he proposed fixed fees for all cases except the most complex.^[537] Carter’s proposals also sought to encourage the more efficient solicitors’ firms, reducing the numbers doing criminal legal aid work.

While changes were made to the distribution of legal aid to lawyers, cuts continued to be made in the overall budget. A threatened cut of a further 30 per cent resulted in a half-day strike of criminal defence barristers in January 2014. A war of words between the Criminal Bar Association and the Ministry of Justice ensued, with competing claims about the levels of income available to criminal barristers.^[539] The government said that criminal barristers’ average annual earnings from legal aid were £86,000 and six barristers had received around £500,000 from legal aid during 2013.^[540]3⁹ Similar data released before the Carter Review had shown that, in 2004-05, one barrister had been paid £1.18 million from legal aid and the next 10 highest made more than £600,000 each.

The action of criminal lawyers in striking is open to interpretation. It can be presented as action in defence of the right to legal representation. The emphasis on salaries, for example, was explained by concern that barristers would desert criminal defence and that talented and able people would not be drawn to the Criminal Bar. The refusal to appear in cases where briefs had been delivered is an apparent breach of the Bar Code. It weakens the case for professionalisation of lawyers based on rule of law arguments.

b. Weakening of Professional Ideology

Perkin suggests that, from the nineteenth century, there has been a wider movement towards professional society, constituting the third great revolution of social rela- tions.^[541] A wide range of specialised occupations have selected members by merit and developed trained expertise. They have excluded the unqualified and used human capital, the value of education, training and experience, to command an increased share of resources.

Kritzer argues that formal professions like law, which combine elements of expert knowledge with self-regulation, are losing their uniqueness and being eclipsed by what he calls ‘general professions’, occupations with expert knowledge but no additional privileges.^[542] This transformation is reflected in sociological analysis of professional­ism, which focuses on issues of professional identities, competence and responsibili­ty.^[543] Because of these transformations, society, it could be argued, has absorbed the benefit of professional values and no longer needs professions.

c. Counter-ideology

Freidson suggests that critical attacks on professions often involve empty rhetoric.^[544] Public policy towards professions is driven as much by ideology as by necessity or evidence.^[545] The counter-ideology of competition does not answer the question of how expert knowledge should be controlled. Yet, competition has its own logic. As Abel observes ‘arguments against it quickly become unconvincing, and producers and consumers who gain from competition strenuously resist the re-imposition of restraints’.^[546] Competition tends to concentrate resources. The size of organisations increases, producing an oligopoly, a situation where an industry has a small number of sellers, actually reducing competition.

iii. Relations with the State

a. Competition with the State

A profession’s relations with the state reflect the circumstances of its creation. Where the state creates professions, the civil service becomes the cultural and social exemplar of occupational and social success. Where professions emerge independently, ‘from below’, they become the exemplar of success. Legal professions, independent, corpo­rately and privately organised occupations, emerged from below in Anglo-American society.

The circumstances in which the English professions developed placed them in com­petition with elements of the state, such as the civil service. Professional power and privilege is ultimately within the power of the state to grant or withhold. Abbot shows that, even in the 1880s the state created government offices and procedures that would deliver legal services without the need for lawyers.^[547] Thus, he concludes, while US lawyers competed with major corporations over the legal market, the chief competitor of English lawyers was always the state.

b. The Regulative Bargain

Professional relations with the state can be interpreted as a ‘regulative bargain’. Under this bargain, the state devolves power to a profession provided it acts in the public interest.^[548] If the power is abused, the state may alter or avoid the contract. Therefore, Paterson construed the removal of the conveyancing monopoly as state retaliation for over-pricing.^[549] If this was as re-negotiation of the regulative bargain between the state and solicitors, successive Acts of Parliament suggest that the state continues to seek new solutions to the problem of controlling legal expertise.

The idea that professions are altruistic communities working for the common good and swimming against the tide of materialism, fell out of favour with functionalist sociological theories.^[550] Rather, it was assumed that professions operated in their own financial self-interest. Burrage doubts this interpretation. He contends that the his­toric behaviour of the legal profession is consistent with its own notion of the public good. This is focused on ‘honour and status rather than money and markets’.^[551] Burrage sees the Bar’s efforts to exclude solicitors from high value claims in the County Court as a defence of a principled division of labour.^[552] It certainly was not seeking financial advantage when it channelled representation of the capitalist classes to solicitors.

Some more recent evidence of the impact of monopoly is less positive for professions. The decline in conveyancing charges in anticipation of competition does suggest that they were set too high. It was often said, however, that solicitors used conveyancing to subsidise other services, like litigation, which were more difficult to make pay. Leaving aside the example of conveyancing, solicitors seemed little concerned about the market. Evidence that legal charges are evidence of monopoly profits is elusive. A report by economists prepared for the LSB found no evidence of overcharging.^[553] One of the fac­tors that restricted development of the public defender service was that it was found to be no cheaper than using private lawyers.^[554]

c. Government Agendas

Hanlon suggests that the neoliberal agenda of the Thatcher regime was to break the professions’ commitment to social democracy and in the process change work prac­tices, socialisation processes and ideology.^[555] The 1989 Green Papers and subsequent legislation signals government frustration with the legal professions’ resistance of government agendas for legal services. It is possible, however, that there was never a clear agenda in relation to the legal profession. What has transpired is a process of exploration of the possibility of replacing private lawyers in the delivery of legal ser­vices for the poor. The latest stage, the LSA 2007, promotes legal corporations, in the form of ABS, over professions. This may be because corporations are a more natural fit with the consumer state.

Under recent governments the public sector has been increasingly dominated by the private sector.^[556] In relation to professions this change is reflected in the declining suc­cess of welfare professions, like social work, and the increasing power and wealth of corporations. This exposes the schism in the legal profession, between the commercial lawyers, linked to the corporate sector, and the legal aid lawyers linked to the public sector.^[557] The implication of this is that the professions could break up, reconfigure along different lines and pursue different survival strategies. An alternative is to seek a new engagement with the state.

d. State Mediation

State mediation can define client needs or determine how they will be provided. Johnson suggests that the state may mediate professionalism with a minimum of encroachment upon an existing system of professionalism and that this may support, for a time at least, existing institutions.^[558] This may suggest that current reform is transitional. Government appears increasingly sceptical of the rationale for the estab­lished professions, but, contradictorily, often sees professionalism as the solution to abuse of power in relationships with consumers.^[559] Freidson considers that the ‘worst and not unlikely possibility is that professionals will be slowly transformed into espe­cially privileged technical workers’.^[560]

iv. Authority

a. Power to Influence

Authority is subtly different from power. Power is the ability to make something hap­pen. Authority refers to legitimacy, the basis of the right to exercise power. Expert knowledge is the key to professional power. In the context of the present discussion, authority refers to the exercise of power by legal professions through their professional bodies. This culturally legitimised organisation of power^[561] enables the profession to influence policy, for example, in law reform work.^[562] The profession claims occasional success in influencing government policy on legal issues, for example, on mental health^[563] and fraud trials.^[564]

The fact that legal knowledge is primarily normative, unlike the natural and bio­logical sciences,^[565] means that legal experts are more easily contested by those of other disciplines, like sociology or economics. Professional authority is also contingent; its legitimacy depends on how it is exercised. Therefore, the campaign waged by dentists for the fluoridisation of water, even though this would decrease their work, increased the dental profession’s legitimacy.^[566] Conversely, trying to influence public policy to the profession’s advantage undermines legitimacy. Lawyers protesting against cuts in legal aid, for example, can be presented as self-interest, even though it is also an issue of access to justice, in which lawyers have a legitimate interest.

There is no doubt that professional authority has been weakened in the neoliberal state. Not only has the traditional establishment been marginalised by the emphasis on competitive markets, corporations have gained greater power and prominence. The separation of regulatory and representative functions may also undermine legitimacy of the representative arms of the professional bodies. As the very term ‘representative’ suggests, their role is seen as special pleading on behalf of members. The proliferation of ABS in providing legal services will dilute and weaken the authority of professional bodies.

b. Professional Legitimacy

Halliday argues that the degree of legitimacy of the professional view depends on the conjunction of its authority in relation to particular types of issues and the sphere of influence in which it is operating. The legal professions have had considerable legiti­macy in their areas of technical expertise, for example, the conduct of litigation, and in their primary institutional sphere, the operation of the legal system. In addition to their areas of expert authority and spheres of primary influence, professions also have spheres of secondary influence.

In secondary areas of authority, the weakness of Law’s disciplinary base becomes an advantage. Normative professions, like Law, have ‘a broad mandate to range extensively over moral terrain’.^[567] Lawyers colonise secondary institutional spheres like politics, where they have always been disproportionately represented, and where the legal point of view is often influential.^[568]

c. Fora

Promoting a professional agenda may be hampered by a relative absence of platforms for divergent views. According to Perkin, in the successful capitalist coun­tries, France and Germany for example, stakeholding is built into the structure of society. Business stakeholders co-operate and elites balance their own interests with the public good. English society had no entrenched system of stakeholding. When Labour Governments in the late 1990s sought to make the professions stakeholders in its ‘third way’ between right-wing economic policies and left-wing social reform, its overtures were resisted. It may be that what the state really requires is for the legal professions to engage with the technical and social revolutions of late modernity, essentially to modernise using competitive rather than professional logic.

B. Neo-professionalism?

There are a number of possible responses to the decline of legal professionalism, depending on the nature of surviving professional institutions. Freidson predicts that professional economic and political institutions will survive, but that the indepen­dence of professions to choose the direction of development of their knowledge, and the uses to which it is put, will decline.^[569] How can the legal profession respond?

i. Protection of the Constitutional Role of Lawyers

The framing of the LSA 2007 makes it clear that the notion that lawyers have a consti­tutional role in protection of the rule of law and administration of justice still has some traction. If, for example, the state were to go further in making lawyers government employees, there could be a threat to the quality of justice and a threat to civil liberties.

A chair of the American Bar Association has warned that innovations such as block contracting and public defenders will eventually lead to deterioration in the quality of representation to the poor.^[570] Lawyers employed directly by the state might be less trusted to take action to limit state power, like control of data from the internet. These considerations provide a position for the maintenance of a core of independent professional control.

ii. Entrepreneurialism

The legal professions have a position of considerable advantage in the market for legal services. They have experience of a wide range of business, exclusive rights to undertake key activities, such as litigation, and the trust of consumers. They will be able to use this expertise as a platform to capture new areas of work. Having done so, they will be able to build a de facto monopoly and, in some areas, build a case for legal monopoly. Opportunities to identify new areas of work are likely to arise in a number of areas, including on the international stage.

Ramsay identifies a range of factors which influence demand for legal services.^[571] These include the increasing need to regulate the relations of individuals and cor­porations; the organisation of legal business, for example, by creating or reinforcing monopolies; internationalisation of legal work bringing together geographically remote parties; population diversity requiring normative ordering, changing demo­graphics, wealth levels, levels of complexity in life; increasing bureaucratisation of society and growth in the range and use of administrative remedies; changes in pro­duction of goods and services; transactions affecting the allocation of resources; com­plexity in business transactions and financial innovation and changing technologies.

iii. Internal (Organisational) Closure

Failure to achieve social closure of the market can be overcome in the short term by internal closure within firms themselves.^[572] By stratification within the legal services market, organisational closure, professional elites can preserve their position at the expense of junior members and at the expense of collegiality. While such strategies may preserve the power of elites, the legitimacy and influence of professions will suffer.

iv. Professional Bodies

Professional bodies have a vital role in the new occupational order, not least in mar­shalling the argument for professional jurisdiction over the market for legal services. Professions have to organise the various resources required for such a struggle of ideas, particularly rhetorical resources.^[573] In the short term it is not likely that professional bod­ies will be replaced by other organisations charged with training lawyers. Although edu­cation is largely the responsibility of separate educational establishments, professional bodies determine the curriculum, providing a vital link with practitioner knowledge.

Corporations tend to generate knowledge in their own economic interest rather than for the common good. Professions, as collegial organisations, also generate knowledge of general public utility. They ‘ceaselessly scan their environments for any changes in their knowledge base or in client needs that bear on the positional interests of anyone in their entrenched position of power’.^[574] Sometimes this activity is self-interested, as when the Law Society warns of the risks run by those instructing unregulated advisors, like will writers and claims farmers.^[575] Nevertheless, it is a kind of activity that is generally beneficial to society.

VI.