Rachel E. Stern and Su Li, The Outpost Office: How International Law Firms Approach the China Market
, Law & Social Inquiry
(forthcoming, 2015), available at SSRN
Size matters—in the legal profession as elsewhere. It is a common element in research on law firms, legal practice and lawyers’ careers, and it often is assumed to be associated with success—in many instances, accurately. The largest U.S. law firms in terms of headcount also are among those that generate the most revenue and profits per partner, for example. Law firms in the category affectionately known as “BigLaw” account for an important segment of the most sought-after positions for new law graduates, in no small part because they offer the highest starting salaries and the promise of more for those who succeed. These same firms represent the most significant businesses in their most important disputes and largest and thorniest transactions, and today also often are involved in notable pro bono activities. Bigger is correlated with success, whether size is measured in headcount, number of offices, revenue, profits or compensation.
The assumption that size matters underlies the thoughtful analysis of Rachel Stern and Su Li about the growth of global law firms in China. Their article, The Outpost Office: How International Law Firms Approach the China Market, explores why growth seems to have stalled in the China offices of international law firms. Stern and Li draw on data gathered in interviews (conducted in 2013-2014) with lawyers practicing in the China offices of 50 international law firms. The firms have home bases in 18 different countries; this variety allows Stern and Li to consider how home country shapes global growth.
It is no surprise that interest in China has been strong among international law firms, reflecting the activities of their clients. Between 1992 and 2012, “an average of twelve new international law firms per year opened China offices” according to Stern and Li. (P. 2.) But these offices have not developed into full-service entities. Their average size is only 11 lawyers. Small offices are not able to offer the variety of services available in “full service” offices, nor can they advise on certain highly sophisticated matters that require more “boots on the ground.” (P. 10.) Of course, even a small outpost may generate work that is performed by lawyers situated elsewhere in the firm, and in this way may contribute to the firm’s overall profitability as well as reputation. But Stern and Li report that the revenue generated from the China offices has failed to meet firms’ expectations: “The bottom line is that China is a marginal part of nearly every international law firm’s business. For more than eighty percent of the law firms in our sample, lawyers reported that Mainland China generates less than five percent of global revenue.” (P. 13.) And the continuing small size of offices in China stands in contrast with average office size (by lawyer headcount) in other jurisdictions.
The aim of their research was to investigate why the promise of China had not materialized for international law firms. They considered the role of regulation, certain characteristics of international firms and the influence of organizational structure, among other things. Each of these factors offers important insight.
Regulation in China limits the scope of the firms’ work by preventing them from engaging in local practice, among other things. In contrast, in many jurisdictions where regulatory barriers are less stringent, law firms expand their overseas offices by hiring local lawyers who in many cases develop local practices. (P. 17.) As Stern and Li explain, “Government regulations tend to produce coercive isomorphism, or convergence on a single way of doing business in response to similar rules, and the ban on practicing Chinese law has clearly shaped China’s market for foreign legal services.” (P. 16.) In addition, they suggest that the regulatory barrier also may serve as a sort of “authoritarian logic” aimed at preventing foreign lawyers from “infect[ing] China in some way that will lead to a coup, a revolution, whatever.” (P. 8.) Apart from regulation of lawyers, uncertainty in the regulatory environment may stall growth, particularly for foreign businesses, and also undermine the importance of lawyers’ roles in China. But healthy growth among China-based elite law firms suggests that Stern and Li’s focus on distinctions between domestic and foreign law firms is appropriate.
Stern and Li also analyzed six characteristics of international law firms and their China offices to investigate their predictive value with regard to size. They found several significant predictors of larger offices, including how long a firm has been in China (a “first mover advantage” (P. 14.)), and the “global reach” of a firm related to the number of other offices supported outside of the home country. Additionally, they found “localization” to be important—meaning how many lawyers have a personal connection to China. However, they could not determine whether offices with more lawyers with local connections were better at generating business or whether “bigger firms [were] better at attracting this sought-after group”. (P. 15.)
Their data also offer insight into the ways in which offices’ failure to thrive might relate to the overall structure of law firms. By “looking at politics inside law firms” they were able to learn that “arguments for expansion often struggle to attract champions.” (19) Generally, since overseas offices are part of organizations in which profits are shared across a single structure, it is common for firms to have an “isolationist wing of partners who see local business thriving and dislike the idea of overseas adventures. In their view, every dime spent overseas is a far-fetched business proposition that reduces the profit pool.” (P. 18.)
One of the most interesting parts of the article is more directly about failure. They ask, why don’t more firms close their China offices? Their answer is fear: according to one lawyer, “’Firms don’t close … because they figure if they close, they’ll never be able to get back in [because of] licensing and the cost to their reputation. And they are right.’” (P. 21.) The result is that offices are closed surreptitiously. Stern and Li visited five offices in their efforts to interview lawyers, for example, that were “deserted …, all locked and dark with piles of mail visible inside the door. In all five cases, workers in neighboring offices told us that lawyers at the deserted office live abroad and only occasionally stop by to pay bills and meet clients.” (P. 5, n. 11.) The reluctance to close reflects the symbolic and option value of the offices: even a superficial presence serves as a “symbol of global commitment and a bet on future gains.” As Stern and Li explain, “A China presence can be a defensive play for firms unsure about the future, in other words, as well as an active effort to make money in the present. Nor does maintaining a financially marginal outpost office seem strange when so many other firms are doing it too.” (P. 21.)
What Stern and Li’s research shows is that at the moment, one size does not fit all in the market for elite corporate-focused legal services in China. Rather, in China, “outpost offices can be a persistent organization form, rather than a way station encountered en route to a vigorous international presence.” (P. 22.) But this is not the last word and we can expect the imbalance between domestic and global firms to shift—globalization is nothing if not dynamic, after all.
In Final Judgment Paterson makes a triumphant return to the subject of his PhD undertaken forty years ago: the operation of the highest court in England and Wales. This update covers the transition required by the Constitutional Reform Act 2005, giving effect to a rhetorical separation of powers. The relevant part of this legislation as far as this account is concerned is the abolition of the jurisdiction of the House of Lords and its reconstitution, outside of Parliament, as the Supreme Court. (It is worth reading this in conjunction with Richard Moorhead’s review of Hanretty’s Political Preferment in English Judicial Appointments.)
The substance of the book draws on a number of sources, including over 100 interviews, many with members of both the House of Lords and the Supreme Court. Primarily it illuminates process issues, from the way that judges interact with the advocates appearing before them to how they come to their decisions. Indeed, the structure of the book is based on dialogues the court has with others and among its own members. Paterson details how the exchanges with counsel in the court progress and, importantly, the difference good advocacy can make to the outcome of a case. We get insights into how the justices own discussions shape the ultimate judgments and what importance is given to dissents in terms of individualism versus collegiality. To bolster this Paterson provides some statistics on justices’ voting patterns over the last 15 years. He also touches on politically sensitive dialogues the Court has with other courts as part of the UK belonging to the European Union. In this respect the UK Supreme Court mediates between the pan-European courts and the polity of the UK. Recent discussions on human rights and membership of the EU highlight the difficulties. The depth and quality of this material is sufficient to make this work important without more. However, the authenticity of the accounts, and Paterson’s honest handling of the material, by which I mean that he reports what he found, warts and all, adds to its value.
Such a rigorous post-mortem of either the high end skills of lawyering or of judicial decision making at the highest level would be valuable in their own right. Together they provide a revealing panorama of the legal appeals process. The book covers court conventions, such as the appeals court not basing decisions on points not argued by counsel and how it has been dealt with by the judges putting arguments to counsel so that they can have their say. This leads into issues such as whether and which counsel are listened to when arguments are put and why. It examines the questions of how the judges approach their task and how and why they change their initial views of the case.
Combined with these useful insights into the judicial process there is fascinating material concerning the individuals involved. Such detail derives from the extraordinary candour of some of the interviewees and their willingness for it to be attributed. This gives additional material for analysis since it illustrates just how important human agency is in any legal process. It shows how, even at the highest levels, and in an institution as bound by tradition as the judiciary, individual personalities make a huge difference to outcomes.
As well as humanising the subject of inquiry the focus on personalities affords the reader a level of interest in the material that is unusual in academic work. It is not always an edifying view of the conduct of business in such an august institution. Following the difficulties in the Pinochet case, caused when Lord Hoffman failed to mention a potential conflict of interest, relationships between two of the Lords and Hoffman were said to have broken down completely. (For Lord Hoffman’s role as judge and legislator see Hugo Young’s analysis.) For quite different reasons, two of the other members of the court were on such bad terms that they always made a point of disagreeing with the other. Counsel whose argument was endorsed by one could expect a hard time from the other. Others of their Lordships had reputations as intellectual bullies. In one case junior counsel, having observed the battering taken by his senior, on being asked if he wished to address their Lordships replied “Not without a helmet”.
The reader is also given an introduction to the politics of the chamber, from high to low. At the high end the constitutional tensions between the House of Lords and the executive over detention of terrorist suspects is an important insight into the realities of the rule of law. At the low end, Paterson describes how the siting of each of their Lordships’ offices potentially affects their views and the outcome of cases. Finally, we see how even this most important of institutions is under pressure to cut cost and to change ways of working. Therefore, the senior judges are under pressure to not to indulge advocacy, to work as a team and to produce single judgments. This, it is not surprising to hear, means that some members of the Supreme Court are less and less able to perform their role as they would wish.
After three decades of research on gender inequality in the legal profession, it is getting harder for any researcher to say something new. We know as facts that, in many countries across the world, female lawyers earn less than their male colleagues, have fewer chances of promotion, face various forms of gender penalty and sexual harassment in the workplace, and tend to leave the profession earlier and more frequently (see Kay and Gorman 2008 for a good review). However, very few studies have examined the macro-level factors that structure the patterns of gender inequality in the legal profession, such as the differentiation of the public and private sectors, the mobility of lawyers across geographic areas, or the supply and demand in the legal labor markets. This is precisely the approach that Dinovitzer and Hagan take in their recent study on hierarchical structure and gender dissimilarity in American legal labor markets.
The authors use data from the first two waves of the After the JD study, a longitudinal survey of a cohort of lawyers who entered the American legal profession in 2000 conducted by researchers at the American Bar Foundation. The survey included four major markets for legal services (New York, Los Angeles, Chicago, and Washington, DC), five additional large markets (Boston, Atlanta, Houston, Minneapolis, and San Francisco), as well as nine smaller markets. The concentration of high-status corporate legal work varies significantly across the three types of legal labor markets. Dinovitzer and Hagan use the concept of “hierarchical market structure” (HMS) to measure this macrostructural characteristic of the legal profession. Locales with a higher concentration of corporate legal work (e.g., New York) are higher on the HMS index, consisting of four items: elite law graduates, highly leveraged law firms (i.e., firms with high partner/associate ratios), lucrative billings, and corporate clients.
How does the HMS matter for gender inequality? As the authors demonstrate in their analysis, the leveraged nature of legal labor markets benefits women in notable and interesting ways.
In those markets higher on the HMS index, women’s salaries increase more rapidly than men’s, though men continue to out-earn women. This effect of the HMS on gender inequality is not limited to New York City or the five most highly stratified markets (i.e., NYC, Washington, Boston, San Francisco, and Los Angeles), but found across all the markets included in the sample. In other words, high concentration of corporate clients, elite law graduates, and highly leveraged and profitable law firms has a significant effect in reducing the income gap between men and women—a finding contrary to our common wisdom that hierarchy and concentration usually work against gender or racial equality.
Yet the positive effect of the HMS on gender equality is complicated by another structural measure, namely, sex segregation in the legal profession, or what the authors call “gender dissimilarity.” Traditionally, women were overrepresented in the lower-paying public sector, whereas men were more likely to be found in private practice. With the increasing feminization of law schools and the legal profession, however, the glass ceilings of the profession have been gradually weakened. Dinovitzer and Hagan use gender dissimilarity, defined as the proportion of women who would be required to move into the law firms sector from the public sector to create gender balance, to measure the distributional dissimilarity of men and women across sectors of legal practice. This measure is different from the commonly used measures of gender inequality because it focuses on the difference between sectors of the labor market (e.g., law firms vs. government agencies) rather than the difference in the same sector (e.g., law firms).
Unlike the hierarchical market structure, gender dissimilarity contributes to income inequality between male and female lawyers. In labor markets in which women are disproportionately allocated to the public sector, women’s wages are significantly depressed across all sectors. That is to say, income inequality between men and women is more prominent where the boundary between public and private sectors of the legal profession is more rigid. In contrast, where the boundary between male and female work is more flexible, it benefits women and diminishes the wage gap in earnings. This finding may sound unsurprising to many people familiar with gender inequality in the workplace, yet it has an important policy implication, that is, increasing the mobility of women and men between public and private sectors could have a positive effect on gender equality, at least in terms of earnings.
The picture that Dinovitzer and Hagan paint in this article, therefore, is not a totally pessimistic one for women in the legal profession. It shows that gender inequality is not only a matter of discrimination in the workplaces of lawyers, but also shaped by broader structural changes in the profession. What is missing from the study is a fully convincing explanation of why the high concentration of corporate legal work would benefit women. The authors build their theoretical arguments primarily on Charles Tilly’s theory of durable inequality, particularly the two mechanisms of exploitation and opportunity hoarding, by which the dominant group (in this case, male lawyers) extract resources from the other group (female lawyers) and restrictively controls the use of a value-producing resource (in this case, corporate legal work) so that the other group cannot benefit from it. This theory works very well for explaining how gender dissimilarity contributes to inequality, but not for how the hierarchical market structure reduces it. As the authors acknowledge in the conclusion, they “are not able to fully account for the range of processes that differentiate men and women and their choices to pursue a law degree, practice law, or work in the corporate sector, all of which may ultimately be related to their earnings.” (P. 951.)
While I cannot offer a full-fledged account of all these processes either, I do want to point out at least one important mechanism that partially explains why the concentration of corporate legal work reduces the wage gap between men and women, namely, the promotion-to-partner tournament in large law firms (Galanter and Palay 1991; Galanter and Henderson 2008). As most elite law firms on Wall Street and in other major markets adopt nearly identical salary rates for their entry-level associates and maintain a similar tournament system of promotion (despite many variations in details), the wage gaps between male and female associates in these firms would not be salient until they are closer to the “up or out” stage of their careers. As corporate law firms employ an increasingly large number of associates in the legal labor markets, the effect of this tournament system on gender inequality would also become more significant (though Galanter and Palay were completely silent on gender in their original theory). Women have fewer chances of promotion than men and they are more likely to exit the tournament or even the profession (Hagan and Kay 1995; Reichman and Sterling 2004; Kay and Gorman 2008), yet the wage gaps between female and male associates could be smaller in corporate law firms than in other types of law firms. This might also explain why in smaller legal markets where corporate work is scarce, female lawyers seem to lag even further behind their male colleagues in terms of earnings.
The findings in this article, as well as in Ronit Dinovitzer’s other recent writings, give high hopes for the results from the third wave of the After the JD study, which was conducted in 2012, ten years after the cohort of respondents entered the bar. The attrition of women from the legal profession, as well as the mobility between law firms and other legal sectors, would probably be more salient at this stage of lawyers’ careers. For research on the legal profession, the power of this longitudinal study increases exponentially as the waves of data accumulate. Perhaps some of the unresolved issues in the present article, such as how lawyers move across firms and sectors, can be explained more rigorously in future studies with the new data available.
Andrew M. Perlman, Towards the Law of Legal Services,
Suffolk University Law School Research Paper No. 15-5 (2015), available at SSRN
We all know about tipping points…when something that previously seemed rare or unlikely acquires enough weight or momentum that the balance or status quo changes. As I read Professor Andy Perlman’s article called “Towards the Law of Legal Services” it occurred to me that we may be getting very close to a tipping point in the United States with respect to the issue of lawyer regulation.
Professor Perlman’s article argues that the time has come to “reimagine” our lawyer-based regulatory framework. He asserts that instead of focusing on the “law of lawyering” – which is how people in our field often refer to what we study – we need to develop a broader “law of legal services” that would authorize, but appropriately regulate, the delivery of more legal and law-related assistance by people who do not have a J.D. degree. He argues that reimagining regulation in this fashion will spur innovation and expand access to justice.
What Professor Perlman is writing about is not a particularly new idea. For example, back in the 1980’s and 1990’s, Professor Deborah Rhode was writing about nonlawyer practice. The ABA issued a report on this topic in 1995.
What feels different at this point in time is the variety of directions from which these calls for reform are coming. For example, last year the ABA Task Force on the Future of Legal Education issued a report that included the following as part of one of its key findings: “To expand access to justice, state supreme courts, state bar associations, admitting authorities, and other regulators should devise and consider for adoption new or improved frameworks for licensing or otherwise authorizing providers of legal and related services. This should include authorizing bar admission for people whose preparation may be other than the traditional four-years of college plus three-years of classroom-based law school education, and licensing persons other than holders of a J.D. to deliver limited legal services.” In August 2014, the ABA established the Commission on the Future of Legal Services [not lawyers] which has been asked, inter alia, to “propose new approaches that are not constrained by traditional models for delivering legal services and are rooted in the essential values of protecting the public, enhancing diversity and inclusion, and pursuing justice for all.” For those who might have missed the news, after more than ten years of effort, which was led largely by its Supreme Court, Washington had its inaugural class of Limited License Legal Technicians (LLLT) take the required exams and begin their 3,000 hours of supervised work. Other states are talking about or exploring related ideas.
And this is just in the U.S. As Steve Mark, Tahlia Gordon and I noted in our 2012 article on Global Trends, jurisdictions around the world are grappling with a variety of issues related to lawyer regulation, including the issue of what it is that should be regulated – lawyers or legal services. (We identified global trends regarding “who regulates-what or whom is regulated-when regulation occurs-where regulation occurs-why regulation occurs-and-how regulation occurs – the “who-what-when-where-why-and-how” of lawyer regulation.) Jurisdictions such as Australia, Canada, and the UK, are beginning to discuss or have already adopted an “entity” approach to regulation. Regulators in Ontario, Canada not only regulate lawyers, but have regulated paralegals for more than five years. Nova Scotia’s “Transforming Regulation” initiative is very interesting and other Canadian provinces are exploring the issue of what it is they should be regulating.
It is against this backdrop that Professor Perlman’s article is written. As a result of his experience as Chief Reporter (and one of the main technology gurus) for the ABA Commission on Ethics 20/20 and as Vice Chair of the ABA Commission on the Future of Legal Services, he brings to the article not only great familiarity with the issues, but a deep understanding of the difficulties involved in achieving the paradigm shift he recommends. But his methodical way of laying out the landscape and the arguments he offers may go a long way towards achieving the changes he recommends.
The first part of his article offers a hindsight look at the work of the Ethics 20/20 Commission, which was asked to evaluate what changes were needed to lawyer regulation in light of developments in technology and globalization. It also includes a response to some of the Commission’s critics. Because I recently completed my own reflective essay about the work of the 20/20 Commission, I was much more interested in the subsequent part of his article, which was entitled “Towards a Law of Legal Services.”
The “Towards a Law of Legal Services” section of Professor Perlman’s article begins by describing the difficulties inherent in trying to define the practice of law. I found myself wholeheartedly agreeing with his conclusions in this section. I am continually dismayed when I hear lawyers, regulators, or judges suggest that the “solution” to some problem is to develop a better definition of the practice of law (and thus unauthorized practice of law or UPL). During the MDP debates in the 1990s, I came to the conclusion (see p. 872-873) that at least in the transactional setting, it is exceedingly difficult to develop – in an exclusive UPL sense, rather than an inclusive descriptive sense – a definition of what constitutes the practice of law. Thus, whenever I see “developing a definition of the practice of law” as the proposed solution to anything, I am dismayed since I do not believe that such efforts – even if properly motivated – will yield satisfactory results.
After explaining why it is difficult to define the practice of law, the article offers Professor Perlman’s thesis that we “should ask a fundamentally different question: should someone without a law degree be ‘authorized’ to provide a particular service, even if it might be the “practice of law”? This section of the article includes this graphic to illustrate how one might respond to this question and begin to conceptualize a “law of legal services” that would supplemented the “law of lawyering:”
As Professor Perlman’s text explained, “the bottom of the pyramid captures very routine law-related needs (e.g., the creation of a living will) that can be addressed by completing blank forms. Regulatory barriers should not prohibit people from making these forms available to the public through websites or otherwise. But as consumers’ legal issues become more sophisticated, consumers typically need providers higher up on the pyramid. A central question for the law of legal service is this: at what point must a provider be subject to some kind of regulation?” (Professor Perlman’s footnote acknowledged Paula Littlewood for conceptualizing the issue this way and creating a slightly different version of the pyramid.)
The article continues by discussing the principles (or regulatory objectives) that a “Law of Legal Services” might be designed to achieve, which is a topic near and dear to my heart. It also illustrates how the “Law of Legal Services” might work in specific contexts, such as automated legal document assembly. This section offers a proposal to regulate automated legal document assembly that could be “promulgated either as a court rule or statute.” This section of the article also explains how Washington’s Limited License Legal Technician regime fits within Professor Perlman’s proposed approach. The article concludes with the following paragraph:
The law of lawyering is undoubtedly important, but it offers few options for transforming the delivery of legal services. Nonlawyer ownership of law firms is one possible exception, but even that reform envisions a world where lawyers remain the exclusive deliverers of legal advice. The law of legal services reflects a different approach to regulatory innovation, one that seeks to authorize, but appropriately regulate, the delivery of legal and law-related assistance by more people who lack a traditional law license. At a time when legal services are increasingly unaffordable, the law of legal services may reflect a promising way to unlock innovation and reimagine the regulation of the twenty-first century legal marketplace.
There were certainly places in this article where I found myself disagreeing with Professor Perlman. For example, I thought he might have been unduly optimistic with respect to his conclusion about the access to justice results that will accrue by virtue of regulating legal services providers such as LLLTs because there may be too few licensed LLLTs to address the significant unmet legal need. As I have noted in previous Jots, I see a larger role for technology (see here and here) than he acknowledged in this article – LLLT’s will help, but I don’t think that they alone will solve our access to justice problems. My bottom line, however, is that I agree with much of what Professor Perlman said. Towards the Law of Legal Services is an important article about an important topic. Given the gigantic unserved legal needs in this country and the decades of our saying that we need to address this problem combined with our failure to do so, I think the time may be ripe to think about a pyramid model of regulated legal services, in which lawyers are at the top of the pyramid, but not all clients necessarily need to see a lawyer. To steal (and paraphrase) a set of images that I heard Futures Commission Chair Judy Perry Martinez refer to at the 2015 ABA Midyear Meeting, a nurse may be a suitable provider to give a flu shot, a physician’s assistant may be a suitable provider to treat a cold, an Internist may be suitable to do an annual checkup, but you probably want a surgeon if you are having heart surgery. A patient may choose to go to an MD for all of these services, but that does not mean that the regulatory system should require a “one provider fits all” system. Just as there is a continuum of medical needs (and providers), perhaps the time has come to discard our mode of thinking in which we divide the world into “legal services/not legal services, with the former requiring a lawyer and the latter not. Perhaps the time has come to envision legal services as a continuum or a pyramid where clients can choose the type of provider they want – and we recognize that a legal services provider need not be at the apex of the pyramid in order to be regulated or in order to provide services that help clients address their legal needs.
It is true that this type of “pyramid approach” creates the potential for a tiered system of access in which lawyers are primarily utilized by those with greater financial resources and those with lesser financial resources receive services from someone lower on the pyramid. However, given the data that suggests that a large number of individuals currently need but do not receive any legal services at all, I consider this a second order problem that can be addressed through a process of incremental change.
In sum, I sense that we may be getting close to a tipping point in which we begin to take seriously the notion of a “law of legal services.” Professor Perlman’s thoughtful and measured article, his legal services “pyramid,” and the model rule he includes in his article provide a useful way to start thinking about whether and how we might go about reimagining the regulatory space in which we operate.
This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”
Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases.
Gold argues that the prosecutor’s duty to refrain from using illegally seized evidence derives from the executive branch’s responsibility to interpret and abide by the constitution’s mandates. He draws on Larry Sager’s seminal article on “constitutional underenforcement” to argue that the Supreme Court’s distinction between the Fourth Amendment right and the exclusionary rule’s remedy has left us with exactly the sort of void Sager identified. Gold argues that the Court has restricted the scope of the exclusionary rule and declined to exclude evidence in many cases in which there is a violation of a constitutional right because it does not want to infringe on the prerogative of the executive branch. Separation of powers, in other words, has led the court to limit its institutional role in policing Fourth Amendment violations. As Sager argues, this is the moment when the executive must step in to the breach.
This argument is both innovative and compelling. Gold does not, however, analyze a parallel and perhaps even more pervasive argument that the Court makes in support of its gradual erosion of the exclusionary remedy. It is not exactly institutional incompetence that has led to the disintegration of the court-made remedy as much as it is the Court’s sense that the benefit of deterring police misconduct is outweighed by the cost of keeping truthful evidence from the fact finder.
The Supreme Court abandoned an earlier understanding of the exclusionary rule as an integral part of the constitutional guarantee. The Court no longer sees the judicial branch’s integrity compromised when courts admit evidence seized in violation of an individual’s rights. In the 1970s, the twin rationales supported a robust exclusionary rule but in the following decades the Court began to recast the argument. The Supreme Court now defines the Fourth Amendment as a constitutional right and the exclusionary rule as a judicially crafted remedy designed to deter constitutional violations. The deterrence rationale has led the Court to restrict the scope of the exclusionary rule precisely because in its view, the benefit to the public in protecting individual rights is often outweighed by the damage done by excluding truthful evidence in criminal cases. In Justice Cardozo’s famous words, “the criminal is to go free because the constable has blundered.” Gold does not fully engage the fact that, in this regard, his proposal for administrative suppression would lead to the same problems as judicial suppression.
Gold argues that prosecutors should do precisely what the court declines to do itself. When he argues that prosecutors cannot be complicit in police illegality, Gold’s reasoning sounds much like the Court’s old and currently out-of-fashion integrity argument: Using illegally seized evidence compromises prosecutors’ integrity. Gold’s argument that prosecutors’ ethics demands administrative suppression is more persuasive than his argument that the Constitution does. A prosecutor has the obligation to serve justice under Model Rule 3.8, which Gold argues means that he must not use evidence seized illegally. But the mandate to serve justice is complicated. Of course, respecting the rights of defendants is part of the calculation but so too is obtaining a just outcome by using all evidence the court deems admissible. The duty to act competently and diligently similarly require a prosecutor to serve the interests of the client, in this case the people or the community. There is a tension between Gold’s conclusion and the countervailing duty to protect the client by using admissible evidence to secure a conviction when one is warranted. While Gold favors the former, it is not clear that the complex rules governing prosecutors’ conduct mandate this choice.
Courts may not be fully enforcing Fourth Amendment rights but that does not dictate how the other branches should address the problem. Administrative remedies, such as direct police sanctions, would be more consistent with the Court’s understanding of the constitutional problem than administrative suppression. Fines and employment consequences for offending officers, unlike administrative suppression, would not involve the exclusion of relevant evidence from criminal trials. These sorts of solutions would not create the same windfall to individual defendants that the Court laments. Nor would the community suffer as much for the police misconduct. The value of direct police sanctions, however, may be beside the point if prosecutors’ ethical obligations require them to decline to use illegally seized evidence, as Gold suggests.
Gold argues that prosecutors are bound by ethical obligations to “suppress” the fruits of Fourth Amendment violations. Gold makes a more persuasive case that ethical obligations demand this response than that the Court’s increasing unwillingness to order the suppression of illegally seized evidence creates this responsibility. Prosecutors are, as Gold points out, supposed to serve justice. They are supposed to protect the rights of defendants and the civil liberties of all citizens as well as pursuing convictions. Professional ethics may mean that the rejected rationale for the exclusionary rule – that integrity is compromised by the use of illegally seized evidence – applies with even greater force to prosecutors than to courts. Gold makes an interesting and provocative argument that in this instance protecting defendants rights should trump pursuing the client’s interest in obtaining a conviction by using admissible evidence but it is not entirely clear that he has supported his choice between competing obligations and competing conceptions of justice.
Gold’s article stayed with me and provoked me to think about the criminal justice system in a different way. Gold concludes that by suppressing tainted evidence, prosecutors will restore faith in the system, and in the long run, this will lead to greater respect for the law, which in turn will ultimately mean less crime. This is an empirical conclusion and it’s hard to say for sure whether it is so, but it is certainly true that we need to think more creatively about how to restore faith in a system whose legitimacy is so often in doubt. Recent events make this endeavor even more urgent. Gold’s article inspires his readers think critically about how changing the prosecutor’s role in the system might help.
Ronit Dinovitzer & Bryant Garth, Lawyers and the Legal Profession
, (UC Irvine School of Law Research Paper No. 2015-19),
available at SSRN
One of the main concerns of the authors is the structure of the legal profession in which perpetual reproduction of hierarchies forms a contest among different elements of the profession. The configuration of the profession shapes its research which places corporate lawyers and firms at the top of the hierarchy. This seems to stem from the early Cravath idealisation of law firm development. Even though the Cravath model dates from the late 19th century, it reverberates still in the 21st century and has captured scholars’ thinking. It appears difficult to shake off these established idealisations and models when discussing the legal profession. Dinovitzer and Garth (D&G) endeavour to show how these cleavages rip through the study of legal professions.
“Lawyers and the Legal Profession” draws on the research done on the structure of the legal profession, its divisions, lawyers’ backgrounds (gender, ethnicity, class), law firms and globalisation. The range is broad but there is one caveat, which is most of the work referred to is based on research done within the US. It is legitimate to question this given the global differences between legal professions, regulatory systems and the like. Although the Cravath model might have been the blueprint for law firm organisation that was exported by American lawyers—and its residues are apparent—whether it remains the dominant model is open and contested, even, perhaps, within the US. See, for example, the rise of the “smart” law firm (Wald). I return to this later.
Starting with the two-hemispheres model of the social structure of the legal profession D&G show its enduring attraction to researchers but more importantly as an almost unshiftable barrier to change within the profession. This is augmented by their analysis of different social groups and their attempts at breaching this barrier. Despite huge advances women still are more evident in “settings with lower pay, less power, and less prestige” (D&G: 3). Women are “more likely to work in government, legal services, or public defender and public interest positions” (id). Rewards and promotion in law are fraught for women.
Race and class are factors that can hinder career prospects in law although law school rankings can trump social origins. However, lower social class can produce lower earnings over time.
Satisfaction with law careers appears to be distributed throughout the range of legal practice. Misery is not the defining emotion notwithstanding layoffs and declining law school enrolments, according to the After the JD study. It appears that satisfaction is correlated to lawyers’ expectations and social origins. Those outside the corporate law firm circle find satisfaction because of their achievements contrary to the dissatisfaction expressed by Big Law lawyers. Lawyers from lower socio-economic groups tend to denounce Big Law in order to maintain their satisfaction, something that again reinforces difference and hierarchy.
In the realm of practice solo and small firm lawyers have been subjected to deskilling and deprofessionalization, they worry about status and respectability, and their numbers are shrinking. The large law firm sector is thriving and growing. Yet despite growth and economic success, the corporate world is beset with new problems. Established models of law firm growth hit the buffers in the recession when corporations intensified the changes in the ways they used law firms. No longer established long term one-to-one relations, but clusters of firms identified with star lawyers selected as and when by in house counsel. The recession also demolished the sanctity of partnership with equity partners being laid off along with associates and non-equity partners.
The issue of corporate lawyers’ professionalism and independence from clients is variable. Evidence points both ways: lawyers can remain apart from their clients’ interests, their values give them strength, yet lawyers are desperately seeking business and are therefore willing to compromise their positions and professionalism and be the weaker party. D&G’s inference is that lawyer-client relationships are more nuanced and defy categorical conclusions.
One of the most distinctive types of client is the in house counsel, a relatively understudied part of the profession compared to law firm lawyers. While the amount of research on in house counsel has increased, according to D&G, it seems to focus on the autonomy and independence of such counsel from their employers. This suggests there is insufficient research on the relationships of in house counsel with their external counsel. Nevertheless, we are seeing more research on in house counsel being carried out outside the US. For example, the Harvard GLEE project has produced a number of papers on the role of in house counsel in such countries as India, Brazil and others.
Indeed, when D&G turn to globalization they see it in terms of US expansion and imperialism. Their view is simultaneously historical and ahistorical. How is this paradox possible? Using the end of the Cold War as their starting point coupled with the export of neoliberal economics, they show how law firms pursued their clients around the world. Of course one’s view is shaped by one’s perspective. If D&G had used an earlier starting date their picture would be different. Colonial regimes and empires had inbuilt advantages in developing exports and services. Certainly the City of London law firms were global in the 19th century as were some in France. We need more research to bring out these themes. For example, the development of the railways globally in the 19th century would show a more mixed and nuanced market for legal services. Moreover, not only are we now seeing more intense competition among legal service suppliers from different parts of the world, we are seeing variation in the ways these suppliers are organising themselves.
Ideal types, or even archetypes, have been remarkably enduring in legal profession research. One dominant archetype, for example, is the Cravath model of law firm development which is clearly reinforced in the research D&G examine. (See Regan’s Eat What You Kill) Yet we know that it has been challenged as deficient by some scholars in the US and now has declining relevance there and elsewhere. Why is this not more apparent in their survey? It is because D&G focus mainly on US research which is still carried out in law schools. Look elsewhere and a different mise en scène appears. Within Europe, and other parts of North America, research on professional service firms (PSF), including law firms, is increasingly conducted in business schools which use different theoretical frameworks and arguments to those found in the typical legal professions literature, especially in the US. Institutional theory examines the foundations of PSFs (Muzio, Brock & Suddaby)—their cultural, cognitive and regulative pillars (Scott). Organisational theory is now far more sophisticated than in the heyday of the two hemispheres. Research on leadership in PSFs shows the subtleties of commanding authority in organisations without clear demarcations of authority (Empson). The role of emotional labour assumes greater importance (Hochschild). And theories of globalisation now incorporate the concept of the subaltern (Sousa Santos) and cosmopolitanism (Flood & Lederer).
The role of regulation now plays an increasingly imperative role in determining the structures and activities of professions. In the UK the Legal Services Act 2007 has given rise to a new type of law firm, the Alternative Business Structure. The freedom accorded to legal services providers has attracted US companies—not law firms—such as LegalZoom and Axiom to establish in the UK. Globally the accounting firms, or more accurately professional service firms, are preparing to challenge the global hegemony of law firms. Legal process outsourcing has dramatically affected the prospects of lawyers wanting to obtain jobs in conventional law firms. And the global trade talks that take place don’t refer to lawyers but legal services providers (Terry). This is creating new areas of research that will alter our images of the legal profession and professions in the future. Perhaps it is a combination of tunnel vision and a restrictive set of professional strictures within the US that produces such a conservative outlook for the legal profession.
One of the most interesting things written about professional responsibility in 2014 is not a book or a law review article, but the report of an internal investigation. Anton Valukas, a former United States Attorney, now chair of the Chicago law firm Jenner & Block, was retained by the board of directors of General Motors to investigate the company’s inadequate response to reports of a serious defect in some of its cars. As extensively reported, a faulty ignition switch used in several G.M. cars, including the Chevrolet Cobalt and Saturn Ion, would sometimes fail in a way that both shut off the engine and disabled the car’s airbags. The switch departed from its intended design in a crucial respect – the torque was less than specified, so that if a driver inadvertently bumped into it, or if the keys hanging from the ignition switch were too heavy, the electrical system might change from “run” to “accessory” mode. As early as 2005, G.M. started to receive reports of crashes in which the car’s airbags failed to deploy. At first they did not suspect a problem, as there were other factors that might have caused the airbags to fail to deploy. It was also hard to track down the problem because the engineer who had approved the original, faulty switch also approved a change to the switch design that solved the problem, but did so in a way that obscured the original problem. But by about 2007, it was becoming clear that there might be a defect in the electrical system of certain car lines. Finally, in early 2014, G.M. publicly disclosed the defect, began recalling as many as 2.6 cars, and established a compensation fund for the victims of switch-related accidents.
What happened between 2007 and 2014? The long and short of it is, evidence of a possible defect was fed into the machinery of a cumbersome, bureaucratic process that churned on and on without moving toward a resolution. G.M. did not set about to cover up the problem. It has a byzantine structure of review programs, tracking systems, and cross-disciplinary committees that exists precisely to detect and rectify issues like the ignition switch defect. Customer satisfaction issues, which comes to the attention of G.M. personnel involved in marketing, are supposed to get directed to engineers for improvement, coded for whether the problems are a mere annoyance or a possible safety concern. Managers from divisions of products, systems, and safety engineering periodically met with business managers to work on solutions to safety problems and overcome roadblocks. Additional committees dealt with problems manifesting themselves in the field, and had contact with representatives from engineering, marketing, business, and legal teams. Reading the description of these procedures and protocols, one comes away with the impression of a company that takes its obligations to customers quite seriously, but in reality the redundancy and ambiguity inherent in the structure sapped the energy from the company’s response. With multiple committees dealing with various aspects of the same problem, no person or centralized team had responsibility for making sure something got done. CEO Mary Barra memorably testified before Congress about the “G.M. nod,” when everyone in the room agrees with a proposed plan of action, but no one does anything to make it happen, and the “G.M. salute,” which consists of crossed arms with fingers pointing toward others, to whom responsibility is being punted. The human cost of this dithering can be measured in the injuries and deaths that would have been prevented if prompt corrective action had been taken.
Revelations of corporate wrongdoing are inevitably followed by the question, memorably asked by a federal judge surveying the wreckage of the savings and loan industry in the late 1980’s, “where were the lawyers?” Judge Stanley Sporkin demanded to know, “[w]here were these professionals . . . when these clearly improper transactions were being consummated?” Although the nature of G.M.’s wrongdoing was negligence and inaction, as opposed to willful frauds, Judge Sporkin’s question is still the right one to ask. The answer turns out to be that lawyers were involved in the process of responding to reports of defects in the ignition switch, but they didn’t do enough. The really remarkable thing about the G.M. recall case is that, after the dust settled, a bunch of lawyers had been fired for not doing enough. It therefore becomes an urgent practical as well as theoretical matter for lawyers to consider the Valukas Report and determine what the lawyers for G.M. did wrong.
Accident reports had mobilized the investigation and response process, but the Valukas Report faults the lawyers for not “impart[ing] a sense of urgency” to the investigation. (P. 154). They lawyers were not assisting in a cover-up. Attorneys familiar with products liability cases pending against G.M. asked why the company had not ordered a recall and were told that the engineering department was “acutely aware” of the issue and was doing everything they could. (P. 184). Yet CEO Barra said that the lawyers “didn’t take responsibility; didn’t act with any sense of urgency.” In particular, they dealt with the ignition switch problems as “business as usual,” without alerting G.M. general counsel. One might object that it is unfair to blame the lawyers for what is, after all, a not uncommon problem of organizational dysfunction. While not exonerating individual decision-makers, many after-the-fact reports on corporate wrongdoing focus on structural explanations such as diffusion of responsibility, groupthink, and pluralistic ignorance. Unlike the players in many of these cases, however, the lawyers for G.M. were not relatively powerless underlings, dependent for their professional survival on a “rabbi” or protector higher in the corporate chain of command. They were highly experienced, trusted by senior management, and in some cases in charge of the committees that made decisions about product recalls.
The practical upshot of the report seems to be that in-house lawyers must make sure not only to refer evidence of a problem to the right person, but also must follow up to make sure action has been taken. More interesting theoretical questions, which deserve careful exploration, are whether lawyers have subtly conflated the expectations and duties of two roles – litigation advocate and corporate counsel. The actions of many of the lawyers fired by G.M. can be explained by the advocate’s mindset. Client counseling is different, and the firing of these lawyers shows that some corporate clients expect something other than “zealous advocacy” from their lawyers.
Over the last three decades organized bar groups and law firms have embraced the value of diversity, taking steps to promote diversity among ranks of lawyers. These diversity initiatives fall short when they do not include the interests of lawyers in different groups. One group that is often ignored is comprised of lawyers with disabilities. That is one of the reasons that I especially liked this article.
Professor Long’s article is a welcome addition to the scholarship on diversity in the legal profession. It addresses important issues that deserve attention, providing insightful observations on the connection between professional responsibility and the inclusion and treatment of lawyers with disabilities. Specifically, the article examines the inextricable link between lawyers’ professional responsibility under the ethics rules, professionalism, and the Americans with Disabilities Act (ADA) provisions that require reasonable accommodations for persons with disabilities.
Professor Long introduces the discussion with eye-opening accounts to illustrate how the legal profession has been slow to remove barriers that exclude persons with disabilities. Statistics and stories speak volumes. For example, thirteen years after passage of the ADA, a study indicated that there were 100 violations of accessibility codes in a courthouse built in 2011. (P. 1755, n. 6.)
Meaningful inclusion of persons with disabilities goes beyond access to courthouses, but requires addressing challenges that prevent full access and participation by lawyers with disabilities. The first challenge for persons with disabilities is dealing with hurdles in law school, such as documentation of disability status. Those who graduate from law school must navigate rigid requirements for admission to law practice, such as onerous mental health screening in some states. Following admission, lawyers with disabilities often encounter discrimination in hiring and employer reluctance to make reasonable accommodations.
These obstacles, coupled with employers’ concern related to productivity and the perceived costs associated with accommodations, contribute to the disproportionally low number of practicing lawyers with disabilities. (P. 1774-79.) Although the U.S. Census Bureau reported that 19% of the civilian noninstitutionalized population has a disability of some kind, a 2009 survey of law firms revealed that only .23% of lawyers were identified as having a disability. (P. 1756 (citing a U.S. Department of Commerce report and a survey conducted by the National Association of Law Placement).) It is unclear is these statistics accurately reflect the number of lawyers with disabilities because some of those lawyers may not report their status because they are concerned about the stigma associated with admitting that they are lawyers with disabilities. These statistics could change if more lawyers understood the professional responsibility dimensions of including lawyers with disabilities. Professor Long advances this worthy goal by persuasively arguing that lawyers should recognize that making reasonable accommodations is a means of complying with the professional obligation to provide competent representation.
Part I of Professor Long’s article provides a concise explanation of the provisions under the ADA requiring reasonable accommodations for qualified individuals who can perform the essential functions of the employment position. This overview includes a discussion of the benefits of accommodation, not just for the individuals with disabilities, but also for co-workers and clients. Part II analyzes the problems confronting lawyers with disabilities and their employers. This examination reveals how the preconceived notions of lawyers who make hiring decisions and concerns of employees with disabilities contribute to the reluctance to provide and seek reasonable accommodations. Understanding the role of perceptions, Part III suggests an analytical framework that could help shape attitudes of legal employers on the subject of lawyers with disabilities. Professor Long points out that the discussion concerning employment of lawyers with disabilities has largely framed the issues in legal terms under the ADA. He urges lawyers to rethink that approach and to treat the reasonable accommodation requirement as a means of complying with professional obligations to clients, as well as a means of advancing core values of the legal profession. (P. 1750.)
Professor Long notes that disciplinary rules in a few jurisdictions expressly prohibit discrimination. Because the failure to make reasonable accommodations is treated as discrimination under the ADA, lawyers arguably have an ethical duty to make accommodations in jurisdictions with anti-discrimination ethics rules. (P. 1779-80.) In other states, Professor Long asserts that managing and supervisory lawyers are ethically obligated to make reasonable accommodations because state versions of ABA Model Rule 5.1 require that they make “reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” (P. 1781.) Rule 5.1(b) imposes similar obligations on supervising attorneys. Thus, Professor Long argues that these rules require that that partners and supervising lawyers take steps to ensure that other members of the firm are providing competent representation. (P. 1781.)
In discussing lawyer’s ethical obligations to make reasonable accommodations Professor Long provides guidance to both employing attorneys and employees on how they approach a discourse on reasonable accommodations. This is another reason that I like this article: it provides practical suggestions on dealing with reasonable accommodation issues. It also makes concrete recommendations on how leaders of the bench and bar can promote the connection between professional responsibility, professionalism, and reasonable accommodation.
In addition to leaders of the bench and bar, other audiences would benefit from reading this article. Most obviously, hiring and managing attorneys should examine firm practices after reading the article. The article also helps lawyers with disabilities appreciate their own responsibility with respect to seeking reasonable accommodations. Professors and lawyers who work in the areas of lawyers’ professional conduct and admission to law practice should also read the article.
As noted in the introduction above, lawyers with disabilities are a group that is too often unrecognized when considering diversity of the legal profession. Although we have made some strides in advocating for increased diversity, the legal profession still has a long way to go in taking steps that actually promote diversity. Thanks to Professor Long we have a new conceptual framework that can help foster diversity by recognizing the connection between reasonable accommodation, professional responsibility, and professionalism.
Nick Robinson, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism
(Harv. Law Sch. Prog. Legal Prof., Research Paper No. 2014-20), available at SSRN
To what extent lawyers should control their own profession, determine its rules, and be the arbiters of who should deliver legal services is a question that is increasingly subject to intense scrutiny. More jurisdictions are considering whether to follow the leads of Australia and England and Wales in liberalizing their legal professions. Canada, for example, is one of the most recent.
The American legal profession expresses significant concern about non-lawyer ownership of law firms. Both the American Bar Association and the New York State Bar Association have dealt with the issue and will probably continue so to do.
Although the two are quite separate non-lawyer ownership and unauthorized practice of law are related. Liberalization of legal services markets has led to more non-lawyers undertaking legal work, which in the US would not be permitted. This is contrary to legal practice in England and Wales where virtually all the tasks lawyers do are open to others. What accounts for the difference? It isn’t a matter of style: Gillian Hadfield has argued that over-regulation prevents US lawyers from innovating and expanding their markets.
Robinson alludes to different conceptions of professionalism that underlie the proper conduct of legal practice. ‘American professionalism’ signifies commitment to values of justice and the public interest whereas ‘English professionalism’ seems to be more aligned with business interests. This crude dichotomy is just that and neither conception truly reflects either sides’ interests. For example, in the early 20th century, Julius Henry Cohen, a New York lawyer, wrote a book titled, Law—Business or Profession? In the 1930s Karl Llewellyn was castigating the ‘law factory’ for attracting the best law graduates away from social justice. These arguments have never stopped, but merely resurfaced from time to time.
The 21st century, however, is bringing these arguments to a head as a number of countries have begun to alter their regulatory regimes to allow non-lawyers to own law firms. Robinson’s paper examines three jurisdictions to see if their modifications to regulatory frameworks are having any impacts on access to civil justice and professionalism. He takes England and Wales, Australia, and the US as his case studies. Using a mix of documentary sources and interviews, Robinson compares and contrasts and provides us with an interesting set of case studies.
Perhaps the main lesson drawn from the study is that context matters. The histories, constitutions, and professions are so different that intelligible comparison is difficult but not impossible. Despite this we can theorize about professionalism. To create another dichotomy the professional project can be perceived as a means of creating rent seeking monopolies or creating pools of expertise that contribute to the civilizing function of society. What is clear is that the state plays a key role in determining what forms of regulation professions will bear.
In England and Wales, according to Robinson, the initiative for legal services reform came from the competition authorities. Neo-liberal governments saw markets as ways of promoting competition which would improve consumer access to justice with the benefits of cutting legal aid funding. The Legal Services Act 2007 imposed external regulation on the profession and opened up non-lawyer ownership of law firms. Alternative Business Structures were vehicles that would facilitate different forms of delivery. Robinson notes that of the hundreds of ABS formed most deal with personal injury work and secondly with consumer affairs. He explains the prominence of personal injury work in two ways. First, the work is easily commoditized; it isn’t complex. Second, government outlawed referral fees between insurance companies and law firms and others. As a result consolidation between insurance and law firms took place. Robinson questions whether this gives rise to conflicts of interest. He discusses two companies: Quindell, a publicly traded holding company for personal injury work and Cooperative Legal Services, the legal arm of a supermarket conglomeration. Both are ABS and both have had troubling careers thus far.
Australia, with different regulations, has seen the emergence of the publicly owned law firm and other incorporated legal practices but not the ABS. The most well known is Slater & Gordon, a personal injury firm, which floated in 2007 and has since bought a number of law firms in Australia and the UK. Australia gave rise to the new approach to regulation by emphasising the entity rather than the individual lawyer as well as focusing on principles and outcomes instead of rules.
The third comparator is the United States, which although it has nothing equivalent to the UK or Australia, has other forms that could approximate their experience. Robinson refers to LegalZoom, the online legal services company, which provides company documents and wills amongst others and has established an ABS in England. Interestingly, despite restrictive UPL laws, investment in legal technology startups in the US far exceeds that of anywhere else. His second example is troubling as it concerns companies that represent Social Security Disability claimants, a seemingly vulnerable group. They appear rife with conflicts.
From each country Robinson attempts to discern if the changes have improved access to justice. In each he is disappointed. For him the potential for conflicts and prioritizing profits over social justice are ever present in these new forms of legal enterprise. Yet these are still to be tested. While this is a critical question in the light of declining legal aid budgets, it is also nothing new. Research from 40 years ago in the UK showed that law firms were mostly situated near middle class shopping centres not close to poor housing estates. Access to justice and legal needs have always been contentious. Indeed when legal aid was introduced in the UK at the time of the National Health Service and free education, lawyers opposed it until they realised its commercial potential. The welfare state was not considered an automatic good. Maybe it is too early to say if access to justice will be improved by these new legal business ventures. At present they augment rather than replace conventional lawyers. And their style and approach to legal practice is conservative and narrow. None of the truly multidisciplinary practice has yet come to the fore. The regulatory objective of improving consumer access to law is a continuing process rather than a destination, but it is embedded in the neoliberal economy.
Turning to professionalism Robinson sees challenges. Will commercialism, i.e. the merchandising of law as a commodity as opposed to a public service, and conflicts undermine public trust? Potentially they could, but public trust was already fragile. Besides competition pressures towards opening up legal services, the other pressure was a deep public malaise against lawyers reflected in the high numbers of complaints about their ‘unprofessional’ behaviour. Protectionism and monopoly looked ugly to consumers who wanted a more responsive profession. Perhaps more transparent and accountable legal services providers can achieve this. There is no reason to believe that non-lawyer investors and owners will be less ethical than lawyers. (See Jordan Furlong’s critique of this view.) The reporting and financial accounting processes that companies have to undergo are considerably more transparent than most law firms’ procedures.
There is certainly the possibility of conflicts of interest, as Robinson indicates with Capita, which runs both migrant removal services and legal aid entitlement phone lines, and is buying a law firm. In the US companies that represent social security disability claimants are taking on contracts for the Social Security Administration thereby blurring the lines between advocacy and captive provider. But as the sociologists Terry Johnson and Julia Evetts show, professionalism is not static. It changes according to those who occupy the category and to the environment in which they work. Autonomous professionals are a highly contested category in law firms and other professions. The recent work of, for example, Faulconbridge and Muzio on globalizing law firms and that by Dinovitzer, Gunz and Gunz on corporate lawyers and clients suggest that bureaucracy and managerialism are weakening autonomy and affecting professional values. The arguments are open on this trend but there is a body of work that argues professionals organizations, outside the sphere of the alternative business structure, have mutated away from traditional collegiate partnerships towards more managed professional businesses (P2 to MPB as described by Cooper et al.) We can add Regan’s arguments about the necessity for trusted organizational cultures to inculcate ethics throughout law firms, but even this can be mutated by a firm’s specific approach to practice. Furthermore, the relationship between professional and client is increasingly mediated by third parties—insurance companies, HMOs, the state—which raises many questions about alliances and commitment that we have yet to tackle. But still legal regulators often cling to these outdated modes of professionalism.
“When did the future switch from being a promise to a threat?”
–Chuck Palahniuk, Invisible Monsters: A Novel
The legal profession is often criticized as disinterested, if not fearful, of innovation in the delivery of legal services. As Benjamin Barton observes in the introductory chapter of his forthcoming book, Glass Half Full: The Decline and Rebirth of the Legal Profession: “Law may have changed less than any other area of the economy between 1850 and today. The same basic product is being sold and the same basic service is being performed.” But, as Barton quickly notes, “[n]o one dodges the reaper forever.” Through the next thirteen chapters, Barton proceeds to provide an insightful parsing of the past, present and potential future course of the American legal profession.
In homage to Larry Ribstein’s influential article, “The Death of Big Law”, Barton discusses current challenges faced by American lawyers through four different lens: “death from above”, “death from below”, “death from the state”, and “death from the side”. Although space constraints preclude a full exploration of the detailed analysis presented in the book, a brief summary of each of these four “deaths” follows:
- Death from above: Here, Barton looks at the current challenges faced by Big Law firms after years of aggressively pursuing profits by increasing billing rates, associate-to-partner ratios and the number of lateral hires. Barton predicts that the instability resulting from these strategies (the fate of Dewey LeBoeuf is presented as a case study) coupled with increased client attention to efficiency and costs, means a future in which Big Law is faced with a significantly narrowed scope of business. While truly specialized “bet the company” legal work will continue to occupy some Big Law lawyers, Barton argues that much of the routine work currently performed will be taken up by cheaper alternative modes of delivery such as outsourcing and new technological solutions.
- Death from below: In Barton’s view, sole practitioners and small firms will face a similar squeeze in the future as a result of increased computerization. Drawing from Clayton Christensen’s work on disruptive innovation, Barton observes that businesses like LegalZoom were able to gain an initial foothold in the market by doing work at the lowest margins, like selling legal forms. Although such businesses may not have originally been a source of significant competition (and, thus, concern) for lawyers, they have continued to move up the food-chain by offering more sophisticated products at cheaper prices. The result? Even without a move to deregulation or the introduction of alternative business structures, as has happened in England and Australia, Barton contends that solo practitioners and small firms will see a dramatically decreased market share: he writes, for example, that “[o]utside of court, it seems likely that any work that can be routinized or rationalized will be swallowed up [by competition from machines].” Moreover, it seems doubtful, according to Barton, that the legal profession will be able to continue to take solace in the availability of unauthorized practice of law prosecutions to defend its turf. He observes that “websites [offering free or very inexpensive legal advice] and virtual law firms have largely avoided prosecution for the unauthorized practice of law (“UPL”), and some, like LegalZoom, have grown so large and prevalent that the time to quietly nip them in the bud has passed.” More competition and less protection = death from below for solo practitioners and small firms.
- Death from the state: Barton also explores challenges to lawyers’ future livelihoods arising from governmental and judicial efforts to curb litigation. A chapter detailing “death from the state” highlights, among other things, tort reform efforts, moves by the Supreme Court to tighten pleadings standards, and funding cutbacks to programs that provide legal services to impoverished Americans. Taken together, Barton contends that such trends will have an ongoing negative impact on the market for lawyers. One might wonder how much these trends signal a shifting market rather than a sinking market: is this simply about less litigation (and more mediation and arbitration) rather than less lawyering? Although Barton does not address this issue in a general manner, his discussion of the “rise of the settlement mill, where a few lawyers front a mass of non-lawyers who work solely on getting settlements for as many clients as they can, rarely, if ever, litigating” suggests that there are important quantitative changes at work in addition to possible qualitative ones.
- Death from the side: One final piece of the puzzle explored is the familiar issue of the oversupply of law school graduates. Although there has been significant publicity on this trend and its consequences, Barton’s account is particularly interesting for its long-term view and his careful parsing of statistics. He notes, for example, that “[c]ontrary to the current focus on the size of law school classes, the steepest increase occurred in the 1970s, not the 1990s or 2000s.” Unsurprisingly, Barton sees the upshot of this trend as compounding the other threats to lawyers’ livelihoods: “When more people compete over less work the cost of that work goes down for consumers and wages also decline.”
In tracing these trends, Barton pulls no punches in setting out a devastating case of how short-sightedness and greed by Big Law partners, law school deans and faculty, and plaintiff-side lawyers has led to inertia and self-destructive decision making. As he elegantly summarizes: “Each has mortgaged the future and sullied their reputations in pursuit of short-term gains and quick cash.” The blame that Barton metes out, however, is balanced by his careful situating of the current gloomy state of affairs in the context of broader historical, cultural, legal, economic and technological trends.
True to the spirit of his title, Barton’s Glass Half Full is consciously not all doom and gloom. Accompanying Barton’s clever “four deaths” framework are a number of positive forecasts for the future.
One set of promising predictions concerns consumers, who Barton contends will be major beneficiaries of current trends. Among other things, Barton sets out a case for how technology can improve access to justice. On this topic, he is careful to acknowledge two important caveats: first, that computerization will not help those who are illiterate or who don’t have ready access to a computer and, second, that “technology will not reach all of American legal need equally” (in particular, he notes that providing legal information and drafting of legal documents like wills and divorce papers are things that computers can more easily help with than things like legal advice and in-court litigation work).
Barton also directly addresses the oft-raised concerns about the quality of technology-facilitated legal services. In support of his case, he cites, in part, the general absence of bad publicity or lawsuits against businesses like LegalZoom and the wealth of consumer review opportunities on the Internet. To be sure, both of these things are comforting, to a point. An additional issue that might have been usefully explored is the impact of legal services’ status as credence goods (i.e. as goods that consumers have difficulty in assessing the quality of) on how we can meaningfully assess consumer harm when it comes to technological innovations in the delivery of legal services. Nick Robinson’s recent work sounds another note of caution given his observation that “the impact of LegalZoom and companies like it so far on access to legal services” is neither well documented nor easy to assess.
The other half of Barton’s glass half full argument is that lawyers and law schools ultimately stand to benefit from the impending changes. For lawyers, Barton argues that the current slowdown will bring a brighter future for those who are able to remain employed in the form of alternatives to the often soul-crushing billable hour model and a narrowing of work to more interesting, complex tasks. On the entry side of things, Barton predicts that fewer students will enter law schools in future, resulting in increased competition between law schools and, eventually, better educational opportunities.
Barton’s vision of the future is far from utopian. It includes, for example, shrinking salaries, lost jobs and closed law schools. It also bears mentioning that elites of the profession appear to be occupying a healthy share of Barton’s half full glass: speaking about the future of BigLaw, for example, he notes that, “at the top of the food chain things are looking rosier than ever.” It is, however, a general lack of rose-colored glasses that is precisely this book’s strength. Barton offers some plausible positivity without being Pollyannaish. For its comprehensive and accessible (and often entertaining!) account of where we have been, where we are, and where we are headed, this book should be included on the 2015 “must-read” lists of members of the profession.