The Decline of Professionalism in Law? Ian King Salford Business School University of Salford SLSA Annual Conference Lancaster University 6 April 2016

Introduction and Aims Paper based on PhD research Early stages – still gathering evidence What does professionalism in law mean in 2016? Do traditional sociological models of professionalism need to be redefined More questions than answers!

Sociology of Professions - Functionalism Society a complex system whose parts work together to produce stability – Durkheim, Parsons et al Professionals such as lawyers perform a positive role as agents of social control Altruism reflected in voluntary commitment to highest moral standards and principle of service above profit Professions a necessary deviation from the free market model to protect people from consequences of their own ignorance

Sociology of Professions - Functionalism “the sociologist must regard the activities of the legal profession as one of the very important mechanisms by which a relative balance of stability is maintained in a dynamic and rather precariously balanced society” (Parsons, A Sociologist Looks at the Legal Profession (1952))

Sociology of Professions – Interactionism/Rationalism “By the late 1960s, this benign conceptualisation had been largely displaced by the neo-Weberian perspective which viewed professions as middle class projects to win exclusive rights to practise …. and achieve high social status and enhanced income” (Sommerlad, Young, Vaughan & Harris-Short, The Futures of Legal Education and the Legal Profession (2015))

Sociology of Professions – Interactionism/Rationalism Modern society founded on rationalisation according to principles of efficiency and technical knowledge – Weber. Rejects functionalist view due to overemphasis on consensus and agreement – ignores reality of conflicts of interests Professionalization seen as aggressive pursuit of market monopoly, forcing up prices and lowering standards

Professional Traits Altruism – service to community interest rather than individual self-interest Provision of training and education Testing competence of members Adherence to a self-regulated professional code of conduct and ethics High degree of generalised and systematic knowledge Barber (1963), Millerson (1964)

Professionals as Controllers Trait theory falls into error of accepting professionals own definitions of themselves A profession is not an occupation but a means of controlling an occupation Key characteristic of professional is control over client Professional (collegiate) control – producer defines the needs of the consumer and the manner in which those needs are catered for (Johnson,1972)

Lawyers as Translators Lawyers principal function is as translators rather than controllers Everyday discourse of client problems translated by lawyers into legal discourse Lawyers also creators of the language into which they translate Lawyers are conceptive ideologists, perfectly attuned to the typical problems of the middle classes (Cain, 1980)

Legal Professionalism Challenged 1980s and 1990s wide acceptance of view that lawyers maintain monopoly to advance professional self-interest Commitment to public service and ethics viewed as a sham – ideological propaganda Ruling elites lose social mandate if extract too much from position of power Consumer demand for change, general loss of confidence in legal profession combined with neo-liberal faith in markets over professional monopoly

Legal Professionalism Challenged Loss of control over legal services market e.g. licensing of licensed conveyancers to provide conveyancing & probate, granting of rights of audience to CILEx Withdrawal of legal aid funding leading to increased reliance upon voluntary sector Enabling non-lawyer owned providers of legal services – ABS Removal of powers of self-regulation De-mystification of legal knowledge – internet provides wide and free access to law

Is There a Legal Profession? Do professional traits still apply? Can lawyers still be regarded as social controllers or translators? Classical professionalism of high street general practice in (terminal?) decline Law Society (2016) – by 2020 may be a significant reduction in viable traditional firms By contrast, firms reliant on corporate patronage (consumer defines own needs and manner in which they are met (Johnson, 1972)) have thrived Increasingly diverse, fragmented “profession” – growth of large corporate firms and niche practices

Legal Professionalism Redefined? Lawyers operate on ordinary commercial basis – professionals or entrepreneurs? Increasing competition with other providers of legal services and between lawyers – rivals not fellow professionals? Commodification of professional legal services – a product to be marketed and price tagged (Evetts, 2015) Is law no longer a profession, a distinct type of profession or does professionalism need to be redefined?