Feb 22, 2016 Amy Salyzyn
North American legal services regulation has been slow to evolve. This reality is particularly apparent when one looks at the rest of the common law world. Take, for example, the radical changes over the last decade or so in the way English and Australian lawyers are governed: among other things, self-regulation has been turfed, as have tight restrictions on non-lawyer ownership. While it is still too early to evaluate the full effect of these and other reforms, they have led to some interesting developments, like publicly traded law firms and the regulation of law firms (as opposed to the regulation of individual lawyers only).
Having observed these changes abroad, many lawyers and academics have suggested that American and Canadian regulators ought to adopt similar reforms in response to modern practice realities. Indeed, to some extent, such changes are already afoot. Some prominent examples include the American Bar Association’s recent passage of a resolution that provides guidance to states if they choose to regulate non-traditional legal services providers and the fact that several Canadian provinces are considering, if not, implementing entity and/or compliance-based regulation (further discussion can be found here, here, and here). Notwithstanding these developments, others have argued that North American legal service regulation should hold firm in the face of dangerous foreign experiments. So who is right? Both and neither, according to a recent book by University of Windsor law professor Noel Semple.
In Legal Services Regulation at the Crossroads: Justitia’s Legions, Semple undertakes a comparative study of what he calls the “professionalist-independent tradition” characteristic of North American legal services regulation and the “competitive-consumerist mode of reform” that has taken place in Northern Europe and Australasia. Ultimately, Semple advocates both retaining tradition and pursuing change: he comes out in favour a reformed professionalist-independent model that focuses on “client-centricity” as a new core value.
Semple devotes the first part of his book to mapping the commonalities and differences in legal services regulation in the common law world. His treatment of this topic is thorough and touches on a broad array of issues, beginning with the foundational question of “why regulate?” and then outlining the two contrasting regulatory styles now found in North America and Northern Europe/Australasia. This comparative study skilfully distils the rich body of literature on legal services regulation that has emerged in recent decades. Both those familiar with the subject and newcomers are apt to find this part of the book informative.
Later chapters zero in on the professionalist-independent tradition, mapping its failures, its successes and its best hope for a bright future. Per Semple’s taxonomy, the professionalist-independent tradition in North America is marked by regulatory commitments to: (1) occupational unity; (2) self-regulation; (3) individual-focused regulation; and (4) the insulation of lawyers. In Semple’s view, the first three of these commitments have made it difficult for regulators to optimally advance the interests of clients.
Semple also characterizes the fourth commitment of the professionalist-independent tradition – the insulation of lawyers – as problematic. He argues that North America’s access to justice problem is exacerbated by primarily licensing only lawyers to provide legal services (here, he is careful to note exceptions in several states and provinces) and by prohibiting non-lawyer investment and collaboration within law firms. Semple develops a strong case on this issue by exploring the theoretical literature in favour of liberalizing legal services regulation and pointing to the successes of real-life innovative service delivery models in England and Australia.
While the idea that North American legal services regulators ought to study and adopt regulatory reforms seen elsewhere in the common law world has been previously advanced by others, Semple’s study stands out for its thoroughness. Moreover, he doesn’t end his analysis with the suggestion that North American regulators simply look externally for ways to improve but also implores them to look inward and retain the best of what the professionalist-independent tradition has to offer.
In Semple’s view, the core value of professionalism that is reflected in this tradition should be robustly defended insofar as it cultivates “practitioner altruism” and “service orientation.” There is reason to believe, Semple argues, that this defence is best mounted by a self-regulatory regime as “self-regulators which can readily draw on relevant practitioner expertise may have an efficiency advantage over the distant state.”
Robust independence is also worth preserving, in Semple’s view. Here, he is careful to disentangle the different ideas that are often conflated under the umbrella of lawyer independence, noting that “[t]he independence core value claims that lawyers must be: (i) independent from the state and its agents; (ii) independent from non-lawyers other than their clients; and (iii) independent from their own firms, as individually accountable moral agents.” On this topic, Semple concludes that “that independence from the state is a laudable goal, although some of the other elements of the independence public interest theory are on shakier ground.”
Having set out the weaknesses and strengths of the professionalist-independent tradition, Semple then undertakes to outline a proposed way forward for North American legal services regulation. The answer to him lies in reform rather than revolution and requires a focus on “client-centricity”. Semple narrows in on what he sees as three key interests of clients–(1) quality (2) choice and (3) price–and outlines tangible reforms that could be taken with respect to each.
At this prescriptive stage of the book, Semple could perhaps be critiqued for proposing too modest of a vision of reform at times. For example, with respect to issues of quality, he suggests that regulators consider a number of relatively small initiatives, including performing audits of law firm practices, conducting client surveys, sending “incognito ‘dummy clients’ to assess service quality at lawyers’ offices”, conducting regulatory reviews of litigation outcomes, and providing special supports for small firms and solo practitioners. Similarly, on the issue of choice, Semple suggests, among other things, that “[c]lient-centric regulators… facilitate informed choice through online directories and marketplaces populated with as much information as possible” including, in some cases, mandatory public disclosure of pricing. Although these are all thoughtful proposals, one wonders how far they will go in overcoming the limitations and threats to the professionalist-independent tradition that Semple maps out in the previous parts of his book.
This section of the book could have also perhaps benefited from more direct engagement with some of the existing American literature on client-centricity. For example, it would have been interesting to see meaningful engagement with some of Katherine Kruse’s thoughts about the limits and benefits of “a client value-based approach to representation…as a professional ideal”. Although Kruse’s work focusses on the conceptions of professionalism embraced by individual lawyers rather than on the issue of regulatory reform that Semple takes up, there would seem to be a natural synergy between the two projects given Kruse’s conclusion that “[t]he goal of shaping representation around the values of clients provides an opportunity for legal representation to redeem itself without compromising the core values of client loyalty and service that lie at the heart of legal professionalism.”
Having said this, Semple’s proposals for increased regulatory involvement vis-à-vis the price of legal services deserve praise for being particularly well-developed and detailed. The reforms advanced are varied, ranging from “light touch” measures such as getting rid of regulation that has a detrimental effect on price that outweighs its potential beneficial impact on quality and choice (mandatory continuing education is provided as an example) to “intervening in and creating markets.” The more interventionist proposals stand out for their ambition – including proposals for tariffs of maximum allowable charges for disbursements and access to justice levies – and are likely to be controversial. Because of Semple’s thoughtful treatment of these proposed reforms, however, they cannot be easily dismissed as overly idealistic or radical.
Semple ends his book by reconsidering the four distinctive regulatory commitments of the professionalist-independent tradition, listed above. The reforms he advocates in this section are also ambitious and include proposals to pursue more diversity in licensing, increase lay involvement and transparency in self-regulatory bodies; allow for alternative business structures; and engage in the careful study of entity regulation and its introduction where its benefits exceed its costs.
Overall, Semple should be applauded for his ambition in writing Legal Services Regulation at the Crossroads: Justitia’s Legions. Ultimately, the conservativism that characterizes some of his prescriptions is a strength of the book. In his caution, Semple avoids advancing either a reactionary defence of the status quo or a simple transplantation of reforms undertaken in other jurisdictions like England and Australia. He also provides North American regulators with a colourful grab-bag of specific regulatory tools that can serve to inspire and direct policy discussion. Without a doubt, those interested in legal services regulation should add his book to their reading lists.
Jan 26, 2016 John Flood
Francis Snyder,
The Contribution of Anthropology to Teaching Comparative and International Law in
The Trials and Triumphs of Teaching Legal Anthropology in Europe (Marie-Claire Foblets, Gordon Woodman and Anthony Bradney eds., 2015), available at
SSRN.
Empirical approaches to law are commonplace now, but once they were rare and occasionally looked down on by classically trained lawyers who favored doctrinal methods of analysis. Francis Snyder’s engaging paper on the contribution of anthropology to teaching comparative and international law raises questions and issues on empirical law. Economics and law is probably the best known and most widespread combination of social science and law, although law and society was the first entrant to this new academic field. Law imports many concepts and methods from sociology, psychology, history and others. And yet legal education still struggles with how to incorporate these other disciplines into its syllabus. How then is legal education affected by incursions from other fields? For American readers the research discussed by Snyder takes place outside the US although recent work on legal ethnography by Eve Darian-Smith, The Crisis in Legal Education: Embracing Ethnographic Approaches to Law brings it firmly back onshore.
Snyder came to anthropology indirectly, first as a political scientist interested in one-party government in Mali, second as a research assistant for a Chinese law professor, and thirdly in doing a PhD in Paris on comparative law and legal anthropology (p. 1). These early experiences fed through into his teaching of comparative law in Canada. It was while at Warwick, the home of law in context, that Snyder introduced the anthropological framework into EU law and its Common Agricultural Policy (CAP), the key common policy of the EEC. Instead of analysing rules and decisions, Snyder examined the formation of CAP from the ground up, how the different political actors negotiated with each other, and how the policy impacted on farmers and consumers. In extending this into food policy, students were required to negotiate, draft and apply rules in relation to the regulatory regime for lamb meat. This was part of Warwick’s drive to incorporate non-legal materials into legal subjects. (See the Law in Context series by CUP for further examples.) These approaches were reinforced by the tackling of bigger topics such as globalisation and China and establishing a new journal, the European Law Journal, which encouraged alternatives to black-letter law.
Students benefited enormously from these new directions. Along with hard rules and decisions, they were exposed to soft law and other types of norms that operated outside the direct legal sphere, such as guanxi (the reciprocal interlocking relationships that form the basis for networks in China). One difference between the anthropological approach and the formal doctrinal one is the role of the state. For anthropologists who frequently studied small societies, acephalous in kind, the role of the state was secondary. It is the fine web of relationships people form and the management of these that engenders order in society, or as Llewellyn and Hoebel put it in The Cheyenne Way, the law-ways of the group. The method adopted was to examine “trouble cases” for their rich data, a preferable way to the dry examination of “what is your rule for X?”
Snyder rounds off his paper with his experience teaching law in China at the Peking University School of Transnational Law in Shenzhen, China. This is a graduate school where the students study for two degrees: one a US-style JD degree, which is taught in English, and a Chinese-style JM degree taught in Chinese, both over four years. He gives the example of teaching EU Law in which “one objective is to enable the students to ‘think like a European lawyer’, in other words to understand EU law from the inside as well as from the outside.” (Pp. 9-10.) Indeed, in his article on traditional Chinese medicines and the EU he invokes Llewellyn and Hoebel referring to the law job of ‘channeling’ by which they mean “the preventive channeling and reorientation of conduct and expectations.” Traditional Chinese medicine and the EU regulatory regime arrived at an uneasy accommodation even though their cultural logics were incompatible. The anthropological approach to teaching enables these differences to be seen and understood from the perspective of their different cultural milieux. A formal analysis of rules wouldn’t be able to explain any of this.
Snyder’s paper advances a strong case for adopting the anthropological approach in the modern teaching of law, even in its global and technological contexts. In this respect he traces a line from James Boyd White’s 1985 call, “What kind of sociology or history or anthropology are we implicitly practicing in this legal rule, in that legal action or argument, in this judicial opinion?” It increases students’ understanding of what processes constitute the legal system in its more abstract form. It achieves this by using ethnography and cultural analysis. I can illustrate this from my own teaching in the last year. (I should add, however, my first experience of anthropology was at the feet of the late Simon Roberts who taught a course that is summarized in his book, Order and Dispute: An Introduction to Legal Anthropology.) At University College Dublin I taught a masters course on international law and business. One of the modules was ‘Corporate Networks’ and for this I used Actor Network Theory among other methods. Developed out of Science and Technology Studies ANT opens the black box and shows how different parts of networks operate on each other. Taking a complex transaction, say the construction of an international railway, it is both highly instructive and fun to take it apart and examine all the possible types of actor—animate and inanimate—involved in building such a complex entity. (Darian-Smith herself uses the Keystone XL Pipeline as a case study of how to examine the local through to the transnational.) Moreover, it situates the lawyer’s role more accurately among the myriad of actors who participate and it also demonstrates how important and crucial the contracting process can be. For their summer projects the students obtained internships in law firms, accounting firms, paper goods manufacturers, legal tech firms and the like, in which they became anthropologists producing ethnographies of their “societies”. For future lawyers it is an invaluable experience showing abstract law is first encountered in the many details of everyday life. As Snyder says
it requires that students (and teachers) explore the relationship between norms, knowledge and power, exemplified for example in teaching on new forms of dispute settlement, such as international arbitration, or on ‘soft law’, a normative phenomena which has assumed increasing importance in linking together parts of our fragmented world. These aspects of anthropology can help law students to understand better the global shift which … will shape the lives of students (and their teachers) now and in the future. Anthropology has an essential role to play in our understanding of its implications. (P. 11.)
Today and tomorrow’s lawyers have many challenges to face—political, technological and professional—so the role of the social sciences like anthropology will become more vital and essential.
Cite as: John Flood,
Understanding Law by Doing Anthropological Fieldwork, JOTWELL
(January 26, 2016) (reviewing Francis Snyder,
The Contribution of Anthropology to Teaching Comparative and International Law in
The Trials and Triumphs of Teaching Legal Anthropology in Europe (Marie-Claire Foblets, Gordon Woodman and Anthony Bradney eds., 2015), available at SSRN),
https://legalpro.jotwell.com/understanding-law-by-doing-anthropological-fieldwork/.
Dec 10, 2015 Nick Robinson
In the United States, the most advanced degrees offered by law schools are, counter-intuitively, predominantly granted to foreigners. The LLM, or master in laws, has become a staple for law graduates from other countries hoping to further their careers back home, find a job in the U.S., or merely spend a year enjoying a fun experience abroad. The JSD or SJD, or doctorate of science and law, is generally targeted at foreigners wishing to teach, either back in their own country or hoping to find a job on the U.S. academic market. Meanwhile, most U.S. law students, including those interested in a teaching career, never even consider one of these advanced degrees, at least until the recent creation of Yale’s PhD in law.
How did this seemingly paradoxical situation come to be, where the most advanced law degrees are largely ignored by U.S. students, but embraced by foreigners? Gail Hupper does a skillful job in her recent article, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law, explaining the history of this phenomenon, particularly the story of the JSD/SJD. The article was the focus of a recent symposium issue of the New England Law Review, in which Bruce Kimball, Carole Silver, and Paulo Barrozo provided commentary on Hupper’s piece.
As Hupper explains, the JSD/SJD started in the late 1800’s at top U.S. law schools like Harvard, Yale, and Columbia, to train U.S. lawyers for the domestic teaching market. The rise of these advanced degrees corresponded with that of full-time law teachers in the U.S., as well as the view of law as a standalone science. Students who were interested in a career in teaching would pursue a JSD/SJD at an elite law school, which would frequently confer an LLM as an interim degree. By World War II some 20% to 25% of professors at top U.S. law schools had a JSD/SJD, as did many professors at other law schools around the country.
After World War II though the degree went out of favor for those interested in the U.S. law teaching market. Many LLB students (the LLB was the precursor to the JD) began to take many of the same classes as JSDs/SJDs, and legal practice, particularly clerkship experience, became more valued by hiring law schools. At the same time, the realist turn in the legal academy meant perspectives from other fields, like economics or political science, became more prized, heightening the advantage of a PhD from another discipline for those interested in graduate study before pursuing law teaching.
Instead of fading away though, international students started taking up the degree, and by the 1970s two-thirds of JSD/SJD graduates were non-citizens (today almost all are). As Hupper details, State Department and Ford Foundation grants fueled the initial push for students from Europe in the post-World War II environment and Cold War politics and a sense of missionary altruism by a handful of faculty soon led these top US law schools to recruit students from Asia, Latin America, and Africa. At first these students filled LLM programs, but they quickly became integral to the JSD/SJD programs as interest in these degrees from U.S. students waned.
Yet, the internationalization of these advanced degrees also pushed them towards the margins of the U.S. legal academy. Hupper emphasizes the permissive, and unplanned, nature of this transition. She argues, “there was never an institutional commitment to foreign doctoral students in the way that there had once been a commitment to U.S. doctoral students.” Schools often gave these students no facilities of their own and minimal financial assistance. A handful of faculty, who often taught comparative or international law, invested disproportionately in these students, while other faculty often treated them with ambivalence.
Today, despite more attention to the JSD/SJD programs at many top law schools, clear tensions exist in how schools view their American-dominated JD programs and their foreign dominated graduate programs. Both Hupper and the commentators on her piece point to Yale’s recent development of a PhD in law as evidence of this unresolved strain. Hupper notes that when Yale created its new PhD program that it made explicit the degree was only for the further training of students who already have a U.S. law degree. This, of course, is ironic as this is precisely what Yale’s J.S.D. program had been designed to do, and did with considerable success in the first half of the 20th century. Carole Silver in her commentary argues that the PhD in law represents an attempt by Yale to reassert its centrality in the U.S. academic hiring market, where Yale Law School now faces increasing competition to its prestige and clout from PhD programs in other disciplines. Paulo Barrozzo in his commentary though expresses concern that Yale’s PhD program will relegate the JSD to a second-tier degree. Already the JSD/SJD has had to battle perceptions within the U.S. that because it is dominated by foreigners that it is not as prestigious. The development of a PhD in law dominated by U.S. students, but largely excluding foreigners, may only cement this perception.
Foreign students pursuing advanced degrees could be excused if they do not feel that they quite fit in in the U.S. legal academy. As Silver notes in her commentary, top U.S. MBA programs are much more internationalized than top U.S. law programs. However, perhaps this is to be expected–the result of a provincialism that is at least partially inherent to the study of law, but arguably accentuated by the approach to legal studies in the United States. For example, in many countries, law students are required to take jurisprudence. If there is a globally shared cannon in the study of law it is probably the writings of Hans Kelsen, H.L.A. Hart, or Dworkin. However, this tradition of grounding law in first principles has been frequently and openly shunned in the U.S., where jurisprudence is not only not a required class, but, at many law schools, it is not even offered regularly.
Barrozzo in his commentary on Hupper’s article laments the U.S. legal academy’s parochialism and pragmatism, which in turn limits its global relevance. Yet, arguably these same contextualizing features are also part of its great strength. U.S. law schools at their best train legal technicians, equipped to borrow methodologies and insights from other fields to solve the challenge at hand. This leads U.S. law faculties to make large investments in exploring the intricacies of U.S. law and its relationship with U.S. history, politics, and economics to find context specific solutions for legal problems facing U.S. society. While the methodologies of this scholarship frequently have relevance more broadly, the actual substance of much of this academic work is of more limited interest to foreigners, outside of areas like international or corporate law where issues are fairly similar across jurisdictions. Indeed, one of the great challenges facing top U.S. law schools is how to reconcile their desire to situate themselves as global leaders in the study of law and also succeed at producing scholarship that provides concrete answers for U.S. legal and policy debates and contributes to creating “practice-ready” U.S. lawyers.
Although outside the scope of Hupper’s article, it would be informative to explore how other jurisdictions are dealing with this tension. U.S. law schools very much compete with schools in the United Kingdom, Europe, Singapore, Canada, and Australia to attract law students from other countries for advanced legal study. The approach, and relative success, of these schools and countries in this endeavor is undoubtedly deeply intertwined with the history of their advanced degrees in law. Hupper has done us a great service by helping illuminate the history of these degrees in the U.S.
Nov 9, 2015 Richard Moorhead
The literature on lawyer ethics has been dominated by philosophy and sociology for many years. Consistent with the rise of behavioral economics and the more urgent focus on ethics in business schools, social psychology is increasingly being used to offer insights in the field (see for example Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. 1639 (2015)). Take Elaine Doyle, Jane Frecknall-Hughes and Barbara Summers‘ piece An Empirical Analysis of the Ethical Reasoning of Tax Practitioners. This piece uses a tax-specific version of Rest’s original Defining Issues Test (DIT) to compare the moral reasoning of Irish tax practitioners and a control group of non-tax specialists. Rest’s DIT is well established and designed to test the level of moral reasoning applied by test respondents when solving. Test takers read moral dilemmas and provide an indication of which kinds of reason they find most important in deciding the moral dilemma. The reasons cover basic justifications like self-interest, rules and ‘post conventional’ principles. The test uses six levels, and the higher up the scale, the higher the level of moral reasoning that is applied by the subject of the test. Higher levels of performance on the test have been associated with more ethical decision making. The authors study covers tax practitioners (which includes lawyers).
The results the authors claim for the study are: (i) tax practitioners generally reason at lower levels in tax contexts than in social scenarios (i.e. they can decide ethical problems in a more principled manner, but do not in tax situations); (ii) that the professions do not appear to attract people who generally reason at lower levels (i.e. tax does not, on the evidence here, attract particularly bad apples); and (iii) that practitioners’ moral reasoning appears to be affected by training/socialization in their professional context (in particular tax practitioners in private practice demonstrate lower levels of moral reasoning than practitioners working for the Irish revenue service). They summarize their results as follows:
The fact that tax practitioners do not reason significantly differently from non-specialists in the social context suggests that individuals whose reasoning is less principled than the norm (as measured by the non-specialist control group) are not self-selecting into the tax profession. …Once the context changed to tax, however, differences in moral reasoning were evident, with tax practitioners utilizing significantly lower level moral reasoning than non-specialists who remained consistent in their reasoning across both contexts. This difference was substantial in size, with the level of principled moral reasoning being 34% higher in non-specialists. (P. 333.)
An interesting question is whether we (or they) should care. Are tax practitioners more prone to a kind of lazy positivism alongside client centrism? The researchers pose the question (reminding this reader of Mertz’s fascinating work, The Language Of Law School, OUP, 2007) arguing that law students become de-ethicalized by learning to think like a lawyer): does the legal reasoning employed by specialists performs inhibits ethical decision-making:
This may be driven by the weight tax practitioners give to legal rules in the tax context, of which non-specialists are unaware, but further analysis is needed before any such conclusions could be reached. (P. 334.)
Yet they go on to doubt the possibility that legitimate positivism is what causes the difference because, in contrast to private practitioners, revenue practitioners, operating in the same legal architecture, are rather different:
Revenue practitioners show a pattern of reasoning that is very similar to non-specialists and their reasoning is not at a significantly different level in either the social or tax contexts. (P. 334.)
If they are right about this:
The fact that Revenue practitioners reason differently from private sector practitioners …indicates that tax knowledge and experience are not what is driving the difference between reasoning in the social and tax contexts for practitioners, as Revenue practitioners also possess tax knowledge and years of experience working in tax. Equally, moving from a social context to a work-related context is not driving the difference, as tax is also the working domain for Revenue practitioners. The results suggest that the differences observed in the reasoning of tax practitioners in the tax domain arise only in a private practice environment. While the results do not identify the reasons for the differences in moral reasoning in a private tax practice domain, the differences found may be due to a socialization effect in private sector tax practice. (P. 334.)
A more pithy way of putting this might be that private practitioners in tax become morally inhibited because it pays or because their ethical rules demand (or are perceived as demanding) that they prioritize the client’s interests over others. A particular kind of professional logic (zealous advocacy) interlocks with commercial logic to inhibit ethical reasoning: a problem potentially well beyond tax law of course. To put the matter in some perspective, the diminution in moral reasoning when tax practitioners in private practice wrestle with tax-based ethical problems puts them on a par with “average senior high students and are well below the level of adults in general and college students.” Wincingly, they are also, “much lower than …accountants.” Imagine the shame.
Of course there may be other explanations for the results: differences between tax practitioners in private practice and tax practitioners acting as civil servants for the government revenue services extend beyond simply the contexts they work within. Similarly, designing robust, context specific measures of ethical reasoning are not straightforward and their testing requires replication (Moorhead et. al., Designing Ethics Indicators for Legal Services Provision (2012)). But the approach shows how the traditionally more qualitative approaches of sociological inquiry into professional ethicality can be supplemented by significant, quantitative insights from psychology. With the legal profession, especially its elites, rather in love with its own commerciality, work that calls into question the culture of private practice and gives anyone pause to think is to be welcomed. That said, in discussing these findings with private practitioners I find two common responses: one is to be embarrassed and fascinated – it is the sort of work that gives reflective practitioners pause: they sense at the general level how culture may influence professional judgment and this helps them to see it might be a real problem. Another reaction is more hard-nosed, and takes us back to the jurisprudential debates about lawyer zeal: they tell me – morally principled decision making is for clients, I am the lawyer, I merely advise and in that context the rules admit of no ethically principled position.
Oct 6, 2015 Carole Silver
Rachel E. Stern and Su Li,
The Outpost Office: How International Law Firms Approach the China Market,
Law & Social Inquiry (forthcoming, 2015), available at
SSRN.
Size matters—in the legal profession as elsewhere. It is a common element in research on law firms, legal practice and lawyers’ careers, and it often is assumed to be associated with success—in many instances, accurately. The largest U.S. law firms in terms of headcount also are among those that generate the most revenue and profits per partner, for example. Law firms in the category affectionately known as “BigLaw” account for an important segment of the most sought-after positions for new law graduates, in no small part because they offer the highest starting salaries and the promise of more for those who succeed. These same firms represent the most significant businesses in their most important disputes and largest and thorniest transactions, and today also often are involved in notable pro bono activities. Bigger is correlated with success, whether size is measured in headcount, number of offices, revenue, profits or compensation.
The assumption that size matters underlies the thoughtful analysis of Rachel Stern and Su Li about the growth of global law firms in China. Their article, The Outpost Office: How International Law Firms Approach the China Market, explores why growth seems to have stalled in the China offices of international law firms. Stern and Li draw on data gathered in interviews (conducted in 2013-2014) with lawyers practicing in the China offices of 50 international law firms. ((In addition, they interviewed lawyers working in China in settings other than international law firms, and also with lawyers practicing in the Hong Kong offices of a number of international law firms.)) The firms have home bases in 18 different countries; this variety allows Stern and Li to consider how home country shapes global growth. ((While they did not report a difference in size based on home country, they found that home country related to differences in the way lawyers described their firm’s “market niche”: “Lawyers at most of the Anglo-American firms in our sample talked about a practice area specialty, such as intellectual property or M&A. In contrast, lawyers from the vast majority of firms from continental Europe, Asia, and Latin America defined their market niche as handling work from their home country or region.” (9) My research suggests that these differences in global strategy may extend beyond China; see Carole Silver, Nicole DeBruin Phelan and Mikaela Rabinowitz, Between Diffusion and Distinctiveness in Globalization: U.S. Law Firms Go Global, 22 Georgetown Journal of Legal Ethics 1431 (2009).))
It is no surprise that interest in China has been strong among international law firms, reflecting the activities of their clients. Between 1992 and 2012, “an average of twelve new international law firms per year opened China offices” according to Stern and Li. (P. 2.) But these offices have not developed into full-service entities. Their average size is only 11 lawyers. Small offices are not able to offer the variety of services available in “full service” offices, nor can they advise on certain highly sophisticated matters that require more “boots on the ground.” (P. 10.) Of course, even a small outpost may generate work that is performed by lawyers situated elsewhere in the firm, and in this way may contribute to the firm’s overall profitability as well as reputation. ((This was typical of firms’ overseas efforts in the 1980s, for example. See Carole Silver, Globalization and the U.S. Market in Legal Services—Shifting Identities, 31 Journal of Law & Policy in International Business 1093 (2000).)) But Stern and Li report that the revenue generated from the China offices has failed to meet firms’ expectations: “The bottom line is that China is a marginal part of nearly every international law firm’s business. For more than eighty percent of the law firms in our sample, lawyers reported that Mainland China generates less than five percent of global revenue.” (P. 13.) And the continuing small size of offices in China stands in contrast with average office size (by lawyer headcount) in other jurisdictions. ((Based on my ongoing research into the overseas offices of U.S.-based large law firms, office size in terms of lawyer-headcount increased in Beijing offices slightly more than 40% between 2005/2006 and 20011/2012, while office size in Shanghai offices during the same period increased approximately 14%; in each city there were fewer than 10 lawyers on average per office. In contrast, London offices of the same firms grew approximately 25% during this period to an average office size of nearly 68 lawyers, and Hong Kong offices increased over 80% to an average of slightly more than 30 lawyers per office. In terms of number of lawyers, China offices in 2011/2012 were smaller than offices in other major commercial centers. See Silver, Phelan and Rabinowitz, supra n. 2 (regarding the 2005/2006 period).))
The aim of their research was to investigate why the promise of China had not materialized for international law firms. They considered the role of regulation, certain characteristics of international firms and the influence of organizational structure, among other things. Each of these factors offers important insight.
Regulation in China limits the scope of the firms’ work by preventing them from engaging in local practice, among other things. In contrast, in many jurisdictions where regulatory barriers are less stringent, law firms expand their overseas offices by hiring local lawyers who in many cases develop local practices. (P. 17.) As Stern and Li explain, “Government regulations tend to produce coercive isomorphism, or convergence on a single way of doing business in response to similar rules, and the ban on practicing Chinese law has clearly shaped China’s market for foreign legal services.” (P. 16.) In addition, they suggest that the regulatory barrier also may serve as a sort of “authoritarian logic” aimed at preventing foreign lawyers from “infect[ing] China in some way that will lead to a coup, a revolution, whatever.” (P. 8.) Apart from regulation of lawyers, uncertainty in the regulatory environment may stall growth, particularly for foreign businesses, and also undermine the importance of lawyers’ roles in China. But healthy growth among China-based elite law firms suggests that Stern and Li’s focus on distinctions between domestic and foreign law firms is appropriate. ((For information on growth among China-based elite law firms, see “China Elite 2014: A report on the PRC legal market,” The Lawyer (2014).))
Stern and Li also analyzed six characteristics of international law firms and their China offices to investigate their predictive value with regard to size. They found several significant predictors of larger offices, including how long a firm has been in China (a “first mover advantage” (P. 14.)), and the “global reach” of a firm related to the number of other offices supported outside of the home country. Additionally, they found “localization” to be important—meaning how many lawyers have a personal connection to China. However, they could not determine whether offices with more lawyers with local connections were better at generating business or whether “bigger firms [were] better at attracting this sought-after group”. (P. 15.)
Their data also offer insight into the ways in which offices’ failure to thrive might relate to the overall structure of law firms. By “looking at politics inside law firms” they were able to learn that “arguments for expansion often struggle to attract champions.” (19) Generally, since overseas offices are part of organizations in which profits are shared across a single structure, it is common for firms to have an “isolationist wing of partners who see local business thriving and dislike the idea of overseas adventures. In their view, every dime spent overseas is a far-fetched business proposition that reduces the profit pool.” ((It would be interesting to learn whether vereins—in which profits are not shared across the firm—are different.)) (P. 18.)
One of the most interesting parts of the article is more directly about failure. They ask, why don’t more firms close their China offices? Their answer is fear: according to one lawyer, “’Firms don’t close … because they figure if they close, they’ll never be able to get back in [because of] licensing and the cost to their reputation. And they are right.’” (P. 21.) The result is that offices are closed surreptitiously. Stern and Li visited five offices in their efforts to interview lawyers, for example, that were “deserted …, all locked and dark with piles of mail visible inside the door. In all five cases, workers in neighboring offices told us that lawyers at the deserted office live abroad and only occasionally stop by to pay bills and meet clients.” (P. 5, n. 11.) The reluctance to close reflects the symbolic and option value of the offices: even a superficial presence serves as a “symbol[] of global commitment and a bet on future gains.” As Stern and Li explain, “A China presence can be a defensive play for firms unsure about the future, in other words, as well as an active effort to make money in the present. Nor does maintaining a financially marginal outpost office seem strange when so many other firms are doing it too.” (P. 21.)
What Stern and Li’s research shows is that at the moment, one size does not fit all in the market for elite corporate-focused legal services in China. Rather, in China, “outpost offices can be a persistent organization form, rather than a way station encountered en route to a vigorous international presence.” (P. 22.) But this is not the last word and we can expect the imbalance between domestic and global firms to shift—globalization is nothing if not dynamic, after all.
Sep 8, 2015 Andrew Boon
In Final Judgment Paterson makes a triumphant return to the subject of his PhD undertaken forty years ago: the operation of the highest court in England and Wales. This update covers the transition required by the Constitutional Reform Act 2005, giving effect to a rhetorical separation of powers. The relevant part of this legislation as far as this account is concerned is the abolition of the jurisdiction of the House of Lords and its reconstitution, outside of Parliament, as the Supreme Court. (It is worth reading this in conjunction with Richard Moorhead’s review of Hanretty’s Political Preferment in English Judicial Appointments.)
The substance of the book draws on a number of sources, including over 100 interviews, many with members of both the House of Lords and the Supreme Court. Primarily it illuminates process issues, from the way that judges interact with the advocates appearing before them to how they come to their decisions. Indeed, the structure of the book is based on dialogues the court has with others and among its own members. Paterson details how the exchanges with counsel in the court progress and, importantly, the difference good advocacy can make to the outcome of a case. We get insights into how the justices own discussions shape the ultimate judgments and what importance is given to dissents in terms of individualism versus collegiality. To bolster this Paterson provides some statistics on justices’ voting patterns over the last 15 years. He also touches on politically sensitive dialogues the Court has with other courts as part of the UK belonging to the European Union. In this respect the UK Supreme Court mediates between the pan-European courts and the polity of the UK. Recent discussions on human rights and membership of the EU highlight the difficulties. The depth and quality of this material is sufficient to make this work important without more. However, the authenticity of the accounts, and Paterson’s honest handling of the material, by which I mean that he reports what he found, warts and all, adds to its value.
Such a rigorous post-mortem of either the high end skills of lawyering or of judicial decision making at the highest level would be valuable in their own right. Together they provide a revealing panorama of the legal appeals process. The book covers court conventions, such as the appeals court not basing decisions on points not argued by counsel and how it has been dealt with by the judges putting arguments to counsel so that they can have their say. This leads into issues such as whether and which counsel are listened to when arguments are put and why. It examines the questions of how the judges approach their task and how and why they change their initial views of the case.
Combined with these useful insights into the judicial process there is fascinating material concerning the individuals involved. Such detail derives from the extraordinary candour of some of the interviewees and their willingness for it to be attributed. This gives additional material for analysis since it illustrates just how important human agency is in any legal process. It shows how, even at the highest levels, and in an institution as bound by tradition as the judiciary, individual personalities make a huge difference to outcomes.
As well as humanising the subject of inquiry the focus on personalities affords the reader a level of interest in the material that is unusual in academic work. It is not always an edifying view of the conduct of business in such an august institution. Following the difficulties in the Pinochet case, caused when Lord Hoffman failed to mention a potential conflict of interest, relationships between two of the Lords and Hoffman were said to have broken down completely. (For Lord Hoffman’s role as judge and legislator see Hugo Young’s analysis.) For quite different reasons, two of the other members of the court were on such bad terms that they always made a point of disagreeing with the other. Counsel whose argument was endorsed by one could expect a hard time from the other. Others of their Lordships had reputations as intellectual bullies. In one case junior counsel, having observed the battering taken by his senior, on being asked if he wished to address their Lordships replied “Not without a helmet”.
The reader is also given an introduction to the politics of the chamber, from high to low. At the high end the constitutional tensions between the House of Lords and the executive over detention of terrorist suspects is an important insight into the realities of the rule of law. At the low end, Paterson describes how the siting of each of their Lordships’ offices potentially affects their views and the outcome of cases. Finally, we see how even this most important of institutions is under pressure to cut cost and to change ways of working. Therefore, the senior judges are under pressure to not to indulge advocacy, to work as a team and to produce single judgments. This, it is not surprising to hear, means that some members of the Supreme Court are less and less able to perform their role as they would wish.
Jul 24, 2015 Sida Liu
After three decades of research on gender inequality in the legal profession, it is getting harder for any researcher to say something new. We know as facts that, in many countries across the world, female lawyers earn less than their male colleagues, have fewer chances of promotion, face various forms of gender penalty and sexual harassment in the workplace, and tend to leave the profession earlier and more frequently (see Kay and Gorman 2008 for a good review). However, very few studies have examined the macro-level factors that structure the patterns of gender inequality in the legal profession, such as the differentiation of the public and private sectors, the mobility of lawyers across geographic areas, or the supply and demand in the legal labor markets. This is precisely the approach that Dinovitzer and Hagan take in their recent study on hierarchical structure and gender dissimilarity in American legal labor markets.
The authors use data from the first two waves of the After the JD study, a longitudinal survey of a cohort of lawyers who entered the American legal profession in 2000 conducted by researchers at the American Bar Foundation. The survey included four major markets for legal services (New York, Los Angeles, Chicago, and Washington, DC), five additional large markets (Boston, Atlanta, Houston, Minneapolis, and San Francisco), as well as nine smaller markets. The concentration of high-status corporate legal work varies significantly across the three types of legal labor markets. Dinovitzer and Hagan use the concept of “hierarchical market structure” (HMS) to measure this macrostructural characteristic of the legal profession. Locales with a higher concentration of corporate legal work (e.g., New York) are higher on the HMS index, consisting of four items: elite law graduates, highly leveraged law firms (i.e., firms with high partner/associate ratios), lucrative billings, and corporate clients.
How does the HMS matter for gender inequality? As the authors demonstrate in their analysis, the leveraged nature of legal labor markets benefits women in notable and interesting ways.
In those markets higher on the HMS index, women’s salaries increase more rapidly than men’s, though men continue to out-earn women. This effect of the HMS on gender inequality is not limited to New York City or the five most highly stratified markets (i.e., NYC, Washington, Boston, San Francisco, and Los Angeles), but found across all the markets included in the sample. In other words, high concentration of corporate clients, elite law graduates, and highly leveraged and profitable law firms has a significant effect in reducing the income gap between men and women—a finding contrary to our common wisdom that hierarchy and concentration usually work against gender or racial equality.
Yet the positive effect of the HMS on gender equality is complicated by another structural measure, namely, sex segregation in the legal profession, or what the authors call “gender dissimilarity.” Traditionally, women were overrepresented in the lower-paying public sector, whereas men were more likely to be found in private practice. With the increasing feminization of law schools and the legal profession, however, the glass ceilings of the profession have been gradually weakened. Dinovitzer and Hagan use gender dissimilarity, defined as the proportion of women who would be required to move into the law firms sector from the public sector to create gender balance, to measure the distributional dissimilarity of men and women across sectors of legal practice. This measure is different from the commonly used measures of gender inequality because it focuses on the difference between sectors of the labor market (e.g., law firms vs. government agencies) rather than the difference in the same sector (e.g., law firms).
Unlike the hierarchical market structure, gender dissimilarity contributes to income inequality between male and female lawyers. In labor markets in which women are disproportionately allocated to the public sector, women’s wages are significantly depressed across all sectors. That is to say, income inequality between men and women is more prominent where the boundary between public and private sectors of the legal profession is more rigid. In contrast, where the boundary between male and female work is more flexible, it benefits women and diminishes the wage gap in earnings. This finding may sound unsurprising to many people familiar with gender inequality in the workplace, yet it has an important policy implication, that is, increasing the mobility of women and men between public and private sectors could have a positive effect on gender equality, at least in terms of earnings.
The picture that Dinovitzer and Hagan paint in this article, therefore, is not a totally pessimistic one for women in the legal profession. It shows that gender inequality is not only a matter of discrimination in the workplaces of lawyers, but also shaped by broader structural changes in the profession. What is missing from the study is a fully convincing explanation of why the high concentration of corporate legal work would benefit women. The authors build their theoretical arguments primarily on Charles Tilly’s theory of durable inequality, particularly the two mechanisms of exploitation and opportunity hoarding, by which the dominant group (in this case, male lawyers) extract resources from the other group (female lawyers) and restrictively controls the use of a value-producing resource (in this case, corporate legal work) so that the other group cannot benefit from it. This theory works very well for explaining how gender dissimilarity contributes to inequality, but not for how the hierarchical market structure reduces it. As the authors acknowledge in the conclusion, they “are not able to fully account for the range of processes that differentiate men and women and their choices to pursue a law degree, practice law, or work in the corporate sector, all of which may ultimately be related to their earnings.” (P. 951.)
While I cannot offer a full-fledged account of all these processes either, I do want to point out at least one important mechanism that partially explains why the concentration of corporate legal work reduces the wage gap between men and women, namely, the promotion-to-partner tournament in large law firms (Galanter and Palay 1991; Galanter and Henderson 2008). As most elite law firms on Wall Street and in other major markets adopt nearly identical salary rates for their entry-level associates and maintain a similar tournament system of promotion (despite many variations in details), the wage gaps between male and female associates in these firms would not be salient until they are closer to the “up or out” stage of their careers. As corporate law firms employ an increasingly large number of associates in the legal labor markets, the effect of this tournament system on gender inequality would also become more significant (though Galanter and Palay were completely silent on gender in their original theory). Women have fewer chances of promotion than men and they are more likely to exit the tournament or even the profession (Hagan and Kay 1995; Reichman and Sterling 2004; Kay and Gorman 2008), yet the wage gaps between female and male associates could be smaller in corporate law firms than in other types of law firms. This might also explain why in smaller legal markets where corporate work is scarce, female lawyers seem to lag even further behind their male colleagues in terms of earnings.
The findings in this article, as well as in Ronit Dinovitzer’s other recent writings, give high hopes for the results from the third wave of the After the JD study, which was conducted in 2012, ten years after the cohort of respondents entered the bar. The attrition of women from the legal profession, as well as the mobility between law firms and other legal sectors, would probably be more salient at this stage of lawyers’ careers. For research on the legal profession, the power of this longitudinal study increases exponentially as the waves of data accumulate. Perhaps some of the unresolved issues in the present article, such as how lawyers move across firms and sectors, can be explained more rigorously in future studies with the new data available.
Jun 23, 2015 Laurel Terry
Andrew M. Perlman,
Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015), available at
SSRN.
We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with respect to the issue of lawyer regulation.
Professor Perlman’s article argues that the time has come to “reimagine” our lawyer-based regulatory framework. He asserts that instead of focusing on the “law of lawyering” – which is how people in our field often refer to what we study – we need to develop a broader “law of legal services” that would authorize, but appropriately regulate, the delivery of more legal and law-related assistance by people who do not have a J.D. degree. He argues that reimagining regulation in this fashion will spur innovation and expand access to justice.
What Professor Perlman is writing about is not a particularly new idea. For example, back in the 1980’s and 1990’s, Professor Deborah Rhode was writing about nonlawyer practice. The ABA issued a report on this topic in 1995.
What feels different at this point in time is the variety of directions from which these calls for reform are coming. For example, last year the ABA Task Force on the Future of Legal Education issued a report that included the following as part of one of its key findings: “To expand access to justice, state supreme courts, state bar associations, admitting authorities, and other regulators should devise and consider for adoption new or improved frameworks for licensing or otherwise authorizing providers of legal and related services. This should include authorizing bar admission for people whose preparation may be other than the traditional four-years of college plus three-years of classroom-based law school education, and licensing persons other than holders of a J.D. to deliver limited legal services.” In August 2014, the ABA established the Commission on the Future of Legal Services [not lawyers] which has been asked, inter alia, to “propose new approaches that are not constrained by traditional models for delivering legal services and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all.” For those who might have missed the news, after more than ten years of effort, which was led largely by its Supreme Court, Washington had its inaugural class of Limited License Legal Technicians (LLLT) take the required exams and begin their 3,000 hours of supervised work. Other states are talking about or exploring related ideas.
And this is just in the U.S. As Steve Mark, Tahlia Gordon and I noted in our 2012 article on Global Trends, jurisdictions around the world are grappling with a variety of issues related to lawyer regulation, including the issue of what it is that should be regulated – lawyers or legal services. (We identified global trends regarding “who regulates-what or whom is regulated-when regulation occurs-where regulation occurs-why regulation occurs-and-how regulation occurs – the “who-what-when-where-why-and-how” of lawyer regulation.) Jurisdictions such as Australia, Canada, and the UK, are beginning to discuss or have already adopted an “entity” approach to regulation. Regulators in Ontario, Canada not only regulate lawyers, but have regulated paralegals for more than five years. Nova Scotia’s “Transforming Regulation” initiative is very interesting and other Canadian provinces are exploring the issue of what it is they should be regulating.
It is against this backdrop that Professor Perlman’s article is written. As a result of his experience as Chief Reporter (and one of the main technology gurus) for the ABA Commission on Ethics 20/20 and as Vice Chair of the ABA Commission on the Future of Legal Services, he brings to the article not only great familiarity with the issues, but a deep understanding of the difficulties involved in achieving the paradigm shift he recommends. But his methodical way of laying out the landscape and the arguments he offers may go a long way towards achieving the changes he recommends.
The first part of his article offers a hindsight look at the work of the Ethics 20/20 Commission, which was asked to evaluate what changes were needed to lawyer regulation in light of developments in technology and globalization. It also includes a response to some of the Commission’s critics. Because I recently completed my own reflective essay about the work of the 20/20 Commission, I was much more interested in the subsequent part of his article, which was entitled “Towards a Law of Legal Services.”
The “Towards a Law of Legal Services” section of Professor Perlman’s article begins by describing the difficulties inherent in trying to define the practice of law. I found myself wholeheartedly agreeing with his conclusions in this section. I am continually dismayed when I hear lawyers, regulators, or judges suggest that the “solution” to some problem is to develop a better definition of the practice of law (and thus unauthorized practice of law or UPL). During the MDP debates in the 1990s, I came to the conclusion (see p. 872-873) that at least in the transactional setting, it is exceedingly difficult to develop – in an exclusive UPL sense, rather than an inclusive descriptive sense – a definition of what constitutes the practice of law. Thus, whenever I see “developing a definition of the practice of law” as the proposed solution to anything, I am dismayed since I do not believe that such efforts – even if properly motivated – will yield satisfactory results.
After explaining why it is difficult to define the practice of law, the article offers Professor Perlman’s thesis that we “should ask a fundamentally different question: should someone without a law degree be ‘authorized’ to provide a particular service, even if it might be the “practice of law”? This section of the article includes this graphic to illustrate how one might respond to this question and begin to conceptualize a “law of legal services” that would supplemented the “law of lawyering:”
As Professor Perlman’s text explained, “the bottom of the pyramid captures very routine law-related needs (e.g., the creation of a living will) that can be addressed by completing blank forms. Regulatory barriers should not prohibit people from making these forms available to the public through websites or otherwise. But as consumers’ legal issues become more sophisticated, consumers typically need providers higher up on the pyramid. A central question for the law of legal service is this: at what point must a provider be subject to some kind of regulation?” (Professor Perlman’s footnote acknowledged Paula Littlewood for conceptualizing the issue this way and creating a slightly different version of the pyramid.)
The article continues by discussing the principles (or regulatory objectives) that a “Law of Legal Services” might be designed to achieve, which is a topic near and dear to my heart. It also illustrates how the “Law of Legal Services” might work in specific contexts, such as automated legal document assembly. This section offers a proposal to regulate automated legal document assembly that could be “promulgated either as a court rule or statute.” This section of the article also explains how Washington’s Limited License Legal Technician regime fits within Professor Perlman’s proposed approach. The article concludes with the following paragraph:
The law of lawyering is undoubtedly important, but it offers few options for transforming the delivery of legal services. Nonlawyer ownership of law firms is one possible exception, but even that reform envisions a world where lawyers remain the exclusive deliverers of legal advice. The law of legal services reflects a different approach to regulatory innovation, one that seeks to authorize, but appropriately regulate, the delivery of legal and law-related assistance by more people who lack a traditional law license. At a time when legal services are increasingly unaffordable, the law of legal services may reflect a promising way to unlock innovation and reimagine the regulation of the twenty-first century legal marketplace.
There were certainly places in this article where I found myself disagreeing with Professor Perlman. For example, I thought he might have been unduly optimistic with respect to his conclusion about the access to justice results that will accrue by virtue of regulating legal services providers such as LLLTs because there may be too few licensed LLLTs to address the significant unmet legal need. As I have noted in previous Jots, I see a larger role for technology (see here and here) than he acknowledged in this article – LLLT’s will help, but I don’t think that they alone will solve our access to justice problems. My bottom line, however, is that I agree with much of what Professor Perlman said. Towards the Law of Legal Services is an important article about an important topic. Given the gigantic unserved legal needs in this country and the decades of our saying that we need to address this problem combined with our failure to do so, I think the time may be ripe to think about a pyramid model of regulated legal services, in which lawyers are at the top of the pyramid, but not all clients necessarily need to see a lawyer. To steal (and paraphrase) a set of images that I heard Futures Commission Chair Judy Perry Martinez refer to at the 2015 ABA Midyear Meeting, a nurse may be a suitable provider to give a flu shot, a physician’s assistant may be a suitable provider to treat a cold, an Internist may be suitable to do an annual checkup, but you probably want a surgeon if you are having heart surgery. A patient may choose to go to an MD for all of these services, but that does not mean that the regulatory system should require a “one provider fits all” system. Just as there is a continuum of medical needs (and providers), perhaps the time has come to discard our mode of thinking in which we divide the world into “legal services/not legal services, with the former requiring a lawyer and the latter not. Perhaps the time has come to envision legal services as a continuum or a pyramid where clients can choose the type of provider they want – and we recognize that a legal services provider need not be at the apex of the pyramid in order to be regulated or in order to provide services that help clients address their legal needs.
It is true that this type of “pyramid approach” creates the potential for a tiered system of access in which lawyers are primarily utilized by those with greater financial resources and those with lesser financial resources receive services from someone lower on the pyramid. However, given the data that suggests that a large number of individuals currently need but do not receive any legal services at all, I consider this a second order problem that can be addressed through a process of incremental change.
In sum, I sense that we may be getting close to a tipping point in which we begin to take seriously the notion of a “law of legal services.” Professor Perlman’s thoughtful and measured article, his legal services “pyramid,” and the model rule he includes in his article provide a useful way to start thinking about whether and how we might go about reimagining the regulatory space in which we operate.
May 25, 2015 Rebecca Roiphe
This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”
Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases.
Gold argues that the prosecutor’s duty to refrain from using illegally seized evidence derives from the executive branch’s responsibility to interpret and abide by the constitution’s mandates. He draws on Larry Sager’s seminal article on “constitutional underenforcement” to argue that the Supreme Court’s distinction between the Fourth Amendment right and the exclusionary rule’s remedy has left us with exactly the sort of void Sager identified. Gold argues that the Court has restricted the scope of the exclusionary rule and declined to exclude evidence in many cases in which there is a violation of a constitutional right because it does not want to infringe on the prerogative of the executive branch. Separation of powers, in other words, has led the court to limit its institutional role in policing Fourth Amendment violations. As Sager argues, this is the moment when the executive must step in to the breach.
This argument is both innovative and compelling. Gold does not, however, analyze a parallel and perhaps even more pervasive argument that the Court makes in support of its gradual erosion of the exclusionary remedy. It is not exactly institutional incompetence that has led to the disintegration of the court-made remedy as much as it is the Court’s sense that the benefit of deterring police misconduct is outweighed by the cost of keeping truthful evidence from the fact finder.
The Supreme Court abandoned an earlier understanding of the exclusionary rule as an integral part of the constitutional guarantee. The Court no longer sees the judicial branch’s integrity compromised when courts admit evidence seized in violation of an individual’s rights. In the 1970s, the twin rationales supported a robust exclusionary rule but in the following decades the Court began to recast the argument. The Supreme Court now defines the Fourth Amendment as a constitutional right and the exclusionary rule as a judicially crafted remedy designed to deter constitutional violations. The deterrence rationale has led the Court to restrict the scope of the exclusionary rule precisely because in its view, the benefit to the public in protecting individual rights is often outweighed by the damage done by excluding truthful evidence in criminal cases. In Justice Cardozo’s famous words, “the criminal is to go free because the constable has blundered.” Gold does not fully engage the fact that, in this regard, his proposal for administrative suppression would lead to the same problems as judicial suppression.
Gold argues that prosecutors should do precisely what the court declines to do itself. When he argues that prosecutors cannot be complicit in police illegality, Gold’s reasoning sounds much like the Court’s old and currently out-of-fashion integrity argument: Using illegally seized evidence compromises prosecutors’ integrity. Gold’s argument that prosecutors’ ethics demands administrative suppression is more persuasive than his argument that the Constitution does. A prosecutor has the obligation to serve justice under Model Rule 3.8, which Gold argues means that he must not use evidence seized illegally. But the mandate to serve justice is complicated. Of course, respecting the rights of defendants is part of the calculation but so too is obtaining a just outcome by using all evidence the court deems admissible. The duty to act competently and diligently similarly require a prosecutor to serve the interests of the client, in this case the people or the community. There is a tension between Gold’s conclusion and the countervailing duty to protect the client by using admissible evidence to secure a conviction when one is warranted. While Gold favors the former, it is not clear that the complex rules governing prosecutors’ conduct mandate this choice.
Courts may not be fully enforcing Fourth Amendment rights but that does not dictate how the other branches should address the problem. Administrative remedies, such as direct police sanctions, would be more consistent with the Court’s understanding of the constitutional problem than administrative suppression. Fines and employment consequences for offending officers, unlike administrative suppression, would not involve the exclusion of relevant evidence from criminal trials. These sorts of solutions would not create the same windfall to individual defendants that the Court laments. Nor would the community suffer as much for the police misconduct. The value of direct police sanctions, however, may be beside the point if prosecutors’ ethical obligations require them to decline to use illegally seized evidence, as Gold suggests.
Gold argues that prosecutors are bound by ethical obligations to “suppress” the fruits of Fourth Amendment violations. Gold makes a more persuasive case that ethical obligations demand this response than that the Court’s increasing unwillingness to order the suppression of illegally seized evidence creates this responsibility. Prosecutors are, as Gold points out, supposed to serve justice. They are supposed to protect the rights of defendants and the civil liberties of all citizens as well as pursuing convictions. Professional ethics may mean that the rejected rationale for the exclusionary rule – that integrity is compromised by the use of illegally seized evidence – applies with even greater force to prosecutors than to courts. Gold makes an interesting and provocative argument that in this instance protecting defendants rights should trump pursuing the client’s interest in obtaining a conviction by using admissible evidence but it is not entirely clear that he has supported his choice between competing obligations and competing conceptions of justice.
Gold’s article stayed with me and provoked me to think about the criminal justice system in a different way. Gold concludes that by suppressing tainted evidence, prosecutors will restore faith in the system, and in the long run, this will lead to greater respect for the law, which in turn will ultimately mean less crime. This is an empirical conclusion and it’s hard to say for sure whether it is so, but it is certainly true that we need to think more creatively about how to restore faith in a system whose legitimacy is so often in doubt. Recent events make this endeavor even more urgent. Gold’s article inspires his readers think critically about how changing the prosecutor’s role in the system might help.
Apr 27, 2015 John Flood
Ronit Dinovitzer & Bryant Garth,
Lawyers and the Legal Profession, (
UC Irvine School of Law Research Paper No. 2015-19), available at
SSRN.
One of the main concerns of the authors is the structure of the legal profession in which perpetual reproduction of hierarchies forms a contest among different elements of the profession. The configuration of the profession shapes its research which places corporate lawyers and firms at the top of the hierarchy. This seems to stem from the early Cravath idealisation of law firm development. Even though the Cravath model dates from the late 19th century, it reverberates still in the 21st century and has captured scholars’ thinking. It appears difficult to shake off these established idealisations and models when discussing the legal profession. Dinovitzer and Garth (D&G) endeavour to show how these cleavages rip through the study of legal professions.
“Lawyers and the Legal Profession” draws on the research done on the structure of the legal profession, its divisions, lawyers’ backgrounds (gender, ethnicity, class), law firms and globalisation. The range is broad but there is one caveat, which is most of the work referred to is based on research done within the US. It is legitimate to question this given the global differences between legal professions, regulatory systems and the like. Although the Cravath model might have been the blueprint for law firm organisation that was exported by American lawyers—and its residues are apparent—whether it remains the dominant model is open and contested, even, perhaps, within the US. See, for example, the rise of the “smart” law firm (Wald). I return to this later.
Starting with the two-hemispheres model of the social structure of the legal profession D&G show its enduring attraction to researchers but more importantly as an almost unshiftable barrier to change within the profession. This is augmented by their analysis of different social groups and their attempts at breaching this barrier. Despite huge advances women still are more evident in “settings with lower pay, less power, and less prestige” (D&G: 3). Women are “more likely to work in government, legal services, or public defender and public interest positions” (id). Rewards and promotion in law are fraught for women.
Race and class are factors that can hinder career prospects in law although law school rankings can trump social origins. However, lower social class can produce lower earnings over time.
Satisfaction with law careers appears to be distributed throughout the range of legal practice. Misery is not the defining emotion notwithstanding layoffs and declining law school enrolments, according to the After the JD study. It appears that satisfaction is correlated to lawyers’ expectations and social origins. Those outside the corporate law firm circle find satisfaction because of their achievements contrary to the dissatisfaction expressed by Big Law lawyers. Lawyers from lower socio-economic groups tend to denounce Big Law in order to maintain their satisfaction, something that again reinforces difference and hierarchy.
In the realm of practice solo and small firm lawyers have been subjected to deskilling and deprofessionalization, they worry about status and respectability, and their numbers are shrinking. The large law firm sector is thriving and growing. Yet despite growth and economic success, the corporate world is beset with new problems. Established models of law firm growth hit the buffers in the recession when corporations intensified the changes in the ways they used law firms. No longer established long term one-to-one relations, but clusters of firms identified with star lawyers selected as and when by in house counsel. The recession also demolished the sanctity of partnership with equity partners being laid off along with associates and non-equity partners.
The issue of corporate lawyers’ professionalism and independence from clients is variable. Evidence points both ways: lawyers can remain apart from their clients’ interests, their values give them strength, yet lawyers are desperately seeking business and are therefore willing to compromise their positions and professionalism and be the weaker party. D&G’s inference is that lawyer-client relationships are more nuanced and defy categorical conclusions.
One of the most distinctive types of client is the in house counsel, a relatively understudied part of the profession compared to law firm lawyers. While the amount of research on in house counsel has increased, according to D&G, it seems to focus on the autonomy and independence of such counsel from their employers. This suggests there is insufficient research on the relationships of in house counsel with their external counsel. Nevertheless, we are seeing more research on in house counsel being carried out outside the US. For example, the Harvard GLEE project has produced a number of papers on the role of in house counsel in such countries as India, Brazil and others.
Indeed, when D&G turn to globalization they see it in terms of US expansion and imperialism. Their view is simultaneously historical and ahistorical. How is this paradox possible? Using the end of the Cold War as their starting point coupled with the export of neoliberal economics, they show how law firms pursued their clients around the world. Of course one’s view is shaped by one’s perspective. If D&G had used an earlier starting date their picture would be different. Colonial regimes and empires had inbuilt advantages in developing exports and services. Certainly the City of London law firms were global in the 19th century as were some in France. We need more research to bring out these themes. For example, the development of the railways globally in the 19th century would show a more mixed and nuanced market for legal services. Moreover, not only are we now seeing more intense competition among legal service suppliers from different parts of the world, we are seeing variation in the ways these suppliers are organising themselves.
Ideal types, or even archetypes, have been remarkably enduring in legal profession research. One dominant archetype, for example, is the Cravath model of law firm development which is clearly reinforced in the research D&G examine. (See Regan’s Eat What You Kill) Yet we know that it has been challenged as deficient by some scholars in the US and now has declining relevance there and elsewhere. Why is this not more apparent in their survey? It is because D&G focus mainly on US research which is still carried out in law schools. Look elsewhere and a different mise en scène appears. Within Europe, and other parts of North America, research on professional service firms (PSF), including law firms, is increasingly conducted in business schools which use different theoretical frameworks and arguments to those found in the typical legal professions literature, especially in the US. Institutional theory examines the foundations of PSFs (Muzio, Brock & Suddaby)—their cultural, cognitive and regulative pillars (Scott). Organisational theory is now far more sophisticated than in the heyday of the two hemispheres. Research on leadership in PSFs shows the subtleties of commanding authority in organisations without clear demarcations of authority (Empson). The role of emotional labour assumes greater importance (Hochschild). And theories of globalisation now incorporate the concept of the subaltern (Sousa Santos) and cosmopolitanism (Flood & Lederer).
The role of regulation now plays an increasingly imperative role in determining the structures and activities of professions. In the UK the Legal Services Act 2007 has given rise to a new type of law firm, the Alternative Business Structure. The freedom accorded to legal services providers has attracted US companies—not law firms—such as LegalZoom and Axiom to establish in the UK. Globally the accounting firms, or more accurately professional service firms, are preparing to challenge the global hegemony of law firms. Legal process outsourcing has dramatically affected the prospects of lawyers wanting to obtain jobs in conventional law firms. And the global trade talks that take place don’t refer to lawyers but legal services providers (Terry). This is creating new areas of research that will alter our images of the legal profession and professions in the future. Perhaps it is a combination of tunnel vision and a restrictive set of professional strictures within the US that produces such a conservative outlook for the legal profession.
