competing images of the legal profession: competing regulatory strategies

Competing Images of the LegalProfession: Competing RegulatoryStrategies

CHRISTINE PARKERLaw Faculty, The University of New South Wales, Sydney, Australia

Introduction

Recent arguments for reform to the regulation and organization of thelegal profession often assume that we must accept one or two polarizedpositions on the future of the profession: traditionalists would prefer it toremain completely independent and self-regulating, while reformers wantit forcibly deregulated to meet the requirements for a competitive market.These practical arguments reflect underlying or inchoate theories aboutthe nature of the profession which their proponents hold. Correspondingtheories can be found in the sociological literature on the professions;functionalism portrays lawyers as a learned, independent community ofspecialists who must be trusted to govern themselves (Parsons 1954; Goode1957), while the market control approach sees the profession as aninherently self-serving monopoly protected by ideology and a lack ofaccountability, which should be distrusted (Larson 1977).

Each of the two competing images ignores important ambiguities in theprofession while recent sociological work complicates the dichotomy in atleast three different ways. A more effective interpretation of the legalprofession draws on both images and injects new insights. A moresophisticated understanding of regulatory issues shows that the policychallenge is not choosing between strategies of self-regulation and trust,and strategies of forcible reform and distrust, but reconciling them. Suchrapprochement requires a process of dialogue and debate between theproponents of different policies. Clarifying and criticizing the descriptivetheories on which prescriptive arguments are based helps establish a soundbasis for renegotiation. The next three sections do this in the context ofthe recent Australian debate over the reform of lawyers. The final twosections suggest a deliberative process for regulatory reform which respects

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and responds to the complexity of the legal profession, by contemplatingthe combination of competing, regulatory policies.

Competing Policies

Competition

Critiques of the legal profession from the perspective of competitiontheory have been the main catalyst for recent regulatory reform inAustralia as in the U.K., Canada and New Zealand. Lawyers, along withother professionals, are being made to feel the same demands for micro-economic reform which have already been applied to other areas of sociallife. In the U.K., the Monopolies Commission had already reported onprofessional practices in general and the practices of the legal professionin particular in 1975 and 1976, when the Thatcher government introducedlegislation breaking down solicitors’ conveyancing monopoly in 1983. TheCourts and Legal Services Act (1990) further broke down the conveyancingmonopoly as well as the probate monopoly and barristers’ previouslyexclusive audience rights in higher courts (Smith 1989; Cownie 1990;Partington 1991).

In Australia the Trade Practices Commission (now the AustralianCompetition and Consumer Commission) decided in 1989 to review thelegal profession and determine the extent to which it complied with anti-trust principles. Towards the end of 1993 a draft report on the legalprofession was published and in March 1994 the final report was handeddown. In the meantime the reform of the legal profession had become partof a wider national competition policy agenda because of the Hilmer Reportwhich reviewed gaps in the implementation of micro-economic reform(Hilmer, Rayner & Taperell 1993). The thrust of their criticisms isillustrated in the following passage from the Trade Practices Commission’sfinal report:

The Australian legal profession is heavily over-regulated and in urgentneed of comprehensive reform. It is highly regulated compared toother sectors of the economy and those regulations combine to imposesubstantial restrictions on the commercial conduct of lawyers and onthe extent to which lawyers are free to compete with each other forbusiness. As a result, the current regulatory regime has adverse effectson the cost and efficiency of legal services and their prices to businessand final consumers … Reform of the extensive system of regulationapplied to the legal profession is an important part of the agenda formicro-economic reform and the development of a national approachto competition policy … (Trade Practices Commission 1994: 3–4; Seealso Hilmer, Rayner & Taperell 1993: 133–137).

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Competition reformers see the legal profession as no different from anyother industry which must be subject to micro-economic reform. Theirimage of the legal profession is of a cartel which has managed to achievemonopoly rents and privileges by self-over-regulation. Lawyers are not freeto compete with each other or with members of other occupations becauseof restrictive rules and practices which erect barriers to entry, restrict thestructure of legal work, prohibit normal competitive conduct such asadvertising, and institutionalize anti-competitive practices such as price-fixing. Governments and regulators, such as the Australian Competitionand Consumer Commission, must now step in to abolish over-regulationand ensure professional bodies no longer prevent competition occurringamong lawyers and other legal service providers.

Self-regulation

The traditional regulation and organization of the legal profession werebased on a rather different image. Lawyers, like other professionals, havehistorically asserted a right to self-regulate without institutionalizedaccountability to anyone else, and to be immune from reforms from eithera competition or consumer protection perspective enforced from outside.Some lawyers continue stridently to assert this traditional position in thecurrent Australian debates on reform. Underlying their arguments is animage of the profession as qualitatively different from business in the typeof services it provides, in its communal organization and therefore in thetype of regulation appropriate to it. As a recent President of the LawCouncil of Australia (the peak body for Australian legal professionalassociations) wrote,

… it seems to me that the economists look at those engaged in thepractice of law not as members of a profession — with everything whichthe concept of a profession connotes — but simply as providers ofservices in a market-place that should conform to the great god ofcompetition … It is, I suggest, a shallow and simplistic approach. Itignores the fiduciary relationship which best serves the interest of ourclients (Phelps 1995: 3).

Traditionalists argue that protective regulation to ensure clients arereceiving quality services always trumps any concern with improvingcompetition. As one senior Australian lawyer wrote in response to theTrade Practices Commission’s report:

While in theory, the introduction of a greater number of peopleproviding legal services may have an effect on reducing the price oflegal services in some areas, it will be at the cost of lessening — and

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probably very considerably — the quality of legal services … To anyonewho truly understands and knows the importance of quality in theprovision of legal services … the Report of the Trade PracticesCommission is hard to take seriously (Farmer 1994: 297).

They also argue that it is essential to the protection of society thatlawyers’ independence be protected by self-regulation so that the statecannot interfere with the representation of clients. As another leadinglawyer argued against proposals to abolish legal professional self-regulationin the state of Victoria,

Lawyers help ordinary people protect their life, liberty, reputation andproperty against encroachment by government, commerce, unionsand other powerful interests … The proposed new scheme wouldrequire lawyers to be licensed by a government appointed board. Sucha scheme will destroy the independence of the legal profession and theindependence of the courts (Rayner 1995).

The traditional image of the legal profession is of a group with greatknowledge and expertise performing a function of great significance tosociety and strictly regulating themselves to make sure they perform it wellin the interests of clients and the public.

Competing Theories

The legal profession as conspiratorial cartel

At its most extreme, the picture of the legal profession as cartel is justifiedby the neo-classical economics of Milton Friedman. In his theory specialregulation always becomes “a tool in the hands of a special producer groupto obtain a monopoly position at the expense of the rest of the public”(Friedman 1962: 148; see also Gellhorn 1956). Other economists recognizethe force of arguments for deregulation of the legal services industry butseek to balance the demands of competition and protection. They see theprofession as a cartel, and argue that consumers would benefit from pricecompetition, free advertising, and opening the market to non-lawyers, butdo not necessarily accept that there should be no licensing at all (Slayton& Trebilcock 1978; Evans & Trebilcock 1982; Dorsey 1983; Albon & Lindsay1984).

Sociological literature on the professions over the last 20 years has beendominated by a perspective that complements this economic crtique[1].Since Johnson, sociologists have seen professions as occupational groupsorganized to maximize their power by claiming the status of ‘profession’and the privileges that go with it (1972: 45). For Larson the ‘professional

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project’ is to use claims to special knowledge and skills to strive both formarket control (economic power) through monopolization, and socialstatus (social power) through a collective mobility project (Larson 1977:xvi). The most important strategy in this struggle is to control professionaleducation so that the profession holds a collective monopoly on knowledgeor expertise itself, as well as on the supply of producers:

In a perfect market situation, the sovereignty resides, theoretically, inthe consumer. The professions ultimately depend on the public’swillingness to accept and legitimize the superiority of their knowledgeand skills. The singular characteristic of professional power is, however,that the profession has the exclusive privilege of defining both thecontent of its knowledge and the legitimate conditions of access to it,while the unequal distribution of knowledge protects and enhancesthis power (Larson 1977: 48) (italics in original).

This theory sees traditional self-regulation and its justifications as nomore than support for the self-interested professional project. Traditionalprofessional claims of disinterested public service and of a social bargainmandating self-regulation form part of an ideology which justifies andobscures the social structural inequalities caused by professionalism andinspires individual professionals in their efforts. Self-regulation is actuallyaimed at ensuring that competition between members is minimized andthe profession acts in solidarity to advance the collective goals of monopolyand status. The profession provides a clear path for individual members toachieve power and prestige within this tightly regulated structure so thatthey remain committed to an unified profession and contribute, deliber-ately or not, to its collective project (Larson 1977: 70–74).

Considerable empirical evidence supports the application of Larson’stheory to the legal profession: Abel shows how this theory explains thehistory and behaviour of the legal profession in the U.K. (1988) and theU.S.A. (1989a). Weisbrot (1990) and O’Malley (1983) have attempted todo the same for Australia. Each sees the legal profession as an autonomouscollective organization aimed and organized to secure its economic andsocial self-interest through the control of entry, competition and internalregulation. It is a “conspiracy against the laity” inherently unworthy oftrust.

It is ironic “that much of the criticism of professionalism by radicalsseems to advance the implicit alternative of the individualistic free marketthat underlies capitalism” (Freidson 1992: 219). But the policy con-sequence of accepting the market control theory of the profession is toreform lawyers by breaking down professional organization and self-regulation and forcing more competition. As Abel argues at one point,“though more stringent regulation of incompetence and discourtesy surely


is needed … the profession consistently opposes the most effectivecure — free competition, particularly with non-lawyers” (Abel 1989b: 302).Like Milton Friedman, sociological critics of the legal profession seem toimply full and free competition, and little more, as the remedy for the evilsof professionalism.

The legal profession as community of competence

Another strand of sociological theorizing on the professions justified thetraditional position of self-regulation. Functionalists portrayed the pro-fessions as trusted self-regulatory communities of experts. According to thistheory the state or the community bargains with the legal professionallowing it to self-regulate because of its arcane knowledge and its superiorinstitutions of socialization and social control.

For Parsons, professionals are different from members of otheroccupations or markets because they are “trained in and integrated with, adistinctive part of our cultural tradition, having a fiduciary responsibilityfor its maintenance, development and implementation” (Parsons 1954:381)[2]. Since professions are responsible for, and learned in, bodies ofknowledge and practice of great value to society they must be speciallyregulated to ensure they are suitably trained and certified to interpret,develop, improve and apply this tradition practically for the benefit ofothers (Parsons 1954: 372). As Goode argues, unusually restrictive rules arenecessary to protect individual clients from being dominated by profession-als who know so much more than them:

The problems brought to the professional are usually those the clientcannot solve, and only the professional can solve. The client does notusually choose his professional by a measurable criterion of compe-tence, and after the work is done, the client is not usually competent tojudge if it was properly done (Goode 1957: 196).

Economists have also shown that failure occurs in the market forprofessional services because of “informational asymmetry, in which theseller knows the quality of his service or product, but the buyer does not”(Leland 1979: 1329). Intervention in the market to ensure minimumquality standards is thus necessary (Arrow 1963; Akerlof 1970; Leland1979). The functionalists argued that since unqualified persons are notcompetent to meddle in professional affairs, professionals must be trustedto do this special regulation themselves: “Professionals profess. They professto know better than others the nature of certain matters, and to knowbetter than their clients what ails them or their affairs … Since the

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professional does profess, he asks that he be trusted” (Hughes 1963:656).

Self-regulatory communities which socialize lawyers into ethical behav-iour and discipline undesirable conduct are the best way to achieve theregulation necessary, and this is precisely how professions are organizedaccording to Durkheim (1992); (see also Goode 1957). Durkheimproposed that the professional genre of ethics be extended to the whole ofeconomic life as a solution to the evils of unrestrained capitalism. His thesiswas that we can trust neither market forces nor state regulation to inculcateethics (1992: 12). they must be the concern of sufficiently coherent self-regulating occupations which teach each member to look away from theirself-interest and towards the whole community, and thus develop thegeneral disinterestedness on which moral activity is based (1992: 23–24).The more protection given to these groups the better their ethics will be(1992: 13).

The regulation of the profession can thus be seen as a social bargaincharacterized by trust: the legal professional community takes on theburden of specially regulating itself since it alone is competent to do so. Inreturn society at large and clients trust them and protect them frominterference, supervision and competition, as well as giving them higherremuneration and social status [3]. But these privileges can hypotheticallybe withdrawn if the profession fails to regulate itself in the publicinterest:

[T]he larger society has obtained an indirect social control by yieldingdirect social control to the professional community, which thus canmake judgments according to its own norms … Thus it is that the socialcontrol of the professional community over its members may be seenas a response to the threat of the larger lay society to control it. Failureto discipline would mean both a loss of prestige in the society, and aloss of community autonomy (Goode 1957: 198).

Of itself this social bargain may not be sufficient to make every individualprofessional altruistic, but it means that the profession as a whole will bemotivated to organize, regulate and socialize individual lawyers to serveand not exploit clients (see also Rueschemeyer 1983: 41). This theory of asocial bargain between the profession and both the community and thestate has also received contemporary support from Barber (1983),Dingwall & Fenn (1987) and Halliday (1987).

Comprehending Ambiguity

Traditionally the regulation of the legal profession in Australia, as in othercommon law countries, has been based on the image of the profession as


trusted self-regulatory community of competence (Disney et al. 1986:34–43; Weisbrot 1990: 164–171). The theoretical and empirical work ofsociologists and economists based on Larson & Friedman has demon-strated that the legal profession has not acted in conformity with thatimage. Self-regulation has often been exercized in the profession’s owninterests, or at least not in the interests of the community. Does this meanthat the image of the profession as cartel oriented towards self-interest andtherefore worthy of distrust is substantially correct?

The history of regulatory reform to Australian lawyers suggests that themarket control approach does not explain the nature and behaviour of theprofession any better than the traditional approach. By the time theHilmer, Trade Practices Commission, and Access to Justice AdvisoryCommittee reports had all appeared, most Law Societies in the easternstates were reviewing their own rules in line with competition principles(Parker 1997). Legal professional associations and governments negotiatedtogether to change self-regulatory practices. Even the Victorian BarAssociation, accused of recalcitrancy and of being the most conservativelegal professional association in the country, made significant changes.Although segments of the profession may still oppose the competitionreforms, professional bodies have now largely accepted the demands ofcompetition policy voluntarily, an outcome not predictable by marketcontrol theory (e.g. Law Council of Australia 1994; Law Institute of Victoria1994).

Critics of the profession from the left often see apparent gains as trivialor subverted to the profession’s own interests. For example at one pointAbel writes that the opening of the legal services market in Britain tolicensed conveyancers is too insignificant to pose any real danger to legalprofessional domination (1989b: 292). According to this “hermeneutics ofsuspicion”, attempts at reform are futile, unless they totally destroy themonopoly power of the profession[4]. Their (explicit or implicit) theory ofthe profession as motivated solely by economic and social self-interestprevents these critics from responding adequately to the complexity of theprofession.

Indeed it is clear from the bulk of research on lawyers that neithercompeting image can satisfactorily describe the profession and explain itsbehaviour. At least three ambiguities confound dual approaches tocomprehending the profession (discussed below); its segmentations, itscomplex culture and the ambiguity of its use of claims to specialknowledge. Regulatory policies for the profession ought to respondexplicitly to these ambiguities; policy discourses that rely on either self-regulation or enforced competition and accountability reform alone aregenerally too blunt to address such complexity.

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A segmented profession

Both the market control and the professional self-regulation approachassume that internal socialization processes will keep lawyers more or lessunified in ethics and goals. The market control perspective assumes thatthe profession will adequately control its members so that the professionwill act as a unified whole in its own economic self-interest. Theprofessional self-regulation approach assumes that the legal professionalcommunity will effectively discipline and socialize individual lawyers into aprofessional community which serves the interests of the public andclients. Yet the profession is unified neither as a self-regarding cartel norother-regarding community; it is profoundly segmented [5]. Differentsegments have different interests and concerns, some of which may accordmore closely with the views of reformers than others, and some of whichmay be more public-regarding than others.

That barristers and solicitors have different interests became clear inEngland when they squabbled over the nature of reforms to the professionallowing solicitors to appear as advocates in court (Cownie 1990: 214–215).In Australia the two branches have frequently disagreed over thedesirability of reform to division of the profession (Disney et al. 1986:22–36, 92–122). More recently large firms of solicitors have begun tochallenge the Bar’s monopoly and to complain of unacceptable andinefficient Bar practices (Weisbrot 1993: 4, 11). Urban and rural lawyers orcity and suburban solicitors have also conflicted, especially over allowinglicensed non-lawyer conveyancers (McQueen 1993: 18). In the U.S.A.differences in ethical and regulatory matters have lead to splits betweenplaintiff’s lawyers and those who defend insurance companies andcorporate clients (Powell 1985: 283). Many small-firm lawyers feel left outof professional self-governance and would prefer disciplinary issues to bedealt with by an independent body rather than professional associationswhich they see as elitist (Parker 1997). Women lawyers have their owndemands for reform in the profession to make it less discriminatory andmore inclusive (Australian Law Reform Commission 1993: 68–84; Cana-dian Bar Association Task Force on Gender Equality in the LegalProfession 1993; Thornton 1996), while employee lawyers complain ofexploitation within firms organized according to annual billing targets and6-minute charge-out units and are beginning to form and join unions(Spangler 1986; Anleu 1992: 197–198).

Competition itself is more natural for some segments than for others[6].Heinz & Laumann’s 1982 study of Chicago lawyers found that the legalprofession could be split into two “hemispheres” according to “onefundamental distinction — the distinction between lawyers who representlarge organisations (corporations, labour unions or government) andthose who represent individuals” (1982: 319). Heinz & Laumann infer that


organizational clients will exercise much more control over their lawyersthan individual clients (1982: 322) and there is much evidence to suggestthat in Australia commercial clients have forced their lawyers to becomemuch more competitive. My own interviews with lawyers around Australiasuggest that large firm lawyers are keen to see more competition allowed sothey can conduct more innovative businesses (Parker 1997).

Powell (1985) shows that developments in the regulation of lawyers inthe U.S.A. were initiated or facilitated by segments of the bar seeking tofurther their own interests. For example, legal clinic entrepreneurs alliedthemselves with consumer activists to challenge minimum fee schedulesand prohibitions on advertising. In Australia activist lawyers have arguedand lobbied for reform in what they see as the public interest for manyyears. This was particularly evident in the 1970s when ‘radical’ lawyersclashed with the professional associations over professional regulatoryrules which were hindering the development of legal aid and ofcommunity legal centres (Bell 1985; Tomsen 1992). It has also been true ofthe recent debate (Weisbrot 1993: 9).

Thus, it would be wrong to see reform as being imposed from outside onan unwilling profession united against change. The profession has a varietyof interests and concerns, some of which accord more with the traditionalprofessional model and some with the reformers’ view of how thingsshould be done. Forces for change and for stagnation can be found amongdifferent segments of the profession. At different times different segmentsor interests in the profession gain ascendancy and champion reform orresistance to reform.

The ambiguous culture of legal professionalism

Not only do differences in interest, concerns and ideology occur amongdifferent segments of the legal profession, but the culture of legalprofessionalism, into which all lawyers are socialized to a greater or lesserextent, is itself profoundly ambiguous. The market control approach sawthe culture or ideology of professionalism purely as the tool of economicself-interest; a false or distorted set of beliefs propagated as justification forthe self-interest of the profession. The traditional view sees the institutionsof self-regulation as adequate to sustain a culture of public regard. But theculture of legal professionalism is neither aimed solely at justifyingeconomic self-interest nor inculcating public-regarding ethics. It doescontain elements of professional arrogance and self-justificatory ideology,but there is also a strong tradition of public service and responsibility, evenif it is sometimes paternalistic or misguided.

Theories that see the profession as motivated by wider cultural forcesand institutional concerns are better able to explain how legal professional

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culture can play this more ambiguous role. For example, Halliday (1987)argues that the status and power of the profession does not depend soleyon economic power and an associated mobility project, but on the abilityof the profession to convince society that it has legitimate expert and moralauthority in certain areas. So while the project of attaining monopoliesmight be the force of legal professional ideology as long as its concern isself-preservation, once the profession becomes established it moves‘beyond monopoly’ and can afford to concern itself with a broader rangeof functions and actions, including contributing to an efficient andeffective legal system[7]. Similarly, Kritzer (1991: 539) argues that theprofessional project can be more usefully seen as one of institutionalizationthan market control: “institutionalisation involves two primary compo-nents: (1) establishing boundaries between the emerging institution andother organizations, entities, etc.; and (2) rationalising the internal formand operation of the emerging institution”.

According to these conceptions the profession will be perfectly willing toreform itself by shedding restrictive practices and becoming concernedwith the public interest in order to maintain legitimacy. Pue goes furtherand argues that the culture of legal professionalism is part of the largerculture of modernization and rationalization. The market controlapproach is unable to,

… accommodate a sophisticated appreciation of professional “ideol-ogy”. Like all variations of economism it tends to reduce ideology tolittle more than a mystification trick deliberately designed to dupeoutsiders into acquiescence in their own exploitation. Professionalideology is not taken seriously on its own terms, and the relationship ofprofessional ideology to larger currents of intellectual thought isunder-emphasised (Pue 1990: 406).

By giving the culture of legal professionalism recognition, we couldunderstand actions of the profession and individual professionals as basedon the logic of the legal ideology which, like all ideologies, contains public-regarding elements and self-interested elements. As we have seen, theculture of lawyers may also differ from segment to segment emphasizingdifferent elements of an ambiguous legal professional ideology.

The power of knowledge

Finally, a normative theory for regulating the profession should take theknowledge and expertise of the profession seriously without accepting thatit justifies professional domination of clients. The market control approachsees the profession’s claims to special knowledge as ephemeral: they are afake support for the profession’s economic self-interest. The traditional


view sees the claim to special knowledge as unassailable: it justifies thecomplete unaccountability of the profession. A more appropriate view seestheir claims to knowledge as defeasible; real but not capable of carrying theweight of trust the profession often claims. Professional power does comefrom knowledge — albeit, carefully manipulated claims about knowledge-— not merely from the ordinary power of vested economic, political andbureaucratic interests, and the knowledge the legal profession holds is ofgreat importance and value to society. But the profession also has greatopportunity to exploit and exaggerate its special knowledge so as todominate individual clients and also the community as a whole.

Freidson shows how in the Anglo-American world at least, professionsare the place where formal knowledge is institutionalized (1986). He showshow professionals in the U.S.A. use formal knowledge to gain influenceand power in various institutions, and also how they gain professionalknowledge in the first place. He concludes that professions and profession-als gain power “in policy-making and administration, power to definepublic needs and problems, power in resource-allocation, power overclients, and power to control work” through claims to knowledge that areaccepted as legitimate by society as a whole (1988: 213). Brint (1994) seesmodern professionalism as based solely on applied formal knowledge andexpertise, unlike traditional professionalism which was based on bothexpert authority and community orientation. Abbott (1988) also placesclaims to knowledge as central in his analysis of “the system of professions”.He sees professions primarily as competitors for contestable jurisdictions,the basic sets of problems that conceptual knowledge is developed to dealwith. The extent of each profession’s jurisdiction will depend on thesuccess of its claims to expertise[8].

As long as there are specialist legal workers, they will have the potentialto exercise at least some power derived from their special knowledge [9].This may be worked out in a variety of ways, including developingrestrictive practices, dominating individual clients (e.g. Parker 1994), ortaking over areas of policy development. In economic terms this meansthat the information asymmetry between lawyers and clients should not beunder-emphasized. A perfect market in legal services will never be possible:this means some restrictive regulation, even licensing, will be necessary toprotect some clients from the special power of knowledge. On the otherhand, since lawyers do have special experience and knowledge of their ownarea that others do not have, it might be desirable for them to be involvedin the regulation of their own profession and they are likely to havevaluable information about their profession. Professionals hold specialknowledge so they must be treated differently, but since they can use thatspecial power to dominate others so effectively, they must be heldaccountable for it.

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Regulatory Responses to Complexity and Ambiguity

Examination of the two competing images shows that neither is verysatisfactory for explaining the nature of the legal profession. Each revealspart of the truth, but both fail to comprehend the ambiguity of theprofession evident in its segmentations of interest, its ambivalent culture,and the defeasibility of its claims to knowledge. Neither image, then, islikely to be a good theoretical basis for professional regulation, and indeedthe evidence shows that both regulatory stances are unsuccessful inpractice. It is clear from experience that trusting self-regulation is notsatisfactory (see Barber 1983: 139). But the strategy of distrust advocated bycompetition reformers is not likely to be any more effective in producingthe type of profession the public expects.

While strategies based totally on self-regulation will be exploited whenlawyers are motivated by self-interest, if regulators and reformers act on animage of the legal profession as essentially rapacious, they will dissipate thewill of individual lawyers and the profession as a whole to act in a public-regarding way (Ayres & Braithwaite 1992: 25). Kagan & Scholz show thatusing strict regulatory strategies based on an image of regulates as “amoralcalculators” stimulates opposition and destroys cooperation so that thegoals of regulation actually become more difficult to achieve (1984:73–74). My own interviews with Australian lawyers and analysis of thereform debate showed that where reformers forced their agenda withoutdialogue with the profession, and on the assumption that the professionhad not and would not reform itself, the profession reacted “defiantly”.Chances for cooperative reform were thereby lost. But where dialogue andstrategies of persuasion were used, voluntary reform in the public interestwas possible (Parker 1997). Acting on an image of the profession as a self-interested conspiracy might break the cartel, but is unlikely to encouragelawyers to behave in a public-regarding way. Taking the regulatory stance ofdistrust means abandoning hope of creating a profession which conformsat all to the Durkheimian ideal, and letting self-interest become itsdominant feature.

If the legal profession is as complex as the work summarized aboveindicates, then trust and distrust will be simultaneously appropriate pathsto regulatory reform. Reformers will want to capitalize on the public-regarding elements that exist in the profession and nurture them byrecognizing the validity of aspects of traditional professional claims aboutself-regulation. They will also want to avoid being duped by a professionwhich has shown itself capable of acting concertedly against the publicinterest in the past, and crush self-interest at the earliest opportunity. AsBarber argues, “The public must both trust and distrust professionals, as itmust trust and distrust all wielders of social and political power” (1983:140). The challenge for theorists and policy-makers is to reconcile trusting


and distrusting strategies in regulatory reform, by making their image ofthe legal profession, and their regulatory packages, more sophisticated.

Does this simply mean readjusting the social bargain between professionand state for the contemporary context, maintaining the basic structure ofregulation described by Goode (1957) and Durkheim (1992)? The bargainbetween the profession and the state would authorize self-regulation, butinstitutionalize distrust by contemplating that the state could withdraw theprofession’s privileges where it did not live up to its trust. The terms of thecontract might be renegotiated to require more competition and moreaccountability than before, but the profession would retain its basicprivileges. Thus Paterson (1995: 175) argues that reform to the Britishprofession successfully followed a model of

… implicit contractualism in terms of which the profession in returnfor delivering competence, access, a service ethic, and public protec-tion expects to receive reasonable rewards, status, constraints oncompetition and autonomy. Viewed in this light the events of the lastdecade can be construed as no more than a renegotiation of the tacitcontract placing a greater emphasis on the consumers’ side of theequation, while leaving the essential elements of professionalismintact.

Dingwall & Fenn (1987: 61) see professions as “broadly circumscribed bythe state because they owe their existence to a framework of law whichprovides the protection for their cartel”. Models for regulating theprofession must recognize that the only effectual discipline against aprofession is the withdrawal of its privileges of self-regulation (1987: 62).They advocate reliance on the potential of that discipline and the(Durkheimian) group socialization processes of the profession to makelawyers public-regarding most of the time.

The leading rehabilitation of the social bargain approach as applied tothe legal profession is Halliday’s (1987). He argues that legal professionalassociations (at least in the U.S.A.) are now strong in collegial organizationand resources so that they are free to move “beyond a preoccupation withmonopoly, occupational closure, and the defence of work domains” and totake on more public-regarding concerns, especially responsibility in liberaldemocratic government (1987: 347). The particular capacity which theycan offer the state in achieving government is the ability to advocate andhelp shape a legal system that emphasizes the integrity of the legal processand the primacy of the rule of law: the profession can offer the state thehelp of furthering “a bounded rationality in the central regulatorystructures of the modern state” (1987: 360). The profession, having moved“beyond monopoly”, can now bargain meaningfully with the state to

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preserve its monopoly in return for working to make the law more effectiveand efficient, acting according to “civic professionalism”.

[I]n exchange for the state’s implicit guarantee that the traditionalmonopoly of the profession will be largely preserved, notwithstandingoccasional adjustments in response to public pressure or professionallapses, the profession will commit its monopoly of competence and itsorganizational resources to state service… Should professions provedisinclined to contribute their technical expertise to a general publicinterest, even at the periodic expense of their sectional interests, andshould they choose to honour a civic professionalism only in thebreach, then moral claims must yield to economic constraint andregulatory adjustments. The state can alienate occupational territoryfrom a profession if a constituency is too poorly — or too expensively-— served by it. In short, given the moderate economic monopoly andautonomy granted professions by the state, a commitment to civicprofessionalism can be not only expected but enforced (Halliday 1987:370–371).

These approaches are far too static and statist: because the state acts assurrogate for the community in the bargain, and because it is only able toapply sanctions in the most drastic circumstances, the profession is notrequired to take account of community access to justice concerns on a day-by-day basis. Giving the government a bargaining chip in the genesis anddissolution of regulatory regimes is not sufficient. The history of theprofession shows that regulatory schemes are born in historically con-tingent circumstances of moral panic or professional politics, and thenremain in place largely unchanged for decades (see for example Pue1987a, b). Thus English solicitors were granted a monopoly overconveyancing in 1804 by Pitt to stop them protesting increased stampduties on both their practising licenses and written conveyances (Abel-Smith & Stevens 1967: 23). They retained it until Thatcher’s reforms in the1980s. The regulatory regimes that governed Australian lawyers until the1980s and 1990s were shaped both by Pitt’s politics and events in theEnglish legal profession of the late 19th century. Relying on the state tooverhaul legal professional regulatory systems when they fail has not beengood enough. The community needs a more dynamic and responsive wayof institutionalizing both its trust and distrust, self-regulation and publicaccountability.

The approaches of Dingwall & Fenn (1987), Paterson (1995) and evenHalliday (1987) seem to ‘trust’ in an effective social bargain betweenprofession and state on the basis of their empirical analyses of the natureof the profession and recent changes to it. Their lack of normative visionfor how to improve on this record suggests that they do not take seriouslyenough the evidence that negative outcomes are likely to be pervasive.


Ayres & Braithwaite’s theory of “responsive regulation” for businessesprovides some models and concepts to work towards a better model forregulating the profession (Ayres & Braithwaite 1992). Their central idea isthat regulatory agencies should use a pyramid of regulatory strategies inresponse to the actions of those they are regulating. Instead of using theirmost drastic regulatory strategies first, they should avoid defiance bytrading on the goodwill of regulatees, encouraging them to complyvoluntarily. More coercive strategies can be used later when they fail tocomply: “Compliance is optimised by regulation that is contingentlycooperative, tough and forgiving” (Ayres & Braithwaite 1992: 51). Thepyramid approach means that the background threat of coercive strategieswill maximize the effectiveness of trusting, cooperative measures, withouthaving to rely on them when distrust is more appropriate.

Such a model can also apply to the development of regulatory packagesfor whole industries, such as the legal profession (Ayres & Braithwaite1992: 38–40). Before the state forces a scheme of regulation on a particularindustry, they would allow them to try solving problems through self-regulation. When that fails, government and community groups mightengage the industry in dialogue, pointing out where they have failed,suggesting ways of doing it better and trying cooperative approaches toreform, finally implementing command and control regulation only as itbecomes necessary [10].

The dynamic, contextual and deliberative approach to regulating theprofession outlined here is therefore an empirically grounded normativeideal. Social bargain proponents ignore this task of institutional design intheir descriptive analyses of why the contract between profession and stateought to work, not how to make it work. By contrast, the theory presentedhere does not seek to rehabilitate the functionalism of the social bargainapproach as an accurate description of the profession and its optimalregulation. Rather it comprehends the ambiguity of the profession byabandoning both the community of competence and conspiratorial cartelimages as bases for regulation. It seeks to institutionalize trust and distrustof lawyers by placing discussions about policies for regulating the legalprofession within a more flexible framework. In this approach, competi-tion, self-regulation and accountability become options on a continuum ofregulatory strategies, highly contextual choices about which strategies touse at different times and in different sub-areas of professional regulationthat can be relatively quickly adjusted when they fail or circumstanceschange. The social bargain is recognized as an ideal for professionalregulation, but a naive one that must be adjusted in accordance with theevidence of how the profession actually behaves.

In practice, the application of the responsive regulation model mightmean that a government regulator, such as the ACCC, and public interest

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groups would maximize the opportunities for voluntary cooperativereform by examining the legal profession, engaging it in dialogue andgiving it a chance to reform its own regulation before going any further.They might acknowledge reforms that have been made before exercizingthe authority to make further reforms in negotiation with the profession,and finally imposing change where the profession is recalcitrant. A resultof pursuing such a dynamic approach to the whole of legal professionalregulatory reform might be that self-regulation with minimal accountabil-ity would be appropriate for trust account regulation since the professionas a whole is keen to have a good public image in this area, but a morecoercive strategy, perhaps giving regulatory powers to third parties such astax office investigators, would be desirable to prevent lawyers assistingoutrageous tax evasion schemes. Detailed empirical work from sociologistsof the legal profession will be helpful in making these decisions.

Like the social bargain model, this approach recognizes that self-regulation is desirable where it works and that the threat of withdrawal ofprofessional privileges can motivate lawyers to self-regulate in a trustworthymanner. But it is also more dynamic than the traditional social bargainapproach, by giving the state and the community an habitual role inholding the profession accountable where it does not prove trustworthy. Toensure this, a condition of any regulatory regime coming out of the processof dialogue described above might be that wherever it gives the professionprivileges and responsibilities, it also provides a way of making theprofession accountable for those privileges and responsibilities at theoption of consumers, the community or a government regulator.

For example, the profession might be allowed to make rules andarrangements for its own regulation and organization, but governmentsand community members might also be given the standing to challengeany of those rules or arrangements on the grounds that they are not in thepublic interest before a regulator or a body made up of government andcommunity interests. In the same way, the profession might agree to beresponsible for certain disciplinary matters, but to allow any party who isunhappy with the outcome to appeal to a body consisting of governmentand/or community representatives. That body might also receive reportson the outcome of all cases from which it could judge whether there wereany problem areas that should be brought to the profession’s attention orregulated in some other way. A consumer or community group through itsrepresentative on the body might have access to information aboutpatterns of structural inequality or domination that would found cam-paigns to change lawyers’ practices or educate the public. A scheme withsome of these elements was adopted in the Australian state of New SouthWales after a process of negotiation between the profession, the govern-ment and reform agencies (Fairlie 1994; Mark 1995).


Finding people to speak for the community in such deliberations aboutthe regulation of the legal profession may seem difficult. Consumers oflegal services are too diffuse a group to organize themselves to hold thestate and the profession accountable for lawyers’ regulation. In Australia, atleast, no consumer group has consistently focused attention on the legalprofession in the past, and the lay representatives who have been involvedin professional regulation have done so as individuals or as governmentnominees (e.g. Weisbrot 1990: 209). But in recent years the consumermovement has taken a concerted interest in lawyers. In Australia in 1995 anumber of community groups banded together to produce a ConsumerJustice Charter, which included strong statements about the legal profession(Consumer Action 1995). The coalition was initiated by the AustralianFederation of Consumer Organisations and included the National Associa-tion of Community Legal Centres, the Australian Council of SocialServices, the Federation of Ethnic Communities Councils, the AustralianConservation Foundation and Disabled People’s International.

Such a range of broad-based community groups ought to be able toprovide and support members who will take part in negotiations with thelegal profession about its regulation. If a representative from one groupconsistently puts positions that are unacceptable to the broader public,there are enough consumer groups with an interest in the issue to move todestabilize and delegitimate their place at the negotiating table (Ayres &Braithwaite 1992: 83–84)[11]. Where ordinary consumer groups are notpowerful enough to make a difference, big business and business peakcouncils can be strong consumer advocates in the legal services market. Innot all senses do business consumers fail as proxies for ordinaryconsumers. The business community has already shown that it has thepower and the will to force lawyers to be cheaper and more efficient (e.g.Stretton 1994). Harnessing this energy by including business consumers inregulatory negotiation with the state and the legal profession would ensurethat at least some aspects of community interest in competitive andeffective legal services are adequately represented.

Regulatory Reform as Deliberative Process

If the regulatory stance one applies to the legal profession depends uponone’s underlying image or theory of it, the two dominant regulatorystances in contemporary debate over the reform of lawyers depend onstereotypes. One motivates trust in a professional community which willguard the purity of professional expertise and ensure that its membersserve client interests well. The other motivates distrust in a regimentedcartel organized to further its economic self-interest and ideologicalhegemony. Making these underlying images explicit means that we can

402 C. Parker

scrutinize them in the light of evidence and experience, and, ultimately,make better informed choices about the regulatory strategies they haveinspired.

The evidence suggests that the result will be a more sophisticated imageof the legal profession and a more subtle formula for its regulation.Neither the market control image, which motivates the forced applicationof competition policy, nor the professional image, which motivates self-(over)-regulation, is a sustainable way of understanding the legal pro-fession. The ambiguity of professional unity, culture and knowledge eachmake stereotypical images of the profession meaningless: the professionrarely acts as an unified whole; different segments have different interests,and reformers will almost always find at least some allies among theprofession. The culture or ideology that ostensibly unites the profession isitself ambiguous, motivating both public regard and self-interestedmonopoly. Finally, the knowledge and expertise of lawyers is not just a mythdesigned to bolster professional mystique, nor does it necessitate blindtrust; it is something to value and take seriously, but is also something thatlawyers can exaggerate and exploit.

For each of these reasons, trust and distrust may be simultaneouslyappropriate responses to a profession which is more complex than eitherstereotype suggests. A regulatory strategy which adequately comprehendsthe ambiguity of the profession will trust the profession to have a role in itsown regulation and reform, but will also institutionalize distrust by givingstate and community a dynamic part to play in holding its self-regulationaccountable. Where both the market and its self-regulation are found tohave failed, the community will rightly insist on state regulation. The key toreconciling the use of trusting and distrusting strategies is dialogue anddeliberation among profession, state and community about where self-regulation can work, where other methods will do better and what meansof accountability to put in place. If stereotypical images of the professioncannot be sustained in the light of evidence and experience, the best wayto break them down is to get the different groups to listen to each other’sperspectives and attempt to justify their own views.

This approach nurtures deliberative democratic participation in theregulatory institutions surrounding the legal profession, while simultane-ously affirming the Durkheimian vision of the legal profession’s privilegeand responsibility in playing a part in its own regulation and reform. Itmeans encouraging public-regarding professionalism. Neither of thedominant theories envisages the profession playing such a role: one imagetreats lawyers as incapable of contributing to their own regulation except aseconomically self-interested players in a competitive market place. Theother sees them as under no responsibility to negotiate, deliberate or make


themselves accountable to the rest of the community for their self-regulation in any but the most general way.

Making the legal profession an active citizen in a dynamic, commu-nicative regulatory process (Sunstein 1993: 241) gives lawyers a chance tolive up to their conventional ideology of serving the community by aprocess of deliberation with community and state which ensures they reallydo so, rather than just saying that they do. Contrast this with a leadingapproach to rehabilitating legal professionalism: Halliday (1987) putsforward “civic professionalism” as an ideal which would guide the legalprofession to do part of the work of government as a good citizen. In hissocial bargain between the state and the profession, the state calls theprofession to fulfil its moral responsibilities as a citizen by contributingsome resources to state service; it exercizes economic leverage over themby retaining the power to alter their monopoly if they do not do so. Yet thisat once gives the profession too much and too little responsibility. It isneither dynamic nor deliberative enough. The profession is given theonerous responsibility of self-regulation and state service, but without aframework of accountability and responsiveness to dialogue with thecommunity.

Halliday’s “civic professionalism” is certainly a public-regarding pro-fessionalism, but one devoid of democratic foundations. It flows from atop-down view of the sovereignty of the legislature or the executive state. InHalliday’s social bargain the state decides, without public deliberation, todelegate state functions to an unaccountable profession. A more attractivedemocratic theory renders professional and parliamentary sovereigntymore subordinate to the sovereignty of the people. It will consist of threecrucial elements: (1) a public-regarding professionalism; (2) one consti-tuted by public deliberation that is not monopolized by the lawyers in thestate and the profession; and (3) one which is held accountable to thecommunity through dialogue over particular decisions and public report-ing of performance indicators that profession, state and communitypersuade each other to be fair. If we accept such a democratic theory ofpublic-regarding professionalism, it follows that there is no correctblueprint of accountability and deliberative process for lawyers. They arematters for deliberation itself, the outcome of which will be different inAustralia from that possible in the U.S.A. or Indonesia.

The responsive, deliberative approach to the regulation and reform ofthe legal profession outlined here breathes new life into a Durkheimianprofessionalism not just by rehabilitating it, but by incorporating itscritique. The critique shows that lawyers do not always live up to the visionof service the state and community expect of them. Making profession,state and community deliberate together about regulatory issues increasesthe accountability of the profession and forces it to engage with and meet

404 C. Parker

community expectations for itself. By requiring accountability and delib-eration of the profession, we deal with the fact that it can sometimes beanything but a good citizen, without devaluing the contribution itsexpertise, experience and goodwill can make to its own regulatoryreform.

Notes

1 See Begun (1986) for a discussion of how sociological and economic views ofprofessions fit together. See Macdonald (1995) for a recent example of howthe market control approach dominates the sociology of the professions.

2 In the case of the legal profession it is clearly justice that the communityexpects lawyers to deliver. (For an analysis of how this expectation is playedout in popular culture, see Greenfield & Osborn 1995.)

3 There are parallels between this sociological view of professions and humancapital theory in economics which sees individual professionals as receivingthe privileges of professionalism as a reasonable return on their investmentin education, and overwork (Schultz 1961; Becker 1975).

4 See Hopkins (1978: 5–13) for other examples of the way scholars of criticallegal studies apply this hermeneutics of suspicion to reforms.

5 See Tomasic (1983) for a preliminary analysis of differences in the Australianlegal profession according to type of work, nature of clientele and ideologyof different practitioners. Also see Halliday’s work (1981) on the fracturing ofthe Australian legal profession and its effects on possibilities for collectiveaction.

6 See Love et al. (1992) who show how deregulation of the legal services marketvaries in Britain according to locality, and also Paterson et al. (1988), whoshow difference responses to competition reform amongst Britishsolicitors.

7 Halliday’s book (1987) is entitled Beyond Monopoly. His work was based onextensive study of the historical records of the Chicago Bar Association.McQueen (1993) shows how the Law Institute of Victoria moved throughsimilar stages between 1885 and 1930.

8 See Dezelay & Garth (1996) for a similar theory applied to lawyers.9 See Macdonald (1995: 157–186) for an overview of different sociological

approaches to knowledge and the professions.10 See Parker (1997) for an example of the extent to which this sort of process

was evident in the Australian debate over reform to the legal profession.11 Ayres & Braithwaite (1992) argue that the key to effective involvement by

public interest groups in regulation is making sure that public interestrepresentatives are democratically chosen from groups with broad-basedsupport, and that any one group’s place in regulatory negotiations iscontestable by another group that can show it enjoys more widespread publicsupport.


Acknowledgements

Thanks to John Braithwaite and Ann Daniel for comments on earlier draftsof this paper.

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