Introduction

Professions hold a position in society through which they exercise certain kinds of power. Lawyers in England and Wales played a significant role in building the medieval state. Their role grew as courts moved to rational systems for resolving disputes based on evi­dence and rules of logic.² The increasing importance of lawyers coincided with the growth of capitalism and the evolution of the modern state system.³ With industrialisation and democracy, lawyers assisted the efficient resolution of new types of dispute.

The social order did not offer English lawyers the same political influence as their US counterparts. Lawyers in the USA have been described as a ‘natural aristocracy’, mingling with democratic elements of society and serving as intermediaries between property and poverty.⁶ Nevertheless, Max Weber noted that the English Bar had

¹ P Bordieu ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 The Hastings Law Journal 805, at 819.

² MJ Saks and R Van Duizend, The Use of Scientific Evidence in Litigation (Williamsburg, VA, National Centre for State Courts, 1983) at 5.

³ D Rueschemeyer, ‘Professions Cross-Nationally: From a Profession Centred to a State-Centred Approach’ (1986) American Bar Foundation Research Journal 415.

⁴ D Phillips, ‘Some General Thoughts on the State of the Republic and the Obligation of the Legal Profession to it’ from an address to a conference of the Fourth Judicial Court of the United States at Hot Springs, Virginia, 1969 (cited in JF Sutton and JS Dzienowski, Cases and Materials on the Professional Responsibility of Lawyers (St Paul, MN, West Publishing, 1989) at 12).

⁵ LM Friedman, ‘Lawyers in Cross Cultural Perspective’ in R Abel and P Lewis (eds), Lawyers in Society (Berkeley, CA, University of California Press, 1995).

⁶ GC Hazard, ‘The Future of Legal Ethics’ (1991) 100 Yale Law Journal 1239, at 1272.

‘a measure of power which neither King nor Parliament could have easily brushed aside’.⁷ Increasing industrial and commercial activity during the nineteenth and twentieth centuries afforded solicitors great business opportunities. They were able to fulfil a central role in the emergent capitalist state.

The historical legacy of the legal profession is its most prized professional privi­leges; independence from political influence and autonomy in conducting its own affairs. This supports the personal autonomy of legal professionals within a collegial setting. Lawyers are, to some extent, independent, even when part of an organisation. Power can also be enjoyed in ways that have no obvious economic pay-off. Professions enjoy a high level of authority compared with other occupations. Collectively and individually professionals enjoy special status and privilege.

The conditions for these different types of power are threatened by the situation of contemporary society. Lawyers are increasingly in conflict with economic and political interests that threaten the autonomous and formal system of law. Since the beginning of the twentieth century, professions have been accused of a conspiracy against the general public.⁸ Professional monopoly, far from serving the public good, forces up the price of work and conceals incompetent service.⁹ Professional ethics is seen as holding ‘in uneasy juxtaposition the two faces of professionalism—the one monopolistic, even narcissistic, and the other benign, even altruistic’.¹⁰

Privileges of knowledge, wealth and social position are sometimes seen as the reason why high standards are expected of professionals. The term noblesse oblige referred to the obligations of the aristocracy. The idea is that privilege comes with responsibility, particularly in leadership. Therefore, nobles would be expected to be in the front line in battle. This connection, between privilege and responsibility, has been cited as a possible basis for professional ethical responsibility.¹¹ If this is so, profes­sional ethics are, arguably, contingent on professional power.

II.