Lawyers Research Paper

1. Commodifying Law

Lawyers, like law, have social preconditions. There must be a state: in acephalous societies, where power is dispersed among kinship groups and age grades, parties typically represent themselves. Secular power must be differentiated from religious: the priesthood performs legal functions in theocracies. There must be a market: administrators replace most lawyers in command economies. Power must be exercised through general rules: totalitarian states deploy force rather than law. The amount of law and lawyering vary with the proportions of state and nonstate social control, secular and religious authority, market and plan, legality and autocracy, as well as the distribution of wealth, power, and status (dispersed or concentrated, equal or stratified) and the nature of the economy (goods or services; land, natural resources, capital, and intellectual property).

But even if law is differentiated from informal social control, religion, plan, and diktat, lawyering must be commodified. Most societies value meaning and salvation (religion), health (medicine), physical comfort (engineering) even financial security (accounting) over justice (which is inherently ambiguous—one’s justice is another’s outrage). Knowledge occupations advance their professional project by capturing vital arenas: church, hospital, factory, stock market, tax office, court, document registry. (This advantages advocacy over transactional lawyering.) Potential clients must be persuaded to buy another’s services rather than represent themselves, as we do whenever we comply with or evade, mobilize, or resist law (Kritzer 1998). The division of labor makes generalist consumers dependent on specialist producers (although some societies may resist this in the name of revolutionary ideology or religion, e.g., Wahabi Islam). Lawyers draw upon the devices of other professions—ritual, dress, esoteric language—though they lack some of the most effective (technology, scientific validation). Legal knowledge can effloresce (like science) and decline (like religion). Although law is proliferating, its techniques have been challenged by economics and its legitimacy by legal realism and critical legal studies (including feminism, antiracism, and queer theory). Knowledge, to be commodified, must balance technicality and indetermination (Jamous and Peloille 1970): too technical and it becomes an algorithm consumers perform for themselves (ATMs replacing bank tellers); too indeterminate and the only performance criterion is artistic taste. This balance between theory and craft, symbolic and practical mastery, is related to the tension between university and apprenticeship (Schon 1987). Information technology is restoring some lawyering functions to more educated consumers (both individual and commercial). Constant change in the knowledge base influences the careers and turnover of personnel, professional fission into subspecialities, and the relationship between knowledge producers (teachers and researchers) and consumers (practitioners).

2. Controlling Supply

Once consumers have been persuaded that they need legal services, producers seek to dampen competition by limiting supply. In other markets producers control access to natural resources (South African diamonds, Zanzibari cloves, Chinese silkworms), capital, or technology (patents). Because services are incorporeal, control must be exercised over producers (Larson 1977).

2.1 Production Of Producers

Professions use guilds to control the production of producers (Krause 1996). Recruitment processes differ in who selects, when, and by what criteria. Many European law faculties admit all secondary school graduates but choose few to become judges; elite American and British law schools are intensely selective but place most graduates in prestigious firms. In the civil law world the state is the central actor, regulating the number of practitioners (there is still a numerus clausus for French notaires) and university places (the sole means of qualification), the difficulty of examinations, and employment in the magistracy and civil service. (Controlling supply has become increasingly important to the growing number of private practitioners produced by expanding universities and unable to obtain employment in the public or private sectors.) In the common law world, professional associations successfully erected numerous hurdles: apprenticeship (articles for solicitors, pupilage for barristers, entrants paying substantial premiums to work unpaid for years, barred from other sources of income), through which practitioners themselves limit competition; formal education (secondary school, liberal arts and law degrees, and accreditation of educational institutions); size and length of professional courses; number and difficulty of professional examinations; citizenship; residency; character examinations; even the number of starting positions (tenancies in the Inns of Court, assistant solicitorships in firms). The mass of lawyers sought shelter from competition; the elite were more concerned to elevate collective status. Functionalist social scientists, following professional apologetics, portrayed these barriers as quality assurance (Parsons 1964). Economists (Friedman and Kuznets 1945) and critical social scientists beginning with Weber (1978, see also Freidson 1970, Johnson 1972, Parkin 1979, Collins 1979) accused professions of preventing consumers from trading price for quality while failing to validate the hurdles against performance. Each national legal system insists its unique qualification process is essential for lawyers to perform tasks that vary little across national boundaries. But lawyers never mobilize most of the formal knowledge they must demonstrate to qualify (Genn 1987, Sarat and Felstiner 1995).

Until recently, ascribed characteristics dominated selection. Qualifying was very expensive. Apprenticeship and hiring allowed superiors to indulge class, race, gender, and religious biases. The French notariat could be inherited and bought. Indeed, traditional professions invoked the warrant of character, transmitted by lineage and acculturation and reinforced by collegiality (Inns of Court dinners) and example (during apprenticeship). Entrants conferred status on the profession rather than receiving it from the profession.

Because of its centrality to the state, the legal profession is under particular pressure to reflect societal demographics. Character has been largely supplanted by the warrant of expertise (associated with science), acquired through formal education and demonstrated by examination. Apprenticeship and employment are increasingly meritocratic. But that, too, reproduces inequality, leading some jurisdictions to adopt gender and race targets. Women are half of entrants in many jurisdictions, but they may have accommodated to legal practice rather than transforming it.

Supply control, like any cartel (e.g., OPEC), is constantly eroding. The monopoly rents it extracts increase pressure to enter and undermine the legitimacy of barriers. Novice lawyers, like doctors, engage in conspicuous production, partly to justify future privilege. All meritocratic hurdles can be surmounted. Both the university—synonymous with expertise— and private courses for professional examinations have incentives to increase production. It is difficult to deny mandatory apprenticeships to university graduates (if easier for the ‘market’ of legal employers to deny them jobs). Globalization undermines barriers to transnational migration. State funding for education becomes the new regulator (alternatively, graduates become virtually indentured to repay heavy debt). The rise of women entrants to numbers equal with men virtually doubled entry (though childrearing leaves created periodic shortfalls) (Epstein et al. 1999). Because of the lengthy qualification process, professions oscillate between over-and under-supply (Freeman 1975). The ratio of lawyers to population, constant or falling for the first half of the twentieth century (partly from exogenous causes like the Depression and world wars), everywhere rose dramatically in the second half (to about 1: 300 in the United States). Countries where less than 5 percent of aspirants succeeded (Japan, Korea, and Taiwan) have significantly relaxed their examinations.

Professions not only control the number and characteristics of entrants but also allocate them to roles. Although professions proclaim egalitarianism by virtue of their common qualification, all are stratified (Brint 1994). Civil lawyers traditionally accorded greatest respect to the magistracy, civil service, and professoriat, common lawyers to private practitioners (and advocates in divided professions) and the higher judiciary. Independent practitioners typically have enjoyed higher status than house counsel. With increasing individual inequality and economic concentration, private practitioners fission into two hemispheres, differing in the size and structure of the productive unit, clientele (individual or corporate, poor or wealthy, publicly or privately funded), and rewards (money, status, and power) (Heinz and Laumann 1982). Although the profession invokes meritocracy and ‘choice’ to justify stratification, parallels with gender and race tend to delegitimate the hierarchy (Epstein 1981, Thornton 1996, Sommerlad and Sanderson 1990).

2.2 Production By Producers

Once a profession limits entry it can manage competition among producers in order to enhance both economic rewards and (perversely) status by feigning indifference to material concerns (Abbott 1988). Lawyers secure state-protected monopolies or conclude market-division agreements with other occupations (concerning legal advice, land transactions, probate, authentication of documents, and advocacy) which they defend against ‘unauthorized practice.’ They allocate markets among legal professions—advocacy to barristers, conveyancing to solicitors. They stratify professional categories (Queen’s Counsel and junior barristers). They prohibit foreign lawyers from practicing domestic law or with domestic lawyers. In federal polities, they restrict practice to one jurisdiction. They limit firms to one office. They mandate overstaffing (Queen’s Counsel requiring a junior, barristers accepting briefs only from solicitors; conflict of interest rules requiring a lawyer for each party). They prohibit lawyers from seeking business—sometimes even from representing another lawyer’s client without permission—and require referral schemes to distribute business equally. They outlaw contingent fees and regulate fees (at least minima). They limit the size of partnerships or forbid them (barristers). They prohibit partnerships with or capital investment by nonlawyers and curtail the activities of lawyers employed by nonlawyers. That some jurisdiction rejects each of these rules argues that none is essential to preserve quality or protect clients.

Like controls on production of producers, these restrictions contain the seeds of their own destruction. Cocooned in the conveyancing monopoly (which generated more than half their income), English solicitors ceded taxation to accountants; proudly litigating, French avocats allowed conseils juridiques to capture commercial work. Lured by lawyers’ monopoly rents, claims adjusters, immigration advisers, and will writers encroach on legal work. Consumers frustrated by price, inaccessibility or inefficiency look elsewhere: to commercial arbitration or alternative dispute resolution (Dezalay and Garth 1996), accountants or other business consultants (Dezalay and Sugarman 1994), tax and administrative scriveners in Japan, offshore transactions or fora. Large consumers (guided by in-house lawyers) make firms participate in ‘beauty contests’; third-party payors (government, insurers, banks) dictate contractual terms. The erosion of control over production of producers intensifies competition among them. Fractions that had accepted subordination (employed barristers, conseils, juridiques, Syndici) demand equality. Disadvantaged lawyers may evade professional rules (chasing ambulances, advising an employer’s clients) or attack them frontally (test cases overturning minimum fee schedules, advertising bans, and limits on number of offices). Although judges are lawyers, their interests and perspectives differ from those of private practitioners.

The conjunction of a movement of consumers (enlarged and emboldened by postwar prosperity), who make demands like price quotations, and the growing hegemony of market ideology undermined restrictive practices. A successful challenge to one erodes the legitimacy of all others. English solicitors, forced to share land transactions with licensed conveyancers and mortgage lenders, challenged the barristers’ monopoly of rights of audience. The latter retaliated by extending direct access to professional and even lay clients, bypassing solicitors. When solicitors accused banks of tying conveyancing to mortgage lending, barristers charged solicitors with tying litigation to advocacy. The global economy (embodied in the European Union (EU), NAFTA, and the World Trade Organization) and communication technology have limited the ability of national professions to obstruct foreign competition (notwithstanding differences between the attitudes of exporters, like the common law world, and importers, notably France and Japan).

Restrictive practices are falling ever faster. The professional monopoly has contracted. Internal divisions have diminished or disappeared. Foreign lawyers can practice in more countries, form partnerships with domestic lawyers, and requalify to practice domestic law. Intranational barriers have been lowered or razed. Lawyers can advertise, and many do so aggressively, cutting prices to attract a mass clientele (Seron 1996). Jurisdictions abolished minimum fees, and more permit contingent fees. Public funding encourages competition between private practitioners and employed lawyers. Vertical integration is increasing, e.g., among estate agents, mortgage lenders, conveyancers, surveyors, and even moving companies. Multidisciplinary partnerships intensify competition between lawyers, accountants, and other financial advisers.

Lawyers have invoked new warrants—consumer choice and independence—against the state’s power as employer and paymaster. Practitioners discourage competition by withdrawing referrals from foreign lawyers or accounting firms who threaten their turf; banks respond by boycotting solicitors who engage in mortgage lending. Lawyers create subspecialities, defined by additional credentials and endowed with new monopolies (rights of audience in specialized courts, legal aid eligibility). Nevertheless, the real incomes of many lawyers have declined (though those of elite lawyers continue to rise, further differentiating the hemispheres).

3. Demand Creation

Producers can respond to market pressures by both curtailing supply and increasing demand. Although law’s adversarial nature means that for every action there tends to be an opposite (if unequal) reaction (like the escalation of offensive and defensive military strategies), lawyers displayed little collective interest in stimulating demand until the postwar era. Professional associations initially were suspicious of public subsidies, although significant fractions quickly became dependent on them, and professions studied lawyer use to demonstrate ‘unmet legal need.’ The rights revolution (in national constitutions and legislation and international treaties) conferred entitlement to legal representation in criminal, if not civil, matters. The erosion of supply control motivated some lawyers to seek clienteles through newly legalized forms of advertising.

Demand for legal services is highly elastic, influenced by the economy (size, concentration, proportions of goods and services, relative importance of natural resources, finance capital, and intellectual property), demographics (age, class composition), governmentality (informal social control, state regulation), globalization, frequency of legal events (divorce, crime, accidents, mergers, bankruptcies, housing sales), and rights consciousness. Lawyers can invent new legal claims (palimony) and transactions (premarital agreements, poison pills against hostile takeovers). But lawyers have never matched doctors and dentists in selling individuals preventive services. Demand creation can provoke backlash against litigiousness, waste, fraud, and lawyer greed. And the substitution of state payment for lawyer philanthropy (services rendered pro bono publico, or pro deo) can erode the profession’s tenuous symbolic capital.

Just as solicitors were seduced into the monoculture of conveyancing, so barristers became unduly dependent on legal aid and thus on a fickle, and increasingly parsimonious English state. Whereas professional efforts to control supply tend to unite the profession (or its subdivisions), efforts to create demand are either collective and largely futile or individual and divisive. They also accelerate concentration among providers. Although lawyers who charge private clients astronomical fees may be envied, ‘fat cats’ feeding at the public legal aid trough are reviled. Partly because that budget is large and growing, partly because lawyer-bashing elicits populist cheers, the state energetically seeks to control legal costs: fixing fees, capping budgets, and compelling price competition; shifting the burden to the parties (through contingent fees); substituting salaried lawyers for private practitioners, paralegals for lawyers, and parties for representatives (small claims court); and delegalizing entire domains of social life (divorce, accidents).

There are sharp disagreements about the consequences and desirability of extending legality. Some lawyers persuade clients to virtue, but others create legalistic obstacles and loopholes. Some see legality as essential to economic Activity (Weber 1978) or a natural bulwark against state power (Halliday and Karpik 1998). But capitalism antedated commercial lawyers and thrives in countries where they remain marginal (Japan, Korea, Taiwan). Clientelism, corruption, and terror coexist with equal or greater rates of economic growth, and entrepreneurs and their lawyers tolerate, even welcome, autocracy. While some observers extol the formal equality of law, epitomized by the icon of blindfolded justice, others show how formal equality amplifies substantive inequalities (Galanter 1974). Lawyers can aggregate the unorganized (personal injury victims, especially through class actions), but they also engage in union-busting. Some observers applaud the proliferation and enforcement of rights; others blame the victim culture and nanny state for economic stagnation and political correctness.

4. Relations Of Production

Whereas Weberian and economic theories of professions analyze the distribution of services, Marxist theories focus on relations of production. Extrapolating from the fate of nineteenth-century craftsmen, some have predicted the progressive deskilling of professionals. Certainly lawyers delegate much work to paraprofessionals (Van Hoy 1997), and information technology increasingly substitutes capital for labor (Katsh 1995, Susskind 1996). As multinational firms have grown to thousands of lawyers they also have extended the internal hierarchy among professionals: executive committee, equity and salaried partners, senior, junior, and permanent associates, and contract lawyers. If partnership no longer entails a financial investment, it does require human capital in the form of rainmaking (business-getting). Remuneration is changing from lock-step seniority to ‘eat-what-you-kill.’ Some firms have hired nonlawyer managers (beginning the separation of ownership and control, whose logical conclusion would be capital investment by nonlawyers). But, as Derber (1982) argues, the knowledge base of all professionals (including lawyers) constantly expands, protecting them from technical proletarianization while increasingly subjecting them to an ideological proletarianization: others determine why they will deploy their expertise, not how. Common law professions have seen the proportion in private practice decline relative to those employed by government and corporations (Spangler 1986). The large-firm practitioner’s heavy dependence on a few clients seriously compromises the claim to ‘independence’ (Nelson 1988). Monopsonistic state consumers make legal aid firms bid for contracts and then sweat profits out of their workers. Elite lawyers also have seen work conditions worsen and hours lengthen. That associates bill approximately three times what they are paid, while few become the partners who profit from this arrangement, has been explained as a tournament that compensates for the difficulty of monitoring the quantity and quality of work, partners leasing surplus reputational capital in a precarious pyramid scheme (Galanter and Palay 1991) and capitalist extraction of surplus value.

Theorists have speculated about the political leanings of the ‘knowledge class,’ but lawyers, like other professionals, exhibit more differences among themselves than with other occupational groups (Brint 1994) and tends to sing the tune of their paymasters (Derber et al. 1990). Although lawyers are greatly over-represented in most legislatures, they behave little differently from other occupational groups.

5. Collective Action

The core of all professions is the claim to collective disinterest (Durkheim 1933, 1957). The information asymmetry engendering professionals make them uniquely capable of protecting consumers. As lawyers multiplied and diversified, informal social control lost efficacy, but professional associations were slow in promulgating and lax in enforcing ethical rules. Lawyers are perpetually torn between client loyalty, personal morality, and obligations to the legal system (Luban 1988, Simon 1997). The dissatisfaction of increasingly assertive and organized consumers is forcing lawyers to improve their complaint mechanisms and exhibit independence from professional associations (perhaps adding lay members) under threat of losing self-regulation altogether. At the same time, external regulation proliferates: malpractice claims (and insurers), courts (supervising litigation), ombudsmen, competition authorities, supranational bodies (EU, NAFTA), and administrative agencies with jurisdiction over the host of ancillary services lawyers are beginning to offer (such as investment, mortgages, estate agency, and insurance). Within the profession, factions struggle over substantive rules (advertising, confidentiality) and the cost of regulation and mutual insurance funds.

Governance is similarly contested. Geographic and functional divides (e.g., barrister–solicitor) are being supplanted by specializations. The refusal of alienated lawyers to join associations forces them to choose between declining numbers and influence (aggravating free rider problems) and compulsion (limiting their capacity to represent members) (Halliday 1987, Powell 1989). Participation rates are low, belying democratic pretensions. The growing proportion of lawyers in public or private employment and large firms sees associations as irrelevant or hostile. Special interest groups proliferate, based on gender, race, religion, ideology, age, employment, firm size, clientele, dependence on public funds, and functional or substantive specialization. As associations aggressively pursue self-interest (in battles with regulators and oligopsonistic consumers) they abandon the disinterest grounding their claim to self-regulation. Furthermore, the usual forms of industrial action (strike, boycott, go-slow) are ineffective and impair professional status.

The changes sketched above have forced the legal profession to re-evaluate its collective ideology. Large consumers, even individuals represented by third party payors, disdain professional paternalism. Professional rules have been exposed too often as restrictive practices swelling monopoly rents to retain much public credibility (for instance, contemporary opposition to multinational and multidisciplinary partnerships, or employed advocates). The obscene wealth of highly visible lawyers (which provokes greater resentment than that of entertainers, athletes, or entrepreneurs) has, perversely, undermined the profession’s collective status, as shown by the proliferation of lawyer jokes and demeaning media portrayals. Self-regulation appears to favor the accused lawyer over the aggrieved client. Consequently, legal professions increasingly base their legitimacy on ‘independence.’ But this is an ambiguous value. Lawyers opposing state power on behalf of unpopular clients risk accusations of uncritical loyalty and indifference to crime victims. Few lawyers actually engage in criminal defense, especially of political dissidents, and those lawyers tend to be outsiders, not the establishment (Sarat and Scheingold 1998). If lawyers instead claim independence to pursue justice, clients understandably fear their representatives will seek outcomes (tort damages, divorce settlements, plea bargains) optimizing lawyer, not client, interest. Lawyers are derided as ideological when they invoke personal morality to reject clients or tactics. Legal professionals proclaim their independence by reforming law and legal institutions; but as they move beyond technicalities (where expertise is visibly relevant) to broader social issues—judicial appointments, the death penalty, discrimination, abortion, drug abuse—they risk appearing political. Paradoxically, just as earlier forms of legal professionalism nostalgically invoked aristocratic ideals of noblesse oblige and material indifference (Weber’s honoratiores) just when these were being rendered increasingly anachronistic by the market, so lawyers now proclaim their independence just when it is being increasingly threatened by employment, bureaucracy, subordination to large consumers, and external regulation.

6. The Future

Having relinquished control over supply to universities, subcategories are trying to reclaim it, but through credentialing more than licensure. As these specialisms are increasingly differentiated and stratified, legal professions move toward fission. Lawyers find it more difficult to justify restrictive practices, especially as consumers become more concentrated and sophisticated, resorting instead to flexing their own market power. Private efforts to stimulate demand provoke a backlash against litigiousness. States seek to control and even contract their legal aid budgets. Within law firms, productive relations are increasingly capitalist, as differences in control and reward widen. The divisions and hierarchy among lawyers, often mirrored by ascribed characteristics, greatly complicate both self-regulation and governance—the hallmarks of a profession. The professional constellation, which lawyers successfully struggled to attain in the nineteenth and twentieth centuries, is gradually being rendered obsolete by the combined forces of market and state.

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