Pressures on Legal Professional Culture since 1970

A. Trends

i. Co-operation to Competition

In a protected market professions can agree set prices that offer a profit but are fair to consumers. This avoids consumers needing to ‘shop around’.

¹⁷⁰ Burrage, ibid, at 49.

¹⁷¹ Sugarman (n 76) at 98 and 109.

¹⁷² CO Houle, Continuing Learning in the Professions (San Francisco, Jossey-Bass, 1980) at i.

¹⁷³ L Sheinman, ‘Looking for Legal Ethics’ (1997) 4 International Journal of the Legal Profession 139, at 151.

¹⁷⁴ R Greenwood and CR Hinings, ‘Understanding Radical Organisational Change: Bringing Together the Old and the New Institutionalism’ (1996) 21 Academy of Management Review 1022, at 1027.

¹⁷⁵ Goriely, ‘Law for the Poor’ (n 116) at 216.

The 1970s marked the start of a period of dramatic changes to the monopolies and regulation of the legal profession. These are described in more detail in the next chapter. There were, however, a number of challenges to the established culture of the legal profession that materialised or intensified from the 1970s onwards. These were stimulated by political, economic and social factors. One of the most powerful was the growth of a more consumerist society. Consumerism favours competition as a means of reducing the cost of goods and services.

It was feared that competition could have a negative impact on standards in the legal profession. At the lower end of the market it might drive down the cost of legal services but encourage cutting corners, poor service standards and dishonesty.

ii. Autonomy to Bureaucracy

Durkheim speculated that a strong occupational culture is achieved by modest scale of operations.^[336] He said that

when the group is small, the individual and the society are not far apart; the whole is barely distinguishable from the part, and each individual can therefore discern the interests of the whole at first hand, along with the links that bind the interests of the whole to those of each one.^[337]

Professional association with sole practice drives them to professional association beyond the workplace. Professions promote trust in the independence and neutrality of individuals and are therefore been seen as anti-bureaucratic. Professional institutions, such as the Bar, conformed to this pattern.

The organisations in which lawyers work have generally increased in size, a fact that almost inevitably increases levels of bureaucracy. This challenges notions of professionalism based on independence and autonomy. As organisations get bigger, levels of authority are introduced and processes are rationalised so as to reduce the scope of individual discretion.^[338] There is a concern that the professional mind-set, which is autonomous and independent, may be unsuited to work in bureaucratic organisations.^[339]

iii. Homogeneity to Heterogeneity

In social science, homogeneity refers to the uniformity of the composition or char­acter of a society or group. Heterogeneity refers to differences, for example, in the ethnicity, class or gender of a group. It is often assumed that a strong occupational culture is fostered by social homogeneity. Until the 1970s the legal profession was relatively socially homogenous.

From the 1970s onwards, differences between the backgrounds and personal char­acteristics of entrants to the legal profession, between different kinds of lawyers and between the organisations in which they worked, were magnified.

iv. Generalisation to Specialisation

Professionals are usually credited with broad vision of their clients’ problems. They can see beyond immediate or presenting issues. They also have sufficient expertise to handle a wide range of problems personally, without passing them to a colleague. This preserves the integrity of the professional relationship and client confidentiality. Competition and a larger scale of operations usually generate pressure for increased specialisation, undermining the personal relationship between professional and client. Specialisation also contributes to de-skilling. No one performs the whole transac­tion, and this can increase the risk of error. This may explain why cost cutting in conveyancing work has caused a massive increase in claims for negligence.^[340] Finally, specialisation also generates greater differences between specialist groups, potentially leading to divergence on values and ethical issues.

B. Impacts

i. Professional Policy

a. Scale Fees

An example of a move for co-operation to competition lay in conveyancing scale fees. Until 1972, the fees charged by all solicitors were set as a fixed percentage of a transaction. Abandonment of the scale led many solicitors to charge less. By 1995, conveyancing accounted for about 10 per cent of solicitors’ gross fee income, but nearly 55 per cent of claims to the Solicitors’ Indemnity Fund and Compensation Fund.^[341]

Various attempts to restore scale fees were unsuccessful, generally because of lack of government support. In 2012, the legal services complaints ombudsman noted that conveyancing was the second most complained about area. The reason, he said, was that the ‘increasingly commoditised automated and competitive’ conveyancing market has resulted in traditional high street firms evolving or being displaced into ‘conveyancing factories’.^[342]

b.

Professions often ban individual advertising on the grounds that it is undignified for professionals to seek out clients. Hazard claims that lifting the advertising ban in the US ‘changed the image of lawyers from professionals who deplored self-laudation into that of aggressive self-promoters’.^[343] Stopping practitioners claiming individual distinction forces them to channel their effort into collective control and promo- tion.^[344] This supports professional collegiality and community and encourages the modest demeanour associated with professionalism. Individual advertising symbol­ised the distinction between professions and business and was deplored as unprofes­sional conduct.^[345] In 1979, Orojo asserted that ‘[i]mproper attraction of business will include all those acts which tend to give an unfair advantage in obtaining legal business, because such acts lower the prestige of the profession and, therefore, constitute unpro­fessional conduct’.^[346]

One of the casualties of increased competition in the legal services market since the 1970s was a longstanding ban on advertising. Fearing competition from licensed conveyancers, solicitors allowed advertising, subject to restrictions, in 1984. Since then, most lawyers have produced promotional brochures.^[347] By 1990, even the Bar capitulated to advertising, albeit heavily controlled.^[348]

Advertising, particularly in the trade sections of local papers, resulted in a loss of mystique. They were possibly not even the most tasteless examples. One divorce special­ist generated national news coverage with national advertisements, aimed at City-based clients, reading ‘Ditch the bitch’ and ‘All men are bastards’.^[349] The issue is now ever present, with concern about whether television advertising compromises professional gravitas.^[350] European competition law supports ever deeper incursions into advertising restrictions.^[351]

c.

Entry

In the first half of the twentieth century both barristers and solicitors managed the qualification process directly, with the result that numbers of practitioners in both branches did not increase. In the 1960s and 1970s the production of lawyers increased dramatically. In the 1851 census there were 2,088 barristers and 11,684 solicitors.^[352] In 1950 the combined professions numbered 20,000, in 1980 42,000 and in 1990 61,000.^[353] This began with the Bar encouraging graduates, and then preferring them. The Law Society initially allowed entry by graduates with two years’ articles instead of the standard five.

When the university degree became the main route in the early 1970s, the Law Society eventually abandoned five-year articles. Favouring graduates laid the founda­tion for expansion of the profession. From the 1970s the provision of law degrees increased. Before World War Two three-quarters of law students were enrolled at five elite colleges, including Oxford and Cambridge. By 1980 they accounted for less than 20 per cent.^[354] Between 1961 and 1986 the numbers of lawyers in England and Wales increased by 147 per cent, compared with 129 per cent in the US and 253 per cent in Canada.^[355] Burrage suggested that this presented a challenge to the Law Society:

The solicitors’ branch is becoming a more public profession than its predecessors... more educated and heterogeneous, less concerned with its corporate honour, more market-oriented and competitive, with others and amongst themselves, and therefore less secure... all these things make it more unruly and fractious, more unethical and disloyal.^[356]

During the 1970s the Bar reduced barriers to entry, such as fees on joining an Inn, on call and on entering pupillage. It also introduced a one-year vocational course with examinations and pupillage in 1959.^[357] This left obtaining pupillage and a tenancy in chambers as the only formal barrier to practise as a barrister.

In terms of the market, growth of the profession was partly fuelled by the wide availability of legal aid.^[358] The Bar, in particular, almost doubled in size, on the back of public funding. Many junior barristers received between a half and 90 per cent of their income from legal aid.^[359] As the availability of legal aid reduced from the 1990s there was considerable pressure from within the Bar to restrict entry to the vocational stage, to reduce pressure on the Bar to supply more pupillages. The Office of Fair Trading, a non-ministerial government department established in 1973 to promote competition, insisted that there be no artificial restriction on the number of those taking the vocational courses.

Diversity

Increased numbers entering the profession reduced homogeneity and increased diversity of both of the main branches of the legal profession in terms of sex, race, ethnicity and class. The most marked change was in relation to the sex of entrants. The first women were not called to the Bar^[360] or admitted as solicitors^[361] until 1922, following the Sex Disqualification (Removal) Act 1919. Initially, numbers of women were low compared with other professions, but began to increase from the 1970s. By the 1990s around half of law graduates were women, and significant numbers entered the legal profession.

Masculine and Feminine Ethics

Most of the discussion has centred on the theory that men and women use different moral languages and approaches in solving problems.^[362] This was posed as a problem for the cultural norms of legal professionalism. ‘Instrumental rationality, ambition, competitiveness, aggression’ were seen to be masculine dispositions. They were said to contrast with feminine preferences for ‘empathy, care or compassion’.^[363] Research by Gilligan suggested that men approached problems as an issue of ‘rights’, ignoring the impact of decisions.^[364] Women, she found, were more empathetic, seeking solutions that ‘avoid pain’ by meeting the needs of all those affected by a problem and attempt­ing to minimise disruption of relationships. Gilligan’s subjects were not lawyers, so her conclusions take no account of the effect of legal socialisation.^[365]

Menkel-Meadow saw in this distinction between an ‘ethic of rights’ and ‘ethic of care’ the potential for a shift in practical legal problem solving. This would be away from adversarial and confrontational approaches towards more mediational dispute resolution methods, participatory lawyering and non-trial based methods of dis­pute resolution.^[366] It is difficult to verify such developments empirically because of problems studying practice environments.^[367] The predominance of women in legal workplaces does not necessarily produce less hierarchical management styles and greater integration between work and family lives.^[368]

C. The Market for Legal Services

i. Scale and Difference

Even though there were differences between different kinds of lawyers, these became more obvious and extreme after the 1970s. Some of these differences concerned the type of work lawyers performed and the values associated with it. Differences were accentuated by the scale of operations. Competition fuelled a move to larger and more bureaucratic organisations.

a. Large Firms

In the 1970s professional assumptions about an appropriate scale of operations were significantly threatened by large law firms. Even among the elite London solicitors’ firms, small partnerships were the norm until the mid-1950s. In 1937, Linklaters was the largest City partnership with 11 partners and Freshfields usually had three.^[369] The Companies Act 1967 removed the ceiling partnership numbers, set at twenty. This paved the way for mega-firms with hundreds of partners. These firms not only dominated the national market in corporate and commercial law work, they quickly became the largest international firms in the world.

The change in the size of large firms coincided with other social and economic transitions. Until the 1960s UK businesses were largely personal empires and busi­ness was run on personal relations. The leading partners in elite solicitors firms often had personal and family relationships with banking and business moguls spanning generations. During the 1960s business became more corporate, bureaucratic and professionally managed. Consequently, in the 1970s and 1980s, businesses became more demanding and more likely to treat professional services like a commodity.^[370]

Large firms tend to be highly focused on corporate and commercial work for large businesses. They surrendered lucrative private client work, like personal trusts and tax advice, to smaller firms.^[371] Consequently, many lawyers in large firms have little contact with the concerns of individuals, even wealthy ones. When a similar trend appeared in the US, Llewellyn feared that such a retreat into corporate specialisation might produce expert practitioners with a technocratic outlook, narrow vision and a ‘trained incapac­ity for social responsibility’.^[372] Llewellyn argued that ‘the practice of corporation law not only works for business men towards business ends, but develops within itself a business point of view toward the work to be done, toward the value of the work to the community’.^[373] While Llewellyn’s fears may seem extreme, many US academics suggest that large firm lawyers have different values from lawyers in more conventional firms.^[374] Gordon argued that commercial firms are tainted by commercialism, to the detriment of ‘their lofty professionalism’.^[375]

The large London-based firms now dominate legal indicators such as partnership size, numbers of training places and gross fees. Increased size almost inevitably results in increased rationalisation, specialisation, hierarchy, meritocracy and market orienta- tion.^[376] Johnson argued that ‘practitioners subject to corporate patronage... will exhibit beliefs, attitudes ideologies which diverge from and sometimes conflict with those exhibited by practitioners subjected to meditative or collegiate forms of control.’^[377] The atmosphere of such firms is more like a business than the ‘gentlemen’s clubs’ of old.^[378] They have centralised and bureaucratic management structures and their size supports specialist functions like finance, marketing, personnel, library, information technology and training, all performed by non-lawyers.^[379]

Large firms are also said to be less collegial, and more entrepreneurial, competitive and meritocratic.^[380] As regards pay, for example, traditional solicitors’ firms have a flat structure where managerial tasks are shared and fee earners do similar work.^[381] The traditional ‘lockstep’ system for partnership pay, rewarding experience, senior­ity and length of service, reinforces collegiality. The large firms favour differential pay policies that reward effort, billing, client attraction and client retention. Large firms also changed the relationship between solicitors and barristers. Barristers were expected to be ‘part of the team’ and were instructed with compatibility in mind.^[382] Elite commercial chambers were driven to offer larger and larger pupillage salaries to compete with City solicitors for sought after trainees.

b. Cause Lawyers

Solicitors’ firms offering services in areas such as family law, welfare and criminal are identified by an umbrella term, ‘cause lawyers’.^[383] Their primary interest is often securing the interests of a specific underprivileged group, or cause. Despite sharing egalitarian values internally, cause lawyers present different public faces. Radical lawyers are likely to have a client base of organisations seeking to change basic social structures.Their own organisational culture may appear fairly conventional. Critical lawyers, however, work to undermine hierarchical social, family and workplace rela­tionships and this will almost inevitably be reflected in their organisational cultural values.^[384] They fit the professional profile in that they were not overtly driven by profit, but they contradict notions of professional neutrality. Most do not counte­nance acting for certain kinds of client. Christian Khan, solicitors, for example, reput­edly refused to act for the National Front, Hitler’s deputy and Saddam Hussein.^[385]

c. Employed Lawyers

English legal professionalism is based on private practice.^[386] Lawyers had often worked outside but, since the 1970s, numbers working in corporations, the civil ser­vice, local government, Crown Prosecution Service and law centres have grown sig­nificantly. The numbers of employed lawyers increased from around 3000 in 1966 to 15,000 in 1996.^[387] Employed lawyers are typically restricted to working internally on their employer’s matters. There are circumstances where they can also act for members of the public. These are occasionally mentioned in the codes. For example, a solicitor employed by an insurance company as an employed solicitor could, under the 2007 Code, act for an insured person, provided the latter gives specific consent, the claim comes within the small claims limit in the County Court, the case is not allocated to the fast or multi-track and does not concern personal injuries.^[388]

In addition to the scale, bureaucracy and values of the organisations in which employed lawyers typically work, additional questions are posed for legal professional culture. Was it important that government-employed prosecutors were independent of the state or should they help the court to reach a wise decision?^[389] What duty were employers owed as ‘clients’ and how did the obligation of confidentiality apply? Should private practice and employed lawyers be subject to the same ethics codes,^[390] and if so, would exceptions be created for incompatible principles, like the cab rank rule?^[391] In 1995, the Bar Council removed the rule which prevented employed barris­ters from being elected chair or vice chair of the Bar. This addressed the perception that employed barristers were inferior and enabled the Bar Council to claim that it represented all barristers equally.

ii. Specialisation

Competition forced solicitors, from the mega-firms to the legal aid firms, to adopt more hierarchical and bureaucratic structures, managerial approaches and to handle work in a more routinised way.^[392] As solicitors focused on narrower fields of work they were confident in these areas. Consequently, they were more inclined to com­pete with barristers for work such as drafting pleadings, appearing in interlocutory hearings in chambers and advising.^[393] Many barristers also began to specialise more narrowly. By 1990, 70 per cent of the solicitors’ branch claimed to be moderate or extreme specialists^[394] and barristers and chambers reduced the areas of work offered leading to smaller numbers of lawyers regarded as competent to do work in certain fields.

Specialisation encouraged the formation of groups promoting sectional interests. For example, medical negligence defence lawyers set up a group (Healthcare Lawyers Association) to give them a ‘balancing voice’ in legal debates traditionally dominated by plaintiff groups.^[395] It also led to promotion of specialist competence for discrete areas of practice.

Recognising the move towards specialisation, the Law Society introduced special­ist panels for a number of areas. The personal injury panel was introduced in 1992 and there were five panels at 31 July 1996. Medical Negligence had 100 panel mem­bers, Children 1,597, Personal Injury 2,233, Planning 197 and Mental Health Review Tribunals 367. Panels for Local Government, Licensed Insolvency Practitioners, Rights of Audience in Higher Courts and Qualified to Conduct Discrete Investment Business followed.^[396] By 2005 many panels were operating accreditation schemes and 18 per cent of solicitors belonged to one or more. There was a possibility that some of these groups would generate practice norms at odds with the established consensus.^[397] In some cases the Law Society’s panels issued their own codes or recommended the codes of associated bodies.^[398]

Some groups combined the role of specialist interest group and specialist panel. In the early-1990s the Association of Personal Injury Lawyers (APIL) was formed. APIL was an association for solicitors and barristers representing personal injury plaintiffs. It was dedicated to the improvement of services provided for victims of accidents and disease. The objectives of the Association were to promote and develop expertise in the practice of personal injury law, campaign for improvements in the law, gain wider redress for personal injury, promote safety and alert the public to hazards wherever they arise.

In 1996, APIL published its own code of conduct for members.^[399] While it was relatively short, and drew substantially on the Law Society Guide, an initial draft went beyond the Law Society’s own regulations. It proposed prohibiting members from paying referral fees, a measure designed to prevent ‘ambulance chasing’. Although complaints by members led to amendment,^[400] this suggested that specialisation could begin to expose differences among different interest groups within professions.

D. The Legal System

i. The Adversarial Ethic

a. Partisanship

The adversarial ethic in both criminal and civil litigation was subject to criticism in the 1990s. In criminal litigation it was found that criminal defence solicitors some­times provided inadequate defence to those appearing before Magistrates’ Courts. Too often they assumed clients were guilty and offered less than zealous representation.^[401] This heightened concerns about the risk of miscarriages of justice that were prevalent across jurisdictions. The Australian judge, Mr Justice Kirby, noted that miscarriages of justice arise ‘from the way in which operators of the present system at every level allow it to be manipulated, pre-trial, at trial and on appeal, with too much attention to rules and procedures and insufficient concern about the risk of injustice.’^[402]

Lawyers in civil proceedings were criticised for being too adversarial, leading litiga­tion to be costly, complex and slow. New Civil Procedure Rules, introduced in 1999, increased judicial control of litigation, promoting the use of alternative methods of dispute resolution, like mediation.^[403] Pre-action protocols were introduced to prevent proceedings being issued before defendants had a chance to settle claims. These inno­vations were intended to reduce lawyer control of the civil litigation process.

b. Neutrality and the Cab Rank Rule

Both solicitors and barristers were dismayed by continuing reductions in legal aid rates. There was continuing pressure from barristers to make an exception to the cab rank rule, because legal aid fees were not seen to be ‘adequate in all cases’.^[404] The Bar Code provided that a barrister was not obliged to accept instructions other than for ‘a fee which is proper’ according to the case and the barrister’s experience and expenses.^[405] Legal aid fees in general were deemed by the same rule to be ‘a proper professional fee’ unless the Bar Council or the Bar in general meeting determined otherwise. In November 2003, the Bar Council resolved that ‘graduated fees’ for criminal work were deemed not to be proper fees.^[406]

The issue of the relevance of the cab rank rule was brought to a head when the BSB sought Legal Services Board (LSB) approval of a rule change to accommodate new standard contract terms. It proposed excluding the cab rank rule from any arrange­ment outside those or other published terms. The LSB conducted a consultation and granted approval.^[407] In 2012, expressing concern at the competitive implications of such exclusion, the LSB commissioned a report to help it understand ‘the impact of the Bar Standards Board ‘cab rank rule’ on the regulatory objectives set out in Part 1 of the Legal Services Act 2007’.^[408]

The authors of the report on the cab rank rule suggested that it was redundant.^[409] They pointed to the number of exceptions to the rule and the lack of evidence that it is ‘significant or efficacious’.^[410] They also suggested that the underlying rationale, that being identified with a client’s moral position would deny representation to unsympa­thetic litigants, was no longer relevant. According to the consultants, the modern legal market is one where finance denies representation, not despicability of personality.^[411] This, they said, was a problem that the rule specifically evaded.

The conclusion that the Bar would abandon the rule under this critique, proved premature.^[412] The LSB report provoked a strong reaction. Separate responses were made by the Bar Council^[413] and Bar Standards Board^[414] and both were, in different ways, unusually critical and trenchant. The report prepared for the BSB contains an appendix detailing nearly 60 alleged errors in the consultants’ report. It accused the LSB consultants of using a defective approach, having flawed reasoning and weak or non-existent premises. This made its conclusions ‘unjustified and incorrect’ and ‘no basis whatsoever’ for the abolition of the rule.^[415]

The Bar Council’s response focused on judicial endorsement of the importance of the cab rank rule. Sir Sydney Kentridge pointed out that the absence of enforcement could be taken as evidence of compliance, rather than redundancy.^[416] In the absence of evidence, he said, the burden should fall on those advocating change to show that abolition of the cab rank rule would have no adverse effect. Kentridge concluded that the LSB’s consultants thought the rule is not significant or efficacious because

they do not see the Bar as an honourable profession whose members generally obey the rules of the profession, and do not seek to evade them. Indeed, throughout the report one finds not merely hostility to the rule but hostility to the Bar and sneers at its ethical pretensions.²⁵⁸

Kentridge also hinted at complicity between the LSB consultants and the LSB, noting that the LSB website presenting the report endorsed the consultants’ observation that terrorists are attractive clients because of the publicity they provide barristers.²⁵⁹ The intensity of the response to the attack on the cab rank rule is remarkable. It shows the strength of feeling at the Bar about some of the criticism, explicit and implicit, of its traditions and record. It also reflects the clash of regulatory cultures, considered fur­ther in part two. The issue threatens to be controversial into the future. Most recently, the Bar has excluded public access work from the cab rank rule, except for barristers with fewer than three years’ call.²⁶⁰