Friday, May 13, 2005

Fracturing Legal Profession

I and two of my colleagues, Julian Webb and Andy Boon, were recently asked to write an article for the Journal of Law and Society on the proposed Training Framework Review (TFR) put forward by the UK Law Society. Both Julian and Andy worked on this review for the Law Society and are fully conversant with its features. I am not. The journal editor said, "Make it polemical."

Our three interests intersect usefully. I have researched and written about the legal profession, especially about globalization and the profession. Andy has written about legal ethics and is involved in training and education. Julian writes about legal education and is one of the editors of Legal Ethics.

We split the writing into three sections with Andy introducing the article saying what the TFR was and what issues it raised; Julian is looking at the educational and contextual aspects; and my part was to make sense of it theoretically. All to be done within 6000 words! We each wrote our pieces without seeing the others'. Needless to say, when we discussed the three sections at lunch today, we could see that they didn't quite fit together.

A little background: To become a lawyer in the UK, one can take a law degree and do a one-year vocational course followed by an apprenticeship. Or one can do any degree then take an intensive one-year basic law course followed by the rest. In all it takes about six years to become a lawyer--solicitor or barrister. It's expensive, time-consuming and tends to deter a number of people from trying, especially those who come from less advantaged backgrounds, mainly working class and ethnic minorities. The TFR was set up to increase diversity. In its elements there would be a degree (any) which would then be followed by a mix of work experience, vocational courses, in house learning and so forth. The legal profession, conservative as it is, has reacted with some incredulity.

My initial take, which I am now modifying after lunch, is that this is a process of deprofessionalization. By concentrating on skills at the expense of knowledge, law becomes a set of technical tasks. Why then restrict it to lawyers alone? Secondly, it is a desparate ploy by the Law Society to retain control over a legal profession that is fragmenting into many parts that no longer have much to do with each other. The Law Society hopes that by auditing all these educational activities it will influence the growth of the profession.

But the problem for the Law Society is that it is a weak organization. During the 20th century it became quite powerful controlling entry to the legal profession, disciplining errant solicitors, and handling the legal aid fund for the government. Over time the Law Society has lost its power. It no longer controls legal aid. Lawyers made the budget go out of control. The UK spends over £2 billion a year on legal aid. That is about 17 times per capita what the US spends and about 4 time per capita what the Netherlands spends. We were profligate. Government now deals with legal aid. Consumer complaints against lawyers have risen dramatically in the last 30 years and the Law Society has not been effective in dealing with them and inspiring consumer confidence in lawyers. That part has also been outsourced. All that the Law Society has left is education.

The Law Society is trying to put itself forward as an association that represents all lawyers, regardless of whether they come from megalaw firms, small law firms, solo practice, law centres or in house counsel. This is a task reeking of desparation. The legal profession, as research has shown, has never been unified in the way that bar associations and law societies would like to maintain. My feeling is that groups like the Law Society are finding themselves bereft of a useful role in society. They think they can almost create a new profession by controlling and revising the educational process that produces new lawyers.

The TFR won't achieve it. As my colleague, Julian Webb, suggests, it is a post-Fordist approach to education. One that is moving away from the production line model to a more diverse and piecework model. One that it won't necessarily be able to control in a command sense, but one that it will influence by auditing progress, with all the dangers inherent in audit.

We wondered if there would be international or global issues emerging. The type of lawyer that engages in practice at this level is usually one working for a large law firm. And the types of work they do are often not dependent on cross-border education. A Dutch lawyer, provided his/her English language is good, can easily practise in the UK without obtaining a British law qualification. Admittedly there is a move in Europe to harmonize higher education, the Bologna movement, but it probably won't affect legal education and practice.

If anything, the TFR may well accelerate the fragmentation of the legal profession. Lawyers with different bundles of knowledge, skills and experience will be valued in diverse ways. I suspect some bundles will be more highly valued than others. It may well be a false promise.

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