2 - Professionalism re-assessed: what now for lawyers?

Summary

This book is about a crisis in the American legal profession. Its message is that the profession now stands in danger of losing its soul.

For the first time in fifty years or more a real battle is being fought to determine who controls professions and professionals … I refer to this struggle as a crisis in professionalism.

The crisis of legal professionalism. The future of professionalism in England and Wales is uncertain.

In this chapter I will examine how and why professionalism in lawyers is said to be in decline, and in so doing I will explore the contemporary understanding of what it means to be a member of the profession for the twenty-first-century lawyer. And, for those impatient to get to the end, I shall conclude by arguing that, despite everything, professionalism has been, and remains, a socially constructed concept that is the product of dialogues involving more than lawyers.

Solicitors: a profession in crisis?

Wherever you go in the English-speaking world, commentators have greeted the new millennium with the gloomy assertion that for lawyers the era of professionalism is in crisis, if not at an end. However, closer scrutiny of these jeremiads reveals that their apparent unity is indeed only apparent– they are not saying the same thing:

1. At one end of the spectrum are the commentators, like Richard Susskind (though in fairness there is no one quite like Richard), who anticipate the possible demise of the profession itself and presumably professionalism with it. His latest book, The End of Lawyers?, focuses on the inevitability of an increasing commoditisation of the work of lawyers and with it a degree of de-professionalisation, but adds somewhat ominously, ‘For those lawyers who cannot [adapt] … I certainly do predict that their days are numbered … The market … will increasingly drive out … outdated lawyers.’

2. At the opposite end of the spectrum is a critique that paradoxically is a product of the continued success of professions. Its complaint is that the coinage of ‘profession and professional’ is being debased, since there are more professions than ever, at least 130 at the last count according to the Panel on Fair Access to the Professions report, and allegedly one in three of the current workforce is now in a professional or managerial job. After all, if we are all professionals now, then in the words of Gilbert and Sullivan, ‘when everyone is somebody, then no one’s anybody’. If successful, this usage will mark the death of professionalism in an exclusive sense, ironically thereby removing part of the cachet responsible for the rampant pursuit of professional status in the last century. It is as though the older meaning of a professional– ‘a member of learned vocation’– has been replaced by a newer one– ‘one who earns a living from an occupation as opposed to the amateur who does it on an unpaid basis’. A similar, but less obvious, dilution of the meaning of ‘professional’ can be seen in descriptions of behaviour as ‘unprofessional’, for example, habitually turning up to work late, or not taking a ‘professional’ pride in what one does, in one’s appearance, courtesy or personal hygiene. In these contexts ‘professional’ has not lost all of its content of being ‘a good thing’, since it contains an explicit reference to standards, but such a usage strips out much of the other content from the term that once distinguished certain occupations from others.

3. The rising numbers of lawyers has troubled other commentators and, indeed, doubtless existing practitioners who fear that it will lead to an over-supply of lawyers, a decline in profitability, a shortage of work and ultimately the decline of the profession. Rick Abel, the foremost thinker on the legal profession in the Anglo-American world in recent times, of course, viewed the dramatic increase in UK lawyers over the last twenty-five years as a loss of market control by the occupation– in his eyes the death of professionalism as we know it.

4. The expansion of the profession has been accompanied by an ever increasing specialisation within the profession, and with it a diversification of work settings. The traditional image of the lawyer as an independent practitioner has given way to a world in which the significant majority of lawyers now work either as employees in larger law firms or as in-house lawyers. This dramatic shift stimulated the ‘death of the profession’ doom-smiths to posit the replacement of a collegiate model of the profession with a factionalised, heterogeneous and fragmented, but curiously non-diverse model.

5. Perhaps the most sustained critique of today’s profession, however, relates to the twin threats posed by consumerism and commercialism as the deregulation of the legal services market which began over twenty years ago steamrollers on. Anthony Kronman, the Dean of Yale Law School, is but one of several contemporary commentators to claim that the modern profession has lost its traditional ideals, its public spiritedness and its moral compass as our opening quote revealed. The fear is that when consumerism forced open Pandora’s de-regulatory box what flew out was not sin, but one deadly sin in particular: greed.