264 Q1 - Professionalism Essay PDF

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Professionalism Essay
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Lawyers are seen as professionals, however the precise definition of ‘professional’ is a matter of some debate. Some argue that professionalism is ‘a mystique, used to justify a privileged position and a monopoly on markets’ whereas others argue that professionals work for the benefit of the public, rather than themselves and will go to great lengths to ensure that the needs of their client are met. Legal professionalism in particular has always been a topic that has been debated within legal and public circles with the ‘uneasy juxtaposition’ of ‘the two faces of professionalism- the one monopolistic, even narcissistic, and the other benign, even altruistic’ and has recently been subject to more debate as the future of the legal profession is called into question. One of the many critics of the idea of legal professionalism is Abel who asserted that professionalism is in decline. Abel writes ‘‘I do not use the word "decline" pejoratively, to signify a lowering of ethical standards. Rather, I view professionalism as a specific historical formation in which the members of an occupation exercise a substantial degree of control over the market for their services, usually through an occupational association. I have chosen this concept of professionalism over others that stress technical expertise, or standards of competence and ethical behaviour, or altruism, because it seems to me to illuminate a great deal of the history and contemporary experience of English lawyers. There can be little doubt that nineteenth century solicitors consciously and energetically sought market control, and it is painfully clear that both branches of the profession today are deeply upset about threats to their continued exercise of such control. At the same time, English lawyers offer an especially apt context for exploring fluctuations in this concept of professionalism (a cycle that is visible in other countries as well). First, lawyers professionalised earlier in England than in other common law countries and also may be deprofessionalising sooner. Secondly, the divided English legal profession offers a natural laboratory for observing the choice of tactics in the professional project and their relative success or failure’ ‘In order to control the market for its services, a profession must seek to regulate not only the production of producers but also production by producers’ (Abel 1986). For Abel, occupations under capitalism seek to control their markets; otherwise they will be controlled by the market. His view of professionalism is not based on ethics or competence but on an ability to control the market of legal services. Abel’s market-control model is his attempt to explain the evolution of the legal profession. From a historical perspective, Abel’s model deploys two aspects of control to articulate this evolution: control of entry (becoming a lawyer) and control of work (jurisdiction). Abel also held that historically the legal profession successfully controlled entry. The methods comprised external gatekeeping structures determining entry into the profession, including state control, formal legal education, entry exams and apprenticeship (Katvan, Silver and Ziv 2012). Character rather that competence defined the lawyer. Increased diversity has reduced the profession’s ability to control entry. However it can be argued that if there is control today, it is exercised now by the market as there are too many students and not enough training contracts or places of pupillage. In response to this however, critics like Paterson call into question the effectiveness of control by the profession of entry when compared to other countries and legal systems e.g. Japan’s high failure rate in exams which could indicate a higher level of quality needed to enter the profession.

Abel also seeks to demonstrate how historically the legal profession successfully controlled the lawyers’ work: highlighting the significance in ‘monopoly’ rights; (solicitors in conveyancing and barristers rights of audience in the high court). Subsequent measures employed by professions to restrict competition have proved more problematic, and may involve e.g. fee caps, restrictions on advertisement and territorial battles with other occupations such as accountants, banks and CABs (Katvan, Silver and Ziv 2012). Monopoly rights make sound commercial sense as they eliminate competitors. The special position that the legal professionals in our society hold is, in part, based on the monopoly that they have on access to legal advice. It is central to this that lawyers can claim to be able to provide legal advice of a higher quality and legal services that are more trustworthy than those of others. According to Abel there has been a shift from professionalism to deprofessionalism, which is the result of increased bureaucracy. Evidence of this in lack of routine work which is now particularly vulnerable to technology i.e. ‘quickie online divorces’. Herring states that if people were to believe that accessing legal advice over the internet would provide just as accurate advice as legal counsel, the legal profession would be in trouble and with the rise of the internet and other resources such AS DIY guides on conveyancing, divorcing and the like it seems that the legal professionalism could very well be ‘in decline’. However this stance is questioned by critics such as Paterson who poses the question of whether brain surgeons who work in a bureaucracy, the NHS, are other than professional, and if not then surely the basis of professionalism as posited by Abel is fundamentally flawed in its description of legal professionalism. Alternatively to Abel, Herring also offers a critique of legal professionalism, which he calls in “crisis”. Herring posits that legal aid cuts and subsequent prevention of access to justice is an example of one of the ‘challenges to legal professionals’ today. As the costs for legal services have risen so has the legal aid budget however as a result of the financial crisis and cutbacks in government expenditure, the legal aid budget has been greatly reduced which according to Herring poses a serious challenge to the profession. This is certainly of concern for those lawyers who have lost their jobs, or seen their income fall not through lack of business acumen (Clementi 2004) but because of political decision-making to cut public funding. However it is unlikely over-all that this constitutes a ‘crisis’ and can more accurately be described by Herring as a ‘challenge’. For Paterson the characteristics of professionalism are being re-negotiated in the light of recent challenges to the profession for example globalisation of legal services, a more demanding and sophisticated clientele and increased competition.Paterson describes professionalism as a ‘socially constructed’ concept and writes that ‘the crisis is not of professionalism per se but for the traditional concept of professionalism - the one we have grown used to, forgetting that professionalism is a socially constructed one’. A more demanding and sophisticated clientele, increased competition, and the business culture of professionalism, will together hasten further commercialisation. According to Lord Neuberger the legal profession ‘is not merely another form of business, solely aimed at maximising profit whilst providing a competitive service to consumers’. He

goes on to say that he is ‘far from suggesting that lawyers ought not to seek to maximise their profits, or ought not to provide a competitive service. ‘What I am saying is that lawyers also owe overriding specific duties to the court and to society, duties which go beyond the maximisation of profit and which may require lawyers to act to their own detriment, and to that of their clients’. However this statement might be an indication of a wider problem with intergenerational perceptions of legal professionalism. A study by Felstiner and Bradshaw showed that when lawyers responded positively to the proposition that legal practice is ‘more like a business than profession’, the ‘age’ variable proved to be a strong indicator of response with 57% of those that responded positively being under 50 and 34% being over 50, this implies that the attitudes towards legal professionalism are rapidly changing and the onus has moved from the traditional elements that make lawyering a ‘profession’ to the profit that can be made from the monopoly whilst lawyers still hold it. Susskind, an early advocate of the significance of IT in lawyering, offers a view that can be seen as an extension of Abel’s work. He questions “What if we, as lawyers, could make our knowledge and expertise available through a wide range of online legal services?” and much of legal practice (legal process) Susskind argues, involves predictable patterns and processes, rendering the legal system amenable to algorithmic translation. The result of this will be a paradigm shift in legal practice. However not everyone is convinced by this and Greenbalm contends that the common law is as much about renegotiation of the principles of public order as it is about processes. Whilst this argument may address the common law jurisprudence of change it does not address the question of jobs, but a commentator who does address this issue is Semple who suggests the ‘human touch’ provided by personal plight lawyers offers them an advantage in the offshore-computerised-IT-paradigm world envisaged by Susskind. In conclusion …....