Apr 29, 2013 Elizabeth Chambliss
Renee Newman Knake, Democratizing Legal Education, 45 Conn. L. Rev. (forthcoming, May 2013), available at SSRN.
What are the public duties of law schools? Specifically, what duty, if any, do law schools have to educate people outside of the profession, such as clients, would-be clients, and ordinary citizens and consumers? Do law schools have a duty to promote public access to legal information and services?
Most of the recent call for U.S. legal education reform has focused on the interests of lawyers and problems of access to the profession, such as rising law school tuition, the contraction of the legal job market, and law schools’ duty to provide prospective lawyers with accurate job market data. Such concerns about “the economics of legal education” for lawyers are the subject of a recent letter from a coalition of legal academics to the ABA Task Force on the Future of Legal Education.
Of course, these are important concerns and accurate data is a public good. Most would agree that transparent reporting is one “public” duty of law schools. But are there not others—for instance, a duty to promote public awareness of and access to law and lawyers? If so, how might law schools, individually and collectively, begin to operationalize such a mission?
Professor Renee Newman Knake offers her vision in a forthcoming paper calling for the “democratization” of legal education. Knake argues there is an untapped market for legal information and services potentially worth billions of dollars, but this market is stymied by inefficient delivery and “a fundamental lack of knowledge among most of the public about law, lawyers, and legal services.” To address these problems, Knake urges law schools to “fuel innovation in new markets and in methods for delivery, thereby leading to greater public awareness of legal services,” and to “educate the public about law, lawyers, and legal services through programs that also enhance student learning.” According to Knake, by embracing the mission of public (non-lawyer) education, law schools can “match the demand for legal services with the ‘surplus of lawyers,’ potentially resolving the access-to-justice problem … once and for all.”
This is a beautiful vision—raising public awareness of and access to legal services—and one that Knake herself is helping to bring about. Her previous scholarship has focused on opening the market for legal services delivery by corporations, which she argues will “increase competition, drive down prices, encourage inventive methods for providing legal representation for those who cannot access or afford it, and create new jobs for lawyers.” In 2012, Knake and her Michigan State colleague Dan Katz founded the ReInvent Law Laboratory, which focuses on designing, building, and testing new tools for legal services delivery, as well as providing students with training for the “technology-infused jobs of the future.” Now, in this paper, Knake calls upon law schools to “band together in support of a systematic public information campaign” in order to nurture “public awareness about one’s legal rights and entitlements.”
Knake is careful to tie her proposals for public education to the profession’s strategic interests, and emphasizes the potential upside of demand creation for law schools and lawyers. She pitches non-lawyer education as “non-sales selling”—a means of broadening law schools’ sales efforts “beyond those who will fill their seats in order to nurture demand for services from those who do fill their seats.” She points to the success of public education campaigns in increasing demand for professional services in other fields, such as psychology and mental health. And she highlights the ways that non-lawyer education could improve employment prospects for lawyers. Thus, Knake pitches non-lawyer education by law schools as a win-win proposal.
Yet Knake also draws on—and flirts with—a more radical vision of public education and empowerment that includes the power to disrupt the profession or even dispense with lawyers entirely. Even within the current system of J.D.-focused education, law school attempts to raise public awareness of legal rights can be controversial—just ask the Tulane environmental clinic.) Moreover, Knake endorses limited licensing and urges law schools to develop training for limited licensing regimes. She cites Richard Susskind’s vision of the “empowered citizen,” who would use information technology to select the level of legal service desired, with the aim of increasing demand for limited and unbundled services as well as facilitating effective self-help. According to Susskind—and by implication, Knake—“we need to empower citizens to sort out some of their own legal issues.”
Thus, Knake’s article is not only about the (who-could-argue-with) “democratization” of legal education and services. Her arguments also point to provocative and increasingly immediate questions about the redistribution of legal information and services, and law schools’ role in defending—or challenging—U.S. lawyers’ regulatory monopoly and lopsided orientation toward the highest-paying corporate clients.
This conversation about law schools’ distributive role is overdue. Law schools face inevitable downward pressure on the J.D. degree and an increasingly sophisticated and competitive market for personal and consumer services. As a strategic matter, I agree with Knake that embracing and shaping the liberalization of the U.S. legal services market is U.S. law schools’ best play. I also believe—and think Knake believes—that, as a normative matter, liberalizing the U.S. legal services market is the right thing to do. But make no mistake: embracing a mission of non-lawyer legal education and empowerment will encounter stiff resistance from many law schools and would-be reformers, who so far have been narrowly focused on improving job prospects for lawyers. So: three cheers to Knake for raising this issue. Here is wishing her fortitude in her mission!
Feb 15, 2013 Susan Fortney
A fundamental tenet of lawyer regulation is that professionals should keep their own houses clean. The enactment of the Legal Services Act of 2007 (LSA) in the United Kingdom (UK) marked a significant shift in the approach to regulation of lawyer conduct. In addition to creating a new mechanism for handling consumer complaints, the LSA adopted a new regulatory regime that represented a radical departure from the traditional approach in which regulators prosecute complaints based on alleged rule violations. With the adoption of the LSA, lawyer regulation shifted to outcomes-focused regulation (OFR). OFR focuses on high level principles and outcomes that drive the provision of legal services. OFR requires an articulation of indicators to determine whether outcomes have been achieved.
In an effort to evaluate the new regulatory regime and how its effectiveness is being monitored, the Legal Services Board (LSB) in the UK conducted a comprehensive study of the legal services industry and regulation in England and Wales. The results of that study are set forth in a recent publication, Market Impacts of the Legal Services Act of 2007—Baseline Report (Final) 2012, (“Baseline Report”).
To appreciate the significance and approach to the Baseline Report, one should understand its genesis. The LSB first issued an Interim Report in April 2012. The Interim Report included an Evaluation Framework highlighting seventeen outcomes that the LSB sought to evidence with a series of indicators. Following “robust” feedback, the LSB finalized the report, issued in October 2012. Originally, the outcomes and indicators were to be analyzed considering different “stakeholders.” In the Baseline Report, the LSB abandoned the term “stakeholders,” opting to evaluate outcomes from the following five different “perspectives”: the sector (profession), the consumer, the public, the market, and the investor. (Baseline Report, Paragraph 1.13, at page 12). With respect to each perspective, the Baseline Report analyzes indicators, using data from various sources, to determine how the legal services market in England and Wales has changed since the adoption of the LSA. For example, to measure the actual level of quality within the market, the Baseline Report uses proxy indicators of consumer levels of satisfaction and trends in the volume and nature of complaints. (Baseline Report, Paragraph A.26). On a go-forward basis, the indicators set forth in the Baseline Report are intended to enable the LSB and the regulatory community “to track how the market changes over time, against the outcomes envisaged by the regulatory objectives in the LSA.” (Baseline Report, Paragraph 1.2, at page 9).
The Baseline Report represents an ambitious examination of the state of legal services in the UK. The discussion is thought-provoking, regardless of whether the reader agrees with the analytical framework, questions posed, and conclusions reached. This review discusses the reasons why the report should be studied.
First, the Baseline Report is an exemplar of how regulators can systematically examine a regulatory regime. It invites stakeholders to dissect the results and offer suggestions. In this sense, the Baseline Report appeared to be shaped by feedback received from persons outside the LSB. This model of collaboration is one that other regulators should seek to emulate. Such consultation results transparency, buy-in by interested parties, and a better work-product.
Second, the Baseline Report provides a window for learning about various studies and data sets. The report includes 92 Figures (Charts) that distill a great deal of information related to current market conditions and the delivery of legal services. The report is a virtual treasure trove, drawing on numerous studies relating to legal services. The wide range of studies suggests that decision-makers in the UK recognize the importance of using data to inform how they implement initiatives.
Third, the attempt to measure outcomes required serious consideration of indicators to gauge developments in various spheres, including concepts that are somewhat abstract, such as “access to justice” and “independence.” The process of struggling with concepts in an effort to develop indicators for different outcomes created opportunities to flesh out the meanings of concepts and principles.
Fourth, the Baseline Report identifies issues that the legal profession should address, such as diversity of legal service providers. Whether a jurisdiction uses outcomes-focused regulation or a more traditional approach, the Baseline Report underscores the fact that “how we keep score” impacts conduct.
For the reasons described above, the Baseline Report should interest anyone connected to the legal services profession. Most obviously, regulators and legislators around the world should consider the report. The Baseline Report represents a collaborative and informed approach to analyzing the impact of legislative and regulatory changes.
The report should also appeal to practitioners. Data woven into the report should help practitioners better understand the dynamics of law practice, consumer attitudes, and professional choices that they make. For example, the report concisely provides findings of studies dealing with consumer attitudes and decisions to hire lawyers. In developing marketing budgets, practitioners should consult findings referred to in the Baseline Report related to the effectiveness of client development efforts.
This study, as well as others referred to in the report, should also be read by professors and practitioners who teach classes related to legal ethics and the legal profession. As I was studying the Baseline Report, I noted various study findings that I will integrate into my own teaching. For example, I intend to use a “Response Path” chart drawn from the 2012 Legal Services Benchmarking Survey.
Finally, the Baseline Report provides valuable insights for scholars and researchers. In particular, empirical researchers can learn from the studies referred to in the Baseline Report. In addition, the report identifies holes in the research and evidence base, suggesting areas that may be explored in a range of empirical projects. Researchers should seriously consider designing projects to help develop the evidence base. Such information will serve to better inform and guide those committed to improving the delivery of legal services. In short, regardless of your position, you will likely find the Baseline Report a great source of information and inspiration.
Nov 27, 2012 Amy Salyzyn
A bad news lawyer story is nothing new. As Deborah Rhode keenly observed over ten years ago: if one listens to the critics, it is easy to get the impression that “lawyers belong to a profession permanently in decline.” Current Canadian headlines only affirm Rhode’s observation. On a near-daily basis, we are gloomily advised of a spate of lawyerly crises. Ongoing problems with access to justice, lawyer incivility, lack of diversity and, most recently, shortages in articling (mandatory apprenticeship) positions, all loom large. Reading the newspaper can be demoralizing to newcomers and seasoned practitioners alike.
The recently published collection of essays in Why Good Lawyers Matter provides a timely counterweight to some of this doom and gloom. To be sure, there are real, pressing problems facing the Canadian legal profession. Thankfully, Why Good Lawyers Matter does not ignore this reality. Rather than “offer an apology” for the legal profession, the central idea behind Why Good Lawyers Matter is “to provide a well-informed and accessible reflection on what lawyers should do and why.” The result is a colorful array of thoughtful ruminations on the topic of lawyering.
From the beautifully written foreword by George Elliot Clarke, a Canadian poet and playwright, to the final essay addressing “the fundamental ideals of the legal profession” authored by leading Canadian jurist, Justice Stephen T. Goudge, it is clear that this is no ordinary book on legal ethics. One of the major strengths of Why Good Lawyers Matter lies in its success in bringing together a wide range of perspectives on the legal profession. The book features an impressive list of Canadian legal ethics scholars as well as a number of practicing lawyers, judges, and a journalist.
The book is organized into three sections of four essays, each section animated by one fundamental question about lawyering. Part I, structured around the question “What is a Lawyer?”, probes more deeply into some of the often easily-tossed public assumptions about lawyering. Practitioners Daphne Dumont and Augustus Richardson offer candid insights on how legal practice has changed in the last few decades and on the role of settlement in increasing access to justice, respectively. Professor Stephen Pitel then explores the public perception of “lawyers as liars” and how this perception might be improved. Finally, Professor Adam Dodek examines how lawyers exercise power in Canadian society and provides an account of what might be justifiably meant by references to “powerful lawyers” in public discourse.
Part II asks “What Role Do Lawyers Play?” Like Part I, the second section moves easily through a variety of topics. Journalist (and professor of journalism) Dean Jobb offers another perspective on the perpetual image problem faced by lawyers in an essay entitled “Why We Love to Hate Lawyers.” In their essays, Justice Patrick Healy and lawyer Melina Buckley consider Part II’s guiding question through the lens of criminal law practice and public interest litigation, respectively. Providing some theoretical anchoring is Professor Alice Woolley, whose contribution “Why Do We Regulate Lawyers?” sets out “two analytical frameworks for understanding why the legal profession is highly regulated and for critiquing that regulation” and examines lawyer regulation in relation to its ability to: (1) “foster lawyers’ public role in a pluralist legal system” and (2) “address the imperfections in the market for legal services.”
Finally, the future of lawyering in Canada is the focus of Part III, entitled “What Role Should Lawyers Play?” Justice Stephen Goudge and retired Chief Justice of Ontario, Roy McMurtry, each provide a “call to arms” asking Canadian lawyers to embrace their unique role in contributing to the public interest and the fundamental ideals of the profession which underlie this role. Co-authors Professors Jocelyn Downie and Richard Devlin outline a profile for a great (not just merely “qualified”) Canadian lawyer and propose a pathway to achieving this ideal. Professor Trevor Farrow offers his own contribution in “Post-9/11 Lawyers,” using the events of 9/11 to reflect on “what impact our core democratic values have on the lawyering project.”
As noted above, the diversity of the essays in Why Good Lawyers Matter is a clear strength of the collection: the book does not speak in one voice, nor should it. The motivating question of the collection—what lawyers should do and why—does not permit easy or singular answers. If anything, this collection left me wanting to hear even more perspectives on Canadian lawyering. We hear nothing, for example, from a dedicated client standpoint: that is, there are no client-authored essays discussing how clients experience the lawyer-client relationship. A detailed examination of the role that lawyers play in relation to Canada’s aboriginal communities would have also been a welcome and important addition. One book, of course, can only do so much and Why Good Lawyers Matter offers much food for thought. The fact that I desired a broader conversation about lawyering does not evidence a fundamental flaw in the book. It might, however, suggest the value of a second installment in which the conversation can be broadened even further.
Why Good Lawyers Matter also does a good job of balancing the provocative with the pragmatic. The collection does not shy away from speaking in proud, lofty terms about the profession of law nor does it shrink away from exposing the ways in which lawyers have failed to live up to their ideals. However, rather than rest on grand pronouncements (or denouncements), the essays contain a level of detail and scrutiny that provides a welcome amount of concreteness to the discussion. The collection is also infused with a spirit of pro-activeness: contributors do not merely describe what is, but take on the harder issue of what should be and offer thoughts about how to get there. The reader is given an account that is positive and feasible without being Pollyannaish.
Although Why Good Lawyers Matter stands as a uniquely Canadian counterpart to other seminal essay collections on lawyer professionalism, many of the issues explored in the book will be familiar to lawyers practicing in other jurisdictions. Legal professions worldwide have been grappling for some time with massive changes in legal practice and, in particular, changes resulting from globalization, increased commercialization, and the emergence of new technologies. The three fundamental questions about lawyering that structure Why Good Lawyers Matter—“What Is a Lawyer?”, “What Role Do Lawyers Play?”, and “What Role Should Lawyers Play?”—resonate far beyond Canadian borders.
Likewise, although this collection is explicitly aimed at “a general audience,” it should be, in my view, recommended reading for law students, lawyers, and legal academics. In taking a step back from specialized academic analysis, Why Good Lawyers Matters offers an accessible and broad take on the state of the legal profession in the 21st century. In doing so, the collection pushes lawyers and would-be lawyers to confront fundamental questions about what it means to be part of the legal profession and, ultimately, encourages us to take responsibility for shaping the profession of which we are a part.
Oct 30, 2012 Richard Moorhead
Chris Hanretty,
Political Preferment in English Judicial Appointments, 1880-2005 (2012), APSA 2012 Annual Meeting Paper,
available at SSRN.
We Brits like to point to our judiciary as emblematic of the superiority of our common law system. Meritocratic neutrality is one of the signal claims made by both the judiciary and the Bar. A lot of academic ink has been spilt deconstructing that particular claim, but it was nevertheless a delight to stumble across Chris Hanretty’s paper Political Preferment in English Judicial Appointments, 1880–2005. It’s a delight for a number of reasons. Firstly, Dr. Hanretty is a political scientist, and political scientists are mysteriously rare students of UK legal systems, even in the UK. Secondly, it’s based on a sophisticated quantitative analysis. Thirdly, it is well written: a delicious yet concise historical analysis of judicial appointment to the Court of Appeal. Fourthly, there’s even a bit of polite methodological argy-bargy (at p.12) for the quants guys (and it nearly always is guys) who love that stuff. But finally, it evidences several important points about the significance of politics, elites and judges.
The study looks at the promotion of judges, largely from the High Court bench (which is the first instance court of highest status) to the Court of Appeal and to what was then the House of Lords (now the Supreme Court). It tests a number of hypotheses about this promotion process to discover whether promotion appears to be related to social standing; education; early appointment as a “rising star”; whether the judge is, for instance, a family (low status) or commercial (high status) judge; overt party political affiliation (historically significant in most narratives); and whether “candidates who were previously appointed [to their initial judicial office] by the governing party are more likely to be promoted.”
Some of the indicators are merit based, others purely social and others reflect a mixture, engaging with signals of the class barriers contained within educational elites. Thus various measures of class and education are employed in the study, including not only conventional distinctions between Universities, but an “elite within an elite” group of Oxford and Cambridge colleges; membership of (gentleman’s) clubs; and education through a particular elite group of (private) “Clarendon” schools”.
There are a number of nuggets in the analysis. “A law degree is a curio until the nineteen-thirties, when it begins to be found amongst a fifth of the senior judiciary.” Family judges do indeed find it harder to get promoted than Chancery judges. A memorable quote from Penny Derbyshire’s book is that the Family Courts are seen as the Leyton Orient of the Courts, Leyton Orient being a distinctly unglamorous third tier football club. Interestingly, class did not appear to be a factor (although the group under analysis were — as High Court judges — pretty homogenous already), but “clubbishness” did, suggesting a link between gregariousness and reputation. There is a hint — but only a hint — that having a law degree made promotion to the House of Lords more likely.
In relation to the party political elements of the analysis, overt party affiliation did not help predict promotion. However where a judge was appointed to the Bench by one political party they were more likely to be promoted by the same party (in fact 1.43 times as likely on this data). Interestingly, having been to a Clarendon school is a positive predictor of promotion to the Court of Appeal under Conservative governments.
Largely though, the study concludes that status within the High Court bench is not a significant predictor of judicial promotion. The importance of that finding is limited by the narrow social background of the cohort. Court of Appeal judges are drawn from a pool of judges with high status characteristics, although even so there are some muted signs of an elite within an elite. More important is the finding that the political stripe of appointing governments matters:
“these findings challenge the conventional wisdom that the appointments process is ostentatiously non-political. Politics does matter, not because political activity procures an advantage (it does not), but because…candidates’ prospects for promotion depended on the identity of the party that initially appointed/promoted them, and on the party of the incumbent Lord Chancellor. This effect was particularly strong in the case of appointments as [Lords of Appeal in Ordinary]. The intentions which sustain such a finding may be entirely innocuous. Those appointing may wish to select ‘reliable’ or ‘trust-worthy’ candidates; and find that candidates already in some sense known to them or their party display these criteria.” (at p.24)
It may be innocuous or it may not. The study does not suggest that judges appointed by reason of their politics do not merit appointment, but it does suggest politics has in some way contributed to their preferment. It is a particularly interesting point given the current debate around diversity where traditionalist judges reject the idea of preferment on the grounds of gender or ethnicity. Whether such political preferment influenced the decisions of judges is much more debatable. Though some of the Government interventions in judicial appointment over the years suggest that the politicians thought it did, or that it might. Hanretty thinks actual influence impossible to prove. Similarly, since the period in question, reforms to judicial appointment have taken place that should further ameliorate the concerns. It may no longer be true that, as Griffith wrote, “The most remarkable fact about the appointment of judges is that it is wholly in the hands of politicians,” but Hanretty goes a long way to proving the extent of that effect in spite of the checks built into original systems of judicial appointment.
Interested readers may wish to compare Henretty’s findings with Shugermen’s account of judicial appointment in the United States Henretty is not able to draw a link between the process of appointment and judicial independence. What he shows is that idea of merit is not insulated from political or social influence, whilst the UK the judiciary have historically pretended only merit counts (and rely on this assumption to inhibit changes in judicial appointment).
Like Shugermen, we should be wary of assuming political intervention always leads to predictable results. Lord Bingham was appointed to be Lord Chief Justice with the then Lord Chancellor ignoring senior judicial recommendations for an alternative appointment. The politician’s idea of merit trumped the senior judges. Yet, Bingham became the most fêted senior lawyer of his generation, partly for his stand against (a later) Government on anti-terrorism legislation but also for the intellectual lead he provided for the House of Lords (what is now our Supreme Court). I also suspect he was rather clubbable.
Oct 2, 2012 Sida Liu
Bernard A. Burk & David McGowan,
Big But Brittle: Economic Perspectives on the Future of the Law Firm in the New Economy, 2011
COLUM. BUS. L. REV. 1 (2011)
available at SSRN.
Until the recent global financial crisis, elite law firms had been growing in size and number of offices for decades, both in the United States and across the world. Accordingly, the reasons behind law firm growth have fascinated legal scholars as well as social scientists studying the legal profession. Many theories have been formulated and tested by empirical research. Burk and McGowan’s article not only provides an excellent summary of these competing theories, but also proposes two new perspectives, namely, (1) relational capital and internal referral network; and, (2) technological innovation and transaction cost. Both are familiar theories in other research areas but neither had been applied to explain the growth of law firms.
In this essay, Burk and McGowan examine the evolution of large law firms in America from the late nineteenth century to the 2008 economic recession. Until the 1960s, most elite law firms have had a simple “partner-associate” two-tier structure following the Cravath System, which emphasized the long-term training of associates, the “up or out” rule of promotion, and the lockstep system for partners. Lateral hiring of partners were rare. As a result, firm growth was steady, featuring what Galanter and Palay have called law firms’ “internal growth engine.” From the 1970s to the mid-2000s, however, law firm growth entered an “explosive” era – the growth rate of elite firms jumped from 5% per year to 8% or more (p. 11). By the mid-1980s, the number of American law firms with more than a hundred lawyers had increased from a dozen to more than 250. The growth in size was accompanied by the expansion of geographic locations and lateral mobility. By 1988, over a quarter of the 500 largest American law firms had acquired more than half of their partners laterally. The lateral movement of associates had also become more frequent. As a result, the Cravath System was significantly eroded. Meanwhile, the formal structure of large law firms had become more complex – two-tier partnership was more commonly adopted, with an increasing proportion of non-equity partners and a higher leverage (i.e., associate-partner ratio) in most firms.
These empirical facts constitute the main puzzle that most economic and socio-legal theories of law firms seek to explain: Why had elite law firms grown so much in this period of time? Burk and McGowan present five explanations, two of which are their own, including diversification of human capital, promotion-to-partner tournament, reputational bonding, referral network, and cost-based factors. In particular, they argue that neither Gilson and Mnookin’s diversification theory nor Galanter and Palay’s tournament theory is well supported by empirical evidence – what law firms care about most is not human capital or associate training, but getting business and controlling costs. In contrast, the authors suggest that an internal referral network among partners utilizes their relational capital (i.e., personal reputation and connections) to bring in business and then efficiently distribute it across the firm, while technological innovation reduces the costs of communication and coordination within the firm. Consequently, relational capital and technological innovation enable law firms to expand in bigger scopes and scales than ever before. Nevertheless, they also make large law firms more dependent on their rainmaking partners and thus become more brittle – there are always risks that some of those partners would leave and disintegrate the firm, especially given the double-edge effect of technological innovation, particularly legal process outsourcing, in making smaller boutique firms more competitive in large legal projects.
So what is the bottom line? Burk and McGowan disagree with Ribstein’s bold prediction of the “death of Big Law” and predict that elite law firms will remain “big but brittle,” especially after the market shakeout generated by the global economic recession since 2008. Their internal structure will evolve into a four-class structure, with equity partnerships growing more slowly, the number of partnership-track associates shrinking, and the number of non-partner specialists and contract attorneys increasing. In the meantime, lateral mobility will remain a significant force and the segmentation between “super-elite” and “semi-elite” firms will become more pronounced.
Yet the article leaves one important question unanswered: will there be more innovations to law firm growth, or will the elite firms simply go back and forth between the existing business and management models according to changing economic conditions? Most of the trends that the authors identify in this article, such as diversification or technological innovation, have been going on since the 1980s. It seems from their conclusions that elite law firms are trapped in the “iron cage” of organizational isomorphism, that is, a “one-size-fit-all” approach to growth and management. However, if we look beyond the United States, real innovations are happening.
Take China, the case I am most familiar with. From the early 2000s, several leading law firms grew from less than a hundred lawyers to mega-firms with more than five hundred or even a thousand lawyers in a decade. Dacheng, the largest Chinese law firm, already has more than 3,000 lawyers and staff in 35 offices, with satellite offices overseas. In March 2012, King & Wood, another elite Chinese law firm with a thousand lawyers in 15 offices, announced a merger with Mallesons, Stephen and Jacques, a major Australian law firm with 800 lawyers. The new firm, King & Wood Mallesons, is widely expected to become a powerful player in the Asia-Pacific region. Yingke, the fastest growing Chinese law firm in recent years, grew from less than thirty lawyers in 2008 to more than two thousand lawyers in 2012, and it is still setting up new offices across the nation at a fanatic speed.
What explains the stunning growth of these Chinese law firms in the past decade? To my knowledge, none of the five theories that Burk and McGowan discuss in the article could work well here. As theories for explaining the growth of American law firms, they are partial and context-dependent. Arguably, an important reason for law firm growth in China is the booming Chinese economy, which makes a sharp contrast to the current crisis of the advanced economies in the West. But even the Chinese economy cannot fully explain the growth of law firms at such a speed. In fact, as the Chinese law firms get big, they are not satisfied with learning and appropriating the experiences of large Anglo-American firms anymore. Some firms use methods similar to franchising to set up new offices nationwide and even classify their offices into different tiers – each tier has a different relationship with the headquarters in Beijing. In a recent interview I conducted in Shanghai, the managing partner of a fast-growing law office explained the firm’s management strategy in a shocking way: “We do not serve clients. We serve lawyers.” This law firm has a managing partner in each of its offices whose main responsibility is not rainmaking, but providing a good office platform for more lawyers to join the firm and do their businesses individually. In other words, the law firm is organized as a large “shopping mall” in which lawyers rent office spaces at fixed prices but share the firm brand nationally. It is perhaps too early to evaluate the success or failure of those innovations, but as experiments for the future of law firms, they are definitely worth the attention of researchers on the legal profession. As part of the new Globalization, Lawyers, and Emerging Economies (GLEE) project, I hope to have more information to offer on this topic in a year or two.
Sep 5, 2012 Carole Silver
The importance of India as a site for activity and study with regard to the legal profession and globalization is underscored by the attention it currently generates in the legal and popular press But it also is an area characterized by uncertainty. In fact, even as I write, there has been an additional development regarding the practice of law by foreign law firms: the Indian Supreme Court issued an interim order on July 4, 2012 that reinforced the uncertainty surrounding the authority for and confidence of global law firms to serve clients with interests in and related to India. In light of this, I was delighted to learn that the subject had been taken on by Mihaela Papa and David Wilkins, both of Harvard Law School’s Program on the Legal Profession. Their new article, “Globalization, Lawyers, and India: Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession,” promises to “draw[] together globalization literature with the scholarship on the sociology of the legal profession . . . [to] provide a new lens through which to analyze economic, political and social transformations occurring in the Indian legal profession.” (P.2) My interest in the article was piqued not only by the topic, but also because Wilkins, the highly-regarded Professor of Law and chair of Harvard’s Program on the Legal Profession, is spearheading its GLEE project (Globalization, Lawyers, and Emerging Economies), which “investigates the impact of globalization on the corporate legal sector in major emerging economies and the effect of changes in this sector on other parts of the legal order, including legal education and the provision of legal services to underrepresented populations.” This paper is an early product of GLEE and, as such, reveals promises of the larger study.
The article does not disappoint and offers a thoughtful addition to the growing body of work on globalization and the legal profession. Papa and Wilkins begin by framing their investigation of India’s legal profession within the literature on globalization, and identify three “social processes commonly identified by globalization scholars in other areas [as] help[ful] to explain the changes currently taking place in the Indian legal profession: economic globalization, globalization of knowledge, and globalization of governance.” (P.3) In doing this, they offer a terminology for analysis that reveals the importance both of differentiating and connecting these three core processes.
Their exploration of economic globalization, for example, finds voice in India in the “intense debate about the opening of the Indian legal services market and concerns within India about the ways to protect the domestic industry and help it evolve.” (P.3-4) The focus on protection also is relevant with regard to governance and knowledge. In each case, despite India’s continued formal barrier preventing foreign lawyers and law firms from offering services within the country, and its traditional skepticism towards international law (P.24), Papa and Wilkins repeatedly find that protection from global influences and actors is nearly impossible (P.6). Rather, external forces already are present, directly and indirectly, and felt in the debates occurring within the country. In turn, the focus on an external-internal divide hides additional divisions that Papa and Wilkins describe, including the growing segmentation of the profession in the emergence of India’s corporate bar (P.3). Drawing on Heinz and Laumann’s two hemisphere theory, Papa and Wilkins find evidence that the division between those representing corporate versus individual clients likely is complicating the negotiation surrounding these globalization contests, but they also suggest that this division may be neither sharp nor static.
Papa and Wilkins discuss several aspects of economic globalization. I will highlight just one, legal process outsourcing (LPO), which has generated substantial interest because of the potential for economic rewards and its corresponding political challenges. Outsourcing is not the primary emphasis of the article – in fact, they intentionally move well beyond outsourcing – but it nicely illustrates the complexity and subtlety of the framework they offer. They emphasize that “analysis of the Indian legal profession from the economic globalization perspective illustrates the difficulty of controlling globalization of firms when markets, including the market for corporate legal services and LPO, have already globalized.” (P.12) A recent news article reinforces their point, illustrating the challenge of maintaining control in the context of the liberalization debate: a survey sponsored by British-based Magic Circle law firm Allen & Overy asked Indian business executives and lawyers their views about whether India’s legal services industry should be liberalized to allow foreign lawyers and firms to offer services within India. According to the report, “Research group YouGov polled 100 ’C-level’ executives of Indian companies, 100 general counsels, and 101 partners and associates at top Indian law firms. Some 96 percent of those polled said the Indian legal market should be liberalized. Moreover, 79 percent believe the Indian market should be opened completely to allow foreign firms to practice Indian law and merge with Indian firms.” More interesting than the survey result is the strategy pursued by Allen & Overy, a foreign law firm with regard to India, in pressing for change by linking their firm – an external actor under the current regime – to the internal voices of current users and suppliers of legal services in India. This offers a nice example of the ways in which globalization’s complicating, indirect and subtle forces can be highlighted by drawing on the framework that Papa and Wilkins suggest. And while the survey is an interesting because it addresses the issue of economic globalization, Allen & Overy’s strategy implicates governance powers in ways that might have been impossible only a few years ago because of limitations of technology and communication – that is, when barriers were more effective.
Globalization’s tendency to emphasize divisions is a factor in Papa and Wilkins’s analysis, too. They note that “the existence of a booming LPO sector which employs the members of the same ‘profession’ in roles that appear to have little to do with the practices of traditional Indian lawyers . . . is likely to place even greater internal stress on arguments that seek to exclude foreign law firms on the ground that they are inconsistent with domestic ideals.” (P.12) Law graduates working in the LPO sector do not go to court; instead, their energy is directed towards “electronic document management and review, legal research, and due diligence services” (P.10) – all office-based activities. In contrast, the focus of most Indian lawyers is on litigation. As Marc Galanter wrote more than twenty years ago, “Among the prominent features of Indian lawyers are their orientation to courts to the exclusion of other legal settings; their orientation to litigation rather than advising, negotiating or planning; their conceptualism and orientation to rules; their individualism; and their lack of specialization.” This is no less true today for most Indian lawyers. The consequence of these divisions is that boundaries, again, are implicated, here with regard to the question of who is in and out of the profession. (P.2)
The same considerations regarding boundaries also are relevant to governance. The LPO industry operates outside of the existing governance structure in India (P.27), despite constituting a significant economic activity involving expanding boundary-crossing in the legal services sector. India is not alone with regard to this approach to regulation, but the consequences are perhaps significant in particular ways in India because they play on the existing and growing divisions within the profession, including those influenced by globalization’s reach. The growing presence and competition from the LPO industry clearly adds to the challenge pressing on the existing nationally-based framework.
Similarly, because LPO serves as a site of exchange between local and global actors, its rising position affects legal education. In a more formal manner, the structure of legal education within India, if not also external, is implicated as education is developed to prepare workers for employment with LPO firms (P.16). And according to Ballakrishnen, the LPO industry is shaping careers by providing new markers of prestige to those who now often are excluded from elite positions in the Indian legal profession.
In analyzing globalization’s forces, Papa and Wilkins are careful to note the importance of sensitivity to the local interpretation and response to globalization by drawing on terminology of “glocalization” and “hybridity” that others have used to describe globalization’s influence in other settings, both within a single country and across multiple jurisdictions. This sensitivity to the local ways in which globalization is influential also can help in understanding global law firms, whose adaptation to local markets and regulatory forces belies the uniformity of “norms and policies” (20) with which they typically are described That is, even the influence of global law firms is not homogenous and may reflect local variations.
Overall, Papa and Wilkins’s analysis articulates and supports a nuanced consideration of the forces at work in India, a significant contribution in itself and as limited to India. They have identified the ways in which globalization has seeped into the conversation and debates, carefully separating governance, knowledge and economics in order to clarify the layers of actors and interactions. (P.27) Equally exciting is their commitment to a growing body of research on globalization and the legal profession, which also signals opportunities for future scholarship to build on through comparative work and research focused on new contexts.
Jul 5, 2012 Eli Wald
Everyday Injustice is an empirical study of Latino and Latina attorneys. The book examines the lawyers’ cultural, socioeconomic and family backgrounds: it compares and contrasts their law school experiences, socialization into the profession, career paths and ideological and professional commitments with that of their non-Latino peers; it explores the intersection of racial, class, gender and professional identities; and it documents the political leanings, activities and political values of Latino and Latina attorneys. Everyday Justice investigates shared perceptions and experiences of negative stereotyping encountered by Latino and Latina attorneys as well as their sense of marginalization and professional isolation. It is a rich and revealing account of the professional lives of minority lawyers striving to overcome discrimination in a profession purporting to adhere to the highest standards of equality.
The book represents an important addition to the scholarship of the legal profession. As the profession continues to struggle, notwithstanding its increased diversity, with persistent under-representation of women and minority lawyers within its elite ranks, growing scholarly attention has been given to the experiences of gender, racial and class minorities. To date, however, insufficient attention has been paid to the experiences of the fastest growing ethnic minority group in the United States, Latinos and Latinas. Moreover, following recent US Supreme Court decisions that have eroded affirmative action policies, placed procedural limitations on Title VII litigation, and restricted avenues for recovery, some commentators have expressed concern that the Court’s emphasis on the impact of affirmative action on African-Americans and Caucasians, its focus on intentional past discrimination and its inattention to Latinos, and implicit discrimination might cause it to prematurely strike down affirmative action policies altogether. Exploring in great detail the professional lives of Latino lawyers, including their discriminatory experiences, Everyday Injustice is especially important and timely and provides a rich and detailed context against which the wisdom of affirmative action policies as well as other diversity measures may be evaluated on an informed basis.
Furthermore, as intentional, overt discrimination has been in decline, a growing body of literature has begun to examine the next frontier of anti-discrimination law: implicit, structural and institutional discrimination both within and outside the legal profession. But what exactly is the nature of implicit discrimination and how does it manifest itself? Implicit discrimination takes place when institutions adopt organizational features, structures, procedures, work environments and cultures that tend to systematically favor some employees over others, irrespective of quality of work done or merit considerations.
Consider, for example, the billable hour method, routinely utilized by law firms large and small, both to monitor associates’ work and to bill their time to paying clients. The billable hour is, however, a crude measure of associate work. It measures quantity of work, not quality. And, over time, it tends to consistently favor those associates who are able to log the most hours. This tends to disfavor all associates with competing and demanding personal obligations, and to disproportionally impact women associates to the extent that they shoulder more household and childrearing responsibilities compared with their male counterparts at large firms. Thus, the billable hour, ostensibly a gender neutral time-keeping tool, in fact functions as a mechanism of gender discrimination. This does not mean, of course, that law firms should not use the billable hour method, but it does mean that firms ought to be sensitive to and mitigate the disparate gender consequences of the billable hour, especially in a day and age in which sophisticated clients increasingly reject the billable hour as a reliable method of billing and demand objective-meeting, incentive-based fee arrangements. Firms could, for example, supplement the billable hour with assessment tools meant to measure quality (rather than quantity) of work, ability to meet objectives, and effectiveness of performance as a team member.
The fight for equality and justice within the profession (and in American society) is therefore far from over. Indeed, in some ways the battle for equality is about to become much more complicated. For all of its ugly manifestations, intentional discrimination at least was easy to spot and fight. Indeed, its perpetrators often did not bother to hide it, and once the profession decided to fight it (after long decades of failing to do so), intentional discrimination underwent a sharp decline. Combating implicit discrimination, however, is an altogether different story. The elusive enemy, if you will, is harder to pin down and fight. In particular, the devil of implicit discrimination is in its details, which are often hard to documents and prove.
The narratives of Everyday Injustice offer an important and rich perspective from which the insights of the emerging implicit discrimination scholarship can be tested. The book’s main assertion is that Latino and Latina attorneys experience significant implicit discrimination which results not only in their under-representation within the legal profession but in considerable under-representation in the profession’s upper strata of power, influence and status including the judiciary, academia and the partnership ranks of large law firms. Moreover, because the under-representation of Latino and Latina lawyers is a function of widespread implicit discrimination, it is not likely to be self-correcting over time and would require proactive diversity measures to overcome.
May 25, 2012 Heather Field
Students are graduating from law school with unprecedented amounts of debt and are confronting an uncertain job market. Editorials in the New York Times condemn law schools for failing to teach lawyering. The 2007 Carnegie Report calls for law schools to increase skills and professionalism training so that law school graduates can be better prepared for practice. And the ABA is considering revisions to the law school accreditation standards that would increase the emphasis on what students learn, rather than on what we teach.
By now, we are all familiar with the many criticisms of legal education. Given this backdrop, I want to highlight a tax academic’s scholarship, not on tax law, but rather on the broader topic of legal education reform. Brad Borden, a prolific scholar in the field of partnership and real estate taxation, is the co-author (together with Robert Rhee) of The Law School Firm. The article suggests an alternate model for legal education that could better connect law schools with law practice.
Borden & Rhee’s basic idea is that an interested law school “can establish a [non-profit] law firm that is separate and distinct from the law school.” The law school firm would hire experienced attorneys (paid with salary but not a share of profits) to run the firm, generate and serve clients, and train law students to do client work. The law school firm would be expected to be self-sufficient (perhaps after initial start-up funding), but the emphasis of the firm would be on training and service rather than on profits. Select students would work for the firm full-time as a “resident attorneys” for a period of years after graduation, and possibly also in lieu of the third year of law school (depending on the details of the particular program design); thereafter, the resident attorneys would be expected to leave the law school firm for other opportunities. You will notice the similarities to the medical school training model, which is one of Borden & Rhee’s sources of inspiration.
I have omitted many details, but the fundamental goal of the law school firm would be to provide the resident attorneys with meaningful training in all aspects of the profession, including not only business development and client service, but also service to the profession and community. The hope is that the law school firm model could give lawyers the comprehensive training that is in limited supply in law schools today and that junior lawyers may not get in practice today. Borden & Rhee also highlight a variety of opportunities for collaboration between the faculty of the law school and the lawyers at the law school firm.
Borden & Rhee correctly identify that there are all sorts of impediments to the implementation of their proposal, including issues of accreditation, possible opposition from the bar with whom the law school firm would compete, and economic considerations. Perhaps these obstacles can be overcome; perhaps not. But Borden & Rhee do not let these issues stop them from making their proposal for the law school firm. And I don’t think we should let these issues stop us from taking their proposal seriously.
So, how can we reform legal education to respond to the critiques and meet the challenge of better serving our students? This is a hard question, and I don’t have the answer. I do, however, think that this is one of the most pressing questions facing law schools today. This question deserves attention from the bright and creative minds in the legal academy. Legal academics have a wide variety of specialties, but we share a common interest in the future of legal education. Borden & Rhee are among the growing group of academics (from various substantive specialties) who have spent some of their scholarly energy on the future of legal education, and they should be commended for doing so. Their idea is provocative and bold, and it is just the type of creative thinking that could lead to constructive reform.
Is the law school firm the answer? I don’t know. Maybe. Maybe not. I hope that you will read the piece and decide for yourself. And, above everything else, I hope that the piece will inspire us all to join Borden & Rhee’s efforts and to spend more of our scholarly energy trying to tackle the challenges facing legal education.
Apr 2, 2012 Laurel Terry
Australia is the home to some of the world’s most interesting and provocative legal profession developments. For example, Australian jurisdictions were among the first jurisdictions to permit nonlawyer ownership of law firms. Not long thereafter, the Australian regulatory scheme was amended to permit outside investment in law firms. As a result, Australia became the site of the world’s first publicly traded law firm. Australia has been on the forefront of other lawyer regulation developments such as the proactive use of ex ante systems of regulation.
As commentators and jurisdictions elsewhere discuss and debate the proper scope of lawyer regulation, many look to Australia’s experiences in the hopes that they will provide valuable information and lessons. Those actively following the Australian developments include the American Bar Association (ABA), the UK Legal Services Board, and the Solicitors Regulation Authority (SRA), which is the front-line regulator for solicitors in England and Wales.
Given the path-breaking nature of lawyer regulation in Australia and the global interest in these developments, Professor Christine Parker’s scholarship is particularly important. Professor Parker’s prior work includes collaborations with academics from other countries and from other fields and with Australian government officials. For example, one of her most influential lawyer regulation articles was jointly written with Steve Mark and Tahlia Gordon, who are regulators in the New South Wales, Australia Office of the Legal Services Commissioner: Regulating Law Firm Ethics Management: An Empirical Assessment of the Regulation of Incorporated Legal Practices in NSW, 37 J.L. & Soc’y 466 (2010). This article has been influential because it noted an approximate one-third decrease in the rate of complaints against New South Wales practitioners who practiced in an incorporated legal practices structure and were subject to the New South Wales self-assessment regime for encouraging firms to actually put into practice “appropriate management systems.”
While a number of academics, included U.S. academics Ted Schneyer, David Wilkins, and Elizabeth Chambliss, previously have written about the expected benefits of implementing systems requirements and ethical infrastructure requirements – i.e., systems, – the Parker-Gordon-Mark article was useful because it included empirical research that indicated that proactive ex ante management systems can – in fact and not just in theory – reduce client complaints against lawyers.
Given the synergies that emerged from Professor Parker’s prior collaboration with Australian regulators, I looked forward to reading the Queensland Workplace Culture Check article, which was jointly written by Professor Parker and Lyn Aitken, who is the Policy and Research Coordinator for the Legal Services Commission in Queensland. I was not disappointed by their collaboration.
In recent years, there has been a significant amount of scholarship that focuses on what has been called the “ethical infrastructure” of law firms. Scholars have discussed and debated the recommended structure and potential impact of such systems on lawyer and law firm behavior, but there has been limited empirical data. This article is situated within this broader theoretical debate, but provides a significant contribution to the literature by collecting and analyzing data that considers the operation – in practice – of various firms’ ethical systems.
The article begins by explaining the origins and methodology of the 2009 Workplace Culture Check Survey which the Queensland Legal Services Commissioner asked fifteen law firms to complete. The article continues by explaining why the survey data allows one to draw reliable inferences about ethical infrastructure issues despite the fact that the survey was designed with a different purpose in mind. One of the most striking aspects of the data that Aiken and Parker present – or perhaps not so striking to those who have been in law firm environments – was the very different ways in which junior and senior lawyers viewed the ethical infrastructure systems. For example, there were significant differences in the level of awareness of formal ethical supports and significant differences in their perceptions about whether anyone had been disciplined for unethical conduct within the past five years. Professor Parker and Ms. Aiken discuss the implications of this data and suggest concrete changes that might support ethical compliance within law firms, such as greater use of instruments such as the Workplace Culture Check to ensure that more junior lawyers are socialized into firms cultures that encourage ethical discussion and action and as a tool for regulators to decide where they might most effectively focus their attention. Parker and Aiken also used this study and the results that emerged to identify avenues for additional research.
This article is important in several respects. First, for those interested in lawyer regulation in general and the ethical infrastructure issues in particular, this article provides not only theoretical grounding, but useful empirical data combined with rigorous analysis of that data. Second, for those who have not traditionally been interested in lawyer regulation issues, this may be the right time to develop such an interest. Although Australia was the first jurisdiction to have publicly traded law firms and pioneered the use of “appropriate management systems” to create ethical firm infrastructures, it will not be the last such jurisdiction. Given the number of law firms that have both London and New York offices and U.S. lawyer imputation rules, these English developments are likely to have an even broader impact than the Australian developments. Indeed, some claim that the 2007 U.K. Legal Services Act and the pending launch of ABS-firms will have the same magnitude of impact as did the UK financial markets’ Big Bang. Although the Solicitors Regulation Authority had not yet issued any alternative business structure (ABS) licenses at the time this review was written, such licenses are imminent. Moreover, even the SRA has noted its surprise at the large number of ABS applications it had received. Blogs and news sources report interest in, or applications from, entities that include a private equity fund, a financial services firm, an insurance company, and the claims handling division of Telecoms giant BT, along with an application from Australia’s leading publicly-traded firm and an application from an affiliate of DLA Piper. In my view, the UK and Australian developments have fundamentally and permanently changed at least the outward shape of the practice of law. Global developments have a habit of seeping beyond national borders. Thus, in the future, it will be increasingly important for all lawyers and scholars to understand not only the theory but the practice of how one can go about creating an effective ethical infrastructure for lawyers and law firms.
The final lesson to be learned from this article is a reminder of the useful collaboration that can take place between academics and regulators. In both New South Wales and in Queensland, Professor Parker has persuaded the regulators to collect and share data with the academic community. The resulting cooperative relationship benefits scholars, regulators, and the public. It contributes to a better understanding of how regulation works in both theory and practice. In this respect, the Queensland Workplace Culture Check article is worthy of emulation.
Section Editors’ Note: Regarding emulation, the UK Legal Services Board has instituted an initial study that might lead to similar kinds of intra-firm ethical monitoring and evaluation.
Feb 17, 2012 Richard Parnham
As a current PhD student, whose research interests include legal professionalism and large law firms, I wish Andrew Francis’ latest book had been written several years ago. In just 228 pages, the book positively canters through many of the research themes I spent months compiling for my own literature review.
For example, by the end of chapter one, a novice reader will be made aware of the size, entry routes and recent reforms to the English and Welsh legal market, to name but a few topics. By the end of the first page of chapter 2, the reader will be introduced to many historical, and current, writers on a range of issues relating to legal professionalism – no mean feat in a mere 20 pages.
However, these topics – while useful in their own right – are not the central aims of Andrew Francis’ book. Rather, the subjects discussed in the first two chapters act as a springboard for his discussion of the two topics alluded to in the book’s title. That is, an examination of the where the “edge” of the English and Welsh legal market currently lies. And, secondly, as a review of shifting nature of legal professionalism itself – albeit almost exclusively from an English and Welsh perspective.
To some extent, the book’s contents page (available here) provides an early indication of where Francis believes the “edge” of the English and Welsh legal market currently lies. However, this definition is made more explicit on page seven of the book’s introduction. Firstly, Francis suggests that “many of the actors considered in this book” are ‘cutting edge’ in the work they do, challenging accepted practices and patterns of behaviour in the field.” His second definition describes those who are ‘edgy’ – “displaying status anxiety or identify dissonance about their place in the professional field”.
On a purely practical level, the very specific focus of Francis’ book may limit its potential audience, even amongst those interested in studying the world’s legal professions. Notwithstanding the first two chapters’ excellent introduction to the nature of contemporary professionalism – which will appeal to readers from any jurisdiction – relatively little of this book is given over to a discussion of issues surrounding contemporary professionalism in relation to “mainstream” providers of legal services in England and Wales – i.e. solicitors (barristers are not discussed at all). Rather, Francis’ book will arguably only make sense to those who already have a sound understanding of where the mainstream of legal practice / legal professionalism in the England and Wales currently lies. It is only by understanding this mainstream will Francis’ debate about the nature of professionalism at the law’s “edge” make sense.
Turning to the individual chapters themselves, several are devoted to the second of his stated research themes – that of “edgy” legal professionalism. Here, Francis’ main interests is the way in which the English and Welsh legal profession continues to exercise an (albeit) weak form of social closure – that is, the profession continues to influence which people it “allows” to join its ranks. For example, chapter three focuses on the way in which large firms continue to use a variety of techniques to consciously (or unconsciously) exclude potential recruits who have an unconventional educational or career background. This theme of exclusion and marginalisation is also carried over into chapter four, which examines attitudes to towards the “third” (i.e. not typically regarded as being part of) branch the English and Welsh legal profession – Legal Executives. Here, Francis examines both the subservient regulatory status of the Institute of Legal Executives relative to the Law Society, and also the (perceived) lower status of Legal Executive practitioners relative to solicitors.
After a somewhat standalone chapter on cause / activist lawyering (chapter five) – which is arguably the only chapter which substantially deals with Francis’ first stated aim of discussing “cutting edge” approaches to delivering legal services – chapters six and seven return to the concept of “edgy professionalism”. Here, chapter six operates as a case study of the Society of Trusts and Estates Practitioners (STEP), while chapter seven examines the charging governance structures relating to the English and Welsh solicitors’ profession.
If one was to crudely summarise and contrast these two chapters, one would say that the STEP chapter describes the “bottom up” process by which a private organisation has begun to talk on some aspects of a professional body, notwithstanding the fact that its membership comprises a diverse range of professions, working in numerous locations in addition to the UK. By contrast, the chapter focusing on the Law Society tells a story of the declining importance of the organisation – largely the result of top-down, legislation-imposed, structural change as a result of the Legal Services Act 2007. Telling, the chapter concludes (page 160) by saying the Law Society is “no longer to fulcrum of professional advancements” or the “primary driver of the collective mobility project.”
Overall, given the usefulness of the book as a reference source, and the large number of themes examined in a relatively brief number of pages, one feels churlish for drawing attention to some of its possible shortcomings. Nevertheless, I felt there were three aspects of the book which prevented it from providing as comprehensive a guide to the “edge” of legal professionalism as it otherwise could have been.
The first challenge relates to Francis’ self-imposed boundaries of the “edge” of law, in terms of which legal service professionals he examined. As early as page eight, he admits he made a conscious decision not to discuss barristers, claims management firms, will writers and immigration advisors, in addition to Legal Executives or STEP members. Francis’ justifies his case history selections by stating that “they all represent different examples of the way in which ‘the edge’ operates as a feature of legal professionalism”. More specifically, “the in depth analysis of legal executives, a largely ignored branch of the legal professionalism, demonstrates the attempt of an aspirant occupational group to deploy many of the traditional strategies of professional advancement yet remain locked at the edge of the law.”
The use of individual case histories to illustrate a wider point is, of course, a perfectly valid approach to research. On a personal note, I confess that, before reading Francis’ book, I had never considered either legal executives or STEP members to be part of the English and Welsh legal market – so the book did change my perceptions of where the law’s “edge” in this country correctly lies. Nevertheless, I did feel that the sheer number of potential legal professionals Francis omitted to study in this book means that it can only be regarded as a partial examination of the true outer “edge” of the English and Welsh legal market.
My second issue with this book is that relevantly little space given over to Francis’ second stated aim: discussing those at the “‘cutting edge’ legal service delivery, challenging accepted practices and patterns of behaviour in the field”. As already mentioned, chapter five is probably the best chapter (if not only) chapter to discuss this topic. What’s more, given the imminent arrival of truly innovative alternative providers of legal service – made possible by the Legal Services Act, I cannot help but feel that Francis’ perception of what amounts to a “cutting edge” of legal practice will (very rapidly) become not particularly cutting edge at all.
The final challenges relates to his attempt to devise a new coherent narrative to explain the “fluidity, fragmentation and heterogeneity” (page 172) of the modern legal profession – discussed in the book’s final chapter, chapter eight. Given that chapters four, six and seven of his book (in particular) spent a large amount of time discussing contradictory trajectories of professionalism, it is arguable that his new idea, that of “contingent legal professionalism” is little more than a shorthand phrase for “documenting chaos”.
Of course, this is not a fact that Francis shies away from. Indeed, even the book’s title “emergent and divergent models of legal professionalism” provide an early clue to his findings. Furthermore, his explicitly justifies his stance as early as page 33, stating that: “The contingency of the framework that I develop in this book is not nervousness about nailing my colours to the mast of a grand narrative.” Rather, his approach aims to describe: “a model of professionalism that shifts and changes according to the markets’ / field’s needs at any one time; a model of complexity.” (page 172).
In other words, the fact that his book does not include a grand narrative about trends in the contemporary legal professions appears to be due to the fact that, having examined the evidence, the main conclusion that Francis was able to draw was that nature of contemporary professionalism is even more fluid and uncertain than was previously thought. What’s more, the more that the debate about the nature of legal professionalism pushes out towards the law’s outer “edge”, the more fluid and uncertain the concept the nature of legal professionalism becomes.
