Document Type

Article

Publication Date

12-2013

Keywords

Access to justice, Multidisciplinary practices, Alternative business structures

Disciplines

Legal Ethics and Professional Responsibility | Legal Profession

Abstract

A consensus appears to have emerged among American lawyers that globalization and information technology are transforming the practice of law in fundamental ways. In particular, non-lawyers are increasingly involved in what has traditionally been defined as the practice of law. Scholars such as Richard Susskind, in the United Kingdom, and Thomas Morgan, in the United States, have hypothesized that lawyers may be going the way of wheelwrights, cordwainers or mercers (traders in fine cloths and silks), and that one day in the not-so-distant future we will consider the profession of lawyer as something to be studied historically, wonder why lawyers were once needed by society, and speculate as to the cause of their demise as a distinct occupational group. Like the demand for fine cloths and leather goods, the demand for legal services will still exist, but new technologies and means of delivering these services will develop and displace the traditionally organized guilds that previously enjoyed a monopoly in this market. Many lawyers have been receptive to proposed changes in the structure and regulation of the market for legal services, but their more traditionally minded colleagues have expressed concerns – sometimes in fairly apocalyptic terms – about the erosion of the core values of the legal profession.

The trouble with the idea of core values is that it is often invoked in a question-begging way, and when the rhetoric of professionalism is probed more carefully, it often turns out to be merely a cover for a rearguard action to protect the profession’s monopoly rents. Having observed the debate over multidisciplinary practices and, more recently, the ABA Ethics 20/20 Commission’s alternative business structures proposal, it is apparent that the position of many of the opponents of change is not empirical, but is essentially a conceptual argument, that terms such as “lawyer” or “legal profession” refer to natural kinds, not conventionally designated categories. Prior to the US Supreme Court’s decisions in Bates and following cases, one might have said that American lawyers had the property of being unable to advertise their services. Contingent fees are regarded as anathema to the concept of lawyer in most countries, but accepted as unproblematic by American lawyers. More closely related to alternative practice structures, the organized bar in the United States once vigorously fought against the providers of group legal services plans, offered by organizations like unions and automobile clubs, which made lawyers available to low- to middle-income consumers. Now no lawyer would seriously contend that providing services under a legal services plan is conceptually incompatible with the core values of her profession. Experience with regulatory reform in the U.K. similarly shows that it may be possible to increase access to justice and the efficiency with which legal services are delivered, while preserving the core values of the legal profession. This essay therefore argues for a conception of professional core values that is compatible with reform that addresses the concerns of clients as well as those of lawyer.

Comments

This paper is part of a symposium in the journal Legal Ethics on the regulatory challenges facing the American legal profession.

Publication Citation

Published in: Legal Ethics, Vol. 16, Part 2 (December 2013).

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