Alternative Law Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Alternative Law Journal |
|
Lillian Corbin[*]
A higher standard of service from lawyers is essential.
The term ‘professionalism’ traditionally describes the organisational form of how lawyers are regulated and deliver legal services. This article suggests that there is a need to redefine professionalism in terms of conduct that provides services that will seek to achieve benefits for the public (the common good). While an adherence to ethics is being encouraged by the leading professional bodies of both the United States of America and Australia, the minimum standards required by them are not enough to produce the necessary qualitative services. A higher standard of conduct is essential — conduct which suggests that lawyers have the state of mind that demands they consistently give of their best.
It has been suggested that the term professionalism is ‘an elastic concept the meaning and application of which are hard to pin down’.[1] Another author describes it as ‘like melted butter or silly putty’ that can be appropriated by opposing members of a debate to serve their own purposes.[2] However, for the purposes of this article it is intended that professionalism be used in the normally accepted sense as the organising concept of how lawyers are regulated and deliver legal services. As such, it is used to describe something that is the opposite of commercialism.
The most used definition of professionalism is that articulated by Roscoe Pound:
A profession is a group … pursuing a learned art as a common calling in the spirit of public service… [3]
This arrangement has been described as a contract between lawyers and society. Both parties have their expectations. For instance the profession expects that they be given high status, reasonable rewards, restraints on competition and autonomy[4] in return for their provision of competence, access to the legal system, a service ethic and public protection. The monopolistic situation that results was granted ‘as a sort of quid pro quo’.[5]
An American academic, Pearce, agrees with this explanation. He states that the professionalism paradigm is based on the premise that the lawyers will altruistically use their specialised knowledge and skills to advance the good of the community in preference to their own self-interest and in exchange they are given the privilege of self-regulation (autonomy).[6] The legal profession, by entering into this bargain, covenant to abide by certain prohibitions. These he calls ‘Profit Maximizer’ and ‘Business Servant’. Lawyers agree to oppose the use of law as a commodity and so impose bans on advertising, soliciting clients and making large profits their aim (Profit Maximizer prohibition). They also endeavour to pursue an ethic of public service and not be controlled by their clients when this path would harm society (Business Servant prohibition). Pearce further explains that lawyers are said to be governed by ‘the invisible hand of reputation’ rather than efficiency. The lawyers who make the most money are those considered to be most professional. Any indiscretions by lawyers attract the professional body to call for compliance or suffer a slur on their reputation.[7]
However, this organisational form is no longer persuasive. It is obvious that the practices that were the subject of the earlier prohibitions now form part of the modern lawyer’s everyday conduct. In recent years the ban on advertising has been removed because it was considered that it constrained business and hampered consumers from having the knowledge to make informed choices concerning legal services.[8] The lawyers’ prior claim to desire wealth only as a consequence to their service to the public is also now widely questioned since it is commonplace to speak of lawyers offering their services in the marketplace as products to consumers. The Australian Bureau of Statistics also adds weight to this supposition since it groups legal services with those offered by accountants into a category called the ‘Legal and Accounting Services Industry’.[9]
Many consider that the changes to lawyers’ business structures, conduct and general practices have caused professionalism to fall prey to the claims of commercialism. Instead of dedicating themselves to the public that they purport to serve, it is claimed that lawyers aspire to achieving wealth as evidence of their success. In other words they are endeavouring to achieve profit at the expense of their principles.
Since the 1970s the Australian government has been pursuing a policy of promoting competition and consumer protection but the enacted legislation[10] did not affect the professions. In the early 1990s the then chairman of the Trade Practices Commission, Professor Bob Baxt, challenged this situation. He questioned the state of affairs that allowed the four professions of accounting, architecture, engineering and law, who then employed 151,000 people (about 2% of the country’s civilian workforce), to be regulated differently to other sectors in the community. He advocated that these professions ‘should be deregulated and exposed to the chill winds of market competition’.[11]
The most notable inquiry in relation to the legal profession was the investigation by the Trade Practices Commission. Its report, handed down in March 1994, found that the ‘legal profession is heavily over-regulated and in urgent need of comprehensive reform’.[12] As a result of this report and others the governments in Australia signed the Competition Principles Agreement which endorsed their commitment to the National Competition Policy. This commitment has obliged each State and Territory government to investigate the legislation and regulations relating to professionals to assess whether or not they produce anti-competitive effects.[13]
The execution of the recommendations of these investigations has caused the legal professional bodies to consider implementing major changes to the way they are structured and to justify their monopoly over the provision of legal services. To aid in this process the Law Council of Australia at its meeting in December 1998 released its policy statements on the reservation of legal work and multi-disciplinary practices (MDPs).[14] This organisation’s contribution to this matter is important as most State law associations and bars are affiliated with it. The policy concerning the reservation of legal work recommends that certain core areas of legal work should be reserved to protect the public interest. In relation to MDPs it emphasises the necessity to maintain the lawyers’ ethical obligations and professional responsibilities but considers that lawyers should be able to choose how they want to practice as long as it is in the public interest. It considers that the individual lawyers should be regulated and bound by ethical obligations.[15]
Similar concerns are facing the legal profession in the United States of America, although the principal pressure is not coming from the government. In America the legal profession is responding to the community’s criticisms concerning their services generally and challenges from accountants for the right to provide legal services. However, the American Bar Association (ABA) is strongly resisting the formulation of MDPs. The majority membership in this body maintains that if partnerships between lawyers and non-lawyers are allowed, then ethical concerns of conflicts of interest, independence and professional privilege will ensue. The ABA further asserts that these sorts of arrangements will consequently result in a lower quality of service being provided.[16]
So in summary it can be concluded that both the Law Council of Australia and the American Bar Association are promoting the need for lawyers to offer a qualitative service which benefits the public. The term ‘professionalism’ is being re-defined. These bodies are using professionalism to describe the conduct required of professionals rather than as a term to describe their mode of regulation. It is also noted that the exhortations of the professional bodies speak in terms of behaviour required by ethical codes.
Professionalism, it has been argued, would be achieved if the provision of quality services to clients included considerations for the common good or in other words sought to serve the public interest. But will lawyers achieve ‘professionalism’ by their strict adherence to the rules set out in the ethical codes?
The answer to this is clearly no. The conduct required by professionalism does not necessarily attach to a person who has done the training and been given the accreditation of a lawyer.[17] Professionalism does not automatically emanate from a professional person. This is the beginning premise of the ABA and others. The ABA is admonishing their members to ‘go beyond the incentives of the market and beyond the requirements of the professional rules — to seek justice, to be more honest and tolerant, to be less adversarial and selfish, and to give more of their time and resources to the poor’.[18]
The President of the ABA, Shestack, has set out what he believes are the elements of professionalism.
• Fidelity to ethics.
• Service with competence and dedication — but with independence as well. The ability to say no to a client.
• Meaningful legal education — a means for growth and replenishment.
• Civility and respect for authority.
• Commitment to improve the justice system and advance the rule of law.
• Pro bono service.[19]
The Minnesota State Bar Association stated that professionalism relates ‘to the character and integrity of lawyers … the aspirational aspects of the practice of law — how we ought to behave in our relations to each other …’[20] This association also states that professionalism ‘deals with how we should behave even if there are no formal institutional sanctions, while legal ethics rules deal with how we must behave in order to avoid disciplinary sanctions’.[21]
These distinctions illustrate that conduct which meets the ordinary ethical standards is not the conduct which would be described as professionalism. It is just the minimum standard required.[22] The Florida Bar gave an analogy to illustrate:
The Rules Regulating the Florida Bar are the floor that supports our status as a lawyer in good standing. Whereas professionalism is the ceiling or higher standard that all lawyers should aspire to.[23]
The same guidelines went on to say that misconduct was the focus of ethics whereas professionalism has its ‘focus on helping, caring, protecting, counselling, and setting a good example’.[24] The same guidelines also stressed that these were ideals and goals that were not meant to be imposed on members but it was hoped that individual members would see their worth and strive to achieve them.[25] In other words the goals of professionalism should not be applied to specific situations but should be viewed as obligations to society. Their application really begins where the ethics code ends.[26]
Although many of the elements attributed to the redefined professionalism,[27] for instance as set out by Shestack above, may sound idealistic, it is important to notice that there are developments being undertaken across America to structure new organisations for the purpose of ensuring their implementation. For instance two major developments, resulting from calls such as Shestack’s, are the adoption of a National Action Plan on Professionalism[28] by the Conference of Chief Justices and the revision of the Model Rules of Professional Conduct being conducted by the ABA Commission on Ethics 2000.[29]
The legal profession (practising lawyers) in Australia are still using the word ‘professionalism’ in its traditional sense but in reality no thought or consideration is being given to what it means. On the whole, lawyers seem to be more concerned with their ability to structure their firms in order to be able to compete in the marketplace for legal services. Therefore their writings mainly address their conduct in terms of efficient client relationships, management and marketing practices.[30] Dr Tomasic adds empirical weight to this assertion in his report concerning a survey conducted on lawyers in New South Wales in the early 1980s. He found that lawyers consider themselves as primarily businessmen.[31] Dr Tomasic said:
… regardless of the rhetorical flourishes from legal societies, lawyers are more interested in business orientation and not service orientation … Social justice and public service are the least of their worries. They see these social values as unrealistic goals.[32]
The Australian judiciary is showing itself to be concerned with the practices of lawyers and its writings focus on encouraging the type of conduct that could be classed as professionalism as described in the American literature. The Hon Sir Daryl Dawson was one of the first to raise concerns taking exception to the fact that the Justice Statement[33] which was another Commission formulated because of the government’s pursuit of the National Competition Policy, suggested that the legal profession was practising in a ‘legal services market’. He exhorted the legal profession to continue to uphold the social trust element of their role.[34] Mr Justice Kirby[35] has written in a similar vein.
While the body of literature in Australia concerning professionalism is predominantly being authored by the judiciary, the results of a recent survey could be read as suggesting the beginnings of a reconsideration of professionalism. In March 1998 the survey was conducted of members of legal firms concerning their views on the proposed structural and practice changes to their firms as a result of the government’s policy of deregulation. This report noted that the lawyers who were interviewed stated that whatever changes occurred the professionals were opposed to being ‘just a business’ and they expressed the view that professionalism be retained. However, professionalism was not defined.[36] So while the lawyers are not really defining its meaning, they perceive the aim of professionalism to be worthwhile.
Chief Justice Gleeson, in a recent speech, stressed his view that professionalism needs to be reconsidered and he further recommends that lawyers should encourage others to join in adhering to its principles of conduct:
The idea of professionalism is as important now as it ever was. It should be reinforced, not devalued. Members of the traditional professions should not see themselves as jealously preserving ancient privileges. They should support other vocations wishing to take up the idea.[37]
The writings of the judiciary seem to be inferring that lawyers should aspire to achieving conduct which can be described as professionalism. It is no longer correct to define professionalism as the organisational form pertaining to the regulation of lawyers.
In Australia members of academia are acting on the calls for professionalism from the judiciary. There is a proposed study, funded by the Australian Research Council,[38] to conduct an empirical survey of graduates in their final year of study and continuing for the first two years of their employment. The survey, among other things, will report on how the students rate the importance of values in their decision making. These developments, and those outlined above in America, are only mentioned here, as a consideration of whether or not they will be effective in promoting professionalism is beyond the scope of this article.
This article has argued that professionalism is being redefined in Australia and the United States of America as conduct — conduct which is more than that required in the ethical codes. It is the type of conduct which demands that lawyers give consistently of their best.[39] The attainment of this type of conduct, it is suggested, will allow the legal profession to legitimately claim that the services they provide are of a high quality and can be described as professionalism. This standard of conduct, it is contended, will then allow lawyers to claim that their services are to be desired as they serve the client efficiently and effectively and also the common good.
However, as we have already discussed, professionalism in the traditional sense has been found wanting by governments and is refuted by the public. It remains to be seen whether the interested parties, particularly consumers of legal services, will evaluate the future performance of lawyers as conduct which justifies this renewed claim to professionalism.
[*] Lillian Corbin teaches law at Griffith University.e-mail: L.Corbin@mailbox.gu.edu.au©2001 Lillian Corbin
[1] American Bar Association Commission on Professionalism, ‘… In the Spirit of Public Service’: A Blueprint for the Rekindling of Lawyer Professionalism’, American Bar Association, Chicago, 1986, 10 cited in Van Hoy, Jerry, ‘Intraprofessional politics and professional regulation’, (1993) 20(1) Work & Organisations 96.
[2] Gerhart, Peter, ‘The Future of the Legal Profession’ an unpublished address before The City Club of Cleveland January 28, 1994 published at <http://lawwww.cwru.edu/faculty/gerhart/speech.html> accessed on 28 December 2000.
[3] Pound, Roscoe, The Lawyer from Antiquity to Modern Times, West Pub. Co, St. Paul, 1953, p.5.
[4] Paterson, Alan, ‘Professionalism and the Legal Services Market’, (1996) 3(1/2) International Journal of the Legal Profession 140.
[5] Paterson, Alan, above.
[6] Pearce, Russell, ‘The Professionalism Paradigm Shift: Why Discarding Professional Ideology will Improve the Conduct and Reputation of the Bar’, (1995) 70 New York University Law Review 1232.
[7] Pearce, Russell, above, 1232-3.
[8] Bates v State Bar [1977] USSC 167; 433 US 350 (1977).
[9] Australian Bureau of Statistics in Australia Today published at <http://www.abs.gov.au> accessed on 24 April 2000.
[10] Trade Practices Act 1974 (Cth).
[11] Kestigan, M., ‘The TPC’s Review of the Accountancy Profession’, (1992) 62(6) Australian Accountant 22.
[12] Trade Practices Commission, ‘Study of the Professions: Legal, Summary of Final Report’, March 1994, p.3.
[13] Some of these investigations have resulted in reports — Law Society of Western Australia, ‘Flexible Practice Structures for Lawyers’ April 1999, Discussion Paper, published at http:///www.lawsocietywa. asn.au/public_discuss.htm accessed on 14 May 1999; NSW Attorney- General’s Department, ‘National Competition Policy Review of the Legal Profession Act 1987, Final Report’, November 1998, published at <http://www.lawlink.nsw.gov.au/agd.nsf/pages/ncpf.toc> accessed on 24 June 1999; and Department of Justice and Attorney-General, ‘Legal Profession Reform: Green Paper’, December 1998, published at http://justice.qld.gov.au/public_consult, accessed on 7 July 1999.
[14] These policies are published at <http://www.lawcouncil.asn.au> accessed on 19 May 1999.
[15] It should be noted that regardless of this policy the New South Wales government has legislated to allow profits to be shared with non-lawyers in MDPs. Sections 48F and 48G of the Legal Profession Act 1987 (NSW).
[16] Anonymous, ‘ABA rejects MDP plans’, (1999) 10 (8) International Tax Review 4; American Bar Association, untitled transcript of the Commission on Multidisciplinary Practice was posted on 26 August 1999 published at <http://www.abanet.org/cpr/mdphouse.html> accessed on 20 September 1999.
[17] McClean, Hector, ‘Never Give In’, (1999) 65(21) Vital Speeches of the Day 663.
[18] Cochran, Robert, Jr., ‘Professionalism in the Postmodern Age: Its death, attempts at resuscitation, and alternate sources of virtue’ (2000) 14 Notre Dame Journal of Law, Ethics & Public Policy 305.
[19] Shestack, Jerome J, ‘Defining Our Calling’, (1997) 83(9) American Bar Association Journal 8.
[20] Minnesota State Bar Association Professionalism Committee, ‘Reports to the General Assembly’, published at http://www2.mnbar.org/Duluth98/ gareport.html accessed on 31 March 2000.
[21] Minnesota State Bar Association Professionalism Committee, above.
[22] Center for Professionalism, American Bar Association, published at <http://www2.flabar.org/newflabar/professionalism/cpintro.html> accessed on 1 December 1999
[23] Center for Professionalism CLE Guidelines, Florida Bar, published at <http://www.flabar.org/newflabar/professionalism/cleguide.html> accessed on 16 February 2000.
[24] Center for Professionalism CLE Guidelines, above.
[25] Center for Professionalism CLE Guidelines, above.
[26] Pope, Daniel, ‘The twain of ethics and professionalism’, (1995) 62(4) Defense Counsel Journal 594.
[27] For instance as set out by Shestack above.
[28] This plan covers such topics as law school curricula, admission requirements, mentoring and lawyers assistance, effective lawyer regulation and the judge’s role in dealing with incivility.
[29] Veasey, Hon. E. Norman, ‘Orison S. Marden Memorial Lecture: Our Institutional Resolve to Reform the Ethics and Professionalism of the Bar — Whom are We Protecting? The Lawyer? The Client? The Public?’, 54 The Record of the Association of the Bar of the City of New York 571.
[30] Macalister, Patrick, ‘The Future of the Private Legal Profession’, (1995) 33(2) Law Society Journal 28 is an example. It emphasises that lawyers need to implement better management strategies; optimise the efficiency of their services; consider offering different pricing arrangements and give greater attention to communicating in order to retain their clients and so survive.
[31] Dr Tomasic is cited in Nieuwenhuysen, J. and Williams-Wynn, M., Professions in the Marketplace: An Australian Study of Lawyers, Doctors, Accountants and Dentists, Melbourne University Press, Melbourne, 1982, p.6.
[32] Dr Tomasic, above.
[33] Australia, Access to Justice Advisory Committee, ‘Access to Justice: An Action Plan’, AGPS, Canberra, 1994.
[34] Dawson ,The Hon Sir Daryl, ‘The Legal Services Market’, (1996) 5 Journal of Judicial Administration 147.
[35] Kirby, The Hon Michael, ‘Legal Professional Ethics in Times of Change’, speech given at the St James Ethics Centre, Forum on Ethical Issues, Sydney, 23 July 1996.
[36] Gray, John, King, Philip and Woellner, Robin, ‘Facing up to Change’, (1998) 36(2) Law Society Journal 44.
[37] Gleeson, The Hon Murray, ‘Are the Professions Worth Keeping?’ speech given at the Greek–Australian International Legal and Medical Conference, 31 May 1999 published at <http://www.hcourt.gov.au/ speeches/cj/areprofe.htm> accessed on 16 February 2000.
[38] Evans, A., Parker, S., and Palermo, J., ‘The Development of Values in New Lawyers’, Large ARC Grant 2001, A00103385 published at <http://www.arc.gov.au/ncgp/old_grants/outcomes/default.htm> accessed on 22 April 2001.
[39] McClean, above, ref 17.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AltLawJl/2001/51.html