The sociology of the legal profession in the digital age

ABSTRACT

This article explores how classical sociological theories such as functionalism, critical approaches, and Weberian intepretivism, can help understand the legal profession in the digital age. It argues that functionalist approaches allow to explore the changing societal role of lawyers in a digital world. Critical approaches allow for understanding how the legal profession respond to different constellations of actors and other social forces and how it is characterized by internal divisions and stratifications. Finally, Weberian approaches are helpful to reveal how the legal profession legitimizes itself by developing specific legal rationalities in response to societal and political dynamics.

Acknowledgment

The author wishes to thank William Hamilton Byrne for his repeated efforts in making my argument more intelligible.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See, among others, Julian Webb, Legal Technology: The Great Disruption?, 897 University of Melbourne Legal Studies Research Paper (2020).

2 Richard Susskind, Online Courts and the Future of Justice (Oxford University Press. 2019).

3 Richard Granat and Marc Lauritsen, The Many Faces of E-Lawyering, 30 Law Practice Managment 36(2004). Margaret Thornton, Towards the Uberisation of Legal Practice, Law, Technology and Humans 1 (2019).

4 Kevin D. Ashley, Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age (Cambridge University Press. 2017).

5 Valentin Pivovarov (2018), 713% Growth: Legal Tech Set An Investment Record in 2018. Forbes. Available online:https://www.forbes.com/sites/valentinpivovarov/2019/01/15/legaltechinvestment2018/#d2b100b7c2ba.

6 See overview in Salvatore Caserta and Mikael Rask Madsen, The Legal Profession in the Era of Digital Capitalism: Disruption or New Dawn?, 8 Laws (2019). This is not to say that the legal profession has been presently displaced or that will be displaced any time soon by IT companies. Especially in countries where the legal profession is not liberalized, the latter maintains a steady grip on the market.

7 Richard Susskind, The End of Lawyers?: Rethinking the Nature of Legal Services (Oxford University Press. 2008). Richard Susskind, Tomorrow's Lawyers: An Introduction to Your Future (Oxford University Press. 2013).

8 John O. McGinnis and Russell G. Pearce, The Great Disruption: How Machine Intelligence will Transform the Role of Lawyers in the Delivery of Legal Services, 82 Fordham Law Review 3401 (2014).

9 Tanina Rostain, Robot versus Lawyers: A User-Centered Approach, 30 Georgetown Journal of Legal Ethics 559 (2017).

10 Salvatore Caserta, Digitalization of the Legal Field and the Future of Large Law Firms, 9(2) Laws (2020).

11 The T-shaped lawyer is the one that developed a set of interdisciplinary skills to face the challenges of technological developments and to deliver legal advice more efficiently. See, Elaine Mak, The T-shaped Lawyer and Beyond: Rethinking Legal Professionalism and Legal Education for Contemporary Societies (Eleven International Publishing. 2017).

12 See, Jacob Kai, et al., Liquid Legal: Transforming Legal into a Business Savvy, Information Enabled and Performance Driven Industry (Springer 2017).

13 Mark Fenwick and Erik P. M. Vermeulen, The Lawyer of the Future as "Transaction Engineer": Digital Technologies and the Disruption of the Legal Profession, in Legal Tech, Smart Contracts and Blockchain (Corrales M. et al. ed. 2019).

14 A debate initiated as early as 1916. See, Julius H. Cohen, The Law: Business or Profession? (The Banks Law Publishing Company. 1916).

15 James Faulconbridge and Daniel Muzion, Organizational Professionalism in Globalizing Law Firms, 22 Work, Employment and Society 7 (2008).

16 David B. Wilkins and Maria J. Estaben Ferrer, The Integration of Law into Global Business Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global Legal Services Market, 43 Law & Social Inquiry 981 (2018).

17 Webb, University of Melbourne Legal Studies Research Paper (2020).

18 Julian Webb, Information Technology and the Future of Legal Education: A Provocation, 6 Griffith Jounral of Law & Human Dignity 72, 73 (2019).

19 Id. at.

20 I do not favor one theory above the others. Rather, in the paper, I show how each approach addresses different questions concerning the lawyers’ challenges in the digital era.

21 In so doing, they allow to approach the relationship between technology and society from a non-deterministic perspective, explaining technological developments as produced within specific social, political, ideological, and economic contexts and not as the product of universal rules of progress. See, Raymond Williams, Televison – Technology and Cultural Form (Routledge, 1974).

22 The commodification of the legal profession is not a recent phenomenon. It is, in fact, rooted in the 18th Century battles between barristers and solicitors in England, between the traditional Paris bar and the conseils juridiques in France, or between old-style litigators and corporate Wall Street lawyers in the United States. David Sugarman, Who Colonized Whom? Historical Reflections on the Intersection between Law, Lawyers, and Accountants, in Professional Competition and Professional Power: Lawyers, Accountants, and the Social Construction of Markets (Dezalay Y. and Sugarman D. eds. 1995); Michael J. Powell, From Patrician to Professional Elite: The Transformation of the New York City Bar Association (Russel Sage Foundation 1988).

23 The stratification of the legal profession is also not a recent occurrence. See, among others, Jo Dixon and Carrol Seron, Stratification in the Legal Profession: Sex, Sector, and Salary, Law and Society review 381 (1995); Andy Boon et al. Postmodern Professions? The Fragmentation of Legal Education and the Legal Profession, 32 Journal of Law and Society, 473 (2005); Sharon C. Bolton and Daniel Muzio, Can’t Live with’Em; Can’t Live without’Em: Gendered Segementation in the Legal Profession, 41 Sociology 47 (2007).

24 This form of professionalism entails the introduction of rational-legal forms of authority and hierarchical structures of responsibility and decision-making in work procedures and practices of lawyers. See, Julia Evetts, Professionalism: Value and Ideology, 61 Current Sociology Review 778 (2013).

25 Richard Sennett, The Culture of the New Capitalism (Yale University Press, 2007).

26 Whitney Pope, Durkheim as a Functionalist, 16 The Sociologial Quarterly (1975).

27 Emile Durkheim, The Division of Labor in Society (Free Press. 1964).

28 Talcott Parsons, The Social System (Tavistock. 1952).

29 Talcott Parsons, The Professions and Social Structure, 17 Social Forces (1939).

30 Cohen, p. 151. 1916.

31 Alexander Morris Carr-Saunders and Paul Alexander Wilson, The Professions p. 497 (Clarendon Press. 1933).

32 Geoffrey Millerson, The Qualifying Associations (Routledge & Kegan Paul. 1964).

33 Thomas Brante, Sociological Approaches to the Professions, 31 Acta Sociologica 119 (1988).

34 Vilhelm Aubert, The Changing Role of Law and Lawyers in Nineteenth- and Twentieth-Century Norwegian Society, in Lawyers in Their Social Setting (Donald Niel MacCormick ed. 1976). Britt-Mari Blegvad, Juristernes Rolle i Samfundet (Nyt fra Samfundsvidenskaberne. 1973). Margareta Bertilsson, The Legal Profession and Law in the Welfare State, in Law, Morality, and Discursive Rationality (Aarnio Aulis and Tuori Kaarlo eds., 1989).

35 Terence C. Halliday, et al., Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Change pp. 6–7 (Hart Publishing 2008).

36 Eliot Freidson, Professionalism, the Third Logic: On the Practice of Knowledge (University of Chicago Press. 2001).

37 Alan Paterson, Lawyering for a Fragmented World: Professionalism after God (Cambridge University Press. 2011).

38 Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (University of California Press. 1977).

39 Wesley W. Pue, Lawyering for a Fragmented World: Professionalism after God, 5 International Journal of the Legal Profession 125 (1998).

40 Terence C. Halliday, Knowledge Mandates: Collective Influence by Scientific, Normative and Syncretic Professions, 36 The British Journal of Sociology 421, p. 42 (1985).

41 Webb, Griffith Jounral of Law & Human Dignity, 78 (2019).

42 See discussion in Caserta and Madsen, Laws, (2019).

43 James Faulconbridge, Relational Networks of Knowledge Production in Transnational Law Firms, 38 Geoforum 925 (2007).

44 Frank Pasquale, A Rule of Persons, Not Machines: The Limits of Legal Automation, University of Maryland, Francis King Carey School of Law, Legal Studies Research Paper (2018).

45 J. Barnett and P. Treleaven, Algorithmic Dispute Resolution—The Automation of Professional Dispute Resolution Using AI and Blockchain Technologies, 61 The Computer Journal 399 (2017).

46 Susskind. 2019.

47 A recent analysis of the English court system revealed that the price of justice is far too high, beginning with the fees for legal representation and spreading to other areas. This means that the disadvantaged cannot enjoy the legal services the courts are supposed to provide, which often prevents them from ever filing suit. See, Lord Justice Michael Briggs, Civil Courts Structure Review: Final Report, Judiciary of England and Wales (2016), available at: https://www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf.

48 Doron Menashe, A Critical Analysis of the Online Court, 39 University of Pennsylvania Journal of International Law 921 (2017). There are also drawbacks concerning the application of the application of classic information technology to courts, like the enabling of frivolous suits and threat of identity theft by either party or even by a third party.

49 Webb, Griffith Jounral of Law & Human Dignity, 79 (2019).

50 Dana Remus and Frank Levy, Can Robots be Lawyers? Computers, Lawyers, and the Practice of Law, 30 Goergetown Journal of Legal Ethics 501 (2017).

51 A crucial aspect is presence of bias in algorithms. These can be the results of mistakes in the sampling and measurement, causing the data to be incomplete, based on too few data, or simply wrong. The data itself can also carry prejudice reflecting social, cultural, gender, and racial inequalities. For example, the way the case facts and circumstances or the defendant's actions are described can carry an information bias as to defendant's race or social class. See, Bias in the AI Court Decision Making – Spot it before You Fight it, available at: https://towardsdatascience.com/bias-in-the-ai-court-decision-making-spot-it-before-you-fight-it-52acf8903b11.

52 Barbara Ehrenreich and John Ehrenreich, The Professional-Managerial Class, 5 Between Labor and Capital 45 (1979).

53 Vicente Navarro, Crisis, Health, and Medicine: A Social Critique (Tavistock. 1986).

54 See, among others, Susan Pickard, The Professionalization of General Practitioners with a Special Interest: Rationalization, Restratification and Governmentality, 43 Sociology 250 (2009).

55 Jo Dixon and Carrol Seron, Law and Society Review (1995); Andy Boon et al. Journal of Law and Society (2005).

56 Hilary Sommerlad, “A Pit to put Women in”: Professionalism, Work Intensification, Sexualisation and Work–Life Balance in the Legal Profession in England and Wales, 23 International Journal of the Legal Profession, 61 (2016).

57 Boaventura de Sousa Santos, Towards a New Common Sense: Law, Science, and Politics in the Paradigmatic Transition (Routledge. 1995).

58 See, among other works, Yves Dezalay and Bryant G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press. 1996). Yves Dezalay and Bryant G. Garth, The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (University of Chicago Press. 2002). Yves Dezalay and Bryant G. Garth, Asian Legal Revivals: Lawyers in the Shadow of the Empire (University of Chicago Press. 2010).

59 Pierre Bourdieu and Loic J. D. Wacquant, An Invitation to Reflexive Sociology p. 212 (The University of Chicago Press. 1992).

60 Yves Dezalay and Bryant Garth, State Politics and Legal Markets, 10 Comparative Sociology 38 (2011).

61 Hanlon 1997.

62 Robert L. Nelson, Partners with Power – The Social Transformation of the Large Law Firm (University of California Press. 1988). Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge University Press. 1993).

63 Robert Ambrogi (2019), Legal Tech for the Legal Elite: Observations of Two Conferences, available at: https://abovethelaw.com/2019/02/legal-tech-for-the-legal-elite-observations-of-two-conferences/.

64 John Flood, Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice, 3 International Journal of the Legal Profession 169 (1996).

65 Webb, University of Melbourne Legal Studies Research Paper (2020).

66 Thornton, Law, Technology and Humans (2019). Yao Yao, Uberizing the Legal Profession? Lawyer Autonomy and Status in the Digital Legal Market, British Journal of Industrial Relations 1 (2019).

67 Max Weber, Economy and Society: An Outline of Interpretive Sociology (University of California Press. 1978).

68 See, for instance, Eliot Freidson, Professionalism Reborn: Theory, Prophecy and Policy (University of Chicago Press. 1994).

69 Frank Parkin, Marxism and Class Theory:A Bourgeois Critique (Tavistock. 1979).

70 Sarfatti Larson. 1977.

71 Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (University of Chicago Press. 1988).

72 Richard Abel and Philip Lewis, Lawyers in Society (University of California Press. 1988-89).

73 Michael I. Reed, Masters of the Universe: Power and Elites in Organization Studies, 33 Organizational Studies 203 (2012).

74 This new form of professionalism contracts with the ideal-type of occupational professionalism; a discourse constructed within professional occupational groups through collegial authority. See, Julia Evetts, Current Sociology Review (2013).

75 Julian Webb, Turf Wars and Market Control: Competition and Complexity in the Market for Legal Services, 11 International Journal of the Legal Profession 81(2004).

76 Wilkins and Estaben Ferrer, Law & Social Inquiry (2018).

77 Thornton, Law, Technology and Humans (2019).

78 Mark Stevens, Power of Attorney: The Rise of the Giant Law Firms (McGraw-Hill. 1987). Marc Galanter and Thomas Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (The University of Chicago Press. 1991). See also review in Caserta, Laws (2020).

79 Yves Dezalay and Bryanth Garth, The Confrontation between the Big Five and Big Law. Turf Battles and Ethical Debates as Con-tests for Professional Credibility, 29 Law and Social Inquiry, 625 (2004).

80 Laura Empson, Your Partnership – Surviving and Thriving in a Changing World: The Speacial Nature of Partnership, in Managing the Modern Law Firm – New Challenges, New Perspectives (Laura Empson ed. 2007).

81 Marc Galanter and Simon Roberts, From Kinship to Magic Circle: The London Commercial Law Firm in the Twentieth Century, 15 The International Journal of the Legal Profeession, 143 (2008).

82 A detailed account of these developments is found in Galanter and Palay, p. 52. 1991. See also, Andrew Bruck and Andrew Canter, Supply, Demand, and the Changing Economics of Large Law Firms, 60 Stanford Law Review 2087(2008).

83 Evetts, Current Sociology Review (2013).

84 Alfred D. Chandler Jr., The Visible Hand: The Managerial Revolution in American Business (The Belknap Press of Harvard University Press. 1977). This has also had a significant impact on the life quality of lawyers and on diversity and inclusion in large law firms. See, among others, Martin E. P. Seligman, et al., Why Lawyers Are Unhappy, 23 Cardozo Law Review, 33 (2001); Margaret Thornton and Joanne Bagust, The Gender Trap: Flexible Work in Corporate Legal Practice, 45 Osgoode Hall Law Journal, 773 (2007); Jennifer Tomlinson, et al, Structure, Agency and Career Strategies of White Women and Black and Minority Ethnic Individuals in the Legal Profession, 66 Human Relations, 245 (2013).

85 Caserta, Laws, (2020).

86 Allison C. Shields, Managing Millennial Lawyers, 44 Law Practice, 14 (2018).

87 https://www.rradar.com/.

88 Richard Sennett (2007).

Additional information

Funding

This work was supported by Dreyersfond.