Crisis in the Legal Profession: Myth or Reality?
Abstract: The lawyer is expected to do more than is asked; in that, clients expect lawyers to go beyond their contractual obligations with them and best represent their interests. But the ordinary lawyer does not owe a duty simply to their client; he owes many duties to many stakeholders – the government, the country, the Bar, the society as a whole, and etc. While carrying out these duties, the lawyer has to deal with several dilemmas that are inherent to the profession. The aggregation of these dilemmas over a certain period of practice has developed a “crisis” in the legal profession. This paper seeks to address this “crisis” of legal professionalism by breaking it down to its constituent parts in the backdrop of legal ethics. It progresses to explain the various theories on professionalism and their exegesis. The paper then examines the key area of dilemmas faced by legal professionals and the resolutions to these dilemmas put forward by academicians and regulatory authorities. Consequently, a distinction is then drawn for the crisis in continental Europe, primarily by English legal professionals and their American counterparts. Finally, it concludes that albeit there are some genuine threats to the legal professionalism that are contentious, the crisis is under control.
Legal ethics is concerned with how legal professions (lawyers) make good and right decisions, and also, the challenges they face during the course of their legal practice. In this regard, Boon notably said that the legal profession is an ‘occupation’ which the State has ‘endowed’ with a degree of freedom in running their affairs. This autonomy is bestowed to them because of their intellectual ownership and control of an esoteric field of knowledge that concerns and serves the functioning of a healthy, democratic and civil society.
Historically, obligations of a lawyer were considered to be an obligation of the aristocracy. It was understood that the study and practice of law was a matter of privilege and responsibility, particularly for leadership. As a result of this inherent virtue of, and expectations to lead, legal practitioners built and thrived on a system of occupational control over the legal services market. There were so adept, that economist Adam Smith once said that legal professionals in England and Wales enjoyed almost absolute monopoly over the legal services market.
Knorman stated that because of their authority and influence within the society, legal professionals owe several duties. Mullerat, in this regard said that the lawyer’s primary duty lies with expertise of law – referring to academic and professional training. His secondary duties require him to act as a co-minister of justice and a protector of rights and liberties, and alongside the judge, a key player in the administration of justice. Finally, the lawyer owes the duty of being a man of ethics since public service confers on him prerogatives such as independence and confidentiality. It is no wonder that Knorman said that “[E]very profession is a job but not every job is a profession; a way of life”. Indeed, lawyers enjoy, or at least enjoyed, an autonomy next to none; and it is because of this autonomy that the State in due time had to impose a degree of control over them.
Drawing from the point, Boon provides that legal professionals initially sought to serve the economic role of connecting their legal education to delivery of legal services in the market place. Later on they shifted towards closure of both the market and the occupation; thus, inventing occupational control. He explains that legal practice turns into a “privilege position” as it has an element of ‘indeterminacy’, which means it demands the application of professional judgment. His explanation appears to be correct as indeterminacy provides a ‘bespoke’ dimension, which in conjunction with prestige and status, creates a socio-economic distance between lawyers and their clients. This is also illustrated by the fact that most clients are unable to assess the quality of the service that they receive; essentially, requiring the professionals themselves to look out for the best interest of the clients. Collectively, these factors are justifiable grounds for lawyers to advocate for a “close market” into the legal profession and view the profession as a “business”, as opposed to a complete “public calling”.
The crisis of legal professionalism in England and Wales originates from the “business view” of the legal profession. The crisis traces back to the 1980s, when Prime Minister Margaret Thatcher was pushing a reformist agenda for the UK, underpinned by a neoliberal political philosophy. The aim was to benefit consumers of goods and services at home and restore the UK as a trading nation in an increasingly competitive and globalized economy. Under her administration, the State would confront vested interests seen as anti-competitive forces. This included trade unions and the ‘little republics’, such as the Bar, which hindered both the dominance of the State and the operation of the market.
During this period, solicitors in England and Wales lost their monopoly over conveyancing for the enactment of the Administration of Justice Act 1985. Similarly, barristers lost their monopoly of rights of audience in higher courts due to the enactment of the Courts and Legal Services Act 1990. As a result of these statutes barristers and solicitors lost their monopoly over the legal market to non-lawyers such as licensed conveyancers, patents agent, parliamentary agents, legal executives and etc. Additionally, due to recent cuts in legal aid a considerable number of lawyers, who previously made a living working on State funded cases have lost their market share of cases. More recently, the situation has been made worse through the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The argument here is that enactments of statutes to “fight” the Bar, which typically argued for more “regulation”, and reduction of legal aid, has adversely affected lawyers, who view the profession as a ‘business’, to carry out their duties.
As compared to the UK, the US faces a more ‘theoretical’ crisis of legal professionalism. Knorman said that there was a general decline of the ‘lawyer-statesman’, stating that this crisis is essentially a breakdown in morale owning to the growing doubts as to whether those choosing to enter the profession will find fulfilment; a “spiritual crisis” hidden by the material well-being of lawyers. Put simply, Knorman sees the crisis as being of two types; the intrinsic one involving not being able to find ‘fulfilment’ at work and the extrinsic one which involves serving the greater interest of the society in part of practicing the law. In similar fashion, Rudolf Gerner argued that a “…disease has spread like a shadow over the professional’s soul: money has become the number one goal for many firms and individuals, quality of service has become secondary, and professional commitment has become a third priority, and public service has been eliminated, and the lawyers’ attitudes reveal a progressive de-professionalisation of a once lofty calling, to the point that lawyering has become a mere mercantile activity like any other job.”
Commercialism in the legal profession, as argued by Gerner, has been aggravated as a consequence of the takeover boom and other financial struggles of the 1980s. Several reasons are behind this: the needs of the modern life, the globalization of the economy, the pressure of competition created by clients demands for the best value for fees, and the consequential need for firms to adopt strict entrepreneurial practices.
Undoubtedly, the commercialisation of the legal profession has led some lawyers to not honour their inherent commitment towards the public at large. Legal professionals have been pushed back by their firms, while others have moved by themselves, towards maximising their billables. It should be noted here that recent legislations across the two jurisdictions have increasingly sought to ‘dilute’ entry to the legal profession. This has forced some lawyers to be fully immersed in making money by viewing the profession exclusively as a business, while other lawyers have remained to serve the public at large disregarding the financial incentives attached to clientele commitments.
While both Mullerat and Gerner agree that the legal profession has become ‘commercial’ and ‘mercantile’ they have not really answered the main question: should it be that way? The answer is yes, it should. Lawyers should act like businessmen and run their affairs accordingly. While it is true the modern-day legal practitioner, be that in the UK or the US, does not enjoy the wide autonomy s/he used to, modern practitioners have evolved to balance their own ‘fulfilment’ at work as well as look out for the public at large. There are now more pro bono works being undertaken by large law firms than ever before. This illustrates that modern lawyers are balancing this crisis between serving the greater public interest while looking out for fulfillment in the work place as well as the financial remunerations they earn therein.
The French, in this regard, are widely credited for developing and adopting the concept which reflects the heart of the legal professionalism – désintéressement – disinterestedness is the refusal to take as a principle the rule of maximum profit; it is carrying out of the professional activity in the absence of creed. As most learned lawyers would agree, there is more to being a lawyer than simply making money. It is also about the people who we serve and ultimately represent.
In the words of Prime Minister Margaret Thatcher, “[b]eing powerful is like being a lady. If you have to show it, you aren’t.” We have seen that lawyers, historically were highly influential professionals, who thrived on autonomy. But as time progressed this “influence” had to be curtailed for reasons mentioned above. Enactment of legislations, reduction in legal aid schemes, generations of negative perceptions about the legal profession, and the consistent “commercialisation” of the legal industry had developed a crisis for lawyers; wherein, they had to choose between “satisfaction” and financial incentives at the work place, against the broader duties of public calling. As time passed by, this crisis is now steadily watering down and lawyers are ultimately choosing a right balance of responsibility and blend of duties while making professional commitments. Although the crisis has not faded completely, the lawyers of the day are in full pursuit of upholding their duties.
Moshiuzzaman is currently a Senior Case Analyst, specializing in private and public international law, at Libertatem Magazine. His current research project encompasses analyzing and summarizing one hundred landmark decisions of the Supreme Court of the United States. He completed his Bachelor of Laws from BPP University. He is an active member of the American Society of International Law (ASIL) and the European Society of International Law (ESIL). Zaman while working as an intern Case Reporter has covered and reported on several international court decisions, including decisions from the International Court of Justice (ICJ), the European Court of Justice (ECJ), the International Criminal Court (ICC) amongst others. He has also published several articles in reputed law journals on an array of contemporary legal issues such as European Union law and International Comparative law. Zaman is currently pursuing the Chartered Financial Analyst (CFA) chartership. He is also currently pursuing his Innovation & Justice Fellowship with MIJ.