Saturday, April 01, 2006

Reflecting on the Legal Profession Sessions at the SLSA

When the papers for the legal profession sessions at the SLSA were being put together, I thought they were a disparate group to begin with. Topics like plaintiffs PI lawyers, gender discrepancies in the legal profession, changes in the funding of criminal legal aid and so on. (For more details on the individual sessions and papers, see here1 and here2.)

Now I have been away for a day or two, I am beginning to realize that there was a thread running through the papers that gave them a shared theme. The legal profession is often presented in the media and the arts as something rather stuffy and resistant to change. The wig and quill appear regularly in images of lawyers and courts. Yet this is wrong. The legal profession worldwide is facing unprecedented pressures for change. It may resist, but usually the economic forces are too strong. Joe Little showed how courts are prepared to reduce the barriers to expressions of client dissatisfaction with lawyers' quality of work. While Lynn Mather demonstrated that in some cases lawyers could be quite entrepreneurial in their pursuit of cases, especially when they were able to forge precarious alliances with the states in their actions against "Big Tobacco.

Organizationally, lawyers are being given a stimulus to create new forms via the Clementi proposals on the UK profession, as Fiona Westwood argued. However, McKerrell and MacMillan showed us the obverse that many of the classic forms of discrimination have a strenght in their persistence. But for Scottish lawyers who suddenly faced dramatic changes in the ways their legal aid cases were to be funded, as Tata and Stephen said, they were sufficiently imaginative in their responses to benefit. The most extreme case presented, by Burke and Hinton, was that of the wholesale reorganization of how the Australian legal profession would structure itself and its practices.

What can we draw from this? First, none of these changes came about from inward reflection of the legal profession: all were responses to external stimuli. Terry Johnson proposed three models of perceiving professionalism. One represented the classic formulation where the professional (lawyer) is the senior member of the professional-client duo. Professionals determine the outcomes and preclude quality judgments on their services. Patronage is where the client determines outcomes, as in those who commission buildings or artworks. The most interesting form for our purposes is Johnson's third category which he called "mediative". This is where a third party intervenes in the relationship and is able to determine outcomes in various ways.

The most powerful agent of intervention is the state (or government). Either through regulatory action or changes in funding principles for state-aided legal work, change can be promoted, often against the interests of the profession. Of course this is not to say that there is a necessary opposition between the parties here. There may appear to be antagonism, but it is accompanied by much collaboration. And collaboration can emerge when the benefits of change are not immediately perceived but only become apparent after time, as Tata and Stephen illustrate.

The state therefore has at least a double representation. On the one hand it seeks forms of good governance within institutions that have considerable impact on people's lives--law and medicine. On the other hand, it represents the powerless, the individuals who are unable to influence change unless consolidated. Most often in the case of professions this is the consumer. The state is the mediator.

Professions in their classic form have had their day. No longer can they be bastions of conservatism and stasis; now they have to be responsive and flexible aware of many interests. Change is now the constant factor that professions must live with and risk analysis is the norm. So be it--professions live in interesting times.

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