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Published online by Cambridge University Press: 14 January 2022
A lively debate progresses about change to the professions, including law, especially change in the form of managerialism. ‘Managerialism’ covers the methods and beliefs of managers within organisations, used to actively influence, evaluate, and ‘market’ professional work. But what about when that managerialism is change itself? How do we understand managerialism-as-change? This paper reports on an interview study with change managers, or ‘transformation leaders’ in the legal profession. Transformation leaders offer rich insights into the dynamics of professional change because they are incontrovertibly change agents. They are also themselves a form of managerial change as a new cadre of managers within the professions; managers with ‘hybrid’ identities whose legitimacy in professional settings is not assured. The findings presented include: the change leaders’ identities; the types of change being introduced; the constraints on and affordances for change in legal practices; and how change leaders secure, and sometimes struggle to secure, the authority needed to implement change. The concluding discussion highlights the study's contributions to our understanding of professional change and managerialism in the legal context – both what changes are being pursued and how they are materialising through certain ‘managerial’ goals, strategies, and the interactions of those with mixed identities and status.
Dr Justine Rogers is the Deputy-Director and Dr Felicity Bell, the Research Fellow, of the Law Society of New South Wales FLIP Research Stream at UNSW Law and Justice. A strategic alliance between the Law Society and UNSW Law and Justice, the FLIP Stream engages with the challenges of technological change and their impacts on lawyers, law, and the legal system. The authors acknowledge the funding support of the Law Society for the research reported in this article. We also thank Deborah Hartstein, PhD candidate at UNSW, for her research assistance; the participants of the research; and the two anonymous reviewers.
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13 See for example M Salomon ‘Lawyer personality and resistance to change’, Master's Thesis, INSEAD, 2014; and full discussion in Part 1(c).
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15 Part 1(a) outlines these changes.
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21 A notable exception in this law context examined in Part 1 is Empson et al's (2013) empirical study of the combined work of the managing partner (lawyer) and the management professional (accountant) in large law firms: L Empson et al ‘Managing partners and management professionals: institutional work dyads in professional partnerships’ (2013) 50(5) Journal of Management Studies 808; and Rogers et al, above n 18.
22 Ibid.
23 B Leca et al ‘Introduction: theorizing and studying institutional work’ in T Lawrence et al (eds) Institutional Work: Actors and Agency in Institutional Studies of Organizations (Cambridge: Cambridge University Press, 2009) p 1; T Lawrence et al ‘Institutional work: refocusing institutional studies of organization’ (2011) 20(1) Journal of Management Inquiry 52.
24 DK Holmes ‘Learning from corporate America: addressing dysfunction in the large law firm’ (1995) 31 Gonzaga Law Review 373; MS Winings ‘The power of law firm partnership: why dominant rainmakers will impede the immediate, widespread implementation of an autocratic management structure’ (2006) 55 Drake Law Review 165; SD Cameron ‘Globalization of law firms: a survey of the literature and a research agenda for further study’ (2007) 14(5) Indiana Journal of Global Studies 5; DL Spar ‘Lawyers abroad: the internationalization of legal practice’ (1997) 39(3) California Management Review 8.
25 Kirkpatrick et al, above n 3.
26 Kirkpatrick et al, above n 3, p 64.
27 Ibid. We note, though, that this discussion is limited by the archetypes and myths of professionalism – there was never pure professionalism and indeed, we recognise the downsides to professionalism, as practised, for things like client rights, and for the diversity and inclusivity of the profession.
28 Knowledge management is the systematic identification, improvement and use of an organisation's expertise.
29 B Fasterling ‘The managerial law firm and the globalization of legal ethics’ (2009) 88(1) Journal of Business Ethics 21; L Muir et al ‘Strategic issues for law firms in the new millennium’ (2004) 1 (2–3) Journal of Organisational Transformation and Social Change 179; D Muzio et al ‘Towards corporate professionalization: the case of project management, management consultancy and executive search’ (2011) 59(4) Current Sociology 443.
30 Kirkpatrick et al, above n 3, p 66.
31 Sommerlad, above n 20; G Hanlon ‘Professionalism as enterprise: service class politics and the redefinition of professionalism’ (1998) 32(1) Sociology 43.
32 Empson et al, above n 21, citing M Galanter and W Henderson ‘The elastic tournament: a second transformation of the big law firm’ (2008) 60 Stanford Law Review 1867.
33 G Hanlon ‘Professionalism as enterprise: service class politics and the redefinition of professionalism (with postscript: extinguishing professionalism?)’ in M Saks and D Muzio (eds) Professions and Professional Service Firms: Private and Public Sector Enterprises in the Global Economy (Taylor & Francis, 2018) p 72, p 79; H Sommerlad and L Ashley ‘The implications for gender of work in professional service firms’ in Saks and Muzio, ibid, pp 144–145; F Anderson-Gough et al ‘In the name of the client: the service ethic in two professional services firms’ (2000) 53(9) Human Relations 1151; WD Henderson Legal Market Landscape Report, Commissioned by the State Bar of California (July 2018); WD Henderson ‘From big law to lean law’ (2014) 38 International Review of Law and Economics 5.
34 G Hanlon Lawyers, the State and the Market: Professionalism Revisited (Macmillan Press, 1999) p 180.
35 Despite the impacts of Covid-19: see eg T Babbitz et al ‘COVID-19: implications for law firms’ (McKinsey & Company, 4 May 2020), https://www.mckinsey.com/industries/financial-services/our-insights/covid-19-implications-for-law-firms.
36 American Bar Association ‘2019 profile of the legal profession’ Report; Law Society of England and Wales ‘Diversity profile of the profession 2014: a short synopsis’ (June 2015); L Ashley ‘Making a difference? The use (and abuse) of diversity management at the UK's elite law firms’ (2010) 24(4) Work, Employment and Society 711; H Sommerlad et al Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barriers and Individual Choices (London: Legal Services Board, 2010).
37 Popularly, those born between 1981 and 1996.
38 Henderson (2014), above n 33, at 8; S Daicoff ‘The future of the legal profession’ (2011) 37(1) Monash University Law Review 7 at 30; J Williams et al ‘Disruptive innovation: new models of legal practice’ (2015) 67 Hastings Law Journal 1 at 17.
39 Williams et al, above n 38, at 13‒14. Others, however, are sceptical about these developments, pointing to the longevity of the partnership structure, continuing dominance of very large firms, problems with NewLaw itself, and that inclusivity may be less substantial than it might seem on its face: Galanter and Henderson, above n 32; S Ackroyd and D Muzio ‘On the consequences of defensive professionalism: recent changes in the legal labour process’ (2005) 32(4) Journal of Law & Society 615; M Thornton ‘Towards the uberisation of legal practice’ (2019) 1 Law, Technology and Humans 46; American Bar Association, above n 36, p 47.
40 M Kay ‘What junior lawyers want’ (2019) 169(7830) New Law Journal 19 (‘Deloitte (Chelsea Ritschel, The Independent, 2018) found that 43% of millennials plan to leave their job within the next two years, with only 28% hoping to stay beyond five years. Reasons cited were that businesses were more focused on profit, selling services, and improving efficiency, rather than developing opportunities and wellbeing for their employees); R Kiser ‘Why lawyers can't jump: the innovation crisis in law’, Legal Innovation, 4 October 2020, https://www.legalevolution.org/2020/10/why-lawyers-cant-jump-the-innovation-crisis-in-law-205/.
41 Collier, above n 20; A Mentkowski ‘Law firm marketing in the age of social media: a toolbox for attorneys’ (2015) 36 Northern Illinois University Law Review 1.
42 JL Jacobowitz et al ‘Cultural evolution or revolution? The millennials’ growing impact on professionalism and the practice of law’ (2016) 23(4) The Professional Lawyer 20; Kay, above n 40.
43 ‘In the new entities, referred to variously as firms, platforms or networks, neither physical presence, place nor time are important. The ultimate manifestation of the “Uber lawyer” is an independent contractor wholly dependent on technological innovation, who chooses what work to do, where to do it and when to do it’: Thornton, above n 39, at 47.
44 For instance, the rapid shift to ‘remote’ working and court appearances: see eg M Ryan et al Remote Hearings in the Family Justice System: Reflections and Experiences: Follow-up Consultation (Nuffield Family Justice Observatory, September 2020).
45 E Carroll and S Vaughan ‘Matter mills and London-lite offices: exploring forms of the onshoring of legal services in an age of globalisation’ (2019) 22 (1–2) Legal Ethics 3.
46 Ibid, at 7; R Susskind Transforming the Law: Essays on Technology, Justice and the Legal Marketplace (Oxford: Oxford University Press, 2000).
47 J Flood and L Robb ‘Professions and expertise: how machine learning and blockchain are redesigning the landscape of professional knowledge and organization’ (2019) 73(2) University of Miami Law Review 443 at 471, citing Deloitte Developing Legal Talent: Stepping into the Future Law Firm (Report 2016).
48 F Bell et al ‘Artificial intelligence and lawyer wellbeing’ in M Legg et al (eds) The Impact of Technology and Innovation on the Wellbeing of the Legal Profession (Intersentia, 2020).
49 N Semple et al ‘A taxonomy of lawyer regulation: how contrasting theories of regulation explain the divergent regulatory regimes in Australia, England and Wales, and North America’ (2013) 16(2) Legal Ethics 258.
50 For a discussion of this in the Australian legal context, see J Rogers et al ‘The large professional service firm: a new force in the regulative bargain’ (2017) 40(1) University of New South Wales Law Journal 218; see also J Flood ‘The re-landscaping of the legal profession: large law firms and professional re-regulation’ (2011) 59(4) Current Sociology 507.
51 DM Brock et al ‘Understanding professionals and their workplaces: the mission of the Journal of Professions and Organization’ (2014) 1(1) Journal of Professions and Organization 1 at 5, citing R Greenwood et al ‘Ownership and performance of professional service firms’ (2007) 28(2) Organization Studies 219. P2 refers to large ‘professional partnerships’, coined by Greenwood, Hinings and Brown: see R Greenwood et al ‘“P2-form” strategic management: corporate practices in professional partnerships’ (1990) 33(4) Academy of Management Journal 725.
52 O Mendelsohn and M Lippman ‘The emergence of the corporate law firm in Australia’ (1979) UNSW Law Journal 78 at 82–83.
53 Campbell and Charlesworth, above n 16, at 89–122.
54 Ibid, at 110–111.
55 Ackroyd and Muzio, above n 39; S Ackroyd and D Muzio ‘The reconstructed professional firm: explaining change in English legal practices’ (2007) 48(5) Organization Studies 1.
56 H Sommerlad ‘Managerialism and the legal profession: a new professional paradigm’ (1995) 2(2–3) International Journal of the Legal Profession 159.
57 For a study of legal project management, see Rogers et al, above n 18; F Bell ‘Legal design: a primer’, Law Society of New South Wales Flip Stream, 2020.
58 See fn 23 and accompanying text for term, ‘institutional work’.
59 Empson et al, above n 21.
60 As one example, business coaches have been described as ‘haunted by ontological insecurity’ in their efforts to secure legitimacy as an industry: SR Clegg et al ‘Desperately seeking legitimacy: organizational identity and emerging industries’ (2007) 28(4) Organization Studies 495 at 509.
61 For a discussion on how managerialism can and does support or overlap with ‘traditional’ professionalism, see Noordegraaf, above n 1; A Olakivi and M Niska ‘Rethinking managerialism in professional work: from competing logics to overlapping discourses’ (2017) 4(1) Journal of Professions and Organization 20.
62 For a history of professional management, see Kirkpatrick et al, above n 3.
63 J Kitay and C Wright ‘From prophets to profits: the occupational rhetoric of management consultants’ (2007) 60(11) Human Relations 1613.
64 C Wright et al ‘“Hippies on the third floor”: climate change, narrative identity and the micro-politics of corporate environmentalism’ (2012) 33(11) Organization Studies 1451.
65 Clegg et al, above n 60.
66 J Hendy and J Barlow ‘The role of the organizational champion in achieving health system change’ (2012) 74(3) Social Science and Medicine 348.
67 Pragmatic legitimacy is where managers are seen, ‘based on a self-interested calculation’, as beneficial or trustworthy. Moral legitimacy ‘incorporates a positive normative evaluation’ of the managers and what they do, using social reasoning (not personal). Finally, cognitive legitimacy is granted to managers who ‘render the world comprehensible or taken-for-granted, reducing anxiety and militating against dissenting views that an existing order is in fact arbitrary and could be altered’, as adapted from AD Brown and S Toyoki's definitions, from their research into the types of legitimacy given by individuals to organisations (here, inmates to their prison), ‘Identity work and legitimacy’ (2013) 34(7) Organization Studies 875 at 878 (citations omitted).
68 Professionals in multidisciplinary workplaces must also make legitimacy claims: T Sanders and S Harrison ‘Professional legitimacy claims in the multidisciplinary workplace: the case of heart failure care’ (2008) 20(2) Sociology of Health and Illness 289.
69 Leca et al, above n 23, p 11, citing F Blackler and S Regan ‘Institutional reform and the reorganization of family support services’ (2006) 27(12) Organization Studies 1843.
70 B Burnes ‘Emergent change and planned change – competitors or allies? The case of XYZ Construction’ (2004) 24(9) International Journal of Operations & Production Management 886; J Van der Voet et al ‘Talking the talk or walking the walk? The leadership of planned and emergent change in a public organization’ (2014) 14 Journal of Change Management 171 at 174; B Burnes ‘Kurt Lewin and the planned approach to change: a re-appraisal’ (2004) 41(6) Journal of Management Studies 977.
71 Stacey and Shaw's ‘complex responsive processes’ models: RD Stacey Complex Responsive Processes in Organizations: learning and knowledge creation (Routledge, 2001) and P Shaw Changing Conversations in Organizations (Routledge 2002), cited in E Cameron and M Green Making Sense of Change Management: A Complete Guide to the Models Tools and Techniques of Organizational Change (KoganPage, 3rd edn, 2012) p 145.
72 Cameron and Green, above n 71, p 117.
73 Van der Voet et al, above n 70, at 174.
74 Lewin's work continues to underlie many accounts of change: Burnes, ‘Kurt Lewin’, above n 70, at 986, citing C Hendry ‘Understanding and creating whole organizational change through learning theory’ (1996) 48(5) Human Relations 621 at 624. Lewin argued that a successful change project involved three steps: unfreezing, or upsetting equilibrium to enable new behaviour; moving through a trial and error process; and refreezing so as to prevent regression: Burnes at 985–86, citing K Lewin ‘Frontiers in group dynamics’ in D Cartwright (ed) Field Theory in Social Science (London: Social Science Paperbacks, 1947); TG Cummings and EF Huse Organization Development and Change (St Paul MN: West Publishing, 4th edn, 1989).
75 Van der Voet et al, above n 70, at 173.
76 Ibid, at 174.
77 L Richard ‘Herding cats: the lawyer personality revealed’ (2002) 29(11) Report to Legal Management 2; J Foster et al ‘Understanding lawyers: why we do the things we do: results from the Hogan Assessment Project of Lawyer Personality’ (White Paper, Hogan Assessment Systems and Hildebrandt Baker Robbins, 2010); DL Rhode ‘What lawyers lack: leadership’ (2011) 9 University of St Thomas Law Journal 471, Salomon, above n 13.
78 Richard, above n 77, at 5; Foster et al, above n 77, p 7.
79 See, for example, N Kelk et al ‘Courting the blues: attitudes towards depression in Australian law students and lawyers’, Monograph 2009-1, Brain and Mind Research Institute and Tristan Jepson Memorial Foundation (January 2009); Law Council of Australia National Attrition and Re-engagement Study (NARS) Report (February 2014); C Kendall Report on Psychological Distress and Depression in the Legal Profession (Law Society of Western Australia, 2011).
80 S Oreg ‘Resistance to change: developing an individual differences measure’ (2003) 88(4) Journal of Applied Psychology 680 at 681–682.
81 Sandefur, above n 12; Salomon, above n 13.
82 Salomon, above n 13, p 50. One of Salomon's participants, a law firm leader, reported that, due to this type of scepticism, he minimised internal discussions on change proposals and went ahead and implemented the change that he had in mind with the support of a small group of allies. If the reaction was positive, he made the change more permanent; if the reaction was negative, he was flexible and reversed the change.
83 Ibid, p 53.
84 Ibid.
85 S Oreg ‘Personality, context, and resistance to organizational change’ (2006) 15(1) European Journal of Work and Organizational Psychology 73; SK Piderit ‘Rethinking resistance and recognizing ambivalence: a multidimensional view of attitudes toward an organizational change’ (2000) 25 Academy of Management Review 783.
86 Salomon, above n 13, p 54.
87 Outlined in Part 1(a) and (b). See also Rogers et al, above n 50, at 226.
88 S Oreg at al ‘Change recipients’ reactions to organizational change: a 60-year review of quantitative studies’ (2011) 47(4) The Journal of Applied Behavioral Science 461 at 487.
89 A Sturdy ‘Customer care in a consumer society: smiling and sometimes meaning it?’ (1998) 5 Organization 27 at 30.
90 Salomon, above n 13.
91 E Freidson Professionalism: The Third Logic (Polity Press, 2001); Ackroyd and Muzio, above n 39.
92 Writing over decades, Abel has shown how the legal profession has historically been able to maintain high barriers to entry and control over participation, against powerful countervailing forces: Two of his major works depicting this are: RL Abel The Legal Profession in England and Wales (Blackwell, 1988) and R Abel English Lawyers between Market and State: the Politics of Professionalism (Oxford: Oxford University Press, 2004). For a discussion of how these public and professional interests overlap at points, see Rogers and Hartstein, above n 14.
93 Ackroyd and Muzio, above n 39.
94 Empson et al, above n 21.
95 Altman Weil polled Managing Partners and Chairs at 801 US law firms with 50 or more lawyers, and received completed surveys from 398 firms (50%), including 45% of the 500 largest US law firms and 52 per cent of the ‘AmLaw 200’: Altman Weil, ‘2018 Law Firms in Transition Survey’ (2018) xv at http://www.altmanweil.com//dir_docs/resource/45F5B3DD-5889-4BA3-9D05-C8F86CDB8223_document.pdf, p 15.
96 UNSW Human Research Ethics Approval HC190063 granted 16 April 2019.
97 C Robson Real World Research: A Resource for Users of Social Research Methods in Applied Settings (Wiley, 3rd edn, 2011) p 24.
98 E Babbie The Practice of Social Research (Cengage Learning, 14th edn, 2016) p 11 at p 13.
99 J Eekelaar and M Maclean Family Justice: The Work of Family Judges in Uncertain Times (Oxford: Hart Publishing, 2013) p 77.
100 V Waye et al ‘Innovation in the Australian legal profession’ (2018) 25(2) International Journal of the Legal Profession 213; E Chin et al ‘State of legal innovation in the Australian market’ (Alpha Creates, 2019).
101 Waye et al, above n 100, at 224.
102 Ibid, at 225. Henderson found the same thing, saying ‘organizational innovativeness is strongly correlated with size, even in law firms’: ‘Innovation diffusion in the legal industry’ (2018) 122 Dickinson Law Review 395 at 429.
103 There is no fixed definition of ‘NewLaw’, but it signifies some material divergence from ‘traditional’ firm structures (in pricing and billing, flexibility, workflow, and/or use of virtual communications) and their management. Thornton, above n 39, references an interview with Eric Chin, now Principal of Alpha Creates legal consultancy, as the person who coined the phrase. Chin originally conceived it as comprising legal process outsourcing firms, lawyer secondment firms and fixed fees legal service firms that ‘leverage on demand lawyers’, but now sees it as any alternative or managed legal service: see interview available at https://joseflegal.com/blog/interview-with-eric-chin-the-man-who-coined-the-phrase-newlaw.
104 For example, J Rogers and F Bell ‘Change leadership for a dynamic profession’, LSJ Online, 19 October 2019.
105 This role has been called a ‘professional hybrid’ which moves between managerial and professional groups: C Croft et al ‘Broken two way windows? An exploration of professional hybrids’ (2015) 93(2) Public Administration 380; see also S Paton and D Hodgson ‘Project managers on the edge: liminality and identity in the management of technical work’ (2016) 31(1) New Technology, Work and Employment 26.
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107 ‘The six sigma method is a project-driven management approach to improve the organization's products, services, and processes by continually reducing defects in the organization’: Kwak, YH and Anbari, FT ‘Benefits, obstacles, and future of six sigma approach’ (2006) 25(5–6) Technovation 708 at 708Google Scholar.
108 See Part 1(c) for a discussion of emergent change.
109 For managers who use it, ‘Agile’ is not just a business buzzword. It is a particular approach to project management, one with an iterative (done-in-pieces) methodology that ‘values human communication and feedback’ to adapt to change and produce tangible working results after each iteration: A Conrad ‘What exactly is agile? A definition of agile project management’, Capterra, 18 November 2019, blog post available at https://blog.capterra.com/definition-of-agile-project-management/.
110 For an examination of the impacts of AI and other technology on lawyers’ wellbeing, see F Bell et al ‘Artificial intelligence and lawyer wellbeing’ in Legg et al, above n 48, p 239.
111 Empson et al, above n 21.
112 Freidson, above n 91; Ackroyd and Muzio, above n 39.
113 Campbell and Charlesworth, above n 16.
114 See Part 1(c).
115 These frustrations align with lawyers’ concerns about the importance of time, and the need to pass on costs to clients – as Campbell and Charlesworth, above n 16, fn at 100.
116 For discussions of these themes: Bell et al, above n 110, and Bell, F et al. ‘Lawyers’ wellbeing in the (robotic) face of technological change’ in Sifris, A and Marychurch, J (eds) Wellness for Law: Making Wellness Core Business (LexisNexis, 2019)Google Scholar.
117 Campbell and Charlesworth, above n 16, at 107. Moreover, the legal profession is built on individual practice, rewards and accountability. Finally, sharing goes against the wider social culture built on the cult of the individual: Weinstein, J et al. ‘Teaching teamwork to law students’ (2013) 63 Journal of Legal Education 36 at 46Google Scholar.
118 Conversely, another interviewee thought that lawyers’ general tendency toward the rational meant that data was needed to persuade them.
119 See Part 1(b) on the search for legitimacy. The studies cited in this section present similar findings: the frustration and fears for managers related to people not understanding what ‘we’ (managers) do.
120 See Sandefur, above n 12.
121 The interviewees referenced an array (or hodgepodge) of management methodologies and tools such as Agile (an iterative project management system and set of practices or ‘ceremonies’); Google's Objectives and Key Results; Lean Six Sigma; the ‘3S framework’ (story, strategy, solution); David Rock's ‘SCARF’ model’; Boston Consulting Group's ‘Ready, Willing, Able’ framework; Heron's six intervention styles. Some were running design events, including hackathons and design jams. Finally, some were using software programs as well, including Agile's KanBan (incremental and longer term than Agile).
122 Kotter, JP Leading Change (Harvard Business School, 1996)Google Scholar.
123 For a study of the emotions of lawyers, specifically barristers, see Harris, LC ‘The emotional labour of barristers: an exploration of emotional labour by status professionals’ (2002) 39(4) Journal of Management Studies 553CrossRefGoogle Scholar. This suppression of uncertainty might be traced to professional socialisation more broadly, which some have theorised as a process of hiding this uncertainty or developing a ‘cloak of competence’: Haas, J and Shaffir, W ‘The professionalization of medical students: developing competence and a cloak of competence’ (1977) 1(1) Symbolic Interaction 71CrossRefGoogle Scholar.
124 Yammer is a social networking application for discussions within organisations. Instead of sending email, topics are posted to certain groups within the organisation.
125 See above at Part 1(c).
126 Kirkpatrick et al, above n 3, p 64.
127 Leca et al, above n 23, p 11, citing Blackler and Regan, above n 69.
128 ‘As a bridge between two differing systems, the change agent is a marginal figure with one foot in each of two worlds’: Rogers, EM Diffusion of Innovations (Free Press, 5th edn, 2003) p 368Google Scholar.
129 Empson et al, above n 21. We do not use ‘non-lawyer’ pejoratively, though we are aware that such terminology might perpetuate status hierarchies.