Legal Professionalism in the Late-Modern Period 1970-2007

A. Context

Abel argued that the legal profession lost control of the market for legal services, by failing to control, first, the production of producers and, second, production by producers.

During the twentieth century legal services became an important political issue. Following the Second World War there was a massive expansion in demand for legal services. This was attributable to changing patterns of ownership (including personal ownership of real property or national ownership of industry), the increased regula­tion of social life and the development of technology. The growth in the personal resources of the employed, and the advent of legal aid, brought the services of lawyers within the scope of more people.

As demand for legal services forced up the numbers of lawyers, the legal profession took on low status work. The Law Society accepted that this was inevitable when the Lord Chancellor threatened giving waivers to solicitors to work in advice agencies fol­lowing the Legal Aid and Advice Act 1972.^[434] In the late-1980s the decline in residential conveyancing forced more solicitors into legal aid work,^[435] particularly the newly intro­duced Magistrates’ Courts duty solicitor scheme.^[436]

Many lawyers were not rich. In 1972, the median income of the 4,000 strong Bar was £2,300 a year and 30 per cent earned less than £1,000.^[437] Nevertheless, the perception that lawyers provided a social benefit became more contentious. Civil servants, academic research, media and consumer groups undermined professional claims to act in the public interest.

Increased claims consciousness^[439] led consumers to challenge the necessity for professional interventions, their cost and effectiveness. The Marre Report noted, somewhat regretfully, that

[m]ore members of the public are now inclined to complain about poor quality or costly ser­vices... are no longer deferential to those who provide professional services... consumers are less willing to accept uncritically the authority which used to be attached to professional people.^[440]

In 1995, a survey of consumer attitudes in the UK suggested that people saw the legal system as ‘out of date, slow, too complicated and easy to twist’.^[441] Only a quarter of respondents believed that the legal system was something to be proud of.

Middle income groups, ineligible for legal aid but not rich enough to fund litigation, were the most likely to be dissatisfied with the legal help available to them. The growth of the market for legal services made the issue of access and the cost of legal services an electoral issue. The provision of legal aid, funding work arising particularly from increases in the levels of crime, family breakdown and debt, gave the state a financial interest in the cost of legal services.^[442] This, it was predicted, could lead to demands for more state control as a regulator and purchaser of legal services.^[443]

By far the most significant factor influencing the profession was, however, the elec­tion of the Conservative Government led by Margaret Thatcher in 1979. The years preceding Thatcher had seen many small changes in the courts and legal markets. There had been considerable debate over bigger changes, such as fusion of the pro­fessions, and the Labour Government was sufficiently concerned to create a Royal Commission under Lord Benson in 1975. Benson reported in 1979,^[444] but largely favoured the status quo.

Why had the legal professions survived virtually unchanged for 300 years and why did the tide suddenly turn? Burrage argues that the arrangements under which the legal profession flourished reflected a desire for a pluralistic civil society. This idea was sup­ported by a social consensus through turbulent social periods from the sixteenth century onwards. The legal professions were, in effect, a bulwark against revolution. They occu­pied young men when they might otherwise have been inclined to ferment strife. They were a counterweight to the individualism that pervaded England, arguably throughout the medieval period.^[446]

By the Thatcher period several factors had changed.^[447] From the 1960s the swell­ing of the professions with practitioners who had taken the university route created a different environment. The increasing numbers of academics led to more research and an increasingly critical perspective on the profession. From the 1970s there was increased interest from new pressure groups, such as Legal Action Group and the Consumers’ Association. There was also increased attention from civil servants in the Lord Chancellor’s Office in the 1970s and the Office of Fair Trading in the 1980s. Added to these factors were the personalities of the main protagonists, Thatcher her­self, a barrister who had been rejected by a number of chambers, and Lord Mackay, a Scottish lawyer and therefore outside the English legal establishment.

The Thatcher Government had a reformist agenda for the whole of society, under­pinned by a neoliberal political philosophy. The aim was to benefit consumers of goods and services at home and restore the United Kingdom as a trading nation in an increasingly competitive, globalised economy.^[448] The strategy was to encourage economic liberalisation, promoting free trade and open markets.

Under the Conservative Government’s plans, public sector and public expenditure would decrease while many of its roles would be increasingly fulfilled by the private sector. The state would confront vested interests seen as anti-competitive forces. This included trade unions and the ‘little republics’, like the Bar, which hindered both the dominance of the state and the operation of markets. The neoliberal policy was tem­pered but largely continued by the Labour Government of Tony Blair elected in 1997.

B. Community

There have been times since the 1970s when huge additional numbers undergoing legal training could not be accommodated in the conventional professions. Considerable bottlenecks at the pupillage and training contract stages left many aspiring lawyers unable to take the first step in private practice. Many entered employment ‘in-house’ in government service and corporations or as para-legal workers. These lawyers were potential competitors for private practitioners and potential opponents of the private legal professions.

C. Work

i. Monopolies

a. Conveyancing

The first inroad into professional monopoly was the solicitors’ control of land trans­fers. Land transfer contributed a large part of solicitors’ income. The Solicitors’ Remuneration Act 1881 caused unrealistically high conveyancing fees, leading to the Law of Property Act 1925 and a simpler system. This was supported by the Law Society, which secured concessions ensuring that there were still fees to be made from land transfer.^[449]

By 1968, 55.6 per cent of solicitors’ income, but only 40.8 per cent of expenses, came from conveyancing. Levels of charges were investigated by the competition authorities in 1966, 1970 and 1974. The abolition of conveyancing scale fees in 1973, combined with a property slump, produced competition between solicitors and lower charges. Consumer pressure for lower conveyancing fees grew with the increase in owner occupation.^[450] In the 1980s, the cost of land transfer was seen as an impediment to the Thatcher Government’s policy of selling council houses.

In 1985, legislation created the Licensed Conveyancer, to conduct ‘the disposition or acquisition of estates or interests in land’.^[452] A year later, the Lord Chancellor was given statutory power to recognise building societies and other institutions as provid­ers of conveyancing services.^[453] The Council for Licensed Conveyancers, created by statute,^[454] had power to make training rules,^[455] award licences^[456] and make codes of conduct and discipline.^[457]

The numbers of licensed conveyancers were not great but their anticipated arrival in 1986 stimulated unprecedented competition between solicitors. Between 1983 and 1986 solicitors reduced their conveyancing fees by around 25 to 30 per cent.^[458] Conveyancing remained one of the main areas of solicitors’ work. Even by 1990, high street firms derived more than half of their income from that source.^{[459] [460]}

The success on conveyancing greatly encouraged the Thatcher Government, but further progress against the legal monopoly was halted in the early years of the Thatcher Governments by Lord Hailsham, the Lord Chancellor between 1979 and 1987. Hailsham had long periods of practice as a barrister and was sympathetic to professions and their ‘arcane ethics’. He believed that the independence of the judi­ciary would be threatened by weakening the legal profession and considered this more important than laissez faire.⁵ Hailsham’s departure began a period in which succes­sive governments, Tory and Labour, began an assault on lawyers’ legal jurisdiction. The next target was advocacy.

b. Advocacy and Litigation

Until 1990 solicitors had automatic rights to appear as advocates in Magistrates’ Courts and County Courts on qualification. In 1979 the Benson Report rejected the idea of solicitor advocacy in higher courts.

The Courts and Legal Services Act 1990 provided for authorised bodies to accredit their members in the exercise of advocacy rights. This opened the way for solicitors to acquire ‘higher rights of audience’ and to compete with barristers for advocacy in the High Court and senior appeal courts. It also created opportunities for others to break the settlement between solicitors and barristers and the established status hier­archy. Announcing new rights of audience for legal executives the Lord Chancellor, Lord Irvine, welcomed the Institute of Legal Executives as a ‘fully-fledged part of the profession’.^[462]

Competition between solicitors and barristers over advocacy spilled over into dis­putes over cultural symbols. Solicitors feared that barristers’ wigs and gowns conferred competitive advantage. This led to these symbols being used less in some courts, and proposals that judges not wear wigs in civil trials.^[463] Solicitors argued that they should have the benefit of court attire, ‘to command respect and authority and bestow on the wearer gravitas and anonymity’.^[464] From 2 January 2008 solicitors have been able to wear wigs in court when barristers are allowed to do so.^[465]

The Courts and Legal Services Act 1990 provided for authorised bodies other than the Law Society to accredit their members to conduct litigation. As a result the Bar established ‘direct professional access’ to barristers for occupational groups, such as patent agents, parliamentary agents, local authority and employed lawyers, in 1990. This was extended incrementally until a public access scheme allowed any person to instruct a barrister direct from 2004.^[466]

ii. Funding

The Legal Advice and Assistance Act 1949 led to a universal system of legal aid from 1950.^[467] The scheme was administered by the Law Society and provided by private practitioners. In 1987 administration of the Legal Aid Scheme was transferred from the Law Society to a Legal Aid Board, known as the Legal Services Commission (LSC) since 2000 and Legal Aid Agency from 2013. This was a foretaste of conflict between government and the profession over legal aid. In the 1980s and 1990s a spi­ralling legal aid bill forced government to cut eligibility rates for civil legal aid. This threatened the post-war promise of access to justice.

In response to government calls for greater efficiency the Marre Report asserted that, when justice is in question, there can be little compromise with cost.^[468] Government nevertheless implemented a strategy for reducing legal aid expenditure. Legal aid franchising aimed to ensure that legal aid cases were handled within a tight costs framework. The system was piloted in 1992, rolled out in 1994, then made uni­versal in 1998. Block contracts were issued for delivery of a number of cases for fixed prices. Potential franchisees were assessed for quality standards and office systems, sometimes over-zealously,^[469] and delivery was monitored. Alternative sources of fund­ing were introduced to replace legal aid. Conditional fee arrangements, popularly known as ‘no win, no fee’, initially replaced legal aid for most personal injury claims and subsequently in a wider range of cases.

The escalating cost of criminal legal aid in particular, possibly caused by government changes to the system,^[470] led to a review by Lord Carter of Coles. In 2006, Carter recom­mended a move away from administratively set rates for criminal legal aid work in favour of best value tendering for block contracts. Providers under a range of contracts for civil work were offered a unified contract with the LSC providing fixed and graduated legal aid fees in replacement of hourly rates.^[471] The Constitutional Affairs Select Committee expressed reservations about the scope and pace of the reforms and the threat to the quality of complex work and to the supplier base generally.^[472] These concerns were dis­missed by the government.^[473]

The civil contract was to be subject to unilateral change by the LSC. The Court of Appeal subsequently restricted the LSC’s power to unilaterally amend the contract,^[474] a relatively minor impediment to the reforms. Around 10 per cent of solicitors’ firms accepted the unified contract with the LSC. A spokesman for one leading London legal aid firm said ‘This is an abusive contract with a future of slavery and gradual strangulation and decline. So far as I am concerned we’re out of it’.^[475] In the face of opposition from the legal profession the LSC withdrew proposals for competitive tendering under a standard crime contract in 2009.⁷1

Reduction of the legal aid bill continues. In April 2013 further areas were taken outside the scope of civil legal aid.^{[476] [477] In the same year, the government consulted on proposals to introduce competitive tendering for criminal legal aid, with a price cap set at 17.5 per cent below previous rates.[478] This, it was predicted, would reduce the number of contracts issued from 1600 to 400. As part of the proposals criminal defen­dants would lose the right to choose their solicitor. This sparked bitter opposition from lawyers complaining about loss of access to justice. The government’s response was that ‘the legal sector’ should not be immune from the government’s programme of ‘austerity’.[479]}

iii. Competitors

In addition to reducing professional monopoly, government reduced its reliance on the private professions and stimulated competition with them in other ways. This is a common way by which states expand access to professional services.^[480] A potential competitor was the advice agency network. The first Law Centre was established in the UK in 1970,^[481] joining an established network of Citizens’ Advice Bureaux (CABs). Although the Law Society was originally suspicious of CABs, by the 1990s they were regarded as a complementary service.^[482]

One way for the government to encourage competition was to allow advice agencies to bid for legal aid franchises. They were therefore allowed to compete with solicitors to conduct fixed numbers of civil cases at set prices.^[483] Another was to create a more efficient network for providing legal advice, the Community Legal Service.^[484] This was an umbrella for existing provision in Citizens’ Advice Bureaux and Law Centres co­ordinated by the internet.

As alternatives to using private practitioners to prosecute crime, government created the Crown Prosecution Service. This employed lawyers on a salary to handle criminal prosecution. An experimental Criminal Defence Service was instigated in several areas of the country, with the express aim of ‘benchmarking’ costs by comparing public and private provision.^[485] This proved to be only a limited success and the service survives at only eight centres.

iv. Restrictive Practices and the ‘Divided Profession

In the 1970s a Royal Commission, chaired by Lord Benson, was asked to ‘examine the structure, organisation, training and regulation of the legal profession and to recom­mend those changes that would be desirable to the interests of justice’. The Benson Report concluded that ‘a two-branch profession was more likely than a fused one to ensure the high quality of advocacy’. Benson’s proposals led to the creation of the Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC). In the 1990s, ACLEC recommended common vocational training for solicitors and barristers, but this came to nothing. While the Bar has always vehemently resisted fusion of solicitors and barristers in a single profession, a report by the Law Society in 1987 actually proposed it.^[486]

In 1989 three Green Papers proposed radical changes in in the legal services market. The main Green Paper stated that barriers between solicitors and barristers should be reduced and all other restrictive practices, measures that reduced market competi­tion within the professions, would need to be justified. Other proposals included the introduction of conditional fees and lifting restrictions on lending institutions doing conveyancing work.^[487]

The Competition Act 1998 prohibited ‘agreements between undertakings, decisions by associations of undertakings or concerted practices which may affect trade within the United Kingdom or have as their object or effect the prevention, restriction or distortion of competition’.^[488] The legal profession, having not sought exemption from the Chapter I prohibition in relation to any of their rules, was caught by the Act. The providers of legal services were ‘undertakings’, their professional associations ‘asso­ciations of undertakings’ and their codes of conduct ‘decisions by an association of undertakings’.

In 2000 the Office of Fair Trading (OFT) reviewed professional arrangements in law, accountancy and architecture under the Fair Trading Act 1973, section 2. The report, Competition in Professions, identified rules, practices and customs with anti­competitive effects and put the onus of proof on their proponents to ‘demonstrate strong justifications for them in terms of consumer benefit’.^[489] The professions con­cerned were asked to make changes in the identified areas within a reasonable time, or within a year, in default of which the OFT threatened to use its own powers to remove the restrictions.^[490]

The Law Society was invited to defend restrictions on multi-disciplinary practice,^[491] employed solicitors acting for third parties,^[492] seeking business by telephone and comparative fee advertising^[493] and receiving payment for referrals.^[494] It was told to stop issuing fee guidance for conducting probate work. The Law Society successfully argued against the cold-calling of non-business clients^[495] but otherwise set about amending or reviewing its rules. The OFT was inclined to allow it to continue its ‘programme of reform... so long as self-deregulation is proceeding effectively, public action is not immediately necessary’.^[496]

The General Council of the Bar was told to remove restrictions on barristers forming partnerships, barristers having direct access to clients, advertising, including fees, success rates and comparisons with other barristers, and employed barristers conducting litigation. The report also suggested that the separate roles of solicitors and barristers may add unnecessarily to costs,^[497] that the QC system was of dubious value to consumers,^[498] and that there should be an extension of professional privilege to accountants providing tax advice.^[499]

The Bar’s response to the OFT proposals was prepared by a committee led by Sir Sydney Kentridge.^[500] The Kentridge Report accepted that barristers should be allowed to accept instructions direct from clients and to advertise fee comparisons. It argued, however, that advertising success would provide a disincentive to accepting difficult cases, that winning cases did not correlate with ‘success’ and that such rates would be misleading.^[501] It also rejected the proposals that barristers should be able enter partnership or conduct litigation. It asserted that the QC system was of value to consumers, and would provide useful information of quality if direct access was permitted. Addressing another OFT suggestion for promoting competition, Kentridge argued that there was no justification for expanding legal professional privilege to non-lawyers.

The OFT was persuaded by some of the professions’ arguments. It admitted there was force in the Bar’s arguments against advertising success rates and announced that it did not intend to pursue the point.^[502] It rejected the Bar’s arguments against allow­ing barristers to conduct litigation and promised further detailed consideration of the arguments against partnership.^[503] The OFT did not accept that handling clients’ money would impinge on barristers’ capacity to specialise in, and maintain excel­lence at, advocacy,^[504] or that partnership would limit choice, increase overheads and undermine the cab rank rule. It did not accept that a split profession was in the public interest.

D. Regulation

A general loss of confidence in the Law Society’s complaint handling procedures, and professional self-regulation in general, was encouraged by the ‘Glanville Davies affair’. This was characterised as an inept response to a charge of profiteering against a member of the Law Society Council. The client concerned had complained repeat­edly to the Law Society between 1976 and 1982 and ultimately took private action. A bill of £197,000 was reduced to £67,000 by the court. The solicitor escaped censure and was allowed to quietly resign from Council.

As a result of the debacle the Law Society narrowly avoided losing its power to investigate complaints against members. The affair helped to create the climate for the 1989 Green Papers^[505] and the Courts and Legal Services Act. This proposed that an Advisory Committee on Legal Education would acquire responsibility for professional conduct issues. The new Lord Chancellor’s Advisory Committee on Legal Education and Conduct (ACLEC)^[506] was dominated by lay persons and its 15 members were appointed by the Lord Chancellor.

The Law Society’s response to the Green Papers proposing these changes objected that ‘the proposals represent a dangerous accumulation of power in the hands of a gov­ernment minister... the government should not take control over the very profession that has a duty to act for the citizen against government power and state prosecution’.^[507] The response of the judges and House of Lords was equally hostile. The Courts and Legal Services Act 1990 was radical in terms of what had gone before, but not as radical as proposed in the Green Papers.

While the Courts and Legal Services Act undoubtedly intruded on the legal profes­sion’s self-regulatory powers, it also preserved areas of independence. For example, the Legal Services Ombudsman established by section 21 did not have powers to investi­gate matters which were being or had been determined by the Solicitors Disciplinary Tribunal or the Disciplinary Tribunal of the Council of the Inns of Court. Similarly, the role of ACLEC was limited to ‘assisting in the maintenance and development of standards in the education, training and conduct of those offering legal services’.^[508] The ACLEC was therefore less powerful than envisaged by the Green Paper. Its creation did, however, mean that professional education and conduct would be subjected to more formal and public review processes than before.

Prior to the Act, the procedures, statutory rules and regulations governing solici­tors were drafted by Law Society committees and approved by the Council prior to approval by the Master of the Rolls under section 31 of the Solicitors Act 1974. Rules and regulations relating to incorporated practices were approved under procedures set out in the Administration of Justice Act 1985, section 9, prior to their submission to the Master of the Rolls for approval under the 1974 Act. Most of the practice rules were based on common law case outcomes and were amended by the Law Society Council to conform to case law.¹⁰⁴ There was no requirement to involve other Senior Judges, the Office of Fair Trading, or the Lord Chancellor in the regulatory process.

After the Act, proposed rule changes were scrutinised by the ACLEC, composed as prescribed by the Act,¹⁰⁵ then approved by the Lord Chancellor. ACLEC issued several reports on aspects of legal education and areas of conduct, but did not have a significant impact. It was soon abandoned in 1999 amid government’s apparent disil­lusionment with the pace of progress. Responsibility for advising on legal education rests with the Legal Services Consultative Panel based at the Ministry of Justice. The Lord Chancellor’s powers of approval for regulatory changes remained.

E. Independence

The independence of the legal professions declined markedly in the period 1969-2007. Abel argued that the period marks the beginning of the end of legal professionalism in England and Wales. The professions lost control of the ‘production of producers’ to the universities and of exclusive statutory monopolies of their key areas of work. Government actively sought to promote market competition by encouraging alterna­tive providers of legal services.

Burrage argues that the 1989 Green Paper was significant because it articulated gov­ernment’s view that there were no boundaries to state power over the professions.¹⁰⁶ The Green Papers were framed in the now familiar language of competition; legal services were a market, legal professions were an industry and clients were consum­ers or customers. The Courts and Legal Services Act only began to implement a de­professionalising agenda. This process was continued by the Legal Services Act 2007.

IV.