Theories of Professional Power
A. Professionalism and Alternatives
Hughes refers to professionalisation as a process of ‘obtaining a mandate to select, train, initiate and define the nature of services provided, obtaining a monopoly,
7 M Weber, ‘Economy and Law (Sociology of Law)’ in G Roth and C Wittich (eds), Economy and Society (Berkeley, CA, University of California Press, 1978) at 794.
8 GB Shaw, The Doctor's Dilemma (Harmondsworth, Penguin Books Ltd, 1911) Act 1; see also I Illich, Disabling Professions (London, Marron Boyars, 1977).
9 R Moorhead, A Sherr and A Paterson, ‘What Clients Know: Client Perspectives and Legal Competence’ (2003) 10 International Journal of the Legal Profession 5; R Moorhead, A Sherr and A Paterson ‘Contesting Professionalism: Legal Aid and Non Lawyers in England and Wales’ (2003) 37 Law and Society Review 765.
10 TC Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago, London, University of Chicago Press, 1987) at 3.
11 D Nicholson and J Webb, Professional Legal Ethics: Critical Interrogations (Oxford, Oxford University Press, 1999).
providing a philosophy for society at large concerning the whole area of thought, value and action involved directly or even remotely in their work’.[417] Larson provided a historical analysis of the ways in which professions in England and the US organised themselves to attain power.[418] Of the various sociological theories seeking to explain professions, those based on the idea that professionalism is the result of social conflict between occupations[419] are now in the ascendancy.[420]
Larson also draws attention to the key role played by expert knowledge in profes- sionalisation. Most vocations comprise technicality, that part of the work that can be standardised as education, and ‘indetermination’, the secret and mysterious component that combines personal skills, qualities and inspiration.
High status professions typically have a high element of indetermination. Establishing knowledge and technique occurs in overlapping stages; the creation of a scientific and transferable base; focus on how technique achieves results; explaining the social function of the activity.[421] The second stage is highly ideological. During the process the production of theoretical and practical knowledge becomes distinct. Theoretical knowledge has higher status and so greater importance is attached to its mastery.[422] The theoretical domain is the province of universities and the practical that of trade schools.Larson argued that the ‘professional project’ is to secure upward social mobility by exploiting the relationship between professional control and the market. Professions initially serve the economic role of connecting education to delivery of a service in a market place. They then shift to the ideological function of justifying closure of both the market and access to the occupation. Monopoly provision is achieved by controlling the production of the producers of those services.[423]
Abbott argues that the success of professions depends on appeals to the different audiences for three jurisdictions, workplace, public and legal.[424] The workplace defines professional work, first, in interactions with clients and then by negotiation of settlements with other occupations who do or might perform these tasks.[425] Public jurisdiction concerns the profession’s authority in the field. This is determined by outsiders’ perceptions, as shaped by codes of conduct, reports by the professional body, advertising and education.[426] Establishing legal jurisdiction involves convincing government of the need for control of the market.
Johnson identifies forms of control of occupational expertise by groups or institutions.[427] His typology comprises collegiate control (professionalism), patronage (control by consumers) and mediation (control, for example, by the state).
Johnson’s typology of control overlaps with Freidson’s three ‘logics’ for managing the sale and distribution of services.[428] The first of these is perfect competition, where innovation is encouraged and prices kept low. The second is corporate bureaucracy, where efficient management produces reliable products at reasonable cost. The third is, professionalism, where expert workers are dedicated to doing good work, both for their own satisfaction and for the benefit of others, rather than for their personal financial advantage.Although professionalism is an imperfect way of controlling important knowledge, the alternatives have weaknesses. For example, patronage systems allow powerful clients to define their own needs and the services they require, but offer insufficient curbs on improper behaviour by the patron’s lawyers. Additionally, patronage control does nothing to provide legal assistance to the less powerful. Of the other alternatives, communal control, whereby consumer organisations control occupations, or state mediation, would be inflexible. Such systems would suppress initiative and occupational responsibility, encouraging legal occupations to act in their own economic interest.[429]
B. Professionalism and Ethics
What elevates professional practice to a privileged position among occupations is that it has an element of ‘indeterminacy’, or uncertainty, demanding the application of professional judgement.[430] Indeterminacy gives professional work a craft dimension which, together with professional prestige and status, creates a social and economic distance between lawyers and their clients. The fact that clients are generally unable to judge whether the legal service they receive is good or bad requires the professional to control the situation in the client’s interest. Ethics institutionalises the fiduciary relationship between professional and client. If it works, it is a rational market solution.[431]
Larson argues that professional authority is highest when producers are relatively scarce and clients are unorganised. This creates a high risk of abuse and exploitation, which is counterbalanced by adopting an ethical orientation and a spirit of service.[432] Professions therefore share several features with business, such as an institutional pattern of rationality, but represent the anti-market principles of monopoly and public service. Abbott, Abel and others suggest that failure of market control will cause professions to retreat from ethical commitments.[433] The overproduction of producers causes the price of services to fall. Reduced profitability undermines the attractiveness of professional roles. Ethics become an additional business overhead that cannot be afforded. It is now necessary to consider whether such a process, one of de-profes- sionalisation, is occurring.
III.