Copyright (c) 1999 Law and Society Association, University of
Massachusetts Law and Society Review
1999
33 Law & Soc'y Rev. 713
LENGTH: 22345 words
RESEARCH
NOTE: The Professions Are Dead, Long Live the Professions: Legal Practice
in a Postprofessional World
Herbert M. Kritzer
Earlier versions of this
paper were prepared for presentation at the 1999 Law and Society Annual Meeting,
May, Chicago; and for the 1999 Legal Aid Board Research Unit Conference, Legal
Aid in a Changing World, November 4-5, London. I would like to thank Hilary
Sommerlad, William L. F. Felstiner, Austin Sarat, Howard Erlanger, Neil W.
Hamilton, Susan Silbey, Nancy Reichman, and two anonymous reviewers for comments
on an earlier draft of this essay. I also benefited by comments and discussion
at a faculty seminar at William Mitchell College of Law where the paper was
presented. I would like to also acknowledge the series of grants from the Law
and Social Science Program of the National Science Foundation (SES-8320129,
SES-8511622, SES-9212756, and SBR-9510976) that have supported my research over
the years and that, in turn, have greatly shaped my understanding of and
thinking about the legal profession. Address correspondence to Herbert M.
Kritzer, Department of Political Science, University of Wisconsin, 1050 Bascom
Mall, Madison, WI 53706-1389 (e-mail: <kritzer@polisci.wisc.edu>).
SUMMARY: ... The American legal
profession is facing challenges that are sending tremors through its
institutional foundations. ... My intention is to provoke reexamination of some
of our assumptions about the legal profession as an institution. ... In
contrast, the legal profession in the United States has been more
entrepreneurial. ... One result is increasing conflict between the legal
profession and the government that must fund legal aid. ... I then turn to the
implications of postprofessionalism for the legal profession and legal practice.
... In the late twentieth century, Abel argues, the legal profession in
particular lost these kinds of controls (Abel 1986a). ... To some degree, recent
patterns reflect global developments; that the definition of formal professional
domains varies sharply from one country to another means that nonlawyers in some
countries have handled tasks that in other countries are the preserve of the
legal profession (Abbott 1988:275-78; Abel-Smith & Stevens 1967:401-2). ...
What specific changes might we see in the legal profession? Let us now turn to
that question. ... ___ (1986b) "The Transformation of the American Legal
Profession," 20 Law & Society Rev. 7-17. ...
TEXT: [*713]
The American legal profession is facing challenges that are sending
tremors through its institutional foundations. On the one hand, U.S. lawyers
appear to be wielding ever increasing power as reflected in recent victories in
litigation with cigarette manufacturers and in the now pending challenges to the
firearms industry. At the same time, the profession finds its traditional
prerogatives under increasing challenge with the push for multidisciplinary
professional practices, direct encroachment by a variety of service providers
(accountants, consultants, paralegals, etc.), and mounting political attacks on
the profession for its apparent greed (e.g., huge fees from the tobacco
litigation) and apparent arrogance (Glaberson 1999). Much as the businesses and
governments who bear the bulk of health care expenses forced major restructuring
of health care delivery, the large consumers of legal services (which are
consuming an ever larger share of legal services; see Heinz, Nelson, &
Laumann 1998) are seeking means of limiting and monitoring the costs of those
services (ibid.; Kritzer 1994). Lawyers increasingly find themselves working not
as independent professionals but as employees of bureaucratically organized law
firms, corporations, [*714] and government. The dynamics of this
change, combined with shifts in where legal effort is directed, have attracted
the attention of scholars (Galanter & Palay 1991; Heinz et al. 1997; Heinz,
Nelson, Laumann, & Michelson 1998; Seron 1996; Spangler 1986; Van Hoy 1997)
in no small part because it has major implications for how we think about the
legal profession, in its multiplicity of forms, as a profession. n1
Although revolutionary changes are still nascent for the
legal profession, change has been very dramatic in the American medical
profession. In less than a decade, American doctors were brought into a
structure of institutional and corporate medicine that contrasts sharply to the
professional structure that had developed and thrived during most of the
twentieth century (see Brame 1994; McKinlay & Stoekle 1988). n2 Services
that were once the exclusive preserve of licensed professionals are being
delivered [*715] by specialized nonprofessionals who may or may not
work under the nominal supervision of a professional (see also Beardwood 1999).
Sellers of products such as pharmaceuticals pitch directly to consumers rather
than limiting their marketing to the medical practitioners who must prescribe
the product for the consumer to have access to it. Consumers turn to information
sources unavailable in the mid 1990s to obtain information that once was the
virtual preserve of the professional service provider, and they can access that
information without having to first learn a complex system of categorization of
the type customarily used to organize specialized information (but see Brody
1999; Davis & Miller 1999; Miller 1999). In addition, consumers can connect
with other consumers to share experiences and information and to provide support
to one another (Bly 1999a, 1999b).
We are moving into a
period in which the role of professions such as law and medicine as they are
known in the Anglo-American world is radically changing and may be in sharp
decline (Abel 1986a). Although I hesitate to add another "post-xxx" to a lexicon
now overflowing with "posts" (postmodernism, poststructuralism, postmaterialism,
postindustrialism, post-Soviet, post-this, and post-that), a concept that begins
to capture the full dimensions of these developments is postprofessionalism. n3
In the discussion that follows, I focus on this idea; I do not seek to provide a
comprehensive review of either the concept of "profession" or of recent
developments in legal professions around the world. n4 Rather, I describe what I
see as key major developments, both within and outside the profession, that are
driving changes in the way the lawyers practice and how consumers, broadly
defined, access legal services in the Anglo-American world. My intention is to
provoke reexamination of some of our assumptions about the legal profession as
an institution. As suggested by the title of this piece, the changes wrought by
postprofessionalism will not mean the extinction of professions, but rather a
wholesale reshaping of this turn-of-the-millennium institution, hence my
suggestion, "the professions are dead, long live the professions."
[*716]
Professionalism and Postprofessionalism
What specifically do I mean by postprofessionalism? The starting point
to answer this is a definition of "profession."
Professions: Multiple Conceptions
One
problem with thinking about professions is that the term profession can be
defined and conceptualized in many different ways (Barker 1992), three of which
I label the common parlance definition, the "historical" definition, and the
sociological definition, with the first as the most inclusive and the last as
the least. My focus is on the sociological, but it is important to recognize
that there are a variety of meanings attributed to the concept.
Profession, according to the "lay definition," is almost synonymous
with "occupation" and is distinguished primarily by means of its antonym,
"amateur." As commonly used in lay parlance, a "professional" can refer to a
firefighter, a plumber, an auto mechanic, a secretary, a teacher, a salesperson,
a social worker, a lawyer, a doctor, or a member of the military as well as many
other occupations. Members of all these occupations often choose to pride
themselves on their "professionalism," and by referring to themselves as a
"professional" (e.g., a "professional secretary" or a "professional
firefighter"), they mean that they perform a particular line of work as a means
of livelihood and are committed to what they view as a set of standards of
performance. As this discussion makes clear, there is an important distinction
to be made between the occupational category of "professional" and what might be
described as an ideological commitment to "professionalism," referring to
expectations of work performance. The term professionalism can also be used to
refer to possessing the occupational status of a "profession" (in any of the
senses of profession discussed here) without regard to what might be labeled as
the ideology of professionalism. n5 In my concept of postprofessionalism, the
"ism" is used in the latter sense (in the same sense as the "ism" in
"postindustrialism").
Professions, according to the
"historical" definition, include a broad class of occupations that are
characterized by "trained expertise and selection by merit, a selection made not
by the open market but by the judgment of similarly educated experts" (Perkin
1989:xiii; see also Bell 1973). n6 These professions are built on human capital,
and typically involve some recognition of qualifications and some sort of career
hierarchy (Perkin 1989:2). Some occupations are able to restrict entry by
enforceable licensing [*717] rules based on recognized expertise
(such restrictions can extend from physicians and lawyers to insurance agents
and stock brokers, both of which are licensed through a testing procedure).
Others may be able to achieve a recognition of a strong credentialing process
outside a state-based enforcement structure (e.g., librarians, engineers,
college professors). Still other occupations have no licensing process and at
best a weak credentialing process, but nonetheless are associated with an
expertise that has led to the appellation "professional" (e.g., managers,
computer programmers). n7 The key elements to professionalism in this broad
sense are the creation of and recognition of trained expertise and the
structuring of occupations around this expertise. Within developed economies,
professionalism of this type is endemic and is one of today's key features
(Perkin 1996). I refer to professions defined in this sense as "general
professions."
The sociological definition uses
"professional" in a still more restrictive sense. n8 As with the historical
definition, professional occupations are a feature of a particular stage of
economic development. Professions are specific occupational groups that are at a
minimum defined as "exclusive occupational groups applying somewhat abstract
knowledge to particular cases" (Abbott 1988:8). Two key elements to this
definition go beyond the historical definition: exclusive occupational groups
and the application of abstract knowledge. n9 As noted above, many occupational
groups enjoy exclusivity (through licensing or union structures), and abstract
knowledge is today applied by many technical occupations (e.g., computer
programmers, electronic repair technicians). It is the combination of recognized
exclusivity with the application of abstract knowledge that defines what
sociologists label as professions. Professions in the sociological sense have
further distinguished themselves by adding notions of altruism, regulatory
autonomy through peer review processes, and autonomy vis-a-vis the service
recipient (i.e., the professional tends to control the relationship with and the
service provided to the client/patient/customer). By combining these
characteristics with their abstract knowledge-based expertise, these professions
have regularly asserted claims of independence that other occupational groups
have never successfully advanced (Larson 1977). n10 [*718] And
although there have always been issues of degree of autonomy, control, and
expertise, it is the future of professionalism defined in these terms that is
the focus of this essay. For purposes of clarity, I will refer to these as
"formal professions." As should be obvious, formal professions are a subset of
general professions. Also, formal professions tend to conflate the two different
meanings of "professionalism"; that is, achieving the status of profession is
equated with maintaining the ideology of professionalism as reflected in the
definitional elements of formal professions.
Although
general professions reflect a particular stage of economic development, formal
professions as I am considering them are even more embedded in a particular
social, economic, and political structure. The occupations that compose the
formal professions in Anglo-American countries exist in some form in all
developed societies, but the position of these occupations in English-speaking
countries is not found in all other developed societies (Dezalay & Garth
1997). In particular, parallel occupations do not necessarily possess the kinds
of prestige and autonomy possessed by the formal professions. For example, the
formal professions of England and the United States tend to stand at the top of
the occupational prestige hierarchy. In France, in contrast, the graduates of
the grande ecoles (e.g., Ecole Normale Superior, Ecole Nationale
d'Administration, or Ecole Polytechnique) stand at the top of the status
hierarchy; these schools "do not prepare specifically for professional careers
but offer a general education to a social elite" (Perkin 1996:79), and it is
state employment in the grand corps (most of whose members are recruited from
the grande ecoles) that constitutes the top of the employment hierarchy. The
members of the grande corps constitute general professionals, but are not
necessarily formal professions as I am using the concept.
Even the formal professions differ in important ways across national
settings. Although mindful of its economic well-being, the English legal
profession was strongly embedded in a status system that placed an emphasis on
particular types of legal services (e.g., transfer and ownership of property,
whether by sale [conveyancing] or inheritance [succession]) that was associated
with both wealth and status (Abel-Smith & Stevens 1967; Sommerlad 1995:165;
Sugarman 1996:108-12). This system led to the neglect of many areas of potential
legal practice; for example, throughout much of the twentieth century, lawyers
ceded areas such as taxes and much corporate work to accountants (Sugarman
1995). This ignoring of areas of potential practice has deep roots in the
English legal professions; in fact, at times the professions have seemingly
abandoned areas of practice that were not consistent with the status image they
were seeking (Burrage 1996:46; see also White 1976). In contrast, the legal
profession [*719] in the United States has been more
entrepreneurial. Although some elements of the profession focused on status and
prestige (see Powell 1988), these elements were never able to achieve a dominant
role, and new entrants to the profession worked hard to expand the opportunities
for income.
The medical profession is another example
of differences. In the United States, a career in medicine is a path to
substantial economic well-being. Even as the government became increasingly
involved as a funder of medical services (through Medicare and Medicaid), the
system of funding actually served to increase income of physicians because it
was initially based on a fee-for-service model. In contrast, the socialization
of the English medical system after World War II meant that medicine was not a
route to high income (comfortable perhaps) except for a small group of
physicians who worked largely outside the government-funded system. Medicine
remains a prestigious occupation in England, but it lacks the economic
opportunities that have been the case for American physicians since World War
II. The economic constraints imposed by the English system significantly changed
the nature and degree of autonomy enjoyed by physicians, while at the same time
meaning that for many patients, options that were not affordable before
socialized medicine are now available.
The sharp growth
in the role of legal aid in England has had an impact on the legal profession
not entirely unlike what happened previously to the medical profession. Legal
aid funds a significant portion of legal services in England, but subjects the
lawyers providing those services to a variety of kinds of controls that reduce
their autonomy (Genn 1988; Sommerlad 1996). At the same time, the availability
of legal aid (and increasingly private legal insurance) has meant that the
potential client pool has grown. One result is increasing conflict between the
legal profession and the government that must fund legal aid. Another result is
radical changes in what is deemed to be acceptable forms of funding legal
services; although the legal profession had long adamantly opposed contingency
fees, even as recently as the late 1970s (Benson 1979), by the mid 1980s, the
profession was looking seriously at this option (Law Society 1987a), and in the
late 1990s, the government embraced contingency fees (calling them conditional
fees) as a means of reducing legal aid expenses. n11
In
this essay, I seek to find some broad generalizations. Yet, even as I do so, I
fully recognize the limitations of context, both geographical and chronological.
The argument I advance must be considered within the reality of these
limitations.
[*720] Postprofessionalism
Postprofessionalism refers to the combination of
three elements:
1. the formal professions' loss of
exclusivity (Abel 1986a; Commission on Nonlawyer Practice 1995; Kritzer 1998)
2. the increased segmentation in the application of
abstract knowledge through increased specialization (Ariens 1994; LoPucki 1990;
Podgers 1993) n12
3. the growth of technology to access
information resources (Calhoun & Copp 1988; Clark & Economides 1988;
Katsh 1995:78-81; Susskind 1998; Wall & Johnstone 1997)
The end result is that services previously provided only
by members of formal professions can now be delivered by specialized general
professionals or nonprofessionals (see Clark 1992; Hartmann 1993). The type of
political and economic power that members of the formal professions and their
organizations were able to wield to secure their control through much of the
twentieth century (Larson 1977; Johnson 1972) cannot withstand the pressures
created by the combination of segmentation of tasks and improved access to
information. n13 Equally important is that although at one time professions
might have been able to control what information was available through the
control of journals - sponsorship, editorial control, peer review processes, and
the like (Freidson 1994:134) - the Internet and the World Wide Web have reduced
much of that control.
Part of what us happening is that
the formal professions are losing their uniqueness and are being eclipsed by
professions in the much more general sense (hence, "the professions are dead,
long live the professions"). If this were the extent of what was occurring, it
would probably make sense to label the developments "new professionalism." An
earlier literature spoke of "deprofessionalization," which Haug (1973:197; see
also Toren 1975) defines as "a loss to professional occupations of their unique
qualities, particularly their monopoly over knowledge, public belief in their
service methods, and expectations of work [*721] autonomy and
authority of the client" n14 (more recent literatures have considered
"deskilling," which means that nonprofessionals are assuming increasing numbers
of tasks that were the preserve of professionals). Neither "new professionalism"
nor "deprofessionalization" fully captures the nature of current developments. I
choose the label "postprofessionalism" because of the complexities of these
developments and the multiplicity of ways in which they are being manifested:
changing patterns of political influence, rationalization of knowledge, n15 and
the growth of technology as a tool of accessing this knowledge (compare with
Krause 1996:283-84).
How has postprofessionalism come
about, and what are its implications for legal practice in the twenty-first
century? The next section discusses in more detail the forces pushing generally
toward postprofessionalism. A discussion of the specific forces operating on the
legal profession follows. I then turn to the implications of postprofessionalism
for the legal profession and legal practice.
Moving
into the Postprofessional World
Today, a key
driving force is a change in the role of knowledge. Although he sees the most
apparent change in the shift from production of goods to production of services,
Daniel Bell once argued that the growth in the professional and technical
occupations was the "most startling change" (1973:17). The work of these
occupations revolve around knowledge, and it is around knowledge that what Bell
called the "postindustrial" society is organized. Bell observed that knowledge
has been "necessary for the functioning of any society," but went on to argue
that what distinguishes knowledge in the postindustrial society is the
centrality of "theoretical knowledge - the primacy of theory over empiricism and
the codification of knowledge into abstract systems of symbols" (ibid., p.
20).
Bell failed to see one implication of the
codification of knowledge that is changing the role of occupations such as the
formal professions today. The codification of knowledge makes possible the
subdivision of expertise in ways that allow persons with much less than
traditional professional training to deliver services that rely on sets of
abstract knowledge previously the province of formal professionals. The
codification and general systematization of knowledge and information also make
it possible to develop new ways of imparting and accessing that knowledge.
Furthermore, the more that knowledge can be converted [*722] to or
expressed in terms of information and decisionmaking rules, the more the tools
of information technology can be brought to bear in accessing and using that
knowledge.
As noted above, ideas of practitioner
independence and autonomy lie at the core of the standard image of the formal
professional. Over a 15-year period (1980 to 1995), the percentage of private
practice lawyers working in firms of six or more went from 29% to 38%.
Increasingly, we are coming to see formal professionals, not just lawyers, as
working in institutional or bureaucratic settings that are designed to control
workers rather than to foster autonomy (see Galanter & Palay 1991; Spangler
1986; Van Houtte 1999). This change does not necessarily come as a surprise,
having been described in the 1970s as part of what some observers labeled
deprofessionalization (Haug 1973; Toren 1975). This bureaucratization is closely
connected to the rationalization and compartmentalization of knowledge. n16
The traditional image of the formal professional as having
substantial control over the substance and conditions of his or her work has
increasingly come to be questioned (Abel 1989). Although some might argue that
the degree of control was never as great as the professional image might suggest
(Auerbach 1976:40-73; Carlin 1962; Heinz & Laumann 1982:360-65), the lament
that the practice of law has become "just a business" has become common, and the
struggle to recapture the supposed spirit of professionalism is a theme that has
regularly recurred (American Bar Association 1998; Commission on Professionalism
1986; Glendon 1994; Gordon & Simon 1992; Kronman 1993; Linowitz 1994;
Solomon 1992). n17 Abel has characterized the loss of control experienced by the
legal profession as the "decline of professionalism." Drawing on the work of
Larson (1977), Abel (and others) argues that professions are largely economic
entities designed to limit entry ("control the production of producers") and
limit competition from within and without ("control the production by
producers"). In the late twentieth century, Abel argues, the legal profession in
particular lost these kinds of [*723] controls (Abel 1986a). n18 As
I discuss in detail elsewhere (Kritzer 1998, 6-14), the struggle for control
over production has gone on throughout the twentieth century in the United
States, and the profession has never had the level of control that it wanted; in
other common-law countries such as England, the professions have typically had
control over only a very narrow range of what in the United States is deemed to
be the practice of law (Abel-Smith & Stevens 1967; Sugarman 1996).
A Historical Parallel
Of
course, professions are not the only entities that served to limit competition,
nor are they the only entities that have lost that control. One can see
parallels in what happened to skilled craftspeople during the Industrial
Revolution and what is happening to the professions (Krause 1996; Posner
1993:6-13). Prior to the modern factory, craftspeople produced most
nonagricultural goods for sale. Becoming a craftsperson was typically a process
that involved several years, usually achieved by serving an apprenticeship. The
craftsperson usually possessed a number of interrelated skills that together
were necessary to produce a type of product. Over time, the guild structure,
which typically involved a master craftsperson with a group of apprentices and
journeymen working in the master's workshop, developed. In addition, the craft
guilds relied on their relationship with the state to maintain monopolistic
control over the production of specific products (Kramer 1927), although the
state's endorsement was probably most important for the monopolies held by the
various merchant guilds; in addition, it is doubtful that the ending of state
support was central to the eventual demise of the guilds (see Kramer
1905:145-47). In return for state protection, guilds served as a source of
revenue and took on civic responsibilities that the rudimentary governmental
apparatus could not handle.
Eventually, many crafts
evolved increasing levels of differentiation within the production process,
which in turn led to increasing differentiation between the masters and those in
apprentice and journeymen roles. In some crafts, journeymen began creating their
own organizations to meet workplace and social needs. n19 The rationalization of
the production process, combined with the invention of machines, eventually led
to the development of the factory. Industrialists were able to isolate the
individual [*724] tasks needed for production and then hire workers
each with just enough skill to carry out one or several of those tasks. The
result was cheaper production of goods, a shift from human capital in the form
of skilled craftspeople to industrial capital, and the effective end of many
crafts except for highly specialized or artistic applications (Ashley 1906:169,
218-22; Schneider 1969:34-46).
Much as today one
function of formal professions is to insulate and protect their members, prior
to industrialization the guilds provided the kind of protections for their
members that Abel describes as the underlying rationale for the professions
(Krause 1996; Posner 1993:6-11). Just as formal professions in the
English-speaking world have enjoyed substantial autonomy, n20 craftspeople
enjoyed considerable autonomy through the guild structure (Black 1984:12-26).
The guilds lost power and control not just because previously independent,
skilled workers were brought into situations of dependence, but because the
nature of the work itself was fundamentally reorganized. The development of the
factory model of production played an important role, serving to replace the
dominance of commercial capital with industrial capital (Unwin 1963:70-102). By
combining technology with a process of rationalization, industrialists were able
to eliminate the kind of craft-based skills required for preindustrial
production of goods. The resulting division of labor meant that industrial
workers needed only very narrow skills to carry out their role in the production
process (Posner 1993:12). Employers could impart the skills necessary with
relatively little expense. A small number of persons with high levels of skill
continued to be needed to design factories and production modalities, but the
typical level of skill needed in the production process was greatly reduced.
At the same time, the political protections enjoyed by the
guilds began to disappear, in part from developments in the structure of the
state and in part from the growing role of trade beyond local communities and
individual nations. The state came to depend less on the guilds for revenue as
other forms of taxation developed, and the state evolved its own infrastructure
to take on the civic functions that the guilds had handled. n21 At the same
time, improved transportation made communities less dependent on local producers
and made it more difficult for local guilds to enforce monopoly rights (Kramer
1927:185-210).
[*725] Postprofessionalism
involves a similar phenomenon, but rather than the production of specialized
goods, it concerns the production of specialized services. Much as craftspeople
were displaced by early technological developments and the division of tasks
into relatively simple elements, formal professionals are being displaced by
service providers organized around highly specialized tasks who may, when
needed, draw upon modern technological tools to access information. Just as
craftspeople viewed this new form of goods production as a threat to their
livelihood, members of formal professions are having to deal with the economic
threats posed by specialized service providers. Where industrialization help to
shatter the then-current economic role of persons skilled in the use of their
hands, equivalent developments for those skilled in the use of their heads are
evident today. The changing nature of work combined with loss of state patronage
and the globalization of economic activity constitute the conditions for
postprofessionalism.
Why the Professions Are Losing
Control
As Abel has observed, the legal
profession has lost control over both the production of producers and the
production by producers (Abel 1986a). Abel argues that the development, and now
the decline, of the professions reflected a historical "trajectory of
professionalism"; that is, professions are "historically specific institutions
for organizing the production and distribution of services" (Abel 1986b:7;
Crompton 1990; see also Sommerlad 1995). As suggested by the historical parallel
discussed above, one can see the decline as arising from many of the same types
of historical forces that characterized industrialization and the decline of the
craft/guild system. Three primary forces lead to the loss of control: the
changing nature of work, challenges to professional autonomy and control, and
globalization of the professional services sector.
Changing Nature of Work
The decline of
the crafts arose from two key workplace developments (which were at the core of
industrialization): rationalization of work and technological developments.
Similar changes are today evident in the professional's workplace.
Rationalization
Rationalization of the professional workplace involves three elements:
the formalization and systematization of the distribution of knowledge, the
development of standardized procedures, and the segmentation of professional
practice. The impact of rationalization [*726] is evident both with
regard to the production of producers of professional services and the
production of those services by producers.
The
rationalization of entry processes for the professions has radically altered the
production of producers of professional services (see Kritzer 1991:547-50).
Historically, professions such as medicine and law (at least in the common-law
world n22) controlled entry through a process akin to apprenticeship. The
apprenticeship model was highly personalistic and particularistic, with
decisionmaking resting largely in the hands of individuals who had incentives to
limit entry, both in terms of who was permitted entry and how many were
permitted entry. Over the course of the twentieth century, however, entry moved
to a system of formal education (see Dhavan et al. 1989), and at the same time
access to educational opportunities was no longer limited to members of the
social and economic elite (Fulton 1989; Sommerlad 1995:166). Control over entry
has shifted from the professionals themselves to educational authorities whose
incentives are to increase, not control, enrollments; thus, although few people
in the United States would contend that the country is experiencing a shortage
of lawyers, the number of law schools continue to increase as new units within
existing universities (e.g., the new law school at the University of St. Thomas,
in St. Paul, Minnesota), as free-standing institutions (Ave Maria School of Law
in Ann Arbor, Michigan, funded by conservative pizza baron Tom Monaghan), and
the online law school, Concord University School of Law (see
<www.concord.kaplan.edu>), created as a division of Washington Post-owned
Kaplan Educational Centers. The overall effects of these developments is to
rationalize the process around "objective" criteria (grades, examinations, etc.)
as opposed to the more personalized criteria of the apprentice system and to
increase the opportunities to enter the profession radically.
Rationalization is also evident in the production of services.
Traditional controls such as limits on advertising, mandatory fee schedules, and
the like have either disappeared or have been greatly relaxed. Professional
practice is increasingly marked by a combination of specialization and
delegation. In significant part, specialization is attributable to the
codification of knowledge that underlies the work of the formal professions.
Where we once thought of doctors or lawyers, we now have doctors who describe
themselves as allergists, cardiologists, dermatologists, endocrinologists,
nephrologists, neurologists, pediatricians, obstetricians, oncologists,
ophthalmologists, orthopedists, radiologists, rheumatologists, urologists, and a
whole host of surgeons and [*727] legal specialists in the fields of
criminal defense, divorce and family, elder law, insurance defense, labor law,
litigation, patents and trademarks, personal injury, real estate, environmental
law, mergers and acquisitions, workers compensation, and wills and estates.
Although the American legal profession (unlike the medical profession) has
resisted formalizing specializations, the reality is that all but the small town
lawyer and the most marginal of urban practitioners have come to specialize in
the services that they offer. n23 These specializations are evident in both the
corporate services and the personal services sectors. In the former,
specialization (and stratification related to specialization) has long been the
norm (see Nelson 1988; Slovak 1980; Smigel 1964). In the latter, successful
practitioners have come to see their work as revolving around some type of
either substantive (real estate) or process (court-oriented) specialization (see
Seron 1996). n24
As professionals have recognized the
quality and efficiency gains of specialization, they have built on the
identification of tasks within their specialized areas of work to delegate to
nonprofessionals or general professionals. Many of these tasks are extremely
routine, but not always. In some areas of practice, professionals are able to
design their practices so that relatively little of the client or patient
contact is directly with the professional. As clients and patients increase in
sophistication (through education, access to information, etc.), n25 they begin
to demand direct access to lower-cost, nonprofessional providers of specific
services previously the domain of professions. Some of these nonprofessional
specialties were effectively created by professionals as means of increasing
efficiency. The result is that professionals have themselves created many of the
conditions for postprofessionalism to take hold.
[*728] Information Technology
The second major force is information technology and the resulting
changes in how knowledge is accumulated and then distributed in society. Whereas
industrialization grew as a result of the invention of machines to carry out
repetitive tasks that previously required skilled craftspeople, today it is the
rise of information technologies that can be readily employed to access codified
forms of knowledge. Given the very close linkage between information and
knowledge, the rapidly improving tools for accessing information reduce the need
to rely on highly trained individuals who have acquired extensive information as
part of their training. Whereas over the first half century of the information
age the developments revolved around information processing, the next half
century will see developments in knowledge processing (Susskind 1998:56-59).
Take, for example, the ways of delivering support for
complex technological tools such as computer hardware and software. At one time,
most sellers of these tools hired experienced professionals to provide user
consulting; support staff needed to have a thorough understanding of the
software (and frequently the hardware it ran on) to be able to diagnose and
solve user problems. Over time, information tools have emerged that allow
technology companies to build sophisticated databases of information that
persons with small amounts of training and experience can access to deal with
many, if not most, user questions and problems.
Among
providers of legal services, the traditional tools for accessing legal
information (i.e., case law) was a sophisticated set of categories closely tied
to a variety of legal concepts. These categories, developed by West Publishing
Company, form the West "Key Number" system, which in turn is integrated into the
West Digests. To access case law effectively, one needed training in the central
concepts that lie at the core of the category system. Modern information
technology has led to an alternative system for accessing case law: free text
searches using massive electronic databases (most prominently Westlaw and
LEXIS). The result is to make it possible for persons with a much less
sophisticated understanding of legal categories and principles to perform at
least rudimentary legal research. As a result of these developments, lawyers
regularly delegate research tasks to paralegals and legal assistants. n26
[*729] Challenges to Professional Autonomy and
Control
Modern formal professions in the
English-speaking world have often enjoyed the protection of the state. These
protections (e.g., licensing laws, unauthorized practice laws) have been the
primary device used to exclude potential competitors from domains considered to
belong to members of a profession. Whereas in the guild system, the state
granted protections in return for money and services, the protections enjoyed by
the professions have been justified primarily in terms of the "public interest"
or "public protection." As evidence mounts that nonprofessionals can deliver
quality services at lower cost (see, for example, Commission on Nonlawyer
Practice 1994; Kritzer 1998; Parker 1997a), it is becoming more difficult to
maintain those protections.
As tasks become specialized
and it becomes possible for persons to acquire the limited set of knowledge
necessary to deliver highly specific services traditionally the domain of a
member of a formal profession, it becomes increasingly difficult for the
profession to maintain any exclusivity over those tasks. A common claim by
formal professionals seeking to protect their domain is that someone without the
level of training required to be a full member of the profession will not be
able to recognize the complex interrelationships and subtle issues raised in a
specific case. This argument is used by lawyers seeking to ban nonlawyers from
handling real estate closings and by ophthalmologists seeking to limit the tasks
that can be carried out by optometrists. Yet whenever previously restricted
tasks have been opened to new providers, the problems predicted by the
profession opposing relaxation of restrictions have failed to materialize in
significant numbers (if at all).
To date, the medical
profession, at least in the United States, has succeeded in maintaining control
over most nonprofessionals who might be potential competitors for routine
service delivery. Health maintenance organizations and other organizational
providers of medical care use specialized paraprofessionals for an increasing
number of tasks. n27 Although it still at least appears that the professional
physician is formally in control, that control is shifting from the physician to
the organization and even directly to the paraprofessional (see Freudenheim
1997). As part of this shift, the paraprofessional providers may be achieving
elements of autonomy (from physicians if not from organizational employers) that
they had not previously enjoyed. Whereas before the paraprofessional was limited
to roles that supplemented physicians, they are today increasingly supplanting
physicians, which in turn reduces the number of physicians needed (see Kilborn
[*730] 1997). These changes reflect the health care providers' needs
to obtain economies. As physicians lose jobs within these organizational medical
providers, they will have to deal with the pressures of postprofessionalism.
n28
Globalization of the Professional Services
Sector
The last development has been the
globalization of the professional services sector (Aharoni 1993; Dezalay &
Sugarman 1995; Flood 1995; Flood 1996; OECD Workshop on Liberalisation of Trade
Services 1997). Here I use the term globalization very broadly to encompass the
widening geographic horizons of how professional services are provided. At one
time, professional services were delivered almost exclusively on a local basis:
doctors, lawyers, and accountants practiced locally, drew clients locally, and
relied on local institutions (courts, hospitals, etc.). Accountants were the
first of the professions to develop nationally (and then internationally),
primarily because they serviced large corporations with operations in many
locales and many countries. The corporate sector of the legal profession was
next, as it too devised new ways to meet the needs of large corporate clients;
developments such as the European Union have spurred these developments along
(Whelan & McBarnet 1992). n29 In recent years, elements of the personal
services sector of the bar have also begun to reach out beyond their local
communities (e.g., statewide law firms advertising for personal injury clients,
securities specialists seeking clients around the country, and mass tort
specialists flying off to sign up clients at the most recent international
disaster). The development of large hospital corporations has begun to move
medical practice into a wider geographic base, although the idea of regional
speciality-center hospitals has been around for some time.
The geographic widening of the market for professional services
reflects the combination of improvement in transportation, communication
technology, and information technology. Today, a physician in Istanbul can
consult with a specialist in Rochester, Minnesota, almost as easily as with
someone in Istanbul. Communication [*731] technology allows the
local physician to fax test results, medical histories,and so on, and that same
technology can allow instantaneous transmission of electronic data (EKG, digital
imaging, etc.) that at one time would have necessitated the patient traveling
10,000 miles. Similarly, information technology allows lawyers in New York,
London, and Singapore to work simultaneously on documents needed for a complex
financial transaction in Hong Kong. A personal injury lawyer in Charleston,
South Carolina, can obtain copies of previous depositions by an opposing expert
witness via overnight courier (or even within the hour using facsimile
transmission) from an attorney in Portland, Oregon. Or, a solicitor in England
working on tobacco-related cases can access key documents obtained from American
tobacco companies via the Internet.
Once it becomes
difficult to control competition from players beyond a professional group's area
of political influence, the ability to maintain the group's professional
monopoly is doomed. It is only a matter of time before competition from within
the local community (i.e., nonprofessionals) will join the competition from
without.
Lawyers Confront Postprofessionalism
For the lawyers, postprofessionalism is real and
immediate:
. Although
corporate lawyers have for many years been very attentive to the demands of
their fee-paying clients, corporations have become increasingly sophisticated in
their use of legal services (Banks 1983; Brennan 1998a; Morrison 1998; Wessel
1976). n30 In the 1970s, corporations might have automatically turned to "their"
outside law firm, but today corporations put work out for bid, inviting
interested firms to participate in a "beauty contest." Furthermore, corporations
regularly demand that their outside law firms consider alternatives to hourly
billing in pricing their services (but see Barrett 1996; Leibowitz 1998; Richert
1994). More generally, lawyers are having to recognize and deal with growing
consumer consciousness, particularly in the United States but increasingly
elsewhere as well (Flood 1991; Goriely 1994; Hanlon 1997:813; Henning 1992;
Jones 1988:686; Sherr et al. 1994; Sommerlad 1995).
.
Until recently, a lawyer who achieved partner status in a large corporate law
firm could look forward to a secure position and many years of a substantial
income, but today corporate legal practice has become a world of change and
turmoil. Employment structures have radically changed to include a variety of
types of positions, and firms regularly [*732] shed partners, n31
dissolve (see, for example, Kumble & Lahart 1990), and merge (Galanter &
Palay 1992:50-61). Life in a large corporate law firm increasingly resembles
life in the management sector of any large business.
.
In the 1980s and 1990s, a number of bar-related groups and commissions have been
appointed to examine the issue of whether it is time for the legal profession to
come to grips with the reality of nonlawyers providing a wide range of legal
services; typically, the resulting report has recommended finding a way to
accommodate (and regulate) the competing providers (Commission on Nonlawyer
Practice 1994, 1995; Ianni 1990; Public Protection Committee 1989).
. We are beginning to see the development of
computer-based "expert systems" that can be employed to handle routine cases
such as valuing personal injury claims or uncontested divorces (Archer 1996;
Wall & Johnstone 1997:109-11; Webster 1994).
The response by the legal profession to these and
other developments has been to try to hold onto an outmoded image of
professionalism. Compared with other professions, the legal profession may have
had a stronger ally in the state because of its close connection to state
functions (Krause 1996:253; Rueschemeyer 1989). Nonetheless, although lawyers
have avoided coming to grips with the "brave new world" of postprofessionalism,
that avoidance has not prevented that new world from emerging.
Resisting Competitors
The legal
profession's continued resistance to the tides of postprofessionalism is nowhere
more evident today than in their efforts to retain control over the market for
legal services (Baker 1999). Segments of the bar have strenuously opposed any
opening of what they deem to be legal practice to nonlawyers (see France 1995a),
even though nonlawyer practice is already common in many areas (Commission on
Nonlawyer Practice 1995; Kritzer 1998); to date, they have largely succeeded, at
least in terms of formal rules. Whether the bar can successfully resist
significantly increased intrusion of nonlawyers into areas previously claimed by
lawyers much longer is doubtful. n32 The strategies (see [*733]
Brockman 1997; Witz 1992) previously pursued by lawyers and other professions
simply are ceasing to be as effective as they once were, and the number (and
vigor) of actual and potential competitors is sharply increasing.
On the political side, observers have pointed out that
U.S. legislatures are relatively unique in the high proportion of lawyers among
their members. One might argue that lawyers have only maintained their control
over delivery of legal services because of their political strength. This
argument, however, neglects that professional monopolies have involved fields
other than law (Krause 1996; Larson 1977). Furthermore, the conflicts within the
legal profession, both in the United States and elsewhere, are deep and
longstanding (see Auerbach 1976; Krause 1996:191), and given the depth of the
conflicts, there is no reason to expect that the profession itself would be
united over the issue of what constitutes legal practice.
What else besides politics might be holding back the postprofessional
tide in the legal services market? It might be that clients value the
professional/client relationship in ways that will make moving
toward paraprofessionals difficult. Seron argues that the solo and small-firm
lawyers she studied perceived that the relationship they had with a client was
very important from the client's perspective (Seron 1996:106-26). Interestingly,
in the cases where this relationship is probably the most true - divorce cases -
many of the practitioners are uncomfortable with the nature of client
expectations for the lawyer/client relationship. They see the client as
expecting a relationship that the lawyer either cannot guarantee to deliver, the
knight in shining armor advocate, or is not trained to deliver, the social
worker/therapist (but see Cotts 1998; Sarat & Felstiner 1986).
Although many clients do want a "relationship" with the
provider of "professional" services, others see the professional simply as a
service provider from whom they want an efficiently delivered service.
Expectations vary among clients and patients in the same way that expectations
vary among consumers generally. Just as some consumers value the product of the
craftsperson and will choose that over the more standard industrial product
despite the increased cost, some consumers may prefer a relationship with a
professional and be willing to pay for it. This pattern exists in today's
medical marketplace. There is a lot of discussion of the breaking of the
traditional doctor-patient relationship. n33 Although many people are forced by
employers or others to obtain medical services through one of the new types of
organizations, others have a choice. Typically, that choice involves paying
[*734] a premium for the traditional fee-for-service medical
service; just as some fraction of consumers of products pay for the "handmade"
or "custom" item produced by a craftsperson, some people are willing to pay a
premium to maintain a traditional doctor-patient relationship and to increase
their flexibility of choice among medical service providers. In 100 years, it
will be interesting to look back and see if the expectations associated with the
doctor-patient relationship have disappeared as those who remember, probably in
somewhat idealized terms, "the way it used to be" pass from the scene.
At the other end of the spectrum, the corporate hemisphere
continues to resist moving toward multidisciplinary practices (Lee 1992:39-42;
Van Duch 1999a), even as pressures to do so mount (Van Duch 1999b). This
resistance is at the same time that large accounting firms are moving into areas
previously the preserve of lawyers (see Dezalay 1992:165-201; Dezalay &
Sugarman 1995). To some degree, recent patterns reflect global developments;
that the definition of formal professional domains varies sharply from one
country to another means that nonlawyers in some countries have handled tasks
that in other countries are the preserve of the legal profession (Abbott
1988:275-78; Abel-Smith & Stevens 1967:401-2). The big accounting firms have
the resources and muscle to chart new directions in methods of delivering
professional services to the corporate community. Leaders of the legal
profession raise alarms about these developments (see Fox 1998), pointing to
professional standards (e.g., conflict of interest rules) that differentiate
lawyers from accountants. Even while bar leaders raise such alarms, however,
some of the traditional "advantages" of the legal profession erode. In the 1998
legislation reforming the U.S. Internal Revenue Service (IRS), accountants and
others authorized to practice before the IRS were granted the equivalent of
attorney-client privilege in noncriminal tax matters (Johnston 1998).
Previously, lawyers could use their privilege, which was not held by
accountants, as a means of attracting tax clients. Although lawyers still have a
privilege advantage in criminal cases, for large corporations it is seldom an
issue.
Whereas previously the legal profession lost
control over the production of producers to the legal academy, the near future
is likely to see substantial erosion in the profession's control over the
production by producers. This erosion will come from challenges by potential
competitors (other professions such as accounting and paraprofessionals), from
economic pressures to reduce the cost of legal services, and from politicians
seeking to capitalize on the apparent public disaffection with lawyers (Ballard
1999). What specific changes might we see in the legal profession? Let us now
turn to that question.
[*735]
The Next Round of Changes in Legal Practice
Specialization
The issue of specialization, which
is by no means new, n34 continues to be extremely controversial (see Rosen
1990). Anglo-American legal professions cling to the image of the general
practitioner, and there are many such practitioners at work across the country,
particularly in smaller cities and towns (Economides 1992; Landon 1985, 1990),
but they are increasingly the exception. In addition to the general structure of
corporate legal firms, some substantive areas (e.g., tax and intellectual
property) have long been the province of specialists.
Only since the 1970s has the issue of specialization begun to produce
any formal developments, with the California bar adopting the first state-level
system for certifying some specialists in 1973 (LoPucki 1990:53) and private
groups such as the National Board of Trial Advocacy creating their own
specialist certification systems. In the United States, the specialization issue
has been closely tied up with the question of lawyer advertising: under what
circumstances should a lawyer be permitted to hold himself or herself out as a
specialist in a particular area (see Podgers 1993)? The ABA Model Rules of
Professional Conduct prohibit lawyers from claiming specialization except in
officially recognized categories (ibid., p. 2). In the wake of the U.S. Supreme
Court's 1977 decision striking down absolute bans on lawyer advertising, Bates
v. State Bar of Arizona (1977), the ABA moved to create model standards for
specialty areas, adopting a plan developed by the Standing Committee on
Specialization in 1979 (see Rosen 1990:3).
Only a
minority of states have actually adopted systems for certifying specialists (ABA
Standing Committee on Specialization 1993; LoPucki 1990:53), and proposals for
such systems have often been controversial (see also Gherty & Dietrich 1991;
LoPucki 1990:1-2):
Would recognizing specialties give some lawyers an advantage over
others in getting clients?
Would uncertified lawyers
who actually practice in an area be more at risk for claims of malpractice in
the event of a negative outcome?
Would specialization
drive up fees?
Added to
the controversy over the impact of recognizing specialization is the dilemma of
which dimensions of specialization to recognize. In addition to substantive
areas of law (tax, admiralty, real estate), there is the question of
task-oriented specialties (litigation, [*736] administrative
process, etc.) or venue-oriented specialties (IRS, Securities and Exchange
Commission, federal court, U.S. Supreme Court, etc.). n35
Generally, the developments with regard to specialization have been
experience related rather than training related. n36 Unlike the medical
profession, n37 where one enters a formal training program (a residency) to
become a specialist, a lawyer works in the field to become certified as a
specialist. Only after a number of years of experience can the lawyer seek such
certification. One can argue that training for a specialization today is where
legal training was at the beginning of the twentieth century: it is essentially
an apprentice system (but often without the guidance of an experienced mentor).
Just as legal training moved from the law office to the law school, it may be
time that specialized training made a similar move.
Yet
even absent either formal training programs or much in the way of formal
certification programs, specialization is a reality within the practice of law.
The range of legal issues that a client may bring, whether that client is a
corporation or a college professor, is beyond the competence of a single lawyer.
A lawyer whose practice focuses on residential real estate transactions may be
able to prepare a simple will for a client whom the lawyer represented on a home
purchase or sale, but that lawyer may be well beyond his or her competence in
preparing a will that anticipates the complexities of a six-or seven-figure
estate. It would take a specialist in trusts and estates, whether a lawyer or an
accountant or possibly an estate planner, to deal with the issues involved. The
profession has to confront the realities of specialization in practice, and the
legal academy needs to incorporate that reality into formal legal education.
n38
Dissolving Disciplinary Boundaries: The Coming
Rise of Multidisciplinary Practices
Although specialization will increasingly define the nature of legal
practice, pressures also work in the opposite direction. One is the development
of multidisciplinary practices and partnerships. Until very recently, the
American (and English) legal professions staunchly maintained the position that
lawyers must not [*737] work in private practice situations where
they are under the supervision or control of nonlawyers. Among other things,
this position means that all partners in a private practice that provides legal
services must be lawyers. The stated rationale for these restrictions turns on
the types of ethical obligations lawyers have that do not apply to nonlawyers:
the attorney-client privilege, conflict of interest rules, the lawyer's role as
an officer of the court, and so on (see Law Society 1987b).
Among formal professions, only lawyers have succeeded in maintaining
these types of distinctions. n39 Large medical practices today involve a variety
of professions and paraprofessions (medicine, optometry, podiatry, midwifery,
physical therapy, social work, etc.). Similarly, the large accounting firms
include, in addition to CPAs, information professionals and non-CPA tax
specialists. Some American law firms have gotten around restrictions on
multidisciplinary practices by spinning off as separate firms units providing
services that require the expertise of professionals other than lawyers (see
Gibbons 1989; Van Duch 1998). Pressure to deal more systematically with the
multidisciplinary needs of clients has grown sharply in the last few years (Van
Duch 1999b), in part as a response to other professions, such as accounting,
which increasingly are recognized as providing services previously thought of as
in the domain of the legal profession (Hayes 1998). On the corporate side, this
pressure will be particularly intense as legal practice globalizes (Brennan
1998b), with the necessity of dealing with national differences in the
boundaries among professions. Legal professions have come to recognize the
necessity of confronting this issue:
. At its 1999 summer meeting, the American Bar
Association considered proposals from a commission created to consider the
issues raised by multidisciplinary practices (Commission on Multidisciplinary
Practice 1999; Gibeaut & Podgers 1998; Molvig 1999; Van Duch 1999a).
. The prior year, leaders of the Law Society of Upper
Canada (Ontario) debated relaxing existing bans on such practices (Rose 1998a),
and in 1999, several committees for the Canadian Bar Association and the
Federation of Law Societies of Canada came down in favor of rules to permit fee
sharing arrangements (Rose 1999a).
. In 1998, the Paris
bar voted to accept a form of multidisciplinary partnership (Rose 1998d).
. The Law Council of Australia voted on a draft policy
statement concerning multidisciplinary practices in December 1998 (Rose
1998b).
[*738] . The English Law Society
(the organization of solicitors) is involved in a consultation to try to find
some workable arrangement for multidisciplinary partnerships (Rose 1998e).
. The Dutch bar has been engaged in negotiations with
international accounting firms over permitting multidisciplinary practices in
the Netherlands (Rose 1998c).
. The International Bar
Association, at its 27th biennial conference in 1998, passed a resolution
concerning the regulation of multidisciplinary practices (Rose 1998f, 1998g).
Thus, long-standing
barriers against lawyers working in partnerships with other professionals appear
to be on the verge of collapse (but see Rose 1999b). The apparent suddenness of
recent developments might go so far as to provoke images of the tumbling of the
Berlin Wall, which had the same seeming permanence as the long-standing
prohibitions on lawyers forming multidisciplinary practices (see Law Society
1987b).
In the years to come, the lines among
professions, both formal and general, as they were known throughout the
twentieth century will become much less distinct and will perhaps begin to
disappear. The groupings of services will probably be less along the lines of
professions as defined today and much more along substantive or client lines.
Thus, for a corporation, rather than turning to (1) a law firm to handle labor
negotiations, (2) a specialized service firm to handle unemployment compensation
issues, and (3) an insurance company to handle workers' compensation, one might
see a generalized employee services firm that serviced all those areas with a
combination of lawyers, mediators, accountants, risk managers, and so on.
Similarly, where today a residential property purchase might involve a real
estate broker, an attorney, a title insurer, an engineering firm to inspect a
property, an insurance broker to provide casualty insurance and a home buyer's
warranty, and a mortgage company to provide a mortgage, in the future all these
services might be grouped into a single "home buyers' service corporation" (one
already sees effective combinations of many of these services, both in the
United States and other common-law countries). How far these kinds of
combinations will extend is the unanswered question.
Changing Structures of Firms
For those
law firms that remain focused solely on law, the structure of the firms will
almost certainly change. In the large corporate arena, this issue has been
discussed extensively, particularly in terms of the dynamics promoting
increasing size (see particularly Galanter & Palay 1992). The changes,
however, will not be limited to the big corporate firm. Two changes are already
obvious.
The first is the changing status of lawyers
within firms. The modern American law firm developed along the distinction
between [*739] lawyers who were partners (owners) and those who were
associates (employees). The corporate firm today has myriad categories: equity
partner, nonequity partner, of counsel, associate (partner track and nonpartner
track), contract lawyer, and so on. These categories have developed in
significant part to allow firms to be more responsive to client needs. The
traditional partner/associate model effectively locked firms into particular
patterns of staff and services. The much more diverse set of categories allows
firms to be much more responsive to the needs of clients and the flow of
work.
Outside the corporate firm, it is increasingly
common for lawyers to speak about positions in terms of "owners" and
"employees." Most often, these terms reflect the reality that in small firms,
the expectation is often that a lawyer-employee (a nonowner) will work in the
firm for a period of time to gain experience and then move on; the labels avoid
any suggestion of an expectation of partnership. In other situations, a law
practice may be built around the reputation of the "owner," which is probably
most common in more entrepreneurial areas of practice such as plaintiffs'
personal injury. Often, these practices stay relatively small, in part because
of the owner's dominance and in part because the work does not itself require
large groupings of lawyers. In either case, the "owner"/"employee" distinction
sees the law practice in a more clearly business-oriented mode. Despite the
frequent cries of members of the legal profession that the practice of law is
becoming "too much like a business," this trend will in fact only increase in
the future.
One way the "business" pressures will be
evident will be in increasing pressure to find cost-efficient ways to deliver
legal services. For both corporate and personal services firms, one route will
be in the increasing use of nonlawyer staff, whether called paralegals, legal
assistants, legal secretaries, or something else. These staff members will
handle relatively routinized aspects of the legal work, including basic
computerized legal research, review of documents, drafting of relatively
standard documents, interaction with outside parties (experts, service firms,
etc.), and anything else the lawyers believe that a particular paralegal is
capable of handling. The pressures for efficiencies will break down many of the
traditional barriers. As noted earlier, in England it is already common for
"legal executives" (roughly equivalent to paralegals) to handle many aspects of
criminal court work (see McConville et al. 1994), which has been a result of
pressures to reduce the cost of providing criminal defense services. These types
of patterns will become more widespread.
A second way
that business, or "commercial," pressures on corporate law firms is already
evident is in the shift from departmental structures based largely on
substantive areas of law (e.g., property, finance, contracts, tax, trusts and
estates, litigation) to [*740] structures based on the industries of
the targeted clients. Today large law firms commonly have groups organized
around major client groups such as the computer industry, healthcare,
pharmaceuticals, transportation. Although such organization is not entirely new
(it has long been common for some large firms to have large departments focused
on banking), there does appear to be something of a shifting emphasis toward
defining practices based along commercial lines rather than along
legal-professional lines (Hanlon 1997:809-10).
Changing
Demands on (Corporate) Firms
Increasingly, the
concern of legal practitioners is one of efficiently delivering their product in
a way that ensures quality. Previously, large firms viewed the partner/associate
system as a vehicle for achieving these ends, but firms today are confronting
corporate clients who demand efficiencies and accountability that are the
anathema of the "Cravath" system. These clients no longer rely on strong ongoing
relations with a single (or primary) outside law firm; rather corporations today
look to outside lawyers for "specialized services on a case-by-case,
transaction-by-transaction basis" (Nelson & Nielson 1997:1). Thus, the
corporate client might once have seen a value to subsidizing "their" outside law
firm's development of new legal talent, but that is no longer the case.
One impact of this change is that the organizational
language of a large firm practice today looks very much like the language of
other large organizational providers of services: teams, accountability, total
quality management, information technology, and so on (see Henning 1992, 1997;
Landis 1997; Sommerlad 1995). Another impact is that where previously firms
recruited at only the entry level and promoted from within, firms today seek
legal talent across the experience spectrum; this type of staff recruitment is
also an important means of securing clients (experienced lawyers bring their
existing clients with them to their new firm). The emphasis within the firms is
no longer on professional development and professional autonomy, but on
marketing (Galanter & Palay 1992:53) and delivering the kind of service for
which wealthy clients are prepared to pay. n40
The
result of these developments is that large corporate firms seek out ways to
deliver services that provide flexibility and reduce costs. The former is
accomplished by creating new forms of employment of lawyers that avoid the
commitments of the associate/partner [*741] system; the use of
paralegals and legal assistants to perform routine tasks previously assigned to
entry-level lawyers and sometimes nonroutine tasks of the type one would expect
to be handled by more senior lawyers n41 is a key approach to the latter. Where
once the cost of training new attorneys was typically shifted directly onto
clients, today firms have to find other ways of providing experience and
training (see France 1995b). n42
Subcontracting
Elements of Legal Services
One way that
industrial production has been rationalized is through subcontracting. Rather
than producing every element of a product, manufacturers turn to subcontractors
to produce major elements that can be incorporated into their products. This
case is particularly true when the product has highly specialized elements that
must be produced in a manner that is tangential to the primary manufacturer's
production process. In the health arena, one sees this in a number of areas. At
one time, individual dentists produced "appliances" such as dentures and crowns
for their patients. Today, most dentists (at least in the United States), rely
on specialized suppliers to produce the individualized products (these suppliers
have highly skilled technicians and equipment that permit much more efficient
production that can be done by the individual dentist).
Although it is common today for lawyers to refer cases and clients to
other lawyers, either because a case is outside a lawyer's areas of expertise or
because of the resources needed to handle a case, it is unusual for lawyers to
subcontract elements of a case to other law firms (although tasks such as
litigation management are already being subcontracted). As the demands for
efficiencies increase, one might expect to see specialized service providers
develop that concentrated on very specific aspects of a case. Legal research or
legal writing are possible examples. If a lawyer needed a brief on a particular
issue, a specialized legal research firm employing skilled paralegals, legal
writers, and editors might be employed to produce the brief.
[*742] Connecting Lawyers and Clients
One side effect of the technology that is pushing change in legal
practice will affect the "marketing" of legal services. Large corporations have
long had the ability to seek legal counsel in a national market. Clients on the
"personal services" side (Heinz & Laumann 1982; Heinz, Nelson, & Laumann
1998), however, have relied almost exclusively on the local market. In turn,
although some lawyers have used modern advertising techniques to attract
clients, most have continued to rely on traditional word-of-mouth referrals from
prior clients, repeat clients, and referrals from other local lawyers (see
Daniels & Martin 1999; Kritzer & Krishnan 1999; Van Hoy 1999). The
Internet provides a vehicle for potential clients to locate lawyers in a wholly
new way, particularly if the potential client has some sort of fairly esoteric
legal problem (e.g., an injury arising from the use of a particular machine or
tool). By using a site that searches lawyer directories (e.g.,
Martindale-Hubbell's Lawyer.com) or an online lawyer referral service, potential
users of lawyers' services can find lawyers purporting to work in the area of
the person's needs. More general searches of the Internet allow the potential
client to find others outside his or her own community with similar problems and
to get information on and recommendations regarding lawyers. Lawyers, in turn,
are provided with a new advertising medium. Carefully designed Web sites can
provide "hits" on searches made by potential clients. Legal referral services
increasingly have a presence on the Internet (Leibowitz 1999a), and they may be
another new vehicle for connecting lawyers and clients.
Although there are still major issues concerning who may practice law
where (and what constitutes the location where law is being practiced),
information technology is radically changing markets from local to national and
even international. Particularly where practice does not require a physical
presence (or where "appearance" may be made over an electronic hookup, which is
increasingly practical with improvements in interactive television), lawyers
will no longer be bound to a relatively small geographic area and potential
clients will have a wider range of lawyers from which to choose.
Increased Role of Electronic Tools in Legal Research and Practice
Information tools such as Westlaw and LEXIS have
radically altered how lawyers can carry out legal research. Until recently,
however, the cost of using these tools was quite high and was often prohibitive
for the provider of services to clients without the resources of a large
corporation. The cost of accessing electronic research resources has been
plummeting in recent years, [*743] both through free or low-cost
services on the Internet and through competitors to Westlaw and LEXIS that
provide CD-ROM-based services at much lower cost.
In
the United States, one nagging problem for many such alternatives has been the
control over citations exercised by West Publishing. The pressures arising from
demands by alternative producers have begun to crack this control. A number of
states have adopted "vendor neutral" citation systems (typically involving a
combination of year, state name, case number, paragraph number). More important,
West Publishing has effectively lost its copyright over pagination (and its
system of "star pagination" in electronic versions of decisions) as a result of
several 1998 court decisions (Ebbinghouse 1999). These developments will serve
to reduce the cost of electronic research tools further and thus increase their
use by lawyers (and others doing legal research).
These
types of research tools are familiar to all practitioners and researchers. What
will lead to more change are the new types of services that are becoming
available. Take CyberSettle.com, for example. This service was initially
marketed as a tool to assist in settlement processes by allowing parties to make
a series of settlement offers confidentially and then letting the service
provider determine whether there is a settlement based on a set of matching
rules. n43 More important, however, is that over time, the provider of the
service will develop a large database of cases with the kind of information that
will allow the valuing of claims; this information could then be marketed both
to lawyers and to claimants themselves. Another example of an online service
that is breaking new ground is VirtualJury.com; this site is designed to provide
an online focus group type of review of cases similar to what jury consultants
do on a face-to-face basis.
Access to Legal Services
Legal services is a broad concept, encompassing a
wide range of activities. The legal professions of various countries differ
significantly in the range of activities over which they have tried and
succeeded in asserting control (e.g., there are no legal limits in England and
Wales on who may provide legal advice, in contrast to the very stringent limits
in the United States). In those areas of legal services where lawyers have
obtained control, access to services depends on a combination of fee structures,
client resources, and availability of legal aid. Opening previously controlled
legal services for delivery by those who do not possess the full credentials of
a legal professional has the potential of greatly widening access to legal
services. This access will come in a variety of different ways.
[*744] The first will be a greatly expanded structure of
standardized legal services offered through firms headed by lawyers but with
services actually provided by specialized nonlawyers. Storefront, franchise law
firms have existed in the United States for some years (Van Hoy 1997), but their
growth has probably been constrained by the need to maintain the fiction that
services are being delivered directly by lawyers. One can imagine a "legal
services" firm (as distinct from a "law firm") that used staff with varying
levels of training to handle routinized matters; the staff would rely heavily on
information-based tools to produce "products" for the firm's clients. These
firms would be able to deliver standardized services at relatively low costs.
Central to the success of such legal services firms would be the acceptance of
the idea of "standardized services" by the potential client population
(franchise firms have often tried to maintain the fiction of individualized
services; see Van Hoy 1995). In some areas, nonlawyers routinely deliver such
standardized services (e.g., standardized home purchase contracts completed by
real estate agents) already. As the standardized services become increasingly
accepted, legal services firms would not necessarily require the employment of
any lawyers.
The second way by which access to legal
services would be increased is through delivery of legal services by nonlawyers
working for social service or similar agencies. This situation is already
happening in many areas (Kritzer 1998), most often in fields that private
practice lawyers do not now find lucrative (e.g., unemployment compensation
appeals, welfare benefit appeals). For example, the Legal Aid Society of San
Francisco has a program to provide representatives for claimants in unemployment
compensation appeals. The representatives include "law students, recent
graduates, practicing attorneys, union representatives, and legal workers," and
the program has a very high success rate, 84% compared with the 35% to 40%
success rates of claimants statewide (Employment Law Center n.d.). In several
states, advocates working through organizations such as parent information
centers assist parents of disabled children in conflicts with educational
authorities (Baker 1999). In England, the single largest providers of legal
advice are probably the Citizen Advice Bureaux, which are actually staffed
primarily by lay volunteers (Baldwin 1989; Goriely 1996:231-32; Richards 1989).
Thus, in the future, one will find nonlawyers increasingly employed in various
settings filling significant gaps in the provision of legal services.
Nonlawyers, however, will not work only in those areas
neglected by lawyers, but will move into various specialized areas in direct
competition with lawyers. The impact of this competition will be to reduce the
costs of fee-based legal services. In the 1980s in England, the Thatcher
government moved to open conveyancing [*745] work to specialized
nonlawyers; one impact of this change was a rapid decrease in the fees charged
for conveyancing work (Domberger & Sherr 1989). In Ontario, nonlawyers
routinely provide representation in traffic court, charging fees below those
charged by lawyers (Bogart & Vidmar 1988). Estate planning is often done by
financial planners. One can image a variety of other areas where nonlawyers
could effectively provide services: routine wills, uncontested divorces, routine
auto accident claims, domestic violence injunction hearings, benefit claim
hearings, and so on. Assuming that the current barriers can be overcome, the key
to success of such alternative service providers will be the recognition by the
public that sources of effective, affordable assistance are available.
Information sources such as the Internet may play an important role in spreading
the word about such services.
As my own research has
shown, high-quality specialist nonlawyers can acquire the same types of
reputational advantages that lawyers possess today, along with the same types of
informal "system" (i.e., people) knowledge (Kritzer 1998). Thus, although at one
time one might have argued that lawyers do more than just give legal advice and
that it is the combination of skills and knowledge that set them apart from
nonlawyers (e.g., a lawyer can get phone calls returned when a nonlawyer might
not be so lucky), those advantages disappear as other types of service providers
are recognized as effective players.
Increased Reliance
on Self-Help
As discussed previously, one
important implication of information technologies is the relatively easy access
to information that was previously the exclusive domain of the professional. The
amount of information readily available from a computer keyboard is staggering.
In years past, it took significant training to learn how to access technical
(including legal) information, but today, any junior high school student with
access to the Internet can find much of that information. Specialized presses,
such as Nolo Press, combined with software vendors and specialized Web sites
that provide automated legal forms represent resources that are designed for
self-help users, and lawyers in some states view such materials as a clear
threat to their monopoly on legal practice (see Carvajal 1998; Leibowitz 1999a,
1999b). Groups such as the American Pro Se Association (www.legalhelp.org) are
proliferating (providing what they label as "legal help" rather than "legal
advice"). Web sites such as Lawyers.com and FindLaw.com provide links to many
legal self-help sites and publications.
Finding
information and knowing how to use it are two different things. I would not
expect the hypothetical junior high school student to know how to put the
information together to [*746] answer a significant legal question,
but an intelligent nonlawyer will be able to use these tools (e.g., Findlaw.com)
to answer quickly many questions that previously required the services of a
lawyer. As people recognize this capability, there will be an increase in the
availability of simple training regimes that give nonlawyers (or laypersons
vis-a-vis other professions) the basic knowledge to assimilate the information
they can access. Already one can find such courses in areas such as family law,
auto insurance, consumer rights, and workers' compensation (see Stein 1998). In
addition, people who find information on the Internet may also turn to the
Internet to seek out individualized legal advice, either through lawyer referral
services or through some sort of online legal consultation; for example, one
lawyer, disbarred in 1998 by the Arizona Supreme Court, has set up an online
service that will, among other things, answer "legal questions for $ 24.95 and
up, payable by credit card" (Van Voris 1999). n44
I use
the "self-help" phrase broadly to encompass any activity that customarily has
been the province of the professional service provider. In the legal area, the
model being pursued by previously described CyberSettle.com should eventually
provide the capability for injured persons to determine what types of
settlements others with similar injuries have received; a sophisticated site
could rely on a database similar to that being developed at CyberSettle.com to
provide an "expert system" for estimating the settlement or verdict value range
within which an injury falls. Claimants could use information of this type to
assess a settlement offer made either through an attorney or directly by an
insurance adjuster. I-Courthouse.com is another Web-based service; the goal of
this system is to provide a kind of online trial (probably closer to
arbitration), with "jurors" recruited from among Web users; the creators of this
site appear to have the goal that people will eventually have predispute
contractual agreements to use their service if a dispute arises (much like
today's arbitration clauses in contracts). n45 More generally, individuals might
access "legal guidance systems" (Susskind 1998:xxiv) that lead them through the
tasks involved in making basic decisions [*747] and presenting their
claim to the insurance adjuster. In the medical arena, pharmaceutical companies
rely on something of a self-help ethic in their advertising of prescription
drugs directly to consumers, who then ask their physicians about the potential
of the drugs. Although there is nothing directly analogous in the legal field,
such advertising is just one more indication of what may be a rising self-help
ethic.
Self-help will not eliminate the need for legal
professionals or other legal practitioners, except perhaps in the simplest, most
routinized of legal tasks (see Carvajal 1998). My own research (Kritzer 1998)
makes it clear that specific experience is extremely important in dealing with
certain types of legal matters and that experience cannot normally be acquired
through self-help. The impact of self-help activities is going to be less in
terms of eliminating the service provider and more in changing the types of
services provided and modifying the relationship between the service providers
and the recipients of the providers' services. With better information
available, someone who previously sought professional-level services might feel
more comfortable using a nonprofessional (in the formal sense) service provider.
The user of that provider's services would be in a better position to make some
judgments about the quality of the services being provided.
Better information will also change the relationship between formal
professionals and the users of their services. The kinds of "information
asymmetries" (Paterson 1996:156-58) that have been crucial for defining the
professional/client relationship are undergoing drastic changes. The customary
image of the professional-client/patient relationship clearly puts the
professional in the superior position. Part of the autonomy of the formal
professional is in deciding what is best for the client and then proceeding
benevolently (or paternalistically) to do what the professional has identified
as best. n46 Heinz and Laumann (1982:360-65) have shown that autonomy of this
type is lacking in the corporate services sector of the legal profession. To the
degree that the personal services lawyer has enjoyed the autonomy described by
writers on the professions such as Heinz and Laumann, the growing self-help
movement, and the information it makes available, will shift the balance more in
the direction of the client.
Reduced Regulatory
Autonomy
One aspect of the traditional claims for
professions is regulatory autonomy. The lessening of information asymmetries
between professionals and their clients (and possibly other interested
[*748] persons) also serves to reduce the validity of the claim,
central to regulatory autonomy, that only another professional can evaluate a
professional's performance. Although professional disciplinary bodies have often
included at least token laypersons, those bodies have almost always been under
the control of members of the profession. This arrangement contrasts with
licensing and regulatory bodies for many "nonprofessional" occupations. It will
become increasingly difficult for professionals to maintain control over
regulation of their members as the claims to exclusive knowledge become
increasingly untenable.
The beginnings of these
developments can already be seen. In Australia, where the state-level law
societies traditionally exercised self-regulatory authority of practitioners,
one state (Victoria) has moved that authority to governmental agencies (Legal
Practice Act 1996), and the issue has been raised in at least one other state
(Campbell 1997; see also Parker 1997b). In England, an official of the Lord
Chancellor's Department raised the specter of this type of change in England in
a 1999 speech to the annual conference of the Law Society, citing significant
problems at the Law Society's Office for the Supervision of Solicitors (Lock
1999).
Another example of decreased regulatory autonomy
has to do with changes in the administration of government-funded legal aid. In
Britain, legal aid was administered for many years by the profession itself
through the Law Society. In the late 1980s, this responsibility was moved to the
independent Legal Aid Board (to be replaced in 2000 by the Legal Services
Commission). Ontario has followed a similar pattern, starting with a legal aid
plan administered by the Law Society of Upper Canada, but moving in 1997 to a
system administered by an independent agency, Legal Aid Ontario/Aide Juridique
Ontario. These independent agencies have seen their role as providing legal
services rather than as providing lawyers' services and have been very active in
seeking out ways of employing service providers outside the legal profession to
meet the needs of their constituencies (Steele & Bull 1996; Steele &
Seargeant 1999; Zemans 1999).
Conclusion
I am sure that the types of developments described
only scrape the surface of what postprofessionalism will mean for the legal
profession, the practice of law, and the provision of legal services. To the
degree that current changes result from the combination of increased
rationalization in knowledge and the growing power of information technology,
the shape of the world with which today's formal professionals will have to cope
will depend [*749] on yet unseen developments in that
rationalization process and the information technologies that have exploded
recently.
In this new world, "professionals" will
continue to be central, but the special place of the traditional professions
will wither. Although I have called this development postprofessionalism, others
might choose to label it professionalism, referring not to the withering of the
formal professions but to the growth in what I referred to as general
professions (Perkin 1996). Whatever the label, professionalism as Anglo-American
societies have known it is fading. The new professionalism will be much more
dynamic, reflecting the rapidity of change in the workplace and the accompanying
demands of the market.
The professions are dead. Long
live the professions.
Epilogue: Looking Forward to the
Twenty-Second Century
Although I may be
overstating the changes that are occurring, it is also very possible that I have
grossly underestimated the changes that will be coming in the organization of
work as applied to service providers. The origin of the rise of professions lies
in some significant part in the nature of the knowledge base that existed at the
time the professions came into prominence. My image of postprofessionalism
revolves largely around the way that service providers segment and deliver
services that draw on that knowledge base. It may well be, however, that the
nature of knowledge is much more fluid than I have imagined and that the future
organization of occupations will not turn on the kinds of expertise we see
today. If knowledge becomes increasingly accessible in ways that require less
and less specialized training and experience, we may see forms of organization
delivering services that we cannot at this time readily imagine. Such a
development would radically alter the way that work is organized, particularly
in what we call the service sector of the economy. Perhaps there will be a
postservice economy in the year 2100, and doctors, lawyers, and other
professionals that we know today will have largely disappeared from our social
and occupational structure.
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