Legal Professionalism Research Paper

In the United States, the experts authorized to do this work are called lawyers or attorneys. (But legal tasks often overlap with tasks that non-lawyers perform, as where lawyers and accountants alike may prepare clients’ tax returns.) They are trained, licensed, and regulated as a unitary profession, though many specialize. Comparable experts in other states may be divided into several legal professions, but the distinctions may change over time (Abbott 1988). In France, a ocats go to court, conseils juridiques advise, and notaires draft documents. In England, barristers once held exclusive ‘rights of audience’ in the courts while solicitors provided other services, but the lines are now blurring. For brevity’s sake, this research paper refers to all authorized legal service providers as lawyers and members of the legal profession or bar.

‘Legal professionalism’ refers to a cluster of values (see Sect. 1)—an ethic or ideology—that lawyers arguably share and that arguably influences their conduct. The concept has led two lives: as a folk concept for lawyers and as an analytic tool for sociologists. Lawyers find the concept normatively attractive as well as rhetorically useful, where they are politically diverse, for reaching a consensus in intraprofessional policy debates. Bar leaders ascribe the ethic to lawyers, hoping to justify the profession to the laity, or foster professional solidarity, or avoid external regulation (see Sect. 1.7). They also prescribe the ethic for lawyers, hoping to inspire them to serve clients well while also promoting legality or the rule of law. Sociologists, for their part, have cited professionalism to explain or predict lawyers’ conduct, to compare law practice in different times or places, or to compare lawyers with other occupational groups. They emphasize what legal professionalism has in common with the prevailing ethic or ideology in other professions (Friedson 1986), while lawyers see it as a ‘learned’ distinguishing characteristic.

Professionals, as opposed to amateurs, work to make money. Yet legal professionalism, according to scholarly defenders, implies pursuing a learned art as a common calling in the spirit of public service—‘no less a public service because it may incidentally be a means of livelihood’ (Pound 1953). So understood, the ethic appears to have precapitalist roots and might be expected to lose sway in today’s entrepreneurial world (Krause 1996, but see Larson 1977).

Just as lawyers’ work, clientele, and status vary from one legal system to another (Rueschemeyer 1973), so professionalism’s impact on lawyers appears to vary. Political or religious ideology can diminish its influence, as happened in the former Soviet Union. And yet, since its values are only weakly specified, professionalism may spur lawyers in dictatorships to resist state intrusions into lawyer–client relations even as it inspires lawyers in constitutional democracies to avoid such intrusions by forbearing to help clients commit illegalities (Friedman and Zile 1964).

1. Core Values Of Legal Professionalism As Lawyers Understand It

Legal professionalism urges lawyers, individually and collectively, to pursue or maintain these conditions: competence, client trust, independent judgment, a just distribution of legal services, the legitimacy of the legal process, a professional community, and selfregulation.

1.1 Professional Competence

Seen through the lens of professionalism, lawyer competence takes on a distinctive gloss. Lawyers must be learned in law and skilled in applying it. Since their knowledge and skills are esoteric, the quality of their work is to be judged by professional, not lay, standards. Of course, craftsmen also possess esoteric knowledge, viewed in their case as competence gained through experience. Lawyers in some states view their expertise in this way; lawyers elsewhere consider it grounded on theory, a ‘science’ to be studied at university (Weber 1954). Either way, incompetence so threatens vital interests that would-be lawyers should not practice law, or call themselves lawyers, without obtaining a license, which usually entails long study, exams, and/or apprenticeship. Once licensed, lawyers should continue to hone their skills. They do not simply work, they practice.

Lawyer competence exalts quality over cost. Lawyers should not so limit the scope of their engagements that clients must give up their right to competent service, even if the limits make services more affordable. In the name of ensuring competence, some bars have even forbidden lawyers to charge fees below floors promulgated in minimum-fee schedules. Recent attacks on these schedules illustrate the tensions between professionalism and market values. Doubting that the floors ensure quality, and suspicious of restrictions on price competition, some states have removed a ‘learned-profession’ exemption from antitrust laws and now treat the schedules as illegal restraints on trade or commerce. More generally, critics disparage many bar policies that pit professionalism against market values. They see professionalism as a policy-making bias, if not a mask for lawyer self-interest. Scholars fuel the fire by likening minimum fees to the practices of medieval guilds (Krause 1996). In return for setting and enforcing just prices and quality standards, princes gave guilds exclusive rights to make and sell their goods.

1.2 Promoting Client Trust Through Ethical And Fiduciary Duties

Competence is a cognitive achievement. But effective lawyering also depends on maintaining client trust, which is more a function of ethical commitment than of cognition. Professionalism urges lawyers to shoulder fiduciary duties to clients that exceed other service providers’ duties to customers. Consider the duty of confidentiality. Clients must reveal sensitive or compromising facts to their lawyers but they fear that such disclosures could be used against them. The duty of confidentiality and the related attorney–client ‘privilege’ counter this fear. If lawyer or client is summoned to testify in court about their private communications, the client may be privileged to suppress the testimony. Believing that clients need such protection in order to be candid, lawyers see no tension between keeping clients’ secrets and the societal goal of getting at the truth through adjudication.

Since information disparities enable lawyers to manipulate client demand, lawyers should also promote trust by giving clients disinterested advice about the services they need and not soliciting clients so aggressively that disinterestedness is put at risk. Lawyers, moreover, owe each client undivided loyalty. Ethical norms discourage engagements in which personal or third-party interests may conflict with client interests and thereby cloud a lawyer’s judgment on the client’s behalf.

Lawyers often enjoy considerable social status. Max Weber (1954) found the source of lawyers’ status in their knowledge base, while Emile Durkheim (1958) stressed their ethical or fiduciary commitments, which he saw as a product of professional socialization. But how well professionalization instills these commitments is unknown and in the past states relied instead on class, ethnicity, or family prominence to ensure lawyer trustworthiness. Before World War II, for example, only aristocrats and gentlemen became English barristers.

1.3 Independent Professional Judgment

Most engineers are not partners in engineering firms; they are employees in public or private entities run by others. Engineers are thus a learned, but not a ‘free,’ profession as lawyers aspire to be. Legal professionalism exhorts lawyers to remain free to exercise independent professional judgment, both in public life and in law practice. Yet, with 20 percent of the bar in North America and Western Europe now employed by businesses, public agencies, or state-subsidized offices serving low-income clients (Spangler 1986), lawyers worry that independent judgment is becoming unsustainable.

Like Edmund Burke, legal professionalism views public policy-making as a process of reasoned deliberation, not a mere reflection of power or toting up of preferences. On this view, the bar can facilitate policy-making in states prone to political gridlock by recasting some issues as apolitical questions of law reform and debating them in the idiom of legalism, which focuses less on substantive aims than on whether proposals are constitutional and cohere with existing legal principles (Halliday 1987). Professionalism also urges the organized bar to address lawmakers on behalf of a palpable public interest, not the parochial interests of lawyers or powerful clients.

In law practice itself, independence implies sufficient discretion to exercise sound judgment on behalf of clients. Professional norms warn lawyers not to defer to the wishes of third-party payers in deciding how to serve clients and, in a dwindling number of states, also forbid lawyers to take non-lawyers such as accountants as partners. English barristers and French a ocats have even been forbidden to form partnerships with others of their own kind lest their own capacity to exercise independent judgment be impaired.

But independence is not valued solely for the client’s sake. Lawyers must also withstand clients’ pressures to disregard third-party rights or the legal system’s institutional needs. Lawyers call themselves ‘officers of the court’ or ‘ministers of justice’ to stress this reason for maintaining independent judgment. Fearing that lawyers who work solely for one client (often a company) will be too client-dependent, some European bars forbid them to designate themselves publicly as lawyers, or represent their client in court, or shelter client secrets under the attorney–client privilege. On similar grounds, English barristers are not retained and instructed by their clients, but by their clients’ solicitors, who, as go-betweens, may shield barristers from overbearing clients.

1.4 Maintaining A Legitimate Legal Order Through A Just Distribution Of Legal Services

State licensing gives lawyers market power, while professionalism urges them not to leave the distribution of legal services solely to market forces, even as tempered by state subsidies for clients of modest means. Because legal services often affect non-clients as well as clients, client ability to pay is not a valid measure of the resources that a just legal order would devote to those services. For example, since the public has a general interest in the integrity of the criminal justice system, access to criminal defense lawyers should not turn on a defendant’s ability to pay, for indigents would then have no one to defend them and the validity of the state’s charges would be left in doubt. Subsidies are an imperfect solution, not just because they are often minimal, but because the state may so restrict the ways in which lawyers may use the funds that lawyers think they can no longer exercise independent judgment. Professionalism therefore urges lawyers to accept some engagements pro bono publico, i.e., for little or no pay.

1.5 Maintaining The Procedural Legitimacy Of The Legal System

Professionalism encourages lawyers to promote a legitimate legal order by preserving the integrity and rationality of legal processes. Lawyers should support the bar’s campaigns for law reforms that rationalize procedures, and should not abuse procedures in order to pursue clients’ aims. The tension between client interests and system-maintenance is a central theme in bar discourse.

1.6 Maintaining A Professional Community Through Bar Associations

As noted in Sect. 1.2, Durkheim thought professional associations could have a positive influence on their members. This is also a tenet of legal professionalism as lawyers understand it. Julius Henry Cohen, an American bar leader who was Durkheim’s contemporary, argued that

Lawyers must subordinat[e their] inclination, appetites, and ambitions to an organization which has as its object to promote the performance of a social function (Cohen 1924, quoting R. H. Tawney).

Since the bar must play superego to the lawyer’s instincts, Cohen believed unaffiliated lawyers cannot be wholly professionalized. He saw no risk that greater bar solidarity might lead to harmful restrictions on professional competition.

1.7 The Elaboration And Promotion Of A Professional Ethic Through Self-Regulation

‘Self-regulation’ can refer to the ideas that lawyers should be governed by internalized values rather than external rules, or regulated by the judiciary rather than the ‘political’ branches of government. More often it refers to the idea that the bar itself should provide regulatory oversight by formulating ethical norms to govern lawyers and maintaining a disciplinary system to censure, fine, or disbar violators. Formal sanctions become important once lawyers become so numerous, diverse, and unknown to one another that concern for their reputations no longer ensures compliance. Legal professionalism favors self-regulation largely as a way to obviate any need for regulation by the ‘political’ branches of government, which might not grasp or accept the lawyer’s role in society and might be too quick to sanction those who challenge the legality of state action.

2. The Uses And Contested Value Of Legal Professionalism In Sociology

Since the late-nineteenth century, scholars, notably sociologists, have found professionalism a useful analytic concept, though few have used it exclusively in studying lawyers. They have invoked professionalism, often as a variable, to (a) characterize an occupational mentality, (b) account for the conduct or relative status of occupations, (c) explain how occupations avoid outside regulation, (d) construct occupational taxonomies, or (e) trace the evolution of occupation toward an ideal type (Pound 1953). Until

1970, most scholars who deployed the concept were functionalists, such as Durkheim or Talcott Parsons (1954), who stressed the societal benefits of training lawyers to embrace the communal and anti-commercial values of professionalism-as-ethic. But since then, critical theorists have questioned its analytic value or validity, at least as used by the functionalists. The critical school views professionalism as a modern conceit or ideology that occupational groups use, wittingly or not, to mobilize themselves or to justify their autonomy, status, and market power to the laity (see, e.g., Larson 1977).

3. The Murky Prospects For Legal Professionalism As Ethic And As Ideology

Whether one views legal professionalism as ethic or ideology, it is clear that powerful forces are arrayed against its continued vitality (Krause 1996). Lawyers, especially those with business clients, cannot be insulated from the entrepreneurial values ascendant in much of the world today. Clients press them to form practice alliances with accountants and consultants, alliances that may be cost-effective but undermine intra-professional solidarity. Relentless specialization in response to law’s penetration into all aspects of life is generating specialty bars that threaten the viability of more inclusive bar associations. Specialization is also turning lawyers into technicians whose narrow skills lay competitors can often match (Kritzer 1998). In dynamic economies, moreover, lawyers cannot quench the demand for legal services; again inviting lay competition (Abbott 1988). Cost-cutting efforts to ‘unbundle’ or fragment traditional legal tasks, coupled with the transformation of some legal services into standardized products, are alsoveroding the distinctiveness of legal work. Finally, the proliferation of large, bureaucratically-controlled worksites for lawyers—mega-law firms, corporate law departments, public agencies, and subsidized legal aid offices—is in obvious tension with professional independence.

However, the cluster of ill-specified values summed up in the term ‘legal professionalism’ is not necessarily doomed to extinction. One can imagine counter forces that might sustain professionalism as ethic or ideology. Renewed respect for the rule of law and for legal dispute resolution techniques may accompany the ascendancy of commercial values, and specialization may be tempered by renewed demand for ethically committed lawyers who provide wise counsel based on wide understanding of law, legal traditions, and the virtues of legality.

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