The commercialisation of law and the enterprising legal practitioner: continuity and change

Abstract

This paper engages with William Twining's longstanding concern with law as a ‘practical art’ through a discussion of the changes which the corporate law sector is currently undergoing. These changes will be examined through an analysis of qualitative data on the recruitment practices of large commercial law firms and a reading of the trade press. The evidence of these firms' thoroughgoing commercialisation, and of Human Resource (HR) strategies designed to produce legal entrepreneurs, is suggestive of a Foucaultian ‘analytics of government’. The data indicates however that underlying the dramatic changes in professionalism, there are also significant continuities. As a result a range of competing rationalities and discourses are today in circulation in the corporate law firm – for instance, discourses of diversity/meritocracy/social mobility; entrepreneurialism; economic rationality and managerialism. These various discourses both support and reflect the complex of ‘modernising’ impulses, residual cultural practices and acts of resistance which today characterises the legal professional field. A primary attraction of contemporary recruitment practices is their capacity to encompass and manage these contradictions.

Notes

Globalization can be defined as the intensification of world-wide relationships, including trade, culture and technologies, leading to, inter alia, the internationalization of large bodies of law, legal practice and firms.

Arthurs has commented that the eclipse of the activist state has disrupted the ideal of law and the profession (2001).

In their discussion of the impact of these changes, Leicht and Lyman (2006, p. 32) speak of a crisis of professionalism.

But see Faulconbridge and Muzio (2009) whose analysis of the impact of financialisation on the profession includes discussion of the shift this has produced to a predominantly employed occupation and pressure on salaried lawyers to generate greater profits; Arthurs and Kreklewich also discuss how the ‘new economy’ is aggravating the profession's pre-existing tendencies to stratification and marginalization (1996).

The qualitative study: Access to Legal Work Experience and its Role in the (Re)Production of Legal Professional Identity (2010), funded by the UKCLE, was undertaken by Andrew Francis and the author, available at: http://www.ukcle.ac.uk/research/projects/francis.html. See too Francis and Sommerlad (2009).

The term Human Resource Management (HRM) was imported from the US in the 1980s, replacing personnel management. It represents the cultural shift in management philosophy to a ‘strategic, proactive, corporate-wide approach to managing people involving questions of culture and values’ (Iles & Hicks-Clarke, 1995), which, as I discuss below, has its legacy in the cultural engineering programmes of the 1930s, and is integral to contemporary neo-liberal performance management techniques.

Cooper et al. speak of the emergence of the “managed professional business” (1996).

Diversity is a portmanteau term; originating in the US Civil Rights movement, in the 1990s it came to be connected with the drive for global competitiveness and its political significance eviscerated as it came to mean valuing everyone as an individual. The underlying logic of Diversity Management (DM) is twofold: firstly, pluralism is productive, making discrimination economically irrational and objective evaluation of performance essential; secondly, by treating employees as individuals with needs rather than as members of a (deficient) social category, DM is believed to get the optimum performance out of employees. As a result DM, unlike Equal Opportunities, is perceived as conferring business benefits, and generally described in terms of the business case (see for example Kandola & Fullerton, 1998; Foster Curtis & Dreachslin, 2008). Along with other HRM initiatives such as ‘talent management’, it may be viewed as, in Foucaultian terms, a prototypical technology of government – that is a mechanism designed to integrate individuals into the social order.

Finding an appropriate term to describe lawyers who are not white, middle class males which does not either essentialise or pathologise the lower status group is problematic. The term ‘outsiders’, deployed by Carbado & Gulati (2000), captures the closure tactics used by ‘insiders’.

The resistance discussed here focuses on that exercised by existing power elites to DM; I deal less with outsiders' resistance to HRM strategies (such as the intensification of work). This should not be interpreted to mean that I see such groups as entirely lacking in agency.

The interpenetration of law and society and the profession's intimate connection with modernity requires the situation of changes to professionalism in wider social developments; as Abbott puts it: “thinking about professions developing independently [is] … foolish” (2001, p. 9); Fournier similarly views many of the changes which the legal profession is currently undergoing as expressing and mimicking the broader conditions of postmodernity (1999).

For instance Barnett speaks of a change in the “pedagogical balance of the professional–client relationship” (Barnett, 2008, p. 191) and Donnison suggests that marketisation may be enhancing the accountability of service provision (2011).

Bourdieu argues that the economisation of fields previously sheltered from the market threatens their “most precious collective achievements, starting with the critical dispositions which were simultaneously the product and the guarantee of their autonomy” (1996, p. 339).

Foucault used the term governmental rationality to refer not so much to the activities of the state or “legitimately constituted forms of political or economic subjection” (1982, p. 221) but rather to a wide range of principles and methods designed to “structure the possible field of action of others” (ibid.) and thereby integrate individuals into the social order; in his analysis of liberalism it entailed the proliferation of a range of disciplinary techniques deployed by professional experts ultimately to inculcate self surveillance/self- regulation (1979).

To the extent that progress towards equality has occurred, this may be attributable to ‘interest convergence’ (Bell, 1992), and (to draw again on Foucault) may itself be viewed as a form of governance.

Similarly, Bourdieu and Wacquant condemn neo-liberalism's “celebratory reassertion of (individual) responsibility” (2001, p. 2).

The Law Society annual statistical surveys establish the limited success women and Black and Minority Ethnic (BME) solicitors have had in becoming partners, especially in elite firms; the significance of socio-economic background is revealed by research for the Sutton Trust (2009); see too the Milburn Report into access to the professions (PFAP, 2009). The position in other professions is similar (see, e.g. CABE, 2004; Crompton & Lyonette, 2007).

Dickens (1998); Newman and Itzin (1995, p. 11) argue that it is these more subtle processes which render an organisation intrinsically gendered and thus defeat even well developed equal opportunity initiatives. Other scholars refer to ‘everyday racism and sexism’ (e.g. Essed, 1991).

These have also been interpreted by Wendy Brown as a response, in part, to the social emptiness of neo-liberal rationality (2006); the rise of the religious right and more recently the Tea Party in the US, and the revival of archaic attitudes towards women exemplify her argument.

For instance the Personal Development Portfolio may be viewed as one of the mechanisms introduced with the objective of producing the student as an “autonomous learner orientated towards future employment” (Clegg, 2004, p. 287); in respect of the push to develop transferable skills, see, for instance UKCES (2009) Ambition 2020: World Class Skills and Jobs for the UK and Leitch Review 2006 Final Report, available at: http://webarchive.nationalarchives.gov.uk/+/http://www.hm-

The ‘restructured’, ‘corporatised’ or entrepreneurial university, in which academics have been reconstructed as knowledge workers whose commodity is knowledge, a resource to help bolster UK's global competitiveness, and in which activities which cannot be shown to be directly income generating are marginalised, exemplify this process – central to which has been the marketisation of the public sector (see, e.g. Ball, 2008). See too Arthurs and Kreklewich who, 15 years ago wrote that “in the current vernacular, the production of law can be described as increasingly ‘lean’ and ‘flexible’, high value added and intensely competitive and functionally and spatially diffuse” (1996, p. 18); they go on to argue that “law production is characterised by … changes in the mix and relative importance of several pre-existing modes of production”(ibid.).

As a result, the extent to which the profession is now fragmented in terms of project, organisational type, population/identity, and status/income makes the myth of a cohesive, collegial profession (fundamental to the professional project) virtually unsustainable. The concomitant accentuation of the gulf between the two hemispheres of the profession (Heinz & Laumann, 1982) echoes the increasing divisions between rich and poor which characterise wider society (Joyce et al., 2010).

Like ‘globalization’ the term neo-liberal is problematic, apparently oversimplifying a complex, contingent range of phenomena. However, as Hall argues, there are sufficient common features to give it conceptual validity. For Hall, one of its primary threads is “possessive individualism” and consequent anti-statism (2011, pp. 10–11).

The objective was to develop a ‘knowledge economy’, capable of meeting the challenges posed by globalization and hence also to prise open the professions to the masses. However, in practice, universities, as a result of the hardening of pre-existing hierarchies, are now the primary means of reproducing class privilege (see, for example, Reay et al., 2005).

Abel, 1988, p. 289. Up until and well into the 1990s partners even in the large City firms generally handled the recruitment, and the basis for selection was acknowledged frequently to turn on ‘gut reaction’ in the interview (Boothroyd, 1990).

Kuhlmann & Bourgeault, 2008. Empirical studies of other traditionally male professions point to successful career strategies by non-normative professionals (e.g. Riska & Weger, p. 1995).

The use of ACs for development purposes (that is, to change people's ways of thinking and acting (Carrick & Williams, 1999) has led to them also being termed Development Centres (DCs).

The term performativity also encompasses the performance management techniques which work on individuals' subjectivities once recruited, the work individuals are invited to do on themselves, and the framework of judgement within which self improvement is measured (Ball, 2008, p. 51).

Recent years have seen a transformation of HR discourses to encompass governance metrics; PSFs now commonly deploy internal score cards to include diversity, equality and inclusion metrics in order to comply with the evolving legislation and client demand. These developments have entailed a drive to transform HRM, redesigning, reengineering and ‘upgrading’ it to ensure HR practices are designed, integrated and aligned with business requirements.

Similarly Han argues that Foucaultian descriptions of social practices in systemic terms overlook the lived experience of these practices (2002).

The devaluation of post-1992 universities and stratification of the HE sector is relatively recent; in 1990 The Lawyer cited top law firms as welcoming applications from the polytechnics: “Head of Personnel at Slaughter & May … emphasises their high calibre” (Olive, Student Special The Lawyer, 25 September 1990, p. 19).

The comments were posted in response to the report in The Lawyer that top firms plan to work together to widen access to the law (The Lawyer, 2011b).

The stratification of universities is reflected in (and reinforced) by the concentration in ‘new universities’ of ‘non-traditional’ students; producing the ‘apartheid’ of the HE sector Mirza (1998). Law firms, especially those in the corporate sector target old universities (Rolfe & Anderson, 2003). This has been interpreted as a covert way of avoiding living up to a commitment to diversity (Williams, 2006).

Numerous studies of PSFs indicate that qualifications and knowledge are now taken for granted (e.g. Kumra & Vinnicombe, 2008); and a review of graduate early career experiences concluded that traditional academic skills were the least used by recent graduate entrants to the workplace (Purcell et al., 1999). Further, just as in HE, our data revealed how the meaning of skill and knowledge has expanded to encompass personal characteristics and psychological traits (Keep & Mayhew, 1999), echoing the findings of a study of accountancy that ‘ways of conducting oneself’ are more important (Grey, 1998).

This claim by graduate recruitment partner at Simmons & Simmons was cited in an article on the firm's development (in partnership with BPP) of an MBA in Legal Business (Manning, 2010, p. 45).

Collier argues that the corporate legal sector remains “a site already constituted at the point of entry by reference to the making of certain assumptions about social, economic and cultural capital … assumptions which are mediated in complex ways by ideas about class, gender, race and ethnicity” (Collier, 2005, p. 75).

These attributes have been summarised as “willingness to learn, team work, problem solving and a range of personal attributes including commitment, energy, self motivation, self management, reliability, co-operation, flexibility and adaptability, analytic ability, logical argument and ability to summarise key issues” (Harvey & Green, 1994, p. 7).

Skeggs calls this the imperative towards extraordinary subjectivity (2005, p. 974), and part of our therapeutic culture or the move towards what Berlant defines as ‘intimate citizenship’ (2000) – as exemplified by the Oprah Winfrey Show.

Ehrenberg argues that personal autonomy has come to define social life more broadly. ‘Blind obedience’ as a form of action has been replaced with a form of action as ‘autonomous responsibility’ (1991).

Faulconbridge & Muzio, 2009; the trade press and websites reveal a great deal of resentment by employees about this ongoing intensification of workload; for instance an associate quoted in The Benchmarker Survey said: “partners should ensure junior staff are being developed through training and suitable work experience, rather than hogging work for themselves and cutting training budgets to maintain profits per equity partner (PEP)” (Legal Week, 2010).

“You have to be a team player, but people appreciate what you do as an individual” (Pinsent Masons brochure, 2010). Thus a recent article in Lawyer 2B attributed the “elitism of law firms” to state schools' “lack of focus on soft skills such as leadership and teamwork as well as extra-curricular activities” (Pugh, 2010, p. 4). Collier has commented on the tension created by the requirement for both signs of team-playing and conformity, and displays of individualism (2005).

Collier (2005) also comments on the attempt to configure the firm as a ‘fun’ place to work through the use of words like sexy.

The parallels revealed by the data between the drive to create an enterprise culture in law firms and the findings of Du Gay's research into the retailing industry are striking; Du Gay found firms shifting away from technical skills traditionally associated with retail towards training staff to become self motivated and proactive, deploying a discourse of enterprise and autonomy (1996).

The Lawyer reported that the firm's graduate recruitment partner “admitted that the firm got it wrong on this occasion, saying in a statement: ‘Last week a student worked through the night on a document for a big international arbitration. She willingly stayed and worked with a female colleague and did a great job, but it shouldn't have happened. In future we'll stick to our policy so this doesn't happen again.’ SJ Berwin was right to admit that this situation should never have arisen and that the student should have been given the option of saying no. The issue, though, is the fact that people on such schemes want a job, and in this climate many will go above and beyond to show their willingness, or feel that to say no may reflect badly on them. Some may therefore feel compelled to exceed themselves to impress” (The Lawyer, 2011a).

Ashley argues that the relative status of corporate lawyers in the City's ‘pecking order’ is relatively low (2010b, p. 14).

Evidently this focus on the client and requirement of commerciality is the result of the financialisation of the corporate firm, the ‘obsession with PEP as a financial performance metric’ and the consequent increase in what is required of employees (Faulconbridge & Muzio, 2009).

www.future.lawyers.co.uk, Legal Week, April 2010.

“The culturalization of the workplace combined with technological innovations and the continuing priorities of capitalist organization has meant that today workers are provided with endless training opportunities, and subjected to novel surveillance techniques” (Adams, 2007, p. 81; and see Donzelot, 1991).

See too Sweetman (2003) who argues that a reflexive habitus is now prescriptive; Strathern (1992) speaks of compulsory individuality. Giddens also suggests that “we have no choice but to choose” (1991, p. 81), and Bauman similarly argues that individualisation is not a choice but fate (2001, p. xvi).

An extreme example of such exercises in mortification (or ritual initiations) was offered by a respondent in an earlier research project. She said: “Some of (the trainees) are given jobs they really shouldn't be given … also it's the way they are spoken to … trainees are treated like the lowest of the low and sometimes … they'd have to clear up sick from the steps (outside the building) and stuff like that … It's been said that if we can break our trainees then we can build them up again and then no client can do worse to them … so they are made to feel like nothing” (Partner, regional corporate firm).

In 2009 10.6% of all solicitors with practising certificates were from BME groups, and 45.2% were female. In all, 25.9% of BME practitioners were partners, but this figure reflects the fact that over 50% work in small firms, and are twice as likely to be sole practitioners as their white counterparts. Only 21.5% of women were partners compared to 49.1% of men (Law Society, 2009). According to The Lawyer Diversity Report (2010), the proportion of female partners in the corporate sector is even lower: in some of the ‘top thirty’ firms women make up only 8% of partners (5% of equity); the highest percentage is 28% of equity. The report did not provide figures for BME partnership, but the percentages for BME members of the firms were generally a great deal lower than in the profession as a whole (e.g. 4% in one firm) (see too Hoare, 2006).

The Lawyer, 4 April 2011, available at: http://www.thelawyer.com/04-april-2011/1966.issue. These posters and the evidence of other studies (e.g. Sommerlad et al., 2010) reveals that the corporate law sector is a contested domain; the preceding discussion of initiatives designed to raise work output should not therefore be read as suggesting that subordinated groups do not resist these developments.

Given the emphasis on bringing clients into a firm, this is hardly surprising. The “increasing commodification and the increasing perception of social relationships as social capital” is viewed as characteristic of late capitalism (Wittel, 2001, p. 71); in practice clientelistic relations have always been a key characteristic of the profession; the difference today is that in HRM discourses construct this as (in theory) inequitable and inefficient.

See for instance Fowler's explanation of the instinctive understanding of what is needed within a particular social field, possessed by those with the appropriate habitus (1997, p. 18). The profession's valuation of sporting ability is reminiscent of traditional stereotypes of English public schools – an educational route which has been a powerful factor shaping participation within the legal profession (Shiner, 1999; 2000).

The law firm's transmutation into a PSF has meant that it has come to resemble what is termed a ‘style’ labour market, so that recruitment and selection processes are also concerned with who is aesthetically acceptable (Nickson et al., 2003, p. 186).

There is an extensive literature on the socially constructed character of competencies. Forms of assessment are value laden rationing devices, and meritocracy a (powerful) myth (Young, 1990).

Thus a recent article in Lawyer 2B on the elitism of law firms observed that “the overwhelming conclusion must be that, if your children aspire to a successful legal career and you're choosing a school, it pays to pay” (Pugh, 2010, p. 4).

Reskin (2003); empirical data show that no contemporary Western society has yet broken the link between ascribed characteristics and educational attainment in schools (OECD, 2000).