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Lawyers in Society: An Overview

University of California Press

In the fifteen years since we initiated this comparative sociology of legal professions a great deal of scholarship has appeared. Some writers have engaged, tested, qualified, criticized, or rejected the theoretical framework I developed in my contributions. Others have advanced and applied very different explanations for professional structures and lawyer behavior. Many have sought to comprehend the dramatic changes sweeping through the legal profession. This chapter reviews four major theoretical orientations: market control, competition between professions over knowledge-based jurisdictions, the ideal of professional independence, and economic interpretations.

In 1980, six years after I began teaching about American lawyers, I was drawn into comparative sociology by an invitation to a conference on the Final Report of the Royal Commission on Legal Services. During the following decade, I continued to address the issues implicated in the title of my contribution to that conference, "The Politics of the Market for Legal Services," a paper that was strongly influenced by Magali Sarfatti Larson's historical sociology of a wide range of professions in England and the United States.1 I began with the view that markets, like sex, were simultaneously sites of pleasure and danger. Markets permit and encourage the emergence of professions.2 They offer scope for self-expression and technical refinement and foster dreams of wealth, power, and status. Yet only a few reap these rewards, although all participants confront perpetual risk and many suffer ruin (as those "liberated" from communism are discovering).

One of the many paradoxes of market economies is that they drive actors to seek to neutralize competition, even though this is their essential

energizing force. Only the most desperate recent immigrants to a city or nation (often racial or ethnic minorities) and new entrants to the market (youths and women)—remain exposed to unrestrained competition. They must accept employment without the support of a union or protective legislation or embark on entrepreneurship that requires neither formally certified skills nor capital investment: peddling, prostitution, gardening, housekeeping, baby-sitting, window washing, house painting, taxi driving.3 Refuge from the buffeting force of competition can take many forms: controlling a market (sought by OPEC and other producers of primary goods), becoming a salaried worker for a large employer (civil service or the lifetime employment once offered by Japanese companies), securing a patent (and other monopolies over intellectual property), making large capital investments (a barrier to market entry by potential challengers). In rare instances the sanctuary is almost perfect: the De Beers diamond cartel, or the numerus clausus of some European notaries.

Those who sell services may find these strategies less effective than do those who manufacture products. There are no raw materials to corner, capital investment tends to be low, and, until recently, their intellectual products have been unprotected by law. Instead they have resorted to guilds, trade unions, and professional associations, which in turn invoke state assistance. As Larson explains, aspiring professionals must construct their commodity and then control the production of and by producers. The first step is to persuade potential consumers that the service is both valuable and too difficult for them to perform. Lawyers have several advantages in this regard. As judges and prominent members of the legislature and executive, they can use state power to grant an exclusive jurisdiction to legal institutions (over civil and criminal adjudication, divorce, adoption, and probate), complicate the task beyond lay competence, and even award themselves a legal monopoly (representation, drafting, advice, real property transfers). Having commodified legal services, lawyers must limit the number of producers by prohibiting lay competition and regulating entry to the profession by establishing educational qualifications and economic barriers, requiring apprenticeships and examinations, and by limiting opportunities to practice. Finally, lawyers must dampen competition among themselves.

This concept of the "professional project," adapted from Larson, can lead to several misunderstandings. It does not require deliberation or conspiracy—although lawyers and other professionals, in desperation or at unguarded moments, often expose their self-interested motives. (The Depression provoked Germany and Greece to limit the number of lawyers and American states to lower the pass rate on bar examinations.) Even a genuine dedication to ensuring quality inevitably promotes social closure. Because I viewed market control as pivotal, I equated its fluctua-

tions with "professionalism."4 Some commentators objected that lawyers in "declining" professions seemed to be doing surprisingly well—economically, politically, and socially.5 This is true but irrelevant. I am concerned with the dramatic changes in the structure of legal occupations: the increase in market control from the nineteenth to the mid-twentieth century and its erosion in recent decades. That market control has declined does not refute my theory—quite the contrary. Refuge from competition is always ephemeral, as shown by breaches in even the most powerful cartels. The very rewards of success—wealth, status, and power—spur outsiders to circumvent, surmount, or destroy the barriers. Neither am I troubled by the observation that market control is not equivalent to effective self-regulation.6 Professional regulators are less solicitous of clients than of peers. And it is notoriously difficult to enforce anticompetitive rules against the self-interest of practitioners.

Some of the chapters in the original volumes on the legal profession in other countries (notably Canada, Australia, and New Zealand) adopted the framework I advanced in my chapters on England and the United States and my attempts at synthesis.7 The volumes also included two kinds of demurrers, however. Alan Paterson maintains that within the common law world, Scotland did not fit my model.8 Yet his own historical account repeatedly reveals efforts by legal professionals to control production of and by producers. As early as the seventeenth century, advocates sought to limit their numbers and raise their social status by requiring a written examination in civil law, a thesis written in Latin and defended in Latin before the entire faculty, and a public lesson in Latin to the Court of Sessions. Dismayed by their increasing numbers in the late nineteenth century, Writers to the Signet imposed a £500 entrance fee, a five-year apprenticeship, and the requirement of a liberal education. As late as 1980 the profession added the requirement of a one-year Diploma in Legal Practice, knowing that government would only fund 410 places. Paterson acknowledges that qualification as an advocate is still limited by the requirement of an unremunerated nine months as a "devil" (apprentice) followed by another nine months without income. Moreover, some of his rebuttals seem insubstantial: Scottish solicitors lack a monopoly...