Lawyers and Other Legal Service Providers
Abstract and Keywords
This article revolves around the issue of whether or not legal professions deserve their status as professions. It looks at how empirical literature addresses this issue, concentrating on lawyers working within law firms in common law systems. A discussion of the way the profession is structured, and the creation of elites within elites, has intersected with arguments about the demography of the profession. In addition, this article considers the literature that looks at the quality of lawyering. It compares, through a research study, how the quality of the work of non-lawyers compared with the work of formally qualified lawyers. This article concludes by considering how economic incentives are a necessary part of any market-based service and suggests a need of more nuanced understanding of professional competence and the contribution of professionalism to the quality of services.
I. Structures and Splits 787
VII. Conclusions and Beyond 799
The empirical literature on lawyers and other legal service providers contributes significantly to our knowledge of “who” the profession is, how it is organized, and how it operates and applies the law. To provide some framework to this Chapter, I have concentrated on a topic to which much of this literature speaks and one which is certainly of central interest to those interested in understanding the legal profession and how it should be regulated. That central question, faced directly or indirectly in most studies of the legal professions is, do the legal professions deserve their status as professions?
(p. 786) This Chapter looks at how the empirical literature addresses this issue in a number of ways. Most of the work concentrates on attorneys or solicitors in law firms. Advocates and barristers in particular have received less attention, as have civil law professions, at least in the English language. For reasons of space, this Chapter concentrates on lawyers working within law firms in common law systems. Work on professional regulation, including regulation of the legal profession, is dealt with in Chapter 12 of this volume. Section I considers literature which addresses the way the profession is structured. Here, in particular, the way that large, elite firms develop has been subject to critical scrutiny. It seeks to question whether growth serves client needs or professional needs and also whether the commercialization of practice drives a reduction in the ethical standards of the profession.
A discussion of the way the profession is structured, and the creation of elites within elites, has intersected with arguments about the demography of the profession. This brings us to the second stream of literature: a profession's legitimacy depends on entry to it being open and meritocratic. Work on gender and ethnicity suggests this is far from the case and that the profession is divided along class, gender and ethnic lines. Demographic divides mirror fault lines between work for commercial/wealthy clients and “ordinary” private client work (sometimes called personal plight work). This leads to the third section which looks beyond how the profession is structured to serve business and the wealthy, and takes a closer look at how lawyers serve ordinary clients. The essential thrust of this literature is that lawyers sell their (poor) clients short, providing sub-standard, sometimes even unethical, service to their clients. This contrasts with the discussion in the fourth section, which sees the commercial and reputational rewards of serving wealthier clients as suggesting that lawyers do too much “bad stuff ” for their rich clients.
Having considered the debates in the polarized contexts of big business and personal plight clients, the Chapter moves on to consider the literature which looks more generally at quality of lawyering. As we will see, while the empirical literature has often focused on the dimension of lawyers' performance as one of deliberate agency (that is competent lawyers deliberately selling out the poor against the state or deliberately advancing the interests of commerce against the public interest), there is also a set of literature that sees this as an issue of competence: (some) lawyers aren't deliberately amoral or immoral, they're just not very good at their jobs. The literature on lawyer performance takes a subtler turn when it looks at interactional and contingent approaches to understanding lawyer-client relationships. Sometimes lawyers perform badly (be it incompetently or unethically) because of systems and incentives; and at other times clients may demand unethical behavior to promote their interests over the interests of justice. Sometimes they perform to high standards and with ethical or political courage, although empirical explanations for that are less apparent. A point true of most scholarship is we are more content to understand the bad than understand the good.
(p. 787) Just as much of this literature is concerned with legitimacy, another leit motif is how economic incentives influence lawyers. This is particularly apparent in work on lawyers and their fee arrangements and reflects a recurring concern about relationships between supply and demand in legal services. This raises tricky normative issues around what lawyers do and what they ought to do, that are discussed in section V.
The final challenge to the legitimacy of the profession comes from research on non-lawyers in section VI. The research compares how the quality of the work of non-lawyers compares with the work of formally qualified lawyers. It poses the question: if non-lawyers provide similar or better quality than qualified lawyers, what is the basis for the elite status and protections from competition afforded to the professionals?
Economic incentives are often seen as threatening professional ideals, but the Chapter ends by considering how economic incentives are a necessary part of any market-based service and suggests that we need a more nuanced understanding of professional competence and the contribution, such as it is, of professionalism to the quality of services. The application of professional knowledge is classically beset by problems of indeterminacy: in applying uncertain knowledge to complex problems the “right” answer is likely to be unknown. Evaluating the application of that knowledge is similarly fraught.
I. Structures and Splits
A key starting point in discussing the legal profession is to acknowledge that when one talks of lawyers or the legal profession, one is talking of a range of different occupations. Many common law jurisdictions have formal or informal splits between litigators and advocates (or trial lawyers). In continental systems there are splits between notaries and advocates. In England and Wales, as well as barristers and solicitors, there are a host of other relevant professions: patent agents; trademark attorneys; insolvency practitioners; and tax advisers, some of which blur the boundaries between accounting and law. These splits are often institutionalized in historical divisions of labor and are not well researched in spite of the anti-competitiveness inherent in such sub-divisions (although see, for example, Shaw, 2006).
A less formally institutionalized, but increasingly profound, split, is that between corporate lawyers (who represent large, powerful organizations) and those who practice in personal plight cases for ordinary individuals. Most famously Heinz and Laumann 1982 saw the practice of law for individual clients and for large (p. 788) organizations (mainly businesses) as two (relatively) distinct hemispheres. The distinctions were not simply in the organization of work: social origins (especially ethno-religious background), prestige, career histories, mobility, social and political values, and professional and personal networks were found to be distinctive for the two groups (ibid: 128).
The concern about the splitting of legal services into two spheres is, in part, distributional. In answering the question, who gets more legal services from the profession, the answer is unsurprisingly those who pay the most. Indeed, it is commonplace to advert to the ways in which legal resources are heavily biased toward the interests of the wealthy (Galanter, 1974). This is the first of many ways in which it is claimed the profession subverts its claimed role as guardian of the administration of justice to economic forces: it serves the rich and powerful not the weak and needy.
Heinz and Laumann go further than the distributional point. If a profession is supposed to be built around the refinement of specialist knowledge, then lawyers are a special case organized not around areas of knowledge but around groupings of clients: “We do not say that law lacks theory but rather that its theory does not appear to organize the profession” (ibid: 138). This is partly because clients' problems are embedded in the social: problems are ultimately defined in the clients' language and should be solved in their world. Clients may want the lawyers to speak their language and empathize (ibid: 138–9), but also need to integrate legal solutions into the social contexts from which the problems derived. More fundamentally, this emphasis on the social (clients as the organizing construct), over the professional (a neutral body of specialist knowledge) casts some doubt on the objective value of legal knowledge. Furthermore, Heinz and Laumann emphasize the ways in which the “elite” hemisphere invert conventional norms of professionalism. In particular, autonomy—ordinarily a sine qua non of professionalism—is surrendered. “[L]awyers doing high-prestige work are less likely to define their client's problems than are lawyers doing lower-status work” (ibid: 140). Big clients, by virtue of their purchasing power and repeat client status, may have more power and exercise more control over purse strings and tactics (ibid: 141). Indeed, on this analysis, autonomy becomes somewhat irrelevant: “what enhances the status of a lawyer is not autonomy as a professional but access to centers of influence and avoidance of service to the powerless and despised” (ibid: 158). If Heinz and Laumann are right, a lawyer's professional status is parasitic. It is not derived from autonomy or other virtues but from the status of their clients. The elite distances itself from the more autonomous but less prestigious lawyers who provide services to low-status clients of personal plight (criminal defendants; divorcing spouses; and those who have suffered personal injury) (ibid: 158–9, citing Auerbach, 1976 and Carlin, 1962). This is partly because of a socio-political distaste among wealthy clients for the personal plight work of the poor, but also because of (a related?) belief that such practitioners, concerned with the seedier problems of individuals, are ethically questionable as a result. This is a theme returned to below.
(p. 789) More recent work has emphasized the spectacular growth of larger law firms (Heinz et al., 2005). There has been a vigorous debate about what has driven the growth of such firms and in particular whether it is internally driven by the need to incentivize salaried lawyers to perform well through a “promotion” to partner tournament (Galanter and Palay, 1991). The central point of this work is that firms must offer their salaried lawyers reasonably stable prospects of promotion to partnership as a form of deferred salary for their efforts as employees to prevent them defecting to other firms or shirking their responsibilities. To offer this stability, firms have to grow and grow strongly, even exponentially. This theory of law firm growth suggests that such growth is determined by the internal dynamics of law firms. It follows that the provision of legal services is driven not by client needs but the narrower economic interests of firms. Unsurprisingly, this theory has been hotly contested with other scholars suggesting that firm growth is better explained by external economic factors than internal firm dynamics (Sander and Williams, 1989). Galanter has, with Henderson, softened his own line (Galanter and Henderson, 2008).
While the normative benefits provided by the legal profession, particularly the commercial sector, in promoting “justice” are frequently questioned, the economic benefits of lawyers to society are much less often considered (Gilson, 1984). This is remarkable for a number of reasons. Lawyers occupy a pivotal role in many commercial transactions, levying significant costs along the way. The growth in the legal profession has been extraordinary, outstripping growth in the economy, particularly in the commercial sector (Heinz et al., 2005) but sometimes beyond that (Moorhead, 2004). Growth in lawyer income and lawyer numbers may give cause to wonder: are they worth it? Similarly, and importantly, growth in costs in the commercial sector has distributional effects: the more expensive law becomes at the top end, the harder it is for ordinary mortals to get access to justice because commercial demand for services drives up costs (Hadfield, 2000).
There has been significant interest in why there are so many lawyers and why growth has been concentrated in large law firms. Sander and Williams 1989 consider whether growth in the legal profession is driven by demand for or supply of lawyers. They find that increase in both demand for lawyers, in terms of services purchased, and supply of lawyers (graduating from law schools) explains the increase in the overall size in the market and the absence of substantial reductions in price. While increases in demand could be attributed to external drivers of growth in the need for legal services (such as increases in legal rights and their complexity) there was also a “scenario for self-sustaining growth” (ibid: 473) whereby corporate law firms could develop high-cost strategies for dealing with problems which were then met with similarly expensive counter-strategies. For high-value transactions or disputes, Sander and Williams argue these strategies are economically rational. If the investment in high cost legal strategies makes the desired outcome more likely, then that investment is likely to be economically beneficial.
(p. 790) Of course, even sophisticated clients may struggle to judge the relationship between their investment in lawyers and any marginal gain: legal services, like many professional and other services, are credence goods. Yet it is elsewhere that the critique of self-sustaining growth has been most forceful: that is where the government pays for lawyers (through legal aid programs). Reframed in the idea that lawyers engage in “supplier-induced demand” Bevan 1996 has sought to demonstrate that lawyers encourage more cases to be funded and more work to be done than would be the case if a consumer was perfectly informed and paying themselves. Through relating billing data to proxies for legal need, Bevan makes a plausible case, and the idea of supplier-induced demand has been seized on by governments around the world keen to control the legalaid budgets. However, other work has pointed to substantial causes of inflation in legal costs which are largely driven by the state: increases in the volume and complexity of legislation; prosecution policies; and increases in the volume of evidence resulting from use of new technology (CCTV for instance) (Cape and Moorhead, 2005).
II. A Meritocratic Profession? Lawyers and Diversity
That the structuring of the profession is both economic and social, points powerfully to a social apartheid within the profession. It flags as an issue, the extent to which the profession lives up to a key promise: “As a ‘learned profession’ avowedly devoted to high ideals, the bar professes the principle that attainment within the profession should be determined by merit” (Heinz and Laumann, 1982: 136).
The evidence consistently suggests the legal profession may profess meritocracy but they also fall short. The best example is a cohort study which tracked a group of over 4,000 undergraduate students through and beyond graduation and qualification in the English and Welsh legal profession. Six surveys were conducted between 1991–99 (summarized in Shiner, 2000). By tracking students as they attempted to progress through the profession, the study is able to look more closely at social and educational differentiation among them. Shiner et al.1 were able to examine whether particular groups were disadvantaged by particular socio-economic and educational backgrounds. The study provides powerful evidence of the difficulties particular social groups face in seeking entry into the legal professions. Crucially, through a cohort study tracking the same research subjects across a substantial (p. 791) period of time, Shiner et al. are able to look more closely at issues of agency (e.g., do ethnic minorities or women choose to go into particular areas of the law) and structure (e.g., are their choices significantly affected by barriers the “system” throws up) as determinants of career trajectories for different groups.
Unsurprisingly, Shiner et al. found that law students are typically a privileged group. With parental education and occupation being predominantly in the upper strata, they also were more likely than other students to have hailed from independent (fee-paying) schools (Shiner, 2000: 92). Conversely, ethnic minority and female students were more strongly represented in the population of students than census comparisons would predict; a trend common to students generally but particularly marked in law (ibid: 92–3). Students coming through the conversion route (i.e., doing a degree other than law and “converting” with a one-year law course) were more privileged, male and white than law students more generally (ibid: 94). This last group is interesting because they are lauded by big firms as providing extra skills from their non-law background while the same firms criticize law students for not knowing enough law even though non-law graduates will only have had one year of undergraduate-equivalent legal training.
It is the evidence of disadvantage which is most compelling. Law firms would typically claim to make their decisions purely on the merits of the candidates. Analysis suggests this is not the case. The study looked in particular at the allocation of training contracts, the two-year period of on-the-job training essential to becoming a solicitor. Allocation of these places is controlled by individual firms, not by universities or the professional body. Once a training contract is secured, it is likely to be completed, allowing the trainee to qualify as a solicitor, with the probability of career in the profession if they want it.
While the analysis showed that improved academic qualifications significantly increased the chances of securing a training contract, multivariate analysis established that certain socio-economic characteristics had an independent impact on the likelihood of students securing a training contract. Those receiving early offers of a training contract were particularly fortunate. They were most likely to receive financial support to meet the considerable cost of the vocational training course that predates their training contract. They were also most likely to be destined for the larger “elite” firms. Shiner et al. found that gender (a slight bias against women), ethnicity, school type, parental education, type of university, legal work experience (itself more difficult access for lower socio-economic groups), and the existence of close relatives in the legal profession all had an independent impact on the likelihood of a student getting an early offer, with early offers being most likely to be made by elite firms. The likelihood of late offers, more widely spread across the profession and less likely to bring financial support, was also independently affected by ethnicity, parental education, type of university attended, and legal work experience (Shiner, 2000: 118 et seq). Shiner et al. were also able to provide evidence that differences in destination were not explained by different preferences as to career trajectory.
(p. 792) For instance, the level of women getting training outside of private practice was not explained by a greater desire to work outside private practice (ibid: 113).
Importantly, evidenced biases were also mutually reinforcing: individual candidates not uncommonly had the “wrong” gender, ethnicity, and educational background which confounded their attempts to enter the legal profession. Based on their statistical model, Shiner et al. estimate that the hypothetical elite student has a 70 chance of entering the profession compared to only an 11 chance for a black woman with the same level of formal qualification (Shiner, 2000: 109).
Such statistics make sobering reading for any profession claiming to be meritocratic. A critique of the research would suggest that relying on degree results as one indicator of education qualification (as any such research probably must) inevitably disguises real differences between the quality of degrees given by each institution. Nevertheless, the research rightly created a furore at the time and forced the solicitors' profession, which commissioned it, to take diversity more seriously.
In a similar vein, there is an extensive body of empirical work on how women in the profession are marginalized or paid less. Interview-based studies are common (Webley and Duff, 2007). There are also econometric studies of pay differentials which tend to show that gender effects are not fully explained by human capital claims (i.e., the suggestion that women are paid less than men because their parental “career breaks” diminish their human capital, does not explain all the gender difference between salaries; see Wass and McNabb, 2006). While many in the professions point to bottom line figures which show increasingly large proportions of women and ethnic minority students entering the profession, stratification and exclusion continue to occur but more subtly. The lesson appears to be that if entry into the profession is less of a problem than it was, progression within it is not. A factor common in many of these studies, in spite of the divergence between quantitative and qualitative methodologies, is the extent to which the processes of organizing and allocating work within firms continues to impact on those outside the socio-economic elite. So, for example, a recent, quantitative study in the U.S. demonstrates significant attrition of black lawyers recruited to large firms. The author associates this with career opportunities for black lawyers being perceived to be significantly worse than those for white lawyers (Sander, 2006).
III. Lawyers Sell Their (Poor) Clients Short
Internal stratification within the profession is one thing, but is quality of service to clients similarly stratified? A number of studies have tended to emphasize the ways (p. 793) in which clients are poorly served by their lawyers and that work has particularly emphasized service to poorer clients, especially criminal defendants. Blumberg's study of criminal courts is a classic example (Blumberg, 1967). His principal goal was to challenge the view that defense lawyers act as adversarial protagonists for their clients' rights, instead pointing to the lawyer's leading role in persuading clients of the merits of pleading guilty. They often did this in the absence of confession evidence. Large numbers of clients indicated in interviews, perhaps reluctant to confess to wrongdoing to a researcher, that they were innocent or had been manipulated into pleading guilty (ibid: 34). The mechanisms through which lawyers were alleged to achieve guilty pleas was abuse of information asymmetry (the fact that lawyers know more about the law and the professional actors and so can pull the wool over their clients' eyes) and institutional dependence (the fact that professional links with courts and other professionals are much stronger than their links with individual, even repeat, clients whose position in the system is transient and inexpert).
Blumberg's picture of criminal justice might be criticized for being overly simplistic. There are obvious reasons why interview evidence from defendants protesting their innocence might be treated with skepticism. Similarly, Blumberg's conclusions are based on participant observation which is reported without being tied back to the actual evidence base. Thus, Blumberg speaks from experience rather than showing the evidence base on which that experience is founded. Yet it is a powerful, and in many ways an apparently accurate picture of how criminal defense lawyers have practiced as subsequent, more refined research has shown.
McConville et al. 1994 in particular conducted an exceptional study of criminal defense practice in England and Wales. It similarly suggests that criminal defense lawyers prioritize the interests of the state and themselves over their clients' interests. The research was conducted through meticulous direct observation of 48 firms over about four years of research time, covering solicitors' interactions with clients, prosecution and magistrates/judges at court, in the police station, and in their offices with cross-reference to solicitors' files in order to overcome an experimenter effect (ibid: 13–18). One key way in which the lawyers neglect the clients' interests is by treating all cases alike and, in particular, by making guilty pleas routine. The lawyers justify this through working practices that regard the best interest of clients as being well served by routine guilty pleas because clients generally have no legal or factual arguments to counter an overwhelming prosecution case. McConville et al. insist that this justification is unfounded. They report evidence of the ways lawyers manipulate their clients using their professional knowledge and status to persuade clients of the “good sense” in pleading guilty.
Why would defense lawyers do this? McConville et al. reject a traditional justification that lawyers are dependent on the police for client referrals, and they are skeptical of the explanatory power of Blumberg's claim that courts exert peer pressure on lawyers to coerce their clients toward compliance. Similarly, they are unconvinced that lawyers undergo a process of adaptation as they enter practice coming to learn (p. 794) that defendants are factually guilty. They surmise that no such learning process takes place because lawyers' beliefs in their clients' guilt arise from assumptions of guilt and not from legal judgments:
[T]hese beliefs are ideological and not the result of a technical legal assessment of the evidence in the case …. They are founded in part on the material experiences that legal advisers have with clients, in part on beliefs about the legitimacy of the prosecution case and its inviolability to attack, and in part on the failure of clients, as the undeserving poor, to survive the advisers' moral screening. They do not, however, arise out of a rational, technical legal assessment of the strengths and weaknesses of individual cases (McConville et al. 1994: 137).
Lawyers interview clients in a way likely to maximize the likelihood of the client admitting guilt and thus being susceptible to a guilty plea. In the examples given by McConville et al., clients are often not perturbed by the lawyer's approach and readily admit their guilt. The concern is not that clients are routinely innocent, but that the lawyers (or their paralegal clerks) do not interview clients with an eye to identifying a line of defense worth exploring; they do not in any meaningful sense evaluate the prosecution's evidence; and more generally, they are not as adversarial as the legal system seems to expect (although some legal ethicists debate whether they ought to be so adversarial even in criminal defense cases (Simon, 1998)). Sometimes, however, the lawyers were seen to be maneuvering resistant clients toward guilty pleas, when the evidence suggested those clients were innocent of the charges they faced.
To be sure, McConville et al. do not show that large numbers of innocent clients were convicted or that a more robustly adversarial approach to defense lawyering would have led to different outcomes. What their evidence does establish in a compelling and detailed way is how the organization of criminal defense firms and the detailed work practices of individuals in those firms fall well short of the general expectations of an adversarial legal system. Indeed, one of the reasons that McConville et al.'s study would never be able to show convincingly that innocent clients were routinely being convicted in large numbers is because the criminal defense system was operating without any significant evaluation by those clients' own lawyers of their clients' guilt on the evidence. The criticisms of McConville et al. have been echoed in other jurisdictions.
Further concerns about the quality of lawyers have been expressed in a number of studies (Moorhead, 2010). Some link concerns to the marginal nature of small practice (Carlin, 1962) see also (Seron, 1996). Personal injury has been an area of particular focus: methods have ranged across peer observation, interviewing, and assessment of outcomes (sometimes by peer review). Of particular concern have been weaknesses in bargaining strategies employed by lawyers and the impact of those strategies on outcomes (Genn, 1987; see also a small-scale but influential study suggesting that an approach to lawyer-client relations which is less patrician and more client-centered is likely to lead to better outcomes: Rosenthal, 1974).
(p. 795) These studies tend to have at their core concerns that lawyers, possessed of the professional power engendered by their knowledge and institutional role, exploit that knowledge to the detriment, or not sufficiently to the benefit of, their clients. Interestingly, another area where we might expect findings to be similar, given the existence of large numbers of lay clients in difficult circumstances, is family law. Relevant work suggests a much more contingent picture: a lawyer's performance is more intimately related to his client's expectations, the exigencies of the situation, and the professional style of individual lawyers. A particular theme has been to add complexity to the notion that professions are powerful and clients are weak: Sarat and Felstiner 1995, in particular, identified an interactionist approach—power shifts between lawyer and client more than mere simplistic notions of professionallay client relationships suggest. Interestingly, the evidence base provided by research on family lawyers is also more sympathetic to the work of lawyers (Davis et al., 1998; Eekelar et al., 2000; Mather et al., 2001).
IV. Lawyers Do Too Much for their Rich Clients?
One, albeit partial, explanation for lawyers serving poor clients badly is that such lawyers are poorly paid. Mann's work on white collar crime shows clearly how lawyers representing well-resourced, “white collar” criminal defendants provide a classically adversarial service (Mann, 1985). The reversal of autonomy engendered by commercial practice, where rich/large organizational clients with in-house expertise appear more able to dictate the approach to their legal problems and can (and do) devote huge resources to legal issues, suggests the potential for wealthy and commercial clients to lead their lawyers astray.
The legal ethics literature is replete with concern about the way in which commercial pressures on and within large firms may diminish the ethical standards of practitioners within those firms. A priori, the resources that clients can expend and the pressure those clients can exert on practitioners, coupled with the potential of adversarial legal paradigms to lead to relativistic thinking about what is ethical under the guise of treating the client's interests as paramount, provide a powerful set of reasons for thinking that big law firms do too much for big clients. A series of financial and other scandals such as those surrounding the collapse of Enron, U.S. Savings and Loans, and BCCI and the role of lawyers in tobacco litigation, all raise ethical concerns about “elite” lawyers, yet empirical evidence on this crucial area is thin on the ground.
(p. 796) There are a number of reasons why this might be the case: ethical violations are shielded by confidentiality and the lack of public fora in which positions taken in transactional and advisory work can be tested; powerful interests are well protected; and any analysis demonstrating that such transactions are in fact handled below ethical standards is highly contestable. Another reason is that larger firms may individually have stronger commitments to professional ethics (see Shapiro, 2002, but contrast Griffiths-Baker, 2002). The empirical work that imputes a negative relationship between lawyers and business usually does so indirectly from the structural and economic characteristics of large law firms. Nelson 1985 starts from this position, looking at the extent to which individual lawyers concentrate on the work of one client (making them vulnerable to pressure), while also probing for the extent to which and the circumstances in which lawyers give non-legal advice. Nelson uses non-legal advice as a potential proxy for advice which may have an ethical, as opposed to legal, content, but finds that the reasons for non-legal advice are found to be largely pragmatic and business-related rather than responses to broader ethical concerns. He then looks at the extent to which lawyers in such firms have turned down assignments for reasons associated with their personal values; 16 had, half of whom cited a professional ethical reason for so doing (often associated with alleged criminal or dishonest conduct on the part of the client). The vast majority (92) of those who had not turned down a case for such reasons said they had not handled a case which conflicted with their personal values. The lesson drawn is that lawyers in large firms do not have value conflicts with their clients and ethical conflicts do not therefore appear to arise. That, of course, leaves open the possibility that the corporate values of clients and their lawyers are aligned but unethical. Furthermore, ethicality is addressed indirectly and on the basis of self-reports.
Parker et al. (2009) challenge the simplicities of the professional paradigm (that lawyer professionals restrain misconduct by clients) and the skeptical paradigm (that clients co-opt their lawyers as agents of wrongdoing or are encouraged by lawyers' adversarial approach to play the system and employ tactics to avoid compliance obligations). They do so by looking at the ways in which lawyers influence the compliance of large corporations with competition regulation, sidestepping the problems of studies which rely on lawyer interviews and self-reporting by looking at what factors influence the clients in their choice of corporate lawyers. They conclude that some lawyers are gamesters (or resisters of compliance) whereas some lawyers encourage greater compliance because they are normatively committed to it. The same variability of predisposition is true of clients and one can influence the other. Whether a lawyer is a gamester/resister is not purely a reflection of their clients' inclinations: they are not always acting purely as agents and on occasion have noticeably less ethical approaches to compliance than their clients. In particular, in-house “lawyers are more likely to lead their organizations into a game-playing posture toward compliance when they are put in charge of compliance than business executives, company secretaries or compliance officers” (ibid: 49). Whether they are (p. 797) acting as agents or as leaders, they are likely to deny responsibility for increasing non-compliance with the law.
V. Quality, Cost, and the Indeterminacy Problem
Research which suggests that commercial legal services are too expensive, that commercial lawyers are too adversarial, or that personal plight lawyers are not adversarial enough, raises a set of tricky normative issues. The correct level of adversarialism is a key area of debate in the ethics literature. Work on the balance between supply and demand has been undertaken largely by economists who, like socio-legal empiricists have been reluctant to address normative issues directly. One reason may be that even a cursory understanding of the arguments readily supplies the answer that there is no clearly “correct” level of adversarialisms or right balance of supply and demand. More specifically, it is extremely difficult for empirical research to successfully disentangle issues of supply from issues of demand in a way that can plausibly determine optimal levels of cost and quality. In research comparing American and English fee-shifting rules, simply establishing whether those rules have an impact on incentives (to charge more) and on case selection (which cases are worth pursuing) is difficult enough, and dependent on natural experiments (Hughes and Snyder, 1995) or simulations (Coursey and Stanley, 1988). Interview-based work, triangulated with more objective data sets, has been used to counteract some of the more pervasive and misleading ideas about the ways lawyers do business using contingency fees (Kritzer, 2002; Moorhead and Cumming, 2008). Fenn et al. (2002) include a simple assessment of case merits within their model exploring the impact of conditional fees in England and Wales, and a quasi-experimental approach has been used to explore the interrelationships of quality and cost incentives utilizing a range of quantitative and qualitative methods (Moorhead et al., 2001). All of this work tends to demonstrate that economic incentives influence the ways in which lawyers work and the quality of that work but they do not answer the optimality question—what incentives work best?
Similarly there is no work which looks at the extent to which what lawyers do for their clients is “worth the money” in the commercial sphere. Here one might expect that question to be more capable of evaluation. Gilson's theoretical and experience-based articulation of the benefits of commercial lawyers tends to rest primarily on the assumption that if lawyers were not worth the money, commercial clients would not pay (Gilson, 1984) (itself a dubious proposition (Hadfield, 2000)), or that lawyers help save costs, or increase revenue through avoidance activity (McBarnet, 1994).
(p. 798) Similarly, while much of the evidence shows how lawyers respond to economic incentives, there is a struggle to evaluate the normative implications of such behavior. Two reasons for this normative difficulty can be emphasized. One is the inevitable need to trade off cost and quality: only naïve understandings of a professional duty to put the client first would fail to recognize that cost exerts some constraint on professional service. Secondly, ethical and economic understandings of professional service interact: there is what Tata calls “ethical indeterminacy.” Using mixed-methods empirical work to show how lawyers respond to fixed fees (they do less work with uncertain impacts on quality and outcome), he claims that professional judgments are of their nature uncertain and permit a range of strategies which may appear to be in the client's interests. In such circumstances, he claims, it is understandable that lawyers favor the more self-interested strategy (Tata, 2007).
The interface between economic incentives and professional values is likely to become increasingly important. Globalization has been impacting on the business practices of international law firms and the delivery of law for some time (see, for example, Dezalay and Garth, 1996). Relationships within and across professional firms, including relationships with and across law and other professions, are becoming more fluid. Work is not simply structured within firms (with, for example, an increased use of paralegals as fee earners) but across them (subcontracting of work to the Indian sub-continent for example). This raises questions about the identity and regulation of legal professions and about the structure and relevance of legal education and training and its transferability across jurisdictions (a particular issue in the EC but likely to become so elsewhere over time).
A not-unrelated phenomenon is a trend toward greater competition and deregulation. Multi-disciplinary practices are in place in some Australian states and are coming in England and Wales. There seems to be a general trend toward greater liberality in lawyer fee arrangements in countries where such arrangements have been tightly regulated or limited (see Jackson, 2009). Information technology and new forms of provision also blur the boundaries between professional and non-professional models of service as well as potentially transforming the very nature of that service (Susskind, 2009). These areas have not been much researched by empiricists to date.
VI. Comparing Lawyers with Non-lawyers
One of the concerns raised by an examination of the economics of legal services is that the legal professions rules and working practices inhibit competition and (p. 799) enable them to extract market rents (increase their prices beyond levels which are justified). A key area here is the extent to which professional rules inhibit the practice of law by service providers who have not gone through the full professional training and accreditation mechanisms. There is relatively little empirical work on non-qualified providers of legal service. Rules forbidding unqualified practice of law in the United States, and the general restriction of work that non-lawyers can do to more marginal or the less socially controversial work, limit the occasions on which non-lawyers perform work that can be compared with that done by “real” lawyers. Several studies acknowledge the importance of paralegals within practice, but relatively few look at the differences between the quality of work that they do and the work that lawyers do. Significantly, where this has been done, it has generally been observed that specialization, not professional qualification, is the key determinant of quality (e.g., Genn and Genn, 1989). Moorhead 2010 identified the ways in which non-lawyer providers sought to distinguish their service from traditional “stuffy” professional paradigms. Case outcomes, client satisfaction ratings, and the judgments of (specialist lawyer) peer reviewers of the quality of work done on casefiles, all pointed to non-lawyers being significantly better than lawyers at equivalent work. These differences have been replicated in several subsequent studies including one where researchers were trained to simulate clients and, unknown to the lawyers in question, approach them for advice; the level of incompetence by qualified, but non-specialist lawyers was of great concern (Moorhead and Sherr, 2003). Cumulatively, such work challenges the professional mandate claimed by lawyers but it is evidence confined to the areas where non-lawyers are permitted to practice. Professional monopolies are protected from empirical scrutiny in a way that more contested terrains are not.
VII. Conclusions and Beyond
This Chapter has only sketched some of the literature in what is a vast field. Significant volumes of work look at what goes on in big firms; and an area largely neglected here but not in the literature concerns in-house counsel and the increasing complexity of relationships within law firms and between law firms and other actors (Rosen, 2002). Some more novel research techniques have been employed such as network analysis (Lazega, 2001) and simulation (Gunz and Gunz, 2002; Levin, 1994). Certain ethnographic and interview-based approaches have tended to reveal a picture more sympathetic to the profession, particularly where the authors have selected radical lawyers as their focus (Sommerlad, 2001; Travers, 1994). Work on cause lawyering (p. 800) and lawyers' roles in the law and development field are also more suggestive of the transformative potential of lawyering (Sarat and Scheingold, 1997).
At the heart of many of the studies discussed in this Chapter are well-evidenced critiques of the legal profession, and at the heart of many of these critiques is money. That filthy lucre should shape the organization of lawyers and the ways they work is often treated as a perversion of the professional ideal; acid proof that lawyers come up short. After all, professionals are supposed to demonstrate a level of selflessness, a willingness to put their clients' interest before their own, particularly where their own economic interests conflict with their clients'.
One criticism of this is that it treats as critical what is in fact banal. Lawyers predominantly operate in market contexts, even where they are subsidised through legal aid programs. Quite simply, they cannot do what they do without getting paid. To a degree, they have to organize around what is profitable. If they do not, they will cease to exist. While one way of testing the idea of professionalism is to examine the extent to which its ideals are corrupted by the market, another approach is to investigate how ordinary market behavior is adapted by professionals. In some ways this may be a more mature approach. In comparing (legal) services provided in a purely economically rational manner with services provided in a professional manner, it might be possible to see the reverse of “market corruption of professionals.” We might be able to see how “professionalization” modifies market behavior so that professional services are more genuinely provided in the public interest. Such an approach might not see professionalism as an ideal compromised but rather as a positive, somewhat gentle, modifier of market's red in tooth and claw.
Similar points may be made about structuring and segmentation of the profession. Critiques of the profession's diversity tend to recognize but downplay the extent to which class, gender, and ethnicity structure most “elite” institutions. That is not an argument for resisting greater diversity within the profession, but it is an important acknowledgement that larger forces shape the legal profession. On the other hand, there is the powerful argument that a profession so strongly associated with notions of equality and legality has to lead in areas of social justice. Too often the profession does not appear to be leading, with arguments that the client wouldn't put up with it being used to trump higher ideals.
Another approach to understanding the array of research findings is to emphasize the importance of the way in which research questions are contextualized and of the benchmarks against which lawyers are compared. Saying that professions are none too bad is not an instant way to academic fame, particularly when the case has to be put on the basis that the profession is a “gentle modifier” of markets rather than a paragon of virtue. Where such research has emerged it has generally been in a context where the professions have been under attack. For instance, work that defends the personal injury bar and the use of contingency fees in the United States relies on a combination of surveys, observations in practitioners' offices, and semi-structured interviews with additional practitioners to defend practitioners against (p. 801) charges that they commonly take on and charge for cases irresponsibly (Kritzer, 2002; Kritzer, 2004) developed in the context of a vigorous political battle over tort law (Daniels and Martins, 1999).
It is tempting to suggest that underlying the substantive position of much research on lawyers is a symptom of the underdog syndrome: when lawyers appear powerful or rich, relative to us or their clients, researchers criticize them; when they are under attack, researchers defend them. Similarly there is the journalistic reflex to contend with. Positive stories about lawyers rarely make good (attention-attracting) news. Empirical research in this, as in many areas, is very sensitive to policy agendas and perhaps to a preference for the good story. Such research needs to be read in context. Equally, something perhaps more profound is suggested about the struggle to find clear normative benchmarks for judging lawyers. Lawyers work at the heart of social and economic controversies. In evaluating what they do, researchers have to grapple with major instabilities in our understandings of law and justice. To assess whether lawyers do a good job at a fair price one has to make judgments about the extent to which they take on “good” cases; deal with them in “good” ways—ethically, efficiently and purposefully; and the extent to which they reach “good” outcomes. Many, but not all, of the constituents of what would constitute “good” are contested, particularly when two lawyers represent clients with opposing interests. Many of the solutions to these normative dilemmas are dealt with by the system, by lawyers, and often dyadically by the parties. Such resolution as occurs usually takes place away from the scrutiny of courts; and with only a shadowy influence accorded to rules. This emphasizes the socially constructed and unregulated nature of this normative universe. What lawyers do, and who they are, thus plainly matters but the complexities of understanding and evaluating them are enormous.
Ethical concerns are perhaps preeminent among legitimacy concerns because they represent the most unsettling critique of what lawyers do and the way in which the legal system is perceived to work. In particular, the idea that lawyers protect their clients' interests above those of society goes to the heart of popular and ethcal debates about the legal profession. Empirical literature tends to reflect on the normative question of whose interests are preeminent differently depending on the context. The status and resources of clients are seen as critical in distinguishing commercial/rich client practice from personal plight/poor client practice. The literature also tends to invert popular preconceptions about lawyers (they are not routinely helping guilty clients “get off,” quite the reverse) as well as theoretical preconceptions about what defines professionals (contrary to theoretical constructions of professionalism “elite” lawyers are not autonomous). That said, when research turns to evaluating lawyers normatively and on their own terms the results are troubling for the profession's claim to legitimacy. The profession is not open to all solely on merit; criminal lawyers are not found to be as adversarial as the system or professional rhetoric demands; and, where they are permitted to compete, qualified lawyers do not perform better than non-lawyers. Empirical scholarship (p. 802) may challenge some of the popular stereotypes of lawyers, but it does very little to establish the legitimacy of lawyers as professionals. Generally, it has challenged that legitimacy.
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(1) Shiner et al. refer to the team of researchers working across the studies, which Shiner summarizes in the Chapter contained in the References section.