Friday, May 19, 2006

Raw War and Ethics

Bruce Nauman's exhibition at the Tate Liverpool reflects his frustration with the human condition, hence RAW WAR in neon and a cacophony of sound the equivalent, he says, of being hit with a baseball bat. Nauman is trying to overcome the limitations of human interaction. One of these is that our values have gone awry.

In writing about professions as I do, the role of values and ethics is supposed to figure large in their activities. The demise of Enron and other companies shows us that lawyers and accountants have given up on ethics. Globalization intensifies this move. Parsons wrote about the orientations of actors on a range of dimensions, including values. This enables actors to coexist, ie, the Hobbesian problem of order. The prevailing value orientation today is the market. And if the market is to dominate our activities and values, perhaps the market should determine the ethical outcomes.

Enron's implosion brought about Sarbanes-Oxley, a box-ticking exercise in detecting proper behaviour in business. The market says, in effect, compete with me, which opens up the statute to a range of legal and business interpretations, some of which carry higher risk premiums than others.

In the UK, there is a reluctance to follow this path in favour of establishing "principles" to which people can adhere. The difficulty is that using principles necessitates shared value orientations, which are clearly absent in 21st century UK. Principles harkens to a 19th century version of gentlemanly practices where common schooling and university education inculcated a set of values that was understood if never articulated.

We see this being played out now. The Financial Services Authority has just lost a case against a "former pipe-fitter" on market manipulation. Why is it necessary to refer to him always as a former pipe-fitter? Well, he's not a gentleman, of course. Principles are not going to work. Only a market in regulation will suffice.

I'm afraid Bruce Nauman will continue to be frustrated, but at least he can portray that feeling with great artistry so that we can share it.

Wednesday, May 17, 2006

How to Keep Your Law Firm Clients Happy

New partners in law firms must be creative in thinking of strategies for bringing in new clients and retaining them. (This is in addition to doing the best work: this is taken for granted.) There are the usual round of events which includes lunches in good restaurants, boxes at football matches, or golf tournaments. Clients are in the lucky position of being able to choose among the array. Some events are familiar and liked for that reason while others induce lassitude--another lunch! It is difficult to be original. But when someone is, then it stands out.

Inviting a group of clients to the Eurovision Song Contest is an original event! A young partner at Olswang has done exactly this. The contest this year is being held in Athens, in the new Olympic Stadium. So it has the long tradition of an ancient city with a clutch of exciting new buildings and an occasion that much of Europe will be joining in. More information can be found at the BBC Radio 2 Eurovision Song Contest website, including videos of the countries' entries.

Although Eurovision is a frivolous affair, as confirmed by Terry Wogan's commentaries, in one small part of Europe it is a very serious matter. There are 37 songs in the contest and four of them are from the Balkans: Macedonia, Bosnia, Croatia and Slovenia, all ex-Yugoslav states. Serbia and Montenegro have had to drop out (but you can hear their song still on the Radio 2 site). For the second year running a Montenegro group, "No Name", were chosen much to the wrath of the Serbs. Matters weren't helped when the band draped themselves in the Montenegrin flag. Everything has come to a head because 24 hours after Eurovision Montenegrins vote in a referendum on whether they should claim independence from Serbia.

Kosovo isn't represented because it would have to sing under the flag of Serbia & Montenegro, so no Kosovo band is going to do that, added to which no Kosovo band would ever be picked. They are rooting for Albania. Bosnia, however, expects to pick up votes from Serbia & Montenegro's absence. It gets evermore complicated.

It will be interesting to observe the points distribution in this little corner of Europe--who gives and who receives "nul points"--and what the effects will be.

Thursday, May 11, 2006

Training Lawyers

The College of Law has won degree-awarding powers from the Privy Council. What this actually means won't be known for some time.

The College is a strange institution. Because of the UK's archaic form of legal education, those who want to be lawyers go through two stages. An academic one, which teaches students about law and legal institutions, and a vocational stage. This latter stage is supposed to teach students how to be lawyers. They are placed in cubicles and told to pretend they are lawyers. Apparently they are trained to draft documents and interview clients. Frankly, it's all mickey mouse stuff, primarily designed to extract more money from students and act as a barrier to the legal profession. Let's be clear about one thing: there is no intellectual content to the Legal Practice Course.

With the cost of becoming a lawyer rising to over £10,000, it is hard to justify the prices institutions are charging to learn how to shuffle pieces of paper. If these vocational courses had value, either educational or professional, perhaps there would be reason for them. Most are staffed by ex-practitioners who don't know what universities are for. Rarely do they do research and in most cases they are quite supine in letting bodies like the Law Society tell them what to do.

I suppose they exist in part to pretend that we have a single, cohesive legal profession in this country. We don't. There is, admittedly, a course that's designed for City law firms. And perhaps that will lead to more fragmentation. Andy Boon, Julian Webb and I wrote a piece about this in 2005.

Doing basic training, however, doesn't justify pretensions towards being a university. The day that the College of Law starts producing first-rate research will be the prime indicator for that. The basic rule is that universities produce knowledge. At the moment the College is no more than a legal further education college.

Happy Birthday Blog!

A very short entry to wish my blog a very happy first birthday!

(Started: 10 May 2005 at 16:41)

Tuesday, May 09, 2006

Lawyers as Legal Heliotropes: Professionalism and the Profession Today

I have just finished writing a draft paper titled, Resurgent Professionalism? Partnership and Professionalism in Global Law Firms. In it I attempt to examine professionalism in the context of global law firms. My argument is that to understand the legal profession and the role of law firms and lawyers in modern society, it's necessary to study both the structure--professional and organizational--of lawyers and the kinds of work they do. The two are interactive and can't meaningfully be divorced from each other. Many students of the legal profession do this, however, which produces partial results. Eliot Freidson's Professional Powers: A Study of the Institutionalization of Knowledge was an inspiring approach to analyzing professionalism in the context of work--it was empirically grounded.

Much of what we take as professional values were born in the 18th and 19th centuries and related to enterprises that were small, artisanal, and that required long apprenticeships helping to inculcate the true ideals. The 21st century is entirely different, especially with globalization. It has forced an expansion of work and geographical coverage that was never envisaged by professionalism.

Law firms such as Baker & McKenzie, Skadden Arps, and Clifford Chance are behemoths that straddle the continents, with more than 3,000 lawyers in them. They are primarily oriented to business, which shows in their own organizational structures. Whereas law firms emphasized the building of long term relationships with clients, firms such as Skadden went all out to create a new business model, one that was based on transactions not relationships. These large law firms are now far more hierarchical and corporate than firms used to be. Collegiality is on the wane. It's understandable: how can several hundred partners scattered around the globe be said "to know each other". It's impossible. The pictures of the Baker & McKenzie partners' meetings in Pioneering a Global Vision: The Story of Baker & McKenzie, by Jon R. Bauman are testament to this. Moreover, Bauman goes into great detail as to how Baker's "The Formula" worked to distribute partners' earnings. It is an "eat what you kill" system with rigorous parameters that was not designed to stimulate collegiality. It seemed to enforce manoeuvres towards hoarding work. (Clifford Chance, however, uses lockstep.) This is in contrast to Russell Baker's original vision of a democratic, global law firm in which all partners would know and respect each other.

At the other end of the spectrum is Wachtell Lipton, a firm that has explicitly aimed to stay small. At 190 lawyers, compared to most it is. It is unique in that it strives for a 1:1 partner/associate ratio, which means, in principle, every associate has a chance of making partner. Yet, like Skadden, they eschew the formation of long term lawyer-client relationships in preference to transactional business. It has the advantage of avoiding too many conflicts of interest. Thus it appears that Wachtell still embodies the earlier values of professionalism that have been lost in the global age.

Let me be clear, I don't want to enshrine 19th century values as a holy grail. Professions were exclusive to those who didn't fit because of gender, ethnicity and more. But to follow MacIntyre's ideas practice should generate internal goods of satisfaction and excellence, not focus on money and power. Professionalism treads a delicate step between the internal and external here.

Certainly, the old ideas of professionalism--except for the fact of doing good work--are absent from the normal run of law firms today. Law firms are far more industrialized in their work techniques and the ways they extract surplus from their associates. And with the dramatic growth in two-tier (or more?) partnerships, the extension of associates' probationary periods, the old tournament model no longer satisfies reality. Collegiality has been usurped by bureaucracy and managerialism, which now means that traditional models of professionalism are outliers rather than the norm.