Legal ethics, the marketplace and the fragmentation of legal professionalism

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Acknowledgements

My thanks to Donald Nicolson and Julian Webb for the discussions that led to the conception of this piece. I am particularly grateful to Donald Nicolson and the anonymous reviewers for their helpful and challenging suggestions and comments.

Notes

[1] D. Nicolson & J. Webb, Professional Legal Ethics (Oxford, Oxford University Press, 1999), at p. 51.

[2] The Law Society, Guide to the Professional Conduct of Solicitors; and the Bar Council, Code of Conduct of the Bar of England and Wales.

[3] Nicolson & Webb, op. cit., at p. 5.

[4] This over-riding duty to the client, expressed in the professional codes, is the dominant conception of the lawyer's role and is rooted in the adversarial culture. As such it “excuses lawyers from common moral obligations to third parties”: D. Luban, Lawyers and Justice: An Ethical Study (Princetown, Princetown University Press, 1988), at p. xx. See also Nicolson & Webb (op. cit., at pp. 54–57) on the adversarial system as a key context for understanding professional ethics.

[5] The main focus in this paper will be on solicitors as the largest and most powerful branch of the legal profession. However the Bar is not immune from the powerful forces, described within this article, nor are they absolved from thinking about the impact of the ethical choices in practice.

[6] See Courts and Legal Services Act 1990 ss. 27 and 32 and Access to Justice Act 1999 ss.36 and 40.

[7] Nicolson & Webb, op. cit., at pp. 106–107 and 187.

[8] A. Carr-Saunders & P. Wilson, The Professions (Oxford, Clarendon Press, 1933), at p. 497. Lynn also saw “professional institutions [as] an important stabilizing factor in our whole society … helping to maintain world order”. See K. Lynn, Introduction to the professions (1963) Daedalus (Fall) at 653.

[9] M. Larson, The Rise of Professionalism: A Sociological Analysis (London, University of California Press, 1977), at p. 9; and T. Johnson, Professions and Power (London, Macmillan, 1972), at p. 25.

[10] Larson, op. cit., at p. 208. She also notes that public service claims “deny the invidious implications of monopoly and are used to stave off attacks” (at p. 52).

[11] Writing in the mid to late 1980s, Abel identifies the threats to ‘professionalism’ as it could be understood in Larson's terms. Its high point had passed. See R. Abel, Between market and state: the legal profession in turmoil (1989) 52 Modern Law Review 285.

[12] R. Abel, The Legal Profession of England and Wales (Oxford, Basil Blackwell, 1988).

[13] Abel recalls that his initial interest in the subject had been sparked by a growing awareness of the gulf between “exalted ideals and selfish practices”. See R. Abel, English Lawyers between Market and State: The Politics of Professionalism (Oxford, Oxford University Press, 2003), at p. xiv. See also R. Abel, Why does the ABA promulgate professional rules? (1981) 59 Texas Law Review 639.

[14] Abel (1988), op. cit., at pp. 30 and 248–256.

[15] The codes did not emerge fully formed, but have changed over time to respond to criticisms from government and changes in the marketplace (see Nicolson & Webb, op. cit., at pp. 88–89), in the Law Society's case typically becoming more detailed (p. 99). Such responses could be seen, following Paterson, as part of the negotiation of its social contract that the profession has entered into with the state and wider society. See A. Paterson, Professionalism and the legal services market (1996) 3 International Journal of the Legal Profession 137.

[16] A. Abbott, The System of the Professions: An Essay on the Division of Expert Labour (London, University of Chicago Press, 1988), at pp. 82–85 and 106.

[17] Larson, op. cit., at pp. 69–70.

[18] Or ‘assholes’ in the North American litigator's parlance. A. Sarat, Ethics in litigation: rhetoric of crisis, realities of practice, in: D. Rhode (Ed.) Ethics in Practice: Lawyers' Roles, Responsibilities and Regulation (New York, Oxford University Press, 2000), at p. 159.

[19] Abel (1988), op. cit., at p. 250.

[20] See R. Bucher & E. Strauss, Professions in process (1961) 66 American Journal of Sociology 325 at 326. Johnson, op. cit., at p. 55 also notes “the myth of equal competence” is important in “generating public trust in a system in which members of the community judge the competence of one another”. However, such claims have been increasingly hard to manage with both branches of the profession having faced sustained criticism about their regulatory practices. See M. Davies, Can the Office for the Supervision of Solicitors expect a happy birthday? A short review of the first three years (1999) 15 Professional Negligence 173; and Department for Constitutional Affairs, Scoping study, Competition and Regulation in the Legal Services Market (London, DCA, July 2003), at p. 17. The Law Society has just engaged in yet another re-branding exercise for its complaints arm, moving from the Solicitors Complaints Bureau to the Office for the Supervision of Solicitors to the Consumer Complaints Service in less than 20 years. See www.lawsoc.org for details.

[21] Larson, op. cit., at p. 208. However, Larson (at p. 51) is clear that the profession's claims must have some “semblance of reality” to succeed and Abel also acknowledges that “all ideologies must contain a core of truth in order to capture our credence”. See R. Abel, The professional is political (2004) 11(1/2) International Journal of the Legal Profession 131 at 146.

[22] As Nicolson & Webb, op. cit., note on close examination of the Codes of the Law Society and Bar Council, “in many cases, one gets the distinct impression that it is their [the legal profession's] dignity and image rather than the protection of clients which is more important to the profession” (at p. 109).

[23] R. Nelson & D. Trubek, Arenas of professionalism: the professional ideologies of lawyers in context, in: R. Nelson, D. Trubek & R. Solomon (Eds) Lawyers' Ideals/Lawyers Practices: Transformations in the American Legal Profession (Ithaca and London, Cornell University Press, 1992a), at p. 212.

[24] Ibid.

[25] Bucher & Strauss, op. cit.

[26] Ibid., at p. 331.

[27] Nelson & Trubek (1992a), op. cit., at p. 186.

[28] The core values include “the duty to put clients' interests first; the duty to serve the administration of justice; the duty to maintain client confidentiality; and the duty to avoid conflicts of interests”. See Law Society, Independence and Quality: The Law Society's Response to the Consultation Paper on the Review of the Regulation of Legal Services in England and Wales (London, The Law Society, 2004), at p. 22.

[29] Ibid., at p. 21.

[30] A. Boon & J. Flood, Globalization of professional ethics? The significance of lawyers' international codes of conduct (1999) 2(1) Legal Ethics 29 at 47; note that as lawyers' work diverges “it will become more difficult to establish the validity of a single coherent code”.

[31] H. Kritzer, The professions are dead, long live the professions: legal practice in a post-professional world (1999) 33(1) Law and Society Review 713 at 749.

[32] R. Maiman, C. McEwen & L. Mather, The future of legal professionalism in practice (1999) 2(1) Legal Ethics 71 at 74.

[33] P. Bourdieu, The force of law: toward a sociology of the juridical field (1987) 38 Hastings Law Journal 805 at 811.

[34] R. Nelson & D. Trubek, Introduction: new problems and new paradigms in studies of the legal profession, in: Nelson et al. (Eds) (1992b), op. cit., at p. 22.

[35] Ibid., at p. 23.

[36] H. Sommerlad, Can women lawyer differently? A perspective from the UK, in: U. Schultz & G. Shaw (Eds) Women in the World's Legal Professions (Oxford, Hart Publishing, 2003), at p. 196.

[37] Nicolson & Webb, op. cit., at p. 285.

[38] E. Friedson, The Profession of Medicine: A Study of the Sociology of Applied Medicine (New York, Dodd Mead and Co, 1970), at p. 187.

[39] Clearly there are many more. Further examples include the profession's loss of exclusivity, increased segregation of specialised knowledge, globalisation and a fractured (and fractious) relationship with the state (see generally Kritzer, op. cit.). The size and dominance of the largest commercial law firms is, however, closely linked to a number of these other trends.

[40] Barristers' chambers have also increased in size, and now experience some of the same pressures as large law firms. See Abel (2003), op. cit., at pp. 200–201; Nicolson & Webb, op. cit., at p. 72; and The State of the Bar—Results of BDO Stoy Hayward's Survey of Barristers' Chambers 2002, 18th November 2002, available at www.barcouncil.org. However, the biggest do not even begin to rival the largest law firms in size.

[41] J. Flood, Megalawyering in the global order: the cultural, social and economic transformation of global legal practice (1996) 3 International Journal of the Legal Profession 169.

[42] The City, as one of the world's leading financial centres, is closely linked with the work and growth of the UK's and world's largest law firms. See J. Flood, The cultures of globalization: professional restructuring for the international market, in: Y. Dezaley & D. Sugarman (Eds) Professional Competition and Professional Power: Lawyers, Accountants, and the Social Construction of Markets (London, Routledge, 1995), at p. 143; and Flood (1996), op. cit., at pp. 172–173.

[43] R. Lee, From profession to business: the rise and rise of the City law firm (1992) 19 Journal of Law and Society 1.

[44] Only 1.6% of all law firms in England and Wales have over 26 partners (itself hardly the most accurate label for a mega-law firm). See B. Cole, Trends in the Solicitors Profession 2003 (London, The Law Society, 2004), at p. 26.

[45] Ibid., at p. 27.

[46] The elite sector is defined for these purposes as the top eight law firms, although recent data suggests that the top four law firms are leaving the rest of the profession behind (in terms of size and turnover). See http://www.thelawyer.com/LawyerNews/top100/editorialpages/table_t100UK.asp (December 2002).

[47] Eversheds is currently the largest UK firm, based on UK fee-earners. But Eversheds is much smaller when the global numbers are taken into account. Clifford Chance was second only to Baker McKenzie on the global stage in 1996. See H. Arthurs & R. Kreklewich, Law, legal institutions and the legal profession in the new economy (1996) 34(1) Osgoode Hall Law Journal 1 at 53.

[48] http://icclaw.com/l500.

[49] G. Hanlon, A profession in transition: lawyers, the market and significant others (1997) 60 Modern Law Review 798 at 805.

[50] Cole (2004), op. cit., at p. 45. The commercial orientation of such firms is reinforced when the geographical location of traineeships is examined with 27.7% of all traineeships located in the City of London. A further 19.8% are in the rest of London (at p. 43).

[51] Along with external factors such as their City of London location, the deregulation of the financial services market, Lee identifies partnership as an important factor influencing the growth of the mega law firms [Lee (1992), op. cit., at p. 35].

[52] The US system of ‘eat what you kill’ financially rewards the partner in line with the fees/clients that s/he brings to the firm [Flood (1996), op. cit., at p. 174].

[53] R. Lee, Firm Views—Work of and Work in the Largest Law Firms (London, Law Society, 1999, Research Study No. 35), at p. 60. But see below for strong evidence that cut-throat competition is entering the world of partnership.

[54] A. Pinnington & T. Morris, Archetype change in professional organizations: survey evidence from large law firms (2003) 14 British Journal of Management 85 at 97.

[55] The ratio of fee-earning staff per partner increases according to firm size [see Cole (2004), op. cit., at pp. 29–30]. The partners in the largest firms “extract surplus value” from the largest number of fee-earners [Abel (1988), op. cit., at p. 241].

[56] See Maiman et al., op. cit., at p. 83.

[57] Arthurs & Kreklewich, op. cit., at p. 57, note that the culture of the mega-law firm sets “pressures to subordinate individual practice preferences, skills, aspirations and lifestyles to overall firm strategy”.

[58] Cited by Lee (1999), op. cit., at p. 60.

[59] H. Sommerlad, ‘I've lost the plot’: an everyday story of legal aid lawyers (2001) 28 Journal of Law and Society 335.

[60] See further discussion in A. Boon & J. Levin, Ethics and Conduct of Lawyers in England and Wales (Oxford, Hart Publishing, 1999), at pp. 84–85 on the ethical implications of MDPs.

[61] Law Society, Quality, Choice and the Public Interest: Response to the Consultation Paper ‘In the Public Interest?’ Published by the Lord Chancellor's Department (London, The Law Society, November 2002) at pp. 38 and 44. Despite reservations about the capacity of the Law Society to maintain regulatory authority for solicitors, let alone for non-solicitors working within legal services [Department for Constitutional Affairs, Competition and Regulation in the Legal Services Market (London, DCA, July 2003), at p. 14], the Clementi Review proposes to allow the Law Society to retain regulatory powers (albeit with clear separation from its representative functions). See D. Clementi, Review of the Regulatory Framework for Legal Services in England and Wales (December 2004a), available at www.legal-services-review.org.uk, at p. 49. It will also be able to apply to become a regulator of LDPs (at p. 139).

[62] H. McVea, Predators and the public interest—the ‘Big Four’ and multi-disciplinary practices (2002) 65(6) Modern Law Review 811 at 833.

[63] Clementi (2004a), op. cit., at p. 117.

[64] Lee (1999), op. cit., at p. 31.

[65] Pinnington & Morris, op. cit., at p. 97.

[66] G. Hanlon, Lawyers, the State and the Market: Professionalism Revisited (Basingstoke, Macmillan, 1999), at p. 139.

[67] Cited in Ibid., at p. 138.

[68] Lee (1999), op. cit., at pp. 41–45.

[69] See for example those contained in Paterson's classic model of professionalism (op. cit., at p. 140).

[70] Hanlon (1999), op. cit., at p. 141.

[71] Boon & Levin, op. cit., at p. 87.

[72] An aspiring young solicitor expressed concern “not to get on the wrong side of someone, you just can't afford to be on the wrong side of”. Cited by R. Lee, ‘Up and out’—means or ends? Staff retention in large firms, in: P. Thomas (Ed.) Discriminating Lawyers (London, Cavendish Publishing, 2000), at p. 199. The unlikely event of moral qualms being raised is highlighted by the following statement from a commercial property lawyer: “You are not given brownie points for standing up for ethics … on the contrary you are seen as a pain in the butt”. Cited by Sommerlad (2003), op. cit., at p. 206.

[73] This is not to dismiss competitive pressures within small firms. However the ‘race for partnership’, starting soon after qualification and marked as it is by the need for younger lawyers to operate under the shadow of the partnership's culture, is a particular context of life in the largest commercial law firms. See Lee (2000), op. cit., at p. 199.

[74] Ibid. However Nicolson criticises Lee's failure to show the same concern for “all their employees or for other employees facing redundancy following the sort of take-overs that City firms frequently facilitate”. See D. Nicolson, (2001) 30 Common Law World Review 343 at 344.

[75] D. Rhode, Ethics in practice, in Rhode (Ed.), op. cit., at p. 6; and Lee (2000), op. cit., at p. 200.

[76] H. Sommerlad & P. Sanderson, Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (Aldershot, Ashgate, 1998), at p. 115.

[77] Since 1993, the total number of solicitors has grown by 51.2%, the number of women in the same period has grown by 117.5%. See Cole (2004), op. cit., at pp. 6–8.

[78] M. Berlins, Law column (20 April 2004) The Guardian: G2 at 16. See also Bar Statistics (December 2003), available at www.barcouncil.org.uk.

[79] Cole (2004), op. cit., at p. 17.

[80] See C. McGlynn, The status of women lawyers in the UK, in: Schultz & Shaw (Eds), op. cit. See also K. Malleson, Prospects for parity: the position of women in the judiciary in England and Wales, in: Shultz & Shaw (Eds), op. cit. See the latest statistics on www.dca.gov.uk//judicial/womjudfr.htm.

[81] Sommerlad & Sanderson, op. cit., generally. For similar findings in a North American context, see F. Hagan & J. Kay, Cultivating clients in the competition for partnership: gender and the organizational restructuring of law firms in the 1990s (1999) 33(3) Law and Society Review 517.

[82] Nicolson & J. Webb, op. cit., particularly pp. 280–292.

[83] “To claim to speak for all women is, inevitably, to exclude the voices and experiences of some while privileging those of others.” See J. Conaghan, Re-assessing the feminist theoretical project in law (2000) 27(3) Journal of Law and Society 351–375 at 367. See also Sommerlad (2003), op. cit., at p. 216.

[84] See C. Gilligan, In a Different Voice: Psychological Theory and Women's Development (Cambridge, MA, Harvard University Press, 1982); and C. Menkel-Meadow, Portia redux: another look at gender, feminism and legal ethics, in: S. Parker & C. Sampford (Eds) Legal Ethics and Legal Practice (Oxford, Clarendon Press, 1995). Although this is purportedly a ‘gender-neutral’ term, Sommerlad notes that Menkel-Meadow remains committed to the idea that women are the principal bearers of such an ethic [Sommerlad (2003), op. cit., at p. 196].

[85] However, see Sommerlad (Ibid., at pp. 216–217) on the underlying problems involved in attempting to apply such an ethic to the law firm environment. She argues that much of Menkel-Meadow's proposition ignores the wider socio-economic forces that shape the juridical field and its sub-fields.

[86] See D. Wall & J. Johnstone, The industrialization of legal practice and the rise of the new electric lawyer: the impact of information technology upon legal practice in the UK (1997) 25 International Journal of the Sociology of Law 25; and R. Susskind, The Future of Law; Facing the Challenges of Information Technology (Oxford, Clarendon Press, 1998).

[87] Wall and Johnstone noted that an increase in the volume and complexity across all fields of law had necessitated greater ‘operational efficiency’ (Ibid., at pp. 97–98). However, the ‘black holes’ left in international law (fields within which the largest firms tend to work) require complex and sophisticated application of legal skills, which could prove lengthy and costly unless effectively managed [Flood (1996), op. cit., at p. 192].

[88] Hanlon (1999), op. cit., at p. 132. A legal executive in a recent interview with the author discussed the transformation of her firm's offices into open plan spaces to mirror their clients' office layout. This was seen as a key marketing strategy to convince clients that ‘We understand you’.

[89] Lee notes that “the increasing size and complexity of the firms … [means] that it is impossible for managers in the firm to know of all the activity in the firm” [Lee (1999), op. cit., at p. 23]. Conversely however, such specialisation within large firms may assist in the construction of ‘Chinese Walls’ in order to deal with the ethical (and regulatory) problems caused by possible ‘conflicts of interest’. Although note that on the facts in Marks and Spencers Group Plc, Marks and Spencer Plc v. Freshfields Bruckhaus Deringer 2004/1187 CA, Lawrence Collins J's finding, cited at para 26 that “I cannot see, even with a firm the size of Freshfields that effective information barriers can be put in place given the very large number of people involved, even on the two matters … I am satisfied that the Chinese Walls cannot be or be seen to be sufficient” was approved by Pill LJ at para. 28.

[90] Cited by Clementi (2004a), op. cit., at p. 117. The Law Society was more relaxed about such issues.

[91] Cole (2004), op. cit., at pp. 16–17. Barristers remain ostensibly self-employed, although individual chambers are increasingly adopting managerial structures.

[92] Nicolson & Webb, op. cit., at p. 75, citing M. Shiner, Entry into the Legal Professions: The Law Student Cohort—Year 4 (London, The Law Society, 1997), at pp. 87–88; and T. Goriely & T. Williams, The Impact of the New Training Scheme—Report on a Qualitative Study (London, The Law Society, 1996), pp. 10, 37–40. See also Sarat, op. cit., at p. 152 on the decline of effective mentoring within law firms.

[93] See Sommerlad (2001), op. cit.; and The Law Society, Task Force, High Street Working Party (London, The Law Society, 1999).

[94] T. Williams & T. Goriely, Recruitment and Retention of Solicitors in Small Firms—Research Study 44 (London, The Law Society, 2003), at pp. 1–3 and generally.

[95] Lee (1999), op. cit., at pp. 57–58.

[96] Ibid., at p. 58.

[97] Along the lines advocated by Nicolson & Webb, op. cit., at pp. 280–283.

[98] Abel (2003), op. cit., at p. 158.

[99] Boon & Flood, op. cit., at p. 53.

[100] See D. Halpern, Entry into the Legal Professions—The Law Student Cohort Study Years 1 and 2 (London, The Law Society, 1994); Goriely & Williams, op. cit.; and M. Shiner, Young, gifted and blocked! Entry to the solicitors' profession, in: Thomas (Ed.), op. cit.

[101] See Nicolson & Webb, op. cit., at p. 75. See also Abel (2003), op. cit., on the bitter wrangling within the Bar over the precise status of employed barristers at pp. 467–470.

[102] Lee (2000), op. cit., at p. 199.

[103] See Sarat, op. cit., at pp. 152–153 on the ethical implications of this disaggregation of the firm, and generally on the culture of ‘someone else is to blame’ at pp. 155–159.

[104] Lee (1999), op. cit., at p. 22.

[105] See D. Luban, A. Strudler & D. Wasserman, Moral responsibility in the age of bureaucracy (1992) 90 Michigan Law Review 2348 at 2365; and D. Luban, The ethics of wrongful obedience, in Rhode (Ed.), op. cit.

[106] Nicolson & Webb, op. cit., at p. 76.

[107] Ibid., at p. 176.

[108] For the rare exception, see Q. Johnstone & J. Flood, Paralegals in American and English law offices (1982) 2 Windsor Yearbook of Access to Justice 152; and A. Francis, Legal executives and the phantom of legal professionalism: the rise and rise of the third branch of the legal profession? (2002) 9(1) International Journal of the Legal Profession 5–25.

[109] The Solicitors' Disciplinary Tribunal can, for example, ban a solicitor's employee from working within a law practice without the consent of the Law Society. See Solicitors Act 1974 s. 43.

[110] ILEX Code of Conduct, available at www.ilex.org.uk.

[111] See further Francis (2002), op. cit.

[112] P. Bourdieu & L. Wacquant, An Invitation to Reflexive Sociology (Cambridge, Polity Press, 1992), at p. 24.

[113] Nelson & Trubek, op. cit., at pp. 22–23.

[114] In considering the notion of “warranted excuse”, Luban suggests that “deterministic excuses remain available whenever our judgement is corrupted by forces beyond our moral self—forces outside of us in the way that bad character in [sic? is] not outside of us” [Luban (2000), op. cit., at p. 116]. It remains open to question whether unethical conduct by a legal executive would merit “warranted excuse” on the basis of her/his subordinate position within the juridical field.

[115] In the US context see J. Pierce, Gender Trials: Emotional Lives in Contemporary Law Firms (Berkeley, University of California Press, 1995) on the dynamics of power at play in the lawyer/paralegal relationship, exacerbated by a gender dimension. See also Francis (2002), op. cit., at p. 20.

[116] Nicolson & Webb, op. cit., at p. 72; and State of the Bar, op. cit.

[117] Abel (2003), op. cit., at pp. 197–198.

[118] Ibid., at p. 275.

[119] See Ibid. (at pp. 41–43 and generally) on the Bar's consistent failure to make an effective case to the media.

[120] The Guardian (23 April 2004), at p. 1.

[121] Abel (2003), op. cit., at pp. 457–459.

[122] Interview with author in 1999, Interview M, Law Society Council. For further details of the larger project from which this interview is drawn see Francis (2002), op. cit.

[123] Abel (2003), op. cit., at p. 235.

[124] See Sommerlad (2003), op. cit., at pp. 213–215; and also Maiman et al., op. cit., at p. 81.

[125] Nicolson & Webb, op. cit., at p. 73.

[126] Hanlon (1999), op. cit., at p. 142.

[127] Flood (1995), op. cit., at p. 150.

[128] Y. Dezalay & B. Garth, Law, lawyers and social capital: ‘rule of law’ versus relational capitalism (1997) 6(1) Social and Legal Studies 109, stress the importance of what they term ‘relational capital’ in this context. See also Susskind's observations that corporate clients are prepared to pay for the expense of senior partners for their prestige despite the ability of more junior staff to do the work just as effectively and more cheaply (Susskind, op. cit.). Again the ‘cult of the individual’ poses interesting ethical dilemmas. On the one hand, such an individual may lack collegial support, and complacent arrogance may lead to unethical ‘frolics of her/his own’ which may be difficult to regulate. On the other hand, the individuality may focus the lawyer's attention on developing a much more informed sense of individual moral responsibility.

[129] Flood notes the pressures that firms are under to deliver services on a tight schedule across global differences which often require late-night and weekend working [Flood (1996), op. cit., at p. 189]. For a detailed analysis of the frenetic working lives of the largest law firms see Lee (1999), op. cit.

[130] Ibid., at pp. 18–30.

[131] Cited by Lee, Ibid., at p. 25.

[132] Johnson, op. cit., at p. 41. Such “social distance” is reinforced by the “tacit knowledge” employed by professions which is “relatively inaccessible … less subject to direct criticism” and gives professions “an aura of mystery”. See H. Wilensky, The professionalization of everyone (1964) 70 American Journal of Sociology 137 at 149.

[133] Johnson, op. cit., at p. 65.

[134] J. Griffiths-Baker, Serving Two Masters: Conflicts of Interest in the Modern Law Firm (Oxford, Hart Publishing, 2002), at p. 187.

[135] Sommerlad (2003), op. cit., at p. 205 cites a respondent (a commercial property lawyer) who notes that “commercial lawyers … tak[e] on the character of their clients”.

[136] Arthurs & Kreklewich, op. cit., at p. 54.

[137] Rhode, op. cit., at p. 4.

[138] Abel (2003), op. cit., at pp. 381 and 400.

[139] Boon & Levin, op. cit., at p. 78.

[140] See Ibid. at p. 73; and Maiman et al., op. cit., at pp. 80–81.

[141] See Abel (2003), op. cit., Chs 7 and 8 for a detailed narrative of this period. The replacement of legal aid with conditional fees in many fields also raises ethical dilemmas for practitioners. See for example Rhode, op. cit., at p. 7 on contingency fees in the US.

[142] See also R. Moorhead, Third way regulation? Community legal service partnerships (2001) 64(4) Modern Law Review 543 at 557.

[143] H. Sommerlad, Managerialism and the legal profession: a new professional paradigm (1995) 2 International Journal of the Legal Profession 159 at 171. CAB staff operating non-solicitor franchise agreements also experienced difficulty in conducting a relationship with their clients without being able to use their discretion in their interviewing strategies. See A. Francis, Lawyers, CABx and the community legal service: a new dawn for social welfare law provision? (2000) 22(1) Journal of Social Welfare and Family Law 59 at 69–70.

[144] Wall & Johnstone, op. cit., at p. 110.

[145] Between firms and the Legal Services Commission.

[146] H. Sommerlad, The implementation of quality initiatives and the new public management in the legal aid sector in England and Wales: bureaucratisation, stratification and surveillance (1999) 6 International Journal of the Legal Profession 311; and also Sommerlad (2001), op. cit.

[147] W. Simon, The Practice of Justice: A Theory of Lawyers' Ethics (Cambridge, MA, Harvard University Press, 1998); and using a less extreme approach, Nicolson & Webb, op. cit., at p. 115.

[148] Although Nicolson and Webb might argue that it is the very nature of these detailed formalistic codes that allows a culture of rule evasion to flourish (Nicolson & Webb, op. cit., at p. 278).

[149] Sommerlad (2001), op. cit., at p. 342.

[150] Ibid., at p. 344.

[151] Nor was it likely to be given the reported salaries in the sector, when compared to those achievable in the commercial field. Sommerlad's respondents reported salaries of “£17,000”, “£30,000 … because I['m]carried by the rest of the firm” and “cousins in Ford who get paid much more than I do”. In contrast, median profits per partner in the 26–80 partner practices were £154,000. See B. Cole, Trends in the Solicitors Profession 2001 (London, The Law Society, 2002), at p. 46. Partners in the largest firms earn considerably more. Sommerlad (2001), op. cit., at p. 358 citing Legal Week Student Special (29 March 2001) notes that the average reported drawings per partner at Slaughter and May are £870,000.

[152] Ibid., at p. 348.

[153] Ibid., at p. 350. See also A. Paterson, The final chapter (2004) 11(1&2) International Journal of the Legal Profession 51 at 55 on the “robust quality measures” introduced by these changes.

[154] Sommerlad (2001), op. cit., at p. 355.

[155] Ibid., at p. 359.

[156] See for example M. McConville, J. Hodgson & L. Bridges, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford, Oxford University Press, 1994), generally and at p. 279.

[157] Nicolson & Webb, op. cit., at p. 289.

[158] And it appears that this is something that to some extent the Law Society is beginning to recognise; “It is no longer the case, in a highly diverse profession, that one size of regulation fits all”. See J. Paraseka, Introduction, Representing and Regulating the Profession (London, The Law Society, June 2004).

[159] See Bucher & Strauss, op. cit.

[160] Even those accounts that emphasised segments (Ibid., at pp. 330–332) and distinctive arenas (Nelson & Trubek, op. cit., at p. 195), acknowledge the importance of a façade of homogeneity in presenting a vision of unity when negotiating with the state.

[161] D. Sugarman, Bourgeois collectivism, professional power and the boundaries of the state. The public and private life of the Law Society, 1825–1914 (1996) 3 International Journal of the Legal Profession 83 at 108.

[162] Y. Dezalay, Turf battles and tribal wars (1991) 54 Modern Law Review 792; and Y. Dezalay, Introduction, in: Dezalay & Sugarman (Eds), op. cit.

[163] Abbott, op. cit., at p. 106.

[164] Larson argues that a shared standardised knowledge “is in fact the main support of professional subculture” (Larson, op. cit., at p. 45, emphasis in original).

[165] Clementi [(2004a), op. cit., at p. 139] envisaged his proposals for LDPs (including non-manager owner LDPs) representing an important first step towards the establishment of MDPs. He did however acknowledge that there were important regulatory and ethical issues that needed to be resolved first.

[166] Abel (2003), op. cit., at p. 238.

[167] In interviews with the author, see A. Francis, Out of touch and out of time: lawyers, their leaders and collective mobility within the legal profession (2004) 24(3) Legal Studies 322; and in policy documents, for example Consultation Document: A New Law Society for a Changing Profession (London, Law Society, 2000). See also Law Society (2004), op. cit., at pp. 20 and 27. The Law Society does acknowledge that this is not easy “as a profession becomes larger, and as the degree of common experience amongst members declines” (at p. 30). However it asserts that these problems can be best resolved by Law Society control of the regulatory regime and “through the provision of a strong practising professional input in the operation of the regulatory structure”. It is not seen as a fundamental problem.

[168] Nelson & Trubek, op. cit., at p. 195.

[169] The Training Framework Review suggests that there will be continuing partnership between the professional associations, the universities and the recruiting profession. However, it remains to be seen whether this will substantially alter the recruiting profession's role as de facto ‘gatekeeper’ despite the importance of the other parties' involvement in training issues and the Law Society's own assertion that it is ‘gatekeeper’. Statement on Training Framework Review (London, Law Society, 1 June 2004).

[170] See Abel (2003), op. cit., at pp. 210–239.

[171] Abel (1988), op. cit., at p. 293.

[172] Abel (2003), op. cit., at p. 237.

[173] In an interview with the author, 1999.

[174] Hanlon (1999), op. cit., at pp. 142–146.

[175] See Bucher & Strauss (op. cit., at p. 330) on the necessity of such alliances.

[176] See Lee (1999), op. cit., at pp. 21–23. See further Francis (2004), op. cit.

[177] Larson, op. cit., at p. 52.

[178] Like Halliday [T. Halliday, Beyond Monopoly (Chicago, University of Chicago, 1987)], Paterson suggests that there is substance, rather than simply style, to the profession's side of the agreement [Paterson (1996), op. cit.].

[179] Clementi's proposals that there should be ring-fencing of the regulatory and representative functions [Clementi (2004a), op. cit., at p. 39], may not be sufficient to reconcile the fundamental tensions.

[180] Nicolson & Webb, op. cit., at p. 99.

[181] See generally Abel (2003), op. cit. on governing a fractious profession.

[182] See Hanlon (1999), op. cit.; Lee (1999), op. cit.; and Griffiths-Baker, op. cit.

[183] Nelson & Trubek, op. cit., at p. 22. See also Bourdieu, op. cit., at p. 811.

[184] Larson, op. cit., at pp. 70–74.

[185] This historically specific conception of professionalism is not uncontested, with criticisms levelled at the extent to which collectivity existed in the past, or the profession is fragmented today [see Paterson (1996), op. cit.]. Notwithstanding these points, I would argue that under traditional professionalism, the collective dimension was far more pronounced than it is likely to be under emerging conceptions of legal professionalism.

[186] Abel (2003), op. cit., at p. 486.

[187] See Abbott, op. cit., at p. 106.

[188] For an attempt to do this see, Law Society's Code of Conduct 2004, available at www.lawsociety.org.uk/professional/conduct/consult.

[189] See Lee (1999), op. cit.

[190] Nicolson & Webb, op. cit., at pp. 121 and 289. Clementi's Consultation Paper on the Review of the Regulatory Framework for Legal Services in England and Wales—March 2004, available at www.legal-services-review.org.uk (2004b), suggests that “a requirement for an in-house complaints handling process at practitioner level would be essential” at para. 23.

[191] Clementi (2004a), op. cit., at p. 127.

[192] Nicolson & Webb, op. cit., at p. 285.

[193] Clementi (2004a), op. cit., at p. 49.

[194] Law Society (2004), op. cit., at p. 48. Although this was accepted by Clementi, he proposed that the Legal Services Board should have power to insist on a formal institutional split [Clementi (2004a), op. cit., at p. 39].

[195] P. Williamson, Address to Members of Clifford Chance (March 2004), available at www.lawsociety.org,uk. Although, in its response to the Clementi Consultation, the Law Society's emphasis on core values of the profession and strategic arguments in favour of retaining regulation by the profession remained [Law Society (2004), op. cit., at, for example, pp. 21, 27 and 43].

[196] Boon & Levin, op. cit., at p. 92. Although the new, proposed code still provides a high level of detail, there are efforts to respond to the divergent needs of the profession. For example see the exceptions to the core duty to avoid Conflicts of Interest set out in 3.02, Law Society's Code of Conduct (2004), op. cit. This code is currently subject to consultation with Government and the Judiciary and is not expected to be in force before the end of 2005.

[197] H. Arthurs, A global code of legal ethics for transnational legal field (1999) 2(1) Legal Ethics 59; and Boon & Flood, op. cit. Interestingly, the Law Society is particularly keen to stress this aspect of its work in its response to the Clementi consultation (2004a), op. cit.

[198] Maiman et al., op. cit., at p. 75.

[199] Cf. Paterson (1996), op. cit., at p. 157.

[200] The Society of Trust and Estate Practitioners had hoped that Clementi would recommend that Will Writing and Estate Administration be regulated to “ensure higher standards of professionalism and better protect the consumer”. It also hopes to become a regulator of Probate. STEP Press Release ‘Clementi Highlights’ (16 December 2004).

[201] Although it is perhaps worth repeating Nicolson and Webb's warning to lawyers that “to be involved in a business rather than a profession does not excuse one from the human race” (Nicolson & Webb, op. cit., at p. 289).

[202] Ibid., at pp. 54–57.

[203] See Abel (1988), op. cit.; Abel (2003), op. cit.