Lawyers in 21st-Century Societies: Vol. 2: Comparisons and Theories 9781509931217, 9781509931248, 9781509931231

Citation preview

LAWYERS IN 21ST-CENTURY SOCIETIES This book presents an invaluable collection of essays by eminent scholars from a wide variety of disciplines on the main issues currently confronting legal professions across the world. It does this through comparative analyses of the data provided by the reports on 46 countries in its companion volume: Lawyers in 21st-Century Societies: Vol. 1: National Reports, published in 2020. Together these volumes build on the seminal collection Lawyers in Society edited by Abel and Lewis in 1988/89. The period since 1988 has seen an acceleration and intensification of the global socioeconomic, cultural and political developments that in the 1980s were challenging traditional professional forms. Together with the striking transformation of the world order as a result of the fall of the Soviet bloc, neo-liberalism, globalisation, the financialisation of capitalism, technological innovations, and the changing demography of lawyers, these developments underscored the need for a new, comparative exploration of the legal professional field. This volume deepens the insights in volume 1, with chapters on legal professions in Africa, Latin America, the Islamic world, emerging economies, and former communist regimes. It also addresses theoretical questions, including the sociology of lawyers and other professions (medicine, accountancy), state production, the rule of law, regional bodies, large law firms, access to justice, technology, casualisation, cause lawyering, diversity (gender, race, and masculinity), corruption, ethics regulation and legal education. Together with volume 1, it will inform and challenge conceptions of the contemporary profession, and stimulate and support further research. Vol 2: Comparisons and Theories

ii

Lawyers in 21st-Century Societies Volume 2: Comparisons and Theories

Edited by

Richard L Abel Hilary Sommerlad Ole Hammerslev and

Ulrike Schultz

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © The editors and contributors severally 2022 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2021062195 ISBN: HB: 978-1-50993-121-7 ePDF: 978-1-50993-123-1 ePub: 978-1-50993-122-4 Typeset by Compuscript Ltd, Shannon

To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Preface

T

his is the second volume of one of the most comprehensive international comparative socio-legal projects ever conducted. The previous volume offered a rich collection of reports by 77 authors on the legal professions of 46 jurisdictions throughout the world. This volume presents 26 chapters by 47 eminent socio-legal scholars, who draw on the national data to engage with key comparative, theoretical and methodological issues. (Textual citations to Volume 1 chapters are by authors’ names and chapter number. Because the Volume 1 table of contents follows the list of contributors below, those chapters are not repeated in the lists of references in this volume’s chapters.) The project was proposed by Hilary Sommerlad at the July 2014 meeting of the Working Group for Comparative Studies of Legal Professions, in Frauenchiemsee, Germany, 25 years after publication of the pioneering three volumes of Lawyers in Societies, edited by Richard Abel and Philip Lewis. Given the impact of globalisation, not only on the geo-political order but also on nation states and their institutional architecture, Sommerlad argued that it was time for a new cross-national study of lawyers in society. The editorial team of Richard Abel (US), Hilary Sommerlad (UK), Ole Hammerslev (Denmark) and Ulrike Schultz (Germany) brought a high level of expertise to the subject: all had published widely on the legal profession, had a lot of experience in project management, belonged to a range of national and international networks, and – what is probably most important – shared a passionate concern about the subject and a great deal of stamina. Over the last seven years e-mails were exchanged almost daily and zoom-meetings held monthly after the COVID-19 pandemic precluded in-person conferences. In 2020, after six years of hard work, the first volume appeared. It has taken another two years to finish this volume (although work proceeded on both volumes simultaneously). Preliminary versions of the chapters in this volume were presented and discussed at meetings of the Law and Society Association, the Research Committee on Sociology of Law (RCSL) and the RCSL Working Group for Comparative Study of Legal Professions. After February 2020 all these meetings were virtual, which facilitated participation by colleagues from the Global South and younger colleagues. In shaping the enquiry, we were guided by a set of research questions that, like those informing the original project, focused on the relationship between lawyers and the state, a globalised market, civil society and the international order. We also considered how that relationship had changed over the last 30 years and the forces producing such change. In order to uncover the universality of some features and the spatial, temporal and historical particularities of others, we developed essential data collection indices (such as the size and demographics of the profession and its subdivisions, law school enrolment and methods of education, and training and modes of qualification). However, differences in the cultures and the social, political and legal systems of the 46 jurisdictions ensured that the national reports were situated in the historical development and specific environments of their professions, enriching our understanding of the interconnections between state trajectories and the global order. The resulting national

vi  Preface reports in Volume 1, produced by a multi-disciplinary, multi-cultural group of ­scholars, provided a rich resource for cross-cultural engagement with the research questions. For the present volume the situation was more complicated. We had many discussions about which issues raised by the national reports should be further analysed theoretically and comparatively and how these should be framed. We wanted chapters which were thematic, dealing with central features of all legal professions, as well as comparative ­chapters across legal professions and between them and other professions in order to deploy and deepen our practical and theoretical understanding of lawyers in twenty-firstcentury societies. We needed specialists with expertise in a wide variety of disciplines and subject matters and drawn from around the world. It is a testament to the maturity of our field that we could find these authors, all of whom produced their chapters without any external funding (beyond travel to conferences). We are very grateful to them. We also want to thank Rosemarie Mearns, Kate Whetter and Linda Staniford at Hart Publishing and Maria Skrzypiec, our copy editor, who provided invaluable help throughout this long, large, complex project. We begin with a chapter on the methodology of comparative sociology, followed by four chapters comparing lawyers in Africa, Latin America, the Islamic world and the former Soviet bloc. We acknowledge the impact of globalisation in three chapters on large firms, global practice in emerging economies, and practice in EU institutions in Brussels. Four chapters examine the production of law and lawyers: regulation of lawyers, how lawyers collectively shape law, legal education, and the casualisation of legal workers. Three chapters deal with lawyers and social justice: access to justice; the distinctive dilemmas of cause lawyers in conflicted, authoritarian and transitional societies; and lawyers and the defence of the rule of law. Another three chapters analyse the increasing diversity among lawyers in terms of gender, race and ethnicity. Four chapters locate lawyers in the larger environment of professions, comparing them with accountants and doctors, identifying their unique features, and looking at the impact of legal technology. Three chapters focus on the relationship between lawyers and the state, including the roles of globalisation and corruption. The final chapter offers a synthesis of data from the national reports. Writing comparative chapters was particularly demanding, since the authors had to combine details from the national reports with larger theoretical questions. They often found more heterogeneity than homogeneity. Several scholars, asked to compare lawyers in Asia, replied that there was too much diversity to make this possible or fruitful. However, major trends shaping the profession are discernible throughout the world: segmentation, contestation with authoritarian rule, convergence within sub-groups of countries, the long-term consequences of colonial transplants, and the lasting significance of religious law. While this volume was in progress, we lost an outstanding scholar: Reza Banakar, who co-authored the national report on Iran in Volume 1 and, throughout his career, contributed widely to methodological questions and theoretical developments in sociology of law. He is greatly missed. Although the present volumes were prompted by our recognition of the major social changes that have occurred since the original volumes were published in 1988/89, especially the rise of neoliberalism and increasing globalisation, we can already discern other forces that seem likely to have an equally great impact on the future of the legal profession: climate change and its inevitable effect on geographies, economies and migration; growing inequality; the rise of movements that threaten the foundations of democracy; the backlash against

Preface  vii globalisation; military interventions; the long-term impact of COVID-19 and the certainty that other pandemics will follow; and the continued transformation of work (including professional work) by information technology and artificial intelligence. We encourage readers to address these urgent questions, thereby providing essential material for further comparative analysis. Richard Abel, Santa Monica, California, United States Hilary Sommerlad, Leeds, United Kingdom Ole Hammerslev, Odense, Denmark Ulrike Schulz, Hagen, Germany 26 September 2021

viii

Table of Contents Preface�������������������������������������������������������������������������������������������������������������������������������� v List of Contributors���������������������������������������������������������������������������������������������������������xiii Volume One: National Reports Table of Contents����������������������������������������������������������� xvii INTRODUCTION 1. Studying Lawyers Comparatively in the 21st Century: Issues in Method and Methodology��������������������������������������������������������������������������������������������������������� 1 Hilary Sommerlad and Ole Hammerslev PART I COMPARISONS: REGIONS, RELIGIONS, POLITICAL ECONOMIES 2. Evolution of Latin American Lawyers Over Three Decades: 1990–2020����������������������� 31 Manuel A Gómez 3. Africa’s Lawyers: From Imperial Agents to Legal Brokers in Global Markets���������������� 51 Sara Dezalay 4. Lawyers in the Muslim World: Between Social Transformation, Judicial Control, and Feminisation�������������������������������������������������������������������������������������������������������� 73 Mirjam Künkler 5. Post-Socialist Legal Professions: Jurisdictional Volatility, Changing Regulatory Logics and the Return of Guilds��������������������������������������������������������������������������������� 99 Rafael Mrowczynski PART II DIVERSITY 6. Understanding Gender Inequality in the Legal Profession������������������������������������������� 127 Marta Choroszewicz and Fiona Kay 7. Men, Masculinities and the Legal Professions: Asking the ‘Man Question’����������������� 151 Richard Collier 8. Race, Ethnicity and the Legal Profession������������������������������������������������������������������� 173 Hilary Sommerlad, Angela Melville, Lisa Hanson, Sameer Ashar, Meera Deo and Marijke ter Voert

x  Table of Contents PART III PRODUCTION OF LAW AND LAWYERS 9. Still Special After All These Years? Fundamental Questions in Legal Services Regulation���������������������������������������������������������������������������������������������������������������� 203 Andrew Boon and Noel Semple 10. When and Why Do Lawyer Organisations Seek to Influence Law?����������������������������� 227 Lynn Mather and Leslie C Levin 11. Globalisation and Education: Reconfigurations in Location, Scale, Form and Content������������������������������������������������������������������������������������������������������������� 253 Ole Hammerslev 12. Paralegals and the Casualisation of Legal Labour Markets���������������������������������������� 271 Hilary Sommerlad, Jeanne Hersant, Nina Holvast, Luca Verzelloni, Stefanie Gustafsson, Rebecca L Sandefur and Tom Clarke PART IV LAWYERS AND SOCIAL JUSTICE 13. Lawyers and Access to Justice����������������������������������������������������������������������������������� 303 Rosemary Hunter, Annette Olesen and Rebecca L Sandefur 14. Cause Lawyering in Conflicted, Authoritarian and Transitional Societies: Politics, Professionalism and Gender������������������������������������������������������������������������� 327 Anna Bryson, Kieran McEvoy and Alex Batesmith 15. Advocates for Silenced Voices: How Human Rights Lawyers in Europe and Latin America Defend the Rule of Law������������������������������������������������������������������������������ 353 Stefanie Lemke PART V MULTINATIONAL FIRMS 16. The Many Lives of Big Law: Three Decades in the Evolution of Large Law Firms����� 373 Manuel A Gómez and Marc Galanter 17. Globalisation, Lawyers, and Emerging Economies: The Rise, Transformation, and Significance of the New Corporate Legal Ecosystem in India, Brazil, and China���������������������������������������������������������������������������������������������������������������� 395 David B Wilkins, David M Trubek and Bryon Fong 18. Lawyers and the European Union: The Rise of a Regulatory Bar in Brussels (1989–2019)��������������������������������������������������������������������������������������������� 421 Lola Avril

Table of Contents  xi PART VI SOCIOLOGY OF PROFESSIONS 19. Between Rules and Power: Finding a Place for Lawyers in the Sociology of Professions����������������������������������������������������������������������������������������������������������� 445 Sida Liu 20. Accountants versus Lawyers: Comparing the Moneymen with the Monied (Gentle)men������������������������������������������������������������������������������������������������������������� 461 Sundeep Aulakh 21. The Mutation of Medical Professionalism����������������������������������������������������������������� 495 Mark Exworthy and Simon Moralee 22. Legal Technology: The Great Disruption?������������������������������������������������������������������ 515 Julian Webb PART VII LAWYERS AND STATE PRODUCTION 23. State-Centred Comparison of Legal Professions in an Era of Globalisation���������������� 543 Frank W Munger 24. Law as Reproduction and Revolution: An Interconnected History of the Internationalisation of National Legal Hierarchies���������������������������������������������������� 569 Yves Dezalay and Bryant G Garth 25. Money Laundering, Corruption and the Legal Profession: An Exploration����������������� 591 Mike Levi CONCLUSION 26. Comparative Sociology of Lawyers, 1988–2018: Governance, Regulation, Access to Justice, Political Engagement, Regime Change and the Rule of Law������������ 617 Richard L Abel Index������������������������������������������������������������������������������������������������������������������������������ 643

xii

List of Contributors Richard L Abel, Connell Distinguished Professor of Law Emeritus and Distinguished Research Professor, University of California, Los Angeles (US) Sameer Ashar, Clinical Professor of Law and Associate Dean for Equity Initiatives, University of California Irvine (US) Sundeep Aulakh, University Academic Fellow in the Work, Employment Relations Division, Leeds University Business School (UK) Lola Avril, Research Associate, Academy of European Law, European University Institute (Italy) Alex Batesmith, Lecturer in Legal Profession, School of Law, University of Leeds (UK) Andrew Boon, Professor of Law, City Law School, City, University of London (UK) Anna Bryson, Senior Lecturer, School of Law, Queen’s University Belfast (UK) Marta Choroszewicz, Senior Researcher, University of Eastern Finland (Finland) Tom Clarke, past Vice President for Research, National Center for State Courts (US) Richard Collier, Professor of Law and Social Theory, Newcastle Law School (UK) Meera Deo, Professor of Law, Southwestern Law School (US) Sara Dezalay, Senior Lecturer in International Relations, Cardiff University (UK) Yves Dezalay, Director of Research Emeritus, Centre national de la recherche scientifique (France) Mark Exworthy, Professor of Health Policy and Management, School of Social Policy, University of Birmingham (UK) Bryon Fong, Executive and Research Director, Center on the Legal Profession, Harvard Law School (US) Marc Galanter, Professor of Law Emeritus, University of Wisconsin Law School (US) Bryant G Garth, Distinguished Professor of Law Emeritus, University of California, Irvine (US) Manuel A Gómez, Professor of Law and Associate Dean for International and Graduate Studies, Florida International University (US) Stefanie Gustafsson, Senior Lecturer in Organisation Studies, School of Management, University of Bath (UK) Ole Hammerslev, Professor of Sociology of Law, University of Southern Denmark (Denmark) Lisa Hanson, Researcher, Wardiparingga Aboriginal Health Equity Research Group, South Australian Health and Medical Research Institute, Adelaide (Australia)

xiv  List of Contributors Jeanne Hersant, Assistant Professor, School of Social Work, Pontifical Catholic University of Chile (Chile) Nina Holvast, Assistant Professor, School of Law, Erasmus University Rotterdam (Netherlands) Rosemary Hunter, Professor of Law and Socio-Legal Studies, University of Kent (UK) Fiona Kay, Professor of Sociology, Queen’s University (Canada) Mirjam Künkler, Research Professor, Netherlands Institute for Advanced Study in the Humanities and Social Sciences (Netherlands) Stefanie Lemke, Rule of Law Specialist (Germany) Mike Levi, Professor of Criminology, School of Social Sciences, Cardiff University (UK) Leslie C Levin, Hugh Macgill Professor of Law, University of Connecticut (US) Sida Liu, Associate Professor of Sociology and Law, University of Toronto (Canada) Lynn Mather, SUNY Distinguished Service Professor Emerita, University at Buffalo School of Law (US) Kieran McEvoy, Professor of Law and Transitional Justice, Queen’s University Belfast (UK) Angela Melville, Senior Lecturer, College of Business, Government and Law, Flinders University (Australia) Simon Moralee, Senior Lecturer, Healthcare Management, Alliance Manchester Business School (UK) Rafael Mrowczynski, Research Fellow, Imre Kertész Center for Advanced Studies, Friedrich Schiller University Jena (Germany) Frank W Munger, John Marshal Harlan II Professor of Law Emeritus, New York Law School (US) Annette Olesen, Associate Professor, Faculty of Social Sciences, Aalborg University (Denmark) Rebecca L Sandefur, Professor, Sanford School of Social and Family Dynamics, Arizona State University (US) Ulrike Schultz, retired senior academic, FernUniversität in Hagen (Germany) Noel Semple, Associate Professor of Law, University of Windsor (Canada) Hilary Sommerlad, Professor of Law and Social Justice, University of Leeds (UK) David M Trubek, Dean of International Studies and Voss-Bascom Professor of Law Emeritus, University of Wisconsin-Madison (US) Luca Verzelloni, Assistant Professor of Sociology of Organization, University of Bologna (Italy) Marijke ter Voert, Professor of Empirical Legal Studies, Faculty of Law, Radboud University (Netherlands)

List of Contributors  xv Julian Webb, Professor of Law, Melbourne Law School (Australia) David B Wilkins, Lester Kissel Professor of Law and Director, Center on the Legal Profession, Harvard Law School (US)

xvi

Volume One: National Reports Table of Contents 1. Introduction: Lawyers in a New Geopolitical Conjuncture�������������������������������������������� 1 Hilary Sommerlad and Ole Hammerslev PART I ANGLO-AMERICAN COMMON LAW 2. Australia: A Legal Profession Globalised and Magnified. �������������������������������������������� 45 Margaret Thornton and Asmi Wood 3. Canada: Continuity and Change in a Modern Legal Profession. ���������������������������������� 65 Ronit Dinovitzer and Meghan Dawe 4. England and Wales: A Legal Profession in the Vanguard of Professional Transformation?��������������������������������������������������������������������������������������������������������� 89 Hilary Sommerlad, Andrew Francis, Joan Loughrey, and Steven Vaughan 5. Scotland: A Legal Profession Caught between the Marketising World and the Forces of Historical Nationalism?����������������������������������������������������������������� 117 Alan Paterson and Peter Robson 6. United States: Out of Many Legal Professions, One?������������������������������������������������� 127 Scott Cummings, Carroll Seron, Ann Southworth, Rebecca Sandefur, Steven A. Boutcher and Anna Raup-Kounovsky PART II WESTERN EUROPEAN CIVIL LAW 7. Belgium: A Law Degree Opens the Door to a Lot of Occupations, even the Bar��������� 157 Steven Gibens, Bernard Hubeau, Stefan Rutten, Jean Van Houtte and Margot Van Leuvenhaege 8. Denmark, Sweden and Norway: Liberalisation, Differentiation and the Emergence of a Legal Services Market���������������������������������������������������������� 175 Ole Hammerslev 9. France: The Reconfiguration of a Profession�������������������������������������������������������������� 193 Christian Bessy and Benoit Bastard 10. Germany: Resistance and Reactions to Demands of Modernisation�������������������������� 209 Matthias Kilian and Ulrike Schultz

xviii  Volume One: National Reports Table of Contents 11. Italy: A Delicate Balance between Maintenance and Change�������������������������������������� 235 Evelyn Micelotta and Gabrielle Dorian 12. Netherlands: Developments and Challenges�������������������������������������������������������������� 253 Nienke Doornbos and Leny de Groot-van Leeuwen 13. Switzerland: The End of Prosperity in the Age of Globalisation?������������������������������� 271 Isabel Boni-Le Goff, Eléonore Lépinard, Grégoire Mallard and Nicky Le Feuvre PART III EASTERN EUROPE AND RUSSIA 14. Czech Republic: Legal Professions Looking for Serenity and Stability������������������������� 289 Jan Kober 15. Poland: Opening the Legal Professions���������������������������������������������������������������������� 309 Kaja Gadowska 16. Russia: Challenges of the Market and Boundary Work���������������������������������������������� 331 Ekaterina Moiseeva and Timur Bocharov 17. Serbia and Bosnia and Herzegovina: Challenges of Liberalisation and Democratic Consolidation����������������������������������������������������������������������������������������������������������� 353 Danilo Vuković, Valerija Dabetić and Samir Forić PART IV LATIN AMERICA 18. Argentina: The Long Transition of the Legal Profession��������������������������������������������� 377 Martin Böhmer 19. Brazil: Fragmentary Development, Democratisation, and Globalisation��������������������� 391 Maria da Gloria Bonelli and Pedro Fortes 20. Chile: Lawyers Engage with the Market, Specialisation and Rights���������������������������� 411 Cristián Villalonga 21. Mexico: Significant Growth and Under-Regulation of the Legal Profession���������������� 429 Luis Fernando Pérez-Hurtado 22. Venezuela: A Dispatch from the Abyss���������������������������������������������������������������������� 449 Manuel Gómez and Rogelio Pérez-Perdomo PART V AFRICA 23. Burundi: Middlemen and Opponents in the Shadow of the Ethno-State��������������������� 473 Sara Dezalay 24. Kenya: Between Globalisation and Constitutionalism������������������������������������������������ 495 Winifred Wambui Kamau

Volume One: National Reports Table of Contents  xix 25. Nigeria: An Account of Adaptation�������������������������������������������������������������������������� 515 Enibokun Uzebu-Imarhiagbe 26. South Africa: A Profession in Transformation������������������������������������������������������������ 535 Jonathan Klaaren 27. Zimbabwe: Legal Practitioners, Politics and Transformation since 1980���������������������� 547 George H. Karekwaivanane PART VI NORTH AFRICA AND MIDDLE EAST 28. Egypt: The Long Decline of the Legal Profession������������������������������������������������������� 565 Nathalie Bernard-Maugiron and Menna Omar 29. Iran: A Clash of Two Legal Cultures������������������������������������������������������������������������� 581 Reza Banakar and Keyvan Ziaee 30. Israel: Numbers, Make-up and Modes of Practice����������������������������������������������������� 601 Eyal Katvan, Limor Zer-Gutman and Neta Ziv 31. Libya: Lawyers between Ideology and the Market������������������������������������������������������ 619 Jessica Carlisle 32. Palestine: Lawyering between Colonisation and the Struggle for Professional Independence����������������������������������������������������������������������������������������������������������� 639 Mutaz M. Qafisheh 33. Tunisia: A Political Profession?���������������������������������������������������������������������������������� 657 Eric Gobe 34. Turkey: Emergence and Development of the Legal Profession������������������������������������ 675 Seda Kalem PART VII ASIA 35. China: A Tale of Four Decades��������������������������������������������������������������������������������� 697 Sida Liu 36. India: Present and Future: A Revised Sociological Portrait������������������������������������������ 713 Swethaa S. Ballakrishnen 37. Indonesia: Professionals, Brokers and Fixers�������������������������������������������������������������� 735 Santy Kouwagam and Adriaan Bedner 38. Japan: Toward Stratification, Diversification and Specialisation��������������������������������� 753 Masayuki Murayama 39. Myanmar: Law as a Desirable and Dangerous Profession������������������������������������������� 775 Melissa Crouch

xx  Volume One: National Reports Table of Contents 40. South Korea: Reshaping the Legal Profession������������������������������������������������������������� 789 JaeWon Kim 41. Taiwan and Hong Kong: Localisation and Politicisation�������������������������������������������� 801 Ching-Fang Hsu 42. Thailand: The Evolution of Law, the Legal Profession and Political Authority������������ 831 Frank Munger 43. Vietnam: From Cadres to a ‘Managed’ Profession������������������������������������������������������ 855 Pip Nicholson and Do Hai Ha 44. Conclusion: Comparative Sociology of Lawyers: The Professional Project����������������� 879 Richard L. Abel

1 Introduction Studying Lawyers Comparatively in the 21st Century Issues in Method and Methodology1 HILARY SOMMERLAD AND OLE HAMMERSLEV

I. INTRODUCTION

T

his two-volume project was inspired by, and largely modelled on, Abel and Lewis’s wide-ranging study of national legal professions (1988a; 1988b; 1989b). In shaping the enquiry, the editorial team was guided by a set of research questions (Sommerlad and Hammerslev Vol 1, ch 1: 12), that, like those which informed the Abel and Lewis project, focused on the relationship between lawyers and the state, a globalised market, civil society and the international order. The new dimension was consideration of how that relationship had changed over the last 30 years and the forces producing that change. The project was therefore organised around two axes: a cross-sectional comparison across national jurisdictions and a temporal axis tracing developments over the 30 years since the original publication. The cross-sectional axis was constructed by replicating Abel and Lewis’s ‘federated’ research strategy (Lewis 1988), which made the nation state the primary unit of analysis, since, despite the impact of globalisation, it remains the main producer of law and regulator of the profession. The resulting national reports, presented in Volume 1, provided the basis for this Volume’s in-depth comparative and theoretical studies. In order to uncover the universality of some features and the spatial, temporal and historical particularities of others, the editorial team developed key data collection indices. These included the profession’s size, demographics, and subdivisions; law school enrolment, methods of education and training and modes of qualification; size and types of firms and in-house counsel; working practices, including the use of para-professionals and outsourcing; state regulation of competition among and between lawyers and with other service providers, and actual competitive practices; and self-regulation, external regulation and structures of self-governance. The national reports were then situated in the historical development and



1 We

would like to thank Peter Sanderson for his extremely insightful discussions of many issues in this chapter.

2  Hilary Sommerlad and Ole Hammerslev specific environments of each profession and analysed in response to our research questions. While the data collection illuminated many issues of definition and context implicit in any comparative exercise, it also provided a rich resource for cross-cultural engagement with the research questions; and the emergent picture of the impact of global change supported our conviction that this was the right time to revisit the Abel and Lewis project. The consequences of the end of Keynesianism and the dominance of neoliberal globalisation for the nation state and its supporting institutional architecture around the world have been called epochal (Sassen 1999). The end of formal colonialism, the fall of the Soviet empire, the weakening of US dominance and concomitant rise of the BRICS, together with the emergence of an Asia-centred world (a central concern for policy makers and mainstream capitalist mouthpieces such as The Economist: Martina 2011; World Economic Forum 2011) have reconfigured the world geo-political order. Modern political epistemologies have been challenged both by counter-hegemonic scholarship, such as feminist (eg Smart 1989; Hill Collins 1968; Connell 1987), critical race (eg Crenshaw 1991) and post-colonial literatures (eg Said 1978; Spivak 1988), and the changes in the production and re-production of information and knowledge (Finlayson 2020) resulting from developments in IT and communication technologies, which have also transformed spatial and temporal relations and the labour process. The reports demonstrated the multiple ways in which these developments have eroded the conditions that had underpinned the ‘classical’ model of the legal profession (see eg Pue 1998; Kritzer 1999; Leicht 2016) and vindicated work which had described it as a gendered (Epstein 1968; Witz 1992), classed (Hagan et al 1988; Vignaendra 2001), and ‘raced’ (Levinson 1993; Wilkins 1998) Western construction. They showed, too, how globalisation has produced a dramatic expansion of the corporate legal hemisphere, transforming its demographic profile, structure, working practices, ethos and profitability. Globalisation has also intensified the interconnections, and consequently the degree of convergence, between national professions across legal systems, supporting the diffusion and adaptation of the corporate model. The corrosive impact of neoliberal deregulation on traditional boundaries has resulted in increasing competition from other occupations and a mushrooming of groups practising on the borders of law, facilitated by the rapid development of Legal Tech. Concurrently, this period has seen an expansion of a rights-oriented non-profit sector, which is often international in character, while national systems of legal aid have generally declined. However, the national reports also demonstrate that these processes are inflected by continuities. For instance, many facets of the imperial order endure, exemplified by the hegemonic power and reach of Anglo-American law. The growing numbers of para-professional groups include those that antedate modern professions, and the profession itself remains patterned by traditional status hierarchies, reflected in the continuing significance of class, gender and race for career trajectories. Customary and non-Western forms of law (eg Sharia) survive, and elements of traditional professional forms have also persisted, sometimes articulated with the new ones, endowing these with indigenous meanings; and virtually everywhere the norm remains solo or small firm practice. The picture emerging from the descriptive data in Volume 1 is therefore one of highly fragmented legal fields, paralleled by the plethora of multi-layered, intersecting regulatory discourses and frameworks which characterise (and govern) law in action. Clearly this complex topography of contemporary legal professions in a global world underlines the conceptual problems associated with the meaning of profession; and in the next section we identify some of the methodological issues these posed. This forms the basis for a discussion of the origins of comparative sociology and its dilemmas. These include the tendency from Weber and Durkheim onwards – despite the reluctance of both to see their comparative accounts of societal transformations as conforming to a fixed evolutionary

Introduction: Studying Lawyers Comparatively in the 21st Century  3 path (Kapsis 1977: 355) – to treat western institutions as normative forms from which all other examples are deviations (Krause 2016b), while failing to acknowledge the way in which these same institutions were shaped by imperialism and colonialism (Bhambra 2016). These sections are followed by a discussion of Abel and Lewis’s reflections on comparative methodology, elements of which we have carried forward to the current project, including their approach to middle-range theorising. We conclude this part of the chapter by describing how this approach informed Volume 1’s data collection and explaining how Volume 2’s authors drew on the original project to identify important aspects of change over the last 30 years. The second half of the chapter introduces this volume’s chapters, organised into thematic sections which reflect our endeavour to develop theoretical understandings of professional change in linked but differentiated spatial and temporal contexts. The range and quality of Volume 1 data obliged us to be very selective in our choice of these themes, choosing those which appeared to us to shed most light on the contemporary meaning and form of the profession as part of complex social, economic, political and cultural changes over time. However, this leaves a rich trove of material unexplored, and we hope others will extend this analysis. II.  METHODOLOGICAL ISSUES

Applying a comparative lens to the contemporary legal fields analysed in Volume 1 entails consideration of extremely varied organisational forms and types of practitioners. The challenge this posed was accentuated by great differences in professional cultures and forms of claims-making generated by the diverse understandings of ‘law’ and ‘legal’ practice, from the transnational professional fields of corporate and international human rights law to more local modalities of legal professionalism and law work. This pluralism, most obviously exemplified by the differences between civil and common law systems, is accentuated by two factors. First, the concept of ‘profession’ is an abstraction which depends for its meaning on its distinction from other occupational groups, themselves subject to rapid and drastic change. Second, it is, therefore, a theoretical concept rather than a descriptive label. Theoretical divergences over its social meaning (Gallie 1956) have revolved around contestation over its key properties (or traits). However, specifying those properties is problematised by the profession’s functional plasticity and interrelationship with institutions (notably those of the state) which have also been undergoing major change. The role of specific historical circumstances in producing the traditional (ie Western) profession (Bourdieu and Wacquant 1992: 242, and see Cotterrell 1998: 177; Krause 2016b; Bhambra 2016) underlines the significance – as the national reports demonstrated – of its spatial and temporal dimensions and the way these are represented in scholarship (Davis 2008; Jordheim 2012). Yet, as Durkheim (1912) argued, time cannot be a universal a priori assumption. Historical periodisations based on the notion of linear progress towards modernity and beyond can be seen as an ideological project and need to be replaced by what Koselleck defines as ‘several layers of time of differing duration and differentiable origin, which are nonetheless present and effectual at the same time’ (2000: 9; cited in Jordheim 2012: 157). Globalisation’s integration of these multiple, heterogenous temporalities and social modalities, producing what Osborne (2015) describes as globally disjunctive contemporaneity and Santos as inter-legality (2002),2 has in turn affected



2 Meaning

dynamic perspectives of plural legal orders (Santos 2002).

4  Hilary Sommerlad and Ole Hammerslev the profession’s contemporary spatial ordering. Thus, as the national reports showed, firms located in the Global South which practise private international law (generally branches of US or UK multi-nationals) occupy a different temporality from that of firms in the same country engaged in local law (which are governed by different logics and forms of practice), while the fringe practitioner (such as the ‘fixer’ of Indonesia or the unlicensed Russian advisor) occupies yet another temporality. These facts accentuate the problems involved in defining the profession and comprehending its relationship to change. Abbott’s processual sociology (2016) and Bourdieu’s field theory (1994) suggest a solution (Krause 2016a, and see Blok 2020), since they provide a basis for addressing the fluidity of professional forms and how these are conceptualised and constructed. In both perspectives, professions are situated within their wider ecologies of inter-professional relations and understood as social entities which, emerging from the process of constructing boundaries (sites of difference within the social space of work, see Abbott 1995: 862), are processual rather than fixed forms (Bucher and Strauss 1961; Liu 2018). Thus, for Bourdieu, the profession is the historical work of the construction of a group and its representation, which is then used to justify its monopoly of certain societal tasks and, following Weber, a site of elite competition. Abbott’s theory, based on an ontology of perpetual movement, understands change as the normal state, linking processes playing out at different rhythms and levels. The extreme heterogeneity and contingency of contemporary capitalist economies and societies, summed up by Bauman (2000) as liquid modernity, make these ‘cross-jurisdictional’ perspectives particularly attractive. Moreover, conceptual fuzziness is not necessarily an obstacle to comparative research (Jackman 1985: 167–69): Weber’s open definition of law was the product of his interpretive methodology and his view that the inconsistencies inherent in Western society made it inevitable that ideal types of rational domination were almost never found in social reality. As we explore below, political and social science research, implicitly if not explicitly, is always comparative, and the contingency of the object of comparison and the aim of refining its core meaning are frequently what drive it. Nevertheless, engaging in such a wide ranging, cross-cultural comparative exercise at a time of unprecedented change is undoubtedly challenging, and our discussion of the methods and methodology employed by Abel and Lewis and in this project reflects on those complexities. The following section lays the basis for this discussion by considering the origins of comparative sociology and how the difficulties it encountered continue to permeate the sociology of the professions. III.  THE EARLY STUDIES: WEBER, FUNCTIONALISM AND BEYOND

‘Comparative sociology is not a particular branch of sociology; it is sociology itself, in so far as it ceases to be purely descriptive and aspires to account for facts’ (Durkheim 1982: 157).3 3 Comparative sociology has spanned varied categories, eg cross-national or cross-cultural (Krause 2016a), crossethnic and cross-racial (Brubaker 2003) and cross-national studies of intra-national diversities (Dogan 2008: 28). Furthermore, as Smelser points out: ‘If we describe a single individual as tall, fair, opinionated, neurotic, or well adjusted, we simply cannot apply such words without referring to an imagined or comparative universe of people who vary according to height, complexion, pig-headedness, neuroticism, or adjustment. So, all language is comparative and all description and explanation is comparative …’ (2003: 644f). Bourdieu similarly considers the comparative approach as ‘the only practical means we have for the understanding of things’; it is a way of thinking relationally about specific cases constituted as ‘a “particular instance of the possible” by resting on the structural homologies that exist between different fields … or between different states of the same field …’ (Bourdieu and Wacquant 1992: 234). Thus, as Weber showed, comparison is a way of constituting the research objects.

Introduction: Studying Lawyers Comparatively in the 21st Century  5 Comparative approaches were integral to the attempts of pioneer social and political scientists to grapple with the meaning of post-feudal social and political forms in Europe. Lenski (1994) has described how, from Turgot on, scholars developed taxonomies of societies based on material technology, belief (or principles, see Montesquieu 1989: 21), or institutional and cultural forms, and the tendency of these classifications to lean towards an evolutionary linear sequence. The development of law as the realised form of rational authority and the role of legal elites as its curators were central to these analyses of the transition from feudalism. However, they also revealed how the particular mode of their engagement with the polity was context dependent: for example, in de Tocqueville’s writings on democracy in America, the legal profession could act as the primary shaper of a bulwark against the tyranny of the majority (America), or as an ally of the aristocracy/landed gentry (England), or as the implacable enemy of aristocratic privilege (France).4 This analysis underscores the productive tension between the search for abstract taxons that make comparison possible and the unique character of phenomena bounded by particularities of time and social and physical space. This tension was also a feature of Weber’s scholarship regarding lawyers’ pivotal role in the development of modernity and state formation,5 which arguably represents the clearest example of the early use of empirically grounded comparison to build theory and was an important influence on Abel and Lewis’s comparative work.6 Weber’s exploration of the development of strong bureaucracies, established by all-embracing laws and formal rationalisation, highlighted how these represented a new form of impersonal governance by lawyers and legally trained civil servants whose sole allegiance was to the law. However, the transitional nature of these new forms of social phenomena entailed a method that could compare them through time and states, necessitating open definitions: An order will be called … law if it is externally guaranteed by the probability that physical or psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation. (Weber 1978: 34)7

Although this attempt to distinguish legal norms from other normative systems focuses on how coercion is fundamental in securing obedience, Weber does not equate law with state law but argues that it can ‘spring’ from other sources and that its subjects can be coerced in different ways. This open definition enabled him to recognise law’s practitioners in different temporalities and geographic settings and in a range of forms (Weber 1978; Hunt 1978; Hammerslev 2013) from ‘law prophets’, ‘legal honoratiores’, and ‘secular or theocratic powers’ to ‘persons who have received their legal training in a learned and formally logical manner’ (Weber 1978: 882). This linking of different forms of law, legal professions and specific societies was characteristic of Weber’s use of ideal types to resolve the universal/particular dilemma, thereby synthesising understandings of social action and social institutions as concerned with the meanings attributed

4 ‘At one time they have been the instruments of those who were invested with political authority, and at another they have succeeded in converting political authorities into their instrument. In the Middle Ages they afforded a powerful support to the Crown, and since that period they have exerted themselves to the utmost to limit the royal prerogative. In England they have contracted a close alliance with the aristocracy; in France they have proved to be the most dangerous enemies of that class’ (de Tocqueville 1839: 271). See also Burrage (1989). 5 Weber trained and practised as a lawyer, which may have influenced his concern with the purpose and meanings that individuals attach to their actions. 6 Weber’s influence on later sociology of the professions has been immense; see, for instance, Larson 1977; Rueschemeyer 1973. 7 This definition led Evans-Pritchard to declare, notoriously, ‘The Nuer have no law’, prompting others, including Abel, to look for more capacious conceptualisations, such as ‘disputing’.

6  Hilary Sommerlad and Ole Hammerslev to both by individual actors and the structural forms which result (Hekman 1983: 137). As a ‘neutral starting point’, this also overcame the potential methodological difficulties posed by law’s dichotomous character, making it acceptable to both jurists and sociologists and reinforcing Weber’s ‘concern with … the “internal” characteristics of law’ (Hunt 1978: 104). For Weber, taking account of both the internal and external perspectives on law was essential to its study (1978: 311; 1977), while including this double perspective across time and space in his ideal type methodology8 made it possible to compare different types of law. The Weberian approach therefore paved the way for subsequent comparative methodologies where the aim is not necessarily to conduct systematic comparisons of developments or institutions across similar units in order to produce general theories or explanations (Breiner 2007), but rather to develop ‘mirror-cases’ which can serve as a ‘vague background against which the main case in focus can be contrasted’ (Azarian 2011: 117). These are therefore neither ‘full-fledged’ nor symmetrical comparisons (ibid) but rather attempts to identify recurrent patterns by reconstructing chronologies and individual sequences (Tilly 1984). As Lewis observed, such an open approach can challenge assumptions about our own social system – ie our ethnocentrism or methodological nationalism – since it may indicate ‘that certain elements which we have assumed were essential for the system to work are more the product of history than of necessity’ (1989: 49).9 Nevertheless, Weber’s starting point was what he regarded as ‘European exceptionalism’, leading him to examine the specific circumstances associated with Europe; social and economic processes in other parts of the world were considered in terms of their differences from Europe and as obstacles to the development of capitalist modernity in other parts of the world (Bhambra 2016). As a result, a recurring issue confronting comparative methodologies, including Weber’s, is the common historical matrix in which legal professions emerged (Roth 1971: 57), to which colonialism was central and yet excluded from consideration: we referred to this lacuna in the Introduction to Volume 1 and expand on its significance for our own project below. Weber’s method of comparison is often contrasted with that of Durkheim and also midtwentieth century functionalists such as Parsons who – unlike Durkheim – tended to approach comparative analysis through the lens of a linear evolutionary model of societal development10 (Kapsis 1977: 3626–24). This understanding of differentiation as proceeding in a temporal sequence of ‘from-to’ (Parsons 1971: 100)11 can be regarded as forming part of the intellectual legacy of imperialism. Since societies are conceptualised as the result of organic evolution, those at the same developmental stage should structurally resemble each other in relation to the social functions which must be performed (Parsons 1966: 71) and the tasks and forms of expertise these performances generate (Blegvad 1973; Rueschemeyer 1986; Carr-Saunders and Wilson 1933). Consequently, the role and form of professions in societies at the same developmental stage should be similar (Bertilsson 1995); for instance, either lawyer density should be equivalent across such societies, or there should be other expert groups who perform ‘legal’ tasks. Recalling Abel and Lewis’s point about taking law seriously in legal professions

8 However, over the course of his work, Weber’s methodology changed from thought experiments comparing historical reality with counterfactual developments to contrasting empirically grounded accounts of comparable lines of developments in various cultures or epochs (Ringer 2002: 178; Onaka 2015: 483). 9 Such comparisons have been termed ‘import-mirror view’ (May 1993), ‘contrastive comparative method’ (Kocka 1996), ‘implicit binary comparison’ (Dogan 2008), and ‘individualising comparison’ (Tilly 1984). 10 An example would be Durkheim’s view (2018) that professions and other forms of occupationally based social organisation evolve to fill the role of a secular source of beliefs and values, replacing the declining role of religion in societies dominated by the logics of the market. 11 The reductio ad absurdum of this approach being WW Rostow’s stage model of economic development (1960).

Introduction: Studying Lawyers Comparatively in the 21st Century  7 studies (Lewis 1989; Abel and Lewis 1989a), Friedman (1989: 3) comments that the functionalist approach: rejects a view of the profession that emphasizes historical or traditional similarities or differences. It downplays the specifically ‘legal’ aspects of the legal profession. The functionalist is not (initially, at least) terribly interested in whether lawyers learn civil law, common law, or something else. Function and social structure are crucial, not the technical basis of professional life or its roots in a given legal past.

As a result, functionalist approaches tend to ignore the jurisdictional struggles between different expert groups, which have been the focus of scholars like Abbott: moreover, many tasks that lawyers perform are not necessarily legal but rather capable of being undertaken by other expert groups, such as accountants (Dezalay and Garth 2001) or paralegals (see Sommerlad et al, ch 12 below). Further more, the corrosive impact of the last few decades of neoliberal reform on boundaries between expert groups (Sommerlad and Hammerslev Vol 1, ch 1) means that, as Nelken notes in a legal context, ‘the idea of “functional equivalence” … is a heuristic tool which should be handled with care’ (2002: 332). Nevertheless, the functionalist approach exemplifies the persistence of sociological understandings of law and legal techniques, dispute resolution systems and understandings of ‘professionalism’ that were shaped by the Enlightenment project to establish the hegemony of Western institutional and cultural forms: ‘The vast predominance of comparative social science thinking continues to be generated in the West, and brought to the rest of the world by our own scholarly work and by the mentalities of those from those societies who have learned western social science’ (Smelser 2003: 647). The consequence of this view of the West as the ‘model system’ representing the desideratum of ‘modern’ or ‘developed societies’ (Krause 2016a: 200) is that ‘assumptions that make sense in one context get transferred from one research context to another’ (Krause 2016a: 62). There must, therefore, be conscious adaptation of research questions, units of analysis and categories in order to present a different reality to the Western understanding of the social world. This implies a return to Weber’s interest in the context of ‘patterns of action and constellations of groups’, seen as the product of history and generative of new patterns and groups (Kalberg 2012: 110–12), and his respect for the particularity of cases and the concern to avoid over-generalisation. An example of both such ‘over-generalisation’ and the hegemony of Western understandings is the categorisation of different national legal professions into common law and civil law legal families, as Abel and Lewis did in the original volumes (1988b, 1988a) and we did in Volume 1. The roots of this division in the West’s imposition of legal systems on their respective colonies leads Nelken to suggest that it is in need of modification, since globalisation, the end of colonialism and the new geo-political order mean that basing comparison on legal families is now ‘of limited use for explanatory purposes because these are now all almost inextricably entangled’12 (2001: 10). However, globalisation has not destroyed all vestiges of the colonial order, including the asymmetrical relationships that instantiate some regions as ‘core’ and others as ‘peripheral’.13 On the contrary, the reports on former colonies underline 12 The entanglement of national legal fields and their interdependence with transnational fields has been examined in seminal studies such as Halliday et al 2007, which explored the role of lawyers in the development of political liberalism. 13 Understood as the intensification of worldwide relationships, globalisation has entailed the economic and cultural penetration of the ‘periphery’, implemented through neoliberal policies, and has been described by commentators as diverse as Galbraith (1997) and Hirst and Thompson (1996) as imperialism. Anglo-American law has been one of its key vectors.

8  Hilary Sommerlad and Ole Hammerslev the significance of the colonial legacy, exemplified by the fact that in most, legal institutions remain based on European legal families (Sommerlad and Hammerslev Vol 1, ch 1). The impact of globalisation on the contemporary professional field is similarly central to Dezalay and Garth’s (1998; 2002b) work. Implicitly critical of comparative strategies, they refrain from making full-fledged comparisons and instead focus on lawyers’ role in the transnationalisation of law and legal institutions (2002a; 2010).14 They do this not through classical cross-jurisdictional comparison but rather by concentrating on (elite) lawyers who work in transnational fields of legal practice, showing that the impact of import-export strategies of law and expertise are dependent on the trajectories of national fields of power. In this way, through Bourdieusian positional analysis, they shed light on the production and reproduction of national fields of law and state power – specifically, how lawyers endowed with transnational capital can produce change or reproduce the status quo.15 Krause endorses this use of field-theoretical approaches as accommodating the conceptualisation and analysis ‘of social relations at multiple scales’, not just the national or the purely ‘world-systemic’ scale (2016c). However, as we suggested at the beginning of this chapter, globalisation has not eradicated the nation state’s role in the production and regulation of lawyers, including those in the global corporate sector: elite law is interconnected with and dependent on other fields. Furthermore, an exclusive focus on legal elites working in transnational law excludes the majority of those involved in law work. Clearly, therefore, the data-gathering and theorising for the present project had to contextualise the data, ie to encompass – as far as possible – national legal fields in their entirety. We will outline how we undertook this task after a brief discussion of Abel and Lewis’s approach and Krause’s insights into comparative work. IV.  COMPARATIVE METHODOLOGY OF THE LEGAL PROFESSION – FROM ABEL AND LEWIS TO KRAUSE

The issues and difficulties we have discussed so far were, of course, familiar to Abel and Lewis in 1988–89 and featured extensively in Lewis’s commentary on comparison and change (1989). In discussing what might be ‘the objects of comparison’ (which included occupations, functions, history and change), Lewis (ibid) teased out a host of issues arising from differences in social formations, national cultures and the ways in which lawyers are embedded in these environments, resulting in variations in their resources, roles, training, status, income, and means of entry to the profession (see also Sterett 1990: 368). The resulting ambiguity of the term legal profession was illustrated by the fact that statistics might include different types of lawyers, such as associate lawyers/solicitor’s clerks, in-house lawyers, and public prosecutors. Yet choosing among definitions by reference to who is included would only be possible if ‘we had some other reason for who should be included. Since we do not, we can only sharpen our awareness of differences in the training, occupational organization, use of legal knowledge, and other characteristics of the possible categories’ (Lewis 1989: 54). So, although gathering statistical data on professions in the chosen jurisdictions could not overcome the difficulties which the multivalence of the term lawyer posed for comparison, it nevertheless provided a starting point. 14 However, evidently, this approach does entail comparison between positions in different national and transnational fields. 15 Other studies that examine lawyers and a corporate legal elite in the BRICS include Wilkins and Papa 2013 and Wilkins et al 2017.

Introduction: Studying Lawyers Comparatively in the 21st Century  9 Lewis had earlier observed that the data gathering should be informed by establishing ‘why we should look, what we should look for, and how to make sense of our findings’ (1989: 30) since this is not implicit in the exercise of comparing the research object by mirroring it against others. In other words, observed results reflect their conceptualisation and methods of collection and measurement as much as they do differences in the observable world: in this respect Lewis was acknowledging Cicourel’s critique that the ‘professional’ categories of social scientists are inevitably grounded in, and indistinguishable from, the very same categories and practices used by the professionals under study (1964: 60–61, and see Peterson 2005). Similarly, a key factor which affects a researcher’s methodological preferences, determining ‘what is being compared with what, in what respect and with what aim’ (Kocka 1996: 197f), is law’s dichotomous nature or double character. Like other professions, lawyers possess a specific form of knowledge or expertise and perform specific societal functions in addition to mediating the law. As a result, law is understood differently by lawyers, who are engaged in legal doctrinal argumentation, and social scientists, who view it as a social system (Banakar 1998b: 3).16 This binary perspective on what it means to be a lawyer and how we should understand the roles of lawyers and the law underlines the conceptual ambiguities discussed above and directs research towards different forms of law based on varieties of legal practices and understandings of valid normative orders. Lewis’s solution was that studies of lawyers should take into account both issues common to all professions and those that were distinctively legal (1989: 29). Evidently, this entailed engaging with law (Lewis 1989; Abel and Lewis 1989a) since law, as a cultural, ethnocentric artefact, cannot analytically be disentangled from the profession, which, as the legal system’s key structural feature, produces it. Lewis therefore argued that a comprehensive understanding of lawyers required that they be viewed as part of an institutional and professional context (or, in Bourdieusian terms, a field), even when they seem to be acting individually in relation to their clients. Moreover, they should be examined as part of their ‘intangible intellectual, cultural, and perhaps even normative, context, constructed by the intentional and unintentional acts of individuals and collectivities, not just within but also outside the legal profession and the legal system’ (Lewis 1989: 28). Thus, while Lewis was not advocating an appreciative methodology which evaluates other cultures in their own terms (Smelser 2003: 647), he was nevertheless stressing the necessity of taking context into consideration (see too Banakar 1998a; Banakar and Travers 2005: 241). Since comparison implicitly assumes the separateness of what is being compared (Lewis 1989: 50), the objects to be compared should be grouped into categories (or Weberian ‘ideal types’) ‘within which sufficient similarity can be assumed to permit the identification of meaningful differences’ (ibid: 51). Clearly, contextualisation facilitates the development of categories, while the form this process takes will depend on our reasons for engaging in comparison (Krause 2016a: 50). Krause illustrates this point by contrasting the form of comparison that demands categories with rigid boundaries (such as the experimental methodology of randomised controlled trials) with comparison for the purposes of better description, concept development, and critique. Better description, which in linear causal comparisons is simply a means to an end, can, through the process of contextualisation, situate a case in the light of sensitising concepts (ibid: 51), thereby illuminating the categorical boundaries, such as ‘profession’, around which the comparison is organised. This interplay between



16 See

eg also Cotterrell 1998; Nelken 1993, Banakar 2003; Habermas 1996 and Weber 1977.

10  Hilary Sommerlad and Ole Hammerslev contextualisation and de-contexualisation, and between comparison and differentiation, can therefore also support the development or refinement of analytic concepts that can be applied to aspects of structures and processes. Krause gives an example of how this might work: it is possible to illuminate what has changed in the meaning of an idea such as sovereignty by comparing the ‘nation state’ with an empire or a transnational organisation like an NGO or the mafia (Krause 2016a: 58; Sassen 2006). Field theory, Krause argues, provides a suitable frame for this approach (2016a; 2016b), with its conceptualisation of the connectivity of social fields and their concomitant limited autonomy and of the cultural basis of their production and reproduction (Go and Krause 2016). In the next section we describe our approach to gathering the material to support this kind of middle-range theorising. V.  FROM METHODOLOGY TO PRACTICE

The open and contextualised approach to comparison described in the final paragraphs of the previous section respects Weber’s legacy. It also goes some way to addressing the difficulties inherent in the current project, resulting from the huge scale of change and the extreme heterogeneity of the processes, mechanisms, and dynamics involved in legal professionalism. The respect for context and the uniqueness of each case is reflected in the fact that we did not attempt to constrain the 77 diverse authors of Volume 1’s national reports covering 46 jurisdictions, within a single higher-order theoretical framework. We also regarded the multi-disciplinarity of their perspectives as essential to enriching our understanding of legal professionalism and its embeddedness in diverse societies and relationship with global developments. Therefore, rather than seeking to construct a single unified theory on the basis of a uniform methodology and specific methodological rules, we adopted a reflexive comparative strategy inspired by Banakar (2014) and Krause (2016a). With a shift in focus ‘from criticising the construction of categories per se and the brutality with which objects are forced into categories through comparison …’ (Deville et al 2016: 27) we engaged with the process of category construction itself as a reflexive research practice. This entailed developing a fieldbased approach, working relationally with categories open to contextual interpretations. The main category is, of course, the profession, which we (in Volume 1) loosely defined as a conjunction of credentials and functions. Other categories such as the state, bar associations and judiciaries were similarly examined in relation to the specific national fields of power that produced them (rather than seeking to relate them to the Western model). This form of ‘negative sociology’ conceptualises the ‘profession’ as a social construct (Bourdieu and Wacquant 1992: 242), making us focus on the logics and forms of practices that define the field in which the profession practises and which help to (re)produce and legitimise its status. The practice of developing such contextually informed and de-centred accounts demanded, first, the careful choice of authors, and second, a mode of collaborative enquiry through a form of connective understanding that would facilitate an appreciation of the dynamics that shape the diverse forms of law work and that was systematically informed both theoretically and empirically. Smelser has urged that such collaborations should cross ‘national, regional and cultural lines and [be] guided by the canons and methodology of the social-scientific enterprise’ (2003: 654), an aim which presupposes ‘mutuality, parity and equality among scholars from different nations, and a derived inclusiveness and integrity of different subject matters, no matter where these societies are situated in the system of the international division of labor, power hierarchy, or system of prestige’ (ibid). Our study

Introduction: Studying Lawyers Comparatively in the 21st Century  11 followed his recommendations: we invited scholars from different disciplines, countries and age groups and provided them with a framework for working together in order to achieve our goal of comparative reflexive research practice. Draft chapters were discussed at conferences and specially convened workshops and edited in a dialectical process with the authors. Although the ‘federated’ approach devised by Lewis gave an overall direction to the project, there was still the problem of (unforeseen) variations among the countries, a reflection of national fields of power and transnational relations. However, our research questions and the data collection protocol sought to ensure that the authors delineated their national legal professions at the macro level quantitatively, to synthesise the status of the profession at a structural level, thereby rendering the relations of concepts (such as that of a particular professional form) and their causes reasonably symmetrical. In order to address Cicourel’s warning (1964) about the impact of variations in the availability (and reliability) of data and of individual methodological choices on data collection and its validation, the workshops also explored the sources and the category construction used by individual researchers. Achieving the essential contextualisation also demanded reflections on the logics and forms of practices that define the field in which the profession operates and which help to (re)produce and legitimise its status. Contributors were also urged to consider the interface between processes governed by differing logics or unfolding on different temporal or spatial scales, including such micro-level phenomena as the underpinnings of their national professions (eg taken-for-granted normative and tacit knowledge). In summary, the national reports were developed in a spirit of methodological pluralism, drawing on deductive, structural findings which emphasise the range of fields, coupled with inductive, often more qualitative findings that delve into the nature of the experience of, for instance, working in a particular type of field.17 Because understanding the complexities of change was central to the study, our research questions asked about developments throughout the last 30 years. This historicisation served to reconstruct the temporal fluidity of objective relations between legal professionals, their relation to their field and their competitors, and the symbolic character of power hierarchies and categories of perception, since lawyers’ position in the fields in which they operate results from both objective relations and symbolic representations of these objective relations. The work undertaken for Volume 1 laid the basis for this volume’s ‘connective sociologies’ (Bhambra 2016), enriching our understanding of the interconnections between state trajectories and the global order.18 We sought to do this by assembling a similarly multi-disciplinary

17 Methodological pluralism has long been acknowledged as fruitful in understanding the social world (cf Lamont and Thévenot 2000) and frequently relies on a distinction between case-oriented (often qualitative) and variableoriented (often quantitative) approaches (Small 2009). Therefore our approach drew on two polar propositions: that a single picture can constitute evidence for an entity or effect because it is mimetic, ie preserves the form of things as they occur in the world; and the ‘logic tradition’, which aggregates masses of data to make statistical arguments for the existence of an effect. 18 The primary themes are globalisation and neoliberalism. However, the causes of change also encompass frequently related developments: the reconfiguration of the nation state and citizenship; the Americanisation of many legal systems and professions; the effects in the former Communist Bloc of the transition from command to market economies and the transfer of capital from state monopolies to oligarchs and oligopolies; the capitalisation of firms, their transformation into service industries and penetration by managerialist discourses; the decline of the traditional agency-based lawyer-client relationship and the creation of alternative business structures; the impact of all these developments on lawyers’ claimed ethicality and working practices and of technology and the decomposition of working processes (Susskind 2013); the trend to outsourcing and the increasing casualisation of the working conditions of many lawyers and paralegals; the use of women and other non-normative lawyers as a contingent labour force; the intensification of work; changing modes of regulation; the decline in public deference to the profession, and the emergence of new images, performativities and discourses of law and of the profession.

12  Hilary Sommerlad and Ole Hammerslev and multi-cultural group of authors to begin the work of open comparison and middle-range theorising. Our approach was exploratory, approximating most closely to ‘applying existing concepts to new observations’ and ‘developing new concepts in dialogue with observations and previous concepts’ (Krause 2016b: 24–25). In devising the frame for this work, we sought to develop comparative approaches in the Weberian tradition – for example, testing whether using the ‘region’ as a taxon for the professional field enabled authors to focus on the commonalities of the experience and form of non-metropolitan jurisdictional fields, while also teasing apart the particularities of the differentiated fields that made up the ‘region’. In addition to examining the impact of such macro-level drivers as globalisation (instantiated in multi-national law firms) and legal technology, we also drilled down into conceptual categories such as ethnicity, ‘race’ and gender, whose explanatory power highlights the internal dynamics of professional fields. Contributors for these chapters were chosen from jurisdictions where the national reports suggested the fruitfulness of applying existing concepts to new data. Another addition to the comparative toolbox has been the attempt to qualify the sense of the legal profession as the ‘model’ profession, with two chapters on changes over the same timescale in medicine and accountancy. The issue of definitional boundaries was illuminated by the inclusion of a chapter on ‘paralegals’ as a limiting case to understand the various meanings of profession in the jurisdictions under study. Finally, we also commissioned chapters on the relationship of lawyers to state production and social justice. The next section briefly summarises the chapters. VI.  THE STRUCTURE OF THE BOOK

Part I lays the foundation for this comparative work with four wide-ranging chapters explicating the different structural forms of legal professions in Latin America, the Muslim world, Africa and the post-socialist societies of Central and Eastern Europe, thereby illuminating the complex, variable relationship between professionalism and modernity. Despite the difficulties of comparison across such large diverse geographical regions and the less clearly territorially delimited ‘Muslim world’ (which is arguably an oversimplified denominator), the chapters shed light on the consequences for legal systems and the profession of the encounter between historical traditions and exogenous forces. For instance, the evolution of the professions of Latin America, the Muslim world and Africa continues to be shaped by the colonial legacy and the interests of global capital, as Sara Dezalay’s analysis of the transformations of Africa’s legal professions illustrates. Stressing the grounding of these transformations in the contradictions and diversity of colonialism, she shows how they reflect advanced and sophisticated mutations of globalisation by repositioning them in the uneven and unequal relationship between Africa and the world economy. Drawing first on Bourdieu’s field theory to overcome the ‘tunnel history’ which constructs lawyers as either missionaries of the rule of law or mercenaries of neo-colonial interests, she then considers transformations that transcend fields, by focusing on ‘nodes’ of connection between the African continent and the world economy. Through biographies, she traces ‘revivals’ of imperial imprints in a post-imperial world, ‘unveiling forms of habitus that are interconnected and sedimented’, pointing to the transformation over time of resources channelled through law and their political effects. The relative lack of autonomy of the formal legal order from the state, constricting the base for professional practice, represents another common, distinguishing feature of all four domains. Throughout much of Latin America, the Muslim world and Africa,

Introduction: Studying Lawyers Comparatively in the 21st Century  13 post-independence reforms generally failed to eradicate the over-developed administrative/ military apparatus (Alavi 1972) and weak internal structural interdependence characteristic of the colonial era. For instance, in his exploration of the evolution of Latin American lawyers between 1990 and 2020, Manuel Gómez comments on the intimate connection that Latin American lawyers have had with the state ever since independence, illustrated first by their key role in the construction and operation of national legal systems and second by their traditional standing as members of influential professional elites. Nevertheless he notes that the national reports in Volume 1 on Mexico, Venezuela, Argentina, Chile and Brazil demonstrated that, despite sharing features as a result of having gained independence about the same time and having based their legal systems on European codes and constitutions, each state had a complex, distinctive legal profession. His delineation of the intensification of globalisation and technological advances, and the dramatic economic, political and social changes of the last three decades, depicts globalisation as a challenge to the broader society as well as to the practice of law and the collective identity of Latin American lawyers, and he points to the rise of populist governments and the complexity of contemporary corruption and the inability of the national legal systems to resist either effectively; at the same time he also notes a rise in lawyer activism. Divergence between Western modes of legitimacy and governance models and indigenous forms of dispute resolution represents another common feature of Latin America, the Muslim world and Africa. However, although Mirjam Künkler’s chapter on the Muslim world depicts the persistence of pre-colonial legal forms (such as religious law), she begins by warning that there are more differences than commonalities among its legal systems. Identifying the most salient factors affecting the contemporary profession – the status of religious law and resulting segmentation of the profession; the transformation of the demography and regulation of the profession – she provides a rich account of the principal vectors of differentiation between legal systems that shape professions’ independence, structure, and institutions of representation. She identifies these vectors as a state’s colonial or imperial past, the extent to which its legal system was Islamised, whether it observes the rule of law, and whether its legal professions are unified (‘fused’) or segmented (‘divided’). She concludes by considering the extent to which the International Bar Association’s summary of global trends (towards occupational unity and shifts in regulation) characterise professions in the Muslim world, finding more examples of splitting and diversification than unification and the persistence of high levels of repression against lawyers who resist subjection to the state judiciary, rather than a shift to selfregulation. Thus, despite her initial stress on variation among Muslim countries, her account points to their commonality. Notwithstanding the obvious differences between the three domains discussed above and the post-Soviet bloc, the latter displays parallels in the form of modernity that communism represented, the highly uneven development it generated, and the relatively subordinate relationship between most of its successor states and global capital. In his chapter on post-socialist legal professions, Rafael Mrowczynski describes the transformation from communism as involving a combination of a modified socialist order and selective transplantation of Western institutions along four interconnected dimensions: the de-politicisation of law; marketisation; the emergence of civil society and transnationalisation and integration into the global capitalist order. Like the other contributors to Part I, Mrowczynski notes the large variations between regimes, as the shared heritage has been modified by the re-emergence or accentuation of national differences, the impact of capitalism, and the adoption of Western institutions. The interplay of the regulatory aspirations and enforcement capacities of developing political systems have affected the manner and degree of the state’s retreat. Russia occupies one

14  Hilary Sommerlad and Ole Hammerslev extreme: deregulation, combined with a dramatic loss of the state’s enforcement capacities during the first post-socialist decade, resulted in the dominance of market logic. By contrast, the slight erosion of the state capacities of many post-socialist Central and Eastern European countries, together with increasing possibilities for self-regulatory institutions, has produced a ‘return of the guilds’. One of the most striking developments affecting the overwhelming majority of professions across the world is their demographic transformation. Part II is concerned with this diversification and the related questions of professional identity and culture. It begins with Marta Choroszewicz and Fiona Kay’s comprehensive examination of gender inequality in the legal profession. Drawing on a rich body of literature, they document the remarkable increase in women’s representation in legal education and law practice since 1988, analyse its causes, and discuss the complex variety of forms it has taken across legal specialism, type of firm, and society and as a result of intersectionality. They link the various theoretical explanations for the persistent and entrenched nature of gender inequalities to mutually reinforcing inequality regimes, which pervade law firms, sectors of legal work, and the profession. They describe how these regimes underpin the failure to address men’s caregiving responsibilities, constraining the efficacy of organisational initiatives, while neoliberal imperatives of personal responsibility continue to demand that women conform to traditional models of what it means to be a dedicated and productive lawyer. They conclude by proposing directions for future research and policy initiatives for ameliorating the work conditions and career prospects of women lawyers. A valuable counterpart to this analysis is provided by Richard Collier’s interrogation of the ‘masculine’ culture of legal professions. He notes that the significant changes to equality and diversity in the legal professions which have occurred since 1988/89 include a heightened focus on men’s relation to gender equality projects. His delineation of how understandings of the relationship between law and masculinities have evolved within studies of gender equality across the world’s legal professions reveals under-explored aspects of the gendered dynamics of identity formation, rendering the male lawyer contingent and situating men’s identities and practices in diverse social contexts. He discusses the deployment of the concept of masculinity within studies of the world of ‘public man’ in political and liberal legal theory: a masculine (legal) subject historically connected to liberal conceptions of the self and autonomy (including the ‘man’ of law), and the questions this raises about how law represents a master discourse through which rational authority is constituted. The chapter’s delineation of the diverse political, intellectual and institutional influences that have shaped the study of masculinities and legal professions over the past 30 years is illustrated by two examples: the relationship between men, care, work and life in the law; and the concept of transnational business masculinities and their interconnections with the globalisation and financialisation of capitalism. Part II concludes with a chapter on ‘race’, ethnicity and the legal profession by Hilary Sommerlad, Angela Melville, Lisa Hanson, Sameer Ashar, Meera Deo and Marijke ter Voert, which starts by noting that the significance of practitioners’ identity (ethnicity, gender and class) is underlined by law’s dual role as both producer and sustainer of our racialised world and as a site of struggle and source of tools for challenging archetypal cultural categories. Discussion of the meaning and origins of the (socially constructed) concept of ‘race’ draws on Weber, Barth and key theorists of ‘race’ and culture and delineates the centrality of racial construction to the Enlightenment and colonialism. Studies of six jurisdictions (UK, US, the Netherlands, Australia, New Zealand and Canada) illustrate the transnational scope of forms of structured differentiation while highlighting the significant differences in the historical origin of that difference and the social context in which it is embedded.

Introduction: Studying Lawyers Comparatively in the 21st Century  15 Part III is concerned with the production of law and lawyers. It begins with Andrew Boon and Noel Semple’s cross-jurisdictional analysis of legal services regulation, an issue that is central to many national reports and several of this volume’s chapters. Noting the appeal of neo-Weberian market control analysis of legal professionalism to policy makers committed to market fundamentalism, they suggest that the resulting state attacks on self-regulation in the name of balancing professional and consumer interests in legal services markets may augur a ‘competitive-consumerist’ paradigm of regulation. Arguing that this trend and the prevalence of non-professional regulation of legal services markets in other parts of the world calls for reconsideration of the fundamentals of legal services regulation, they employ a broad definition of regulation that extends beyond enforced rules to include ideologies, customer demands and other influences on behaviour, focusing on who regulates, how and why. Drawing on national reports in both the original Abel and Lewis project and Volume 1, they describe professional regulation and compare it with institutional alternatives such as governments, clients or consumers more generally, exploring how different jurisdictions allocate responsibility for admission, practice and discipline. Turning to ‘how’ regulation occurs, they consider the use and compatibility of the three competing regulatory logics proposed by Freidson (2001): professionalism; market competition; and corporate bureaucracy. The question of why legal services are regulated is addressed by contrasting public and private interest theories and examining the importance of the rule of law as a guiding principle. Observing that efforts to control lawyer autonomy risk unduly expanding state power, they note that other important regulatory features, attributed by some to lawyer self-interest, can be understood as necessary safeguards for lawyers’ independence and the rule of law. They conclude that co-regulatory models will dominate increasingly over the next 30 years. Lynn Mather and Leslie Levin’s rich, cross-cultural exploration of ‘where the law is in what lawyers do’ complements the four regional surveys with which this volume opens. Focusing on lawyers’ collective efforts to effect policy change (through professional organisations rather than informal networks), they explain that these can take many forms, from drafting or responding to proposed rules or legislation, lobbying, and filing lawsuits to engaging in strikes or other public protest. After a brief discussion of theoretical perspectives and what these suggest about lawyer organisations’ reasons for seeking to influence law, they apply these perspectives by comparing law-making activities in seven countries – China, Brazil, Israel, Japan, Kyrgyzstan, Libya, and the US – which differ on virtually all axes (eg size, legal systems, political systems and nature of civil society). Their fine-grained comparison of motivations for, and instances of, attempting to influence law illustrates how these interact with the nature of the professions’ political environment. Examples range from self-interested, such as seeking to limit admissions (fitting market control theory), acting on issues to benefit clients, and attempts to bolster the legal system’s legitimacy and advocacy for issues affecting civil society (consistent with political liberalism theory). They then draw on the national reports, again noting the intersections between the type of society and the form of professional organisation. Finally, they discuss factors that seemingly affect lawyer organisations’ capacity to take steps to influence law and the likelihood of doing so (eg the extent of bar autonomy vis-à-vis the state; characteristics of the lawyer organisation, eg age, homogeneity; support from the international legal community; lawyers’ professional self-conception; and their role in civil society), relating these to both market control theory and Halliday and Karpik’s (1997) analysis of lawyers working for political liberalism. ‘Globalisation and Education: Reconfigurations in Location, Scale, Form and Content’ is the next chapter in this section. Legal education is pivotal to understanding the development of lawyers and legal professions around the world. As Larson (1977) argued, the profession’s

16  Hilary Sommerlad and Ole Hammerslev cognitive basis, and the universalistic and meritocratic criteria which (in theory) underpinned lawyers’ training and socialisation, were distinguishing features of the professional product, and thus crucial to the professional project. But this is not the only significance of legal education. For instance, it grounds the cultural reproduction of the system that protects lawyers’ monopoly of opportunities and resources and provides the material justification for that monopoly. It is also central to lawyers’ ethical formation and their orientation (or lack of it) to social justice; plays a key role in generating and maintaining the profession’s internal hierarchies, and enables their contribution to nation building. All these facets of the inter-relationship between legal education and the profession are illuminated in Volume 1’s country reports, which illustrate how transformations in the profession, including the shift from occupational to organisational professionalism, have similarly transformed legal education systems. Many of the profession’s dimensions therefore converge in legal education, and in chapter 11, Ole Hammerslev focuses on how it has been affected by the processes of neo-liberal globalisation. His use of the national reports reveals the uneven way in which these processes have affected legal education across the world but also discloses common trends, such as the erosion of national educational institutions’ former dominance in the reproduction of the profession, and the massive expansion of legal education (often through private provision). Massification (and diversification) of student populations have occurred for several reasons, including nation states’ drive to maintain global competitiveness by producing workers who can serve the ‘knowledge economy’; higher education’s commercialisation and the consequent need of universities to make profits; the low costs of delivering law degrees; the expansion of law firms and industrialisation of legal practice; and ‘outsiders’ drive to enter the profession. As a result, the mass entrance of women into legal education, followed by ethnic minorities, has occurred in virtually all jurisdictions. However, these developments have failed to dislodge the traditional status hierarchies which contour the profession, and it is clear that this is in part the result of the deep stratification of institutions. A further common trend has been the transformation of the form and content of legal education, reorienting law school curricula towards commercial subjects and practical skills, including through legal clinics, which are developing in most jurisdictions. Hammerslev also highlights the key role that legal education plays in post-colonial jurisdictions in state transformation, by building an indigenous legal profession. Finally, the ongoing processes of globalisation have resulted in an increasing blurring of the boundaries between civil law and common law models of legal education in many jurisdictions. Part III concludes with a chapter on paralegals and the casualisation of legal labour markets by Hilary Sommerlad, Jeanne Hersant, Nina Holvast, Luca Verzelloni, Stefanie Gustafsson, Rebecca Sandefur and Tom Clarke, which explores the issues raised by the liminal spaces between ‘profession’, other occupational fields and civil society in different jurisdictions. Since the classification of forms and tiers of legal work is a product of the relationship between law, the profession and its status and socio-cultural location, and new technologies, divisions of labour have always been regularly transgressed, with both reserved and unreserved law work performed by different occupational groups, depending in part on the status of the profession’s clientele. Interactions between paralegalism and legal professionalism illuminate the legal field’s historical and geographical contingency: its contouring by pre-modern residues and relationship with wider social hierarchies, the impact of the expansion and diversification of demand for legal and advice services, the unbundling of traditional professional functions (eg discovery, document production) by new technologies, and the industrialisation of legal practice. The chapter argues that the resulting ambivalence about what constitutes legal work and the erosion of such core professional traits as autonomy are emptying professionalism of its normative meaning, reducing it to a disciplinary discourse (Fournier 1999) and vindicating

Introduction: Studying Lawyers Comparatively in the 21st Century  17 predictions of lawyers’ ideological and technical proletarianisation and de-professionalisation, as exemplified by the casualisation of professional labour and increase in paralegal labour. However, once again we see that these universal trends are inflected by persistent national differences. These are analysed in five micro-studies of jurisdictions chosen for their heterogeneity: Chile, the Netherlands, Italy, England and Wales, and the US, which highlight the interaction between the paralegal/profession division and the hierarchies which stratify national status orders. Part IV presents three chapters on lawyers and social justice. Rosemary Hunter, Annette Olesen and Rebecca Sandefur discuss the provision of legal services to disadvantaged individuals and draw on the national reports to outline various delivery models: each relies on state funding but differs in the distribution of responsibilities for administering the scheme and the engagement, regulation and quality control of lawyers. Resources are generally inadequate to meet most conceptions of legal need and, following the embrace of neoliberal political economy, even countries with a tradition of generous funding have implemented drastic cutbacks, re-framed access to justice in terms of the ‘business case’ (rather than a matter of human dignity, equal citizenship or social justice), and removed legal professional control over legally aided cases. This retrenchment and reconstruction of access to justice over the last 30 years is explored in the US, Scandinavia (Denmark, Norway and Sweden) and England and Wales. These studies reveal that although national developments differ, reflecting sharply divergent political traditions, common themes emerge: the loss of legal professional monopolies on the provision and definition of access to justice; concerns about legal aid lawyers’ relationships with their clients and the quality of their services; obstacles to the social reproduction of legal aid lawyers; and the fragmentation and marketisation of access to justice. In each case, the legal profession’s responses have been shaped by wider professional changes, including the widening gap between globalised corporate law firms and local firms serving private clients and the effects of neoliberal ideology on the profession’s conception of its role vis-à-vis the state and the market. However, lawyers have also resisted these developments and may play an important role in the reconfiguration of legal aid systems. The authors therefore conclude that access to justice remains a key site for the profession’s engagement with the state. Anna Bryson, Kieran McEvoy and Alex Batesmith’s chapter explores the intersection between politics, professionalism and gender among cause lawyers. Using extremely rich data generated by an international comparative research project, they focus on the particular challenges faced by cause lawyers in conflicted, authoritarian and transitional contexts, reflecting on professional identity, strategies, tactics and relations with social or political movements. They also consider the specific ways in which female cause lawyers manage the contradictory opportunities and challenges presented by conflict and transition and engage with competing understandings of struggle, such as the relationship between the gender equality movement and the struggle against apartheid or the Israeli occupation. Their concluding reflections on how cause lawyers strive, in exceptionally difficult circumstances, to reimagine, reshape and reconfigure the law represent a broader contribution to the sociology of lawyers. Lawyers’ role in authoritarian regimes is also addressed in Stefanie Lemke’s chapter. In 2013, the UN Special Rapporteur on the Situation of Human Rights Defenders warned that the space for civil society and defenders had contracted in certain regions of the world and that the judicial system was being deployed to criminalise and stigmatise their activities. Lemke notes that in Europe, Poland and Hungary exemplify the trend to state-led politicisation of the judiciary and its use to harass lawyers and suppress civil liberties. However, the chapter primarily focuses on Azerbaijan, Bolivia, Ecuador, Russia and Venezuela, all of which have, over the last two decades, repeatedly ignored calls from the international community to ensure

18  Hilary Sommerlad and Ole Hammerslev the rights to a lawyer and an independent judge. Following a theorised discussion of the rule of law, Lemke provides a detailed analysis, illustrated by case law, of the situation of lawyers in these jurisdictions and their judicial systems. The chapter concludes with a critical assessment of the current international human rights mechanisms to resist judicial harassment of lawyers more effectively. Part V is concerned with multinational firms. The opening chapter by Manuel Gómez and Marc Galanter presents a comprehensive analysis of the exponential expansion of ‘Big Law’ (defined as the large multi-office and full-service law firms whose main clients are multinationals, large domestic corporations, the state, public entities and wealthy individuals, which provide legal services through teams of lawyers specialised in different areas or countries), and its reconfiguration of the traditional professional form to one that is increasingly commercial. The trajectory and manifestations of this development are described: the large law firm is traced from its nineteenth century origins to the widespread adoption of the US Cravath system (characterised by a specific organisational structure and management principles) as the demand for high end corporate legal services generated by globalisation mushroomed and, most recently, to the relaxation of the prohibition on non-lawyer investment in law firms and partnerships with lawyers. Analysis of the consequences of these changes for Big Law’s internal structure, demographic profile, culture and professional status is informed by data from Volume 1, supplemented by vignettes which depict the diversification of career pathways and modification of compensation schemes, transforming firms from lifelong associations of liberal professionals to business-like conglomerates; the related decline in lawyers’ commitment to any particular firm; and the shift in client perceptions of legal work from a trusted individualised service to one that is commoditised – epitomised by the emergence of new organisational forms such as virtual law platforms. They conclude by noting that while the numerous challenges faced by Big Law, such as automation, political, social, and economic transformations of the countries in which firms operate, and global events such as the Great Recession of 2007–09 and the pandemic of 2020–21, have prompted predictions of its demise, Big Law remains strong and profitable. Gómez and Galanter’s study is complemented by the next chapter. David Wilkins, David Trubek and Bryon Fong draw on data generated by the Project on Globalization, Lawyers, and Emerging Economies (GLEE), a multinational, multidisciplinary, multi-institutional research collaboration, to compare the impact of globalisation on the market for corporate legal services and its implications for lawyers and society. They use the evidence from GLEE’s studies of India, Brazil, and China to demonstrate three related propositions. First, globalisation is producing a ‘micro-level corporate legal ecosystem’, defined as a distinct sector of legal practice consisting of law firms, corporate clients, and graduates of top law schools. Second, the shaping of this system by indigenous social, cultural, political, and economic factors and global models (exported by the US and UK and summarised as the Cravath system), which developed a full suite of legal practices to handle a company’s entire legal needs, has produced hybridised corporate legal ecosystems. Third, the relative strength of macro-level differences in the relationship between the state, the market, and the organised bar among the three jurisdictions and between them and the US (expressed in the metaphor of ‘gears’) shapes the structure and operation of each state’s corporate legal ecosystem. Their conclusion that socio-legal scholars interested in globalisation’s reshaping of the legal services market should pay close attention to the evolving interaction between these macro and micro level forces is consistent with other chapters’ insights into the significance of entangled endogenous and exogenous factors for both national differences and parallels and for changes and continuities.

Introduction: Studying Lawyers Comparatively in the 21st Century  19 Europeanisation can be seen as a facet of globalisation. Both are multi-faceted phenomena that form part of the neoliberal transformation of markets (as well as changes in forms of communication and new technologies); and both have reconfigured nation states and their institutions, policies and values. Lola Avril’s chapter concerns the distinctive legal practice that Europeanisation produced. Echoing the impact of globalisation on corporate law depicted by Gómez and Galanter and Wilkins, Trubek and Fong, her empirical study of a subset of Brussels lawyers, undertaken through analysis of professional journals, interviews and 455 lawyer profiles, reveals a professional specialisation (not a profession per se) whose emergence appears to have been driven more by commercial and business concerns than the interests of the national bars. She describes how, beginning in the 1990s, lawyers became essential intermediaries between companies and the EU administration, as the EU political system morphed into a regulatory state. The chapter presents a forensic examination of the genesis and consolidation of this group of regulatory lawyers, appearing first in Brussels in the context of the intensifying neoliberal ethos in the EU administration. Avril describes the resulting qualitative and quantitative development of European competition policies (seen as essential to economic growth) which led to an influx of foreign law firms into Brussels at the end of the 1980s. The significance of these developments for the meaning of professionalism and professional identity is depicted through her close examination of the profiles of the members of the regulatory bar, whom she describes as boundary entrepreneurs operating at the crossroads of the international and European legal fields and the public and private sectors. She concludes, therefore, that the extension of EU law and the establishment of the European Court of Justice in Brussels did not generate the emergence of a Europeanised profession but rather that European competition politics (which are at the heart of EU activities) led to the establishment of a category of hybrid professionals who act as intermediaries and auxiliaries of the European regulatory state, redefining what a lawyer can be. Part VI is devoted to the sociology of professions. Sida Liu argues that sociological research on the legal profession has neglected the two elements that distinguish lawyers from other elite professionals – rules and power – which co-exist in tension. Liu applies this analogy to legal work, observing that rules are the technical instruments for performing such work and also the foundation of lawyers’ professional identity, whereas the practice of law is inherently political. As a result, no lawyer can escape the influence of state power, and the symbiotic exchange of power and resources between lawyers and state officials in everyday legal work further strengthens the profession’s ties to the state (eg by sanctifying policies, shaping legal consciousness by developing and popularising legal discourses, and constructing and maintaining disciplinary systems). Liu builds on this to consider how lawyers’ obedience to rules varies with their proximity to state power, making them ‘pragmatic brokers’ since they must constantly engage in ‘a balancing act between the toolkit of rules and the river of power’. His close analysis of this tension enriches the insights of several chapters (eg those by McEvoy et al; Dezalay and Garth; and Munger). Liu suggests that sociology’s search for similarities in the ecological dynamics of all professional work is misguided since superficial likeness tends to mask deep differences in the training, work, organisation, and ethics of different professions. Nevertheless, because the developments described and analysed in Volumes 1 and 2 have been global in their reach and have affected every aspect of professional life (for instance, blurring professional boundaries and eroding traditional logics under commercial pressures), we included two chapters reflecting on the impact of these developments on accountants and doctors. Sundeep Aulakh examines accountancy through the prism of the Big 4 audit firms. Several features make auditing a good contrast with the legal profession: the two have long

20  Hilary Sommerlad and Ole Hammerslev been entangled in a complex relationship, characterised as much by mutual dependency and collaboration as by rivalry; the audit and corporate law fields engaged in similar structural transformations in response to economic globalisation (leading to analogous divisions between small practitioners and the huge firms); both are among the world’s most economically and politically powerful enterprises; and the language of audit now rivals that of law as a state discourse. However, Aulakh also identifies clear differences, which have contributed to accountancy’s success. These include its lower social status, which encouraged accountants to respond to client need by increasing their jurisdictions and adopting a ‘supermarket strategy’; their tradition of in-house practitioners; and their value to the government’s liberalisation policies, offering major wealth accumulation opportunities. She then provides a comprehensive analysis of the rise of the audit profession and concludes by observing that the most obvious similarity with law is the ascendency of a commercial ethos and its prioritisation over a professional logic, exemplified by repeated scandals. Mark Exworthy and Simon Moralee’s study of the medical profession focuses on the UK. The parallels with the legal profession are highlighted by their opening description of the threat to the state-profession contract posed by trends developing in the 1970s (eg consumerist discourses, post-modern scepticism about scientific knowledge and expertise, the erosion of deference to established elites and new technologies) and the subsequent instrumentalisation of these trends by the neoliberal, globalised market state. The chapter then documents how the new socio-economic allocative regime of deregulation and cost containment, informed by the vocabularies of efficiency, choice and competition, resulted in a dramatic (and ongoing) transformation of the medical profession, encompassing changes in its size, composition, values, working practices, forms of knowledge and identity. Arguing that the traditional understanding of modern professionalism in terms of autonomy, mastery and purpose is too narrow to capture the multiple and intersecting forms professionalism is adopting, they develop Freidson’s thesis of ‘restratification’ (1994) into one of mutation (following Adler and Kwon 2012), deploying this in two case studies of leadership and post-truth politics. They conclude by recommending a research agenda that transcends the medical profession and is based on modularity (the profession’s reactions), uncertainty (internal and external contestation of key practices and concepts) and power (through discursive practices and structures). Part VI concludes with Julian Webb’s discussion of the transformation of the legal services market and the professional form by specialist legal technology (‘legal tech’ or ‘lawtech’), defined as the use of digital information and communication technologies to automate all or part of the legal work process, offer decision support to legal service producers, and provide legal information and advice directly to clients/end users. Webb deploys both a microlevel narrative of how legal tech is changing the actual processes of professional work and a macro-level narrative of how these trends are critical to the re-scaling, reorganisation and governance of professional services under conditions of neoliberal globalisation. These narratives are fused through an ‘ecosystem’ perspective on the overarching structure within which legal services are delivered. Webb describes the emergence of legal technology, explores its consequences for law (particularly how it changes the temporal-spatial characteristics of practice, the organisation of the legal sector, and the regulation of legal services) and how it is reshaping the landscape of professional knowledge and expertise and its implications for the profession’s future structure and legitimacy. He concludes that while the impact of legal tech has been significant – for instance, facilitating the decentralisation and flexibilisation of legal practice and other organisational and work process changes – it has been unevenly distributed by sector and geography and has not (yet) been the disruptive force that some have claimed. Nevertheless, it may continue to erode the profession’s epistemic and jurisdictional authority.

Introduction: Studying Lawyers Comparatively in the 21st Century  21 Part VII addresses lawyers and state production. Dietrich Rueschemeyer’s 1989 essay on the ‘mutually constructive’ relationship between a state and its legal profession inspires Frank Munger’s state-centred analysis of legal professions. Illustrated by comparisons ranging across countries, state formations, and temporalities, the chapter enriches the insights of other contributions, arguing that, despite globalisation, a state’s political structure determines law’s authority, meaning and reach. For instance, states limit law’s power in matters deemed political but cede lawyers autonomy to rationalise and establish state power in other areas, enabling the profession to mediate between the state and private interests. The expansion of modern state authority is described as accommodating global markets, leading to the flourishing of corporate law, while also adapting to backlash against the consequences, which include not only the growing legal precariat but also society-wide inequalities. The rise of authoritarian populism – the most striking manifestation of this backlash – is also fuelled by the threat of terrorism, justifying the expansion of state power and an assault on the rule of law, with grave implications for lawyers as mediators between state and civil society. Yet in his concluding reflections on legal professions’ contemporary relevance, Munger notes that globalisation in the form of the international human rights movement has also created new legal profession roles for resistance to autocratic power and support for popular political action. Yves Dezalay and Bryant Garth switch the focus from the profession as an institution or occupational group to professional elites. They argue that control of the production (and reproduction) of producers is designed less to ‘restrict internal and external competition’ and limit entry into the profession than to enforce an internal hierarchy dominated by a small cosmopolitan elite. Despite the protestations of meritocracy and claims that all lawyers belong to the same professional community, access to the elite typically depends largely on combinations of family, social, and economic capital and graduation from exclusive universities and law schools. However, the contradictory nature of the process creates challenges. These are analysed by drawing on Bourdieu’s sociological insights into the tension and complementarity of family and meritocratic capital (2012) and Berman’s theory of permanent revolutions (1983): legal establishments and hierarchies are revitalised as successful challengers invest in new forms of knowledge and linkages to emerging political powers. Three case studies then elaborate the processes of elite reproduction, showing it to be an enduring feature of the legal profession, crossing national and international boundaries and influenced by different imperial powers but also varying locally in response to differences in power structures. The first focuses on the legal profession’s origins in medieval Italy and a later division between continental and common law approaches, determining what was exported to Europe’s colonies. The process of embedding cosmopolitan legal elites in these colonies produced distorted mirror images of western institutions. The second concerns the hybrid that became US ‘anti-imperial imperialism’, exported through law and development and imported as part of the latest legal revolution. The third presents Asian responses to the recent ascendancy of US neoliberal models, resulting in a local, distorted variant. Michael Levi draws on his research into anti-money laundering (AML) initiatives developed since 1988 to consider how and why the relationship between the international order, state, market, civil society and law and lawyers has changed over the last 30 years. Through a wide-ranging analysis of corruption cases, he examines what is known about the role of lawyers in grand and meso-level corruption and reviews the impacts – intended and unintended – that controls on money laundering and corruption have – or are claimed to have had – on the legal profession and the practice of law. After noting that grand corruption is a contested concept without a legal definition, he describes how the multiple approaches to regulating lawyers’ misconduct reflect differences in cultural traditions about interference with

22  Hilary Sommerlad and Ole Hammerslev the legal profession and its levels of bargaining power and social prestige, hampering analytical assessment. For instance, the legal apparatus for protecting privacy and beliefs about the ‘unfairness’ of tax rates provide a flexible moral construct for ‘techniques of neutralisation’ of legal obligations. The chapter teases out differences in the legal and practical organisation of AML obligations, which are in a state of flux. While some metrics of efficiency and effectiveness are more visible, Levi argues that neither national jurisdictions nor the Financial Action Task Force and the EU have seriously grappled with – let alone resolved – the problem of how to assess lawyer performance in anti-money laundering. He concludes by acknowledging the difficulty of choosing the best method for getting lawyers to pay greater attention to the sources and beneficial owners of client money. The volume concludes with Richard Abel’s comparative sociology of lawyers, 1988–2018, based on the rich data in Volume 1. He begins by explaining that although his contributions to both the original project and the conclusion to Volume 1 drew on neo-Weberian market control theory, he has come to regard lawyers’ relationships with the state as equally pivotal. He therefore draws on the national reports and a wide range of empirical and theoretical work on the profession to explore how lawyers govern and regulate themselves, influence access to justice, and participate in politics. He then turns to the ways in which legal professions are shaped by regime transitions and state ruptures and how they contribute to creating or preserving the rule of law. Finally, he uses the reports to propose an agenda for further research into each dimension of the profession’s relationship to the state. VII. CONCLUSION

This volume’s thematic chapters illustrate the conceptual complexity of developing middle-range theories about different but linked systems and cultures. They therefore do not (and cannot) provide a comprehensive matrix of comparative categories that apply to all legal professions – the profession is too complex, fluid and polysemic and its meaning too entangled in national and local temporalities and divergent social modalities, which are in turn over-determined by their relationship with other institutions, particularly those at the global level. Yet these chapters also underline the importance of attempting, through a reflexive research practice, to develop middle-range theory using cross-cultural analysis and how this can contribute to our understanding of macro-level trends. For instance, the chapters highlight such cross-cutting themes as the significance of autonomy for professional status and forms of practice and the displacement of a traditional professional logic by one that is infused with business principles. They also underscore the persistence of sharp divergences, such as those between post-colonial and imperial centres, and highlight the uneven nature of recent changes. They indicate, too, the need to recognise that these changes are inflected by deep continuities – such as the resilience of the profession’s masculinity and elite reproduction. The chapters therefore demonstrate that the profession remains part of complex and contingent occupational ecologies, which in turn are embedded in and shaped by (while also shaping) regional, national and global relations, and that all these structures are in constant flux. Finally, the chapters also reveal the continuing power of law and the profession to shape social reality, highlighting their importance as research subjects. We therefore hope that both volumes will stimulate further innovative comparative work. Developments since we began this project (especially in the last two years) – the COVID-19 pandemic, the extraordinary powers assumed by states to fight it, and the parallel and connected assaults on democratic norms and the Rule of Law – underline the ongoing relevance of the project.

Introduction: Studying Lawyers Comparatively in the 21st Century  23 REFERENCES Abbott, A (1988) The System of Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). —— (1995) ‘Things of Boundaries’ 62 Social Research 857–82. —— (2016) Processual Sociology (Chicago, University of Chicago Press). Abel, RL (1973) ‘A Comparative Theory of Dispute Institutions in Society’ 8 Law & Society Review 217–347. —— (1988) The Legal Profession in England and Wales (Oxford, Basil Blackwell). —— (1989) ‘Comparative Sociology of Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 80–153. Abel, RL and Lewis, PSC (eds) (1988a) Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press). —— (eds) (1988b) Lawyers in Society: Vol 1 The Common Law World (Berkeley, University of California Press). —— (1989a) ‘Putting Law Back into the Sociology of Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 478–526. —— (eds) (1989b) Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Adler, PS and Kwon, S-W (2012) ‘The Mutation of Professionalism as a Contested Diffusion Process: Clinical Guidelines as Carriers of Institutional Change in Medicine’ 50 Journal of Management Studies 930–62. Alavi, H (1972) ‘The State in Post-colonial Societies: Pakistan and Bangladesh’ 1(74) New Left Review. Arnholtz, J and Hammerslev, O (2013) ‘Transcended Power of the State: the Role of Actors in Pierre Bourdieu’s Sociology of the State’ 14 Distinktion: Scandinavian Journal of Social Theory 42–64. Azarian, R (2011) ‘Potentials and Limitations of Comparative Method in Social Science’ 1 International Journal of Humanities and Social Science 113–25. Banakar, R (1998a) Doorkeepers of the Law: A Socio-Legal Study of Ethnic Discrimination in Sweden (Aldershot, Dartmouth/Ashgate). —— (1998b) ‘The Identity Crisis of a “Stepchild”: Reflections on the Paradigmatic Deficiencies of Sociology of Law’ 21 Retfærd: Nordic Journal of Law and Jusice 3–21. —— (2003) Merging Law and Sociology: Beyond the Dichotomies in Socio-Legal Research (Glienicke/ Berlin, Galda + Wilch Verlag). —— (2009) ‘Power, Culture and Method in Comparative Law’ 5 International Journal of Law in Context 69–85. —— (2014) Normativity in Legal Sociology: Methodological Reflections on Law and Regulation in Late Modernity (London, Springer). Banakar, R and Travers, ME (2002) An Introduction to Law and Social Theory (Oxford, Hart Publishing). —— (2005) Theory and Method in Socio-Legal Research (Oxford, Hart Publishing). Bauman, Z (2000) Liquid Modernity (Cambridge, Polity Press). Berman, HJ (1983) Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Harvard University Press). Bertillson, M (ed) (1995) Rätten i Förvandling. Jurister mellan stat och marknad (Stockholm, Nerenius & Santerus Förlag). —— (2013) ‘Den juridiske profession i et sociologisk perspektiv’ in O Hammerslev and MR Madsen (eds), Retssociologi (København, Hans Reitzels Forlag). Bhambra, GK (2016) ‘Whither Europe?: Postcolonial versus Neocolonial Cosmopolitanism’ 18 Interventions 187–202. Blegvad, B-M (1973) Juristernes rolle i samfundet (Copenhagen, Nyt fra Samfundsvidenskaberne). Blok, A (2020) ‘On Comparative Methodologies, or, How Professional Ecologies Vary’ 10(1) Professions & Professionalism. Bourdieu, P (1988) Homo Academicus (Cambridge, Polity Press).

24  Hilary Sommerlad and Ole Hammerslev —— (1991) Language and Symbolic Power (Cambridge, Polity Press). —— (1994) ‘Rethinking the State: Genesis and Structure of the Bureaucratic Field’ 12(1) Sociological Theory 1–18. —— (1996) The State Nobility. Elite Schools in the Field of Power (Cambridge, Polity Press). —— (1998) Om TV – og journalistikkens magt (København, Tiderne Skifter). —— (2000) Pascalian Meditations (Cambridge, Polity Press). —— (2001) Masculine Domination (Cambridge, Polity Press). —— (2012) On the State: Lectures at the Collége de France 1989–1992 (Cambridge, Polity Press). Bourdieu, P, Chamboredon, J-C and Passeron, JC (1991) The Craft of Sociology: Epistemological Preliminaries (Berlin, Walter de Gruyter). Bourdieu, P and Wacquant, L (1992) An Invitation to Reflexive Sociology (Chicago, University of Chicago Press). Breiner, P (2007) ‘Ideal-Types as “Utopias” and Impartial Political Clarification: Weber and Mannheim on Sociological Prudence’ in L McFalls (ed), Max Weber’s Objectivity Reconsidered (Toronto, University of Toronto Press) 89. Brubaker, R (2003) Beyond Comparativism? UCLA: Theory and Research in Comparative Social Analysis [online]. Bucher, R and Strauss, A (1961) ‘Professions in Process’ 66 American Journal of Sociology 325–34. Burrage, M (1989) ‘Revolution as a Starting Point for the Comparative Analysis of the French, American and English Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 322–74. Carr-Saunders, AM and Wilson, PA (1933) The Professions (Oxford, Clarendon Press). Cicourel, AV (1964) Method and Measurement in Sociology (New York, Free Press). Connell, R (1987) Gender and Power: Society, the Person and Sexual Politics (London, Allen & Unwin). Cotterrell, R (1998) ‘Why Must Legal Ideas Be Interpreted Sociologically’ 25 Journal of Law and Society 171–92. Crenshaw, K (1991) ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ 43 Stanford Law Review 1241. David, R and Brierley, JEC (1985) Major Legal Systems in the World Today (London, Stevens & Sons). Davis, K (2008) Periodization and Sovereignty; How Ideas of Feudalism and Secularization Dominate the Present (Philadelphia, University of Pennsylvania Press). De Sousa Santos, B (2002) Toward a New Legal Common Sense: Law, Globalization, and Emancipation (London, Butterworths). De Tocqueville, A (1839) Democracy in America (transl Henry Reeve) (New York, Scatched and Adams). Deville, J, Guggenheim, M and Hrdličková, Z (2016) ‘Introduction: The Practices and Infrastructures of Comparison’ in J Deville, M Guggenheim and Z Hrdličková (eds), Practising Comparison. Logics. Relations, Collaborations (Manchester, Mattering Press) 17–41. Dezalay, Y and Garth, BG (1998) Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago, University of Chicago Press). —— (2001) ‘The Big Five Versus Big Law: Confrontational Rhetoric in the Service of Legitimating Shifting Relationships between Business and Law’ in J Drolshamer and M Pfeifer (eds), The Internationalization of the Practice of Law (The Hague, Kluwer Law International). —— (2002a) Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (Ann Arbor, University of Michigan Press). —— (2002b) The Internationalization of Palace War: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago, University of Chicago Press). —— (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). Dogan, M (2008) ‘Strategies in Comparative Sociology in M Sasaki (ed), New Frontiers in Comparative Sociology (Boston, Brill). Drucker, PF (1994) ‘The Age of Social Transformation’ The Atlantic (November) 53.

Introduction: Studying Lawyers Comparatively in the 21st Century  25 Durkheim, E (1912) The Elementary Forms of the Religious Life (London, George Allen & Unwin Ltd). —— (1982) The Rules of Sociological Method and Selected Texts on Sociology and its Method (New York, Free Press). —— (2018) Professional Ethics and Civic Morals (London, Routledge). Epstein, C (1968) Women and Professional Careers: The Case of the Woman Lawyer (New York, Columbia University Press). Evans-Pritchard, EE (1940) The Nuer (Oxford, Clarendon Press). Finlayson, A (2020) ‘YouTube and Political Ideologies: Technology, Populism and Rhetorical Form’ Political Studies 1–19. Firebaugh, G (2008) Seven Rules for Social Research (Princeton, Princeton University Press). Fournier, V (1999) ‘The Appeal to “Professionalism” as a Disciplinary Mechanism’ 47 The Sociological Review 280. Freidson, E (1994) Professionalism Reborn: Theory, Prophecy, and Policy (Chicago, University of Chicago Press). —— (2001) Professionalism: The Third Logic (Chicago, University of Chicago Press). Friedman, LM (1989) ‘Lawyers in Cross-Cultural Perspective’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 1–26. Galbraith, JK (1997) Interview, Folha de Sao Paulo 2 October. Gallie, WB (1956) ‘Essentially Contested Concepts’ 56 Proceedings of the Aristotelian Society 167. Giddens, A (1986) The Constitution of Society: Outline of the Theory of Structuration (Cambridge, Polity Press). —— (1993) New Rules of Sociological Method (Cambridge, Polity Press). Go, J and Krause, M (2016) ‘Fielding Transnationalism: An Introduction’ 64(2) The Sociological Review Monographs 6–30. Habermas, J (1996) Between Facts and Norms (Cambridge, Polity Press). Hagan, J, Huxter, M and Parker, P (1988) ‘Class Structure and Legal Practice: Inequality and Mobility among Toronto Lawyers’ 22 Law & Society Review 9–56. Halliday, S and Schmidt, P (2009) Conducting Law and Society Research: Reflections on Methods and Practices (Cambridge, Cambridge University Press). Halliday, TC and Karpik, L (eds) (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to the Twentieth Centuries (Oxford, Clarendon Press). Halliday, TC, Karpik, L and Feeley, M (eds) (2007) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). Hammerslev, O (2013) ‘Studies of the Legal Profession’ in R Banaker and M Travers (eds), Law and Social Theory (Oxford, Hart Publishing). Hammerslev, O and Sommerlad, H (2021) ‘Comparison as a Socio-legal Tool: A Celebration of Reza Banakar and his Work on Methodology’ 168 Retfærd. Nordic Journal of Law and Justice 39–50. Hekman, SJ (1983) ‘Weber’s Ideal Type: A Contemporary Reassessment’ 16(1) Polity 119–37. Hill Collins, P (1968) Black Feminist Thought (London, Routledge). Hirst, P and Thompson, G (1996) Globalisation in Question: the International Economy and the Possibilities of Governance (Cambridge, Polity Press). Hunt, A (1978) The Sociological Movement in Law (London, Macmillan). Jackman, RW (1985) ‘Cross-National Statistical Research and the Study of Comparative Politics’ 29 American Journal of Political Science 161. Jordheim, H (2012) ‘Against Periodization: Koselleck’s Theory of Multiple Temporalities’ 51(12) History and Theory 151–71. Kalberg, S (2012) Max Weber’s Comparative-Historical Sociology Today: Major Themes, Mode of Causal Analysis, and Applications (London, Taylor & Francis). Kapsis, R (1977) ‘Weber, Durkheim and the Comparative Method’ 13 Journal of the History of Behavioural Sciences 354. Kittel, B (2016) ‘A Crazy Methodology?’ 21 International Sociology 647–77.

26  Hilary Sommerlad and Ole Hammerslev Kocka, J (1996) ‘The Use of Comparative History’ in R Björk and K Molin (eds), Societies Made up of History: Essays in Historiography, Intellectual History, Professionalisation, Historical Social Theory, & Proto-industrialisation (Stockholm, Akademitryck). Koselleck, R (2000) Zeitschriften: Studien zur Historik (Frankfurt am Main, Suhrkamp). Krause M (2016a) ‘Comparative Research: Beyond Linear-Causal Explanation’ in J Deville, M Guggenheim and Z Hrdličková (eds), Practising Comparison: Logics, Relations, Collaborations (Manchester, Mattering Press) 45–67 muse.jhu.edu/chapter/2773396/pdf. —— (2016b) ‘“Western Hegemony” in the Social Sciences: Fields and Model Systems’ 64(2) Sociological Review Monographs 194–211. —— (2016c) ‘The Meanings of Theorizing’ 67(1) British Journal of Sociology 23–29. Kritzer, H (1999) ‘The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World’ 33 Law & Society Review 713. Lamont, M and Thévenot, L (2000) Rethinking Comparative Cultural Sociology (Cambridge, Cambridge University Press). Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Leicht, K (2016) ‘Market Fundamentalism, Cultural Fragmentation, Post-modern Skepticism, and the Future of Professional Work’ 3(1) Journal of Professions and Organization 103. Lenski, G (1994) ‘Societal Taxonomies: Mapping the Social Universe’ 20 Annual Review of Sociology 1–26. Levinson, S (1993) ‘Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity’ 14 Cardozo Law Review 1577. Lewis, PSC (1989) ‘Comparison and Change in the Study of Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 27–29. Liu, S (2018) ‘Boundaries and Professions: Toward a Processual Theory of Action’ 5 Journal of Professions and Organization 45–57. Lybeck, ER (2018) ‘The French Revolution in Germany and the Origins of Sociology’ 1 Historicka Sociologie 27–46. Martina, G (2011) ‘The New Geopolitical Reality’ World Economic Forum 26 January www.weforum. org/agenda. May, T (1993) Social Research: Issues, Methods and Process (Buckingham, Open University Press). Montesquieu (1989) The Spirit of the Laws (ed and transl A Cohler, B Miller, H Stone) (Cambridge, Cambridge University Press). Moore, SF (2001) ‘Certainties Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999’ 7 Journal of the Royal Anthropological Institute 95–116. Nelken, D (1993) ‘The Truth about Law’s Truth’ in A Febbrajo and D Nelken (eds), European Yearbook of Sociology of Law (Milan, Giuffrè). —— (2001) ‘Towards a Sociology of Legal Adaptation’ in D Nelken and J Feest (eds), Adapting Legal Cultures (Oxford, Hart Publishing). —— (2002) ‘Comparative Sociology of Law’ in R Banakar and M Travers (eds), An Introduction to Law and Social Theory (Oxford, Hart Publishing). —— (2005) ‘Doing Research into Comparative Criminal Justice’ in R Banakar and M Travers (eds), Theory and Method in Socio-Legal Research (Oxford, Hart Publishing). —— (2009) ‘Comparative Criminal Justice: Beyond Ethnocentrism and Relativism’ 6 European Journal of Criminology 291–311. Nelken, D and Feest, JE (eds) (2001) Adapting Legal Cultures (Oxford, Hart Publishing). Onaka, F (2015) ‘Max Weber and Comparison’ 14 Comparative Sociology 478–507. Osborne, P (2015) ‘Existential Urgency Contemporaneity, Biennials and Social Form’ 49–50 The Nordic Journal of Aesthetics 175–88. Parsons, T (1952) ‘A Sociologist Looks at the Legal Profession’ in Essays in Sociological Theory (New York, Free Press). —— (1966) Societies: Evolutionary and Comparative Perspective (Englewood Cliffs, NJ, Prentice-Hall). —— (1971) ‘Comparative Studies and Evolutionary Change’ in I Vallier (ed), Comparative Methods in Sociology: Essays on Trends and Applications (Berkeley, University of California Press).

Introduction: Studying Lawyers Comparatively in the 21st Century  27 —— (1978) ‘Law as an Intellectual Stepchild’ in HM Johnson (ed), Social Systems and Legal Process: Theory, Comparative Perspectives, and Special Studies (San Francisco, Jossey-Bass). Peterson, RA (2005) ‘Problems in Comparative Research: The Example of Omnivorousness’ 33 Poetics 257–82. Pue, W (1998) ‘Lawyering for a Fragmented World; Professionalism after God’ 5 International Journal of the Legal Profession 125–40. Ringer FK (1969) The Decline of the German Mandarins: The German Academic Community, 1890–1933 (Cambridge, Harvard University Press). —— (2002) ‘Max Weber on Causal Analysis, Interpretation, and Comparison’ 41 History and Theory 163–78. Rostow, WW (1960) The Stages of Economic Growth: A Non-Communist Manifesto (Cambridge, Cambridge University Press). Roth, G (1971) ‘Max Weber’s Comparative Approach and Historical Typology’ in I Vallier (ed), Comparative Methods in Sociology: Essays on Trends and Applications (Berkeley, University of California Press). Rueschemeyer, D (1973) Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and in the United States (Cambridge, Harvard University Press). —— (1986) ‘Comparing Legal Professions Cross-Nationally: From a Professions-Centered to a State-Centered Approach’ 11 American Bar Foundation Research Journal 415–46. —— (1989) ‘Comparing Legal Professions: A State-Centered Approach’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 289–321. Said, E (1978) Orientalism (New York, Pantheon Books). Sassen, S (1999) Globalisation and its Discontents (New York, New York University Press). —— (2006) Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, Princeton University Press). Small, M (2009) ‘“How Many Cases do I Need?” On Science and the Logic of Case Selection in Field-based Research’ 10(1) Ethnography 5. Smart, C (1989) Feminism and the Power of Law (London, Routledge). Smelser, NJ (1971) ‘Alexis de Tocqueville as Comparative Analyst’ in I Vallier (ed), Comparative Methods in Sociology (Berkeley, University of California Press). —— (2003) ‘On Comparative Analysis, Interdisciplinarity and Internationalization in Sociology’ 18 International Sociology 643–57. Spivak, G (1988) Can the Subaltern Speak? (Basingstoke, Macmillan). Sterett, S (1990) Comparing Legal Professions (Chicago, University of Chicago Press). Susskind, R (2013) Tomorrow’s Lawyers: An Introduction to Your Future (Oxford, Oxford University Press). Tilly, C (1984) Big Structures, Large Processes, Huge Comparisons (New York, Russell Sage Foundation). Vignaendra, S (2001) Social Class and Entry into the Solicitors’ Profession (London, Law Society) (Research Study 41). Weber, M (1977) Critique of Stammler (New York, Free Press). —— (1978) Economy and Society (Berkeley, University of California Press). Wilkins, DB (1998) ‘Identities and Roles: Race, Recognition, and Professional Responsibility’ 57 Maryland Law Review 1502–94. Wilkins, DB, Khanna, VS and Trubek, DM (eds) (2017) The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (Cambridge, Cambridge University Press). Wilkins, DB and Papa, M (2013) ‘The Rise of the Corporate Legal Elite in the BRICS: Implications for Global Governance’ 54 Boston College Law Review 1149–84. Witz, A (1992) Professions and Patriarchy (London, Routledge). World Economic Forum (2011) Global Risks 2011 6th Edition: An Initiative of the Risk Response Network reports.weforum.org/global-risks-2011. Zweigert, K and Kötz, H (1998) An Introduction to Comparative Law (Oxford, Clarendon Press).

28

Part I

Comparisons: Regions, Religions, Political Economies

30

2 Evolution of Latin American Lawyers Over Three Decades: 1990–2020 MANUEL A GÓMEZ

I. INTRODUCTION

T

he use of Latin America as a unit of analysis is challenging. There is no Latin American law analogous to European Union law or ‘constitutional law, contract law, or criminal law’ (Esquirol 2020). Each of the 20 countries that comprise the region has its own legal framework, economy, and political system. Yet those countries share many traits, not just territorial borders. Most significant is their common history from the sixteenth century onwards. As former colonies of Spain (Portugal for Brazil and France for Haiti), Latin American societies possess similar cultures, institutions, traditions, and – in the vast majority of cases – the same language. Even more important for the evolution of the legal systems and the regulation and configuration of the legal professions is the fact that these countries became independent and built their legal systems at around the same time, during the second half of the nineteenth century. This historical period is what really shaped how individual states constructed their legal systems and regulated their legal professions. The adoption of legal principles drawn from European codes (eg the Napoleonic Code of 1804) and Constitutions (eg the Constitution of Cadiz of 1812) further cemented the idea of a common legal tradition. The practice of considering the region as unitary has been perpetuated by the fact that the rest of the world, including international organisations, development agencies and multinational corporations, routinely treats Latin American countries as a group. These commonalities justify an investigation of Latin American lawyers. Like any comparative study of lawyers, this one has obvious limitations. The most important, perhaps, is its scope. A comprehensive analysis of such an important cluster of professional actors would require not just a chapter but an entire volume. As can be seen from the contemporary literature, including the national reports on Argentina (Böhmer Vol 1, ch 18), Brazil (Bonelli and Fortes Vol 1, ch 19), Chile (Villalonga Vol 1, ch 20), Mexico (Pérez-Hurtado Vol 1, ch 21), and Venezuela (Gómez and Pérez-Perdomo Vol 1, ch 22) included in the first volume of this collection, each country has a complex, distinctive legal profession. Nevertheless, it is possible to identify both commonalities and differences and seek to explain them. One of the most significant features of Latin American lawyers since independence has been their intimate connection with the state (Pérez-Perdomo 2007). Despite some obvious differences in national history, culture and society, two elements have always characterised the lawyer-state relationship across the region: first, the dominant participation of lawyers in the

32  Manuel A Gómez construction and operation of national legal systems; and second, their traditional standing as members of influential professional elites. The persistence of these elements does not mean the relationship is static. On the contrary, the lawyer-state interaction has always been dynamic, subject to national political, economic and social changes and the evolution of law and legal institutions. The three decades 1990–2020, which demarcate the temporal boundaries of this chapter, are especially worth exploring. This period has seen dramatic economic, political and social changes throughout the region, which have affected the internal structure and dynamics of the legal professions. The intensification of globalisation and technological advances have also touched Latin American lawyers. Global calamities such as the COVID-19 pandemic, which at the time of writing (October 2021) had claimed more than four million lives and cost trillions of dollars, also need to be considered when analysing the contemporary landscape of Latin American lawyers and their role in our society. The current economic projections for Latin America are particularly grim: during the last five years (2014–19), the region has experienced an average annual decline of 0.6 percent in GDP per capita (Werner 2020). In 2019, only Colombia’s GDP grew more than 3 per cent a year. Venezuela was the worst performing country, with a dramatic contraction of 65 per cent between 2018 and 2019. This sharp deterioration has been attributed to ‘declining oil production, hyperinflation, collapsing public services, and plummeting purchasing power’ (ibid). Once a symbol of wealth, social mobility and progress, Venezuela has continued to spiral out of control, experiencing one of the worst humanitarian crises in the recent history of the western hemisphere. One immediate effect has been the exodus of millions of Venezuelans to neighbouring countries and abroad, including many lawyers who have sought to join the legal professions in their new destinations (Capriles and Pérez-Perdomo 2019). This legal diaspora has created challenges for local authorities and practitioners while also testing the boundaries of transnational legal practice and the globalisation of the legal profession (ibid; Pérez-Perdomo 2020). Even a country like Chile, which had achieved democratic stability in recent decades, has recently been experiencing an upsurge of social unrest and political tensions, which has drawn lawyers back to the epicenter of politics (Zilla and Schreiber 2020). Mexico and Brazil – the two most populous Latin American countries – have seen the rise of populist, ideologically polarising governments, which resemble those of the early days of Venezuela’s Chavista revolution during the late 1990s (Naím 2018; Rogoff 2019). In these and other countries there is mounting concern about the fragility of legal institutions, democracy, peace, and security. Very much like their forebears, Latin American authoritarian governments have learned to manipulate law and legal institutions for political gain. The new twist, however, is their ability to use a democratic facade to mask their destruction of the mechanisms which might dislodge them from power. Instead of showing open disdain for lawyers and the legal system, suppressing law schools or reducing the number of lawyers to thwart any challenge to their power, some of these governments have instead co-opted legal education, increasing the number of law schools, and seizing control of legal institutions and even bar associations (Richter 2015; Gómez and Pérez-Perdomo Vol 1, ch 22). The most recent example of this tactic can be found in Venezuela, where in 2003 the government created the Universidad Bolivariana with law programmes in different parts of the country whose explicit goal and curriculum is to train future bureaucrats and judges who will defend the Chavista revolution (Pérez-Perdomo 2018; Gómez and Pérez-Perdomo Vol 1, ch 22). Contemporary regimes in countries such as Argentina, Brazil, Bolivia, Ecuador, Peru and Venezuela have also engaged in different forms of political manipulation (Helmke 2014; Aguiar-Aguilar 2020), packing the courts with political operatives and

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  33 ideologically driven judges who not only bow to the political establishment but also serve as instruments to abuse judicial review and erode democracy (Landau and Dixon 2020). Massive public corruption has also infected Latin America, notably during the first two decades of the twenty-first century. This is not to say that clientelism, influence peddling, and other corrupt behaviour did not occur in the past, but then states lacked adequate anti-corruption laws and the resources to enforce them. By contrast, the parade of recent anti-corruption cases has involved a wide array of perpetrators and accomplices, ranging from heads of state and members of their inner circles (Perez Molina in Guatemala, Toledo in Peru, Martinelli in Panama, Menem in Argentina, Lula Da Silva in Brazil, Peña Nieto in Mexico) to leaders of multinational corporations (Marcelo Odebrecht, Paulo Salim Maluf, and Eike Batista in Brazil), international sports organisations (Conmebol), high-ranking judges, corporate lawyers (Panama papers), NGOs (Agora in Brazil) and other members of civil society. In addition to the financial harm that corruption inflicts on state institutions, the private sector, and society at large, its effect on the Latin American legal professions has been particularly significant (Gonzales Mantilla 2018a). Fortunately, all not is lost. A growing number of Latin American lawyers have taken a leading role in efforts to resist manipulation by the powerful and the mounting threats to democracy and the stability of the legal system. These lawyers have not only deployed their expertise by performing the traditional role of counsel but have also engaged more broadly as activists and policy advocates pushing for legal reform, better regulation, the protection of collective rights, the integrity of legal institutions, and the values of the legal professions. The growing concern about corruption, for example, has prompted a debate about professionalism and ethics in the context of law practice and legal education. Two examples are the initiative spearheaded by the Department of Judicial Cooperation of the Organization of American States, and the Anti-Corruption Initiative for Latin America supported by the Cyrus R Vance Center for International Justice. As a result of these and other efforts, Latin American lawyers have extended their activities beyond those narrowly associated with their professional occupation and have taken a prominent role in other areas of public concern. These developments have also had an impact on the training of future generations of lawyers and the relationship between lawyers, the legal system and the larger society. II.  THE APPARENT PAROCHIALISM OF LATIN AMERICAN LAWYERS

Globalisation refers to interdependence, integration and convergence among peoples, governments, and societies. The word was coined to describe the flow of trade, capital, technology and labour (Giddens 1999) but later expanded to include virtually any human activity. Globalisation is usually presented as a fait accompli: one can embrace or reject it but not change its course. Since globalisation is also equated with progress and expanded economic opportunities by business leaders, there is a fear that those who do not embrace it risk being left behind. Lawyers have not been spared by the globalisation discourse (Henderson 2007; Wilkins et al 2017), which argues that law and lawyers need to respond to the inevitable interconnectivity of modern societies and the increased global flow of goods, services and information (Silver 2009–2010). Even though globalisation is often described as an auspicious development (de la Torre et al 2014), the erasure of national barriers and the limitless interconnectivity also present an incentive to engage in harmful activities (Friedman et al 2011). The same technological innovations that enable a medical doctor in New York to treat patients in rural Peru also

34  Manuel A Gómez allow human trafficking networks to operate undetected by the authorities. Similarly, the technological platforms that permit end-to-end encrypted monetary transactions may also facilitate international smuggling. Given their roles as ‘symbol traders’ (Cain 1994), brokers, interpreters and operators of the legal system (Dezalay and Garth 2016), lawyers participate in both the good and the bad facets of globalisation. They lend their expertise to facilitate transnational commerce, foster creativity, and advocate for newly developed rights. Lawyers also play a key role in devising and carrying out legal strategies to protect society from new global harms. In order to perform these tasks, lawyers have to learn about other legal systems, disciplines, languages and cultures. Simply put, they have to globalise. Since the practice of law is commonly viewed as ‘an archetypal national professional occupation’ (Gómez 2021), the globalisation of lawyers might seem like a radical departure from tradition, not just a minor adjustment. A global lawyer is depicted as one who has received legal training in or is frequently exposed to legal issues involving the laws of more than one country, can function in more than one language, and has experience representing international or foreign clients, but ‘the world is not neatly divided between globalized and non-globalized law, or between fully globalized and fully domestic lawyers’ (Gómez and Pérez-Perdomo 2018: 5). With the exception of those working for international law firms (ie Big Law), large multinational corporations, NGOs and international agencies, Latin American lawyers are often said to lag behind when it comes to globalisation (Fuentes-Hernández 2002). This is generally attributed to tradition-bound legal education (ibid; Montoya 2010). Latin American law schools still require students to take courses on Roman law and legal philosophy instead of, say electronic commerce or international sales. However, a small number of law schools incorporate interdisciplinary, foreign or transnational topics in their curricula and hire professors with legal degrees from prominent US and European universities and international experience (Gómez 2019). And a growing number of Latin American universities are seeking to forge alliances and enter into cooperation agreements and promote faculty and student exchanges with foreign universities. The Law Schools Global League (LSGL) is a prime example. It includes a group of elite Latin American law schools such as the Fundação Getulio Vargas (FGV) from Brazil, Universidad de Los Andes (Uniandes) from Colombia, and the Instituto Tecnológico Autónomo de México (ITAM) from Mexico.1 LSGL was created in 2012 by a small group of law schools who shared a ‘commitment not only to the globalisation of law, but also to integrating global law in their teaching and research’.2 Its goals include ‘fostering academic debate on the impact of globalized law, and creating research agenda for this purpose’ and ‘encouraging academic debate on the impact of globalized legal education’.3 At the time of writing, LSGL had 30 members from 23 countries. The prospect of an interconnected or even borderless world that features cutting-edge technological innovations, commerce and prosperity justifies the ambition of law and lawyers to reap the benefits that becoming increasingly global offers. The push for globalisation by Latin American lawyers is also an appropriate response to the new risks and intensifying crises and vulnerabilities of a world without barriers, such as terrorism, human trafficking, corruption, and natural and manmade disasters. Over the course of the last decade the corruption scandals noted above have escalated across the region, involving judges, prosecutors, and other



1 See 2 See

lawschoolsgloballeague.com/about-lsgl/members. lawschoolsgloballeague.com/about-lsgl/about.

3 ibid.

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  35 legal professionals. Perhaps the largest, concerning the Brazilian construction conglomerate Odebrecht, has ramifications in at least 15 countries in Latin America and elsewhere. The discovery, in 2014, of a sophisticated bribery scheme of almost US$1 billion caused shockwaves around the world, revealing the complexity of contemporary corruption and the inability of the national legal systems to fight it effectively. The Odebrecht affair and similar cases like those involving Eike Batista and Paulo Maluf in Brazil and Emilio Lozoya in Mexico have inflicted great damage not only on the Latin American public and private sectors but also on the justice system and legal professions. It was therefore not surprising that spokespersons from bar associations and NGOs and even government officials issued a call to arms. The most visible efforts entailed strengthening national codes of professional conduct or adopting new ones and raising domestic anti-corruption policies and legislation to international standards. Similar initiatives have emerged elsewhere, since corruption has become one of the greatest global harms of our times (IBA 2013). At the same time, fighting corruption has generated a great deal of work for lawyers, involving countless legal proceedings, legislative hearings and new laws and regulations. Latin American lawyers have been among the first responders to the crisis of the business sector caused by the COVID-19 pandemic. A surge in legal disputes has made lawyers, courts and other dispute resolution fora busier than ever. Lawyers have also been called upon to assist governments in drafting emergency legislation, ensuring access to justice through the delivery of technology-assisted legal services, virtual hearings and online sharing of documents, and coordinating law enforcement strategies. Legal professionals are also protecting vulnerable citizens who have fallen victim to government abuses, predatory business practices, and other threats to their individual liberties and human rights. The physical isolation measures imposed worldwide to slow the spread of the virus have impeded the ability of people to travel, appear in court, or engage in other face-to-face interactions central to the functioning of the legal system. Although globalisation and the related phenomenon of the transnationalisation of law have become increasingly relevant in recent decades (Gómez 2021), their importance must be kept in perspective. The pervasive impact of globalisation does not require that every aspect of the law be retrofitted to respond to it or that all lawyers become globalised. Important parts of society and the legal system can still benefit from traditionally trained legal professionals who look inward rather than outward. That a significant number – perhaps the majority – of Latin American lawyers practise only domestic law and that the curricula of most regional law schools remain focused on domestic law does not necessarily mean they are inadequate and obsolete. Not all Latin American lawyers need to be equipped to practise globally; and even when the global connection seems vital, the interplay between globalisation and legal practice is contingent upon different factors. Some legal fields or practice areas, such as international arbitration, international human rights advocacy, or international maritime trade, are obviously more influenced by globalisation than family law (except for international adoption or custody disputes and the like) or domestic litigation. Nevertheless, even the latter are not entirely shielded from foreign influence. Lawyers are also fragmented along socio-economic and demographic lines, making any classification even more difficult. For example, whereas elite lawyers (eg Big Law or corporate lawyers) are more likely to be globalised than their non-elite colleagues (eg a generalist solo practitioner), there are also non-elite lawyers (eg human rights advocates, international union representatives) for whom the global element is essential to their professional occupations. Depending on the country, lawyers might also be segregated among ethnic and other lines, which obviously has an impact on other dimensions of the profession, including legal education.

36  Manuel A Gómez The commonality among contemporary Latin American law curricula is largely explained by their shared institutional histories and – to a certain extent – their colonial past, which connects them with the imported European legal systems. As a result, the traditional Latin American law curricula have always been infused with comparative and transnational elements. Roman law and public international law, two staple courses still widely taught throughout Latin America, exhibit strong similarities across countries in terms of scope, structure and sometimes even bibliography (consisting of classical works by European scholars and commentators). Interestingly, only Roman law (along with canon law) is a vestige of the colonial curriculum, because public international law was incorporated, alongside constitutional law in the post-independence era (nineteenth century), after legal education was re-aligned to train high public officials instead of legal practitioners (Pérez-Perdomo 2007: 44). Other standard bundles of courses found across the region include civil law (persons, property, contracts, torts, family, and succession), civil procedure, commercial law, and criminal law, although there are national differences, mainly derived from the specific content of the individual national laws. With some obvious differences because Latin American states are not part of a federation, this resembles what we see in countries such as the United States, where state law differs in detail but shares common principles and features. Furthermore, it is not uncommon for many code-based courses to be supplemented by commentaries from prominent French, Spanish and Italian scholars, opening the minds of future lawyers to laws and legal institutions of other times and places. It would not be unusual for a Colombian lawyer to learn property law from an Italian treatise also used by law professors in Argentina, Mexico or Peru. Many aspects of domestic law prevailing in Latin America and taught in law schools are an adaptation or re-interpretation of classical foreign (ie European) legal concepts and principles transplanted into local legal systems. Law students often first encounter the law through the lens of both foreign and national legal scholars, whose work they are required to learn and memorise. The pedagogical strategy of delivering content through lectures by the professor, to which the students passively listen, is common in civil law tradition countries. As I explain in the next section, however, there is a recent trend among elite Latin American law schools to embrace the Socratic method and other pedagogical strategies common in the US. Law schools represent just one channel for foreign elements to penetrate a legal system. Comparative or international legal concepts also permeate local law through legislation and court decisions, rendering the alleged parochialism of Latin American legal professionals and their legal education more apparent than real. The universal foreign or comparative understanding of law has always been present throughout the region, both as a result of the common nation building efforts of the nineteenth century and, to a certain extent, the continent’s colonial past, which arguably had a beneficial side effect of enabling Latin American lawyers to appreciate the importance of comparing and transplanting legal institutions. This foundation has also helped Latin American lawyers to communicate more effectively, work with those trained in other Latin American legal systems, and internalise the nuances of different legal cultures. Far from limiting their understanding of the rest of the world, it has allowed them to appreciate how foreign legal concepts originate, evolve, and gain acceptance. What appears to be purely domestic law might in fact be transplanted or at least based on foreign legal concepts. Because these are often common to several countries, they serve a unifying or harmonising function. This, together with the increased capacity of lawyers from one Latin American country to be able to understand the legal concepts of another are further benefits of Latin America’s shared historical past. Paradoxically, as in many other parts of the world, the national regulations of the legal professions have kept the practice

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  37 of law a protected monopoly, accessible only to those who receive formal training in each country or meet the requirements established by the local bar association, the highest court or a government agency. In some countries like Brazil, there is even a qualifying professional exam for being admitted to legal practice (Bonelli and Fortes Vol 1, ch 19; Gómez and Pérez-Perdomo 2018), similar to what occurs in most US states. The highly selective nature of the Brazilian bar exam is demonstrated by the fact in 2010–14, the average pass rate was merely 17.5 per cent (Abel Vol 1, ch 44), which is significantly less than in the US (Hansen 2016; NCBE 2020). In any case, the common understanding of law among Latin American lawyers resembles what proponents of globalisation are promoting and shows that the lines between domestic and global, national and transnational, are blurred and perhaps less significant than some have imagined. In sum, the shared historical experience has meant that the transnational or global interconnectivity of law and lawyers has been always present, albeit to different degrees. III.  LAW STUDENTS AND SCHOLARS AS PILLARS OF THE LEGAL PROFESSIONS IN LATIN AMERICA

Law students and legal scholars are frequently overlooked in the literature on Latin American lawyers. Their importance, however, is paramount for understanding the evolution of legal professionals in the region (Pérez-Perdomo 2009; 2014; 2015a; 2015b; Fix-Fierro 2014). Law students are the raw material for the next generation of lawyers. In all Latin American countries, a law school diploma is required to practise law. In some, law graduates have to fulfil additional requirements, such as an internship (Villalonga Vol 1, ch 20; Colombia), or pass a professional examination (Bonelli and Fortes Vol 1, ch 19); but in most jurisdictions, universities are the main gatekeepers of the legal profession and thus the guarantors of the monopoly of lawyers. Law schools were among the first university departments established in the Americas by the Spanish colonisers during the sixteenth century (Pérez-Perdomo 2014). In 1538, the Universidad de Santo Domingo was founded in today’s Dominican Republic. The next two were the Universidad Nacional Mayor de San Marcos in Peru and the Real y Pontificia Universidad in Mexico, both founded in 1551. As the Spanish crown expanded its possessions throughout the Americas, universities began offering Roman law (designated as civil law) and canon law (Pérez-Perdomo 2004). Between 1586 and 1791, at least 11 university law programmes were established from Cordoba (Argentina) all the way up to Guadalajara (Mexico) (ibid). That early investment in education revealed the importance the Spanish crown placed on law and lawyers, by contrast with the Portuguese crown, which did not establish a single law school in Brazil during that period, choosing to maintain the colony’s dependence by requiring all Brazilian lawyers to receive their legal education in Coimbra (ibid). The first Brazilian universities were created only with the drafting of the first constitution in 1822, soon after independence (Falçao 1978; Bastos 1978; Pérez-Perdomo 2007). Four and a half centuries later, the landscape of law schools is very different. The incredible growth and massification of higher education throughout Latin America since the late twentieth century has produced a plethora of law schools that differ in organisational structure, size, and characteristics. The overall number of law schools in a country can be correlated to the population, as we can see in the case of Mexico (Pérez-Hurtado Vol 1, ch 21) and Brazil (Bonelli and Fortes Vol 1, ch 19), where the number of law schools increased from 93 to 1,954 and 130 to 1,171 respectively during the last three decades (CEEAD 2020). Although the number of law

38  Manuel A Gómez schools remains significantly lower in other countries (Böhmer Vol 1, ch 18; Villalonga Vol 1, ch 20; Gómez and Pérez-Perdomo Vol 1, ch 22), the regional trend has been toward growth from several hundred three decades ago to several thousand today. The contemporary landscape of Latin American law schools is also more heterogeneous, ranging from traditional reputable public or elite private universities to the smaller regional law schools and the myriad of independent for-profit law schools that appear at a record rate of one per week in some countries. The law schools in the third category, which have become extremely popular in some of the largest legal markets like Mexico (Pérez-Hurtado Vol 1, ch 21), Peru (Gonzáles Mantilla 2018a) and Brazil (Conti and Gómez 2018; Bonelli and Fortes Vol 1, ch 19), offer a very different education – arguably of poor quality – from that provided by traditional law schools. Students attracted to these for-profit schools are less interested in a good legal education than a formal credential that can help them secure a job promotion (Gonzáles Mantilla 2018b). These law schools are generally referred to disparagingly as ‘rubber ducky schools’ (escuelas patito) or ‘garage universities’ (universidades garaje) in Mexico (Vargas Hernández 2013), ‘bamba universities’ (universidades bamba) in Peru, and ‘nickel-hunting’ law schools (faculdades caça-níqueis) in Brazil (OAB 2007). Even though there are no reliable data regarding the socio-economic background of the students who attend these for-profit law schools compared with those at traditional prestigious universities, the perception is that the demographics of the different categories of law school might also reflect the stratification of the legal profession and society in general. This resembles the stratification of US law schools that resulted from the proliferation of part-time evening law schools, unaccredited by the American Bar Association, during the first half of the twentieth century (Abel 1989; Finnegan 2005). Another type of Latin American institution that emerged during the first decade of the twenty-first century is the public law school created to train future government bureaucrats and judges, whose curricula emphasise ideology. These schools admit large numbers of students and have low standards. Unfortunately, they have also added large numbers of lawyers to an already crowded universe of legal professionals. These law schools – whose most vivid examples can be found in those created in 2003 by the Universidad Bolivariana of Venezuela – illustrate the way the state uses legal professionals to assert control and gain political allies, subverting their traditional role as promoters of the rule of law and defenders of institutional stability (Richter 2015; Gómez and Pérez-Perdomo Vol 1, ch 22). At the other end of the spectrum, we find a much smaller cohort of elite – mostly private – law schools that attract high performing students interested in obtaining a good quality modern legal education. They focus on corporate, transnational and other novel legal areas. The push for globalisation and the rising influence of the US on legal education and legal professions in Latin America have prompted these law schools to adopt the curricula and pedagogical strategies of US law schools, such as the Socratic method, and offer instruction in English. But unlike other parts of the world, where US influence might be perceived as a form of American imperialism imposed from the north, the initiatives I am describing have originated not from abroad but rather from the Latin American schools themselves. It is true, though, that mainly during the 1960s, there were some attempts by US entities like the Ford Foundation and the US Agency for International Development (USAID), to influence and strengthen legal education in Latin America under the law and development banner (eg the International Legal Center established in 1966) (Merryman 1977). Nevertheless, the scope of these interventions was limited to a handful of countries and institutions, and the promoters themselves deemed the projects a failure (Lowenstein 1970; Trubek and Galanter 1974; Merryman 1977; Gardner 1980, Lynch 1981; Merryman 2000).

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  39 As some recent efforts show, Latin American universities are the ones trying to get closer to their US counterparts, not the other way around. One example is the certification sought by the Pontifical Catholic University of Chile from the Association of American Law Schools (AALS), which the Chilean institution has used to show its alignment with a modern, globalised model of legal education.4 Other law schools, like the LSGL members mentioned earlier, have sought international partnerships and launched initiatives to offer students experiential learning opportunities through increasingly popular international moot court competitions. Partnerships between Latin American and foreign law schools involve faculty exchanges and other joint activities. Student exchanges with US schools are more difficult to implement because law is an undergraduate degree in Latin America. As a result, US law students have little or no incentive to participate in exchange programmes with their – usually much younger – Latin American counterparts, and US law schools are less interested in expanding their operations toward their neighbours in the south than in attracting foreign students (who pay full tuition) (Pue 2001). The growth of legal education in Latin America has also increased diversity in the legal profession. Not only women but also other traditionally underrepresented groups now form a significant percentage of law students. Nonetheless, the number of female lawyers in practice tends to diminish as they move up the professional ladder.5 In certain segments, like Big Law or the rapidly growing practice area of international arbitration, there have been recent initiatives to increase the hiring, retention, and promotion of women as a result of various factors, including pressure from the foreign headquarters of international law firms and corporate clients and a shift in the organisational culture of the firms themselves. Other initiatives include quotas for students from racial minorities and economically disadvantaged families in Brazil and law schools that serve predominantly indigenous populations in Mexico. Law schools in this latter category are designed to educate lawyers to practise in a multicultural environment and handle legal issues relevant to indigenous peoples and their communities. In six Mexican public universities,6 such a curriculum has been created with the support of the Centro de Estudios sobre la Enseñanza y Aprendizaje del Derecho (CEEAD), an independent research centre founded in 2008 to transform legal education in Mexico.7 The result of these efforts is yet to be seen, but the idea of strengthening the infrastructure of higher education to benefit indigenous populations in Latin America has garnered broad international support from international organisations and other key actors (Didou-Apetit and Jaramillo y Escobar 2014). Notwithstanding these laudable initiatives, the socio-economic stratification of lawyers persists. Inclusion and diversity are seen as strengthening democratic society (Gonzales Mantilla 2018b), but efforts to diversify legal education and make it more accessible cannot overcome the deep inequalities of Latin American societies, which are reflected in the socio-economic stratification of law schools and legal professionals. Although a university diploma can facilitate social mobility, the law school years also serve as an opportunity to strengthen the social networks among elite students and preserve the insularity of close-knit groups. Moreover,

4 See derecho.uc.cl/es/noticias/derecho-uc-en-los-medios/14791-prestigiosa-entidad-de-eeuu-en-derecho-apruebacon-distincion-a-esa-carrera-dictada-por-la-puc. 5 See www.theiilp.com/resources/Documents/Diversity_Inclusion_in_the_Latin_America_Legal_Profession-2017_ Event_Report.pdf. 6 See www.kas.de/es/web/ppi/laenderberichte/detail/-/content/lineamientos-para-el-fortalecimiento-de-las-capacidadesde-las-universidades-indigenas-en-mexico. 7 See https://ceead.org.mx/quienes-somos.

40  Manuel A Gómez the efforts of interest groups like the Ordem dos advogados de Brasil (OAB) to preserve entry barriers to the legal profession have been blamed by the National Association of Bachelors of Law for perpetuating elitism in the legal profession, violating ‘the free exercise of a profession, equal protection, and the principle of human dignity’ (Bonelli and Fortes Vol 1, ch 19: 394). As indicated above, the obstacles that prevent Latin American law schools from becoming more egalitarian and inclusive are not just their own structural shortcomings but also the larger social, political and economic realities. However, this has not stopped law schools from expanding their mission to serve society by advancing public interest causes through policy research and advocacy and facilitating access to justice through the representation of indigent and other clients by their legal clinics, as can be seen in both Argentina (Böhmer Vol 1, ch 18: 381, 388) and Chile (Villalonga Vol 1, ch 20: 418). Clinical legal education is not new to Latin America. The first efforts took place during the 1960s in Argentina, Colombia and Brazil with support from the Ford Foundation and USAID. About the same time, law schools in Venezuela began organising community service programmes to address the legal needs of the public (Londoño Toro 2015). The law professors and practitioners who led these initial efforts created a stratum of legal professionals devoted to the legal needs of those facing poverty and other challenges. The next few decades witnessed an expansion in the size and scope of clinics, as law schools forged partnerships with NGOs, government agencies, foundations and other civil society institutions, which helped them obtain the resources, training and administrative infrastructure to undertake more ambitious endeavours. A significant development was the integration of clinical legal education into the law school curriculum, which gave students and professors valuable opportunities to combine theory and practice and make experiential learning the core of the law school career. University legal clinics evolved from the small and modest community law centres of the 1960s and 1970s into influential robust public interest litigation units equipped to bring a wide range of cases in fora ranging from local courts to international tribunals, in areas including human rights, consumer protection, environmental protection, discrimination, labour and employment, criminal justice, and family law (Londoño Toro 2008; Gómez 2018). Even though the traditional clinical model has focused on the representation of individual cases, some schools have recently devoted resources to class actions and strategic or impact litigation (Gómez 2019). Courts and government agencies from around the region have seen an upsurge in the number of cases brought by legal clinics to address issues of great social importance, ranging from gender discrimination to environmental degradation and the rights of displaced populations. Latin American legal clinics have collaborated both within and beyond national boundaries. An example of the former is Colombia’s National Association of Clinics and Legal Assistance. A regional collaboration is the Latin American Network of Legal Clinics, with 18 law school members from Argentina, Chile, Colombia, Ecuador, Mexico, and Peru. Some law schools have entered into cooperation agreements with international partners from the US. Latin American universities have also expanded beyond pedagogy to nurture academic and applied research. A subset of well-funded universities are actively engaged with other university departments, government agencies, foundations and think tanks, including Institution de Investigaciones Jurídicas of the Universidad Nacional Autónoma de México (IIIJ-UNAM), ITAM and the Centro de Investigación y Docencia Económicas (CIDE) in Mexico, Uniandes in Colombia, Universidad Metropolitana (Unimet) in Venezuela, and the Fundaçao Getulio Vargas-São Paulo (FGV-SP) Law School in Brazil. Recent decades have also witnessed the

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  41 establishment of standalone institutions that collaborate with universities, including the Facultad Latinoamericana de Ciencias Sociales (FLACSO), the Centro de Investigaciones y Estudios Superiores en Antropología Social (CIESAS), the Consejo Latinoamericano de Ciencias Sociales (CLACSO), DeJusticia, Laboratorio Venezolano de Violencia, Consejo Latinoamericano de Derecho y Desarrollo, Laboratório de Analise da Violência (LAV), and the Red Latinoamericana de Derecho y Sociedad (RELADES). They share two common traits: their research is interdisciplinary, empirical, and socio-legal; and legal scholars affiliated to local and foreign law schools are among their most important members. They contribute to the process of creating law ‘by proposing, drafting, advising, and consulting with lawmakers and other public officials’ (Gómez 2019), a role that has maintained Latin American legal scholars’ close relationship to the state throughout history (Pérez-Perdomo 2014; Jaksic 2001; Obregón 2017; Coates 2016). With a few notable exceptions (Pérez-Perdomo 2009; 2014; 2015a; 2015b; Fix-Fierro 2014), legal scholars have received little attention, even though policy makers and litigants usually rely on arguments espoused by legal scholars to support their positions. Legal scholars often find themselves at the crossroads between law schools and research and policy-oriented institutions and between their local colleagues, practitioners, policymakers, government officials and their transnational professional networks. It is precisely because of these unique positions that legal scholars are among the most important agents in the evolution of legal knowledge, connections among legal systems and, ultimately, the globalisation of law. Legal scholars were instrumental in the nation-building efforts undertaken throughout Latin America during the nineteenth century. These included the drafting of constitutions and legislation and the design of legal institutions, which would become the backbone of the newly formed republics. The then-novel constitutional texts adopted in France, the US and Spain, which to varying degrees served as models for the young Latin American nations, were brought to the local scene by legal scholars who were routinely appointed to drafting commissions and other key roles. The influx of foreign information gave them an opportunity to compare, choose, reject or adapt what they considered adequate to the reality of each country. As Pérez-Perdomo (2004) aptly points out, the lawmaking process was seen as a serious political and intellectual enterprise and not a mere transplantation of foreign law into the local scene. Foreign legal texts were imported, analysed, and used to inform the policy decisions made by each nation, and that practice – which is not unique to Latin America – continues today. Conversely, Latin American legal scholars were instrumental in the development of modern public and private international law, as can be seen from the contributions of Cuba’s Antonio Sánchez de Bustamante y Sirvén, who promoted the unification of private international law in Latin America through ideas that led to the drafting of a pan-American treaty signed by 20 states in 1928. Another important actor was Argentina’s Carlos Calvo, after whom the famous non-intervention doctrine is named. A more recent figure is Tatiana B de Maekelt, who made noteworthy contributions to the harmonisation of private international law through her involvement with the Organization of American States and other regional institutions. This latter aspect – the participation of legal scholars in regional and international institutions – is particularly important for the globalisation of law, since it offers them a unique opportunity to influence policy making and reshape the legal system. In this sense, legal scholars are agents of globalisation or at least have a role in describing the globalising process (Halliday and Osinsky 2006). Being interconnected is second nature to them. Scientific knowledge is forged, communicated and transformed in large part through exchange and collaboration among scholars belonging to different legal systems, and Latin American legal scholars are no exception.

42  Manuel A Gómez IV.  LATIN AMERICAN LAWYERS HERE AND THERE

The interconnectedness of law assumes movement across legal systems. As we can see in the case of foreign-inspired domestic law and other types of legal transplants, no physical movement is necessary for the lawyers of one country to become versed in the legal principles that govern another. Foreign law and foreign legal principles have been part of Latin American legal systems and legal education for many years, from the incorporation into domestic law – during the codification period of the nineteenth century – of European elements taken from or inspired by the laws and legal institutions of Italy, France, Spain and Germany, to the more recent embrace of US legal teaching techniques like the Socratic method and moot court competitions and legal concepts such as plea bargaining and punitive damages. Despite the heavy Spanish influence during colonial times, the codification period was marked by widespread criticism and rejection of Spain, especially its legal system. With the exception of the Constitution of Cadiz of 1812, which is regarded by some as ‘a foundational document in Latin American constitutionalism’ (Mirow 2015), ‘the criticism of Spanish legislation was commonplace from independence to the codification’ (Pérez-Perdomo 2006). By contrast, the French Civil Code of 1804, better known as the Napoleonic Code, was an important source of inspiration to Latin American legislators (Mirow 2005). The interesting fact is that most of the foreign influence we find throughout the region was not forcefully imposed from abroad, either directly or by proxy, but instead resulted from the efforts of Latin American lawyers to model their institutions on concepts they deemed adequate for their local realities. In any case, the ‘acquisition or transference [of foreign law elements] does not take away the national character [of the Latin American codification efforts]’ (Pérez-Perdomo 2004). The 71 Civil Codes enacted throughout the region between 1816 and 1916 represent an important legislative activity, whose common thread can be explained by the Romanist legal training of the drafters (ibid; Schipani 1992). To this day, one can find legal provisions in the Civil Code of one Latin American country that are reproduced verbatim in a neighbouring country and can be traced back to the French Civil Code of 1804 or another European source. As a result, a Bolivian lawyer need not to look beyond her textbook to learn about the contractual principle of good faith or the elements of a contract, as understood in Peru, France, Italy, Spain and most other civil law countries. Such universal knowledge not only has intellectual value but also allows that lawyer to engage more effectively on behalf of a client in a similar legal issue under the laws of any of those foreign countries. Modern communications have facilitated the learning of foreign legal concepts by allowing anyone with an internet connection to obtain the latest information about any legal topic anywhere in the world. Travel now also is easier than ever, so the flow of legal information across Latin American countries is constantly facilitated by professional meetings, conferences and other forms of contact. The interconnectivity can be seen in the activities and projects undertaken by regional networks of law schools like the Asociación Iberoamericana de Facultades y Escuelas de Derecho (Sui Juris), the Red Iberoamericana de Facultades y Escuelas de Derecho (Red Derecho); university partnerships, bar associations (eg Federación Inter-Americana de Abogados), and policy-making bodies like the Inter-American Juridical Committee of the OAS. The movement of legal actors between Latin America and the rest of the world has also increased greatly during recent decades. A growing number of Latin American lawyers seek admission to programmes in the US and elsewhere to deepen their knowledge of foreign law and practice through study or work abroad. One of the most popular choices is to enrol in a masters in law (LLM) programme at a US law school. Unfortunately, the data are scanty in part because ‘law schools are not required to report the proportion of students in LLM and other

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  43 non-JD programs who are international, but evidence indicates that international law graduates may comprise as many as three quarters of all applicants to US law school LLM programs’ (Ballakrishnen and Silver 2019). How many of these international students are from Latin America is unknown, but the perception is that the number is rising. Gaining technical skills, mastering a foreign language, expanding professional networks, and acquiring an LLM or similar degree are not only prestigious in the local Latin American legal and business communities (Silver 2006; Vides et al 2011) but also a requisite for anyone who aspires to advance in a large law firm or work for a prestigious multinational or even a large domestic corporation with international ties, according to recent studies about Argentina (Böhmer Vol 1, ch 18), Colombia (Lamprea and Díaz Chalela 2018), Chile (Villalonga Vol 1, ch 20), and Venezuela (Gómez and Pérez-Perdomo Vol 1, ch 22). Previous generations of Latin American lawyers had a strong preference for pursuing graduate studies in Spanish, French or Italian law faculties because of the obvious historical ties and cultural affinity with those countries, which had similar educational systems and common legal principles. In the last three decades the US has become the premier destination of Latin American lawyers (Vides et al 2011). One of the main incentives to go abroad is the rising demand for foreign trained lawyers, mostly in the Big Law sector, generated by the growing presence of US and other multinational corporations in the region and the volume of international trade. Simply put, ‘multinational businesses consider global skills crucial’ (Silver 2013), and a foreign legal education is one of the preferred ways for acquiring those global skills. The economic, political and strategic importance of the US to Latin America and the identification of US legal practice with modernity are also important. To many Latin Americans, a US-trained lawyer is the symbol of a globalised lawyer. The point to be stressed here is that a foreign credential from a reputable US or European university is a symbol of prestige and a source of cultural capital that offers material benefits and other advantages. Another cohort of Latin American lawyers are rather motivated by the pedagogical innovation, academic rigour, and pragmatism of legal education in the United States (Gómez 2019), while others use the opportunity of studying abroad as springboard to emigrate and establish themselves in the legal services market of other countries (Silver and Ballakrishnen 2018). Showing their entrepreneurial character, US law schools have created programmes designed for foreign lawyers (Gómez 2018), but those are not necessarily considered a priority compared to their main goal of offering a legal education to American students. One incentive for the US law schools is the potential to reap significant revenues at a relatively low institutional cost (Silver 2006; Silver and Ballakrishnen 2018). Whereas an increasing number of US law schools now recognise the value of having international students and showcase their presence as a sign of ‘internationalization of the school’s educational atmosphere and experience’ (ibid), the importance given and resources devoted to foreign LLM students still tend to be marginal by comparison with those invested in JD students. There are no data about which areas of US law are most attractive to foreigners, in part because schools are not required to report these details to the American Bar Association. Nevertheless, it appears that the majority of Latin American lawyers who enrol in foreign LLM programmes in the US and other major jurisdictions are interested in business, technology, arbitration and other transnational fields. Getting international experience is also attractive to academics, although in much smaller numbers than practitioners. The high cost of studying abroad is the greatest obstacle (Vides et al 2011), especially if one considers the significant difference between the price of legal education in Latin America and the US and the limited availability of scholarships and other forms of financing. Fortunately, countries like Chile, Brazil and Mexico have government-sponsored and privately funded scholarships, but most are conditional on the

44  Manuel A Gómez recipient returning home to practise. Since the practice of law is relational, depending on personal networks, most Latin American lawyers are eager to go home after finishing their foreign degrees or internships. As noted above, holding a graduate degree from a reputable US law school or having been admitted to practise in New York or California confers professional prestige, benefiting the holder economically and socially (Gómez 2021). A foreign graduate diploma is generally a prerequisite to becoming partner or attaining a leadership position in the corporate legal sector (Gómez and Pérez-Perdomo 2018). A foreign law degree is similarly valuable to legal academics and their universities (Gómez 2021). Latin American universities proudly display the international credentials and publications of their foreign-trained faculty. The political, economic and social crises that have plagued some Latin American countries – most notably Venezuela – during the last decade or two have had an impact on the typically transitory relationship between Latin American lawyers and the foreign countries where they studied or did an internship. The fear that the situation back home might not be professionally attractive and the massive deterioration in living conditions have motivated a growing number of Latin American lawyers to seek to stay abroad after completing their studies (Capriles and Pérez-Perdomo 2019). Numerous obstacles confront a prospective émigré lawyer. In addition to cultural barriers, foreign lawyers face fierce competition from locals when entering their professional market. There are also limitations imposed on foreign attorneys by bar associations, immigration rules, and other hurdles (Gómez et al forthcoming). Nevertheless, an increasing number of Latin American émigré lawyers are practising in the US. The most dramatic example is Venezuela, whose economic collapse has provoked an unprecedented exodus of lawyers, among millions of other citizens (ibid; Capriles and Pérez-Perdomo 2019). Many of them have relocated to Bogota, Buenos Aires, Mexico City, Miami, and Madrid (Capriles and Pérez-Perdomo 2019). Some have been able to integrate fully into the legal sector by securing jobs in multinational law firms, in-house counsel departments or international agencies, without having to obtain other degrees. Others have returned to school in paralegal, LLM or JD programmes. Many émigré lawyers have been forced to accept less attractive jobs as compliance officers, clerks or real estate agents (Gómez et al forthcoming). A comparable Latin American legal diaspora were the Cuban émigré lawyers who arrived in Florida during the 1960s. The Florida Supreme Court created a special mechanism that allowed these lawyers to enrol in local law schools so they could become eligible to take the bar examination. However only a small number of Cuban lawyers were able to benefit from this measure. The majority changed occupations, and those who remained involved in activities that could be regarded as legal practice stayed in the shadows of the local legal community. No subsequent group of émigré lawyers to Florida or any other US jurisdiction has been offered similar treatment. Émigré lawyers to Spanish-speaking countries face no language barrier. Furthermore, as noted earlier, the fact that those countries also have a shared legal tradition has produced some harmonisation, even if only at the most basic level. As a result, lawyers from one country are able to understand at least the general principles of another. Nevertheless, the fact that there are some commonalities does not mean that Latin American lawyers can move freely and practise law in neighbouring countries. Licensing requirements and other restrictions imposed by the regulatory authorities to preserve the local monopolies of legal practice make it difficult for any foreigner to practise law there, as we see in countries like the US. Some countries, like Panama, impose a nationality requirement, while others demand that a foreign lawyer

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  45 pass a series of comprehensive examinations in ‘national’ topics, including constitutional law, procedural law, criminal law, and civil law. Sub-regional free trade agreements involving some Latin American countries and the US (eg the Dominican Republic-Central American Free Trade Agreement, or DR-CAFTA) have raised this issue and attempted to lower the restrictions regarding the qualifications of foreign lawyers to offer legal advice and practise outside their home country (Méndez 2007), but the national limitations are often stringent. Whereas the most visible flow of lawyers is from South to North, there are also cases of US and European lawyers relocating to Latin American jurisdictions, usually tied to the operations of multinational corporations or global law firms in the region. We can see this, especially in industries such as hydrocarbons, mining, telecommunications, pharmaceutical and agriculture, where foreign companies have been the mainstay for decades. Nevertheless, these lawyers face the same obstacles as lawyers from other Latin American countries, so they play little or no role in handling local legal matters. Brazil is a good example of a country that offers numerous business opportunities to multinational companies but remains strongly protective of its legal practice monopoly through stringent regulations promulgated by the Ordem dos Advogados (OAB) regarding the activities of foreign lawyers in the country (Persky 2011). As a result, the only way foreign law firms have been able to enter Brazil and other Latin American jurisdictions is ‘through local representatives, so-called best friend alliances, mutual referral arrangements with local lawyers, and professional networks like Lex Mundi and Affinitas’ (Gómez and Pérez-Perdomo 2018: 345). Despite their economic dominance and political influence, neither multinational corporations nor Big Law firms have been able to break the monopoly held by Latin American lawyers. Local lawyers have been particularly vigilant and have remained effective gatekeepers. Furthermore, the influx of inbound commercial transactions has motivated Latin American lawyers to become more aggressive in defending their territory and equip themselves to deliver high quality work to meet demand in the fast-growing market for corporate legal services. The fact that a growing number of Latin America-based lawyers have obtained foreign LLM degrees and – in some cases – the qualifications to practise law in US jurisdictions like California, New York and Texas, has also benefited the multinational corporations, which seem to have ample resources to meet their needs. As a result of this interesting dynamic, Latin America has witnessed the evolution of local and regional law firms into multiservice and multi-office organisations with the ‘modern infrastructure, visibility and corporate image, organizational arrangements’ typical of the US and European Big Law markets (Gómez and Pérez-Perdomo 2018: 345). Even though Latin American law firms cannot compete with the largest global law firms in terms of number of lawyers, geographical distribution of offices and total revenue, their ability to handle complex transnational matters and to partner with foreign law firms is second to none and has given rise to a robust domestic Big Law sector with distinctive regional elements (ibid). The strength of some of the leading local corporate law firms in the biggest Latin American countries such as Mexico and Brazil vis-à-vis their US counterparts is inconsistent with the view that there is a neo-colonial dynamic between foreign and local firms of the kind seen in other parts of the world (Sayed and Agndal 2020). The effort to preserve the monopoly of Latin American lawyers is directed against not only foreigners but also other services providers such as accountants, paralegals, and dispute resolution professionals. Globalisation purports to erase national barriers, connect people from different countries, and harmonise the functioning of different legal systems. At the

46  Manuel A Gómez national level, the erasure of barriers has also encouraged interdisciplinary practice; as a result, lawyers have developed an appetite for skills and knowledge in the fields of technology, finance, business, and science. Outsiders have also developed an interest in the legal field: accounting firms seek to enter the corporate legal sector as tax advisors, financial planners, and compliance monitors. The last domain has become especially attractive given the upsurge of corruption-related cases involving multinational corporations operating in Latin America. The transnational dimension of the fight against corruption is so complex that it often requires the involvement of legal professionals, lobbyists, business and strategic advisors, and crisis management teams, working together across different countries. As a result, the lines between financial advice, corporate strategy, political manoeuvring, and the domestic and international practice of law appear to disintegrate. But despite the pressures to raze the professional walls between lawyers and others, the regulations governing the practice of law throughout Latin America still prevent anyone without the proper credential from engaging in a professional occupation. The two traditional elements that define legal professionals in contemporary societies – a credential and a set of functions – are being defended by its Latin American holders more vigorously than ever before. V. CONCLUSION

Latin American lawyers cannot be viewed in a vacuum. As this chapter has shown, their role in the legal system and their relationship to the state and the rest of society are shaped by internal and external forces and infused by a strong common heritage and complex relationship – old and new – with other regions of the world. One of the most recent influences, globalisation, has both positive and negative dimensions. On one hand, globalisation has allowed lawyers from different countries and legal traditions to interact and learn from each other. This has affected not only substantive areas of practice and ways to organise the delivery of legal services but also how Latin American lawyers perform their traditional roles as advocates and interpreters of the legal system as well as new ones, such as activism and transnational advocacy. But globalisation has also posed challenges to the broader society, the practice of law and the collective identity of Latin American lawyers. Ironically, in a world that strives to erase most barriers and encourages lawyers to transcend disciplines and national borders, governments and bar associations are reinforcing the walls that preserve the national monopoly of legal practice. This poses particular problems for Latin American lawyers who have relocated outside the region and foreign lawyers who come to Latin America. Fortunately, the globalisation of law does not depend only on crossing physical boundaries or having a licence to practise law in more than one country. At least in Latin America, there has long been widespread awareness of other legal systems through the history of legal institutions and the transplantation of foreign legal principles into domestic legal systems. The evolution of the legal profession and a host of social, political and economic changes have forced Latin American lawyers to expand their sphere of action, both geographically and functionally. This has transformed legal education, affecting future generations of legal professionals and their relationship to society. Growing uncertainty – economic, political, and social – has challenged Latin American lawyers, but at the same time it has opened opportunities for expanding the scope of their activities.

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  47 REFERENCES Abel, R (1989) American Lawyers (Oxford, Oxford University Press). Aguiar-Aguilar, AA (2020) ‘Courts and the Constitutional Erosion of Democracy in Latin America’ Users Working Paper Series 2020:31, University of Gothenburg. Aupetit, SD (2014) Los Programas de educación superior indígena en América Latina y en México: componentes tradicionales y emergentes (Paris, UNESCO). Ballakrishnen, SS and Silver, C (2019) ‘A New Minority? International JD Students in US Law Schools’ 44 Law and Social Inquiry 647–78. Bastos, AW (1978) ‘O estado e a formação dos currículos jurídicos no Brasil’ in AW Bastos (ed), Os Cursos jurídicos e as elites políticas brasileiras (Brasilia, Câmara dos Deputados). Cain, M (1994) ‘The Symbol Traders’ in M Cain and C Harrington (eds), Lawyers in a Postmodern World: Translation and Transgression (Milton Keynes, Open University Press). Capriles, C and Pérez-Perdomo, R (2019) ‘Los Abogados Graduados en la Universidad Metropolitana de Caracas 2006–2016. Estudio de una Cohorte Profesional en Tiempos de Revolución’ 6(1) Pedagogía Universitaria y Didáctica del Derecho 23–41. CEEAD (2020) ‘Las escuelas de derecho en México, Ciclo académico 2019–2020’. Coates, BA (2016) Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century (Oxford, Oxford University Press). Conti, M and Gómez, MA (2018) ‘Big Law in Brazil: Rise and Current Challenges’ in MA Gómez and R Pérez-Perdomo (eds), Big Law in Latin America and Spain: Globalization and Adjustments in the Provision of High-End Corporate Legal Services (London, Palgrave McMillan) 63–81. de la Torre, A, Didier, T and Pinat, M (2020) ‘Can Latin America Tap the Globalization Upside?’ Policy Research Working Paper (The World Bank, April 2014) elibrary.worldbank.org/doi/pdf/ 10.1596/1813-9450-6837. Dezalay, YM and Garth, B (2016) ‘“Lords of the Dance” as Double Agents: Elite Actors in and around the Legal Field’ 3(2) Journal of Professions and Organization 188–206. Didou-Apetit, S and Jaramillo y Escobar, V (eds) (2014) Internacionalización de la educación superior en América Latina y El Caribe. Un Estado del Arte (Caracas, Instituto Internacional de la UNESCO para la Educación Superior en América Latina y el Caribe). Esquirol, JL (2020) Ruling the Law: Legitimacy and Failure in Latin American Legal Systems (Cambridge, Cambridge University Press). Falçao, J (1978) ‘Os cursos jurídicos e a formação do estado nacional’ in AW Bastos (ed), Os Cursos jurídicos e as elites políticas brasileiras (Brasilia, Câmara dos Deputados). Finnegan, DE (2005) ‘Raising and Leveling the Bar: Standards, Access, and the YMCA Evening Law Schools, 1890–1940’ 55 Journal of Legal Education 208. Fix-Fierro, H (2014) Los Juristas Académicos del Instituto de Investigaciones Jurídicas de la UNAM y las Nuevas Instituciones Democráticas (Mexico City, Instituto de Investigaciónes Jurídicas). Friedman, LM, Pérez-Perdomo, R and Gómez MA (eds) (2011) Law in Many Societies: A Reader (Stanford, Stanford University Press). Fuentes-Hernández, A (2002) ‘Globalization and Legal Education in Latin America: Issues for Law and Development in the 21st Century’ 21 Penn State International Law Review 39–59. Gardner, JA (1980) Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madison, University of Wisconsin Press). Giddens, A (1999) Runaway World: How Globalization is Reshaping Our Lives (London, Routledge). Gómez, MA (2018) ‘Innovaciones en la educación jurídica latinoamericana y políticas públicas en tiempos de globalización’ in GG Mantilla (ed), La Educación Legal como Política Pública en América Latina (Lima, Palestra Editores) 99–118. —— (2019) ‘Legal professionals in Latin America in the 21st century’ in R Sieder, K Ansolabehere and T Alfonso (eds), Handbook of Law and Society in Latin America (London, Routledge). —— (2021) ‘Beyond Borders and Across Legal Traditions: The Transnationalization of Latin American Lawyers’ in P Zumbansen (ed), Oxford Handbook of Transnational Law (Oxford, Oxford University Press).

48  Manuel A Gómez Gómez, MA, Guerrero-Rocca, G and Pérez-Perdomo, R (forthcoming) ‘Globalization Blues: Venezuelan Expatriate Lawyers’. Gómez, MA and Pérez-Perdomo, R (2018) (eds), Big Law in Latin America and Spain: Globalization and Adjustments in the Provision of High-End Legal Services (London, Palgrave Macmillan). Gonzales Mantilla, G (2018a) ‘Lawyers and Globalization in Peru (1990–2014): Challenges in the Shadows’ in MA Gómez and R Pérez-Perdomo (eds), Big Law in Latin America and Spain: Globalization and Adjustments in the Provision of High-End Corporate Legal Services (London, Palgrave Macmillan) 197–228. —— (2018b) ‘La enseñanza del Derecho como política pública’ in G Gonzales Mantilla (ed), La Educación Legal como Política Pública en América Latina (Lima, Palestra Editores) 285–305. Halliday, TC and Osinsky, P (2006) ‘Globalization of Law’ 32 Annual Review of Sociology 447–70. Hansen, M (2016) ‘Bar Fight’ 102(9) ABA Journal 48–55. Helmke, G (2014) ‘The Puzzle of Purges: A New Theory of Judicial Manipulation with Evidence from Latin America’ ssrn.com/abstract=2481064. Henderson, W (2007) ‘The Globalization of the Legal Profession’ 14 Indiana Journal of Global Legal Studies 1. International Bar Association (2013) Guía Anti-Corrupción para Colegios de Abogados: Creación, Desarrollo y Promoción de Iniciativas Anti-Corrupción para la Profesión Jurídica (London, International Bar Association). Jaksic, I (2001) Andrés Bello: Scholarship and Nation-Building in Nineteenth-Century Latin America (Cambridge, Cambridge University Press). Lamprea, E and Díaz Chalela, M (2018) ‘The Rise of Big Law in Colombia’ in MA Gómez and R Pérez-Perdomo (eds), Big Law in Latin America and Spain: Globalization and Adjustments in the Provision of High-End Corporate Legal Services (London, Palgrave Macmillan) 155–76. Landau, D and Dixon, R (2020) ‘Abusive Judicial Review: Courts Against Democracy’ 53 UC Davis Law Review 1313–88. Londoño Toro, B (2008) ‘La Experiencia Clínica y la Reforma de la Enseñanza del Derecho en el Plano Internacional’ Revista de la Facultad de Derecho 299. —— (2015) Educación legal clínica y litigio estratégico en Iberoamérica (Bogota, Editorial Universidad del Rosario) 32. Lowenstein, S (1970) Lawyers, Legal Education, and Development: An Examination of the Process of Reform in Chile (New York, International Legal Center). Lynch, DO (1981) Legal Roles in Colombia (Uppsala, Scandinavian Institute of African Studies and New York, International Legal Center). Méndez, F (2007) ‘RD abre sus puertas a abogados extranjeros para “asesoría” legal’ Diario Libre 8 March www.diariolibre.com/actualidad/rd-abre-sus-puertas-a-abogados-extranjeros-para-asesoralegal-ALDL128459. Merryman, JH (1977) ‘Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement’ 25 The American Journal of Comparative Law 457–91. —— (2000) ‘Law and Development Memoirs I: The Chile Law Program’ 48 The American Journal of Comparative Law 481–99. Mirow, MC (2005) ‘The Code Napoléon: Buried but Ruling in Latin America’ 33 Denver Journal of International Law and Policy 179–94. —— (2015) Latin American Constitutions: The Constitution of Cádiz and its Legacy in Spanish America (New York, Cambridge University Press). Montoya, J (2010) ‘The Current State of Legal Education Reform in Latin America: A Critical Appraisal’ 59 Journal of Legal Education 545. Naím, M (2018) ‘Mexico’s AMLO and Brazil’s Bolsonaro: Very Different … and Very Similar’ El País 22 October english.elpais.com/elpais/2018/10/22/the_global_observer/1540210136_036588.html. NCBE (2020) ‘2019 Statistics’ thebarexaminer.org/2019-statistics/. Obregón, L (2017) ‘The Third World Judges: neutrality, bias or activism at the Permanent Court of International Justice and International Court of Justice’ in WA Schabas and S Murphy (eds), Research Handbook on International Courts and Tribunals (Northampton, Mass, Edward Elgar) 181.

Evolution of Latin American Lawyers Over Three Decades: 1990–2020  49 Ordem dos advogados do Brasil (OAB) (2007) ‘Editorial: A OAB e o combate aos cursos caça-níqueis’ 1 October www.oab.org.br/noticia/11306/editorial-a-oab-e-o-combate-aos-cursos-caca-niqueis. Pérez-Perdomo, R (2004) Los Abogados de América Latina: Una Introducción Histórica (Bogotá, Universidad del Externado de Colombia). —— (2006) Latin American Lawyers: A Historical Introduction (Stanford, Stanford University Press). —— (2007) ‘La educación jurídica y los sistemas de justiciar’ in L Pásara (ed), Los Actores de la Justicia Latinoamericana (Salamanca, Ediciones Universidad Salamanca) 41–56. —— (2009) ‘A Plea for the Social Study of Legal Scholars: The Case of XIX century Venezuela’ XXXVI Sociología del Diritto 67–92. —— (2014) Los Juristas Académicos de Venezuela: Historia Institucional y Biografía Colectiva (Caracas, Universidad Metropolitana). —— (2015a) ‘Las Transformaciones de la Producción y Divulgación del Conocimiento Jurídico en la Venezuela de la Segunda Mitad del Siglo XX’ in SA Millaleo Hernández, JC Oyanedel, DP Olmedo and H Rojas (eds), Sociología del Derecho en Chile: Libro Homenaje a Edmundo Fuenzalida (Santiago, Ediciones Universidad Alberto Hurtado) 49–72. —— (2015b) ‘Las Revistas Jurídicas Venezolanas en Tiempos de Revolución (2000–2013)’ 142 Boletín Mexicano de Derecho Comparado 223–74. —— (2018) ‘Educación jurídica y política en Venezuela revolucionaria’ in Gorki Gonzales (ed), La Educación Legal como Política Pública en América Latina (Lima, Palestra Editores) 229–68. —— (2020) ‘Abogados Golondrinas o la Internacionalización de la Profesión Jurídica: El Caso de Venezuela’ 1 Revista Latinoamericana de Sociología Jurídica 134. —— (forthcoming) ‘Educación jurídica en Venezuela en tiempos de catástrofe’. Persky, AS (2011) ‘Despite Globalization, Lawyers Find New Barriers to Practicing Abroad’ ABA Journal 1 November www.abajournal.com/magazine/article/the_new_world_despite_globalization_ lawyers_find_new_barriers_to_practicing?utm_source=maestro&utm_medium=email&utm_ campaign=default_email. Pue, WW (2001) ‘Globalisation and Legal Education: Views from the Outside-in’ 8 International Journal of the Legal Profession 87–102. Richter, J (2015) ‘Las transformaciones en el ejercicio de la abogacía en Venezuela: Nuevos y viejos retos en un mundo globalizado’ 20 Revista Latinoamericana de Derecho Social 61–105. Rogoff, K (2019) ‘As Populists Rise, Latin America’s Economies Will Fall’ Project Syndicate 5 June www. project-syndicate.org/commentary/populism-sinking-latin-america-economies-by-kenneth-rogoff2019-06?barrier=accesspaylog. Sayed, Z and Agndal, H (2020) ‘Neo-colonial Dynamics in Global Professional Service Firms: A Periphery Perspective’ 26 Culture and Organization 425–43. Schipani, S (1992) ‘Los códigos latinoamericanos de la “transfusion del derecho romano y de la independencia hacia los códigos de la ‘mezcla’ y ‘códigos tipo”’ in A Levaggi (ed), Fuentes ideológicas de la codificación latinoamericana (Buenos Aires, Universidad del Museo Social Argentino). Silver, C (2006) ‘Internationalizing US Legal Education: A Report on the Education of Transnational Lawyers’ 14 Cardozo Journal of International and Comparative Law 143. —— (2009–10) ‘Educating Lawyers for the Global Economy: National Challenges’ Kyung Hee University Law Review 1–23. —— (2013) ‘Getting Real about Globalization and Legal Education: Potential and Perspectives for the US’ 24 Stanford Law and Policy Review 457–502. Silver, C and Ballakrishnen, S (2018) ‘Sticky Floors, Springboards, Stairways & Slow Escalators: Mobility Pathways and Preferences of International Students in US Law Schools’ 3 UC Irvine Journal of International, Transnational, and Comparative Law 39–70. Trubek, D and Galanter, M (1974) ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States’ 1974 Wisconsin Law Review 1062–1102. Vargas Hernández, I (2013) ‘México vive un boom de escuelas “patito”’ Expansión 18 January expansion.mx/mi-carrera/2013/01/17/mexico-vive-un-boom-de-escuelas-patito039.

50  Manuel A Gómez Vides, M, Gómez, MA and Pérez-Hurtado, LF (2011) ‘The American Way: Los abogados latinoamericanos como estudiantes de maestría en los Estados Unidos de América’ 44(130) Boletín Mexicano de Derecho Comparado 351–402. Werner, A (2020) ‘Outlook for Latin America and the Caribbean: New Challenges to Growth’ 29 January blogs.imf.org/2020/01/29/outlook-for-latin-america-and-the-caribbean-new-challenges-to-growth. Wilkins, DB, Khanna, VS and Trubek, DM (2017) ‘An Introduction to Globalization, Lawyers, and Emerging Economies: The Case of India’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) 3–39. Zilla, C and Schreiber, FFN (2020) ‘The Constitutional Process in Chile: The South American Country is Searching for a New Social Contract’ (Stiftung Wissenschaft und Politik (SWP) Comment 17/2020, April 2020).

3 Africa’s Lawyers From Imperial Agents to Legal Brokers in Global Markets SARA DEZALAY

I.  THE ‘PROBLEM OF THE PRESENT’ IN A POST-IMPERIAL WORLD

A

frica is the ‘global economy’s last frontier’ (Moghalu 2013). In the past 15 years, the continent has regained prominence due to intensifying global competition over so-called ‘critical’ minerals and the lure of new markets for telecommunications and infrastructure. In 2018, mining contracts between African states and multinationals were worth a total of US$ 47 billion.1 The liberal weekly The Economist, often seen as global capitalism’s Cassandra, entitled one of its March 2019 issues ‘The New Scramble for Africa’. In contrast with the European colonial scramble of the second half of the nineteenth century and the Cold War partition of the continent, the journal judged the current scramble not only more ‘benign’ but also characterised by the unprecedented extent of foreign diplomatic, strategic and commercial ties – with former imperial cores as well as the US, China and other emerging economies. This competition, it argued, fostered new opportunities: ‘If Africa handles the new scramble wisely, the main winners will be Africans themselves’.2 However, countries dependent on crude oil exports (like Angola) or with essential societal needs for access to water and electricity now controlled by China as their main creditor (like Zambia) seem unlikely to gain the upper hand. What about legal professions? Lawyers in post-colonial Africa have long been the suppressed underside of the North, especially in scholarship. The path-breaking work of Chanock (1985) and the subsequent growth of historical scholarship on law and colonialism (see Ross and Benton 2013; Ibhawoh 2013; see also Merry 1991; 2003) have underscored the centrality of law to the colonising process. Yet there is still a dearth of data about former French, Belgian and Portuguese colonial sites compared to the rich scholarship on the ‘middle-men’ who contributed to shaping law across the British empire (see Benton and Ford 2016).

1 Investing in African mining Indaba, ‘The largest mineral industry in the world’ www.miningindaba.com/Articles/ infographic-the-african-mining-sector-in-numb. 2 The Economist, ‘The New Scramble for Africa’, 7 March 2019, www.economist.com/leaders/2019/03/07/thenew-scramble-for-africa.

52  Sara Dezalay Sixty years after the first African colonies gained independence, evaluating the ‘victories’ achieved in the post-colonial development of their legal professions and institutions is generally left to a grey literature – reports by international donors and NGOs – which implicitly draw invidious comparisons with contemporary US, UK or France seen as ideal-types of statehood and the rule of law. Legal institutions are presented as either the solution to underdevelopment or its cause, due to corruption, state capture or what the Comaroffs (2007) call ‘lawfare’: the deployment of the ‘rule of law’ as a tactic of political repression or extortion. The canonic literature on the sociology of the legal profession perpetuates the image of a profession in need of translation, mutation, and catch-up. When not marginalised to near invisibility, legal professions have predominantly been studied through the lens of the contemporary hegemon – the US sociology of legal professions. Lawyers are either lauded heroically as missionaries of the rule of law (Halliday et al 2012) or seen as driven by the market, mere mercenaries of neo-colonial interests (Burgis 2015). Tellingly, in a series of e-conferences organised during the COVID-19 pandemic in 2020 by Africa.com – a news website created to combat ‘one-sided coverage of wars, disasters and diseases’ in Africa – David Wilkins made a plea for African lawyers to be ‘leaders’.3 In his witty The Black Bar (2001: unpaged preface), Kenyan lawyer Paul Mwangi had argued two decades earlier that the problem with African lawyers is precisely that they have wanted to be leaders. Trained by the West as ‘agents of development’, they shunned the advice of their peers from the developed world to ‘ris[e] above the day-to-day politics of their societies and avoid[] the rough and tumble of political agitation’, maintaining instead ‘that they owe it to their societies to secure freedom and justice for all’. In so doing, they have been entrapped by kinship ties, anti-entrepreneurial governance, corruption and dictatorship. Yet there are exceptions. The profile of the Togolese-French lawyer Pascal Agboyibor is emblematic. For several years, he has ranked among the top three most prominent corporate lawyers involved in dealings between foreign investors and Francophone African states within the very select ‘Africa’ bar in Paris (S Dezalay 2020b). In Spring 2019, after leaving the Paris office of the US multinational corporate law firm Orrick, Herrington & Sutcliffe, he set up Asafo & Co as a pan-African firm whose name symbolically combines Asafo (standing for the warriors of the pre-colonial Kingdom of Ghana) and co (referring to cobalt, the most soughtafter critical mineral for the energy transition). Do Agboyibor’s profile and the success of his firm – and the parallel expansion of other ‘pan-African’ firms (see Klaaren 2015) – signal a new deal? Calls for the Africanisation of international dispute settlement mechanisms loom large in the backlash against global justice – notably the perceived African animus of the International Criminal Court (S Dezalay 2020a). But there is a twofold trap here. As argued by the Algerian-French philosopher Seloua Luste Boulbina (2020): ‘decolonisation must – paradoxically – be construed as a double impossibility: the impossibility to decolonise, the impossibility not to decolonise’. This is because ‘the problem of the present is that it inherits, objectively and subjectively, from the past’ (ibid).4 In an historical conjuncture awash with claims and counter-claims about the violence – and memory – of the transatlantic slave-trade and colonisation in Africa, how can we reconstruct this past when there is a dearth of archives on legal professions and, in so doing, avoid ‘tunnel history’ (Attwood 2020: 5) – that is, allowing disciplines or policy preferences to dictate how we see that past? How, moreover, can we



3 Africa.com, 4 My

‘Crisis Management for African business leaders’, 3 June 2020. translation from French. All other translations from French (when not otherwise indicated) are also my own.

Africa’s Lawyers  53 position that past in a present that is itself characterised by the juxtaposition of imperial legacies in a post-imperial world (Puri 2021)? The inclusion of eight case-studies of African countries in the first volume – Burundi, Kenya, Nigeria, South Africa and Zimbabwe in sub-Saharan Africa and Egypt, Libya and Tunisia in North Africa – provides a response to the first obstacle: lack of data. These chapters trace changes that echo transformations of the legal profession elsewhere: the huge, sometimes staggering, expansion of private legal markets since the end of the Cold War;5 the take-off of a corporate legal hemisphere; the explosion of legal education; and the expansion of a rightsoriented non-profit sector. With the norm remaining solo or small firm practice, the social and economic rift between large generalist bars and small, exclusive, corporate and political bars follows evolutions found in other regions. Yet it is striking that the gendered, social (including racial, as in South Africa, see Klaaren Vol 1, ch 26)6 and organisational divisions used to account for the diversification and stratification of the legal profession in these settings are insufficient to explain what is more akin to a segmentation. Post-revolution Tunisia provides an example. The massive generalist bar that emerged from the 1980s – in the context of an expansion of legal education and economic crisis – was at the helm of the revolution that toppled Ben Ali’s dictatorship in 2011. However, the elite bar reaped the benefits of this symbolic revolutionary capital. Free-riding on the revolution, this tier not only managed to transform itself from ‘Bar of the state party’ to spokesperson of the revolution but also retained its monopoly over litigation by state-owned companies and parastatals (Gobe, Vol 1, ch 33). Are Tunisia and these other African cases merely ‘counter-examples’ that contradict the homogeneity of the ‘legal complex’ (Halliday et al 2012) and question the limitations of methodological nationalism, while reinforcing the exceptionality of legal professions in former African colonial settings? This chapter asks: what if we turn exceptionality on its head and construe these African sites as ‘hyper-extensions of the present, harbingers of future history’ (Comaroff and Comaroff 2012: 12) where imperial legacies are juxtaposed to contemporary macro political and economic transformations – including the competition between the US, China and other emerging economies for global market-shares and influence on the continent, as well as the intensification of the globalisation and financialisation of global value chains? What if, in other words, we seek to position legal professions in Africa as reflecting advanced and sophisticated mutations of globalisation (Ferguson 2006: 41)? While the urgent need to expose the imperial entanglement of scholarly disciplines (Steinmetz 2013) – foremost law and the sociology of legal professions – falls outside the remit of this chapter, I take a cue from an expanding and powerful socio-legal historical scholarship that questions the methodology – and especially the sources – that are used to track historical changes. What if, as Mitra argues in her superb study of ‘deviant female sexuality’ in colonial India (2020: 206), ‘the thousands of pages of social scientific description’ that reinforce the

5 In Burundi, the number of lawyers called to the bar has multiplied 40 to 50 times since 1993 (Dezalay, Vol 1, ch 23). In Tunisia, membership in the bar increased roughly 25-fold over the period (from 309 in 1971–72 to 7,759 in 2011, Gobe, Vol 1, ch 33). The expansion of the bar in Egypt is even more staggering, with over 700,000 registered lawyers in 2013, compared with 4,433 in 1949 (Bernard-Maugiron and Omar, Vol 1, ch 28). Zimbabwe, which became independent in 1980 and whose post-colonial history spans the whole period since Abel and Lewis’s seminal studies, is again striking. On the eve of independence there were only 12 African lawyers (out of 231 attorneys and advocates) compared with 1,200 registered lawyers in 1998 (Karekwaivanane Vol 1, ch 27). 6 South Africa is distinctive because it features the oldest domestic corporate legal market. There, this social rift remains racialised despite two decades of Black empowerment policies. In 2017, whites still represented 58 per cent of practising attorneys and 63 per cent of advocates.

54  Sara Dezalay position of law and legal professions as the ‘cutting edge’ of colonialism and post-colonial development – ‘could not claim the mantle of objectivity from their form alone’? To engage with the ‘problem of the present’ of legal professions in Africa in a post-imperial world, I used the rich data provided by the eight chapters of Volume 1 along with other work, including my own, but sought to adopt a research strategy that departed from, and thereby questioned, the qualitative and quantitative tools used by the sociology of the legal profession to measure changes in the stratification and diversification of the profession and its engagement with politics. I use the term research strategy in two ways. The first is programmatic. I seek to take in the implications – theoretical and empirical – of (re)positioning legal professions in Africa in the uneven and unequal relationship between that continent and the world economy (Cooper 2002). As I explain in the following section, this strategy combines the paths opened by a socio-political scholarship that has sought to expand Bourdieu’s field theory to legal globalisation with that of the global turn in legal history in order to foreground the need to track multi-scalar and temporal ‘interconnected’ histories (Subrahmanyam 2004): between lawyers and transformations of the state at the domestic level, between African sites and former colonial métropoles, and with macro changes induced by late capitalism. In the second section, I underscore that tracking the roles played by law and lawyers, over time, in converting social, economic, and political power can help trace the enduring social relations that define nodal points between African sites and the global economy. This research strategy is also, necessarily, selective. As Cooper (2002) underscores, tracing the uneven and unequal history of relations between Africa and the world economy requires ‘zooming in and out’. To do this, the third section emphasises the heuristic value of focusing attention on the combination of resources marshalled through law and their transformation over time. Focusing on ‘Africa’s’ lawyers – whether African or not, elite or non-elite – helps respond to the dearth of data spanning lawyers’ diverse roles in contemporary global markets, from imperial agents to legal brokers. Unveiling their habitus as ‘sedimented’ – socially ingrained habits, skills and dispositions that are, themselves, interconnected – can also be a powerful way to track the interconnected histories that define, negotiate and justify Africa’s unequal and uneven connections with the world economy. The concluding sections explore the broader reach of this research strategy by charting interconnectedness between the evolution of international dispute settlement mechanisms and the role played by law firms – specifically the Wall Street model of the corporate law firm – as an engine of (re)negotiation of both legal hierarchies in African settings and the position of the African state in global markets. II.  IMPERIAL SHADOWS

Bourdieu’s warning that ‘[t]o endeavor to think the state is to take the risk of taking over (or being taken over by) a thought of the state, that is, of applying to the state categories of thought produced and guaranteed by the state and hence to misrecognize its most profound truth’ (1999: 53) is at once relevant and problematic when applied to post-colonial African settings. Field theory can prove particularly effective as it ‘requires us to stop thinking in terms of entities, proper names, concrete individuals, and things and begin grasping all of these as bundles of relations’ (Eyal 2013: 158). While fruitful, such a strategy requires translation – theoretical and empirical – when applied to post-colonial African settings. Independence as a

Africa’s Lawyers  55 political rupture fits into a narrative that presumes the shift from empires to nation-states. As a historical event, however, the moment of independence offers limited heuristic capacity to account for the structure and transformation of legal fields in the African states that emerged in the 1960s. The Cold War formally ended on the African continent in 1988 with the independence of Namibia, Africa’s last colony. The ‘policy of abandonment’ of the continent by former colonial métropoles – including their alignment with the Washington consensus on aid conditionality – opened a vacuum filled by Bretton Woods institutions, especially the World Bank, to ‘articulate most clearly the policy of the industrialized world towards Africa, based on free trade and liberal policy’ (Ellis 1996: 20). Yet the opening of the ‘real post-colonial order’ (ibid) also unfolded in the shadow of a ‘great imperial hangover’ (Puri 2021). This juxtaposition – imperial legacies in a post-imperial world – offers a powerful prism through which to analyse the fractious relationship between political independence and legal decolonisation in post-colonial African settings. The examples of Algeria and Mali are emblematic as in both cases post-independence rulers chose the path of rupture with the former métropole, which contrasted sharply with the ‘France-Afrique’7 strategy promoted by others to maintain privileged relations with France. The French métropole negotiated a technical and cultural cooperation in anticipation of Algerian independence, in the framework of the Evian agreements of March 1962. Despite the violence of decolonisation, the majority of the 121 magistrats coopérants who elected to be sent to Algeria had already spent most of their careers in the country, and a number remained well into the 1970s (see Renucci and Réthoré 2014). While Algeria shunned French oil companies in the context of the 1970s oil wars, French lawyers, operating within US multinational corporate law firms, negotiated contracts between US oil companies and the state (S Dezalay 2020b). Despite the political and economic socialist path chosen by Mali’s first ruler Keïta and his severance of links with the former métropole, the first generations of post-independence legal elites were trained in France (see S Dezalay 2018). Effectively, throughout former French colonies, what Legendre (1992) calls the ‘colonial projection’ was deployed after independence, in the form of military and judicial cooperation agreements. Over one-fifth of French magistrates were still sitting in sub-Saharan African courts ten years after independence (Farcy 2014). Steinmetz’s (2014: 9) contention that empires ‘are more than giant states, and are more than the forerunners of modern states’ reveals the limitations of Bourdieu’s field theory to account for these ‘points of disjuncture’ – where social properties do not readily map onto the grid of the power relations of a state because they escape the scale of the state, material and symbolic, as a ‘symbolic bank’ of capital, that is a space where the different sorts of capital that circulate in the social world are produced and certified (Bourdieu 2012). To understand how the same colonising power – Germany – could enact dramatically different policies – the brutal slaughter of the Herero people in Southwest Africa; a paternalistic defence of native culture in Samoa; the alternation between harsh racism and cultural exchange in China – Steinmetz (2007) provides a roadmap: the need to track the interconnectedness between changes in the field of state power in the métropole and that of the colonial state, as well as inter-imperial rivalries. Colonial empires could be construed as spaces of asymmetrical power

7 The expression ‘France-Afrique’ was coined by Côte d’Ivoire’s first president Houphouët-Boigny in 1955 with a positive connotation. The neologism ‘Françafrique’ was popularised, from the end of the 1980s, with a negative undertone, to refer to neo-colonial relations between France and its former colonies.

56  Sara Dezalay between métropoles and colonies. But they were also constituted by specific colonial situations. The field of power of the colonial state was determined by the partial refraction of the field of power in the métropole. Conversely, conflicts within the field of state power of the métropole – and inter-imperial competition – also affected local colonial politics. This strategy – which espouses the ongoing global turn in history (see Burbank and Cooper 2010) – has proven especially effective when combining two scales. For instance, Lardinois (2008) accounts for the emergence of the Indian Raj in the late 1700s as the outcome of conflicts between the East Indian Company, missionaries and business elites in the m ­ étropole fostering free-trade – which ultimately consolidated the position of the Crown over the colony and as the umpire of an imperial rule of law. By the same token, research focusing on legal battles waged before the Judicial Committee of the Privy Council in London (JCPC)8 has proven powerful. For example, analysing Privy Council appeals of disputes over ‘customary’ land rights in colonial Ghana, Luckham (1981) underscores how the defence of chiefly rights derived from an ambiguous alliance between metropolitan and indigenous lawyers, local chiefs, and local and European merchants against the colonial administration. These disputes also depended on the autonomy of indigenous lawyers, whose market for legal services lay outside the control of the colonial government. However, extending this strategy to the entire African continent creates a problem of scale. This is due not only to the diversity of colonial policies – capitalist revolution in South Africa, settler colonialism in Algeria or Kenya, predatory extraction in Congo, and post-independence economic and political state trajectories – but also to the fact that interconnections do not just link former métropoles to their African colonies. That the British could embark swiftly on (colonial) business as usual in Mandatory Palestine in the 1920s reflected the intense circulation of imperial repertoires of power and agents throughout and across empires. Indeed, ‘[t]hey [could] play their pipes as they have played them in a hundred lands’ (Shamir 2000: 20). Burbank and Cooper’s magisterial study of empires in world history (2010) demonstrates the heuristic power of looking not only at empires as historically situated modalities of expanding and organising power but also at the substance of imperial regimes to track these circulations across empires. Despite the contrast often drawn between British indirect rule and French direct rule,9 a similar pattern of legal imperialism was deployed across all empires. Lord Lugard’s policy of indirect rule, developed for the centralised states of Northern Nigeria in the early twentieth century, was disseminated through the rest of British Africa (whether chiefly or acephalous) as well as the African colonies of France, Belgium, Portugal, and Italy (Mamdani 1996: 78–88; Merry 2003: 580). Conversely, De (unpublished) has shown that events conventionally understood as ‘national political trials’ in Kenya, Tanzania, Ghana, Seychelles, India, Pakistan, Sri Lanka, Malaysia, Singapore, British Guyana and the United Kingdom were produced by, and as part of, a transnational movement for civil liberties in the 1950s that involved lawyers across the métropole and colonies. A key insight of this study is that these networks of lawyers shared three common forms of mobility: access to legal education in

8 The JCPC, established in 1833, was the final court of appeal for more than a quarter of the world until 1931, with colonial ‘native’ appeals constituting the largest category of cases (Ibhawoh 2013). 9 The system of direct colonial rule (associated with the French empire) implied a direct government over colonies from the métropole, through the intermediation of colonial administrators, while indirect rule (associated with the British empire) referred to the maintenance of traditional structures of power at the local level, under the control of the colonial administration. In practice, however, the maintenance (and at times, creation) of ‘traditional’ elites throughout empires responded to the very practical and old imperial problem of asserting control over huge territories and populations without paying the proportionally large (human, financial, military) costs of colonial administration (see Mamdani 1996; Burbank and Cooper 2010).

Africa’s Lawyers  57 the métropole; access to legal education in India itself, once the expansion of local universities enabled women and lower middle-class men to join the legal profession; and the physical mobility of bodies and ideas across different jurisdictions, ‘which was sustained by a landscape of British imperial law refracted through Indian legal codes and precedents’. Their mobility was also mediated through Indian, Chinese and Caribbean diasporas ‘at a time when they were moving from an imperial diaspora to a national minority’ in the UK. III.  LAWYERS AS GATE-KEEPERS

Cooper’s concept of the ‘gatekeeper state’ (2002) can help to trace these interconnections synchronously and diachronously by directing attention to the roles played by law, and lawyers, in state transformations. This notion reflects long-standing debates about the political economy of the African state and the rents extracted from controlling sites that are integrated into networks of global production and trade. The gatekeeper state ‘describes the creation of islands of effective state territoriality around such gates in the colonial encounter, producing postcolonial states that essentially only control enclaves and corridors in their territory’ (Hönke 2018: 347). ‘Subsequent literature has stressed elite adaptation and the (re)centralisation of rents by governments, faction fighting, and state capture in the patronage-based politics of capitalist accumulation, and the reconfiguration (not decline) of the state through privatisation and the indirect discharge of state functions to private actors’ (ibid: 348). Although most relevant to the extractive sites of ‘l’Afrique utile’ – rubber in colonial Congo, coffee and cocoa in Burundi, Rwanda or Côte d’Ivoire, copper in Zambia, oil in Nigeria, Angola and Algeria – this concept is also useful in construing these ‘nodes’ of contact with the outside world as asymmetrical yet reciprocal. What Bayart terms ‘extraversion’ (2000) underscores rent seeking as a two-way process: on one hand, the rent derived from international material and symbolic links, deployed domestically; on the other, the uneven resistance to exploitation and adaptability to external economic relations. That law was a central ‘repertoire of power’ deployed by European empires in the nineteenth-century scramble for Africa (Burbank and Cooper 2010: ch 10) is a well-trodden narrative. As Cooper (2005: 157) puts it, rather than being ‘modern’, this was imperialism ‘on the cheap, creating a patchwork of economic exploitation rather than a systematic transformation, ruling through an often-ossified system of “tribal” authority rather than trying to create the docile individual subjects of supposedly modern governmentality’. Law was instrumental in legitimating colonialism as a civilising mission and in navigating the fragmented, uneven colonial rule of the gatekeeper state (Cooper 2014). Law implemented the ‘politics of difference’ as a central device of imperial control and accommodated colonialism as both a regime of exception and an imperial rule of law (see Ibhawoh 2013). Law’s centrality to the colonial enterprise is suggested by the fact that the victors’ histories of independence in the post-colonial world could be written by indigenous lawyers: Elias in Nigeria, Nehru in India, Mandela in South Africa. That indigenous lawyers could be ‘the fighting brigade of the people’ (Oguamanam and Pue 2016) in the British empire, but less so in the French and not at all in the Belgian, reveals the varied impact of imperial legal strategies in the emergence of indigenous legal professions across the continent before independence. South Africa was in an exceptional position, having developed a dynamic domestic legal market, though one structured around exclusive racial lines (see Chanock 2001). In sub-Saharan British settler colonies, the dual system of European and ‘indigenous’ law was complemented

58  Sara Dezalay by de jure or de facto obstacles to the emergence of indigenous legal elites. It was only in 1953 that the first African lawyer joined the Southern Rhodesian legal profession (now Zimbabwe), over a hundred years after his counterparts in Ghana and Nigeria, which had approximately 120 and 540 indigenous private legal practitioners at independence (see Karekwaivanane Vol 1, ch 27; Uzebu-Imarhiagbe Vol 1, ch 25; Dawuni 2017). In Nigeria, British law was ‘zoned’ to commercial centres, foremost among them Lagos, where a distinct market of indigenous lawyers emerged in the mid-1800s, while English-trained lawyers were barred from the hinterland (Oguamanam and Pue 2016). Across sub-Saharan Africa’s French colonies, avocats-défenseurs were explicitly barred from customary courts, and access to the profession was reserved to Europeans, and Africans originating from the Quatre Communes in Senegal.10 In other French colonies in sub-Saharan Africa, local bars were constituted exclusively of Europeans and catered to European clients before the European-style judicial system. As a consequence, the number of indigenous private legal practitioners remained less than or equal to the number of their European counterparts in most African jurisdictions long after independence. On the eve of independence in Mali, for example, there were just 20 avocats, all European (Diop 1971). Eight years later there were two Malian lawyers and two Europeans. In Senegal, even in the economically prosperous region of the Cap Vert, there were only 12 Senegalese lawyers compared to 20 Europeans in 1970 (see Diop 1971, Vols 1 and 2 respectively for Mali and Senegal). Imperial legal strategies considered lawyers – whether from the métropole or indigenous – the ‘bête noire’ of the empire. But this image is misleading. It reifies lawyers’ roles – by reducing their function to either collaboration or opposition – while obfuscating the structural function of law and lawyers in imperial strategies. The colonial enterprise created the need for lawyers, whether metropolitan (to protect the personal and economic interests of Europeans) or indigenous (to fill in the political vacuum created when traditional institutions were suppressed or warped to imperial ends) (Oguamanam and Pue 2016: 478). Indeed, ‘colonizing powers could only stray so far from indirect rule without encountering expenses and dangers they did not wish to entertain’ (Burbank and Cooper 2010: 316–17). The progressive institutionalisation of the imperial rule of law – most cohesively deployed in the British empire through appellate mechanisms that could route ‘native’ conflicts all the way to the Judicial Committee of the Privy Council – served both to consolidate the power of the Crown over petty colonialism (Benton and Ford 2016) and to uphold the supremacy of ‘state’ law over customary rule (Benton 1999). At the same time, the imperial rule of law was also produced by conflicts at the local level. For example, the volume of doctrine on customary justice produced by Belgian magistrates in colonial Congo and later Burundi-Rwanda – with funding from Belgian mining companies – reflected the contradictory position of these professionals (Dezalay Vol 1, ch 23). The de facto policy of indirect rule adopted by the Belgians – despite the official status of Burundi and Rwanda as League of Nations mandates – aimed both to foster social order on the ground and to promote the position of indigenous intermediaries as buffers against the extreme violence of Belgian colonialism. Indirect rule meant that legal change through the reinvention of custom (see Hobsbawm and Ranger 1983) also aimed to limit social disruption. Indigenous law was recognised only when it could no longer offer a true alternative to the power of the colonial state. These imperial legal strategies were also limited by the existing social order (see Christelow 1985). The absence of a local hierarchical system of chiefdom in South-Eastern Nigeria doomed indirect



10 Dakar,

Saint-Louis, Gorée and Rufisque.

Africa’s Lawyers  59 rule to failure. To be effective, the dual regime providing the foundation of indirect rule in Nigeria required a reduction of the potential threat of indigenous law as an alternative to the power of the colonial state.11 Law was instrumental in incorporating pre-colonial social formations into the colonial framework and redefining them along new social, political, and economic fault-lines. As a corollary, the capacity of indigenous (legal) elites to avail themselves of the status granted them by British or French law depended on their embeddedness in local nodes of power (Schmidhauser 1997). Therefore, the dual legal system of indirect rule could function quite well to the extent that an indigenous elite was screened and trained to be subservient; but it would inevitably be transformed as the local social and political fault-lines reshaped through colonialism influenced the imperial judicial system. The conversion, through law, of social, economic, and political power into enduring social relations was thus instrumental in consolidating gatekeeping politics. It also offers clues to their post-independence transformation. The case of Kenya is illustrative. Conflicts between European settlers and the British métropole were resolved through a de jure or de facto policy of separation of the population into three groups – Africans, Asians, and Europeans. While the coloniser exercised less control over Europeans and Asians, when they had the economic resources to seek education privately, the education of Africans was blocked by denying them bursaries to study law in the métropole. There were no African lawyers in Kenya well into the 1960s, and few in the early years of independence (see Ghai 1981). The exclusion of lawyers from primary courts and the preservation of a subsistence economy in the rural hinterland were protective devices against the perceived subversion of capitalist expansion. Yet despite the wariness of the colonial administration towards European and Asian lawyers, there was also a mutuality of interests. The apathy of lawyers in the face of colonial violence was traded for monopolies granted by the colonial administrator, which contributed to the organisation of a pre-independence autonomous profession in urban centres – predominantly Nairobi. The independent state’s heavy reliance on export and foreign investment preserved these preexisting legal monopolies. The decision that the private profession would service the economy (contrasting with Nkrumah’s emphasis on the public sector in Ghana) enabled private lawyers to handle public commercial work. Allowing foreign lawyers to continue practising in the country, in turn, fostered a stratification of the legal market, with European firms monopolising top-end litigation, Asian law firms servicing the middle commercial sector (itself largely Asian), and Africans practising as generalists in 1–2 person offices focusing on rural land transactions. The parallel Africanisation of the profession fostered the emergence of a ‘Black bar’ which enjoyed a golden period thanks to the political activism of some members in the struggle for constitutionalism and the rule of law. However, the maintenance of strong links with the state bureaucracy through co-optation (and repression) also induced the ‘fall of the Black bar’ described by Mwangi (2001), due to lawyers’ dependence on state patronage, corruption and ethnicity politics, including the redistribution of public land from the turn of the 1990s (Manji 2012). IV.  FROM DOUBLE AGENTS TO BOUNCERS

As an analytic concept, the ‘gatekeeper state’ helps expose a blind spot that permeates both the US sociology of the legal profession and Bourdieu’s field theory: the nexus between the 11 This was illustrated by the eradication of the sophisticated ancient Sharia system of legal education in Nigeria’s predominantly Muslim North.

60  Sara Dezalay state, the economy and legal fields. Much has been done to trace the neoliberal remaking of the state in both the Global North and South. But there continues to be a need, as Vauchez and France argue, to ‘look for the state in places where scholars have not been used to finding it – in the field of law itself’ (2020: 6). Bourdieu’s posthumous On the State (2012) advanced the hypothesis that accounting for lawyers’ roles as an ‘intermediary elite’ (see Vauchez 2008) requires tracing their structural relationship with the transformation of the national field of state power. Y Dezalay and Garth (2002) and Y Dezalay (2013) have expanded field theory to legal globalisation in the shadow of US hegemony in the contemporary period. The paths opened by their research underscore that to understand the structural position of lawyers as ‘double agents’ it is also necessary to analyse the multiple social networks in which these elites are embedded. This social capital enables the elites of national legal fields to convert or accumulate the different forms of symbolic capital – social, economic, political, and academic – which are mobilised to build specific models of legal capital and which determine the relative value of these national resources on international markets. This requires not only repositioning ‘the history of legal fields in a sociology of national fields of state power, within a sociology of the reproduction of elites shaped by the opposition and combination of logics of inheritance and meritocracy’ but also taking account of their embeddedness within interconnected histories (Y Dezalay 2013: 60). These insights can provide fruitful paths to trace the nexus between law, economics and state power in (post)colonial African sites. First, they foreground the characteristics of legal fields as semi-autonomous: at once embedded in national state power and driven by the legal field’s own gravitational pull to construct a space of professional practice distanced from politics (see Kantorowicz 1989). Second, the juxtaposition of imperial legacies in a post-imperial world fosters the (re)production of gatekeeping politics and the operationalisation of sovereignty as ‘shared out, layered (and) overlapping’ in (post) colonial African settings (Burbank and Cooper 2010: 17). The position of the (post)colonial African state as a ‘symbolic bank’ of production and certification of the different types of capital that circulate in the social world is, therefore, structurally extraverted – drawn from the symbolic rent derived from connections with the world economy and former métropoles. At the same time, national legal fields in (post) colonial African settings can be semiautonomous relative not only to the national field of state power but also to the ‘nodes’ of connections of the national field of state power with the world economy. For example, the dearth of legal professionals at independence prompted US-led ‘modernisation’ projects, starting in former British African colonies in the 1960s. Legal education loomed large in these reform agendas. This project was also fuelled by Cold War rivalries and the hegemonic ambition of the US to encourage the emergence of a new generation of US-oriented lawyers in the Third World (see Krishnan 2012). Throughout former French African colonies, cultural, educational and legal institutions like the Agence universitaire de la francophonie, the Conseil Africain et Malgache d’Enseignement supérieur, and the Organisation pour l’harmonisation du droit des affaires en Afrique (OHADA) continue to foster processes of ‘reciprocal assimilation’ (Bayart 1989) between legal elites from Francophone Africa and French law professors and practitioners. I have traced how the imperial strategies in what became the de facto colony of Burundi were deployed in the orbit of the Belgian colony of the Congo (Dezalay Vol 1, ch 23). What Mamdani (1996) describes as the ‘decentralized despotism’ induced by indirect rule in Burundi fostered two core resources driving the structuration of the field of state power in the colony: extraversion (including the material and symbolic profit reaped by the customary elites controlling the coffee- and tea-rich regions of the country) and ethnicity (through policies of

Africa’s Lawyers  61 legal pluralism that reshaped the Tutsi and Hutu caste-like groups, which had structured the pre-colonial monarchy, into patronage politics determined by identity). I showed that these two variables have durably shaped the post-colonial trajectory of the state and, with it, the structuration of its legal field along two bifurcated hemispheres: one determined by ‘state capture’ through political co-optation within the judiciary and the monopolisation, along lines of patronage, of contractual dealings with foreign investors; and the other dependent on international donors, foremost Belgium, shaping an ‘NGOised’ market for private legal services. What made this case exceptional is the post-independence trajectory of the state itself – punctuated by massacres, wars, and dictatorships – and the intensity of external presence on the ground: both to re-deploy what Harrison dubbed the ‘governance state’ (2004), including through NGO projects funded by bilateral and multinational development to rebuild the state ‘from below’ (S Dezalay 2011), and also to negotiate the rent of extraction over the mineral wealth of the country – foremost nickel. The idea of bifurcation helps to understand the structure of the legal field in the Burundi case – but it provides only a partial explanation since it implies a stratification of the legal profession along lines of either proximity to state power or appropriation of extraverted resources. It obscures the circulation of agents and resources that contribute to this bifurcation. This directs attention to the portfolio of resources that are valued within national legal fields: their circulation and evolution over time within both the national field of state power and globally. Y Dezalay and Garth (2011) focus on the rules of the game for the governance of the state and the economy and therefore on the activities of ‘legal elites’. This is both relevant and misleading when applied to (post) colonial African settings. In sites like Kenya – where the post-independence state’s economic strategy tracked the capitalist nodes of contact with the world economy – that focus can help explain the ‘golden age’ of the ‘Black bar’ in the immediate post-independence period. In Burundi, however, it obscures the processes of conversion of resources – through the combination of proximity/distance from national politics and extraversion – across the different tiers of the legal profession and how those processes contribute to renegotiating what the state is and how it is deployed. The juxtaposition of Luckham’s (1981) approach – combining political economy with sociology to analyse legal elites in the first three decades after Ghana’s independence – and Budniok and Noli’s (2018) coding of the properties (social, ethnic, regional, age, generational and gender) of lawyers who joined the profession between 1950 and 2017 – provides an ­illustration. As noted by Luckham, the pre-eminence of indigenous lawyers in waging ­jurisdictional and political battles before the Privy Council rested on the fact that they were drawn from the ranks of the Ashanti elites, who ‘took good care to establish what almost amounted to legal dynasties’ (Luckham 1978: 109). The recognition by the Privy Council of chiefly rights over land, and hence the mineral wealth of the Gold Coast, in the name of the imperial rule of law positioned these lawyers as political champions of the people in the struggle for decolonisation, while consolidating the social basis of the Ashanti elite. Although this enabled a scramble for land, which was sold to European merchants, it also positioned lawyers as brokers between foreign capital and indigenous merchants and landowners. In the early days of independence, the ambitious political programme of legal education promoted by Ghana’s first ruler, Nkrumah, contrasted with the economic path taken by postindependence Kenya. The creation of the first law faculty in sub-Saharan Africa (outside South Africa) in 1958, in Ghana, aimed explicitly at enlarging the market for legal services and responding to the huge demand for personnel required by the rapidly expanding state. However, this strategy failed to break the enduring monopoly of Ashanti lawyers over the legal market for minerals and export crops. While the link between rural wealth and education

62  Sara Dezalay was disrupted by the provision of scholarships, patterns of recruitment into the private legal market remained unchanged. Luckham accounted for this by looking into the expanded role of the state in the economy from the 1970s. Ashanti lawyers became the ‘plumbers of the economy’ by brokering the commoditisation of land and consolidating export-oriented capitalist relations after independence, while also serving as the ‘masons of politics’ (ibid: 107) through strategies of (re)production of their legal monopoly, strengthened by personal networks ‘turned to good account by lawyers [moving] into politics’ (ibid: 178). Yet foreign investors’ preference for direct contact with members of the government and administration, rather than intermediation by the legal system, also contributed to organising the market for private legal services around small chambers of one to five lawyers specialising in routine legal work on land matters. Budniok and Noli (2018) provide an intriguing sequel to this account by looking at the types of capital mobilised both to consolidate control over this private legal market by the Ashanti elite – despite its diversification – and their ‘private’ production of the state. Internal differentiation of the legal profession increased from the 1970s through the 1990s following the expansion of both secondary education and law schools. The acute economic crisis had ­devalued the bench as a professional path, along with its poor relations in the executive (see Dawuni 2017). New male judges came from the lower middle-classes and increasingly from the North, a region historically less connected to international markets, whose law graduates faced high obstacles to entering a corporate legal hemisphere restricted to well-connected men from the Central and Greater Accra provinces of independent Ghana (Budniok and Noli 2018). Yet the increasing number of women becoming judges were invariably drawn from upper-middle class backgrounds and Southern regions because they could increase the social capital of husbands practising as corporate lawyers and the latters’ portfolio of domestic and multinational corporate clients. In this way, family strategies of reproduction could consolidate the inherited legal capital of Ashanti elites – derived from the highly selective meritocratic criteria of access to the legal field (through credentials obtained in the métropole) combined with social and family resources, thereby converting the meritocratic legal capital acquired through legal education in Ghana by male cohorts drawn from the middle-classes into a state form of capital: negotiating with the Ghanaian state for property rights over mining sites. Meanwhile, the persistent organisation of this private legal market into small chambers made it vulnerable to external shocks, as shown by the predominance of multinational corporate law firms from the US, UK, and South Africa in representing foreign companies. V.  FROM INTERMEDIARIES OF THE STATE TO PRIVATE LEGAL BROKERS OF SOVEREIGNTY ON GLOBAL MARKETS

The task of tracing the social forms of capital converted into legal capital qua state capital confronts two problems. The roles of social capital – including its conversion through legal education – in the diversification of legal professions loom large in contemporary debates in the US sociology of the legal profession. However, aggregating national data can obscure the different types of capital that shape social resources and their transformation over time. Yet the social capital of the Ghanaian Ashanti legal elite can only be understood structurally, and in the longue durée, because it is a state social capital embedded in, and imprinted by, imperial and colonial legal strategies (Dezalay and Garth 2010), the trajectory of African states ­post-independence, and their embeddedness in neoliberalism.

Africa’s Lawyers  63 This means addressing the interconnections of social capital. Embracing the global turn in history, a fascinating body of work is tracing the emergence of middle classes in the age of empire in the metropolitan cores and colonial undersides (see Dejung et al 2019). Non-European middle classes in colonies were always demarcated from white middle classes by asymmetries of colonial rule and mechanisms of racial exclusion. At the same time, colonised ‘elites’ themselves were not a homogeneous group. Côte d’Ivoire provides an interesting example. The first President, Houphouët-Boigny, studied medicine at the William-Ponty School in Gorée, Senegal, established in 1903 by the French colonial administration to train indigenous administrative clerks and teachers. As mentioned above, legal training in the French empire was constrained by a double bar: the financial capacity to invest in studies in the French métropole and residence in the Quatre Communes, which conferred French citizenship under the Loi Diagne of 1916. As a plantation owner, a trained professional, elected to the French Parliament in 1946 within the framework of the post-World War II Union Française,12 Houphouët-Boigny embodied the trajectory of the ‘imperial repertoire’ of the French coloniser, which created collaborating elites through political cooptation, thereby building France as an imperial nation-state. Embracing a political and economic strategy of development within the orbit of the former French empire, Houphouët-Boigny welcomed the massive investment by French businesses and the domination of cocoa planteurs, who rejected the indigenous intellectual elite trained at French universities. The first generation of diploma holders from French universities therefore had to choose between imprisonment and access to high administrative functions (see Simonet 2010). Yet the higher tiers of the judicial system survived – individuals whose resources were shaped by the meritocratic criteria of the empire, combined with family and financial resources – while the private legal corporate market continued to be dominated by French lawyers established in Abidjan and in-house French counsels within the French state-owned corporations that persisted after independence.13 The second problem of understanding how social forms of capital were converted into legal capital qua state capital is that of scale: the daunting challenge of tracing the interconnected histories of 54 national legal fields. One starting point I have suggested in this chapter is focusing on the ‘nodes’ of contacts between African sites and the world economy. Another, suggested by the Ghanaian, Ivorian or Burundian examples, is to examine individual biographies as ‘sedimented’ socially ingrained habits, skills and dispositions that are themselves interconnected. In what follows, I selected three individuals – the Senegalese Isaac Forster, the Malian Fatoumata Diarra, and the French-Togolese Pascal Agboyibor – each celebrated as ‘great men’ or ‘great woman’ precisely because they are Africans – in three nodes of contact between the African South and the world economy: the legalisation of disputes between states in the International Court of Justice (ICJ); the criminalisation of state violence at the International Criminal Court (ICC); and the negotiation of contracts between African states and multinationals (see S Dezalay 2018; 2020a; 2020b). These three individuals vividly embody the characteristics of ‘heroes’ or ‘trail-blazers’. Isaac Forster was the first African lawyer appointed to the ICJ in 1964. After pursuing a judicial

12 The Union française, established, by the Constitution of the Fourth Republic in France, instituted officially an equal association between the métropole and the colonial empire. While short-lived (1946–1958) and riddled from the start with contradictions (with France reaffirming de facto sovereignty over overseas territories), the institutions of the Union française served as incubator for the formation of most of the political elites who served at independence. 13 I have developed these insights in an ongoing project on higher-tier judges in Mali, Côte d’Ivoire, Burundi and the DRC, funded by the Leverhulme Trust in 2016–19.

64  Sara Dezalay career as a magistrate across l’Afrique occidentale française, he integrated the French presidential cabinet in the Union Française in 1952 before being appointed first president of the Cour Suprême of independent Senegal in 1960. Fatoumata Diarra was part of the first cohort of 18 judges elected to the International Criminal Court in 2003 and one of the seven women on the Court (three of them African), occupying a prominent position as First Vice-President (2009–12). The eldest of nine children whose parents were traders, Diarra was born in 1949 in Soudan français (now Mali). Her rise through the ranks of the Malian judiciary was all the more noteworthy in a country that had only two Malian lawyers at independence (Diop 1971). Equally remarkable is her prominent role as an advocate for the rights of women and children from the 1980s in Mali and later internationally. Pascal Agboyibor was, until March 2019, head of the Africa department at the Paris office of the US law firm Orrick Herrington & Sutcliffe LLP and the first African on the board of the multinational law firm. Breaking into the very select French, male, and white ‘Africa’ corporate bar in Paris, which monopolises the bulk of corporate dealings with Francophone Africa, he launched the first pan-African law firm, Asafo & Co, building an unprecedented partnership with a corporate law firm in South Africa. In the context of an ongoing backlash against international dispute settlement mechanisms, the profile of these three individuals as ‘Africans’ fits neatly into the narrative of an ideological war of position between a neo-colonial form of global justice and the (rusty) wheels of universalism. For example, international investment arbitration cases involving African states and foreign investors have taken off in the past 10 years, representing 19.6 per cent of cases brought before the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID) in 2018. This has occurred against the backdrop of the renewed prominence of the African continent as a source of critical mineral resources; fears of ‘resource nationalism’;14 and resistance by some African states to the lack of representation of African interests in investor-state dispute settlement mechanisms, including the total absence of African lawyers within the ‘club’ of investment arbitrators. Yet looking at these three individuals simply as protagonists in this ideological turf-battle risks what Bourdieu (1986) called the ‘biographical illusion’, the tendency to narrate individual stories as a linear and implicitly logical succession of events and choices, with no reference to causes other than the subject herself. By contrast, exploring the combination of resources inherited and accumulated by these individuals – together with their mobility across geographical scales and their professional strategies – reveals the ‘structural banality’ (Vauchez and France 2020: 156) of their profiles. These resources reflected their varied positions as colonised ‘elites’ with meritocratic credentials certified by the imperial métropole. Forster was born in 1903 into a family of wealthy traders of the Quatre Communes in Senegal, completed his secondary schooling in France, and obtained his Licence in Law at the Sorbonne in Paris. Diarra was born in 1949 in Koulikouro, one of the military headquarters in Soudan français and a river port with connections to the Northern and Southern regions of the country and the Atlantic trade. This exceptional geographical position allowed social interactions that would otherwise have been impossible, including her father’s friendship with colonial administrators and her own access to a good primary school, which groomed her for secondary (and higher) education in a country where just 8 per cent of the population had received a formal primary education at independence

14 For example, the Democratic Republic of Congo revised its mining code in 2018 and substantially increased royalties owed by foreign mining corporations.

Africa’s Lawyers  65 in 1960 (see Moulaye et al 2007). Like other members of the earliest cohorts of legal elites in independent Mali, she completed her legal education in France. Pascal Agboyibor was born in 1967 in Togo, in a royal family deposed by the French colonial administration in the 1930s.15 His father, Yawovi Agboyibo, former president of the Lomé Bar, political opponent against Gnassingbé Eyadema, and prime minister in the brief transition between the two Gnassingbé regimes (in 2005), had played a prominent role in the transformation of Togo into a multiparty system in 1991. Agboyibor studied law in France before integrating the French corporate law firm Jeantet et Associés in 1993. These three individuals’ ‘African’ identity was clearly a symbolic resource. In the immediate post-independence era the election of Forster, an African judge, to the International Court of Justice served to promote it as the ‘world’ court. Likewise, the election of Diarra, an African female judge and human rights advocate, to the International Criminal Court signalled a response to charges that it was biased against Africans. In turn, Agboyibor said he was invited to work on the Chad-Cameroon pipeline negotiations in the 1990s at Jeantet because ‘they needed an African to sit at the table’.16 Meanwhile, describing Asafo & Co as ‘Africa’s law firm’ with a ‘100% Africa focus’ is a powerful branding exercise.17 ‘African’ identity is also interconnected. Forster was elected to the prestigious Institute of International Law – the ‘bank of symbolic capital’ of international law and, as such, the epitome of the ‘gentlemen politicians of law’ from the Global South (Sacriste and Vauchez 2007). At a time when international law was weakly institutionalised, Forster’s multi-positionality enhanced the authority of international justice institutions by showing that their lawyers could simultaneously reflect national political and economic interests and deflect them by presenting the doctrine of international law as universalistic. Forster’s state capital was both imperial and national, positioning him structurally as a broker of Senegal’s sovereignty. His career spanned the political evolution of the French empire: he was successively a member of the indigenous legal elite within the French empire and then the French colonial nationstate after World War II (the Union française) before becoming one of the most prominent architects of independent Senegal, whose close political, military, and judicial links with the former métropole embraced France’s ‘colonial projection’ during the Cold War. Diarra’s election to the International Criminal Court similarly reflects interconnected histories. As a ‘woman of development’ from the Global South (see Bouilly 2014), her appointment to the International Criminal Court espoused the Malian state strategy of branding itself a ‘donor darling’. But it also points to the weakness of the international criminal field (S Dezalay 2016) and with it the relative value of credentials acquired internationally by African elites at the domestic level. Compared to the enduring characteristics of ‘gentlemen politicians of law’ at the International Court of Justice (see S Dezalay and Y Dezalay 2017), Diarra’s internationalisation trajectory – like that of other ICC African women judges – was constructed from resources at the domestic level (lower status positions within the judicial hierarchy and the field of state power) and resources drawn from human rights and development networks as civil society advocates. However, the ‘rent’ derived from her mandate at the International Criminal Court was not translated into a state validation at the domestic level – which would have meant her appointment to the apex of Mali’s judicial system, the Supreme Court. 15 Through a continuous re-invention of tradition, the family was reinstated as chief of canton by presidential decree under its ‘royal’ name, Tobgui Messan Agboyibo V, in May 2014. 16 Author’s interview with Pascal Agboyibor, Paris, 5 May 2015. My translation from French. 17 See the website of the firm, https://asafoandco.com.

66  Sara Dezalay In turn, Agboyibor’s introduction into the very select and white ‘Africa’ corporate bar in Paris grew out of a powerful family and social platform. His father, Yawovi Agboyibo, had also turned to corporate law in the early 1970s by integrating Togo’s first law firm18 after obtaining a doctorate in law in France. During an era when the newly independent state was massively recruiting for the administration and judiciary, this choice seemed anomalous. However, investing in corporate law enabled this royal family to convert its resources into connections with the political and economic networks tying the country to the former métropole. One generation later, this proximity helped him integrate Jeantet et Associés in 1993, a French pioneer of corporate law, before joining the Paris branch of the UK firm Watson, Farley and Williams in 2000, which merged with Orrick, Herrington & Sutcliffe LLP in 2002. Agboyibor became a partner at Orrick in 2003. He had expanded his portfolio of African relations during a secondment to the African Development Bank in Abidjan in 1996 and through introductions from his father, who had arbitrated disputes between the Democratic Republic of Congo and vulture funds.19 When he started his career, Agboyibor strategically invested in securitisation, positioning himself in the financialisation of commodities markets. He reinvested his African portfolio in the wake of the 2008 financial crisis, which prompted multinational corporate law firms to seek new markets in emerging economies, including in Africa. While only 10 per cent of Agboyibor’s practice involved business transactions in Africa in 2008, it accounted for 100 per cent of his time ten years later. Construed across time and space, these three biographies not only provide insights into the generational and geopolitical evolution of the landscape of international justice. They also help identify the types of resources that are mobilised and their relative value both internationally and domestically. Agboyibor’s professional trajectory is the only one constructed entirely within the private sector. Though (re)shaped by the imperial realm, his portfolio of family and social resources was converted directly into brokerage resources between African states and foreign corporations. His combination of know who – an extensive network of contacts across political spheres in Africa and foreign businesses – and know how – the legal technologies of private contracts in late capitalism (Cutler and Dietz 2018) – is certified not by the state (either the former métropole or the post-colonial national state) but also by a powerful engine of legal globalisation: the Wall Street model of the corporate law firm. In an empirical study of corporate lawyers involved in the negotiation of mining, infrastructure, and telecommunications contracts between foreign investors and Francophone African states (S Dezalay 2020b), I identified Paris as the core site of this professional marketplace, which is dominated by French, male, corporate lawyers operating within US and UK multinational corporate law firms. Borrowing the know-how of French – and African – corporate lawyers gave these law firms access to post-colonial African state elites while preserving their symbolic distance from the stigma of Françafrique: the neo-colonial symbiosis between France and its former African colonies. Indeed, this professional market was described to me scathingly by a respondent as dominated by the ‘Good’ (the World Bank), the ‘Bad’ (African states), and the ‘Ugly’ (corporate lawyers) as it developed in the shadows of the affairisme of the ‘Françafrique’.20 Yet the assertion by corporate lawyers operating within this ‘Africa’ corporate bar – including

18 Founded by the French lawyer Raymond Viale in 1937. 19 Agboyibor acted as a counsel for Gécamines, one of the jewels of the DRC mining industry, which in 2012 won a long legal battle against the US investment management firm FG Hemisphere. 20 Author’s interview with ‘Marc’, economics of contracts expert, Paris, 2 July 2015. My translation from French.

Africa’s Lawyers  67 Agboyibor – that they were serving the state21 seemed to echo the transformations documented by Vauchez and France (2020). Their study of the evolution of the national field of French power over the last 30 years underscores that the state, rather than retreating under the influence of neoliberalism, has privatised its regulatory functions. The ‘regulatory’ state that emerged from the 1980s was redeployed under a legal umbrella as umpire of markets; but this also fostered the expansion of an intermediary space between public and private spheres that developed less against state encroachments than symbiotically, through an imbrication and co-dependency between the public sector and private economic actors. The circulation of former civil servants and politicians is not just a source of access to public regulators; their ‘public’ capital is also reinvested into the political field, thereby allowing the emergence of an unprecedented ‘public-private state’ in the shadow of the regulatory state fostered by a corporate bar that displays an interest in producing the state. The position of Paris as a ‘beach-head’ for the expansion of US-led corporate legal globalisation from the 1980s – and the diffusion of the Wall Street model into continental Europe – help explain the prominence of US and UK multinational corporate law firms within this marketplace. This also demonstrates the interconnections between the Big Bang of the French legal field from the 1980s and imperial legacies. The expansion of the Paris business bar under the influence of the European Single Market benefited from the continuation of economic, political, legal and especially social links between the métropole and its former colonies. And Paris is also the historical site of offshore litigation – with the creation of the International Chamber of Commerce in Paris in the early 1920s seeking to protect business transactions outside of democratic and domestic judicial oversight. Conversely, structural adjustment programmes in the Global South have also contributed to promoting private contracts as a primary engine of relations between African states and foreign investors by fostering a redeployment of the state through privatisation and the indirect discharge of state functions by private actors (see Hibou 1999) but in a way that has consolidated – rather than removed – colonial gate-keeping politics (Cooper 2014). Interestingly, for example, Agboyibor left Orrick with most of his powerful clientele, foremost the private corporation Gécamines, which is fully-owned by the state of the DRC, thanks to a lasting relationship with the Gécamines’ director, Congolese businessman Albert Yuma (a close ally of then President Joseph Kabila), who was reappointed by Kibala’s successor, President Tshisekedi, as chairman of the board of directors of the corporation. Meanwhile, a complex loan dispute between Gécamines and Israeli businessman Dan Gertler, who remains under US sanctions, surfaced in 2020, leading the US Treasury to accuse Gertler, who was close to the Kabila regime, of having taken advantage of ‘his relationship with the Congolese head of state to act as an intermediary in the sale of mining assets in the Democratic Republic of Congo (DRC), forcing multinational companies to go through Gertler to do business with the Congolese state’ (The Africa Report 2020). The example of Asafo & Co could point to an imperial twist that might make the current scramble for Africa more ‘benign’, as The Economist suggested, but still symbolically violent, transforming the relationship between Africa and the world economy but not necessarily equalising it or benefiting African societies. The Guinean Salimatou Diallo, whose law firm was ranked among the ten best in Africa by Jeune Afrique/Business + 2020, is

21 For example, Agboyibor argued that enhancing the quality of the legal expertise at the service of African states could help ‘re-route part of the wealth generated by mineral extraction’: author’s interview with Pascal Agboyibor, Paris, 22 May 2015.

68  Sara Dezalay illustrative. After obtaining a law degree at the Sorbonne in Paris and an LLM in the US, she was recruited as an associate in the Parisian office of Lovells in 2005, before joining Herbert Smith Freehills, where she specialised in project finance. After the failure of Herbert Smith Freehills to establish a local office in Conakry, she set up her own firm, calling herself a ‘repat’ (repatriate) (Couder 2015). Her firm is also deploying a combination of resources – social, familial, and educational – that befitted the US multinational corporate law firms’ strategies of expansion into the French corporate legal market and now Africa, consolidating and consecrating the model of the Wall Street law firm as an engine of both legal globalisation and the (re)production of legal hierarchies at the domestic level. Her success, however, will be tested by the capacity to convert this legal capital into a state capital, which requires interconnected resources to navigate the gatekeeping politics that still characterise business dealings with foreign investors in Guinea (and other resource-rich African states). Vauchez and France’s study (2020) offers a normative lesson: the expansion of a ‘publicprivate’ state in France is producing a ‘black hole’ in the power structure that is corrosive for French democracy because this public-private interstitial space is positioned in a blind spot of public oversight by politics, administration, or professional regulations. What may be at play in the ongoing expansion of the Wall Street model of the law firm across Africa is different: a ‘ménage à trois’ between the World Bank as regulator, the lawyer as broker, and a state whose regulatory power has been hollowed out by competition over gatekeeping. This depends on the potential structural effects, regional and domestic, of diplomatic efforts by states within the African Union to adopt and implement a Pan-African investment code. Global competition between the United States, Europe and powerful new economic and political centres, especially China, may also displace the ‘nodes’ of connections between Africa and the global economy. The challenge is to examine those new portals to Africa that are being built – from the Gulf monarchies, Brazil and China – ‘not only on new sources of investment, but also on new imaginaries of development’ (Hönke 2018: 354–55) and new imperial repertoires of power. VI. CONCLUSION

This chapter was prompted by the ‘problem of the present’: understanding transformations of legal professions in African settings shaped by the contradictions and diversity of imperial pasts in a post-imperial world. I suggested reversing the lens through which historical transformations in the African continent have conventionally been construed to ask: what if we analyse legal professions in Africa as reflective of advanced and sophisticated mutations of globalisation (Ferguson 2006: 41)? To address the ‘problem of the present’ of African legal professions in a post-imperial world, I proposed a research agenda that (re)positioned those legal professions in the uneven and unequal relationship between Africa and the world economy (Cooper 2002). This task confronts not only a still acute dearth of data on legal professions in Africa but also the ‘tunnel history’ in which they tend to be construed as either missionaries of the rule of law or mercenaries of neo-colonial interests. Bourdieu’s field theory helps to overcome this difficulty but has a limited ability to trace transformations that are, by definition, transfields. Therefore, the strategy I opted for – following Cooper (2002) – was to ‘zoom in and out’, focusing on ‘nodes’ of connection between the African continent and the world economy that trace ‘revivals’ of imperial imprints in a post-imperial world. To do this, biographies can prove a powerful methodology, unveiling forms of habitus that are interconnected and sedimented, pointing to the transformation over time of resources

Africa’s Lawyers  69 channelled through law and their political effects. As a research strategy it is selective and ongoing. It requires collective efforts to produce comparative knowledge of the relationships between lawyers, state transformations, and transformations in global capitalism.22 This demands not only (re)positioning African legal professions in the uneven and unequal relationship between that continent and the world economy but also a global history that explores and acknowledges the interconnection between state trajectories. I have attempted this task in my ongoing work by seeking different ‘nodes’ in which Africa’s relationship with the global economy requires repositioning and renegotiating the symbolic and practical frontiers of the European states and the imprint of their imperial past and their (re)deployment in a postimperial present, including judicialisation of the ‘migration’ crisis and the transnationalisation of judicial contests over the distribution of natural resources. REFERENCES Africa Intelligence (2021) ‘Accusé d’abus multiples, l’avocat-star Pascal Agboyibor rebondit grâce aux mandats de la RDC’ 31 May www.africaintelligence.fr/afrique-ouest-et-centrale_business/2021/05/31/ accuse-d-abus-multiples-l-avocat-star-pascal-agboyibor-rebondit-grace-aux-mandats-de-la-rdc, 109668875-ge0. Attwood, B (2020) Empire and the Making of Native Title. Sovereignty, Property and Indigenous People (Cambridge, Cambridge University Press). Bayart, J-F (1989) L’État en Afrique. La politique du ventre (Paris, Fayard). —— (2000) ‘Africa in the World: a History of Extraversion’ 99 African Affairs 217–67. Benton, L (1999) ‘Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State’ 41 Comparative Studies in Society and History 563–88. Benton, L and Ford, L (2016) Rage for Order. The British Empire and the Origins of International Law, 1800–1850 (Cambridge, Harvard University Press). Bouilly, É (2014) Mobiliser sans protester. Engagement militant et politisation des ‘femmes de développement’ dans la ‘lutte contre l’émigration clandestine’ au Sénégal Unpublished doctoral dissertation, Université Paris I. Bourdieu P (1986) ‘L’illusion biographique’ 62–63 Actes de la recherche en sciences sociales 69–72. —— (1999) ‘Rethinking the State: Genesis and Structure of the Bureaucratic Field’ in G Steinmetz (ed), State/Culture: State Formation after the Cultural Turn (Ithaca, Cornell University Press) 53–75. —— (2012) Sur l’État. Cours au Collège de France (1989–1992) (Paris, Le Seuil). Budniok, J and Noli, A (2018) ‘The Ghanaian Middle Class, Social Stratification, and Long-Term Dynamics of Upward and Downward Mobility of Lawyers and Teachers’ in L Kroeker, D O’Kane, and T Scharrer (eds), Middle Classes in Africa. Frontiers of Globalization (London, Palgrave) 109–34. Burbank, J and Cooper, F (2010) Empires in World History. Power and the Politics of Difference (Princeton, Princeton University Press). Burgis, T (2015) The Looting Machine: Warlords, Tycoons, Smugglers and the Systematic Theft of Africa’s Wealth (London, William Collins). Caslin, O (2020) ‘Indépendances africaines – Seloua Luste Boulbina : “le problème du présent c’est qu’il hérite du passé”’ Jeune Afrique 7 September, www.jeuneafrique.com/1037610/politique/independancesafricaines-seloua-luste-boulbina-le-probleme-du-present-cest-quil-herite-du-passe/. Chanock, M (1985) Law, Custom, and Social Order: The Colonial Experience in Malawi and Zambia (Cambridge, Cambridge University Press).

22 To this end, Ole Hammerslev (University of Southern Denmark) and I created the International Research Collaborative ‘Lawyers and state transformations’ within the Law and Society Association in 2020.

70  Sara Dezalay —— (2001) The Making of South African Legal Culture, 1902–1936. Fear, Favour and Prejudice (Cambridge, Cambridge University Press). Christelow, A (1985) Muslim Law Courts and the French Colonial State in Algeria (Princeton, Princeton University Press). Coates, T-N (2015) Between the World and Me (New York, Spiegel & Grau). Comaroff, J and Comaroff, JL (2007) ‘Law and Disorder in the Postcolony’ 15 Social Anthropology/ Anthropologie sociale 133–52. —— (2012) Theory from the South. Or, How Euro-America Is Evolving toward Africa (Boulder, Paradigm Publishers). Cooper, F (2002) Africa since 1940. The Past of the Present (Cambridge, Cambridge University Press). —— (2005) Colonialism in Question: Theory, Knowledge, History (Berkeley, University of California Press). —— (2014) Africa in the World. Capitalism, Empire, Nation-State (Cambridge, Harvard University Press). Couder, A (2015) ‘Les avocats à l’assaut d’une Afrique nouvelle’ La lettre des juristes d’affaires 24 November business.lesechos.fr/directions-juridiques/avocats-et-conseils/actualite-des-cabinets/les-avocatsa-l-assaut-d-une-afrique-nouvelle-204921.php. Cutler, AC and Dietz, T (eds) (2018) The Politics of Private Transnational Governance by Contract (London, Routledge). Dawuni, JJ (2017) ‘Lawyers in Ghana’ presented at the International Meeting on Law and Society, Mexico City. De, R (unpublished) ‘The Kenyatta Trial and Mobile Lawyer: Decolonization, Diasporas and a Global History of Rebellious Lawyering’. Dedieu, J-P (2004) ‘L’intégration des avocats africains dans les barreaux français’ 56–57 Droit et Societé 209–29. Dejung, C, Motadel, D and Osterhammel, J (eds) (2019) The Global Bourgeoisie. The Rise of the Middle Classes in the Age of Empire (Princeton, Princeton University Press). Dezalay S (2011) Revamping Law by Circumventing the State. Non-governmental Organizations in the International Management of Social Violence on the African Continent (PhD thesis, Florence, European University Institute). —— (2016) ‘Weakness as Routine in the Operations of the International Criminal Court’ 17 International Criminal Law Review 1–21. —— (2018) ‘Fatoumata Dembélé Diarra. Trajectory of a Malian magistrate and civil society advocate to the International Criminal Court’ in JJ Dawuni and A Kuenyehia (eds), International Courts and the African Woman Judges. Unveiled Narratives (London, Routledge) 77–97. —— (2020a) ‘Africa against Global Justice? Stakes for Building a Political Sociology on the Futures of International Criminal Justice’ in S Weill, K Thuy Seelinger and KB Carlson (eds), Prosecuting the President: The Trial of Hissen Habré (Oxford, Oxford University Press) 219–32. —— (2020b) ‘Le “barreau africain” de Paris: entre Big Bang sur le marché du droit des affaires et sillons d’Empire’ 119–120 Cultures & Conflits 67–93. Dezalay, S and Dezalay, Y (2017) ‘Professionals of international justice: from the shadow of state diplomacy to the pull of the market of arbitration’ in A Nollkaemper, J d’Aspremont, W Werner and T Gazzini (eds), International Law as a Profession (Cambridge, Cambridge University Press) 287–310. Dezalay, Y (1992) Marchands de droit. La restructuration de l’ordre juridique international par les multinationales du droit (Paris, Fayard). —— (2013) ‘Les usages internationaux du concept de champ juridique’ 200 Actes de la recherche en sciences sociales 56–69. Dezalay, Y and Garth, BG (1998) Dealing in Virtue. International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago, University of Chicago Press). —— (2002) The Internationalization of Palace Wars. Lawyers, Economists, and the Contest to Transform Latin American States (Chicago, University of Chicago Press).

Africa’s Lawyers  71 —— (2010) Asian Legal Revivals. Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). —— (2011) ‘State Politics and Legal Markets’ 10 Comparative Sociology 38–66. Dias, CJ, Luckham, R, Lynch, DO and Paul, JCN (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law in Development). Diop, M (1971) Histoire des classes sociales dans l’Afrique de l’Ouest (2 vols) (Paris, L’Harmattan). Ellis, S (1996) ‘Africa after the Cold War: New Patterns of Government and Politics’ 27 Development and Change 1–28. Eyal, G (2013) ‘Spaces between Fields’ in PS Gorski (ed), Bourdieu and Historical Analysis (Durham, NC, Duke University Press) 158–82. Farcy, J-C (2014) ‘Quelques données statistiques sur la magistrature coloniale française (1837–1987)’ (2014) Clio@Themis publications-prairial.fr/cliothemis/index.php?id=1367. Ferguson, J (2006) Global Shadows: Africa in the Neoliberal World Order (Durham, NC, Duke University Press). Ghai, Y (1981) ‘Law and Lawyers in Kenya and Tanzania: Some Political Economy Considerations’ in CJ Dias, R Luckham, DO Lynch and JCN Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law in Development) 144–73. Halliday, TC, Karpik, L, and Feeley, MM (eds) (2012) Fates of Political Liberalism in the British Post-Colony. The Politics of the Legal Complex (Cambridge, Cambridge University Press). Harrison, G (2004) The World Bank and Africa: The Construction of Governance States (London, Routledge). Hibou, B (ed) (1999) La privatisation des États (Paris, Karthala). Hobsbawm, E and Ranger, T (eds) (1983) The Invention of Tradition (Cambridge, Cambridge University Press). Hönke, J (2018) ‘Beyond the Gatekeeper State: African Infrastructure Hubs as Sites of Experimentation’ 3(3) Third World Thematics: A TWQ Journal 347–63. Ibhawoh, B (2013) Imperial Justice: Africans in Empire’s Courts (Oxford, Oxford University Press). Kantorowicz, E (1989) Les deux corps du Roi (Paris, Gallimard). Klaaren, J (2015) ‘African Corporate Lawyering and Globalization’ 22 International Journal of the Legal Profession 226–42. Krishnan, J (2012) ‘Academic SAILERS: The Ford Foundation and the Efforts to Shape Legal Education in Africa, 1957–1977’ 52 American Journal of Legal History 261–324. Lardinois, R (2008) ‘Entre monopole, marché et religion. L’émergence de l’État colonial en Inde, années 1760–1810’ 171–72 Actes de la recherche en sciences sociales 90–103. Legendre, P (1992) Trésor historique de l’État en France. L’administration Classique (Paris, Fayard). Luckham, R (1981) ‘Imperialism, Law and Structural Dependence. The Ghana Legal Profession’ in CJ Dias, R Luckham, DO Lynch and JCN Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law in Development) 90–122. Mamdani, M (1996) Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, Princeton University Press). Manji, A (2012) ‘The Grabbed State. Lawyers, Politics and Public Land in Kenya’ 50 Journal of Modern African Studies 467–92. Merry, SE (1991) ‘Law and Colonialism’ 25 Law & Society Review 889–922. —— (2003) ‘From Law and Colonialism to Law and Globalization’ 28 Law & Social Inquiry 569–90. Mitra, D (2020) Indian Sex Life. Sexuality and the Colonial Origins of Modern Social Thought (Princeton, Princeton University Press). Moghalu C (2013) Emerging Africa: How the Global Economy’s ‘Last Frontier’ Can Prosper and Matter (London, Penguin).

72  Sara Dezalay Moulaye, Z, Diabaté, A and Doumbia, Y (2007) Gouvernance de la justice au Mali (Berlin, Friedrich Ebert Stiftung). Mwangi, P (2001) The Black Bar. Corruption and Political Intrigue within Kenya’s Legal Fraternity (Nairobi, Oakland Media Services Ltd). Oguamanam, C and and Pue, W (2016) ‘Lawyers’ Professionalism, Colonialism, State Formation and National Life in Nigeria, 1900–1960: “The Fighting Brigade of the People”’ in W Pue (ed), Lawyers’ Empire: Legal Professions and Cultural Authority, 1780–1950 (Vancouver, UBC Press) 465–83. Puri, S (2021) The Shadows of Empire: How Imperial History Shapes Our World (Oakland, CA, Pegasus Books). Renucci, F and Rhétoré, T (2014) ‘Juristes en coopération. Magistrats et professeurs de droit en Algérie des années 1960 au début des années 1980’ 2 Outre-Mers. Revue d’histoire 187–210. Ross, RJ and Benton, L (eds) (2013) Legal Pluralism and Empires, 1500–1850 (New York, NYU Press). Sacriste, G and Vauchez, A (2007) ‘The Force of International Law: Lawyer’s Diplomacy on the International Scene in the 1920s’ 32 Law & Social Inquiry 83–107. Schmidhauser, JR (1997) ‘The European Origins of Legal Imperialism and its Legacy in Legal Education in Former Colonial Regions’ 18 International Political Science Review 337–51. Shamir, R (2000) The Colonies of Law: Colonialism, Zionism and Law in Early Mandate Palestine (New York, Cambridge University Press). Simonet, T (2010) ‘Les composantes du pouvoir de Félix Houphouët-Boigny en Côte d’Ivoire (1958–1965)’ 368–69 Outre-Mers. Revue d’histoire 403–20. Steinmetz, G (2007) The Devil’s Handwriting. Precoloniality and the German Colonial State in Qingdao, Samoa, and Southwest Africa (Chicago, University of Chicago Press). —— (2013) Sociology and Empire: The Imperial Entanglements of a Discipline (Durham, NC, Duke University Press). —— (2014) ‘Book Review “Focus on Pierre Bourdieu”. Pierre Bourdieu, On the State. Lectures at the Collège de France 1989–1992, Cambridge Polity, 2014’ (2014) Sociologica 3. Subrahmanyam S (2004) From Tagus to the Ganges. Explorations in Connected History (New Delhi, Oxford University Press). The Africa Report (2020) ‘DRC: Albert Yuma and Dan Gertler in complex Gécamines loan dispute’ 7 January www.theafricareport.com/21839/drc-albert-yuma-and-dan-gertler-in-complex-gecaminesloan-dispute/. Vauchez, A (2008) ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda)’ 2(2) International Political Sociology 128–44. Vauchez, A and France, P (2020) The Neoliberal Republic. Corporate Lawyers, Statecraft, and the Making of Public-Private France (Ithaca, NY, Cornell University Press).

4 Lawyers in the Muslim World Between Social Transformation, Judicial Control, and Feminisation MIRJAM KÜNKLER*

I. INTRODUCTION

O

ne of the first things that will strike anyone tasked with discussing the legal ­profession in (select) Muslim countries is that there is more divergence than commonality between their legal systems. Some feature elements of religious law, while others, such as Turkey and the Central Asian Republics, do not; some are ‘rule of law’ states, even electoral democracies (eg Senegal, Tunisia), while others are solidly authoritarian; some have high degrees of organisational stratification in the legal profession (such as Palestine and Egypt), others do not; some are chiefly based on British common law, others on French civil law, and yet others combine elements of customary, religious and Western law. Some are highly integrated into the global legal order (such as Albania, Bosnia, Indonesia, and Turkey), while others (such as Iran and Saudi Arabia) are not. A highly diverse picture emerges, with few traits common to the entire Muslim world. Separately, in some Muslim countries, the top echelons of the legal profession contain a high percentage of non-Muslims, such as Indonesia, where Christians are a strong force, or historically in North Africa where, until the 1950s and 1960s, many leading lawyers and jurists were Jews (cf Gobe Vol 1, ch 33: 658). It is also the case that Muslims are, or used to be, overrepresented among elite lawyers in some non-Muslim countries, especially India and South Africa. A chapter discussing the legal profession in the Muslim world, therefore, confronts challenges similar to those a chapter about the legal profession in the Christian world would: there is simply too much diversity to allow for generalisation, making it wiser to highlight particular characteristics and issues facing the profession in particular Muslim countries. As such, this chapter neither purports nor aims to provide a comprehensive or systematic overview of the legal professions in all 53 countries of the Muslim world, each of which would merit its own monograph. Rather, it represents an effort to map the terrain and identify some of the more important trends and challenges, many of which will be familiar to students of legal professions elsewhere (such as attempts by the state to regulate or even control the profession, corruption, or poor training facilities). To foreshadow some of the more substantive * I thank Rania Maktabi, Tamir Moustafa and Yüksel Sezgin for helpful comments and the lawyers and bar association officials from around the Muslim world who kindly provided me with up-to-date membership data.

74  Mirjam Künkler observations: the three most salient factors affecting the profession today are the status of ­religious law in the country’s legal system and the consequential segmentation of the ­profession; the transformation in the demography of the profession; and finally its mode of regulation, which often reflects the political regime (only the most liberalised regimes allow self-regulation). The chapter is divided into seven sections. Section  II discusses some general vectors of differentiation that distinguish the legal systems in the Muslim world and have significant consequences for the legal profession, including its independence, structure, and institutions of representation. This is followed by an overview of the density and growth of the legal profession in the Muslim world (Section III) and the structure of the bar associations across a number of Muslim countries (Section IV), particularly those discussed in Volume 1. Section V contrasts authoritarian attempts to split the profession with internal initiatives to unify it. Section VI provides an overview of the history and status of women lawyers and judges, before Section VII discusses examples of lawyers’ mobilisation. The chapter concludes with a brief summary of the major trends shaping the profession: segmentation; contestation with authoritarian rule; and convergence within sub-groups of countries towards centralised self-regulation. II.  VECTORS OF DIFFERENTIATION

Like the rest of the Muslim world, the seven Muslim-majority countries discussed in Volume 1 (Egypt, Indonesia, Iran, Libya, Palestine, Tunisia, and Turkey)1 differ along several vectors relevant to the study of their legal systems and legal professions: their colonial or imperial past; the extent to which their legal systems were Islamised; whether they function as rule of law states; and whether their legal professions are unified (‘fused’) or segmented (‘split’). A.  Legal Legacies Five of the seven Muslim-majority countries in Volume 1 (Palestine, Egypt, Libya, Turkey, and Tunisia) were part of the Ottoman Empire. They inherited a plural family law system (one for each recognised religious group) and a public law based on a combination of Ottoman Islamic and secular administrative law, in most cases overlaid by public law reforms undertaken by colonial administrations. These were predominantly British in Palestine, French in Tunisia and Egypt, and Italian in Libya. Turkey and Iran were never colonised but, when constructing their modern legal systems in the twentieth century, adopted much from Swiss, Belgian and French law. B.  Religious versus Secular Law Turkey entirely secularised its legal system in 1924, distinguishing it from that of the other Muslim cases in Volume 1, all of which feature elements of Islamic law. Consequently, the legal profession in Turkey is exclusively secular, and lawyers are not trained in any aspects of Islamic law. Turkey shares this feature with the former Soviet Central Asian republics, which secularised their legal systems and have not re-Islamised them since the breakup of the Soviet Union. The overwhelming majority of Muslim countries, however, feature elements of Islamic 1 In addition, two countries with sizable Muslim populations are included in Volume 1, India and Israel. India alone has more Muslim lawyers than four of the Muslim-majority countries listed here.

Lawyers in the Muslim World  75 law in their legal systems. Most limit Islamic law to family matters: marriage, divorce, custody and usually inheritance. This generally also means that religious minorities in these countries follow either their own religious law or a secular family law. All or most other areas of law (eg constitutional, criminal, commercial, administrative) are nominally secular. Among the seven Muslim case studies in Volume 1, this is true of Indonesia, Egypt, Palestine, Tunisia and Libya, whose legal systems are largely secular even though their family law is overwhelmingly based on Islamic law. Within this group, there are gradations between very conservative interpretations of family law, for example, permitting polygyny and unilateral divorce by the husband (Egypt), and more progressive ones prohibiting such practices (Tunisia). Other countries do not limit Islamic law to family law but include elements of it in their constitutional and criminal law. This is true of the Arab gulf monarchies, Iran, Afghanistan, Pakistan, Bangladesh, Malaysia, Brunei, the Maldives, and the legally autonomous region of Aceh in Indonesia. C.  Rule of Law States Legal systems in the Muslim world generally, including those described in Volume 1, differ in their respect for the rule of law. Judicial independence and a legal profession largely shielded from political interference are hallmarks of a consolidated rule of law. By contrast, the political instrumentalisation of law by the executive, politically inflected appointments of judges, and the corruption (financial or moral) of legal professionals are frequent symptoms of a weak rule of law. Senegal and Jordan occupy the high end of this spectrum in the Muslim world, whereas Afghanistan is at the low end (see Table 1). In some countries, such as Pakistan, Egypt and Malaysia, the legal profession is not independent, but strong lawyers’ and judges’ movements periodically seek greater protection from interference by the executive. D.  Segmented versus Unified Legal Professions How legal systems relate to the three vectors of differentiation strongly affects the nature and functions of the legal profession. Countries that apply secular and Islamic law in different areas of the legal system tend to have segmented legal professions (with lawyers and judges working in either secular or religious courts but not both), which in turn affects the ability of the profession to act collectively. Lawyers in such systems tend to be specialised (or even accredited) to work in only one part of the judicial system, and the training for each system is often entirely separate. In Indonesia, for example, judges in the country’s Islamic courts, which constitute the bulk of the legal system in terms of personnel and finances, are almost exclusively trained in the Sharia faculties of the State Islamic Universities, while those operating in the secular courts study at the country’s secular universities, which offer little or no training in Islamic law (Lukito 2012). The judicial system is, therefore, nearly completely segmented. On top of this particular split of the legal profession, some professions display segmentation between lawyers licensed to appear in court and legal advisors who do in-house legal work (eg in parts of Indonesia).2 2 This split of the profession, more prevalent in common law than civil law countries, has important consequences for appointment and promotion in the judiciary, often excluding women and minorities from the highest judicial positions (Dawuni and Kang 2015).

76  Mirjam Künkler This great organisational diversity in the representation of legal professionals has two chief consequences in countries where the legal profession and the judiciary are struggling for greater independence. On one hand, organisational diversity makes it much harder for lawyers to act collectively and for their institutions of representation to extract rights and privileges from the regime. Instead, bar associations are routinely pitted against each other in repeated games of co-optation and repression (as happened during the later years of Suharto’s New Order). On the other, while unified and centralised bar associations can grow into powerful institutions championing the rule of law,3 their unitary and centralised character also means that when authoritarian rulers manage to subdue and control them (as in Gaddafi’s Libya and Khamenei’s Iran), the entire profession suffers, chiefly because there are no a­ lternative institutions and channels for professional organisation and representation.4 The three vectors of differentiation occasionally overlap and in some cases are causally related to each other. For example, in almost no system strongly influenced by French law is religious law an element in public law. Muslim countries that were once French colonies tend to limit the role of Islamic law to the realm of family law. By contrast, many of the legal systems incorporating Islamic law in public law (constitutional and criminal law) were once British colonies. None of the Muslim-majority countries that were once British colonies is a democracy today (Künkler 2012; Künkler and Leininger 2021),5 but it is also true that those containing significant lawyers’ and judges’ movements pushing for greater professional independence and a stronger rule of law (ie Pakistan, Malaysia, Egypt) are all former British colonies. This counterintuitive finding may be partly explained by the fact that, starting with their training, legal professionals in former British colonies tend to enjoy greater distance from the state and state institutions than those in former French colonies. III.  GENERAL TRENDS: DENSITY AND GROWTH OF THE LEGAL PROFESSION IN THE MUSLIM WORLD

There is a paucity of reliable data on the number of lawyers in the Muslim world. Table 1, ordered by population size, presents data on the number of lawyers where available, their principal regulatory body, and national performance with respect to the rule of law, as measured by the World Justice Project.6 To provide an overview: with a ratio of more than 100,000 people per lawyer, Niger and Burkina Faso lie at the lowest end of the density spectrum; Pakistan, Tunisia, Libya, and Nigeria are mid-range with 1,300–1,500; and Lebanon (500), Turkey (583) 3 Malcolm Feeley, for example, suggests that a united bar is necessary for a rights revolution (2012: 516). 4 This insight informed the initial resistance by Kyrgyz lawyers against efforts in the 2010s to create a unified bar with compulsory membership. Nevertheless, a self-regulatory model with a unified bar association was eventually adopted (Mather and Levin, ch 10 below). Fears that a unified bar may be vulnerable to take-over by the state has also informed the resistance by some Indonesian lawyers to unification of the country’s many bars. This fear has been rendered somewhat obsolete, however, by the right to self-regulation bestowed in 2003. 5 Halliday and Karpik (2012: 4) suggest that the lack of political liberalism in many former British colonies is a consequence of the colonial use of emergency powers and the administrative division of the population along ethnic, linguistic and religious lines, which created long-term polarisation and propensity to conflict. The second aspect is closely related to basing law on religion, which creates different classes of citizenship defined by religious identity. 6 The World Justice Project ranks countries annually with respect to the strength of their rule of law, considering not just the letter of the law but also legal practices. It is based on the experiences of ordinary citizens and the evaluations of legal experts along eight dimensions (each with 3–8 variables): (a) constraints on government powers; (b) absence of corruption; (c) open government (which includes publicised laws and government data, complaints mechanisms, and the right to information); (d) fundamental rights; (e) order and security; (f) regulatory enforcement; (g) civil justice; and (h) criminal justice. For a critical discussion of various rule of law indices, see Versteeg and Ginsburg (2017: 101), who conclude that among the major indices, the WJP ‘uses the most comprehensive definition’.

Lawyers in the Muslim World  77 and the West Bank (539) have the highest density of lawyers per person in the Muslim world, followed by Egypt (615) and Kuwait (700). By comparison, Israel has 164 people per lawyer, the highest in the world (Abel Vol 1, ch 44: 907). The two most populous countries in the Muslim world are Indonesia (270 million) and Pakistan (212 million). But while Pakistan has 161,000 lawyers, Indonesia has less than half as many (about 70,000). Neighbouring Malaysia, with only 30 million people, has more than twice the density of lawyers (1,589 people per lawyer versus Indonesia’s 3,824). Turkey has more than 140,000 lawyers, but Iran, with roughly the same population of 82 million, has only 48,000. Tunisia with 11.9 million people has 8,200 lawyers. Libya, with just over half that population, has 9,000 members of the bar, but only half of these practise. Egypt in 2020 had about 160,000 members of the bar, after it forced out more than 500,000 who did not practise but remained registered because of the social benefits (see Section  IV, below). The Muslim-majority countries of sub-Saharan Africa display great diversity in the ratio of people per lawyer, ranging from 1,291 in Nigeria to about 100,000 in Burkina Faso and 175,000 in Niger (which had only 133 lawyers for more than 23 million people in 2020). Legal professions grew most rapidly in Sudan and Tunisia in the 1990s and 2000s. In Sudan, bar membership increased eightfold within the 20-year period from 1986 to 2006, from 2,000 to 16,000 (Massoud 2012: 209). That period also saw the number of law schools increase fourfold (to 12). In Tunisia, bar membership grew sixfold between 1991 and 2011, while the total labour force grew only 1.6 times. Iran tripled its number of lawyers between 2005 and 2015, from 20,000 to 60,000, by introducing a new category of judiciary-accredited legal advisors who do not take a bar exam and are not organised by the bar. Some countries reward years of professional experience with new entitlements. In Egypt, practice before higher courts is reserved for more experienced lawyers. In Palestine, lawyers with more than ten years’ experience may supervise two apprentices rather than just one. In Libya and Tunisia, only those registered before the bar of the Supreme Court or an Appeals Court may supervise the obligatory two-year apprenticeships of aspiring lawyers. Palestine, Libya and Tunisia also allow former judges to become lawyers. In Palestine, judges may do so after serving in court for a year. In Tunisia, all retired judges may enter private practice. This led to retired judges constituting 22 per cent of all lawyers in Tunisia in the 1990s, before their share declined as new graduates entered the field. In Libya, private practice has become attractive to former judges and prosecutors eager to avoid government control (Carlisle Vol 1, ch 31: 631). The global emergence of a new stratum of lawyers who have international LLM degrees and find work in high-paying international law firms has not bypassed the Muslim world. In Indonesia (Kouwagam and Bedner Vol 1, ch 37) and Libya (Carlisle Vol 1, ch 31), this has split the profession. Both countries have a dozen private law firms (containing less than 0.5 per cent of the country’s lawyers) which meet international standards of professionalism and operate in the globalised world of investment, business and finance. The rest of the profession remains badly trained, unspecialised, and poorly paid, operating in a field of ‘corrupt bureaucracies, incomplete registers, and inconsistent laws’ (Kouwagam and Bedner Vol 1, ch 37: 749). The emergence of a new type of lawyer equipped to operate in the globalised world of finance and business has also affected legal training. In Tunisia, the number of law schools offering LLM degrees doubled from 2004 to 2012/13.7 In Egypt, the American University of Cairo, the British University of Egypt and Pharos International University offer the most 7 Leading to an oversupply of graduates in Tunisia in the mid-2000s, when 68 per cent of those with an LLM degree were unemployed 18 months after graduation (Gobe Vol 1, ch 33:660).

78  Mirjam Künkler popular LLM degrees, often with a specialisation in business or corporate law and comparative law. These LLM degrees are usually very expensive and affordable only by the upper class. Several Egyptian universities have also partnered with French universities to offer dual Egyptian/French degree programmes. Table 1  Population per lawyer, regulatory regime and WJP rule of law score by country/territory Regulatory Regime MBAs LBAs NBA LBAs NBA LBAs MBAs (>80) LBAs (34)

WJP ROL Score .53 .39 .43 .41 .36 .43

WJP Rank in Income Group 5/30 25/30 18/30 21/30 29/30 40/42

.43

41/42

7,033

LBAs NBA SJ

.49 nd nd

31/42 nd nd

2,473 8,500 5,374

LBAs (17) SJ SJ

.5 .47 nd

8/30 14/30 nd

4,600 1,589

NBA NBA

.36 .58

18/19 12/42

133 200 325 4,235 20,000

175,187 102,000 60,153 4,415 845

NBA NBA LBAs NBA SJ SJ

60 in 2015 400

39,750

NBA NBA

8,200 10,000 1,400 in 2018

1,451 1,060 7,214

NBA SJ NBA

nd .45 .51 .44 .52 nd nd nd .55 .42 .54 .57 nd

nd 11/19 4/19 13/19 19/42 nd nd nd 2/30 14/19 3/30 15/42 nd

Population in millions 267.7 212.2 206.6 161.3 98.4 83.6

Number of Lawyers 70,000 161,000 120,000 60,000 160,000 143,330

Iran

81.8

Algeria Sudan Iraq

42.2 41.6 38.4

48,000 (plus 12,000 Article 187 legal advisors) 6,000

Indonesia Pakistan Nigeria Bangladesh Egypt Turkey

Morocco Uzbekistan Saudi Arabia

37.1 34.6 33.7

Afghanistan Malaysia

32.2 31.5

Yemen Niger Burkina Faso Mali Kazakhstan Syria Chad Somalia Senegal Guinea Tunisia Jordan Azerbaijan

28.5 23.3 20.4 19.55 18.7 16.9 16.2 15.9 15.9 12.5 11.9 10.6 10.1

Ratio P/L 3,824 1,318 1,291 2,688 615 583 1,704

38,000 (2007), 6,900 in Kurdistan (2019) 15,000 4,000 6,270 (2019) (487 female, 785 in 2020) 7,000 19,817 (10,782 women)

(continued)

Lawyers in the Muslim World  79 Table 1  (Continued)

UAE Tajikistan Sierra Leone Lebanon Libya

Kyrgyzstan Turkmenistan Oman Kuwait Mauritania Bosnia West Bank Qatar Albania Gambia Gaza Bahrain

Population in millions 9.9 9.5 8 7 6.7

6.5 6 4.8 4.2 4.2 3.3 3.3 2.8 2.8 2.1 2 1.6

Number of Lawyers 1,034 800 14,000 9,000 (4,500 practice) (plus 1,099 people’s lawyers, and 640 government lawyers) 3,000 200–300 1,030 6,000 340 1,692 6,118 480 3,064 200 1,860

Ratio P/L 11,875 500 1,490

2,166 20,000 4,660 700 12,352 1,950 539 5,974 913 10,500 1,075

NBA

WJP ROL Score .65 nd .45 .45 nd

WJP Rank in Income Group 29/37 nd 10/19 37/42 nd

SJ SJ SJ SJ SJ NBA NBA SJ NBA NBA NBA SJ

.48 nd nd nd nd .52 nd nd .5 .5 nd nd

12/30 nd nd nd nd 20/42 nd nd 29/42 5/19 nd nd

Regulatory Regime SJ SJ NBA

Notes: 1  Countries with a population of less than 1 million have been omitted (Brunei, Comoros, Djibouti, Maldives). 2  Number of lawyers here usually denotes members of the bar association(s). Where judiciaries have created additional categories of lawyers (eg ‘People’s Lawyers’ in Libya and ‘Article 187 legal advisors’ in Iran), these are not included in the count or are listed separately. 3  NBA = National Bar Association; LBAs = Local Bar Associations geographically segmented, often with one national umbrella organisation; MBAs = Multiple Bar Associations with overlapping jurisdictions; SJ = State Judiciary. 4  WJP shows the ‘overall score’ per country in 2020; nd = no data Data Sources: 1.  Number of lawyers and P/L ratio are based on personal correspondence with bar associations in Afghanistan (Afghanistan Independent Bar Association – AIBA), Albania, Bangladesh, Egypt, Gambia, Lebanon, Libya, Morocco, Mali, Mauritania, Niger, Palestine, Sierra Leone, Tunisia, the Legal Aid Institute in Indonesia, the Malaysian Bar General Statistics (www.malaysianbar.org.my/article/about-us/malaysian-bar-and-bar-council/about-us/figures/generalstatistics), and the Nigerian Bar Association (nigerianbar.org.ng/). For Iran: Künkler 2017. Otherwise, the IBA, International Commission of Jurists (2014), and The Report on Bar Associations (2018) by the UN Special Rapporteur on the independence of judges and lawyers. 2.  Regulatory Regime Information is based on IBA 2016. 3.  WJP scores are based on WJP Rule of Law Index 2020.

Table 1 includes a country’s performance with respect to the rule of law in 2020 to indicate the environment in which the legal profession operates. That a high density of lawyers need not correlate with a stronger rule of law is illustrated by Egypt, which along with Pakistan and Afghanistan was adjudged to have the weakest rule of law in 2020 across the entire Muslim

80  Mirjam Künkler world. Note that Pakistan is rated the third worst but has the highest absolute number of lawyers and a mid-range ‘population per lawyer’ ratio, comparable to Tunisia. The countries adjudged to have a more robust rule of law are the UAE, Malaysia, Jordan, Senegal, Tunisia, Indonesia, and Kazakhstan. When compared against their income group, however, a slightly different image emerges: Senegal, Tunisia, Indonesia, Burkina Faso, Gambia and Morocco (in that order) are overperforming (Senegal, Tunisia, and Indonesia also consistently top democracy rankings of the Muslim world,8 together with Bosnia and Albania), while some countries judged by the WJP to have a strong rule of law are considered by most political scientists to be thoroughly authoritarian, such as the UAE, Jordan and Kazakhstan, indicating that the WJP better reflects the protection of property rights and enforcement of contracts than effective checks on executive power. Iran, Turkey, Egypt, the UAE, Pakistan and Lebanon (in that order) underperform compared to peers in their income group. The fact that Turkey has almost the same rank as Iran should give one pause. Recent reforms in the regulation of the legal profession, discussed below, are likely to further erode the rule of law in Turkey. IV.  BAR ASSOCIATIONS

Bar associations in Muslim countries exercise functions similar to those performed elsewhere: registering lawyers, granting licences to practise, allocating and establishing rules for apprenticeships, initiating professional promotions, disciplining lawyers who violate professional ethics, occasionally regulating remuneration, drafting laws or commenting on bills in national and regional legislatures, contributing to law school curricula, regulating the admission of foreign lawyers where legally permissible, and supervising disputes between lawyers. The leadership of the bar associations, usually ‘boards’ (‘councils’ in Malaysia, Bangladesh and Pakistan), protects lawyers from attack by state forces and the public, and advocates for the rights of lawyers vis-à-vis the state. Many associations have specialised committees on such topics as human rights, legal training, lawyers’ rights (concerning access to courts, or police and prosecutorial files), women’s issues, and legal aid. Sometimes bar associations are also tasked with accrediting legal studies programmes (eg in Sudan); many convene conferences and training workshops on evolving professional norms. Many also provide legal aid for clients unable to pay for representation. A key issue for the legal profession is whether lawyers have the right to self-regulation. Does their organisation, usually the bar association, enjoy organisational autonomy? Is it internally democratic? Is its leadership elected by its members? (Authoritarian governments often interfere with elections or attempt to select candidates for the association’s board.9) Does the bar have autonomy to formulate criteria for admission and expulsion? (In Mubarak’s Egypt and Ben Ali’s Tunisia, for example, retired judges were encouraged to join the bar in the hope that they might help suppress government criticism and support voices within the bar favourable to the regime.) A related question concerns whether the bar has full autonomy to discipline

8 Polity 4, the Bertelsmann Transformation Index, and Freedom in the World by Freedom House. 9 Other organisational features affect the ability of bar associations to safeguard their autonomy or protect citizens’ rights. For example, ‘[i]n lawyer organisations where a vote by many members is required to take action, efforts to achieve a sufficient consensus may be slow, difficult or altogether impossible. In contrast, in bar associations with committee structures that do not require agreement among a large number of members, it is often easier for the group to act’ (Mather and Levin, ch 10 below).

Lawyers in the Muslim World  81 lawyers for violating the professional code. In Gaddafi’s Libya and post-revolutionary Iran, for example, the state judiciary disciplined lawyers, thereby exerting a high degree of control over the profession, since lawyers habitually fear being held in contempt of court even if they are only performing professional duties, such as demanding access to court files. The legal status of the bar, in other words, is of vital importance and separate from the question of whether the state judiciary is independent. A state judiciary that is independent from the other two branches of government may still exert control over the legal profession; conversely, an independent legal profession may confront a judiciary dominated by one of the other branches (for example, where judges’ appointments are highly partisan and time limited). Independence of one of the two need not go hand in hand with full independence of the other, yet both are needed for a robust rule of law (Tamanaha 2004). In most of the Muslim world, the legal profession was first systematically regulated in the 1960s and 1970s, and many contemporary bar associations are still based on these codes, even if subsequently amended, sometimes following regime change (eg in the aftermath of the Arab Spring). Many gained the right to self-regulation only after democratisation. Thus, lawyers in Tunisia and Libya won the right to self-regulation after 2011, in the Central Asian republics after the breakup of the Soviet Union, and in Indonesia after the end of the Suharto era in 1998. In other systems, such as the six Arab gulf monarchies (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and UAE), the legal profession still lacks the right to self-regulation today: lawyers must seek accreditation from the judiciary. A.  Unitary and Fragmented Models of Lawyers’ Organisation Jurisdictions differ fundamentally in whether lawyers must be members of the bar association in order to practise and whether there is one national association or several. Most jurisdictions in the Muslim world today have one central bar association (sometimes with regional chapters) or a regional distribution of independent bar associations (each responsible for a specific jurisdiction), which often collaborate through a central umbrella association. The alternative model is a fragmented system of competing bar associations operating in the same jurisdiction. Libya, Malaysia, Palestine, Sudan, and Tunisia have one central bar association. In Palestine, the Bar Association is centralised with committees (of 3–7 lawyers) for each of the 16 Palestinian districts. Malaysia also has one national bar association. Libya had one national bar association with seven regional branches until it was dissolved when the profession was ‘nationalised’ in 1981 (in 1990 it was permitted to regroup). Tunisia had multiple bar associations until a national bar association was created in 1963. Iran, Turkey, Morocco and Pakistan have a multitude of independent bar associations, but without overlapping jurisdictions. In Iran, most larger municipalities have their own bar associations (20 in total), which are legally independent but belong to the Bar Association Union, which addresses nationwide concerns. This is also the case in Turkey, which has 80 bar associations, each responsible for a different city or district but cooperating with the others in the Union of Turkish Bar Associations (TBB). Morocco has 17 independent bar associations (barreaux d’avocats), most based in cities, which are united by the Association des Barreaux. Pakistan has municipal, provincial and district level bar associations and those representing lawyers at high courts. Indonesia is sui generis in that several bar associations compete on ideological grounds within one jurisdiction. Following recent legislation, Turkey may soon have a similar model: the law

82  Mirjam Künkler deregulates bar membership and permits the establishment of multiple bar associations along ideological lines, serving overlapping jurisdictions (Cantekin 2020). Egypt used to have multiple bar associations serving different market sectors. After independence, bar associations were segmented by court: state, sharia, and mixed (Bernard-Maugiron and Omar Vol 1, ch 28). Today, Egypt has one bar association (the largest in the Arab world and the largest professional association in Egypt), with 21 regional branches. Lawyers in private practice must be members of the bar in Palestine, Tunisia, Pakistan, Bangladesh, Turkey, and Malaysia but not Indonesia or Egypt. In Iran, ordinary lawyers must be members of the bar, but Article 187 legal advisors certified by the judiciary are not. Similarly, Libyan lawyers must be members of the bar, but the state-salaried ‘people’s lawyers’ are not (Carlisle Vol 1, ch 31: 629). In Egypt, lawyers need not be members of the bar, although most choose to be because of the significant social welfare benefits. In Sudan, lawyers must belong to the national bar association, but those who consider the national bar too secular and common-law oriented have created a rival organisation. B.  Functions and Responsibilities of Bar Associations The functions and responsibilities of bar associations vary significantly between different Muslim countries. Egypt displays a high degree of internal regulation, which results in organisational stratification. For example, only lawyers who have practised for seven years may run for the Board. Furthermore, at least half of the boards must consist of lawyers at higher courts. The bar is chaired by the dean (naqib), who must be able to plead in the country’s high courts, have practised for at least 20 years, and have his or her own firm (Bernard-Maugiron and Omar Vol 1, ch 28). Many bar associations in other parts of the Muslim world do not have comparably extensive regulations that create stratifications between lawyers based on years of service. The stratification within the Egyptian bar is also reflected in the profession at large in that lawyers must have practised for three years to appear in appeals courts and ten years to plead before the Court of Cassation, the Supreme Administrative Court and the Supreme Constitutional Court. The Libyan bar association, like the Egyptian, keeps a list of practising and inactive lawyers (including those suspended or dismissed). Only half of those registered with the bar association actually practise. The Libyan bar is also tasked with authorising non-Libyan lawyers to work in Libya. The bar associations of Egypt, Palestine, and Libya stand out in providing significant social welfare benefits to their members. In Libya, lawyers are entitled to a state pension (per Article 60 of Law 3/2014). In Egypt, bar association membership includes health insurance and a pension (Omar 2017). In the past, this resulted in a situation where even non-practising lawyers tried to remain members. Recently, members have had to prove they practise in order to qualify for benefits, cutting bar membership from 700,000 in 2013 to 350,000 in 2016 and about 123,000 in 2018 (Bernard-Maugiron and Omar Vol 1, ch 28). C.  Bar Associations and Law Reform In Egypt and Iran, the bar associations have played no role in law reform. Nevertheless, they usually comment when legislatures discuss new regulations concerning lawyers, even though this tends to have no effect. In Egypt, invoking a 1982 Advocates Law that explicitly guarantees

Lawyers in the Muslim World  83 lawyers immunity concerning matters contained in their pleadings, the bar in 2018 unsuccessfully protested draft provisions for charging lawyers for offending judges during hearings. In post-2011 Tunisia, by contrast, lawyers were able to effect legislative changes to establish equality with judges and ensure their presence in all organs of the new High Judicial Council (Gobe Vol 1, ch 33: 671).10 In post-2011 Libya, the Bar Association drafted the new legislation governing the profession (Law 3/2014) and was able to obtain full de jure independence. In Turkey in 2014, the bar association drafted a new legal code (including a mandatory bar exam) after rejecting the Ministry of Justice draft. The regulations that were ultimately passed (the 2020 amendments to the Attorneyship Law), however, failed to reflect most of the bar association’s proposals. D.  Barriers to Entry In most Muslim countries, candidates for the bar must have an LLB degree, have completed an approved apprenticeship (usually 18–24 months, but three years in Morocco, only 12 months in Turkey and none in Indonesia), meet an age requirement (often around 25 years), be citizens, have a record and a reputation for honesty and integrity, and pass the Bar examination. Turkey has established but not implemented a bar exam. Some bars also have a maximum age for firsttime registration in order to decrease competition; the Tunisian ceiling at age 50 is intended to prevent retired public servants from qualifying as lawyers to supplement their state pension. In the 1980s, the Tunisian bar tried to lower the maximum age to 40, eventually succeeding after the democratic transition of 2011, but it continues to exempt retired judges from this rule (Gobe Vol 1, ch 33: 659). In Palestine, aspiring lawyers must have a law degree from a Palestinian university or equivalent, but it was not until 1994 that such a degree became available because, according to Qafisheh, ‘Palestinian universities were prevented from initiating law programmes under Israeli occupation’ (Vol 1, ch 32: 648). Since the establishment of the Palestinian Authority (PA), more law schools have been founded, and by 2019 about 9,000 students were enrolled in four-year Palestinian LLB degree programmes. In Sudan in the 1960s, the profession was dominated by graduates of the common-law oriented University of Khartoum. But as graduates of other universities increasingly applied to join the bar, a bar exam was introduced (exempting University of Khartoum graduates) in order to ‘ensure common standards’. Similarly, in light of the increase in the number of Turkish law faculties from 30 to 60 in the five years of 2007–12 (Kalem Vol 1, ch 34), the Turkish Bar Associations Union advocated the introduction of a national bar exam to ensure comparable levels of qualification. Unlike in Sudan, however, the curriculum of all law faculties in Turkey is largely standardised and written by a state institution, the Higher Education Council (YÖK) (ibid: 690). To further restrict access and standardise qualifications, Tunisia and Egypt have created central institutes. Since 2006, the Higher Bar Institute of Tunisia has had exclusive authority over the professional entry exam (CAPA: certificat d’aptitude à la profession d’avocat),

10 They resisted judges’ disciplinary actions by invoking the United Nations Basic Principles on the role of Bar Associations adopted in Havana, 27 August 1990, which declare that public authorities must ensure ‘that lawyers (…) do not suffer or are not threatened with lawsuits or economic sanctions or other forms of pressure when acting in accordance with their recognised professional obligations and standards and their code of conduct’.

84  Mirjam Künkler which previously was administered by law faculties upon graduation. In Egypt, the ‘Advocates Institute’ established in 2017 administers the exams, which must be passed in order to practise before first instance courts. The standardisation and centralisation of the exams have not necessarily improved the quality of entrants, however. Exams often consist of previously published questions (sometimes multiple choice) ‘which require a good memory rather than a capacity for analysis and reflection’ (Bernard-Maugiron and Omar Vol 1, ch 28). In the Central Asian Republics (except Tajikistan) and in the Arab gulf monarchies, the bar exam is administered by the state judiciary, not professional organisations. Sometimes, bar membership requires ideological commitments. Iranian lawyers must profess their belief in Shi’i Islam and the Islamic Republic and declare they have never been a member of an atheist group or a ‘misguided’ denomination (such as the Baha’i faith) or political groups opposed to the Islamic Republic of Iran (Künkler 2017). Iran, Saudi Arabia, Egypt and Libya under Gaddafi stand out in permitting entry to the bar and the judiciary to graduates of religious seminaries (madrasa, hawzah, and Islamic universities such as al-Azhar) rather than restricting access to holders of law degrees from the secular universities. In Egypt, graduates of al-Azhar’s Faculty of Law and Sharia can register with the bar association and become judges or prosecutors even though they have not completed a comprehensive course in Egyptian state law. Similarly, many Iranian lawyers, especially those certified by the judiciary (so-called Article 187 legal advisors), are graduates of the Shiite seminaries. In Indonesia, each bar association has its own entry barriers, which differ in the nature of the exam and the length and form of apprenticeship. Candidates who have fulfilled a bar association’s certification requirements can apply to be sworn in at the high court of their domicile, but success may depend on the relationship of the chair of the court of appeal to the relevant bar association (which may involve patronage). Critics of the quality of legal education lament that law students are trained to memorise laws but not to analyse cases, much less to think critically about the law and legal theory (Kouwagam and Bedner Vol 1, ch 37: 749). E.  Tensions between Lawyers and Judges The relationship between lawyers and judges is fraught with tension in Egypt, Iran, and Tunisia. In Egypt, this is partly an issue of social class. From the lawyers’ perspective, ‘judges despise and disrespect them and consider the judiciary a privileged profession appropriate only for middle class law graduates’ (Bernard-Maugiron and Omar Vol 1, ch 28: 566). In Iran, by contrast, class cuts the other way because the judiciary is dominated by graduates of the religious seminaries, whereas lawyers tend to be graduates of the more prestigious national universities. Here, too, judges despise and disrespect lawyers, but rather because they suspect lawyers of being disloyal to the regime and not committed to the revolution. Lawyers, in turn, often consider themselves better educated than the judges they face, many of whom are from lower-class backgrounds and some of whom became judges after having failed the bar exam. In addition, lawyers are often better paid than judges (Banakar and Ziaee Vol 1, ch 29: 588). In Tunisia, lawyers have long protested the fact that retired judges may join the profession (which they usually do to bolster their meagre public service pensions). After the 2011 democratic transition, the conflict between lawyers and judges intensified as investigating magistrates continued to charge lawyers with contempt of court, despite a law guaranteeing lawyers immunity. In 2014, lawyers secured a constitutional amendment stipulating their

Lawyers in the Muslim World  85 equality with judges (Gobe Vol 1, ch 33: 671). Lawyers were also able to secure their participation in all organs of the new High Judicial Council (Conseil Supérieur de la Magistrature), against which judges protested in vain in 2014 and 2015. Here, too, lawyers were able to legalise their position, relying in part on the legitimacy they won as supporters of the 2011 revolution, in contrast to the judges, most of whom were holdovers from the Ben Ali era. There are counter-examples to the above, namely of solidarity networks between lawyers and judges, more characteristic perhaps of de-democratising regimes where the judiciary itself is under attack by an increasingly authoritarian executive. Section VI provides the example of an entire lawyers’ movement in defence of judges in Pakistan. In Turkey, the Union of Turkish Bars and the Istanbul bar organised a rally in 2007 against the government’s interference in judicial affairs and its efforts to dismiss individual judges. After 2009, the Union of Turkish Bars openly accused the government of replacing sitting judges with loyalists in order to control the judiciary. Since then, the government has largely succeeded in co-opting the Union of Turkish Bars, and oppositional activity has shifted to the large bar associations of Istanbul, Ankara and İzmir. F.  Political Repression of the Bar In post-1979 Iran, Gaddafi’s Libya and Sudan under Bashir, the bar associations have been the direct targets of political repression. In Iran, they were dissolved after the 1979 revolution and only gradually revived and reorganised in the 1990s but were never able to recover the degree of independence they had enjoyed before the revolution (Künkler 2017). Once they were permitted to hold elections again in the 1990s, the regime sought to control who could be a board candidate and simultaneously created parallel training and examination mechanisms for a new kind of lawyer certified by the judiciary. Since the early 2000s, hardliners have prevented board elections and ensured that lawyers loyal to the regime dominate it, with the result that the bar’s human rights work has ended. Lawyers objected in 2009 to a draft law exposing those defending people accused of political crimes to charges of complicity; but the bar’s hands were already tied. After 30 years of struggle between the bar and the judiciary, the latter effectively replaced the board of the bar in 2020 with a judiciary-appointed committee. Several Muslim countries have seen their bars closed down. Bourguiba of Tunisia dissolved the governing boards of the bar associations of Tunis, Sfax and Sousse in 1961 and replaced them with administrative committees. Gaddafi nationalised the Libyan profession in 1981, replacing the Bar Association with a regime-sponsored ‘General Professions Conference’. The bar was permitted to regroup in 1990 but only under the tutelage of the General People’s Congress. After the fall of Gaddafi, the bar achieved de jure independence, although as of 2020 it was still under an unelected caretaker leadership. In Sudan, following the military coup of 1989, Omar Bashir pursued the wholesale ‘manufacturing of an ideologically favourable legal profession’ (Massoud 2012: 216), reminiscent of comparable events in Iran after the 1979 revolution. The leadership of the national bar association was summarily replaced with religiously conservative loyalists committed to strengthening Islamic rule over Sudan. Hundreds of disloyal judges were dismissed and replaced by ideological supporters. In Uzbekistan, a 2008 reform of the legal profession led to the replacement of independent bar associations by an organisation controlled by the state judiciary (International Commission of Jurists 2014: 11).

86  Mirjam Künkler V.  FISSIONS AND FUSIONS IN THE LEGAL PROFESSION

The dynamics of unification and fragmentation, fusing and splitting the profession, are prominent themes in the study of legal professions worldwide. Some of the splits and fusions reflect social or economic developments and are driven from inside the profession; others are political and driven predominantly by the state. The most salient dynamic in the Muslim world is that of authoritarian rulers splitting the profession in order to replace independent lawyers with those who are politically easier to control. But there are also instances of rulers uniting the profession and lawyers themselves initiating processes of fusion. A.  Authoritarian Rulers Splitting the Profession Creating an alternative to the official bar association is a frequent strategy of authoritarian rulers. If it is impossible to control the profession completely, one can force or at least motivate lawyers to organise in associations over which the government has greater influence. This was the calculation of the Suharto regime in Indonesia in 1985, when it established an organisation paralleling the national bar association and encouraged lawyers to join it. The two bar associations persisted through the democratising period after 1998 and evolved into a plurality of bar associations, all functioning in the same jurisdiction and competing mostly on ideological grounds (although some catered to specialisations). The profession was further subdivided in 1995, when – still under Suharto – Law 8/1995 introduced separate licences for litigators who would appear in court and ‘legal consultants’ who would do in-house work. In addition, licences distinguish between those authorised to work nationwide and those who may work in only one province (Kouwagam and Bedner Vol 1, ch 37: 737). Gaddafi split the Libyan legal profession in 1990 between lawyers in private practice and state-salaried ‘people’s lawyers’, as post-revolutionary Iran did in 2000 by introducing ‘legal advisors’ accredited annually by the judiciary. In each country the new category of legal professionals is regulated not by the bar but the state judiciary (thus creating not only occupational but also regulatory splitting). In 2020 the Turkish parliament amended the Legal Professions Act to permit lawyers in the largest jurisdictions (Istanbul, Ankara, and Izmir) to open new bar associations once 2,000 lawyers agreed to do so. Since those bars currently include 46,052, 17,598, and 9,612 members respectively, the amendment creates the possibility of 28 new bar associations with overlapping jurisdictions, in addition to the existing 80. The law also changes the composition of the Union of Bar Associations by significantly reducing the proportion of delegates from large bar associations in favour of those from smaller ones. Critics argue that the amendment will further politicise the profession and create internal division, allowing the executive to co-opt and pit bar associations against each other. The Venice Commission (2020) fears the law will undermine professional independence. B.  Authoritarian Rulers Fusing the Profession Occasionally, authoritarian rulers have done the opposite, uniting a formerly split ­profession. This occurred in Egypt in the 1950s and Tunisia in the 1960s. In both cases, unification seems to have been motivated primarily by modernisation and the desire to impose nationwide standards.

Lawyers in the Muslim World  87 Nasser unified the segmented judicial system of Egypt by transferring the jurisdiction of mixed courts to national courts in 1949 and that of Sharia courts to national courts six years later. Lawyers of mixed and Sharia courts could register at the bar association and plead in all matters before the national courts. A profession that had been divided into three groups was thus fused into one. In Tunisia, a 1963 law created a national Tunisian Bar Association Union, which thenpresident Bourguiba assumed would make it easier for the state to pick its leader, while ostensibly allowing free elections for the governing council. However, the fact that the disparate associations were unified in one organisation gave the bar more leverage to extract resources and independence from the state, which failed to co-opt the bar’s leadership (Gobe Vol 1, ch 33: 659). C.  Fusions and Fissures Driven by the Profession The IBA (2016) has identified a global trend beginning in the 1990s from decentralised local regulations to national systems. This trend is also visible in the Muslim world. In countries where regulation is still entrusted to local bar associations, these have nearly always formed a union, usually located in the capital, which sets national standards and functions as the main interlocutor vis-à-vis the state and the public. Morocco is engaged in a debate about reforming the law on lawyers, in which the profession seeks to establish its monopoly on lawyering (among other goals) by making the drafting of contracts ‘relating to the incorporation of companies and the increase or reduction of capital’ as well as the registration of all contracts, stamp administration, registration in the trade register and land registry the exclusive right of certified lawyers. This appears to be a classic example of what Abel (1985) called market control: professions seeking to influence law in order to enhance their income, maintain their professional power and advance their collective status.11 VI.  WOMEN IN THE LEGAL PROFESSION

Women are notoriously under-represented in the legal profession and only recently have made inroads into the higher echelons of the judiciaries even in Western countries. The fact that high court women judges are still ‘lone stars’, celebrated for their ability to break glass ceilings (one may think of Sandra Day O’Connor or Brenda Hale), speaks volumes about the dramatic under-representation of women in high courts, especially in common law countries. How do women fare in the legal professions of the Muslim world? Did they enter only recently? Are they still largely absent from judiciaries? And where they do serve as judges, are they largely excluded from the highest courts?

11 Relatedly, Boon and Semple (see ch 9 below) observe ‘[T]here is a fused [unified] profession in countries where lawyer hegemony appears to be robust – such as Canada, India, and the US – and fragmented providers in countries where professional regulation is relatively weak, such as Russia and Eastern European countries. While occupational control is not necessarily diminished when sub-professions perform different legal roles, occupational unity may still help to establish and maintain market control.’

88  Mirjam Künkler A.  Women Lawyers Women have been trained and practised as lawyers in the Muslim world for many decades. The first wave joined the profession in the 1920s and 1930s in territories that today comprise Central Asia,12 parts of the Middle East and North Africa (Iran, Syria, Palestine, Lebanon, Turkey, Egypt, Morocco),13 as well Indonesia and Malaysia.14 Iraq saw its first female Muslim lawyer in the 1940s and India and Pakistan in the 1950s.15 In most Muslim countries of Africa, women lawyers entered the profession in the 1960s (Sudan16) and 1970s (Tunisia, Senegal, Somalia).17 In the Arab gulf monarchies, comparable developments occurred considerably later. The first women were certified as lawyers in Kuwait in the 1970s, in Bahrain in the 1980s and in Oman in the 1990s. Saudi Arabia authorised the first woman to defend cases in Saudi courts in 2012, but only if the clients were women. This late development has not translated into significantly lower representation of women in the legal profession compared to other Muslim countries, as will be seen below. The Arab gulf monarchies have caught up quickly. In South Asia, by contrast, the legal professions display the least feminisation. B.  Women Judges In most Western countries, women were only appointed judges several decades after attaining licences to practise law, and it took several more decades before they received high court appointments (Schultz and Shaw 2013); but in the Muslim-Turkic world, the picture looks markedly different. In Turkey and the Central Asian Republics, women were appointed judges about the same time they became lawyers (1930s) and even attained high court appointments, preceding comparable developments in the West.18 The rest of the Muslim world looks more like the West, displaying similar time lags between women entering the legal profession and becoming judges. Indonesia appointed its first female

12 Bilqeyis Haşımzadə was the first female lawyer in Azerbaijan in the 1930s; she was president of the national bar association in 1941–45. 13 For Iran, see the excellent biography (in Persian) of Mehrangiz Manouchehrian (Ardalan and Ahmadi Khorasani 2003). In 1930, Freda Slutzkin became the first female lawyer in Mandatory Palestine. In 1927, Süreyya Ağaoğlu became the first female lawyer in Turkey. Naima Ilyas al-Ayyubi, daughter of a Syrian Christian who converted to Islam, became the first female lawyer in Egypt in 1933 (Reid 2002: 108). Hélène Cazès-Benatar, who was Jewish, became Morocco’s first female lawyer in 1929. 14 In 1927 Julia Adolfs became the first female lawyer of the Dutch East Indies; that year BH Oon was the first female lawyer in British Malaya. 15 Fathima Beevi, an Indian Muslim, took the bar exam in 1950. Salma Sobhan was the first female lawyer in Pakistan in 1959 (Hoque 2012: 6). 16 Sania Mustafa became the first female lawyer in Sudan in the 1960s. 17 In 1970, Leila Khadija Zouari Bel Hassen became Tunisia’s first Muslim female lawyer. There, as in Egypt and Morocco, Jewish women lawyers preceded their Muslim sisters by several decades. The Tunisian Jew Juliette Smaja Zerah was one of the first female lawyers (perhaps the first) in the Muslim word, joining the bar of Tunis in 1916. Bassine Niang became the first female member of the Senegalese bar in 1975 (Gikandi 2003). Caasha-Kin Duale was the first female lawyer in Somalia in 1979. 18 In 1925 Suat Hilmi Berk became the first female judge in Turkey. In 1929, Nagyima Idryskyzy Arykova became the first female President of the Supreme Court of what was then the Kazakh Autonomous Socialist Soviet Republic. About 20 years later, Kydyrbaeva Fatima Chapievna was the first woman Chief Justice of the Supreme Court in Kyrgyzstan (then the Kirghiz Soviet Socialist Republic). Khaditcha Suleymanova became a lawyer in 1935 in Uzbek lands and was the first female Chairperson of the Supreme Court of Uzbekistan in 1964.

Lawyers in the Muslim World  89 judge in 1955,19 nearly 30 years after the first accreditation of a female lawyer. In 1968, Sri Widoyati Wiratmo Soekito became the first woman appointed to the Supreme Court. In neighbouring Malaysia, the first female judge was appointed in 1983, more than 50 years after the first woman qualified as a lawyer.20 In Morocco, the first women judges were appointed in 1960 and in Tunisia in 1968, about 50 years after the first women had entered the legal profession in these countries. In what is today Palestine, the first female judge was appointed in 1973 (a time lag of about 40 years); she became a Supreme Court Justice in 1995 and Justice of the Supreme Constitutional Court of Palestine in 2011.21 In South Asia, where women had entered the legal profession only 20–30 years after their fellow Muslims in Central Asia and Northern Africa, it took them another 20–30 years to become judges. India appointed the first Muslim woman judge in the 1970s (although Hindu and Christian women had attained judgeships already in the 1930s);22 and Pakistan did so in 1969. Twenty years later, the first Muslim women judges were appointed to those countries’ supreme courts (1989 and 1994 respectively).23 In Azerbaijan, which had been one of the first Muslim-majority territories to admit women to the legal profession, Sona Salmanova was the first woman judge in 1998. Seven years later, she became Deputy Chairperson of the Constitutional Court of Azerbaijan, while Südaba Hasanova served as first female President of the Supreme Court of Azerbaijan from 2000 to 2005. Malaysia appointed the first female Supreme Court Justice in 2019.24 By the 2000s and 2010s, most countries in the world had seen the appointment of at least one woman high court judge (Valdini and Shortell 2016), and the Muslim world (other than the six Arab gulf monarchies) has been no exception. In the Arab gulf monarchies, women still are largely excluded from the higher echelons of the judiciary. Oman was the first gulf monarchy to appoint a woman as public prosecutor in 2004.25 The first woman judge was appointed in Bahrain in 2006, followed by the UAE in 2008 and Qatar in 2010 (Maktabi 2019). In Saudi Arabia and Kuwait, it took until 2016 and 2020 respectively for women to be appointed as judges. In Kuwait, this was to no small degree the fruit of years of women lawyers’ advocacy. Bahrain once again was at the forefront of the ‘feminisation’ of the judiciary when, in 2016, it became the first gulf state to appoint a woman to the Constitutional Court (ibid). C.  Feminisation of the Legal Profession By 2010, women amounted to 25–35 per cent of lawyers in most Muslim countries, only slightly less than the 35–45 per cent in most European countries (Choroszewicz and Kay, ch 6 below).

19 On Nn Thung Tjit Nio, see Martyn 2004. 20 Tan Sri Dato’ Seri Siti Norma binti Yaakob was appointed as a High Court Judge in 1983. She later served on the Court of Appeal (1994–2000) and as Chief Judge of Malaysia (2005–07). Tengku Maimun Tuan Mat was the first woman appointed as the Chief Justice of Malaysia (2019). 21 Saada Fawzi Khalil Kamal Dajani took the bar in 1967 and was appointed a prosecutor in 1971. Iman Naser Al-Deen was appointed a judge in 1982 and later a Senior Judge of the High Judicial Council. 22 Fathima Beevi was the first Muslim woman appointed to India’s Supreme Court in 1989. Anna Chandy (1905–1996), a Christian, became the first female judge in 1937 and High Court judge in 1959. 23 Khalida Rashid Khan became a lawyer in 1969 and was appointed as a Judge in the High Court Peshawar in 1974. She later served as the president of the International Criminal Tribunal for Rwanda. Majida Rizvi was the first female Judge in the High Court of Pakistan (1994). 24 Tengku Maimun Tuan Mat, who even became chief justice. 25 Here Jalila bint Sulaiman al-Rawahiya was the first female to serve as Director of Public Prosecutions. She was one of the first 16 women appointed as a prosecutor in Oman in 2004.

90  Mirjam Künkler In a few Muslim countries, such as Malaysia, Tunisia, Turkey and Kazakhstan, the percentages of female lawyers are markedly higher: 51, 43, 43 and 42 per cent respectively (and significantly higher than the 35 per cent in the US, see Abel Vol 1, ch 44: 908).26 By contrast, Afghanistan, the Maldives, Pakistan and Bangladesh, where female lawyers constitute only 5–7 per cent of the profession, are at the low end of the spectrum (Michelson 2013). In the middle range are Uzbekistan (38 per cent), Senegal and Turkmenistan (37), Saudi Arabia (31), Kuwait and Iran (30), Lebanon, Mali and Somalia (29), the West Bank (28, but only 13 in Gaza), Bahrain (27), Oman (25), Morocco (22), and Qatar (19) (Michelson 2013; Maktabi 2019, Deehring 2020). In the Middle East, the share of women in the legal profession is slightly above the share of women in the general labour force (22 per cent) whereas in the other regions, it tends to be below the percentage of women in the labour force (24 in South Asia; 38 in Malaysia and Indonesia; 45 in the Central Asian republics) (World Bank 2017). In a study of the representation of women in the legal profession, Michelson (2013: 1099) observed that ‘almost no country’s legal profession has attained a feminisation level of at least 30 per cent of women before its lawyer density surpassed a level of 2,000 people per lawyer’. In other words, lawyer density, which is partly a function of socioeconomic development, goes a long way toward explaining whether women lawyers constitute at least a third of the legal profession. In many Muslim countries, it was not low lawyer density but a combination of exclusion from the judiciary (few of those countries permit the appointment of women to Islamic courts, see below) and restricted access to university law courses that posed major obstacles for women. Saudi universities, for example, did not admit female law students until 2005. Once this happened, women moved into the profession quite rapidly. In their study of sub-Saharan Africa, Dawuni and Kang (2015) found that whether the legal profession is fused or segmented correlates with the feminisation of the judiciary. Former British colonies often inherited divided legal professions. Lawyers in the most successful firms, where men are overrepresented, have the best chance of being appointed to prestigious judgeships. By contrast, in civil law countries, ‘women and men typically enter the judiciary by taking an examination and attending a postgraduate judges’ school following their undergraduate studies. This means that one may become a judge as early as twenty-five years of age’ (ibid 56; see also Schultz and Shaw 2013: 2–3). The career judiciary in civil law countries allows women to join its ranks early in their careers. In addition, since judges are often subject to random geographic assignments by judicial administrations, women are less likely to seek judgeships if these are available only at an age when they have begun to have children. But even in countries where women now make up a high proportion of the legal profession, such as Turkey, where they constitute 43 per cent, they ‘continue to be much less represented in leadership positions. […] In the nine top foreign lawyer firms, women were only eight of the 37 partners. These results are consistent with other comparisons in the legal field’ (Kalem Vol 1, ch 34: 686). Where the profession is functionally stratified, women tend to be solicitors rather than barristers and law firm associates rather than partners.

26 In Libya, women are 68 per cent of (state-salaried) People’s Lawyers and 61 per cent of government lawyers. These high percentages are not reflected among regular lawyers.

Lawyers in the Muslim World  91 D.  Women Interpreting Islamic Law It is important to differentiate between lawyers admitted to the secular judiciary and those representing clients in Islamic courts or courts applying Islamic law. The numbers cited above overwhelmingly apply to women interpreting secular law. In the realm of Islamic law, restrictions are in place in many countries, not permitting female lawyers accreditation at Islamic courts, or prohibiting them from representing male clients in Islamic courts. For many decades, Indonesia and Sudan were the only two Muslim countries permitting the appointment of women to Islamic judgeships. Ny Prayitno was the first woman appointed as a judge in an Islamic court in Indonesia in 1957 (Lev 1972); Nagua Kemal Muhammad Fareed was the first in Sudan in 1971 (Fluehr-Lobban 1987). Forty years would pass before the West Bank became the next jurisdiction to appoint a woman judge to an Islamic court and grant her full equality with her male colleagues. Malaysia began appointing female judges to Islamic courts in 2010, and Israel did so in 2017. In all five countries, the courts to which women have been appointed deal predominantly with Islamic family law. Objections to women serving as judges in Islamic courts are often justified by reference to the hadith ‘A people who entrust their affairs to a woman will never prosper’. In this vein, Najibah Mohd Zin (2017: 106) has observed for the case of Malaysia: despite the fact that the general courts had appointed female judges from the late 1950s, they regarded women sitting on the bench of the Islamic courts a violation of Islamic legal tradition, especially the Shafi‘i juristic doctrine. It was stated that the reason for denying women the right to be a judge in Muslim contexts was based on [said] hadith.

Nearly all Sunni and Shi‘i schools of legal theory (madhahib) prohibit women from exercising judgeship, although there are more permissive minority opinions in all schools (Bauer 2010). The madhahib dominant in Indonesia and Malaysia (Shafi‘i) and Sudan (Maliki) do not permit women to function as judges. The Hanafi school, by contrast, which is prevalent in South Asia, Central Asia and much of the Middle East and followed by most Muslims in the world today, does permit women to serve as judges in matters other than criminal justice or involving financial affairs (ibid). Irrespective of these prohibitions in Islamic law, however, the female judges appointed in Indonesia, Sudan, Malaysia, West Bank and Israel are entirely equal to their male counterparts. In several instances, the notion of ‘necessity’ in Islamic law, ḍarūra, was invoked to justify the appointment of female judges to Sharia courts (Fluehr-Lobban 1987; Nurlaelawati and Salim 2013: 107), often suggesting that the country lacked qualified Islamic judges and that even many male judges appointed at the time did not meet the full requirements of Islamic law, such as familiarity with classical Islamic legal manuals (Lev 1972). Today, women are 27 per cent of Indonesia’s Islamic court judges and about 20 per cent in Sudan. VII.  LAWYERS’ MOBILISATION

A.  Women Lawyers’ Movements Women lawyers have been at the forefront of public mobilisation in several Muslim countries. In some, like Morocco and Lebanon, their advocacy has concerned reforms in family law, such as women’s rights in divorce, custody and inheritance. In others, like Kuwait, women lawyers

92  Mirjam Künkler have sought greater professional opportunities in the judiciary and the legal profession. In Iran, women lawyers have joined their male counterparts to demand improvements in the rule of law, prison conditions, and the rights of political prisoners. B.  Movements Advocating Family Law Reform In 2004, Morocco passed the most comprehensive family law reform in the Muslim world since Tunisia’s 1956 family law, which had outlawed polygamy, equalised divorce rights and expanded women’s custody rights. The Moroccan reform, the mudawwana, broadly equalised divorce rights, stipulated minimum maintenance payments, and regulated bi-lineal nationality of offspring. While the reform was for the most part justified by re-interpreting Islamic sources, it also brought Moroccan family law into line with the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the 1989 UN Convention on the Rights of the Child (CRC). The Moroccan legal reform has inspired women’s rights movements seeking family law reform throughout the Muslim world, including Kuwait, Lebanon and Iran. In Lebanon, female lawyers joined with other women’s groups to form the Family Rights Network (shabakat huquq al-usra) to advocate for reform of child custody. This is regulated in Lebanon by religiously based family law, which differs by sect. The Network argued that extant custody law across all sects violated mothers’ rights. A woman who initiated a divorce under Islamic family law lost custody of sons at age seven and daughters at nine. The Family Rights Network succeeded in raising this to 12 years for both sexes in 2011. C.  Legal Mobilisation for Women’s Access to Positions in the Judiciary Kuwait has greatly expanded women’s rights in the past 20 years, prompting greater demands for women’s access to judgeships. Women received political rights only in 2005 and were effectively excluded from judgeships until 2014 because only men could become prosecutors, the position from which judges were recruited. Women lawyers sued the Ministry of Justice in 2009 to open prosecutorial positions to women, succeeding in 2014, when 22 female lawyers were admitted to prosecutorial traineeships (Maktabi 2017). Kuwait’s first women judges were appointed in 2020. Occasionally, there are spill-over effects from one religious group to another. For example, the campaign to appoint a woman judge to a Rabbinical court in Israel is driven in part by the 2017 appointment of the first women judge to an Islamic court in Israel (which itself drew inspiration from the appointment of women judges to Islamic courts in the West Bank starting in 2000). In Lebanon, the campaign for family law reform, originating in the Sunni community, inspired female lawyers and advocacy groups in other sects to press their own religious authorities and legislators for change. D.  Movements Advocating Rule of Law Reform In Iran, women lawyers, together with their male colleagues, have been at the forefront of the campaign for the rule of law and political accountability. The most public face of this campaign has been Shirin Ebadi, Nobel Peace Prize Laureate in 2003; but she has been aided

Lawyers in the Muslim World  93 by many other women lawyers, such as Mehrangiz Kar, Shadi Sadr, and Nasrin Sotoudeh, who have courageously defended political dissidents in Iran’s revolutionary courts and, with their male colleagues, effected small improvements in penal law and criminal procedure, such as the citizens’ rights charter and law of 2004 (Künkler forthcoming). E.  A Lawyers’ Movement The most prominent lawyers’ movement in the Muslim world to date emerged in Pakistan in the late 2000s, which successfully defended judges against an increasingly authoritarian executive. The goal was not regime change but rather strengthening the rule of law, reviving the independence of the judiciary, and shielding the legal profession from political interference. This limited scope and single-issue orientation preserved the campaign’s cohesion and shielded lawyers from the intensive repression other reform movements (of students or workers) typically suffer. The catalyst for the Pakistani lawyers’ movement was President Musharraf’s 2007 suspension of Supreme Court Chief Justice Iftikhar Chaudhry, who was hearing the cases of missing persons, mostly political opponents who had been ‘disappeared’ by the military under the pretext of the ‘war on terror’ (Aziz 2012). Chaudhry, who did not accept his suspension, mobilised a coalition of bar associations and councils, whose members took to the streets in repeated confrontations with the police and other security services. Eventually the Supreme Court issued a landmark judgment annulling the suspension and restoring Chaudhry to the bench. The lawyers’ protests ‘fundamentally transformed the political landscape in Pakistan’, leading to the ‘first judicial ruling in the country’s history directly challenging the action of a military dictator’ (Munir 2009). This episode, however, was just the first of several confrontations between legal professionals and the presidency. Chaudhry returned to the bench and accepted a case challenging Musharraf’s eligibility to run for another term. Musharraf responded by declaring emergency rule, pre-empting a judgment in the case, and suspended Chaudhry again, together with 59 other judges. In January 2008, Musharraf was elected for another five-year term but forced to resign seven months later after his continued refusal to reinstate the 60 judges led to a ‘long march’ of protesting lawyers in July of that year and sustained demonstrations across the country. The leader of the opposition at the time, Asif Zardari, won the new presidential election in part by promising to reinstate the deposed judges and pursue the rule of law agenda Chaudhry had initiated. Once elected, however, he changed his mind (probably to forestall cases potentially revealing his involvement in corruption scandals). The lawyers organised a second ‘long march’ in March 2009, mobilising hundreds of thousands, forcing Zardari to reverse the suspension and reinstate the 60 judges. VIII. CONCLUSION

Just as the legal professions in countries of the Muslim world are multifaceted, so is their regulation. In 2016, the International Bar Association published a report comparing the regulation of the profession in 163 counties with respect to the three key stages of the lawyer ‘life-cycle’: admission; ongoing registration; and discipline/exit (IBA 2016). The report documented several global developments. First, a trend towards occupational unity: ‘Where the profession was split between barristers and solicitors (eg former

94  Mirjam Künkler British colonies) or into multiple professions (eg France) it has increasingly been fused’ (IBA 2016: 9). Second, a shift from decentralised to national regulation. Third, a deliberate separation of regulatory and representational responsibilities where self-regulation had already been achieved (eg Denmark, Canada). Relatedly, the report also found a shift from professional oversight of complaints and discipline to complaints commissioners or separate disciplinary agencies (eg in Ireland, Northern Ireland, and the Australian states of Queensland, Victoria and New South Wales). Fourth, a trend towards the professionalisation of lawyer regulation through more specialist agencies (eg the Legal Services Regulation Authority in Singapore). Although the report identified these four trends as prevalent among its 163 cases, that overrepresents the experience of liberal-democratic countries and those with longer and deeper traditions of an independent legal profession. Thus, the identified trends are predominantly driven from inside a profession that has emancipated itself from the influence of state judiciaries and bureaucracies. Such an emancipation has yet to occur in the majority of the world’s legal systems, including in many Muslim countries. How have these trends played out in the legal professions of the Muslim world? While there are examples of the first trend, occupational fusing (such as in Egypt in the 1950s), the more pervasive recent trend in many Muslim countries has been regime-induced splitting. This has occurred where judiciaries have created new legal professions they can control more easily (eg Libyan People’s Lawyers and Iranian ‘legal advisors’) and where nonlawyers have been permitted to exercise lawyerly duties (eg non-lawyers may represent clients in court in Yemen, Egypt, Iran, and Indonesia). The second trend – regulatory unification – is found in a sub-set of Muslim countries, particularly former French colonies. Here, one national bar association regulates entry into the profession and licensing, and decentralised systems of admission and registration have been replaced by national boards. Nevertheless, some of the most populous Muslim countries still exhibit the de-centralised model, including Pakistan, Bangladesh, and Indonesia. In addition, some examples of occupational splitting (such as Libya and Iran) also constitute regulatory splitting since the new categories of legal professionals are regulated not by the bar but by the state judiciary. The third and the fourth trends are hardly discernible in the Muslim world; in fact, not a single system comes to mind where self-regulation has been achieved (full independence from the state) and where at the same time lawyers have also begun to create entities of professional representation separate from their regulatory institutions. Instead, the legal profession in many countries of the Muslim world is characterised by two other trends, one primarily social, the other political. First, in many Muslim countries the legal profession has experienced a profound social transformation from one dominated by advocates of political liberalism, especially in the 1950s and 1960s, to one that is more diverse in both class background and worldviews. In Iran and Sudan, the state-induced Islamisation of the legal system facilitated the upward social mobility of Islamic law experts and necessitated the Islamisation of law school curricula. As a result, the demography of the legal profession diversified dramatically throughout the 1980s. In some countries, the multiplicity of outlooks has gone hand in hand with a polarisation of the profession. In Pakistan – where the world’s largest lawyers’ movement defended the independence of the judiciary from executive interference in the late 2000s – members of a Young Lawyers Movement recently justified the assassination of a judge who refused to recognise the authority of Islamic law (Munger, ch 23 below). There, as well as in Malaysia and Egypt, the legal profession is deeply divided between lawyers who advocate expanding the jurisdiction of Islamic law and those rejecting it.

Lawyers in the Muslim World  95 In the bar associations in these countries, an erstwhile dominance of secular-minded lawyers has been replaced by conflicts between more Islamist-oriented lawyers and those favouring a largely secular legal system. The second trend is the long-running prevalence of high levels of repression against lawyers who resist subjection to the state judiciary. Lawyers suffer physical abuse and legalised repression in many, if not most, countries of the Muslim world, but this depends very much on whether their behaviour has political salience. For example, even though human rights lawyers endure long prison sentences in many countries of the Middle East, thousands of their colleagues remain immune from the wrath of the state judiciary because their cases or behaviour in court do not attract public attention or risk mobilising the public against the government. Taking a bird’s eye view, it is clear that in many Muslim countries, the profession is still more often being acted upon than self-regulating. Interference by the state judiciary in legal regulatory matters is pervasive; and in some countries, such as the Gulf monarchies and Central Asian republics, the state controls entry into the profession and licence renewal. The IBA (2016: 5) describes this as the ‘exclusively government-regulated model’, where it is the government which makes the key decisions relating to entry into and exit from the profession. A bar, where it exists, may play a role in promulgating the code of conduct and supporting lawyers in day-to-day practice but it is the government which calls the shots. This model is most commonly found in the Gulf (eg Saudi Arabia, Qatar, Oman and the UAE), and in some countries of Central and East Asia (eg Tajikistan, Kyrgyzstan, Taiwan, People’s Republic of China and Vietnam).

But no less salient than the trends in professional regulation are the developments regarding women in the profession. By 2020, women made up between a quarter and a third of lawyers in most Muslim countries, only slightly below the 35–45 per cent prevalent in Western Europe and North America. In a few Muslim countries, specifically Kazakhstan, Tunisia, Turkey and Malaysia, the percentages of female lawyers are markedly higher (42–51), far exceeding comparable rates in the US, for example (35). After long periods of exclusion from Islamic judiciaries, since the 2010s women have also increasingly been appointed as prosecutors and judges in Islamic courts. Environments with professional self-regulation and more politically liberal governments do not display particularly high levels of feminisation, thus confounding expectations. Instead, countries with the highest levels of feminisation today are those with long histories of promoting women’s participation in the workforce more generally. It appears that social attitudes towards women’s employment have been changed so effectively there that even contemporary policies undermining the independence of lawyers and religious injunctions discouraging women from working as lawyers and judges cannot dissuade women from seeking careers in the law. REFERENCES Abel, RL (1985) ‘Comparative Sociology of the Legal Professions: An Exploratory Essay’ 10 American Bar Foundation Research Journal 1. Ardalan, P and Ahmadi Khorasani, N (2003) Senator: fa’aliyathaye Mehrangiz Manouchehrian dar bestar mabarzat Hoquqe Zanan dar Iran (Tehran, Nashr-i Tawsi‘ah) (in Persian). Aziz, S (2012) ‘Liberal Protagonists? The Lawyers’ Movement in Pakistan’ in T Halliday, L Karpik and M Feeley (eds), Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) 305–39. Bauer, K (2010) ‘Debates on Women’s Status as Judges and Witnesses in Post-formative Islamic Law’ 130 Journal of the American Oriental Society 1–21.

96  Mirjam Künkler Cantekin, K (2020) ‘Turkey: Parliament Passes Major Amendments to Law on Legal Practitioners’ Global Legal Monitor 17 July www.loc.gov/item/global-legal-monitor/2020-07-17/turkey-parliamentpasses-major-amendments-to-law-on-legal-practitioners/. Dawuni, J and Kang, A (2015) ‘Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa’ Faculty Publications: Political Science 70 digitalcommons.unl.edu/poliscifacpub/70. Deehring, M (2020) ‘The emerging legal profession in Qatar: diversity realities and challenges’ 27 International Journal of the Legal Profession 219–43. Feeley, MM (2012) ‘Judge and Company: Courts, Constitutionalism and the Legal Complex’ in TC Halliday, L Karpik and MM Feeley (eds), Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) 493–522. Fluehr-Lobban, C (1987) Islamic Law and Society in the Sudan (London, Frank Cass). —— (2012) Sharia and Islamism in the Sudan: Conflict, Law and Social Transformation (London, Routledge). Gikandi, S (ed) (2003) Encyclopedia of African Literature (New York, Routledge). Halliday, TC and Karpik, L (2012) ‘Political Liberalism in the British Post-Colony: A Theme with Three Variations’ in TC Halliday, L Karpik and MM Feeley (eds), Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) 3–57. Harding, A and Whiting, A (2012) ‘“Custodian of Civil Liberties and Justice in Malaysia”, The Malaysian Bar and the Moderate State’ in TC Halliday, L Karpik and MM Feeley (eds), Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) 247–304. Hoque, R (2012) ‘Gender and the Legal Profession in Bangladesh: Achievements and Challenges’ 3 Journal of Law & Social Research 45–64. International Bar Association (2016) Findings from the Directory of Regulators of the Legal Profession (London, IBA) www.ibanet.org/MediaHandler?id=1ecea440-9157-4a78-b4b5-6559c7d2876c. International Commission of Jurists (2014) Independence of the Legal Profession in Central Asia (Geneva, ICJ). Jacobs, S (2020) ‘Opposition to Israel’s first Qadiya’ 47 British Journal of Middle Eastern Studies 206–23. Künkler, M (2012) ‘Religion-State Relations and Democracy in Egypt and Tunisia: Models from the Democratizing Muslim World – and their Limits’ 18 Swiss Political Science Review 114–19. —— (2017) ‘Rule of Law or Rule by Law? Iran’s Bar Association as a pawn in Islamic-republican contestations’ in S Tellenbach and T Hanstein (eds), Beiträge zum Islamischen Recht XII (Leipziger Beiträge zur Orientforschung) (New York, Peter Lang) 13–153. —— (forthcoming) ‘Governing the Law in the Islamic Republic of Iran’ in H Enayat and M Künkler (eds), The Rule of Law in the Islamic Republic of Iran: Power, Institutions, and Prospects for Reform (New York, Cambridge University Press) ch 1. Künkler, M and Leininger, J (2021) ‘The Muslim Democratic Decade’ Paper prepared for the International Political Science Association 26th World Congress of Political Science 11 July. Lev, DS (1972) Islamic Courts in Indonesia (Berkeley, University of California Press). —— (1978) ‘Judicial Authority and the Struggle for an Indonesian Rechtsstaat’ 13 Law & Society Review 37–71. Lukito, R (2012) ‘The Training, Appointment, and Supervision of Islamic Lawyers in Indonesia’ 21 Pacific Rim Law & Policy Journal 65. Maktabi, R (2016) ‘Female Lawyers in Morocco, Lebanon and Kuwait Speak after 2011’ in The New Middle East: Emerging Political and Ideological Trends 2015/2016 (Oslo, University of Oslo/Department of Culture Studies and Oriental Languages). —— (2017) ‘Female Lawyers on the Rise in Kuwait: Potential Agents of Reform?’ 163 Middle East Insights (Singapore, National University of Singapore, Middle East Institute). —— (2019) ‘Courting Women in the Gulf Monarchies: State Power, Gender and Judging’ Paper presented at Gulf Research Meeting. Martyn, E (2004) The Women’s Movement in Postcolonial Indonesia: Gender and Nation in a New Democracy (Abingdon, Routledge).

Lawyers in the Muslim World  97 Massoud, MF (2012) ‘Lawyers and the Disintegration of the Legal Complex in Sudan’ in TC Halliday, L Karpik, and MM Feeley (eds), Fates of Political Liberalism in the British Post-Colony. The Politics of the Legal Complex (New York, Cambridge University Press). Michelson, E (2013) ‘Women in the Legal Profession, 1970–2010: A Study of the Global Supply of Lawyers’ 20 Indiana Journal of Global Legal Studies 1071–1137. Mohd Zin, N (2017) ‘Female Judges in Malaysian Shariah Courts: A Problem of Gender or Legal Interpretation?’ in N Sonneveld and M Lindbekk (eds), Women Judges in the Muslim World: A Comparative Study of Discourse and Practice (Leiden, Brill) 153–77. Mossman, MJ (2006) The First Women Lawyers. A Comparative Study of Gender, Law and the Legal Professions (Oxford, Hart Publishing). Moustafa, T (2007a) The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge, Cambridge University Press). —— (2007b) ‘Mobilizing the Law in an Authoritarian State: The Legal Complex in Contemporary Egypt’ in TC Halliday, L Karpik and MM Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) 193–218. Munir, D (2009) ‘Struggling for the Rule of Law: The Pakistani Lawyers’ Movement’ 251 Middle East Report 37–41. Nurlaelawati, E and Salim, A (2013) ‘Gendering the Islamic Judiciary: Female Judges in the Religious Courts of Indonesia’ 51 Al-Jāmi‘ah 247–78. Omar, M (2017) ‘Lawyering in Egypt: Regulation and Reform’ Legal Agenda (May). Reid, DM (1981) Lawyers and Politics in the Arab World, 1880–1960 (Minneapolis, Bibliotheca Islamica). —— (2002) Cairo University and the Making of Modern Egypt (Cambridge, Cambridge University Press). Saad-Zoy, S (ed) (2010) Femmes, droit de la famille et système judiciaire en Algérie, au Maroc et en Tunisie (Paris, UNESCO). Schultz, U and Shaw, G (2013) ‘Introduction’ in U Schultz and G Shaw (eds), Women in the Judiciary (London, Routledge). Sonneveld, N and Lindbekk, M (eds) (2017) Women Judges in the Muslim World: A Comparative Study of Discourse and Practice (Leiden, Brill). Tamanaha, B (2004) On the Rule of Law: History, Politics, Theory (New York, Cambridge University Press). Tashkent Times (2019) ‘There are 4,000 advocates in Uzbekistan with its population of 33 million’ 25 December 2019 www.tashkenttimes.uz/national/4797-there-are-4-000-advocates-in-uzbekistan-withits-population-of-33-million. UN Special Rapporteur on the independence of judges and lawyers (2018) Bar Associations: Report www.ohchr.org/EN/Issues/Judiciary/Pages/ReportGAOnBarAssociations.aspx. Valdini, ME and Shortell, C (2016) ‘Women’s Representation in the Highest Court: A Comparative Analysis of the Appointment of Female Justices’ 69 Political Research Quarterly 865–76. Venice Commission (2020) Turkey – Joint Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on the July 2020 amendments to the Attorneyship Law of 1969, adopted by the Venice Commission at its 124th online Plenary Session (8–9 October). Versteeg, M and Ginsburg, T (2017) ‘Measuring the Rule of Law: A Comparison of Indicators’ 42 Law & Social Inquiry 100–37. World Bank (2017) Proportion of labour force who are women ourworldindata.org/grapher/proportionof-labor-force-who-are-women. World Justice Project (2020) Rule of Law Index 2020 (Washington, DC, WJP).

98

5 Post-Socialist Legal Professions Jurisdictional Volatility, Changing Regulatory Logics and the Return of Guilds RAFAEL MROWCZYNSKI

I.  INTRODUCTION: STATE-SOCIALIST AND POST-SOCIALIST TRANSFORMATIONS

T

he state socialist past and the fundamental societal changes that occurred in the Soviet Union and Central Eastern Europe (CEE), as well as some East Asian countries, have created a ‘post-socialist world’. This concept is consistent with a ‘­multiple modernities’ paradigm (Eisenstadt 2000), which sees ‘communism’ as ‘a distinctive but ultimately self-destructive version of modernity, rather than a sustained deviation from the modernizing mainstream’ (Arnason 2000: 61). Major societal changes such as industrialisation, urbanisation, functional differentiation and bureaucratisation – crucial for the rise of modern professions (Hughes 1984b: 374; Larson 1977: 76; Parsons 1968: 545; Perkin 1996) – had been initiated by pre-socialist regimes and were radicalised during state socialism (Mrowczynski 2010: 34, 157–62; Plaggenborg 2006: 18–19, 48–49; Segert 2019). These were accompanied by the emancipation of women and the expansion of formal education.1 Law was a highly ambiguous phenomenon in state socialist countries. For an ideology that believed in the withering away of the state, law was a relic of the bourgeois past, which was supposed to disappear with the state itself in the coming communist social order (Krygier 1990: 655; Westen 1988: 240–41). In reality, however, the state did not disappear but rather became the major instrument of social coordination and change after being tightly bound to the hierarchic (ie bureaucratic) ruling party (Mrowczynski 2010: 158; Staniszkis 1992: 2). On one hand, the administrative state implemented policies of the political (party-state) leadership in a technocratic manner. On the other, the Soviet leadership quickly realised that a complex society cannot be ruled solely by ideological slogans, top-down orders and repressive practices. As a consequence, law was revitalised after a short period of legal nihilism, although always within a politicised context and frequently for the purposes of persecution (Huskey 1992; Łoś 1988: 297; Sharlet 1977; Shelley 1996). Socialist law never acquired the high degree of autonomy characteristic of ‘juridical fields’ (Bourdieu 1987) in North American and Western European countries. Hence, the best 1 Admittedly, there is also an opposing view in the social-scientific literature on state-socialist countries. It argues that these societies were not ‘modern’ but rather ‘pre-modern’ due to their institutional peculiarities (see Srubar 1991: 427–29; Tatur 1995: 112; 1999: 197–201).

100  Rafael Mrowczynski theoretical framework for understanding legal systems and practices in state-socialist countries seems to be a modified concept of the dual state,2 first developed by Fraenkel (2017) in his analysis of the administration of justice in early Nazi Germany (1933–38) and then adapted to the Soviet context by Sharlet (1977; see also Ioffe 1985: 1; Plaggenborg 2006: 201–20; Staniszkis 1992: 79–82). In all functionally differentiated societies – including those in state-socialist countries – law implies the existence of specialised occupational groups performing different aspects of legal practice (Friedman 1989: 5; Rueschemeyer 1973: 7). These constituted the legal professions of state-socialist countries under the broad functional definition proposed by Sommerlad and Hammerslev (Vol 1, ch 1: 4). The analysis of legal professions in post-socialist contexts requires a basic understanding of the socialist past, because a significant part of post-socialist transformations was a recombination and modification of elements originating in the late-socialist order (Stark 1996; Stark and Bruszt 1998; Kotkin and Beissinger 2014). Even institutional transplantations from the West were usually adopted selectively, reflecting history, institutional opportunity structures and the orientation frames of key actors. Sometimes such transplants were the results of ‘imitative creativity’ (eg the legal foundations of Russian advocates bureaux; see Mrowczynski 2016b: 152). Social scientific research on post-socialist transformations emphasises the complexity of these processes compared to other systemic reforms studied by comparative transitologists (Armijo et al 1995; Bunce 1995; Ekiert 2003: 293–94; Kollmorgen 2019: 349; Offe 1991). There were four major dimensions of post-socialist transformations, each with implications for law. 1

Politics. There was a fundamental change from a party-state dominated by the pinnacle of the nomenclatura to representative multi-party democracy (Lane 2014: 199–201) and a ‘law-based state’ (Berman 1992: 47) with an administrative apparatus subjected to law and judicial review. Law was de-politicised and its constitutional and administrative domains expanded. 2 Economy. There was a fundamental shift from centralised system-wide management underpinned by complex informal networks towards market-driven coordination of socio-economic activities (Kollmorgen 2019: 356–59; Lane 2014: 165–67), a change from plan to contract echoing Maine’s (1861) idea about the nineteenth-century transition from status to contract. As a consequence, civil and corporate law practice experienced a massive expansion. 3 Society. The post-socialist transformations facilitated the emergence of civil society constituted by self-regulated associations (Lane 2014: 215–31), which displaced official transmission-belt organisations (eg the Communist Youth League, also known as Komsomol; see Solnick 1998: 60–124). Bar associations and other organisations of legal professionals often spearheaded these processes (Antkowiak 2012: 105; Wykrętowicz 2010: 21). 4 Transnationalisation. After the Berlin wall fell and the Iron Curtain disappeared, the former Eastern Bloc opened to the West. Some formerly state-socialist countries located in CEE joined NATO and the EU. The latter action implied adoption of the ‘Acquis Communautaire’ (Merkel et al 2019: 9), subsuming national systems of adjudication under European judicial institutions. EU-sponsored intergovernmental pre-accession programmes facilitated this adaptation (Hammerslev 2011). And all post-socialist countries were integrated in some way into the global capitalist economy including its regulatory framework (Lane 2014: 233–46).

2 Despite

some recent criticism; see Huemer (2012) and von Puttkamer (2012: 11–15).

Post-Socialist Legal Professions  101 State socialism was never homogenous across countries, regions and republics of the USSR. Although Soviet institutions had served as a model for other Eastern Bloc countries, there was usually space for adaptations. More recent studies of the state-socialist past in CEE postulate ‘variet[ies] of state socialism’ (Ekiert and Ziblatt 2013: 101) analogous to the ‘varieties of capitalism’ (Hall and Soskice 2001). The post-socialist era has seen further political, economic and societal diversification across this vast region stretching from the Baltic to the Pacific (Kitschelt 2003: 49). Hence, it is even more appropriate to speak of ‘varieties of post-socialism’ (King and Szelenyi 2005: 205; Lane 2014: 247–58; Stark and Bruszt 2001). And these varieties grow even more dissimilar when analysis is extended to non-European countries that at some point developed full-fledged state-socialist regimes, such as the People’s Republic of China and the Democratic Republic of Vietnam. Post-socialist countries differed in how and to what extent they rejected the state-socialist past. While many CEE states and the three Baltic republics of the former USSR radically broke with the state-socialist model by adapting Western political institutions and developing ­‘capitalism from without’ (King and Szelenyi 2005: 218–20), many post-Soviet states implemented much more gradual transformations. Integration into the West also took quite different forms: the German Democratic Republic (GDR) ceased to exist after its voluntary integration as New Federal States (Neue Bundesländer) into the neighbouring capitalist country – Federal Republic of Germany (Bluhm 2010: 208–13), which became the most populous and economically powerful member of the EU. Poland experienced a radical socio-economic transformation, often called ‘shock therapy’, while Hungary became a market economy much more gradually (King and Sznajder 2006; Popov 2000). At the other end of the spectrum, the People’s Republic of China and the Democratic Republic of Vietnam officially remain socialist states and are ruled by one-party regimes that claim to be communist. Varieties of Marxist ideology (not to be confused with Marx’s critical social theory) continue to serve as their official state doctrine. But at the same time, these two Asian-socialist countries have introduced far-reaching economic reforms and had experienced deep societal changes in the 1980s (years before anybody seriously predicted the collapse of the USSR). As a consequence, China and Vietnam have departed far from the state-socialist economic model and are now integral parts of the global capitalist economy. China is also becoming a game-changing player in the global system. II.  KEY THEORETICAL CATEGORIES

Freidson (2001: 2–3) distinguished between three logics for coordinating social division of labour: (1) ‘the logic of competition in a free market’; (2) ‘the managerial notion that efficiency is gained by minimizing discretion’; and (3) professionalism understood as ‘a set of interconnected institutions providing the economic support and the social organization that sustains the occupational control of work’. This last means that ‘an organized occupation gains the power to determine who is qualified to perform a defined set of tasks, to prevent all others from performing that work, and to control the criteria by which to evaluate performance’ (ibid: 12).3 3 I question the second part of this definition. State authorities, not organised professions, sanction unlicensed practitioners. Professions may report instances of unlicensed practice, but government agencies and judiciaries are responsible for punishing those who violate professional admission rules. Disciplinary panels of organised professions have no jurisdiction over non-members. This makes all professional self-regulation dependent on the enforcement capacities of the state (Burrage 2006: 29; Freidson 2001: 87). Aside from many other factors, it also distinguishes

102  Rafael Mrowczynski He also argued that these three logics – understood as Weberian ideal types – are opposed to each other.4 I have modified Freidson’s framework to focus on the institutional settings that determine who can be a lawyer. In the first ‘market logic’, clients (individuals or organisations) freely choose legal advisors and representatives without formal restrictions. In its purest form, the market logic includes the possibility of legal representation by laypeople. Strictly speaking, market logic is not a regulatory logic in the domain of professional activities. State regulation is limited to the minimum necessary for market interactions (protection of property rights, prohibition of dishonesty, etc). It is a ‘spontaneous’ socio-economic order in Hayek’s (1998) sense – a neoliberal or libertarian utopia. In the second ‘state-administrative logic’, state institutions license those qualified to practise. Potential clients are then free to choose legal advisors and representatives from licensed practitioners. There are two main subtypes: either government agencies (usually the Ministry of Justice and its subordinated units) or the judiciary are charged with admissions and regulation. The first is more common; the second accords greater autonomy to jurists but only if the judiciary is sufficiently independent from the other two branches. The third ‘self-regulatory logic’ corresponds to Freidson’s concept of professionalism: practitioners (who can be freely hired by clients5) must first be admitted by a compulsory organisation of all practitioners (eg a Bar Association or Chamber of Advocates). An analogy is judges appointed by their own representative body (eg a Council of the Judiciary in Poland until very recently) rather than by state officials or parliamentarians (eg in Poland since the most recent judicial reforms; see Bucholc and Komornik 2018; Sadurski 2019: 99–106). My definitions of the first and the third regulatory logics are compatible with Freidson’s categories, but my conceptualisation of the second represents a major modification. Freidson focused on the control of individual professional conduct within hierarchically managed (bureaucratic) practice settings. My concept of the state-administrative logic is based on institutionalised licensing power. A bridge between these two might be found in the idea that managing hierarchies – in my conceptualisation, hierarchic state institutions – seek to eliminate discretion from professional admission practices. Another conceptual link is specific to state socialism, one of whose foundational ideas was the rational and scientifically grounded regulation of all aspects of social life by a single (although highly complex) administrative organised professions from mafias or ‘violent entrepreneurs’ (Volkov 2002), who use their own manpower (in the literal sense) to discourage ‘unlicensed’ competitors (Mrowczynski 2012: 170 n 4). 4 Noordegraaf (2007: 771–72, 776) criticises Freidson’s approach as ‘purified professionalism’ because it allegedly ignores that the three different ‘logics’ do in fact interpenetrate ‘at working floors and street levels’ of professional practices. This interpenetration is empirically true, but Weberian-style ‘ideal types’ – Freidson’s (2001: 8–10) explicit methodological reference – are still very helpful in analysing such ‘hybrid’ realities, because they allow us to specify which operational logics are hybridised or blended. The same is true for my own (modified) adaptation of Freidson’s typology: it is to be used as a conceptual frame for analysing different institutional constellations of (self-)regulatory regimes which can (and often do) combine different ideal-type ‘regulatory logics’. 5 Clients – both individual and corporate – can and do choose their lawyers, but their selection is limited to those individuals (or organised groups, usually called law firms) who have been licensed by lawyers’ self-governing organisations. For this reason, I also think that the widely used term ‘professional monopoly’ is misleading because organised bars never act as unitary suppliers of legal services. They are fundamentally different from a company that owns the entire rail infrastructure (eg DB Netze [German Railway Networks]). Individual members of organised bars (or groups of members, ie law firms etc.) often fiercely compete with each other for clients, but this competition is limited to licensed members of the profession and often subjected to further regulations (on fees, advertising, etc). Hence it would be more accurate to call organised professions ‘cartels’. The only situation when clients have no choice of legal counsel is ‘criminal defence on appointment’ (zashchita po naznacheniiu; obrona z urzędu) in countries like Russia (Bocharov and Moiseeva 2017: 52–58) or Poland. In such cases, a judge, prosecutor or police investigator, Bar chamber or (more recently in some Russian regions) a computer algorithm selects a defence counsel for a suspect or defendant who cannot afford to pay an attorney.

Post-Socialist Legal Professions  103 hierarchy. The allegedly irrational, wasteful and inefficient discretion of market actors was supposed to be eliminated by an all-encompassing management performed by the partystate leadership with its vast executive apparatus (Mrowczynski 2010: 158–59). This brief discussion reveals that the state-administrative logic played the major role in regulating legal occupational groups under state socialism, and post-socialist transformations implied departures from this logic. My second major theoretical framework is jurisdiction (Abbott 1986; 1988; 2005), which denotes a set of work activities or services that constitute the exclusive practical domain of an occupational group. Professions usually seek to control a jurisdiction, but such jurisdictional claims often collide with each other, causing jurisdictional conflicts, which Abbott sees as the main force behind historic evolutions of different systems of professions. Whenever a profession succeeds in securing an exclusive right to perform certain services, its jurisdiction becomes institutionalised. This institutionalisation can be based on the stateadministrative logic, the self-regulatory logic, or both. Under the market logic, there are no institutionalised jurisdictions because there is no mechanism to stop clients from hiring service providers perceived as unqualified and incompetent by most other providers. Weaker forms of jurisdictional institutionalisation, however, are compatible with the first logic, eg a voluntary association of practitioners can succeed in convincing potential clients that it is too risky to obtain certain services from other suppliers. III.  A COMPARATIVE SURVEY OF POST-SOCIALIST COUNTRIES

A.  An Outline of the Comparative Approach The four interconnected dimensions of post-socialist transformations outlined in the first section of this chapter constitute the main matrix for analysing legal professions in postsocialist contexts. Economic changes and political reforms have had a particularly significant impact on how law is practised and practitioners are organised. These factors explain some overarching similarities but also account for differences among post-socialist countries. The selection of national reports follows a broader definition of post-socialism, which might be questioned by some. Critics may argue that the People’s Republic of China and the Democratic Republic of Vietnam are not post-socialist but rather socialist or communist, since they are still ruled by communist party-state regimes. I do not question this political difference but note that both China and Vietnam have introduced far-reaching market reforms (including integration into global capitalist markets), which have led their economies to depart greatly from the state-socialist model – a nation-wide management of economic activities within a nearly autarkic space. Inclusion of these two countries will also advance comparison by contrasting the full-fledged economic and political transformations in CEE countries with the limited transformations (mainly economic) in Asian-socialist countries. The main focus of my comparison will be on private practitioners, for three reasons. The first reason is practical: although the national reports discuss many different professional groups, private practitioners constitute their common ground. The second reason is rooted in the nature of post-socialist transformations: private practitioners were most strongly affected by these changes because market-oriented reforms fundamentally reconfigured the socio-economic environment, institutional structures and content of private practice. The third reason is historical: advocates were an unusual occupational group in many state-socialist countries because they enjoyed a degree of individual independence and

104  Rafael Mrowczynski institutionalised collective autonomy (Burrage 1990: 441–44; 1993: 573; 2014: 70; Jordan 2005: 29–30; Mrowczynski 2016a: 163; Shaw 2003: 328), which distinguished them from the vast majority of workers characterised by Zaslavsky (1995) as ‘state-dependent’. They constituted a ‘proto-profession’. Indeed, the Polish Bar of the 1980s might even be called a proper profession with self-regulating institutions (Antkowiak 2012: 104; Mrowczynski 2012: 181–83; Redzik 2007: 100–101). B.  Market Reforms, Numerical Growth and Jurisdictional Volatility The most important trend in all eight countries is the rise of market interactions as a result of economic reforms introduced by the beginning of the 1990s, which had a threefold impact on legal professions. 1

2

They created new categories of clients as state enterprises that had operated within the centrally managed economy were privatised and new private businesses were established (Balcerowicz 2009: 227; Dallago and Guglielmetti 2019: 604; Kollmorgen 2019: 356). Some national reports illustrate the growth of the potential market for legal services. In Poland, the number of commercial law companies (spółki prawa handlowego) grew almost fourteenfold between 1990 and 2016, while the number of all business entities (including individual entrepreneurs) increased by 161 per cent from 1.14 million to 2.97 million. Globalisation contributed to this trend, opening access by Western companies, which introduced new economic actors and potential clientele. Big transnational law firms also moved into all post-socialist countries on the coat-tails of Western corporations, but their expansion did not result in an influx of Western lawyers because those firms are predominantly staffed by local lawyers licensed to practise in the jurisdiction.6 The economic transformation meant a fundamental change in the dominant socialcoordination mode from plan (and informal networking) to contract. The social-historic literature on legal professions (Friedman 1989: 7–9; Rueschemeyer 1973: 3) suggests that the emergence of many potential private clients is a key precondition for the rise of privately practising lawyers. In nascent post-socialist market economies, myriads of private companies and individual entrepreneurs started to regulate their interactions in a decentralised fashion. Civil law, which had existed in a diminished form under state socialism, experienced a sudden expansion, as did related legal domains that either were entirely absent under socialism or relegated to obscure niches (eg corporate law in Poland). As a consequence, the content and volume of legal practice has grown rapidly, creating the expectation that lawyers – ‘quintessentially the priests of property’ (Abel and Lewis 1989: 485) – will be among the major winners of post-socialist transformations (Fogelklou 1992: 3; Lewinbuk and Shenfield 2008: 7). The number of new civil cases in Russia grew from 4.8 million to around 13 million between 2000 and 2016 (when there were another 5.5 million cases of other types). In Poland, the number of new court cases

6 In Russia, international law firms, most of them in Moscow, usually hire unregulated lawyers because Russian advocates may not work as employed associates. New local hires receive systematic in-firm training (interviews with ID codes: 75_RC_RU_F, 78_RC_RU_F, 79_RC_RU_M). I refer here to the data set of 95 autobiographic narrative interviews I conducted between 2010 and 2015 with Polish and Russian lawyers in different forms of private practice. The interviewee ID codes indicate the chronological number of the interview, professional status (RA for advocates in both countries, RB for legal counsellors in Poland and unlicensed in-house lawyers in Russia, RC for unlicensed private-practice lawyers in Russia), country (PL for Poland and RU for Russia) and gender (F for women and M for men).

Post-Socialist Legal Professions  105

3

grew more than sevenfold between 1990 and 2016, to about 15 million. Comparison of these absolute numbers indicates that Polish citizens are much more litigious than their Russian counterparts because the population of Russia is about 3.8 times larger than that of Poland.7 Older practitioners who had begun their careers under socialism had to choose between upgrading their professional knowledge and entering these new practice areas or sticking to the old ways (Mrowczynski 2016b). Young adepts often focused on these newly emerging legal domains from the beginning of their professional lives. The emergence of international clients also created a demand for legal advice in foreign languages – mainly English.8 Legal professionals became market actors – some as entrepreneurs and business (ie law firm) founders, others as employees. The official relationship between (legal) professionalism and entrepreneurship or employee status remains ambiguous (Hughes 1984a: 364; Parsons 1939: 458). Some private practitioners are still attached to the ideal of the free professional – neither a ‘greedy’ businessperson nor a ‘clerical serf’. The Russian Federal Statute on the Bar (2002) explicitly declares that advocates’ activities are not entrepreneurial (Article 1, section 2).9 Nevertheless, being a solo practitioner or managing a law firm has a significant entrepreneurial component and requires a corresponding mindset.10 The rise of the market, combined with the decrease in state regulation (discussed below), introduced the possibility of organising the practice of law as a business entity (usually a partnership rather than a joint-stock or limited-liability company) instead of practising in socialist-style legal consultation offices. Simultaneously, a vast market emerged for legal professionals in salaried private practice. Hence, a further diversification of practice settings was one consequence of post-socialist transformations.

The emergence of market relations in general and the rise of a potential market for legal services had several further consequences. The social prestige of legal professions surged, especially at the beginning of the transformation (see Kober Vol 1, ch 14; Kilian and Schultz Vol 1, ch 10; Gadowska Vol 1, ch 15). Lawyers, together with entrepreneurs and market-oriented business managers, were widely perceived by the younger generation as the new role models, personifications of capitalism. This positive image increased the number of law students and caused the expansion of higher education institutions offering law degrees (Turturica 2006: 156), although the latter also depended on changes in state regulation. 7 Poland has about 38.4 million inhabitants, Russia about 146.9 million. I will use the official Russian statistics from the period after 2014 when the Crimean Peninsula, a part of Ukraine, was annexed by the Russian Federation. As a sociologist, I look at the situation on the ground even if it violates international law. Ukrainian authorities have had no control over the peninsula since late February 2014, having been supplanted by Russian courts and other state institutions. Two regional bar chambers (one in the main city of Sevastopol and one for the rest of Crimea) have been established under the umbrella of the Federal Bar Chamber of the Russian Federation. 8 Interviews with Polish and Russian lawyers indicate that a command of English was at least as important as legal expertise for a lucrative career in a national office of a big international law firm, especially in the early days of the post-socialist transformation when language skills were scarce in relation to the rapidly rising demand (ID codes: 02_RB_PL_M; 51_RA_PL_M; 79_RC_RU_M). The requisite level of foreign language proficiency was often acquired while living in Western countries because of parents’ occupations (eg as diplomats, employees of state agencies handling international trade, or internationally renowned scientists; ID codes: 75_RC_RU_F, 78_RC_RU_F, 79_RC_RU_M). From this perspective, foreign-language skills were often a product of intergenerational inheritance of cultural capital (Bourdieu 1986: 246), whose value was upgraded by the post-socialist transformation. 9 An English translation of this legal document was published in the Journal Statutes and Decisions, vol 43 (2008) no 3, pp 10–54. 10 One of my older interviewees – a Polish advocate deeply attached to the traditions of the Polish Bar – acknowledged this by noting the emergence in the early post-socialist period of many solo- practitioners offices, which were ‘frankly speaking private business enterprises’ (ID code: 03_RA_PL_M).

106  Rafael Mrowczynski Only the reports on China and Poland provide data. China experienced an enormous growth in law students, from 25,075 in 1991 to 449,295 in 2005 (18 times within 15 years) and 613,752 in 2012 (24.5 times within two decades), while the number of Polish law graduates more than quadrupled (from 2,073 in 1990 to 8,662 in 2005). Chinese absolute numbers appear in a slightly different light, however, in relation to population. China had about 45,980 people per law student in 1991, 2,941 in 2005, and about 2,215 in 2012 (ie, less than 5 per cent of the ratio two decades earlier). In Poland, there were 676 people per law student in the academic year 2005/06 and 722 in the academic year 2016/17. Nevertheless, the expansion of Chinese legal education is still very impressive. Other sources (Moiseeva 2015: 6) indicate that the 659,500 Russian law students11 in 2012 represented a much lower population per student ratio (217) than that in Poland. This very low population:student ratio was engendered by the massive expansion of legal education establishments, which occurred not only in Russia, where 947 institutions (VUZy) offered tertiary law programmes in 2012 (Moiseeva 2015: 6), but also in many other postSoviet states (Turturica 2006: 156), such as Georgia, which had more than 200 law faculties for about 3.5 million people in 2001 (Waters 2005: 71–72). The majority of Russian law students (72 per cent in 2012) were enrolled in part-time programmes (night schools or distance-learning programmes) (see also Moiseeva 2015: 6), often offered by law faculties established in the 1990s or 2000s with the primary goal of generating revenue for underfunded higher education institutions without any law-school tradition (so-called ‘neprofil’nye VUZy’12). Shepeleva and Novikova (2013: 16–21) attributed this explosion of legal education to the fact that a large fraction of Russian law students had no intention of becoming legal professionals, but sought any ‘prestigious’ higher education certificate to gain promotions in the work activities they already performed (see also Moiseeva and Bocharov Vol 1, ch 16). In the 2010s, the Russian Ministry of Higher Education took administrative measures to reduce the number of low-quality educational institutions (not just those offering legal education), with the result that the number of law schools dropped to 588 in 2015 (Moiseeva 2018: 15 Table 6), which was still very high in relation to the population. Studying law part-time while working (often as an unregulated legal practitioner in-house) is common in many post-socialist countries. (It was also important for the earlier growth of legal professions in some Western countries: see Abel 1997a: 158; Stevens 1997: 149–52.) But the data in national reports reveals differences. While almost three-quarters of Russian students were enrolled in part-time programmes in recent years, the proportion in Poland hovered around 50 per cent in the 2000s and dropped to about 43 per cent in 2016/17.13 These different modes of acquiring a legal education can also affect professional identities and cohesion, as the Russian report suggests.

11 This figure includes graduates of tertiary training programmes at higher education institutions (vedomstvennye vuzy) of the Russian Ministry of Interior (the regular police force) and the Federal Security Service (the principal successor of the Soviet KGB), who receive degrees in law (see Moiseeva and Bocharov Vol 1, ch 16) and become eligible (after meeting some additional requirements) for all law-related jobs, including the bench, prosecutor’s office and bar. They are seen in Russia as jurists (iuristy). 12 ‘Neprofil’nyi VUZ’ translates literally as ‘non-profile higher education establishment’. It means that an institution that specialised in other (usually technical) subjects (eg an ‘Institute of Food-Processing Technology’) opens a law department and tries to attract tuition-paying students. 13 My calculations are based on the Polish report. Śliwa’s (2010: 4) data on 2008 law graduates indicated an even higher proportion of full-time students (61.4 per cent). This discrepancy could be explained by the fact that full-time students are probably more committed to their studies and therefore more likely to earn a degree.

Post-Socialist Legal Professions  107 The second consequence of the increase in market relations and private business activities was the massive growth of inter-professional mobility. As many state organisations – ­productive units as well as administrative agencies – faced a deep operational crisis or even collapse, many employees with law degrees decided to move into the emerging domain of private practice. Members of the largest juridical occupation under state socialism – in-house lawyers – were involved in this process (Kirschner and Lienau 1994: 70; Mrowczynski 2014: 159–60), as were judges, prosecutors (see Kilian and Schultz Vol 1, ch 10) and police investigators in Russia (where they are considered jurists). The result was increased jurisdictional volatility because members of different professional groups began to offer similar legal services for potential clients. In particular, former in-house lawyers – often using fancier self-descriptions like commercial counsel or legal counsellor – started to compete with advocates, initiating their own professional projects in some CEE countries. The overall result of these two post-socialist trends was a massive numerical growth of legal professions – especially private practitioners (see: all seven post-socialist country reports on eight jurisdictions; similar findings are presented for Hungary, Romania and Slovakia by Kilian 2012: 153–55, 179–80, 249–50). But national trajectories are much more diverse when one looks at population:lawyer ratios (lawyer densities). Cross-country comparisons are quite complicated here because of both the incomplete data and diverging definitions of who is a lawyer among the many occupational groups with overlapping jurisdictions. The latter problem is particularly acute in Russia, where an unknown number of unlicensed practitioners competes with about 72,000 licensed advocates. Estimates of this unregulated segment range so widely – from 100,000 to 1,000,000 – that only one thing is certain: nobody knows how many people practise law in Russia (Moiseeva and Bocharov Vol 1, ch 16: 333). Nevertheless, I made an attempt to estimate the population:lawyer ratios in different postsocialist countries based on the national reports. My calculations compare the period of late socialism, ie before or at the beginning of reforms (the second half of the 1980s), with the latest figures for each country.14 Although my main focus has been on licensed practitioners, I included estimates for unregulated lawyers (see the table in Appendix 1). The most significant growth in absolute numbers occurred in East Germany15 and Vietnam, followed by Slovakia, China and the Czech Republic. However, if the vague estimates of the number of unlicensed practitioners are included, Russia would display one of the most significant increases in absolute numbers (an increase by 25 to 89 times between 1985 and 2016).16 All these countries (except the Czech Republic) started from a relatively high number of people per lawyer: 151,525 in Vietnam, 54,772 in China, 28,167 in the GDR, 21,097 in Slovakia (then part of Czechoslovakia) and 21,055 in Russia (then part of the USSR). The Czech part

14 The latest figure from Hungary is for 2009. 15 The present-day calculation for East Germany (New Federal States) is complicated by Berlin, the only federal state (Bundesland) established in 1990 by combining an Eastern and a Western territory. The rest of the former GDR became five New Federal States. Contemporary figures for the general population and lawyers are provided only for the entire city-state of Berlin (see Kilian and Dreske 2014: 71 Table 2.2.1). Some city districts for which population figures are available combine parts of East and West. The city also has a very high absolute number and density of advocates. Nevertheless, I made an attempt to estimate the proportions of people and advocates in the former Eastern part of Berlin today and the proportion of advocates whose offices are located in the eastern part of this city based on the population distribution between East and West Berlin shortly before the reunification. 16 The first figure is based on the assumption of 100,000 unlicensed practitioners (the lowest estimate), the second on the assumption of 550,000 (slightly more than half the highest estimate of 1,000,000). If this highest estimate is correct, the Russian legal profession has grown by 153 times within three decades (1985–2017), and the number of people per lawyer has reduced from 2,128 at the beginning of perestroika to 140.

108  Rafael Mrowczynski of Czechoslovakia had 12,519 people per advocate in 1989, which was closer to the figures in Romania and Poland. The Yugoslav republics of Serbia and Bosnia and Herzegovina as well as Hungary displayed the highest lawyer densities at the beginning of the 1990s. If the approximately 14,000 legal counsellors (radcowie prawni17) were included, the Polish ratio would then drop from 9,470 to 2,104. There are arguments for and against such an extended calculation. On one hand, because Polish legal counsellors at this time (1989) were still working predominantly as in-house lawyers in state enterprises, not for private clients, it might seem more appropriate to exclude them. On the other, however, many legal counsellors started to practise for private companies – as in-house lawyers or on a fee-for-service basis – in the very early days of post-socialist transformation. This suggests that their inclusion might be justified, because they constituted a ‘reserve army’ of (potential) private practitioners who were quickly able to move into the new field of private practice at the dawn of market reforms. The differences in the density of private practitioners (advocates) at the end of the socialist period (CEE) or the initial stage of market reforms (SE Asia) seem to correspond with the variety of state socialism. The highest population:lawyer ratios were characteristic of the still predominantly rural, developing Asian-socialist countries. CEE socialist countries with strongly statist economies, like the GDR and the Slovak part of Czechoslovakia, displayed ratios of 20,000 to 33,333 people per lawyer. Lawyer densities were higher in CEE countries with more diversified socialist economies and stronger pre-socialist bourgeois traditions, such as the Czech Lands and Poland. In Poland, where the collectivisation campaign had been abandoned at a very early stage and most agricultural land remained in private hands (Jowitt 1992: 299 fn 41), the large number of private landowners (‘individual farmers’/rolnicy indywidualni) generated additional demand for property-related legal services, which could have contributed to the relatively high advocate density.18 However, the relatively low population:lawyer ratio in socialist Romania, which had been ruled since the 1960s by the repressive Ceaușescu regime, is more difficult to explain within this framework. More consistent with the socio-economic hypothesis are the market-socialist cases of Hungary and SFR Yugoslavia (with the more rural Bosnia and Herzegovina having a higher ratio than Serbia but still lower than the quite rural Poland). All types of late-socialist countries had much higher population:lawyer ratios than Western European countries. For example, there were 1,118 people per Rechtsanwalt in the Federal Republic of Germany by the end of the 1980s (before re-unification), almost a quarter of the Serbian ratio. Even if the two German states are combined, the number in 1989 was 1,411. However, this figure should be viewed with some caution because GDR advocates were not incorporated unconditionally into the system of Rechtsanwaltskammern established after the 17 There is some terminological confusion regarding the English name for this professional group. Gadowska Vol 1, ch 15 uses ‘attorneys-at-law’, consistent with the recent trend on the English-language webpages of the group’s National Chamber. But a few years earlier, Polish ‘radcowie prawni’ called themselves ‘legal advisors’, the term used by Kurczewski (1994) in his report on Polish legal professions in the early 1990s. In my previous publications on legal professions in Poland (and Russia), I used the English terms attorneys-at-law or advocates to refer to the more traditional profession of practising lawyers, called ‘adwokaci’ (singular ‘adwokat’) in Polish, and I introduced the literal translation legal counsellors for ‘radcowie prawni’ (singular ‘radca prawny’). I will stick to my terminological choice throughout this chapter. The terminological shifts highlighted here are interesting because they represent competition between the two professional groups for symbolic capital or social prestige. Since the English word advocate is the obvious translation of the Polish ‘adwokat’, the Polish bar abandoned the term attorney-at-law, which was appropriated by the other legal profession in order to appear equal to its older competitor in the eyes of potential international clients. 18 This argument is inspired by Friedman’s (1989: 7–9) observation that a large number of private real-estate owners in the USA contributed to the relatively high number of lawyers in that country (as compared to Europe and Latin America) as early as in the nineteenth century.

Post-Socialist Legal Professions  109 re-unification although the number of GDR Bar admissions revoked after the reunification remained relatively low (see: Hellendoorn 2002, esp. 141–42). The West German profession of advocates, which I use as the comparative baseline, grew by less than three times in absolute terms between 1990 and 2017. The lawyer density in the former Western states more than doubled, to 470 people per Rechtsanwalt. The ratio for all of Germany reached 504:1, nearly a third of what it had been the year before re-unification. The growth rates for all post-socialist or reformist-socialist countries are higher – especially in lawyer density (population:lawyer ratio). The only exception in terms of the absolute growth rate is war-torn Bosnia and Herzegovina, where the number of advocates increased 2.7 times (only slightly more than in all Germany); even there the number of people per advocate fell from 7,407 to 2,222 (a more rapid reduction than in West Germany).19 At the other end of the spectrum, the greatest increase in lawyer density occurred in Russia (1985–2016) and East Germany (1989–2013). In the former GDR, the number of people per advocate dropped from 28,167 to 783. The contemporary ratio resembles those of other post-socialist CEE countries but remains much higher than in the western states of Germany. In Russia, the number of people per lawyer fell from 21,055 to 854 (if we use the most cautious estimate of 100,000 unlicensed practitioners). If we use a higher estimate (550,000), the ratio declines almost 73 per cent. The absolute number of legal practitioners grew by between 24.6 times and 89 times (depending on the estimate of unlicensed practitioners). Advocates alone increased around 10 times during the same period, and the number of people per advocate fell from 21,055 to 2,040. Vietnam has witnessed a similar growth rate in absolute terms. In 2016, there were 27.4 times more lawyers than in 1987 (the beginning of the Đổi Mới period). The density of lawyers increased as much as in Slovakia (17.8 times in both countries). In Romania, where 14,500 in-house lawyers or legal counsellors (consilieri juridici) practised in 2011 alongside 20,500 advocates (Kilian 2012: 155), the overall number of people per lawyer fell from 11,411 to 575 during the post-socialist period. At roughly the same time, the number of licensed lawyers rose more than 15 times in China and almost 14 times in the Czech Republic, where in-house lawyers (commercial jurists) were absorbed by the Czech Bar in 1996. The number of people per lawyer fell from 12,519 to 935 in the Czech Republic and from 54,772 to 4,366 in China (both reductions of 92–92.5 per cent). In Poland, there were nearly 13 times more lawyers in private practice in 2017 compared to 1989, and the number of people per lawyer fell from 9,470 to 754 (also 92 per cent). The number of Hungarian advocates grew the least within the former ‘Soviet Bloc’ (except for the former Yugoslavia), only 6.5 times, so that the population:lawyer ratio fell 85 per cent between 1991 (ie just a year before socialist in-house lawyers were incorporated into the Hungarian Bar; see Kilian 2012: 249) and 2009. Nevertheless, the changes in the Hungarian legal professions were two to three times larger than those in the West German baseline. All these calculations support the general conclusion that the introduction of market reforms in post-socialist and reforming Asian-socialist countries resulted in expansions of legal professions that were far greater than those in an established market economy like West Germany, which is thought to have an open, dynamic legal profession. The Polish case, however, requires special attention because of the distinctive institutional development of its self-regulated professions. So far my calculations were based on the assumption that there were 4,000 privately practising advocates in 1989 and a total of 51,000 advocates 19 Bosnia and Herzegovina suffered a significant decrease in population from almost 4.4 million in 1990 to 3.5 million in 2018, mainly due to the war in the 1990s and the flight of many citizens, who never returned.

110  Rafael Mrowczynski and legal counsellors in 2017. As Gadowska (Vol 1, ch 15) notes, these two self-regulating groups have occupied virtually the same professional jurisdiction since July 2015, the difference being that only legal counsellors may work as salaried employees. Hence it makes sense today to count both as private practitioners. But it may be illuminating to look at the primary data differently. If advocates and legal counsellors are combined, Poland already had about 18,000 regulated legal professionals in 1989, giving a population:lawyer ratio of 2,104:1. From then until 2017, the absolute numbers grew only 2.8 times, while the number of people per lawyer fell to 754. These figures suggest that the organised legal professions in Poland were more effective in ­limiting access to their ranks (ie in practising social closure) compared to counterparts in other post-socialist countries. This observation directs our attention to the issue of regulatory logics and the different paths of political transformation. C.  Political Transformations and Regulatory Logics The second major dimension of post-socialist transformations – the political – accounts for significant differences between the eight countries. There had been a dramatic dismantling of the state-socialist order in CEE states and, to a lesser extent, in the post-Soviet domain. One implication was a massive decrease in state regulation. These denationalisation processes were partly an intentional concomitant of market reforms. But they also resulted from an unintended erosion of state institutions and a subsequent loss of state capacities – especially enforcement (Mrowczynski et al 2018: 580–82). The post-Soviet countries in the narrow sense (with the exception of the three Baltic republics) were much more strongly affected than former satellite states in CEE by the unintended aspects of political transformation, which was accompanied by increased corruption, ‘state capture’ (see Hellman et al 2000), rent-seeking behaviour, informalisation of political decision-making (eg the emergence of oligarchs in Russia or Ukraine) and the rise of ‘violent entrepreneurship’, which partly marginalised legal dispute settlement procedures, especially at the beginning of the transformation (see Volkov 2002). The collapse of state capacities fuelled a spontaneous de-regulation of legal professions in post-Soviet countries including Russia, greatly magnifying the effects of intentional de-regulation measures, such as the introduction of legal cooperatives (de facto unregulated commercial law firms) during Gorbachev’s perestroika and alternative Bar colleges in the first half of the 1990s. The result was the massive growth of legal professions and dominance of the market logic (Jordan 2005: 70–80). Since the beginning of the 2000s, the Russian state has undergone a reconsolidation, following its partial fragmentation in the 1990s. This trend, advanced by the Putin administration, has also affected legal professions and resulted in a reorganisation of the bar in a system of regional chambers established in 2002 under the umbrella of the Federal Bar Chamber of the Russian Federation. However, this institutional professionalisation, which reintroduced the self-regulatory logic reinforced by components of the state-administrative logic, has remained insular (Mrowczynski 2016a: 176). Most law practice is still unregulated. Nobody even knows how many practitioners operate in the market for legal services. Moiseeva and Bocharov (Vol 1, ch 16) describe a recent plan by the Ministry of Justice to extend the regulatory authority of regional bar chambers to all suppliers of courtroom representation. This may seem to strengthen the self-regulatory logic, but in fact it will weaken the organised bar, which would have to become ‘more attractive’ to unregulated practitioners by reducing

Post-Socialist Legal Professions  111 admission requirements (simplified exams) and abolishing membership fees (thereby losing its main source of independent funding). As a result, this island of institutional professionalism could again be submerged by the tide of market forces. Alternatively, it could become more dependent on reinforcement by the state-administrative logic if admission requirements were simplified to mean little more than just checking whether a candidate holds a law degree and has done some legal work. Even this latter scenario raises the question whether it would represent a real return of state-administrative logic (because legal education institutions are formally regulated by the state) or rather increased domination by the market logic since state regulation of law schools has not yet been very effective in Russia. The post-socialist CEE countries display a different pattern of institutional development. Here, despite the fact that market forces have been unleashed by fundamental economic reforms, the self-regulatory logic plays a much stronger role because the reduction of state supervision over legal professions was accompanied by the expansion of professional self-governance. The Serbian Bar organised collective actions20 (with mixed outcomes) in defence of its professional jurisdiction in conflicts with notaries claiming control over the legal dimensions of real-estate transactions and NGO lawyers providing free legal consultations. The authors of the national report (Vol 1, ch 17) do not explain how Serbian advocates were able to exercise such a high degree of coordination despite the fact that their national Bar Association is torn by ‘fierce contestations and internal power struggles between competing factions of practicing lawyers’. After re-establishing their professional institutions in 1990, Czech advocates successfully resisted radical de-regulation plans advanced by the neoliberal government of Vaclav Klaus in 1994 and integrated the nascent profession of commercial counsels (komerční právnici; former state-employed in-house lawyers) into the unitary Czech Bar in 1996. A similar absorption of commercial counsels by the self-governing centralised bar chamber occurred in Slovakia in 2004 (Kilian 2012: 180). Self-governance of advocates is quite strong in Hungary and Romania as well, but the bars of these countries are organised regionally.21 They also differ in their admission powers and the system of professions in which they are embedded. The Romanian Bar admits new members and, since 2010, has imposed uniform training and examination standards by operating the National Institute for Advocate Training (ibid: 161–62). Hence, its modus operandi conforms to the self-regulatory logic. Its Hungarian counterpart is responsible for post-academic training (apprenticeships), but the decisive examination is organised by the Ministry of Justice and is the entry exam for all core legal professions: judges, prosecutors and advocates. This is a mixed system of state-administrative and the self-regulatory logics. In-house lawyers in state organisations were the biggest occupational group of law-school graduates in state-socialist countries (Mrowczynski 2014: 149). Early in the transformation period they were principal participants in the interconnected trends of inter-professional mobility and increased jurisdictional volatility.

20 Collective action is seen by Burrage (2006: 22–23; 2014: 46) as the most important manifestation of professional integration. 21 The 11,700 Hungarian advocates in 2009 were dispersed among 20 regional chambers, while all 11,300 Czech advocates in 2016 were concentrated in one national chamber. However, the majority of Hungarian advocates were based in Budapest, and the smallest Hungarian chamber in Salgótarján had fewer than 50 members (see Kilian 2012: 249–50, 261). The unitary Czech Bar is dominated by advocates from Prague and Brno – the judicial capital of the Czech Republic. Hence legal professionals tend to concentrate in big cities (especially capitals) regardless of institutional bar structures.

112  Rafael Mrowczynski Although these trends were common to all post-socialist countries, since they were related to the rise of the market logic, they occurred within different institutional environments and therefore had different practical implications. Czechoslovak commercial counsel created their own professional institutions in 1990, which were integrated into the Bars of the Czech Republic and Slovakia a few years after the velvet divorce of 1992, though more slowly in the latter. Hungarian in-house counsel were absorbed by the organised profession of advocates in 1992, when its membership surged from 1,800 to 4,500 (Kilian 2012: 249).22 Poland and Romania display a different pattern. Legal professions of private practitioners are organised according to a dichotomous self-regulatory logic: two regionalised systems of professional chambers with national umbrella organisations regulate each profession separately. However, Romanian legal counsellors (consilieri juridici) work exclusively in salaried positions and therefore are not considered a free profession (ibid: 155–56), whereas their Polish counterparts (radcowie prawni) can practise as employees, freelance professionals or in law firms (also together with advocates). Polish in-house lawyers initiated their professional project during the socialist period (ie much earlier than those in other post-socialist countries) and secured a proto-professional status (limited self-regulation) as early as in 1982 (Mrowczynski 2016a: 161). The Economic State Arbitration (Państwowy Arbitraż Gospodarczy), which had controlled the training and admission of legal counsellors in the 1980s, was dismantled at the very beginning of the market reforms, and the existing regional chambers of legal counsellors assumed the crucial functions of professional self-regulation, becoming the equivalent of bar chambers in this respect (Mrowczynski 2014: 152–53). Since the jurisdiction of legal counsellors at this time was limited to handling businessrelated cases of legal entities and individual entrepreneurs, the second stage of Polish legal counsellors’ professional project was the expansion of their jurisdiction. The option of merging the professions following the examples of the Czech Republic, Hungary and Slovakia was also considered. This was attractive to many legal counsellors, who saw the title of advocate as more prestigious. But the less numerous Polish advocates were able to resist this. The bar insisted on a professional independence that is allegedly incompatible with employment relations, and the legal counsellors were unwilling to relinquish the option of salaried employment. Simultaneously, legal counsellors were able to expand their jurisdiction, reaching near parity with advocates in July 2015, when ‘independent’ (non-salaried) legal counsellors were admitted to the symbolically important criminal-defence practice. Hence, the dichotomy of self-regulatory institutions in Poland seems to have reached a jurisdictional truce. Poland’s legal professions had strong self-regulating institutions between 1989 and 2005 (Mrowczynski 2016a: 166–74). Their chambers became institutional templates for more than a dozen other occupational groups (medical doctors, tax advisors, auditors, architects, etc), which launched their successful professionalisation projects during the early transformation period. As a result, a whole new category of occupations of public trust (zawody zaufania p ­ ublicznego) emerged in post-socialist Poland. Whereas post-Soviet Russia in the 1990s exemplified an unrestrained market logic in potential professional fields, Poland constituted the opposite pole, governed by the self-regulatory logic despite the strong neoliberal underpinning of its postsocialist transformation (King 2002; King and Sznajder 2006). A possible explanation for this counter-intuitive finding is the fact that the idea of self-governance (samorządność) played a

22 A similar absorption of salaried conseils juridiques by the profession of avocats occurred in France at the beginning of the 1990s (see Boigeol 1988; Burrage 2006: 149–54).

Post-Socialist Legal Professions  113 very important role in Poland’s opposition mass-movement, Solidarność.23 After the end of the state-socialist regime, Polish legal professions rode the wave of the emerging self-governance (the societal dimension of transformation) and spearheaded the trend towards creating strong self-regulated institutions for highly skilled labour (Antkowiak 2012; Kmieciak 2010). Practices of social closure (Abel 1997b: 118; Parkin 2008: 151) remain the dark side of professional self-regulation. During the golden era of Polish professionalism from 1990 to 2005, regional chambers of advocates and legal counsellors enjoyed full control of their admission procedures and, hence, of the production of professional producers (Larson 1977: 50). Regional chambers conducted apprentice programmes organised on the master-disciple model. This training mode allocates to individual professionals the power to decide whether to accept an apprentice. Kilian’s (2012: 163, 184–85, 254) reports on admission to the post-academic training programmes of Hungarian, Romanian and Slovak advocates indicate similar practices. Furthermore, access to Polish apprenticeship programmes was regulated by entry exams, and there was a bar exam at the end of three to four years of training. Interviews with members of both professional groups suggest that the real hurdle was the initial exam. A significant fraction of the questions could be unrelated to legal matters24 and aimed at testing the general knowledge of candidates, who were expected to be well-educated and eloquent, ie members of the Polish intelligentsia. Such discretionary examination practices were also prone to nepotism (although some interviews indicate that the children of bar members could perform very poorly in such examinations25). Once carefully selected for the apprenticeship and admitted by patrons (mentors of trainees), adepts were seen as becoming members of the profession and very unlikely to fail. Gadowska (Vol 1, ch 15) describes how the absolute predominance of self-regulatory logic ended. This change was triggered by public pressure from a growing number of law school graduates frustrated by massive social closure and then was advanced by the new political elite (the first government led by the ‘Law and Justice’ party), which withdrew the state’s tacit support for unrestrained professional self-governance. The rhetoric behind this may have been partly inspired by the market logic, but its outcome was a combination of stateadministrative and self-regulative logics. The Ministry of Justice directly controls admission procedures (apprenticeship, entry exams and final bar exams), while organised professions still shape adepts’ professional personalities and identities through apprenticeships lasting three years. However, the rising number of apprentices has changed the post-academic training programmes. Although they formally remain based on the master-disciple model, an increasing number of apprentices work not in their patrons’ law offices but wherever they can get a job. Interactions with patrons are often reduced to a mere formality. Asian-socialist countries, which have experienced no fundamental political transformation, display a pattern of regulating legal professions dominated by the state-administrative logic, although there are differences between China and Vietnam. China has a multitude of occupational groups practising law, of which licensed lawyers are just one (although rapidly growing). Unlike Russia, however, all these legal occupations are subject to some form of admission 23 The full name of Solidarność was ‘independent self-governed labour union’ (Niezależny Samorządny Związek Zawodowy). 24 Examples range from art history and contemporary literature to geography. One interviewee was asked to summarise The Tin Drum a novel by Günter Grass (ID code: 53_RB_PL_F). Another had to name the Warsaw bridge destroyed in the Second World War and never rebuilt; it was a quite tricky question for him, because he grew up in a different city (ID code: 55_RB_PL_M). 25 Two such interviewees whose parents were advocates (ID codes: 53_RB_PL_F & 58_RB_PL_M) never qualified for the bar, becoming legal counsellors in the salaried back-office practice of a big state-owned company.

114  Rafael Mrowczynski control by the Ministry of Justice or other governmental agencies. The admission of lawyers (in the narrow sense) is regulated by state exams open to all college graduates, not just those with law degrees. The government also tries to influence how law is practised. Recently, the Minister of Justice held a two-day training session for particularly zealous criminal-defence lawyers (including some so-called ‘diehard lawyers’) to warn them to toe the party line. Unlike Russia, China has not experienced an erosion of state capacities or lost political control over the transformation process. Hence the party-state regime has been able to ensure the continued dominance of state-administrative logic in the regulatory domain of lawyering. The Vietnamese model of regulating legal professions is also dominated by the stateadministrative logic but with a slightly stronger role for the self-regulatory logic. The Ministry of Justice organises the first part of post-academic training and administers the exam at its conclusion, but the second stage of training for admission to private practice occurs under the umbrella of the Vietnamese Bar Federation and is coordinated by provincial bar associations. The sequencing of these two stages suggests that the organised bar has the last word on the admission of candidates pre-selected by the ministry. If so, this regulatory structure would resemble that of Polish advocates between 1963 and 1982, when adepts were required to complete a two-year apprenticeship in the judiciary (aplikacja sądowa) before being admitted to another three years of training as an apprentice of a Bar member (aplikacja adwokacka). Nicholson and Ha (Vol 1, ch 43) also make clear that the Vietnamese Bar Federation, created from above only in 2009, has limited autonomy, operating under the strict control of the Communist Party and the Ministry of Justice. The latter can even interfere with disciplinary proceedings and disbar lawyers in serious cases. On one hand, the VBF often acts like a socialist transmission-belt organisation, for example when it intimidates members who seek too much autonomy or are excessively critical of the regime. On the other, the Vietnamese Bar has made several attempts to advance liberalisation within the state-socialist system (though with limited success). Professional groups enjoying a degree of autonomy within autocratic political contexts (such as lawyers in many state-socialist countries) face a fundamental dilemma. On one hand, the self-regulatory logic of institutionalised professionalism depends on the state’s enforcement capacities; Russia in the 1990s demonstrates how quickly self-regulatory institutions can lose ground when the state’s enforcement capacities decline. On the other, a strong state operating without effective checks and balances poses a serious threat to professional autonomy since it tends to rely on the administrative logic – its modus operandi. The self-regulatory logic can develop better in the more pluralistic political environment created by systemic transformations in CEE countries. However, even there the state is rarely willing to delegate all its regulatory powers to organised professions. Where the latter occurred at the beginning of post-socialist changes, as in Poland, the state later reclaimed a significant part of its regulatory authority. The EU accession of most post-socialist CEE countries is another political factor influencing the regulation of legal professions. European institutions promote competition and national markets, including those for professional services, open to players from other member states (Buchner-Jeziorska and Evetts 2001). By now all post-socialist states that joined the EU have introduced legislation regulating access by legal professionals from other countries. But these changes do not imply total elimination of national (self-)regulatory regimes. Instead, foreign lawyers are usually permitted to engage in the exterritorial practice of the law of the country in which they were admitted and under their national professional title and can become full-fledged bar members in their host country only if they fulfil some additional requirements – either three years of documented practice under the host country’s law in the case of EU lawyers or even passing a bar exam or at least a language test in case of legal professionals from outside the EU.

Post-Socialist Legal Professions  115 The opening of formerly state-socialist countries to the West also led to the entry of big international law firms and multi-disciplinary partnerships (MDPs),26 which usually hired local lawyers with the requisite professional and cultural skills (including language), subordinating them to a few Western partners who implemented corporate practice standards.27 Over time, some locals rose to senior partnerships, so that today the offices of many international law firms in Moscow, Prague and Warsaw are staffed by local lawyers from the bottom to the top of their hierarchies. Those who never made partner migrated to other settings, carrying standards of international law practice adapted to local conditions. Western lawyers who initially headed national offices in post-socialist countries moved on to other emerging markets or were promoted to top global positions within their firms. Hence, national barriers – both cultural and institutional – remain relatively strong, while cross-border practice is organised through networks of nationally rooted institutions. An interesting peculiarity of China is the fact that it not only experienced the expansion of foreign (mainly Western) law firms but also witnessed the rise of big domestic firms with international aspirations (Li 2019), which established offices in major financial and business centres throughout the world and entered alliances with major Western players. China clearly differs from post-socialist CEE countries because of the global impact of its vast and growing economy. Russia’s specificity is that some very wealthy clients (known as oligarchs) prefer to litigate in foreign courts (eg in the UK) and, as a consequence, hire foreign lawyers (see Amsterdam 2014; Croft 2018). IV.  GENDER AND LEGAL PROFESSIONS IN POST-SOCIALIST CONTEXTS

Although the 1988 national reports covered no socialist states, Menkel-Meadow (1989: 211) noted that women had already become a majority in some legal professions on the eastern side 26 As of 2020, all ‘Big Four’ firm networks have offices in almost all countries under investigation – at least one office in each country (Serbia and Hungary) but often multiple offices – eg between seven (EY and KPMG) and nine (Deloitte and PwC) in Poland and between seven (Deloitte) and ten (KPMG) in Russia. (For comparison, Germany has 84 Big Four offices – ranging from 15 (Deloitte) to 28 (KPMG).) Each ‘Big Four’ MDP has more than 20 offices in mainland China. (These estimates are based on the information available at ‘Big Four’ country-specific websites in October 2021.) As for local lawyers in MDPs, there are formal restrictions in Poland and Russia, where advocates are not allowed to work as employees – except for partnerships exclusively of advocates and legal counsellors in Poland (MDPs are clearly not such partnerships). The Russian Statute of the Bar does not allow formal employment (which is why Western-style law firms in Russia – called ‘advocates’ bureaux’ – officially have no associates, only partners). My interviews indicate, however, that there are ways to circumvent these regulations. One Polish interviewee (an advocate, ID code: 51_RA_PL_M) began his career in a law firm closely linked to the Warsaw office of a ‘Big Four’ firm (then still the ‘Big Five’). The top personnel of this law firm constituted the legal department of the MDP’s Warsaw office in the early 1990s. However, it was spun-off and became an independent but ‘befriended’ law firm due to conflicts between its status under Polish law (Statute on the Bar / the no-employment rule) and later regulations on multidisciplinary practice in the US (following the Enron scandal). Polish legal counsellors are not excluded from employment and can work in MDPs. Since the Russian market for business-related legal services is largely unregulated, there are no restrictions for non-regulated lawyers (outside the Russian Bar) regarding MDP employment. Hence, there are plenty of legal professionals in both countries who can be hired by MDPs. Unfortunately, the country reports in Volume 1 from other post-socialist countries include no data on this. The only exception is Kilian and Schultz (Vol 1, ch 10), who indicate that statutory restrictions on legal professionals’ MDP employment were overturned by the Federal Constitutional Court of Germany. 27 The only exception was the former GDR, where most new lawyers were migrants from the former Western states. This case confirms the importance of cultural barriers, which were very low in Germany. The language was the same, the two Germanies shared a common legal tradition antedating the socialist GDR, and re-unification extended West German law to the New Federal States. On unification the former socialist country became part of the European Community. This was the most extreme but also the most exceptional form of integration of a post-socialist country into the West (Bluhm 2010: 208–13).

116  Rafael Mrowczynski of the Iron Curtain by the end of the 1970s. This was confirmed by book chapters on women in Polish and Eastern German legal professions (Fuszara 2003; Shaw 2003) as well as the national reports in Volume 1. State-socialist regimes, with their ideology of equal gender rights and emancipation of women through integration into the wage-earning workforce, had a real impact. It is worth noting, however, that the CEE countries opened legal professions to women in principle in the early decades of the twentieth century, long before they were governed by state-socialist regimes (Kober Vol 1, ch 14; Vuković et al Vol 1, ch 17; see also Fuszara 2003: 372). Thus the state-socialist transformation of these societies accelerated a trend that began during the presocialist period and was roughly contemporaneous with developments in the West. The main contribution of state socialism was to increase the relative speed and magnitude of feminisation compared to Western countries. The national reports in Volume 1 also suggest that the proportion of women continued to grow in many formerly socialist countries after the transformations. Menkel-Meadow (1989: 198, 201, 204) observed that women are usually overrepresented in less prestigious and less lucrative practice areas. This is consistent with the finding that judiciaries, prosecutor’s offices and in-house counsel exhibit higher percentages of women than advocates and other lawyers in private fee-for-service practice. While women are often a majority of judges and prosecutors, their proportion of bars and among other private-practice lawyers falls between 27.8 per cent in China and about 40 per cent in Russia. There are two possible (although not mutually exclusive) explanations for this difference: (1) women tend to prefer more stable predictable employment because their integration into the paid workforce during and after the socialist period has not resulted in a corresponding decrease in their responsibility for homemaking and childcare (Schultz 2003: xxxviii); (2) self-regulatory institutions of organised professions may produce a stronger gender bias than public hiring procedures. Within hierarchical practice settings like courts and prosecutor’s offices, female professionals are over-represented at the bottom of the hierarchy and underrepresented in top positions (Kober Vol 1, ch 14; Gadowska Vol 1, ch 15). The same is true for large corporate law firms. Both trends are also visible outside post-socialist contexts (Schultz 2003: xxx, xxxiii, xxxvii– xxxviii (incl. Table 3), xlvi–xlvii; Sommerlad 2003; 2016). Women are still a minority in legal academia (only 25–37 per cent, Schultz 2021) in those national reports which offer data on this (Kober Vol 1, ch 14; Vuković et al Vol 1, ch 17). Notaries are one of the most feminised legal professions in several post-socialist countries. This is explained by notaries’ low social prestige under state-socialism, when they were often state employees whose activities were barely distinguished by the general public from clerical work. However, notaries experienced a very significant elevation in importance and income in post-socialist countries as market reforms took hold and demand for their services skyrocketed. This dialectical twist suggests a partial rethinking of the generalisation that the influx of women into legal professions always is accompanied by segregation in least attractive or least lucrative domains of practice, although the ‘New Federal States’ of Germany witnessed a significant decline of the percentage of female notaries from 48.6 in 1994 to 31.9 in 1999. This level of feminisation was still much higher than in Western Germany, where about 94 per cent of notaries were male by the end of twentieth century (Shaw 2003: 333).

Post-Socialist Legal Professions  117 V. CONCLUSIONS

The comparative analysis of legal professions in post-socialist contexts yields a complex and ambiguous picture. Some changes exemplify the erosion of institutionalised (legal) professionalism – a trend emphasised by Sommerlad and Hammerslev (2020). These result from the rise of market relations. The numbers of practising lawyers and law graduates grew dramatically after legal professionals rose in status in the new socio-economic reality of nascent post-socialist capitalism. And greater inter-professional mobility contributed to jurisdictional volatility. But the comparison of post-socialist jurisdictions also suggests that some national differences persisted throughout the state-socialist period or re-emerged once the homogenising effects of this socio-political system were eliminated. In particular, differences in political regimes and patterns of institutional change contribute to the diverse developments of legal professions.28 The key categories that emerge from my discussion of the national reports in Volume 1 are: (1) regulatory aspirations; and (2) enforcement capacities of political systems. Their interplay in the processes of post-socialist transformation created different political environments, which opened some options for the emergence of professional institutions and excluded others. The political trend that accompanied market reforms was a strong reduction of state regulation, but the manner and degree of the state’s retreat differed among countries. Russia is an extreme case, where the market logic has become dominant as a result of deregulation combined with a dramatic loss of the state’s enforcement capacities during the first post-socialist decade. As a consequence, all the trends mentioned by Sommerlad and Hammerslev (Vol 1, ch 1) occurred there in nearly textbook form: collegial associations eroded and lost their power; professional boundaries became blurred as jurisdictional volatility increased. The re-introduction of self-regulatory institutions of the Bar in the early 2000s remains insular (Mrowczynski 2016a: 176). This is a counterintuitive finding for a country perceived as eminently statist. By contrast, the many post-socialist CEE countries, where the reduction of state regulation was accompanied by increasing possibilities for self-regulatory institutions and little or no erosion of state capacities, showed a different pattern, which can be characterised as a return of the guilds. This occurred even in countries like the Czech Republic and Poland, where neoliberalism constituted a very important ideological underpinning for the post-socialist transformation. These findings also are counterintuitive and may question Krause’s (1996) diagnosis of the demise of guild power. One explanation for this anomaly may be the appeal of pre-socialist institutional patterns in a situation where state-socialist institutions (dominated by the administrative logic) appeared dysfunctional (Ekiert and Ziblatt 2013: 103–104). In the post-socialist era, the dynamics of market economies, integration into the transnational capitalist economy, and reinvigorated regulatory aspirations of governments (seen in Poland) forced adaptations and compromises. However, the result of these adaptive processes has not been a total dismantling of self-regulatory institutions but rather their blending with state regulation. The example of the Italian legal profession also indicates that a traditional bar can quite successfully withstand structural pressures stemming from transnational markets. The future will reveal whether these more recent

28 A similar observation for legal professions in England, France and the United States was made by Burrage (2006: 593–94).

118  Rafael Mrowczynski changes in Central and Eastern Europe have produced sustainable institutional settings for professionalism or rather represent the temporary return but eventual fall of the guilds in a time-lapse mode. REFERENCES Abbott, A (1986) ‘Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions’ 11 American Bar Foundation Research Journal 187–224. —— (1988) The System of Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). —— (2005) ‘Linked Ecologies: States and Universities as Environments for Professions’ 23 Sociological Theory 245–74. Abel, RL (1997a) ‘Discussion Questions & Suggested Reading’ in RL Abel (ed), Lawyers: A Critical Reader (New York, New Press) 158–60. —— (1997b) ‘Theories of the Legal Profession’ in RL Abel (ed), Lawyers: A Critical Reader (New York, New Press) 117–28. Abel, RL and Lewis, PSC (1989) ‘Putting Law Back into the Sociology of Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 478–526. Amsterdam, RR (2014) ‘Kick Russia’s Corrupt Elite Out of England’s Courts’ The Moscow Times 15 September. Antkowiak, P (2012) Samorząd zawodowy w Polsce (Warsaw, Dom Wydawniczy Elipsa). Armijo, L, Biersteker, T and Lowenthal, A (1995) ‘The Problem of Simultaneous Transformations’ in L Diamond and ME Plattner (eds), Economic Reform and Democracy (Baltimore, Johns Hopkins University Press) 226–40. Arnason, JP (2000) ‘Communism and Modernity’ 129 Daedalus 61–90. Balcerowicz, L (2009) ‘Institutional Change after Socialism and the Rule of Law’ 1 Hague Journal on the Rule of Law 215–40. Berman, HJ (1992) ‘The Rule of Law and the Law-Based State (Rechtsstaat): With Special Reference to the Soviet Union’ in DD Barry (ed), Toward the ‘Rule of Law’ in Russia?: Political and Legal Reform in the Transition Period (Armonk, NY, ME Sharpe) 43–60. Bluhm, K (2010) ‘Theories of Capitalism Put to the Test: Introduction to a Debate on Central and Eastern Europe’ 35 Historical Social Research 197–217. Bocharov, T and Moiseeva, E (2017) Byt’ advokatom v Rossii. Sotsiologicheskoe issledovanie professii (St Petersburg, Izdatel’stvo Evropeiskogo universiteta v Sankt-Peterburge). Boigeol, A (1988) ‘The French Bar: The Difficulties of Unifying a Divided Profession’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press) 258–94. Bourdieu, P (1986) ‘The Forms of Capital’ in JG Richardson (ed), Handbook of Theory and Research for the Sociology of Education (New York, Greenwood Press) 241–58. —— (1987) ‘The Force of Law: Toward a Sociology of the Juridical Field’ 38 Hastings Law Journal 814–53. Buchner-Jeziorska, A and Evetts, J (2001) ‘The Professionalization of Knowledge in European Markets: Engineering in the UK and Poland’ 49 Current Sociology 133–47. Bucholc, M and Komornik, M (2018) ‘Gewaltenteilung ausgehebelt: Der Umbau der polnischen Justiz 2017’ 68 Osteuropa 7–18. Bunce, V (1995) ‘Comparing East and South’ 6 Journal of Democracy 87–100. Burrage, M (1990) ‘Advokatura: In Search of Professionalism and Pluralism in Moscow and Leningrad’ 15 Law & Social Inquiry 433–78. —— (1993) ‘Review: Russian Advocates: Before, during, and after Perestroika’ 18 Law & Social Inquiry 573–92.

Post-Socialist Legal Professions  119 —— (2006) Revolution and the Making of the Contemporary Legal Profession: England, France, and the United States (Oxford, Oxford University Press). —— (2014) ‘Exceptional Professions in Extraordinary Times. A Comparison of Lawyers in Four Societies’ in D Müller and H Siegrist (eds), Professionen, Eigentum und Staat. Europäische Entwicklungen im Vergleich – 19. und 20. Jahrhundert (Göttingen, Wallstein Verlag) 41–74. Croft, J (2018) ‘Russians flock to London courts despite Moscow diplomatic chill’ Financial Times 24 May 2018 www.ft.com/content/bb5afabe-5e9c-11e8-9334-2218e7146b04. Dallago, B and Guglielmetti, C (2019) ‘Privatisation’ in W Merkel, R Kollmorgen and HJ Wagener (eds), The Handbook of Political, Social, and Economic Transformation (Oxford, Oxford University Press) 604–10. Eisenstadt, SN (2000) ‘Multiple Modernities’ 129 Daedalus 1–29. Ekiert, G (2003) ‘The State after State Socialism: Poland in Comparative Perspective’ in TV Paul, GJ Ikenberry and JA Hall (eds), The Nation-State in Question (Princeton, Princeton University Press) 291–320. Ekiert, G and Ziblatt, D (2013) ‘Democracy in Central and Eastern Europe One Hundred Years On’ 27 East European Politics and Societies 90–107. Fogelklou, A (1992) ‘New Legal Thinking in the Soviet Law’ in FJM Feldbrugge (ed), The Emancipation of Soviet Law (Dordrecht, Martinus Nijhoff Publishers) 3–26. Fraenkel, E (2017) The Dual State. A Contribution to the Theory of Dictatorship (Oxford, Oxford University Press). Freidson, E (2001) Professionalism: The Third Logic (Cambridge, Polity Press). Friedman, LM (1989) ‘Lawyers in Cross-Cultural Perspective’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 1–26. Fuszara, M (2003) ‘Women Lawyers in Poland under the Impact of Post-1989 Transformation’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing) 371–86. Hall, PA and Soskice, D (2001) ‘An Introduction to Varieties of Capitalism’ in PA Hall and D Soskice (eds), Varieties of Capitalism (Oxford, Oxford University Press) 1–68. Hammerslev, O (2011) ‘The European Union and the United States in Eastern Europe: Two Ways of Exporting Law, Expertise and State Power’ in Y Dezalay and BG Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) 134–55. Hayek, FA von (1998) ‘Spontaneous (“Grown”) Order and Organized (“Made”) Order’ in G Thompson, J Frances, R Levačić and J Mitchell (eds), Markets, Hierarchies and Networks: The Coordination of Social Life (Thousand Oaks, CA, Sage Publications) 293–301. Hellendoorn, K (2002) DDR-Juristen in der Rechtsanwaltschaft. Die Zulassung von Diplom-Juristen und deren Überprüfung aufgrund persönlicher Belastungen im Zuge der Vereinigung Deutschlands (Halle, Trift Verlag). Hellman, J, Jones, G and Kaufmann, D (2000) ‘Seize the State, Seize the Day’. State Capture, Corruption and Influence in Transition (Washington, DC, World Bank) (Policy Research Working Paper 2444). Huemer, U (2012) ‘Doppelstaat DDR? Zur Übertragung der von Ernst Fraenkel geprägten Begriffe “Normenstaat” und “Maßnahmenstaat” auf die DDR’ in J Osterkamp and J von Puttkamer (eds), Sozialistische Staatlichkeit (München, Oldenbourg Wissenschaftsverlag) 225–50. Hughes, EC (1984a) ‘The Professions in Society’ in The Sociological Eye: Selected Papers (New Brunswick, NJ, Transaction Books) 364–73. —— (1984b) ‘Professions’ in The Sociological Eye: Selected Papers (New Brunswick, NJ, Transaction Books) 374–86. Huskey, E (1992) ‘From Legal Nihilism to Pravovoe Gosudarstvo: Soviet Legal Development, 1917–1990’ in DD Barry (ed), Toward the ‘Rule of Law’ in Russia? Political and Legal Reform in the Transition Period (Armonk, NY, ME Sharpe) 23–42. Ioffe, OS (1985) Soviet Law and Soviet Reality (Dordrecht, Martinus Nijhoff Publishers).

120  Rafael Mrowczynski Jordan PA (2005) Defending Rights in Russia: Lawyers, the State, and Legal Reform in the Post-Soviet Era (Vancouver, UBC Press). Jowitt, K (1992) New World Disorder: The Leninist Extinction (Berkeley, University of California Press). Kilian, M (2012) Anwaltsrecht und Anwaltschaften in Mittel- und Osteuropa (Munich, CH Beck). Kilian, M and Dreske, R (eds) (2014) Statistisches Jahrbuch der Anwaltschaft 2013/2014 (Bonn, Deutscher Anwaltverlag). King, LP (2002) ‘Postcommunist Divergence: A Comparative Analysis of Russian and Polish Capitalism’ 37 Studies in Comparative International Development 3–34. King, LP and Szelenyi, I (2005) ‘Post-Communist Economic Systems’ in NJ Smelser and R Swedberg (eds), The Handbook of Economic Sociology (Princeton, Princeton University Press) 205–29. King, LP and Sznajder, A (2006) ‘The State-Led Transition to Liberal Capitalism: Neoliberal, Organizational, World-Systems, and Social Structural Explanations of Poland’s Economic Success’ 112 American Journal of Sociology 751–801. Kirschner, L and Lienau, M (1994) ‘Rechtsanwälte im Übergang: Zur Situation des Berufsstandes in den neuen Bundesländern’ 15 Zeitschrift für Rechtssoziologie 66–81. Kitschelt, H (2003) ‘Accounting for Postcommunist Regime Diversity: What Counts as a Good Cause?’ in G Ekiert and SE Hanson (eds), Capitalism and Democracy in Central and Eastern Europe: Assessing the Legacy of Communist Rule (Cambridge, Cambridge University Press) 49–83. Kmieciak, R (ed) (2010) Z badań nad samorządem zawodowym w Polsce (Poznań, Wydawnictwo Naukowe Wydziału Nauk Politycznych i Dziennikarstwa Uniwersytetu im. Adama Mickiewicza). Kollmorgen, R (2019) ‘Post-Socialist Transformations in the Twentieth and Twenty-first Centuries’ in W Merkel, R Kollmorgen and HJ Wagener (eds), The Handbook of Political, Social, and Economic Transformation (Oxford, Oxford University Press) 348–65. Kotkin, S and Beissinger, MR (2014) ‘The Historical Legacies of Communism: An Empirical Agenda’ in MR Beissinger and S Kotkin (eds), Historical Legacies of Communism in Russia and Eastern Europe (Cambridge, Cambridge University Press) 1–27. Krause, EA (1996) Death of the Guilds: Professions, States and the Advance of Capitalism, 1930 to the Present (New Haven, Yale University Press). Krygier, M (1990) ‘Marxism and the Rule of Law: Reflections after the Collapse of Communism’ 15 Law & Social Inquiry 633–63. Kurczewski, J (1994) ‘Legal Professions in Transformation in Poland’ 1 International Journal of the Legal Profession 269–82. Lane, D (2014) The Capitalist Transformation of State Socialism: The Making and Breaking of State Socialist Society, and What Followed (New York, Routledge). Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Lewinbuk, KP and Shenfield, SD (2008) ‘Professional Ethics for the Attorney: Guest Editors’ Introduction’ 43 Statutes and Decisions 7–9. Li, J (2019) ‘All Roads Lead to Rome: Internationalization Strategies of Chinese Law Firms’ 6 Journal of Professions and Organization 156–78. Łoś, M (1988) Communist Ideology, Law and Crime: A Comparative View of the USSR and Poland (London, Macmillan). Maine, HJS (1861) Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (London, John Murray). Menkel-Meadow, C (1989) ‘Feminization of the Legal Profession: The Comparative Sociology of Women Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 196–255. Merkel, W, Kollmorgen, R, Wagener, HJ (2019) ‘Transformation and Transition Research: An Introduction’ in W Merkel, R Kollmorgen and HJ Wagener (eds), The Handbook of Political, Social, and Economic Transformation (Oxford, Oxford University Press) 1–14.

Post-Socialist Legal Professions  121 Moiseeva, E (2015) Iuridicheskoe obrazovanie v Rossii: analiz kolichestvennykh dannykh. Analiticheskii obzor enforce.spb.ru/images/Nauchnie_raboty/2015_analit_obzor_Jurid_obrazovanie.pdf. —— (2018) Iuridicheskoe obrazovanie v Rossii: analiz kolichestvennykh dannykh i izmenenii s 2012 g www.enforce.spb.ru/images/analit_zapiski/IRL_analit_obzor_legal_education_moiseeva.pdf. Mrowczynski, R (2010) Im Netz der Hierarchien: Russlands sozialistische und postsozialistische Mittelschichten (Wiesbaden, VS Verlag für Sozialwissenschaften). —— (2012) ‘Self-Regulation of Legal Professions in State-Socialism: Poland and Russia Compared’ 20 Rechtsgeschichte 170–88. —— (2014) ‘Rechtsberater in staatssozialistischen und post-sozialistischen Gesellschaften: Ein Vergleich zwischen Polen, der Sowjetunion und dem post- kommunistischen Russland’ in D Müller and H Siegrist (eds), Professionen, Eigentum und Staat: Europäische Entwicklungen im Vergleich – 19. und 20. Jahrhundert (Göttingen, Wallstein Verlag) 133–66. —— (2016a) ‘Institutional Professionalization of Lawyers in State-Socialism and Post- Socialism: Poland and Russia Compared’ 23 International Journal of the Legal Profession 157–84. —— (2016b) ‘Lawyering in Transition: Post-Socialist Transformations in Autobiographical Narratives of Polish and Russian Lawyers’ 12 Przegląd Socjologii Jakościowej 146–66. Mrowczynski, R, Kropp, S and Bluhm, K (2018) ‘Staatskapazität und Verwaltungsreformen in hybriden und autoritären Regimen – am Beispiel der Steuerverwaltung in postsowjetischen Ländern’ 59 Politische Vierteljahresschrift 577–99. Noordegraaf, M (2007) ‘From “Pure” to “Hybrid” Professionalism. Present-Day Professionalism in Ambiguous Public Domains’ 39 Administration and Society 761–85. Offe, C (1991) ‘Capitalism by Democratic Design? Democratic Theory Facing the Triple Transition in East Central Europe’ 58 Social Research 865–92. Parkin, F (2008) ‘Marxism and Class Theory: A Bourgeois Critique’ in DB Grusky (ed), Social Stratification: Class, Race, and Gender in Sociological Perspective (Boulder, CO, Westview Press) 143–58. Parsons, T (1939) ‘The Professions and Social Structure’ 17 Social Forces 457–67. —— (1968) ‘Professions’ in DL Sills (ed), International Encyclopaedia of the Social Sciences vol 12 (New York: Macmillan & The Free Press) 536–47. Perkin H (1996) The Third Revolution. Professional Elites in the Modern World (London, Routledge). Plaggenborg, S (2006) Experiment Moderne: Der sowjetische Weg (Frankfurt, Campus Verlag). Popov, V (2000) ‘Shock Therapy Versus Gradualism: The End of the Debate (Explaining the Magnitude of Transformational Recession)’ 42 Comparative Economic Studies 1–57. Puttkamer, J von (2012) ‘Sozialistische Staatlichkeit: Eine historische Annäherung’ in J Osterkamp and J von Puttkamer (eds), Sozialistische Staatlichkeit (Munich, Oldenbourg Wissenschaftsverlag) 1–18. Redzik, A (2007) Zarys historii samorządu adwokackiego w Polsce (Warsaw, Naczelna Rada Adwokacka). Rueschemeyer, D (1973) Lawyers and their Society: A Comparative Study of the Legal Profession in Germany and in the United States (Cambridge, Harvard University Press). Sadurski, W (2019) Poland’s Constitutional Breakdown (Oxford, Oxford University Press). Schultz, U (2003) ‘Introduction: Women in the World’s Legal Professions: Overview and Synthesis’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing) xxv–lxii. —— (2021) ‘Introduction: Gender and Careers in the Legal Academy: Overview and Synthesis’ in U Schultz, G Shaw, M Thornton and R Auchmuty (eds), Gender and Careers in the Legal Profession (Oxford, Hart Publishing) 1–38. Segert, D (2019) ‘State-Socialist Transformations in the Twentieth Century’ in W Merkel, R Kollmorgen and HJ Wagener (eds), The Handbook of Political, Social, and Economic Transformation (Oxford, Oxford University Press) 258–69. Sharlet, R (1977) ‘Stalinism and Soviet Legal Culture’ in RC Tucker (ed), Stalinism: Essays in historical interpretation (New York, WW Norton) 146–79.

122  Rafael Mrowczynski Shaw, G (2003) ‘Women Lawyers in the New Federal States of Germany: from Quantity to Quality?’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing) 323–39. Shelley, LI (1996) ‘Post-Totalitarianism and Soviet Law’ in A Podgorecki and V Olgiati (eds), Totalitarian and Post-Totalitarian Law (Aldershot, Dartmouth) 251–73. Shepeleva, O and Novikova, A (2013) ‘Kachestvo iuridicheskogo obrazovaniia: stereotipy i real’nye problemy’ in A Novikova (ed), Iuridicheskoe obrazovanie: poisk novykh standartov kachestva. Materialy issledovaniia (Moscow, Institut Pravo obshchestvennykh interesov PILnet) 15–32. Śliwa, J (2010) Report on the Legal Education in Poland (Public Interest Law Network PILnet). Solnick, SL (1998) Stealing the State: Control and Collapse in Soviet Institutions (Cambridge, Harvard University Press). Sommerlad, H (2003) ‘Can Women Lawyer Differently? A Perspective from the UK’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing) 191–224. —— (2016) ‘“A pit to put women in”: professionalism, work intensification, sexualisation and work-life balance in the legal profession in England and Wales’ 23 International Journal of the Legal Profession 61–82. Srubar, I (1991) ‘War der reale Sozialismus modern? Versuch einer strukturellen Bestimmung’ 43 Kölner Zeitschrift für Soziologie und Sozialpsychologie 415–32. Staniszkis, J (1992) The Ontology of Socialism (Oxford, Clarendon). Stark, D (1996) ‘Recombinant Property in East European Capitalism’ 101 American Journal of Sociology 993–1027. Stark, D and Bruszt, L (1998) Postsocialist Pathways: Transforming Politics and Property in East Central Europe (Cambridge, Cambridge University Press). —— (2001) ‘One Way or Multiple Paths: For a Comparative Sociology of East European Capitalism’ 106 American Journal of Sociology 1129–37. Stevens, RB (1997) ‘Law School: Legal Education in America from the 1850s to the 1980s’ in RL Abel (ed), Lawyers: A Critical Reader (New York, New Press) 145–58. Tatur, M (1995): ‘Interessen und Norm. Politischer Kapitalismus und die Transformation des Staates in Polen und Rußland’ in H Wollmann, H Wiesenthal and F Bönker (eds), Transformation sozialistischer Gesellschaften: Am Ende des Anfangs. Leviathan (special issue 15) (Opladen, Westdeutscher Verlag) 93–116. —— (1999) ‘Zur “Eingebettetheit” des Systemwechsels in Osteuropa’ in HH Höhmann (ed), Eine unterschätzte Dimension? Zur Rolle wirtschaftskultureller Faktoren in der osteuropäischen Transformation (Bremen, Edition Temmen) 193–220. Turturica, C (2006) ‘Law School Accreditation in the New Independent States of the Former Soviet Union: What Steps for the Future?’ 13 International Journal of the Legal Profession 153–83. Volkov, VV (2002) Violent Entrepreneurs: The Use of Force in the Making of Russian Capitalism (Ithaca, Cornell University Press). Waters, CPM (2005) Counsel in the Caucasus: Professionalization and Law in Georgia (Leiden, Martinus Nijhoff). Westen, K (1988) ‘Die sozialistischen Rechtsordnungen’ in R David, C Jauffret Spinosi and G Grassmann (eds), Einführung in die großen Rechtssysteme der Gegenwart 2. deutsche Auflage (Munich, CH Beck) 221–429. Wykrętowicz, S (2010) ‘Rozwój samorządu korporacyjnego jako zdecentralizowanej administracji publicznej’ in R Kmieciak (ed), Z badań nad samorządem zawodowym w Polsce (Poznań, Wydawnictwo Naukowe Wydziału Nauk Politycznych i Dziennikarstwa Uniwersytetu im. Adama Mickiewicza) 7–21. Zaslavsky, V (1995) ‘Contemporary Russian Society and its Soviet Legacy: The Problem of State-Dependent Workers’ in B Grancelli (ed), Social Change and Modernization: Lessons from Eastern Europe (Berlin, de Gruyter) 45–62.

APPENDIX 1 Table  Numbers of advocates and lawyers in relation to general population ~1989 (end of socialism) Country Bosnia & Herzegovina China (PR)

Population

Advocates Lawyers

Absolute growth* Relative growth** (times) (times) Acknowledgements

Most recent data

Ratio P/A

Ratio P/L

Year

4,376,403

593

593

7,380.1

7,380.1 2018

Population 3,531,159

Lawyers

Ratio P/L

Change Change Change Change A L A L

1,590 2,220.9

2.7

2.7

3.3

3.3

1,397,030,000 320,000 4,365.7

21,051

21,051

54,771.7

54,771.7 2012

15.2

15.2

12.5

12.5

10,341,000

826

826

12,519.4

12,519.4 2016

10,578,820

11,310

935.4

13.7

13.7

13.4

13.4

Czechoslovakia (CZ&SK combined)

15,615,335

1,076

1,076

14,512.4

14,512.4

15,978,820

15,860 1,007.5

14.7

14.7

14.4

14.4

Germany (combined/entire)

77,175,000

54,700

54,700

1,410.9

1,410.9 2017

Germany East (GDR/NFS)

16,675,000

592

592

28,167.2

28,167.2 2017

Germany West (old FRG)

60,500,000

54,108

54,108

1,118.1

Hungary

10,373,000

1,800

1,800

Poland***

37,879,000

4,000

18,000

Romania

22,810,035

1,999

147,386,000 9,923,000

Slovakia Vietnam

Russia (RSFSR) Serbia

82,800,000 164,393

503.7

3.0

3.0

2.8

2.8

13,820,000

17,645

783.2

29.8

29.8

36.0

36.0

1,118.1 2017

68,980,000 146,748

470.1

2.7

2.7

2.4

2.4

5,762.8

5,762.8 2009

10,022,000

11,784

850.5

6.5

6.5

6.8

6.8

9,469.8

2,104.4 2017

38,433,600

51,000

753.6

12.8

2.8

12.6

2.8

1,999

11,410.7

11,410.7 2011

20,121,641

35,000

574.9

17.5

17.5

19.8

19.8

7,000

7,000

21,055.1

21,055.1 2016

146,880,432 172,000

854.0

24.6

24.6

24.7

24.7

2,475

2,475

4,009.3

4,009.3 2018

761.9

3.7

3.7

5.3

5.3

5,274,335

250

250

21,097.3

21,097.3 2011

5,400,000

4,550 1,186.8

18.2

18.2

17.8

17.8

60,307,000

398

398

151,525.1 151,525.1 2011

92,695,000

10,914 8,493.2

27.4

27.4

17.8

17.8

7,030,858

9,228

Data sources: Country reports in Volume 1, country reports on Hungary, Romania and Slovakia in Kilian (2012), population data from Wikipedia * Absolute growth: A = lawyers most recent / advocates in 1989; L = lawyers most recent / lawyers in 1989 ** Relative growth: A = (Ratio P/L) most recent / (Ratio P/A) in 1989; L = (Ratio P/L) most recent / (Ratio P/L) in 1989 *** For Poland in 1989 lawyers incl. also legal counsellors

Difference advocate Lowest estimate

Post-Socialist Legal Professions  123

1,153,000,000

Czech Lands / Rep.

124  Rafael Mrowczynski APPENDIX 2 Figure 1  Social mechanisms of changes in post-socialist legal professionalism

Part II

Diversity

126

6 Understanding Gender Inequality in the Legal Profession MARTA CHOROSZEWICZ AND FIONA KAY

I. INTRODUCTION

S

ince publication of the three volumes of Lawyers in Society (Abel and Lewis 1988a; 1988b; 1989), the legal profession has grown more diverse and inclusive, especially with regard to women’s representation across areas of law, sectors of practice, and professional titles (Bonelli and Fortes Vol 1, ch 19; Doornbos and De Groot-van Leeuwen Vol 1, ch 12; Katvan et al Vol 1, ch 30; Kay and Gorman 2008). The rapid entry of women into the profession began in the 1970s, with the largest increase occurring during the early 2000s (Michelson 2013). In several countries the numbers of female and male lawyers have been nearly equal for about two decades.1 In some countries (ie Cummings et al Vol 1, ch 6; Sommerlad et al Vol 1, ch 4; and Pérez-Hurtado Vol 1, ch 21), the entry of women accounts for over 70 per cent of the growth in the profession since the 1960s (Abel 1989: 100; Sommerlad 2016: 64). There is evidence that women have gained more than representation, though these gains do not extend to all women entrants. For example, longitudinal studies of US graduates from elite law schools found that women lawyers are successful in their pursuit of top positions in the profession, including large firm practice, receive mentoring on a par with men, and express satisfaction with their careers and work-life balance (Dau-Schmidt et al 2009; Stake et al 2007).2 However, this may not be the experience of women graduating from middle and lower tier law schools. Moreover, studies of elite law school graduates reveal important gender differences. For example, a study of University of Michigan law graduates finds that the small earnings gap at time of graduation increases over time, with women earning significantly less,

1 Women represented 56 per cent of Argentinean law students in 1997 (Bergoglio 2003), 60 per cent of Venezuelan law students in 1990s (Gómez and Pérez-Perdomo Vol 1, ch 21), and 47 per cent of Mexican lawyers in 1997 (López-Ayllón and Fix-Fiero 2003). A similar trend occurred in several European countries. In Poland, for example, women constituted 47 per cent of law students in the 1970s and 53 per cent by the end of the 1990s (Fuszara 2003: 373). In Finland, women outnumbered men entering law school for the first time in 1989, and by 1992 women law graduates outnumbered male law graduates (Silius 2003: 389). Similar trends were also observed in other Nordic countries (see eg Hammerslev Vol 1, ch 8). Women achieved near parity in US law schools nearly a decade later in 2006 (Wilder 2007). 2 Dau-Schmidt and colleagues (2009: 88) acknowledge that formal mentoring programmes for women are inferior to informal mentoring relationships; however, their analysis assesses only the percentage of women and men who report having a mentor. No distinction is made between formal and informal mentoring, the duration, or quality of mentoring.

128  Marta Choroszewicz and Fiona Kay on average, than their male colleagues 15 years after entering law (Dau-Schmidt et al 2009: 128).Women graduates from Indiana University School of Law-Bloomington report greater career dissatisfaction during the first five years of practice, possibly due to the intersection of long working hours and family responsibilities (Stake et al 2007: 979, 981). There is some evidence that global law firms have improved the career prospects of women law graduates in countries where women make up a small minority of lawyers. In legal professions with the lowest representation of women, for example those in India and China, the emergence and expansion of corporate law firms have increased employment opportunities for young women – primarily those from elite law schools. This trend is also evident in Latin America, including Chile, Mexico, and Brazil (see Bonelli and Fortes Vol 1, ch 19; Pérez-Hurtado Vol 1, ch 21; Villalonga Vol 1, ch 20). There is also significant variability in women’s representation across countries, which translates into dramatically different opportunities, choices, and careers. As a result, scholars have turned their attention from the representation of women in the legal profession to the diversity of their experience, particularly that attributable to intersections with race, ethnicity, and class (Kay and Gorman 2012; Tomlinson et al 2013). For example, research in England and Wales reveals that Black, Asian and Minority Ethnic (BAME) female solicitors are more disadvantaged than white women and men. These minority female solicitors are more likely to work as sole practitioners and in low-status, less profitable areas of law (Sommerlad 2016). In addition, women of colour3 report being passed over for desirable assignments (Epner 2006), disadvantaging them in the competition for law firm partnerships. In the US, less than 3 per cent of partners were minority women in 2015 (NALP 2015). Furthermore, white women, women of colour and other minority ethnic lawyers are more likely to leave the profession than are white men (Payne-Pikus et al 2010; Webley and Duff 2007). An intersectionality approach (Crenshaw 1989) also informs studies of gender and sexual orientation in the legal profession. Queer and trans women, whose appearance or behaviour may be perceived as breaching norms of femininity, are more likely to suffer discrimination and hostility from colleagues and clients (Antecol et al 2014; McGill and Salyzyn 2014). This chapter explores patterns of and reasons for women’s rising representation in the legal profession across countries. We examine the persistence of gender inequality and instances of intersectional disadvantage. Our analysis leads us to identify two inequality regimes: organisational and segmental. We discuss several theoretical explanations for these entrenched gender inequalities. We conclude by proposing directions for future research and policy initiatives for ameliorating the work conditions and career prospects of women lawyers. II.  WOMEN’S RISING REPRESENTATION IN THE LEGAL PROFESSION ACROSS COUNTRIES

The numerical feminisation of the world’s legal professions is a widespread phenomenon, but there are significant national differences (Liu Vol 1, ch 35; Michelson 2013; Murayama Vol 1, ch 38). Among common law countries, the change has been impressive. Women were just 3 per cent of lawyers in the US in 1971 (Curran 1995; Hull and Nelson 2000) but are 35 per cent today (Cummings et al Vol 1, ch 6). Women are even larger proportions of many 3 We use the term ‘women of colour’ in our discussion of the professional situations of black women. We use the term “ethnic and racial minorities” to refer to lawyers who self-identify as ethnic or racial minorities within their national context. We acknowledge that both terms are contentious from the perspective of ‘race’ as a social construction.

Understanding Gender Inequality in the Legal Profession  129 civil law professions, eg 50 per cent of avocats and over 60 per cent of notaires in Quebec, 43 per cent in the Netherlands, and 54 per cent in France – but just 28 per cent in South Korea, 35 per cent in Serbia and 30 per cent in Bosnia and Herzegovina (Barreau du Québec 2015: 16; Bessy and Bastard Vol 1, ch 9; Chambre des notaires du Québec 2017; Doornbos and de Groot-van Leeuwen Vol 1, ch 12; Kim Vol 1, ch 40; Vuković et al Vol 1, ch 17). There is considerable variability among European countries (Galligan et al 2017: 61–63). According to Eurostat data for 24 European Union (EU) member states, women law students outnumbered men in 2013, 2014, and 2015 (ibid: 68–71). In addition, data gathered by the Council of Bars and Law Societies of Europe indicate that women increased from 35 per cent of EU lawyers to 43 per cent between 2004 and 2015 (ibid: 60). The largest increases were in Bulgaria (18 per cent), Greece (17 per cent), Slovakia (16 per cent), and Austria (13 per cent) (ibid: 61). Women were 30 to 50 per cent of lawyers in Central and Eastern Europe and in common law countries (ie UK, Cyprus, and Ireland). Western European civil law countries display even wider variation in women’s representation, ranging from 10 to 55 per cent (ibid: 61–63). The highest representation of women among lawyers (50–55 per cent) is observed in former socialist countries such as Poland, Latvia, Slovakia and Bulgaria (ibid: 62). Yet in these countries, the number of women has grown more in less prestigious and lucrative law professions, eg notaries and legal counsel (Fuszara 2003: 383). In Russia and Poland in the 1990s these sectors admitted significantly more apprentices, including more women, compared with advocates, preserving the latter’s male-dominated character until very recently (Mrowczynski 2016: 172). ‘Legal counsel’ emerged in Russia and Poland during the state-socialist period to work in state organisations as salaried lawyers (ibid). Their more predictable work hours attracted many women lawyers. In contrast, attorneys must be independent practitioners and frequently work long hours (Fuszara 2003). Attorneys also have limited access to maternity and parental leave. Furthermore, inflexible trial schedules pose challenges for women solo practitioners who take maternity leave and must secure replacement lawyers for trial dates and manage deadlines without the ease of sharing files afforded by private law firms (Choroszewicz 2014a: 91–102). In Switzerland, regional differences in entry barriers have resulted in women’s representation ranging from 13–38 per cent in regional bars and totalling only 28 per cent nationally (Boni-Le Goff et al Vol 1, ch 13). As in other countries, Swiss women are under-represented among equity partners while constituting the majority of associates – a trend Boni-Le Goff and colleagues attribute to a modified male-breadwinner gender regime and a liberal conception of state-family relations. A similar difference exists in common law professions. For example, women were 49 per cent of UK solicitors in 2015 and 50 per cent of Australian solicitors in 2016 (Sommerlad et al Vol 1, ch 4; Thornton and Wood Vol 1, ch 2). Yet, as Thornton and Wood observe, Australian female solicitors dominate government work (where they are 64 per cent) and in-house counsel (57 per cent), while male solicitors work dominate private practice (55 per cent). Women are much lower proportions of Australian barristers (23 per cent), law firm partners (22 per cent) and equity partners (18 per cent) (Thornton and Wood Vol 1, ch 2). In Canada, women were 26 per cent of private practitioners (Brenner 2014: 261) but 39 per cent of the profession (Dinovitzer 2015: 8). Canadian women lawyers are more likely to work as employees of firms with fewer than 21 lawyers, while male lawyers are more likely to work as sole practitioners or in bigger firms (Dinovitzer and Dawe Vol 1, ch 3). In Israel, the growth in numbers of women lawyers is impressive. In the 1970s women comprised only 13 per cent of all registered lawyers, but they were 35 per cent by the 1980s, 47 per cent by 2016, and half today (Katvan et al Vol 1, ch 30; Kricheli-Katz et al 2018: 456).

130  Marta Choroszewicz and Fiona Kay Women’s rising representation anticipated the significant growth in the profession in the mid-1990s (Zer-Gutman 2012). Yet women law graduates are less likely than men to work full-time and more likely to be employed in the public sector (including NGOs) (35 versus 24 per cent). Women are less likely than men to work as sole practitioners (22 versus 35 per cent) (Kricheli-Katz et al 2018: 457). Women lawyers in Israel also receive lower salaries and report being less satisfied with their decision to have attended law school (ibid: 449). Finally, women leave the Israeli legal profession at a higher rate (ibid: 458). In African countries, there has also been impressive growth in women’s representation in law and emerging gender differences across practice settings. The establishment of national law schools in Ghana, Nigeria, Kenya and Zimbabwe contributed to women’s access to the legal education. For example, the first woman entered law practice in Kenya in 1978 (Kamau Vol 1, ch 24) and in Ghana in 1944 (Dawuni 2017). Women accounted for 35 per cent of lawyers called to the Ghanaian Bar in 2010. Women’s representation among newly licensed lawyers in Ghana doubled between 1987 and 2015 (ibid). This pattern converged with a rapid expansion of the Bar as the number of entrants increased from 68 in 1986 to 200–300 each year since 2010. This pattern could be due to the lack of affirmative action policies as well as the hostile climate that surrounded the Ghanaian legal profession until recently. Between 1969 and 1992, Ghana was politically instable, and lawyers were often perceived as enemies of the state (ibid). In Nigeria, the number of women qualifying for law practice began increasing in the 1970s, reaching a quarter of entrants in the 1980s, a third by the mid-1990s, and half by 2010 (Uzebu-Imarhiagbe Vol 1, ch 25). In recent years, an unusual pattern of gender segmentation has emerged in the Ghanaian legal profession. Women are concentrated in corporate and commercial law firms, while men dominate the larger legal market of solo practice (Dawuni 2017). A similar trend is also observed in Kenya and Zimbabwe. In 2013, only 160 women lawyers worked in private law practice out of a total of 1,160 men and women lawyers (Karekwaivanane Vol 1, ch 27). In Kenya, the majority of women lawyers work in government and corporations, which have more stable working hours and terms of service (Kamau, Vol 1, ch 24). In Latin America, other trends are noteworthy. In Brazil, women are entering law school in growing numbers and obtaining jobs across practice sectors. Small firms and solo practice remain predominantly male, but women are 30 per cent of partners in medium and large firms (Bonelli and Fortes Vol 1, ch 19). In Mexico, women were 50 per cent of both law students and licensed lawyers in 2015 but just 40 per cent of practising lawyers and 75 per cent of economically inactive professionals holding a law degree (Pérez-Hurtado Vol 1, ch 21). What factors led to the influx of women to law practice in so many countries? Some scholars contend that the women’s and civil rights movements of the 1960s are responsible (Epstein 1993). This view emphasises the impact of cultural values of universalism, equality and meritocracy as well as anti-discrimination legislation. Other scholars observe that the entrance of women coincided with the expansion of legal education programmes and the growth of the profession. For instance, Michelson (2013) used census data from 68 countries over 40 years (1970–2010) to identify conditions promoting women’s entry to the profession. He found that bar expansion or ‘lawyer density’ (the ratio of lawyers to population) is a precondition for feminisation, arguing that demand for labour outpaced the pool of qualified men, prompting employers to hire nontraditional lawyers – ie women. He found that while women were 30 per cent of lawyers in the vast majority of countries by the 2000s, China and India were still far below this threshold (ibid: 1083). Liu (Vol 1, ch 35) notes some exceptions in China. Drawing on official statistics from the All China Lawyers Association, Liu argues that women’s representation among Chinese lawyers continued to rise after 2010, exceeding 30 per cent in 2017 in urban areas such as Shanghai, owing to the large number of foreign law firms.

Understanding Gender Inequality in the Legal Profession  131 In the 1980s, Abel (1989) identified India and Japan as exceptions to feminisation. These countries still lag far behind worldwide averages: women comprise only 18 per cent of lawyers in Japan (Coe 2016: 1; Japan FBA 2015: 10) and about 10 per cent in India (Ballakrishnen Vol 1, ch 36). In India, Ballakrishnen explains that the legal profession is highly fragmented, localised, and shaped by a strong ‘male’ image. Nevertheless, the emergence of elite law firms has improved opportunities for young, unmarried, middle-class women lawyers. In contrast, in Japan the low representation of women is related to the high entry barriers (eg fixed number of bar admissions), the elite character of the profession, and a generalist model of legal practice, as well as a low level of internationalisation of law firms. As Murayama (Vol 1, ch 38) observes, the largest law firms in Japan remain Japanese. Other research suggests that changing political regimes, new legal structures, emerging markets and professional governance all play important roles. For example, some of the most pronounced feminisation occurred in Latin America, African countries, former Soviet Bloc countries and several European countries where political systems were transformed over the last 40 years (Michelson 2013). In Latin American countries (specifically, Böhmer Vol 1, ch 18; Bonelli and Fortes Vol 1, ch 19; Villalonga Vol 1, ch 20; Pérez-Hurtado Vol 1, ch 21; Gómez and Pérez-Perdomo Vol 1, ch 22), women’s rising representation in the legal profession has been attributed to the democratisation of education (eg access by groups previously excluded from university education), women’s growing labour force participation, promulgation of new constitutions, and emerging international law practices (Bonelli 2013; Junqueira 2003; Pérez-Perdomo 2007). The feminisation of the legal profession has also been promoted by political and military regimes (Crouch Vol 1, ch 39). In Myanmar, women constitute the majority of judges, law professors, and lawyers. This is an exception among Asian countries and a direct consequence of the country’s military strategy during the 1990s and 2000s, which aimed to reduce the status and power of lawyers by closing law departments or moving them to the city outskirts and lowering entry barriers (eg entrance scores). Yet the overrepresentation of women in the legal profession in Myanmar has not allowed women to reach the highest positions within the profession. For example, all judges on the Union Supreme Court in Myanmar are men (ibid). The feminisation of law practice has coincided with significant changes in the structure of the profession and the organisation of legal work. The increasing demand since the 1960s for associate-level lawyers has generated new career opportunities for women in law firms, not only in the US (Epstein and Kolker 2013) but also in other countries where the corporate legal sector is rapidly developing (Ballakrishnen Vol 1, ch 36; Boni-Le Goff et al Vol 1, ch 13; Dawuni 2017; Kouwagam and Bedner Vol 1, ch 37; Villalonga Vol 1, ch 20). Greater specialisation and the emergence of new legal areas and social justice campaigns have further increased demand and career opportunities for women lawyers. For example, Bessy and Bastard (Vol 1, ch 9) observe that in France, women’s representation in the legal profession increased with the growth of litigation (especially divorce) and other less prestigious work. In Switzerland, women are highly represented in labour law and family law compared with business law; women also depend more than men on legal aid cases (Boni-Le Goff et al Vol 1, ch 13). III.  INEQUALITY REGIMES ACROSS LEGAL MARKETS

Despite evidence of a dramatic growth in the number of women graduating law school and entering the profession, problems of retention and advancement continue to obstruct full equality (Kay et al 2013; Ramaswami et al 2010). Patterns of gender inequality in the legal

132  Marta Choroszewicz and Fiona Kay profession have shifted from outright exclusion towards internal processes that create subtle disadvantages, handicapping women or derailing their efforts to pursue successful careers. Internal processes may take the form of an organisational inequality regime (Acker 2006; 2012) within law firms and a segmental inequality regime (Bolton and Muzio 2007) at the level of the profession and within specific sectors of legal work. Both result in women’s under-representation in leadership positions across practice settings. A.  Organisational Inequality Regimes Women everywhere face difficulties in attaining the most prestigious and financially rewarding positions in law firms (Ballakrishnen Vol 1, ch 36; Boni-Le Goff et al Vol 1, ch 13; Villalonga Vol 1, ch 20). They are overlooked for challenging work assignments and opportunities to work with elite clients (Epstein and Kolker 2013; Rikleen 2015; Thornton 2014; Thornton and Wood Vol 1, ch 2). Studies from Australia, the UK, Canada, the US, Europe and several South American countries reveal that women in private practice often remain in the bottom echelons of law firms, in less secure contractual jobs, and in non-proprietor positions of law firms (Choroszewicz 2014a; Dinovitzer and Dawe Vol 1, ch 3; Galligan et al 2017; Kilian and Schultz Vol 1, ch 10; Pérez-Hurtado Vol 1, ch 21; Sommerlad 2016). The gender gap in leadership positions remains especially stark. In Israel, women constitute 57 per cent of lawyers in the top 100 commercial law firms but only 30 per cent of senior partners and just 7 of 100 managing partners (Katvan et al Vol 1, ch 30). In Chile, women are nearly half of law students and lawyers but only 32 per cent of lawyers and 6 per cent of partners in large law firms (Villalonga Vol 1, ch 20). In the US, women constituted only 18 per cent of equity partners in 2017, just 2 per cent more than they had been a decade earlier (Chen 2015; Rikleen 2015; Sterling and Reichman 2016). In recent years, a restructuring of large law firms has disadvantaged women in Western countries. Ackroyd and Muzio (2007) portray the large law firm as based on new mechanisms of internal closure, with an elongated organisational hierarchy and an emerging gender division of labour. The maximisation of profits in large law firms takes place, as Bagust (2012: 160) notes, ‘on the backs of the under-utilised and sidelined labour of women lawyers’. As the elite rank of equity partners began to shrink (Galanter and Henderson 2008; Henderson 2011), a disproportionate share of women found themselves in non-equity partnerships (Rikleen 2015), leading some to describe this new tier as a ‘pink ghetto’ (Triedman 2014). Large firms also increased the number of contract and staff lawyers, who are paid less than associates, receive less interesting work, and typically have no opportunity to advance to partner (Sterling and Reichman 2016). These new types of lawyers are also disproportionately women (60 per cent) (Epstein and Kolker 2013). The clustering of women in lower tier partnerships and positions below and off the partner track has significant economic consequences. Studies of the legal profession in the US and Canada have shown that women earn substantially less than men (Dinovitzer et al 2009; Noonan et al 2005; Reichman and Sterling 2013). On average, women earn 52–77 per cent of what men earn (Rhode 2014; Weiss 2016).4 That gap diminishes but remains substantial 4 Sadly, Deborah Rhode passed away in January 2021 at the age of 68. Professor Rhode was a leading scholar in the fields of gender and law, legal ethics, access to justice, leadership, and the legal profession. She authored 30 books, including, Justice and Gender: Sex Discrimination and the Law (1989), Speaking of Sex: The Denial of Gender Inequality (1997), In the Interests of Justice: Reforming the Legal Profession (2000), and The Beauty Bias: The Injustice of Appearance in Life and Law (2010).

Understanding Gender Inequality in the Legal Profession  133 when factors such as law school rank, academic grades, practice setting, specialisation, hours worked and family situation are taken into account (Dinovitzer and Hagan 2014; Robson and Wallace 2001). The gap appears to start with initial hiring after law school graduation and widen over time (Dau-Schmidt et al 2009; Dinovitzer 2015; Kay and Hagan 1995; Plickert et al 2014). The result is that the salary disparity between female and male lawyers is particularly large in the upper echelon of practice (Brenner 2014; Neil 2013; Noonan et al 2005). Some scholars indicate that women lawyers in South American countries face similar disadvantages (Bonelli and Fortes Vol 1, ch 19). For example, Villalonga (Vol 1, ch 20) notes that women in Chile earn 77 per cent of what men earn in similar positions in big law firms. The situation looks somewhat better in countries experiencing rapid internationalisation, such as Brazil, China, India, and Mexico. Compared with domestic law firms, global law firms in these countries provide better career opportunities for female law graduates (see Ballakrishnen Vol 1, ch 36; Liu Vol 1, ch 35; Pérez-Hurtado Vol 1, ch 21). Although Ballakrishnen (2016) identified a niche of corporate Indian law firms offering female lawyers favourable opportunities in hiring and promotion, it is unknown whether these opportunities exist in other Indian law firms. But a survey of working mothers in the Indian legal profession found that they face barriers to career progress (eg gender bias, long working hours, work-life imbalance, and sexual harassment) similar to those confronting their Western female colleagues (Makhija and Raha 2012). In Ghana, women represent nearly 50 per cent of partners and senior associates in the ­largest law firms, yet the largest law firm in Ghana has only 39 lawyers, 27 of whom are women (Dawuni 2017). Most firms are small – an average of five lawyers. Dawuni argues that women choose corporate and commercial firms for their more stable working schedules and better work-life balance compared with the solo practices where most men work (ibid). By contrast, in some European countries, such as Finland, Denmark and Poland, solo offices and small law firms provide women with more flexible working hours and greater opportunity to work from home (Choroszewicz 2014a; 2018; Hammerslev Vol 1, ch 8). Do women, who experience less desirable working conditions and blocked career mobility, leave private law practice at higher rates than men? In the US, 9 per cent of women leave their firms within 16 months of being hired, and 55 per cent depart within four-and-a-half years (Patton 2005: 174). In Australia, 50 per cent of women who had entered private practice over the previous 20 years left within five years of bar admission (Thornton and Wood Vol 1, ch 2), compared with 43 per cent of men (Thornton 2014). In Canada, women exit private practice earlier and in larger numbers than men, and small firms are least successful in retaining female lawyers (Kay 1997). Women are also more likely to report actively seeking new employment outside of law practice (Kay 2002). In France, a third of women quit private law practice in their first ten years compared with a quarter of all lawyers (Bessy and Bastard Vol 1, ch 9). In Denmark, women are overrepresented among lawyers leaving law firms after 4–5 years (Hammerslev Vol 1, ch 8). In Switzerland, a higher proportion of women report planning to leave the legal profession (36 versus 30 per cent in Geneva, 30 versus 15 per cent in Lausanne) (Boni-Le Goff et al Vol 1, ch 13). While domestic Swiss firms have been slow to address gender inequalities, American-based firms have introduced gender equality programmes to Switzerland (ibid). Recent research finds that when workplaces offer flexible schedules and women are satisfied with compensation, promotion opportunities and the prestige of their work they are less likely to leave work settings (Kay et al 2013). In Western countries over the last decade corporate firms have advanced a ‘business case’ for gender equality, fueling a search for highly skilled female lawyers. The business case

134  Marta Choroszewicz and Fiona Kay claims that gender equality policies improve organisational performance and competitiveness (McLaughlin and Deakin 2011: 1). This argument links lawyers’ market value to the revenues they generate for their firms (Collier 2014). But that also compels lawyers to meet allegedly neutral requirements, such as working long hours, recruiting new clients, and soliciting powerful sponsors to enhance their careers. By focusing on ‘fixing women’ rather than addressing structural barriers and intersectional experiences (Hearn et al 2016; Meyerson and Fletcher 2000), the business case for promoting gender equality is dependent on law firms’ ability to capitalise on recruiting and retaining women (Rhode and Ricca 2015; Sandgrund 2016). B.  Segmental Inequality Regimes A considerable volume of research finds that inequality regimes cluster women in less prestigious areas of law and outside private practice. Men are more likely to enter private practice and business, while women are more likely to enter corporate counsel positions, government work, legal education, the judiciary, prosecution, and legal aid work (Dau-Schmidt et al 2009; Doornbos and de Groot-van Leeuwen Vol 1, ch 12; Kilian and Schultz Vol 1, ch 10; Sandefur 2007; Thornton and Wood Vol 1, ch 2). These work environments make it easier to combine legal careers with family life by offering more stable work hours, part-time work, and extended parental leaves. But just like women in private practice, women in these other environments are less likely to occupy positions of authority or earn top salaries (Kitzerow 2014). Gender and professional status remain highly correlated in the legal profession. For example, in the vast majority of civil law countries (eg Bessy and Bastard Vol 1, ch 9; Doornbos and de Groot-van Leeuwen Vol 1, ch 12) the notariat – characterised by high salaries, lack of part-time work, and a traditional apprenticeship system – remains largely male-dominated (Galligan et al 2017: 22, 86). In contrast, the notariat in former socialist and Eastern European countries, such as Poland, which has a lower status as a result of the low average income and routine character of work, remains a female dominated profession (Fuszara 2003: 384). But as the economic and political transformations of the 1990s gave the notariat the status of an independent profession and raised its earning power, more men entered the profession (Galligan et al 2017: 23; Schultz 2003: xlvi). This trend is especially pronounced in the case of the Czech notariat, which became attractive to men almost overnight (Kober Vol 1, ch 14). In Serbia, Bosnia and Herzegovina, the notariat was abandoned during socialism but was reintroduced in 2000s – a change that was contested by the male-dominated profession of advocates. The notariat in both countries is female dominated (Vuković et al Vol 1, ch 17). There are also significant differences in women’s representation among judges and ­prosecutors in civil and common law European jurisdictions. Although in civil law countries women outnumber men among judges, most women serve on first instance courts and few on supreme courts. Across Europe, prosecution services are dominated by women, with the exceptions of Germany, France, Italy, Lithuania, Luxemburg, Austria, Slovakia, and Finland (Galligan et al 2017: 55–59). Yet again, the general trend is that the higher the court, the lower the representation of women. Even more striking trends are observed among countries outside Europe. For example, in Brazil women represent almost half of public lawyers and defenders but only one-third of judges (Bonelli and Fortes Vol 1, ch 19). In Israel, women are 71 per cent of jurists in the public sector, 66 per cent in the district and state attorney offices, and 50 per cent of judges but only 4 of the 15 Supreme Court justices (Katvan et al Vol 1, ch 30). In Mexico, women are 43 per cent of federal prosecutors and only 20 per cent of federal judges (Pérez-Hurtado Vol 1,

Understanding Gender Inequality in the Legal Profession  135 ch 21). In the case of African countries, Dawuni and Kang (2015) argue that the key factors facilitating the rise of female chief justices and presidents of constitutional courts are the absence of a distinction between barristers and solicitors, the commitment of gatekeepers to advance women, the end of major armed conflict, and regional diffusion. Their study covered the period 1990–2014 in six African countries, including three civil law (Benin, Niger, and Rwanda) and three common law countries (Ghana, Nigeria, and Sierra Leone). Women also have encountered obstacles in academia. In all European countries women are a majority of law graduates, reaching about 70 per cent in the Baltic States. Yet, in the case of graduate students, gender representation is reversed. At the professoriate level, women are a minority (Galligan et al 2017: 71). This trend has been especially notable in Germany, where law is highly prestigious and there are strict entrance requirements based on an oral examination that favours male candidates (Kilian and Schultz Vol 1, ch 10; Schultz 2003: xxxix–xl). In Serbia, women have constituted a majority of law graduates since the 1980s, over 70 per cent in 2007. Yet this trend has not been reflected in the academic hierarchy: women comprise 30 per cent of professors, 40 per cent of lecturers and 52 per cent of teaching assistants (Vuković et al Vol 1, ch 17). In contrast, women’s representation in law faculties has grown faster in countries where law is a less prestigious subject and legal academics earn lower salaries. For example, in Brazil women made up 40 per cent of legal academics in 2014, and half of them held a doctorate or a specialist degree (Bonelli and Fortes Vol 1, ch 19). In Australia women are 40 per cent of the professoriate, and more than half of those women occupy lower ranks (Thornton and Wood Vol 1, ch 2). Finally, in many countries, women are under-represented in leadership positions in bar associations. This bodes ill for women’s prospects to effect change in the legal profession. In Turkey, women made up 43 per cent of lawyers in 2016 but presided over only six of 79 Bar Associations (Kalem Vol 1, ch 34). In Chile, women were only three out of 18 board members in the Chilean Bar Association in the period 2017–21 (Villalonga Vol 1, ch 20). In Poland, women attorneys served as deans of four and vice-deans of three of 24 district Bar Councils and as presidents of three of 15 committees and expert groups in 2013 (Choroszewicz 2014a: 69). IV.  EXPLAINING GENDER INEQUALITIES IN THE LEGAL PROFESSION

While the reproduction of gender inequalities continues to be tied to the privilege of middleclass white males in many Western countries,5 the processes generating inequalities are now more complex, subtle, and less systematic. Below we discuss several theoretical perspectives that offer insight into the mechanisms that produce gender inequalities in the contemporary legal profession internationally. A.  Discrimination, Cognitive Bias and Gender Stereotypes Although overt discrimination has receded, more subtle and structural forms of discrimination persist (Kitzerow 2014). Research reveals that pregnant litigators continue to encounter overt discrimination (Mastro 2001), and many women experience unwanted sexual advances, 5 This privileged class is composed of men of a variety of cultural and racial backgrounds depending on national context and the history of colonial regimes.

136  Marta Choroszewicz and Fiona Kay teasing or comments of a sexual nature from fellow lawyers (Brockman 2006). Studies have also documented less overt forms of discrimination. For example, women are more often excluded from mentoring relationships (McManus 2005) and receive fewer invitations to work on challenging files or ‘stretch’ assignments with senior law firm colleagues (Epstein et al 1995; Kay and Hagan 2003; Kay et al 2006). A Swiss study reveals that 26 per cent of women lawyers in Lausanne and 28 per cent in Geneva (versus 1 and 3 per cent of men lawyers) report having experienced gender discrimination during the past five years (Boni-Le Goff et al Vol 1, ch 13). The sexualisation of women lawyers continues to operate as a tool to de-professionalise women, not only in Western countries (Sommerlad 2016) but also in China, South Africa, and India (Liu Vol 1, ch 35; Ballakrishnen Vol 1, ch 36; Klaaren Vol 1, ch 26). In Iran, judges tell women to be quiet or fix their headscarves, and male lawyers see their female colleagues as sexual objects (Banakar and Ziaee Vol 1, ch 29). In Zimbabwe, women need to fight clients’ gendered stereotypes of them as less competent than their male counterparts as well as the belief that women are better suited for work in the civil service because private practice is too demanding (Karekwaivanane Vol 1, ch 27). Women’s progress has slowed in the last two decades as a result of resilient gender bias and sex categorisation (Brenner 2014; Epstein 2007; Levinson and Young 2010; Sterling and Reichman 2016). Gender continues to be a powerful status characteristic shaping perceptions of competence (Ridgeway and Kricheli-Katz 2013). Owners and managers of law firms and businesses employing lawyers may be less likely to select women in hiring and promotions because cognitive biases lead them to favour men. Gorman (2005) found that US firms whose hiring criteria were more stereotypically masculine hired more men, whereas firms with more stereotypically female hiring criteria hired more women. Numerous scholars have asserted that law firm leaders find it difficult to measure associates’ abilities and performance objectively, instead relying on subjective assessments by partners (Galanter and Palay 1991; Gorman and Kmec 2009; Wilkins and Gulati 1996). Cognitive bias may lead organisational leaders to perceive male employees as possessing greater competence and potential (Rhode 2011). These cultural schemas or status expectations influence assessments of competence and create barriers to women, who may be seen as less worthy of promotion or less committed to the profession (Reichman and Sterling 2013; Ridgeway and Kricheli-Katz 2013). The result is that firm management assigns more frequent and effective developmental experiences to male junior lawyers in the form of career mentoring and challenging, high profile cases. In contrast, women’s legal work receives greater scrutiny, and they are seen as performing less well than male lawyers (Reichman and Sterling 2013; Sterling and Reichman 2016). Studies suggest that gender bias plays a lesser role when law firm decisionmakers are women, female clients influence law firm leadership, and firm leaders have worked in environments with a strong representation of women among leadership ranks (Beckman and Phillips 2005; Gorman 2005). B.  Work-Life Conflict and the Lack of Accommodation for Family Responsibilities One of the most common explanations for gender discrimination is the lack of accommodation for family responsibilities (Brockman 2006; Katvan et al Vol 1, ch 30; Makhija and Raha 2012; Noonan and Corcoran 2004; Villalonga Vol 1, ch 20; Williams 2007). The long hours and ‘on-demand’ culture of law practice make some women time childbearing to reduce conflict with demanding early career stages (Hagan and Kay 1995; Leiper 2006). In a survey of solicitors and barristers in Ireland, Bacik and Drew (2006) found evidence that women delayed having children out of concern for the impact of parenthood on their career advancement.

Understanding Gender Inequality in the Legal Profession  137 The gendered division of labour within families combines with professional work norms – also based on gendered assumptions about caregiving roles – to disadvantage women lawyers in their careers. Women lawyers assume greater caregiving responsibilities at home than their male spouses and male colleagues and therefore face greater stress in juggling work and family (Bacik and Drew 2006). The individualistic assessment of lawyers’ performance based on billable hours, active client recruitment and 24/7 availability, as well as stigmatisation of parental leave and flexible work as ‘women only’ options, preserve the male breadwinner norm and male lawyers’ entitlement to career advancement and higher incomes (Choroszewicz and Tremblay 2018; Thornton 2016a; 2016b). The issue is particularly relevant for lawyers working in large law firms, whose hypercompetitive environment sustains and reinforces masculine career models, which resist part-time work and flexible work arrangements (Epstein et al 1999; Pinnington and Sandberg 2013). These career models undermine women’s agency and encourage women to leave law firms for settings where they can transcend the dualism of work and life (Biese and Choroszewicz 2018). Law firms, in their competition for female lawyers, have adopted policies to permit parttime work, telework, and flexible working hours, as well as more generous maternity leaves, all of which are primarily intended for female employees (Choroszewicz 2016; Rhode and Ricca 2015; Sandgrund 2016). These policies often direct women to ‘off ramps’ from career advancement (Sterling and Reichman 2016). As Thornton (2016a: 21) notes, ‘flexible work may not represent the great advance for women lawyers that it was initially believed to be’. Policies aimed at extending parental leave to male lawyers have slowly been introduced in recent years. However, recognition of male lawyers’ right to parental and family leave has not led to widescale policies or usage. Even when parental leave policies explicitly include the fathers’ right to both paternity and parental leave there are cultural and professional barriers to male lawyers taking them, which can lead to negative judgements about career commitment (Choroszewicz and Tremblay 2018; Kay et al 2016). The traditional ideology of breadwinning fatherhood is deeply instilled in law firms, discouraging men from becoming more involved in family caregiving responsibilities (Choroszewicz 2019). This is especially relevant to the younger generation of male lawyers who feel social pressure to assume more childcare responsibilities (Collier 2013). There is some evidence that these younger men are more interested in taking paternity and parental leave, but the consequences of doing so are delayed or derailed career progress (Choroszewicz 2019; Choroszewicz and Tremblay 2018; Tremblay 2013). In response to these observations, several scholars have turned to Acker’s (1990; 2006) theory of gendered organisation and inequality regimes to illustrate the nuanced and contextsensitive mechanisms of women’s disadvantage in law firms (Choroszewicz 2016; 2018; Sterling and Reichman 2016). This framework allows us to identify the organisational processes and practices that unequally situate women and men in the competition for positions of power and authority. For example, a study of Finnish law firms demonstrates that policies such as flexible work arrangements (eg part-time hours) may provide women lawyers with a sense of agency in designing strategies to combine family and career. However, these policies do not challenge male advantage embedded in professional expectations for career progress in law firms (Choroszewicz 2016). US research finds that the gendered organisation of law firms rewards rainmaking over client service, placing men and women lawyers on an unequal footing when law firm leaders evaluate their respective contributions (Sterling and Reichman 2016). Gendered features of law firms include career structures and work patterns that reflect the image of an unencumbered male professional with a stay-at-home wife (Brockman 2001; Tomlinson et al 2013). Furthermore, a masculine professional ethos conditions lawyers to work long hours and always be available to meet the demands of employers and clients

138  Marta Choroszewicz and Fiona Kay (Bolton and Muzio 2007; Choroszewicz and Kay 2020; Sommerlad 2012; Webley and Duff 2007). The elite sphere of corporate law firm practice fosters a hypercompetitiveness that requires the ‘ideal lawyer’ to sacrifice any possibility of a personal life (Thornton 2014) and be free to work exceedingly long hours at the beck and call of clients (Hagan and Kay 2010; Sommerlad 2016; Williams and Richardson 2010). These pressures are intensified by the spread of fee structures and performance metrics that identify billable hours as the key assessment of associate lawyers’ performance (Dilloff 2011). In addition, recruitment of new business and clients has become even more vital to firms following the 2008 recession. The institutional expectation of rising billable hours eclipsed personal lives, aggravating stress and dissatisfaction, as evidenced by the diminished quality of work, pressures to overbill, and declining intra-firm mentorship (Wald 2011). C.  Gender Differences in Human, Social and Cultural Capital Resources Another set of theories focuses attention on forms of capital. Research on human capital (Becker 1993) suggests that aspiring lawyers make investments in developing their productive skills through advanced degrees and experience in the legal labour market (Piazza-Georgi 2002). Other studies expand human capital to include factors such as familiarity with the goals and culture of the organisation, ‘cultural fit’ (Cook et al 2012; Rivera 2012) and self-presentational polish (Sommerlad 2012). In the context of law practice, employers award high salaries to those with top grades from elite law schools (especially in the US and UK) who demonstrate high productivity through billing many hours and successfully recruiting clients (Lin and Huang 2005). Gender differences across these human capital factors contribute to a gap in earnings. Becker’s theory (1991) suggests why women may exhibit lower levels of the abilities and skills valued by employers. He assumes that women prioritise family responsibilities over professional work, investing less time in legal work (Payne-Pikus et al 2010). Because of the divided spheres, women have a deficit of human capital, reinforcing the stereotypes of male partners, who base decisions about hiring, work assignments, and promotions on exaggerated assumptions that women associates elevate family responsibilities over professional careers. In contrast, research on social capital emphasises the influence of social networks and the resources they allocate. Social networks within the legal profession serve as conduits for information, resources and support that enable young lawyers to advance their careers (Dinovitzer 2006; Hezlett and Gibson 2007). Having extensive networks in businesses and other legal services consumers may provide lawyers with rich repositories of potential clients (Kay and Hagan 2003). In a study of large New York law firms, Epstein and colleagues (1995) speculated that women may be at a disadvantage in generating business for their law firms because they have fewer contacts that would enable them to play the role of ‘rainmaker’, less time to devote to client development, and lower access to informal business networks. Research suggests that female and male lawyers differ in their abilities to benefit from mentoring, especially if this is organised along gender lines (Kay and Wallace 2009; 2010). Women lawyers are disadvantaged by networking and socialising patterns based on male friendships and social occasions (eg golf, private clubs, sports bars), which may exclude them from informal mentoring opportunities (Kay and Gorman 2008; Leiper 2006). In an effort to address professional development shortcomings, some law firms have introduced formal mentoring programs; however, these programs are a poor substitute for more effective informal mentoring relationships (Dau-Schmidt et al 2009; Epstein et al 1995). Studies show that female lawyers with male mentors (who enjoy more power and influence than female mentors)

Understanding Gender Inequality in the Legal Profession  139 gain higher compensation and are more satisfied with their career progress and more likely to become partners or senior executives (Ramaswami et al 2010). The number and quality of mentors relate positively to work satisfaction, partner status, and intention to stay in the organisation (Kay and Wallace 2010). To the extent that women receive superficial short-term mentoring or even none, they are less well equipped to succeed (Gorman and Kay 2016; Kay et al 2009). These network shortfalls and exclusions pervade law practice. For instance, informal social networks within law firms determine the distribution of challenging assignments among law firm associates. Women lawyers are disproportionately likely to get lost in the shuffle, left out of the relationships that provide information, guidance, and opportunities to gain experience (Chambliss and Uggen 2000; Payne-Pikus et al 2010). The challenge is even greater for minority women. The intersection of cultural stereotypes about gender and race make it particularly difficult for minority women to enter the developmental relationships vital to success in law firms. For example, the Chicana lawyers interviewed by García-López (2008) reported that their contributions were under-valued by firms and they were assigned responsibilities beneath their capabilities, with negative consequences for advancement. In addition, a growing number of studies draw on Pierre Bourdieu’s (1977; 1986; 1990) theory of cultural capital to analyse gender inequalities by identifying critical resources that operate as axes of distinction among lawyers, thereby shaping career opportunities. Lawyers’ career outcomes are heavily influenced by their ‘habitus’: knowing and playing by the rules of the field and learning to look, sound, and act like a lawyer. Acquiring these critical resources enhances lawyers’ positions in the profession and their influence over the positioning of other lawyers. Some lawyers are disadvantaged by entering the profession from social positions marked by their gender, class, and ethnicity (Choroszewicz 2014a; Kay 2009b). Studies have examined gender as a source of embodied capital that differentiates career outcomes (Choroszewicz 2014a; Haynes 2012; Kay 2009a; Kay and Hagan 1998). Researchers demonstrate how widely-held cultural expectations of what it means to be a successful lawyer remain largely masculine. This masculinity is performed by lawyers through dress, speech, manner (Haynes 2012), values and career decisions (Bolton and Muzio 2007; Choroszewicz 2014a; Pierce 2010; Sommerlad 2008). D.  An Organisational Approach: Relational Inequality Theory An organisational perspective examines the ways in which gender is embedded in the structures of work organisations (Smith-Doerr et al 2019) and the profession itself (Heinz et al 2005). Research examining the importance of organisational context shifts attention away from individual properties rooted in the labour market to social relationships within organisational environments. One promising direction is relational inequality theory (Avent-Holt and Tomaskovic-Devey 2010; 2014), which contends that organisations, such as law firms, provide the social space in which professionals construct and enact hierarchies around categorical distinctions demarcating productivity and competence (Tatli and Özbilgin 2011). Status characteristics like gender and ethnic background are mapped onto authority categories with the result that certain jobs are largely held by one gender and/or ethnic group. Such mapping generates in-group/out-group divisions, enabling those in traditional in-groups to exploit and hoard opportunities from historical outsiders (Avent-Holt and Tomaskovic-Devey 2014; Tilly 1998). Recent studies in the UK (Bolton and Muzio 2007; Sommerlad 2007), Brazil (Bonelli 2013), Canada (Kay 2019) and US (Dinovitzer and Hagan 2014) provide evidence of this opportunity

140  Marta Choroszewicz and Fiona Kay hoarding within law organisations. Drawing on a national survey of US lawyers, Dinovitzer and Hagan (2014) find that demarcations between male and female legal work result in men hoarding jobs and financial resources. These patterns of gender closure extend beyond the organisation to the larger legal marketplace, where women are denied access to high occupational levels (stratification) or relegated to ‘pink’ ghettos of work associated with lesser prestige or earnings (segmentation). In addition, women may themselves create gender enclaves to gain greater control over work conditions, as in small all-women firms specialising in family law (sedimentation) (Bolton and Muzio 2007). E.  Agency: Women’s Career Choices and Impact on Law An early framework examines women lawyers’ agency in their own career decisions. Women make career choices that lead them to particular sectors of law practice and legal fields (Kilian and Schultz Vol 1, ch 10; Sommerlad and Sanderson 1998). Research suggests that these choices, while perceived by those who make them as the product of free will, are often constrained by social circumstances and shaped by gendered expectations about the practice settings for which women are suited (Bolton and Muzio 2007; Choroszewicz 2014a; 2014b; Rhode 2011). Furthermore, women lawyers may feel constrained to behave differently from men. For example, research suggests many women lawyers feel social pressure to display care and concern for their clients. Pierce (2010: 181) argues that in specialties dealing with weak and disadvantaged clients, women are expected to perform emotional labour, which is not necessarily expected from men. Researchers have also noted that women have been held to a higher moral standard in lawyering and serving the legal community (Epstein 1993; Menkel-Meadow 2005) and women are meeting this standard. Studies reveal that female attorneys receive fewer complaints in the Netherlands (de Groot-van Leeuwen 2003). In the US, female attorneys are disciplined at a much lower rate, and when disciplined they incur less severe sanctions than male attorneys (Haller and Green 2007; Hatamyar and Simmons 2004). Moreover, women feel more pressure to provide pro bono services, which require financial and professional sacrifice (Choroszewicz 2015; Dinovitzer and Garth 2009; Epstein 1993; Granfield 2007). Connell’s (1987) multi-level analytical frame illuminates how gender relations in the legal profession and society more generally influence women lawyers’ career-related decisions. Although in most countries, women are under strong social pressure to prioritise childcare and family responsibilities or to juggle career and family life, the support they receive from workplaces, spouses and welfare institutions varies significantly. For instance, in Switzerland a modified male-breadwinner gender regime creates normative expectations that child-rearing is the responsibility of women, pressuring them to leave law firms or work part-time in an effort to decrease work-family conflict (Boni-Le Goff et al Vol 1, ch 13). In contrast, a study of Finnish and Polish women attorneys (Choroszewicz 2014a) shows that recognition of work-life reconciliation policies and availability of flexible work arrangements and parental leave for both parents have led to more fluid gender roles in family life in Finland, enabling women lawyers to pursue their career aspirations and enjoy better work-life balance. This study also found that, compared to women lawyers in Poland, those in Finland experience less pressure to conform to masculine ideals of an uninterrupted career, face-time at the office and long working hours, especially in medium and large law firms. Therefore, government and organisational policies regarding generous parental leave and work-life reconciliation may assist women lawyers in combining career and family life. However, when these policies are aimed only at women, they may push women to organise their choices and behaviours according to traditional gender scripts.

Understanding Gender Inequality in the Legal Profession  141 Another approach asks how women as agents of change have shaped the law. For example, Michelson (2013: 1103) argues that the global feminisation of the profession has improved women’s access to legal services, especially in family law. Women lawyers have also been highly influential as ‘cause lawyers’, for example, in advocacy for international human rights (Hagan 2003), political liberalism (Pérez-Perdomo 2007), and sexual assault and abortion (Manfredi 2004). In Zimbabwe, the increasing numbers of women lawyers since the 1980s contributed to the formation of lawyer-led civil society organisations focusing on human rights and feminist legal scholarship (Karekwaivanane Vol 1, ch 27). Some researchers also suggest that women’s entry to the profession has encouraged greater use of less adversarial modes of dispute resolution, such as mediation (Sommerlad 2003). Women lawyers have also worked vigorously to change the profession itself through committee work and leadership in bar associations and law societies, where they have developed codes of conduct (including sexual harassment), model part-time work policies, and improved parental leave policies (Rhode 2011; Webley and Duff 2007). V. CONCLUSION

This chapter has examined the persistence of gender inequality in the legal profession ­internationally. A rich body of literature documents a remarkable increase in women’s representation in legal education and law practice across countries. However, challenges remain (Brenner 2014: 268), especially in terms of women’s limited access to the most prestigious and financially rewarding positions within the profession. Women’s stalled progress is linked to the mutually reinforcing inequality regimes in law firms, sectors of legal work, and the legal profession. The efficacy of recent organisational initiatives aimed at reducing gender inequalities is constrained by the failure to address men’s caregiving responsibilities. Furthermore, neoliberal imperatives of personal responsibility continue to place the burden on women to conform to traditional models of what it means to be a dedicated and productive lawyer (Thornton 2016b). Persistent gender gaps in the leadership of law firms and bar associations have hindered efforts to generate policies and practices directed to making work environments inclusive. Greater diversity in the leadership of firms and bar associations is critical to innovation in the legal profession. These organisations can play a more prominent role in advancing career opportunities for different groups of women, particularly racial minorities. Model parental leave policies (including, for example, bar association funding of parental leave for sole practitioners and small firm lawyers), promotion of alternative career models among law students and new graduates, and wider availability of innovative work arrangements (eg flexible hours, telework, and job sharing) need to be made available to all lawyers regardless of gender (Biese and Choroszewicz 2018; Choroszewicz and Tremblay 2018; Kay et al 2016). Law firms should provide employees with additional opportunities for training and professional growth. There is evidence that both men and women in the recent generation of professionals (millennials) seek jobs with potential for growth and advancement and are willing to change jobs in pursuit of better opportunities and improved workplace benefits (Rigoni 2016). At the same time, the new generation must navigate a more precarious labour market (Milkman 2017). When law firms fail to provide mentoring and developmental experience, young lawyers must individually acquire skills and develop attributes required by the profession (Francis 2015). This downloading of responsibility puts women and those from less privileged socio-economic backgrounds at a particular disadvantage (Francis and Sommerlad 2009; Kay 2019).

142  Marta Choroszewicz and Fiona Kay Initiatives will need to extend beyond the current business case for gender equality. Some scholars see legal education as a critical environment for promoting gender equality (Brenner 2014). Others suggest that professional associations can improve career development policies in law firms by advocating for and monitoring promotion and succession planning, promotion reviews, and performance management (Pinnington and Sandberg 2013). Many agree on the need for greater collaboration between researchers, lawyers and professional associations to collect and share data on gender and diversity more broadly (Hollins 2015) and for the professional bodies (eg bar associations and law societies) and organisations that employ lawyers to set targets for the advancement of women in the legal profession. REFERENCES Abel, RL (1989) ‘Comparative Sociology of Legal Professions’ in R Abel and PSC Lewis (eds), Lawyers in Society: Comparative Theories (Berkeley, CA, University of California Press). Abel, RL and Lewis, PSC (1988a) Lawyers in Society: Vol I The Common Law World (Berkeley, University of California Press). —— (1988b) Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press). —— (1989) Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Acker, J (1990) ‘Hierarchies, Jobs, Bodies: A Theory of Gendered Organization’ 4 Gender and Society 139–58. —— (2006) ‘Inequality Regimes: Gender, Class, and Race in Organizations’ 20 Gender and Society 441–464. —— (2012) ‘Gendered Organizations and Intersectionality: Problems and Possibilities’ 31 Equality, Diversity and Inclusion: An International Journal 214–24. Ackroyd, S and Muzio, D (2007) ‘Reconstructed Professional Firm: Explaining Change in English Legal Practices’ 28 Organization Studies 729–47. Antecol, H, Cobb-Clark, D and Helland E (2014) ‘Bias in the Legal Profession: Self-Assessed versus Statistical Measures of Discrimination’ 43 Journal of Legal Studies 323–57. Avent-Holt, D and Tomaskovic-Devey, D (2010) ‘The Relational Basis of Inequality: Generic and Contingent Wage Distribution Processes’ 37(2) Work and Occupations 162–93. —— (2014) ‘A Relational Theory of Earnings Inequality’ 58(3) American Behavioral Scientist 379–99. Bacik, I and Drew, E (2006) ‘Struggling with Juggling: Gender and Work/Life Balance in the Legal Professions’ 29 Women’s Studies International Forum 136–46. Bagust, J (2012) ‘Keeping Gender on the Agenda’ 21 Griffith Law Review 137–63. Ballakrishnen, S (2016) ‘India (International) Inc.: Global Work and the Re-Organization of Professionalism in Emerging Economies’ in M Dent, I Bourgeault, JL Denis and E Kuhlmann (eds), The Routledge Companion in the Professions and Professionalism (London, Routledge). Barreau du Québec (2015) Barreau-mètre 2015 : La Profession en Chiffres. www.barreau.qc.ca/media/1163/ barreau-metre-2015.pdf. Becker, GS (1991) A Treatise on Family (Cambridge, Mass, Harvard University Press). —— (1993) Human Capital, 3rd edn (Chicago, University of Chicago Press). Beckman, C and Phillips, D (2005) ‘Interorganizational Determinants of Promotion: Client Leadership and the Attainment of Women Attorneys’ 70 American Sociological Review 678–701. Bergoglio MI (2003) ‘Argentina: The Effects of Democratic Institutionalization’ in L Friedman and R Pérez-Perdomo (eds), Legal Culture in the Age of Globalization: Latin America and Latin Europe (Stanford, CA, Stanford University Press). Biese, I and Choroszewicz, M (2018) ‘Creating Alternative Solutions for Work: Experiences of Women Managers and Lawyers in Poland and the USA’ in S Taylor and S Luckman (eds), The ‘New Normal’ of Working Lives: Critical Studies in Contemporary Work and Employment (London, Palgrave Macmillan).

Understanding Gender Inequality in the Legal Profession  143 Bolton, S and Muzio, D (2007) ‘Can’t Live with ‘Em; Can’t Live without ‘Em: Gendered Segmentation in the Legal Profession’ 41 Sociology 47–61. Bonelli, MDG (2013) ‘Gender and Difference among Brazilian Lawyers and Judges: Public and Private Practice in the Global Periphery’ 20 Indiana Journal of Global Legal Studies 1291–1309. Bourdieu, P (1977) Outline of a Theory of Practice (Cambridge, Cambridge University Press). —— (1986) ‘The Forms of Capital’ in JG Richardson (ed), Handbook of Theory and Research for the Sociology of Education (New York, Greenwood Press). —— (1990) The Logic of Practice (Stanford, Stanford University Press). Brenner, H (2014) ‘Expanding the Pathways to Gender Equality in the Legal Profession’ 17 Legal Ethics 261–80. Brockman, J (2001) Gender in the Legal Profession: Fitting or Breaking the Mould (Vancouver, University of British Columbia Press). —— (2006) ‘An Update on Gender and Diversity in the Legal Profession in Alberta, 1991–2003’ in E Sheehy and S McIntyre (eds), Calling for Change: Women, Law, and the Legal Profession (Ottawa, University of Ottawa Press). Chambliss, E and Uggen, C (2000) ‘Men and Women of Elite Law Firms: Reevaluating Kanter’s Legacy’ 25 Law and Social Inquiry 41–68. Chambre des notaires du Québec (2017) ‘Devenir Notaire’ www.cnq.org/fr/devenir-notaire.html. Chen, V (2015) ‘Women in Big Law are Losing Ground’ American Lawyer 27 October www. americanlawyer.com/id=1202740896546/Women-in-Big-Law-Are-Losing-Ground. Choroszewicz, M (2014a) Managing Competitiveness in Pursuit of a Legal Career. Women Attorneys in Finland and Poland (Publications of the University of Eastern Finland. Dissertations in Social Sciences and Business Studies 74). —— (2014b) ‘Exposing the Myth of Equal Career Opportunities: Women Attorneys in Finland and Poland’ in M Virkajärvi (ed), Työelämän Tutkimuspäivät 2013. Työn Tulevaisuus. Työelämän Tutkimuspäivien Konferenssijulkaisuja 5 (Tampere, University of Tampere). —— (2015) ‘“It is also about Helping People”: Women Attorneys’ Commitment to Public Service and Incentives for Pro Bono Work in Finland and Poland.’ Shaping and Re-Shaping the Boundaries of Working Life Labournet Conference, Tampere, Finland, October 2015. —— (2016) ‘Women Attorneys and Gendering Processes in Law Firms in Helsinki’ 53 Sosiologia 122–37. —— (2018) ‘Women’s Sense-making of Opportunity Structures in the Profession of Attorney in Poland’ 62 Kultura i Społeczeństwo 113–32. —— (2019) ‘Fathers in Private Law Practice in Finland: Reconciling Work and Family Life for Male Lawyers from Different Generations’ in M Choroszewicz and TL Adams (eds), Gender, Age and Inequality in the Professions (New York, Routledge). Choroszewicz, M and Kay, F (2020) ‘The Use of Mobile Technologies for Work-to-Family Boundary Permeability: The Case of Finnish and Canadian Male Lawyers’ 73 Human Relations 1388–1414. Choroszewicz, M and Tremblay, D-G (2018) ‘Parental-Leave Policy for Male Lawyers in Helsinki and Montreal: Cultural and Professional Barriers to Male Lawyers’ Use of Paternity and Parental Leaves’ 25 International Journal of the Legal Profession 303–16. Coe, A (2016) ‘Women Gain Traction in Japanese Legal Landscape’ Law360 media2.mofo.com/docume nts/160822-women-gain-traction-japanese.pdf. Collier, R (2013) ‘Rethinking Men and Masculinities in the Contemporary Legal Profession: The Example of Fatherhood, Transnational Business Masculinities, and Work-Life Balance in Large Law Firms’ 13 Nevada Law Journal 410–37. —— (2014) ‘“Love Law, Love Life”: Neoliberalism, Wellbeing and Gender in the Legal Profession – the Case of Law School’ 17 Legal Ethics 203–30. Connell, RW (1987) Gender and Power: Society, the Person and Sexual Politics (Cambridge, Polity Press). Cook, ACG, Faulconbridge, JR and Muzio, D (2012) ‘London’s Legal Elite: Recruitment through Cultural Capital and the Reproduction of Social Exclusivity in City Professional Service Fields’ 44 Environment and Planning 744–62.

144  Marta Choroszewicz and Fiona Kay Crenshaw, K (1989) ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ 140 University of Chicago Legal Forum 138–67. Curran, BA (1995) Women in the Law: A Look at the Numbers (Chicago, American Bar Association. Commission on Women in the Profession). Dau-Schmidt, KG, Galanter, MS, Mukhopadhaya, K and Hull, KE (2009) ‘Men and Women of the Bar: The Impact of Gender on Legal Careers’ 16 Michigan Journal of Gender and Law 49–145. Dawuni, JJ (2017) ‘Lawyers in Ghana’ Paper presented at the International Meeting on Law and Society, Mexico City, June 2017. Dawuni, JJ and Kang, A (2015) ‘Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa’ 62 Africa Today 45–69. de Groot-van Leeuwen, LE (2003) ‘Women in the Dutch Legal Profession (1950–2000)’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing). Dilloff, NJ (2011) ‘The Changing Cultures and Economics of Large Law Firm Practice and Their Impact on Legal Education’ 70 Maryland Law Review 341–63. Dinovitzer, R (2006) ‘Social Capital and Constraints on Legal Careers’ 40 Law and Society Review 445–80. —— (2015) Law and Beyond: A National Study of Canadian Law Graduates individual.utoronto.ca/ dinovitzer/images/LABReport.pdf. Dinovitzer, R and Garth, BG (2009) ‘Pro Bono as an Elite Strategy in Early Lawyers Careers’ in R Granfield and L Mather (eds), Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession (Oxford, Oxford University Press). Dinovitzer, R and Hagan, J (2014) ‘Hierarchical Structure and Gender Dissimilarity in American Legal Labor Markets’ 92 Social Forces 929–55. Dinovitzer, R, Reichman, N and Sterling, J (2009) ‘The Differential Valuation of Women’s Work: A New Look at the Gender Gap in Lawyer’s Incomes’ 88 Social Forces 819–64. Epner, J (2006) Visible Invisibility: Women of Color in Law Firms. Executive Summary (Chicago, American Bar Association, Commission on Women in the Profession). Epstein, CF ([1981] 1993) Women in Law, 2nd edn (Urbana, IL, University of Illinois Press). —— (2007) ‘Great Divides: The Cultural, Cognitive, and Social Bases of the Global Subordination of Women’ 72 American Sociological Review 1–22. Epstein, CF and Kolker, A (2013) ‘The Impact of the Economic Downturn on Women Lawyers in the United States’ 20 Indiana Journal of Global Legal Studies 1169–1202. Epstein, CF, Sauté, R, Oglensky, B and Gever, M (1995) ‘Glass Ceilings and Open Doors: Women’s Advancement in the Legal Profession’ 64 Fordham Law Review 291–449. Epstein, CF, Seron, C, Oglensky, B and Sauté, R (1999) The Part-time Paradox: Time Norms, Professional Life, Family and Gender (New York, Routledge). Francis, A (2015) ‘Legal Education, Social Mobility, and Employability: Possible Selves, Curriculum Intervention, and the Role of Legal Work Experience’ 42 Journal of Law and Society 173–201. Francis, A and Sommerlad, H (2009) ‘Access to Legal Work Experience and its Role in the (Re)Production of Legal Professional Identity’ 16 International Journal of the Legal Profession 63–86. Fuszara, M (2003) ‘Women Lawyers in Poland under the Impact of Post-1989 Transformation’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing). Galanter, M and Henderson, W (2008) ‘The Elastic Tournament: A Second Transformation of the Big Law Firm’ 60 Stanford Law Review 1867–1930. Galanter, M and Palay, T (1991) Tournament of Lawyers: The Transformation of the Big Law Firms (Chicago, University of Chicago Press). Galligan, Y, Haupfleisch, R, Irvine, L, Korolkova, K, Natter, M, Schultz, U and Wheeler, S (2017) Mapping the Representation of Women and Men in Legal Professions across the EU (A Study for the Committee on Legal Affairs. Directorate General for Internal Policies) www.europarl.europa.eu/RegData/etudes/ STUD/2017/596804/IPOL_STU(2017)596804_EN.pdf. García-López, G (2008) ‘“Nunca te toman en cuenta [They never take you into account]”: The Challenges of Inclusion and Strategies for Success of Chicana Attorneys’ 22 Gender and Society 590–612.

Understanding Gender Inequality in the Legal Profession  145 Gorman, EH (2005) ‘Gender Stereotypes, Same-Gender Preferences, and Organizational Variation in the Hiring of Women: Evidence from Law Firms’ 70 American Sociological Review 702–28. Gorman, EH and Kay, FM (2016) ‘Clientele and the Progress of Women and Racial Minorities in US Corporate Law Firms’ Society for the Advancement of Socio-Economics annual meetings, Berkeley, California, June 2016. Gorman, EH and Kmec, JA (2009) ‘Hierarchical Rank and Women’s Organizational Mobility: Glass Ceilings in Corporate Law Firms’ 114 American Journal of Sociology 1428–74. Granfield, R (2007) ‘The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers’ 41 Law and Society Review 113–46. Hagan, J (2003) Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago, IL, University of Chicago Press). Hagan, J and Kay, FM (1995) Gender in Practice: A Study of Lawyer’s Lives (New York, Oxford University Press). —— (2010) ‘The Masculine Mystique: Living Large from Law School to Later Life’ 25 Canadian Journal of Law and Society 195–226. Haller, L and Green, HJ (2007) ‘Solicitors’ Swan Song? A Statistical update on Lawyer Discipline in Queensland’ 19 Bond Law Review 140–67. Hatamyar, PW and Simmons, KM (2004) ‘Are Women More Ethical Lawyers? An Empirical Study’ 31 Florida State University Law Review 785–857. Haynes, K (2012) ‘Body Beautiful? Gender, Identity and the Body in Professional Service Firms’ 19 Gender, Work and Organization 489–507. Hearn, J, Biese, I, Choroszewicz, M and Husu, L (2016) ‘Gender, Diversity and Intersectionality in Professions and Potential Professions: Analytical, Historical and Contemporary Perspectives’ in M Dent, I Bourgeault, JL Denis and E Kuhlmann (eds), The Routledge Companion in the Professions and Professionalism (London, Routledge). Heinz, JP, Nelson, RL, Sandefur, RL and Laumann, EO (2005) Urban Lawyers: The New Social Structure of the Bar (Chicago, University of Chicago Press). Henderson, WD (2011) ‘Three Generations of US Lawyers: Generalists, Specialists, Project Managers’ 70 Maryland Law Review 373–89. Hezlett, SA and Gibson, SK (2007) ‘Linking Mentoring and Social Capital: Implications for Career and Organization Development’ 9 Advances in Developing Human Resources 384–412. Hollins, M (2015) ‘Numbers Matter: Gender Parity in the Legal Profession’ 78 Saskatchewan Law Review 241–55. Hull, KE and Nelson, R (2000) ‘Assimilation, Choice, or Constraint? Testing Theories of Gender Differences in the Careers of Lawyers’ 79 Social Forces 229–64. Japan Federation of Bar Associations (Japan FBA) (2015) White Paper on Attorneys 2015 www.nichibenren.or.jp/en/about/whitepaper/whitepaper2015.html. Junqueira, E (2003) ‘Brazil: The Road of Conflict Bound for Total Justice’ in L Friedman and R Pérez-Perdomo (eds), Legal Cultures in the Age of Globalization: Latin America and Latin Europe (Stanford, Stanford University Press). Kay, FM (1997) ‘Flight from Law: A Competing Risks Model of Departures from Law Firms’ 31 Law and Society Review 301–35. —— (2002) ‘Crossroads to Innovation and Diversity: The Careers of Women Lawyers in Quebec’ 47 McGill Law Journal 699–742. —— (2009a) ‘Intra-professional Competition and Earnings Inequalities across a Professional Chasm: The Case of the Quebec Legal Profession’ 43 Law and Society Review 901–38. —— (2009b) ‘Professional Monopolies and Divisive Practices in Law: “Les Femmes Juridiques” in Civil Law Canada’ 4 The International Journal of Law in Context 187–215. —— (2019) ‘Social Capital, Relational Theory and Earnings of Racial Minority Lawyers’ 32 Research in the Sociology of Work 63–90. —— (2019) ‘Launching Careers in Law: Entry to First Jobs after Law School’ in M Choroszewicz and TL Adams (eds), Gender, Age and Inequality in the Professions. (New York, Routledge Press).

146  Marta Choroszewicz and Fiona Kay Kay, FM, Alarie, S and Adjei, J (2013) ‘Leaving Private Practice: How Organizational Context, Time Pressures, and Structural Inflexibilities Shape Departures from Private Law Practice’ 20 Indiana Journal of Global Legal Studies 1223–60. —— (2016) ‘Undermining Gender Equality: Female Attrition from Private Law Practice’ 50 Law & Society Review 766–801. Kay, FM and Gorman, EH (2008) ‘Women in the Legal Profession’ 4 Annual Review of Law and Social Science 299–332. —— (2012) ‘Developmental Practices, Organizational Culture, and Minority Representation in Organizational Leadership: The Case of Partners in Large US Law Firms’ 639 Annals of the American Academy of Political and Social Science 91–113. Kay, FM and Hagan, J (1995) ‘The Persistent Glass Ceiling: Gendered Inequalities in the Earnings of Lawyers’ 46 British Journal of Sociology 279–310. —— (1998) ‘Raising the Bar: The Gender Stratification of Law Firm Capitalization’ 53 American Sociological Review 728–743. —— (2003) ‘Building Trust: Social Capital, Distributive Justice and Loyalty to the Firm’ 28 Law and Social Inquiry 483–519. Kay, FM, Hagan, J and Parker, P (2009) ‘Principals in Practice: The Importance of Mentorship in the Early Stages of Career Development’ 31 Law & Policy 69–110. Kay, FM, Masuch, C and Curry, P (2006) ‘Growing Diversity and Emergent Change: Gender and Ethnicity in the Legal Profession’ in E Sheehy and S McIntyre (eds), Calling for Change: Women, Law and the Legal Profession (Ottawa, University of Ottawa Press). Kay, FM and Wallace, JE (2009) ‘Mentors as Social Capital: Gender, Mentors, and Career Rewards in Law Practice’ 79 Sociological Inquiry 418–52. —— (2010) ‘Is More Truly Merrier? Mentors and the Practice of Law’ 47 Canadian Review of Sociology 1–26. Kitzerow, P (2014) Women Attorneys and the Changing Workplace: High Hopes, Mixed Outcomes (Boulder, First Forum Press). Kricheli-Katz, T, Rosen-Zvi, I and Ziv, N (2018) ‘Hierarchy and Stratification in the Israeli Legal Profession’ 52 Law & Society Review 436–70. Leiper, JM (2006) Bar Codes: Women in the Legal Profession (Vancouver, University of British Columbia Press). Levinson, JD and Young, D (2010) ‘Implicit Gender Bias in the Legal Profession: An Empirical Study’ 18 Duke Journal of Gender Law and Policy 1–44. Lin, S and Huang, Y (2005) ‘The Role of Social Capital in the Relationship between Human Capital and Career Mobility: Moderator or Mediator?’ 6 Journal of Intellectual Capital 191–205. López-Ayllón, S and Fix-Fierro, H (2003) ‘“Far Away, So Close!”: The Rule of Law and Legal Change in Mexico (1970–1999)’ in L Friedman and R Pérez-Perdomo (eds), Legal Cultures in the Age of Globalization: Latin America and Latin Europe (Stanford, Stanford University Press). Makhija, S and Raha, S (2012) ‘Challenges Faced by Indian Women Legal Professionals: A Report Based on the Study Conducted in Delhi, Mumbai, and Bangalore among Working Mothers in the Legal Profession’ Rainmaker. www.scribd.com/document/102128508/Challenges-Faced-by-Indian-WomenLegal-Professionals-Full-Report. Manfredi, CP (2004) Feminist Activism in the Supreme Court: Women’s Mobilization and the Women’s Legal Education and Action Fund (Vancouver, UBC Press). Mastro, S (2001) ‘Courtroom Bias: Gender Discrimination against Pregnant Litigators’ 8 William and Mary Journal of Women and the Law 155–73. McGill, J and Salyzyn, A (2014) ‘Queer Insights on Women in the Legal Profession’ 17 Legal Ethics 231–60. McLaughlin, C and Deakin, S (2011) Equality Law and the Limits of the ‘Business Case’ for Addressing Gender Inequalities (Centre for Business Research, University of Cambridge) https://ideas.repec.org/p/ cbr/cbrwps/wp420.html. McManus, E (2005) ‘Intimidation and the Culture of Avoidance: Gender Issues and Mentoring in Law Firm Practice’ 33 Fordham Urban Law Journal 217–31.

Understanding Gender Inequality in the Legal Profession  147 Menkel-Meadow, C (2005) ‘Portia Redux: Another Look at Gender, Feminism, and Legal Ethics’ in SD Carle (ed), Lawyer’s Ethics and the Pursuit of Social Justice, A Critical Reader (New York, New York University Press). Meyerson, D and Fletcher, JK (2000) ‘A Modest Manifesto for Shattering the Glass Ceiling’ 78 Harvard Business Review 126–37. Michelson, E (2013) ‘Women in the Legal Profession, 1970–2010: A Study of the Global Supply of Lawyers’ 20 Indiana Journal of Global Legal Studies 1071–1137. Milkman, R (2017) ‘A New Political Generation: Millennials and the Post-2008 Wave of Protest’ 82 American Sociological Review 1–31. Mrowczynski, R (2016) ‘Institutional Professionalization of Lawyers in State-socialism and Post-socialism: Poland and Russia Compared’ 23 International Journal of the Legal Profession 157–84. National Association for Law Placement (NALP) (2015) Women, Black/African-American Associates Lose Ground at Major US Law Firms (Washington, DC, National Association for Law Placement). Neil, M (2013) ‘Top In-House Lawyers Get Paid a Lot Less when Female, Survey Says.’ ABA Journal 10 September 2013 www.abajournal.com/news/article/top_in-house_lawyers_get_paid_a_lot_ less_when_female_survey_says/?utm_medium=email&utm_campaign=weekly_email&utm_ source=maestro&sc_cid=130911AE. Noonan, MC and Corcoran, ME (2004) ‘The Mommy Track and Partnership: Temporary Delay or Dead End?’ 596 Annals of the American Academy of Political and Social Science 130–50. Noonan, MC, Corcoran, ME, and Courant, PN (2005) ‘Pay Differences and the Highly Trained: Cohort Differences in the Sex Gap in Lawyers’ Earnings’ 84 Social Forces 853–72. Patton, PA (2005) ‘Women Lawyers, their Status, Influence, and Retention in the Legal Profession’ 11 William and Mary Journal of Women and the Law 173–94. Payne-Pikus, MR, Hagan, J and Nelson, RL (2010) ‘Experiencing Discrimination: Race and Retention in America’s Largest Law Firms’ 44 Law & Society Review 553–84. Pérez-Perdomo, R (2007) ‘Lawyers and Political Liberalism in Venezuela’ in TC Halliday, L Karpik and MM Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). Piazza-Georgi, B (2002) ‘The Role of Human and Social Capital in Growth: Extending our Understanding’ 26 Cambridge Journal of Economics 461–79. Pierce, JL (2010) ‘Women and Men as Litigators: Gender Differences on the Job’ in J Goodman (ed), Global Perspectives on Gender and Work: Readings and Interpretations (Plymouth, Rowman & Littlefield Publishers). Pinnington, AH and Sandberg, J (2013) ‘Lawyers’ Professional Careers: Increasing Women’s Inclusion in the Partnership of Law Firms’ 20 Gender, Work and Organization 616–31. Plickert, G, Dinovitzer, R, Garth, B, Nelson, RL and Sandefur, RL (2014) After the JD III: Third Results from a National Study of Legal Careers (Chicago/Washington, DC, American Bar Foundation/ National Association for Law Placement). Ramaswami, A, Dreher, GF, Bretz, R and Wiethoff, C (2010) ‘The Interactive Effects of Gender and Mentoring on Career Attainment: Making the Case for Female Lawyers’ 37 Journal of Career Development 692–716. Reichman, N and Sterling, J (2013) ‘Parenthood Status and Compensation in Law Practice’ 20 Indiana Journal of Global Legal Studies 1203–22. Rhode, DL (2011) ‘From Platitudes to Priorities: Diversity and Gender Equity in Law Firms’ 24 Georgetown Journal of Legal Ethics 1041–77. —— (2014) ‘Diversity and Gender Equity in Legal Practice’ 82 University Cincinnati Law Review 871–88. Rhode, DL and Ricca, LB (2015) ‘Diversity in the Legal Profession: Perspectives from Managing Partners and General Counsel’ 83 Fordham Law Review 2483–2507. Ridgeway, CL and Kricheli-Katz, T (2013) ‘Intersecting Cultural Beliefs in Social Relations: Gender, Race, and Class Binds and Freedoms’ 27 Gender and Society 294–318. Rigoni, B (2016) ‘What Millennials Want from a New Job’ Harvard Business Review, 11 May hbr.org/2016/05/what-millennials-want-from-a-new-job.

148  Marta Choroszewicz and Fiona Kay Rikleen, LS (2015) ‘Women Lawyers Continue to Lag behind Male Colleagues: Report of the Ninth Annual NAWL Survey on Retention and Promotion of Women in Law Firms’ 100 Women Lawyers Journal 25–40. Rivera, LA (2012) ‘Diversity within Reach: Recruitment versus Hiring in Elite Firms’ 639 Annals of the American Association of Political and Social Science 71–90. Robson, K and Wallace, JE (2001) ‘Gendered Inequalities in Earnings: A Study of Canadian Lawyers’ 38 Canadian Review of Sociology and Anthropology 75–95. Sandefur, RL (2007) ‘Staying Power: The Persistence of Social Inequality in Shaping Lawyer Stratification and Lawyers’ Persistence in the Profession’ 36 Southwestern University Law Review 539–56. Sandgrund, R (2016) ‘Can We Talk? Bias, Diversity, and Inclusiveness in the Colorado Legal Community’ 45 Colorado Lawyer 49–59. Schulz, U (2003) ‘Introduction: Women in the World’s Legal Professions: Overview and Synthesis’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing). Silius, H (2003) ‘Women Jurists in Finland at the Turn of the Century: Breakthrough or Intermezzo? in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing). Smith-Doerr, L, Fitzpatrick, Dm Alegria, S, Tomaskcovic-Devey, D and Husbands Fealing, K (2019) ‘Gender Pay Gaps in US Federal Science Agencies: An Organizational Approach’ 125 American Journal of Sociology 534–576. Sommerlad, H (2007) ‘Researching and Theorising the Processes of Professional Identity Formation’ 34 Journal of Law and Society 190–217. —— (2008) ‘That Obscure Object of Desire: Sex Equality and the Legal Profession’ in R Hunter (ed), Rethinking Equality (Oxford, Hart Publishing). —— (2012) ‘Minorities, Merit, and Misrecognition in the Globalized Profession’ 80 Fordham Law Review 2481–512. —— (2016) ‘“A Pit to Put Women in”: Professionalism, Work Intensification, Sexualisation and Work-Life Balance in the Legal Profession in England and Wales’ 23 International Journal of the Legal Profession 61–82. Sommerlad, H and Sanderson, P (1998) Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (Aldershot, Ashgate Dartmouth). Stake, JE, Dau-Schmidt, KG and Mukhopadhaya, K (2007) ‘Income and Career Satisfaction in the Legal Profession: Survey Data from Indiana Law School Graduates’ 4 Journal of Empirical Legal Studies 939–81. Sterling, JS and Reichman, N (2016) ‘Overlooked and Undervalued: Women in Private Law Practice’ 12 Annual Review of Law and Social Science 373–93. Tatli, A and Özbilgin, MF (2011) ‘An Emic Approach to Intersectional Study of Diversity at Work: A Bourdieuan Framing’ 14 International Journal of Management Reviews 180–200. Thornton, M (2014) ‘Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalization of Australian Law Firms’ 17 Legal Ethics 153–76. —— (2016a) ‘The Flexible Cyborg: Work-Life Balance in Legal Practice’ 38 Sydney Law Review 1–21. —— (2016b) ‘Work/Life or Work/Work? Corporate Legal Practice in the Twenty-First Century’ 23 International Journal of the Legal Profession 13–39. Tilly, C (1998) Durable Inequality (Berkeley, University of California Press). Tomaskovic-Devey, D (2014) ‘The Relational Generation of Workplace Inequalities’ 1 Social Currents 51–73. Tomlinson, J, Muzio, D, Sommerlad, H, Webley, L and Duff, L (2013) ‘Structure, Agency and Career Strategies of White Women and Black and Minority Ethnic Individuals in the Legal Profession’ 66 Human Relations 245–69. Tremblay, D-G (2013) ‘Can Lawyers Take Parental Leaves and if so, with what Impacts? the Case of Québec’ 25 Employee Responsibilities and Rights Journal 177–97. Triedman, J (2014) ‘Big Law is Losing the Race: Large Firms have Long Lagged in Matters of Diversity, and their Record on Hiring and Promoting African-Americans is Especially Bleak; Why have Firms Fallen so Short – and What can be Done about It?’ 36 American Lawyer 4–6 diversity.missouristate. edu/assets/diversityconference/American_Lawyer_June_2014.pdf.

Understanding Gender Inequality in the Legal Profession  149 Wald, E (2011) ‘A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who is Responsible for Pursuing Diversity and Why’ 24 Georgetown Journal of Legal Ethics 1079–44. Webley, L and Duff, L (2007) ‘Women Solicitors as a Barometer for Problems within the Legal Profession – Time to Put Values before Profits?’ 34 Journal of Law and Society 374–402. Weiss, DC (2016) ‘Full-Time Female Lawyers Earn 77 percent of Male Lawyer Pay’ ABA Journal 17 March www.abajournal.com/news/article/pay_gap_is_greatest_in_legal_occupations/? utm_source=maestio&utm_medium=email&utm_campaign=weekly. Wilder, GZ (2007) Women in the Legal Profession: Findings from the First Wave of the After the JD Study (Washington, DC, NALP). Wilkins, D and Gulati, M (1996) ‘Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis’ 84 California Law Review 493–625. Williams, JC (2007) ‘Legal Professions and Job Demands: Implications for Work/life Balance. Sloan Work and Family Research Network. Boston College’ wfnetwork.bc.edu/encyclopedia_entry. php?id=6334&area=academics. Williams, JC and Richardson, VT (2010) New Millennium, Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women. The Project for Attorney Retention (Chicago, American Bar Association). Zer-Gutman, L (2012) ‘Effects of the Acceleration in the Number of Lawyers in Israel’ 19 International Journal of the Legal Profession 247–63.

150

7 Men, Masculinities and the Legal Professions Asking the ‘Man Question’ RICHARD COLLIER

I. INTRODUCTION

I

n the years since the publication of Abel and Lewis’s three-volume collection Lawyers in Society there has been a significant increase in empirical research and theorising about the situation of women in the field of law (see eg Brockman 2001; Schultz and Shaw 2003; 2013; Mossman 2006: Hagan and Kay 1995; Thornton 1996; Sommerlad 2002; Kay and Gorman 2008). The primary focus has been ‘the woman lawyer’ (McGlynn 1998) and the interconnections between gender equality and women’s experiences in legal professions, as well as law schools and legal education (Cownie 1998; Wells 2001; Schultz et al 2021). This work has revealed hidden stories of women’s lives in the law (Acland and Broomfield 2019; Cownie 2015), questioning men’s practices, power, privilege and accountability in the world’s legal professions (Schultz and Shaw 2013; 2003; Mossman 2006; Sommerlad 2016; 2002; 1996). As Sommerlad and Hammerslev (Vol 1, ch 1) note, the study of the mechanisms that enforce gendered divisions in legal institutions, not least the impact of work intensification on worklife balance and assumptions about ‘natural’ gender roles, has become a marked feature of the legal professions’ literature over the past 30 years. It also resonates throughout discussions of changes in lawyer demography and the continued obstacles to gender equality found in the 46 national reports. A.  Locating Masculinity in the Study of Legal Professions The gendered ‘masculine’ culture of legal professions is now widely seen to have shaped the world of law, with deleterious consequences for women lawyers. Recurring themes include the persistence of a double-bind experienced by many women seeking to combine a career in law with family life and the related idea of a glass ceiling in promotion to senior levels (Wald 2010; Pinnington and Sandberg 2013; Buonocore Porter 2006; Foster 1995; Rhode 2001); the attrition of women from law; salary differentials and the difficulties that can face women returning to the professions (Duff and Webley 2004); and the gendering of commitment in law firms (Sommerlad and Sanderson 1998). Other work has explored the sexualised nature of legal and business workplace cultures and their constitution of women’s corporeality as ‘other’ (Thornton 1998; McDowell 2010; Sommerlad 2016), men’s violence, bullying and harassment

152  Richard Collier in the law (International Bar Association 2019), and the potential and limits of flexible work and work-life balance policies as ways of addressing gender inequalities (Cunningham 2001; Thornton and Bagust 2007; Drew et al 2015). Equality and diversity in the legal professions (Braithwaite 2010; Headworth et al 2016) look very different now from how they did when Lawyers in Society appeared in 1988 and 1989 (cf Menkel-Meadow 1989). At the same time, legal professions, like other occupations, are seeing a heightened focus on the relation of men to gender equality projects (Flood and Howson 2015; United Nations 2014; in law, see for example Law Society 2019). What, however, is the precise place of masculinity in this work? The legal professional field, whose institutions have been historically dominated by men, can be seen as a centre of men’s power par excellence (Hearn et al 2019; Collier and Longlands 2019), a profession marked by a form of masculine domination profoundly difficult to dislodge, as shown by continued male dominance at senior levels and the persistence of workplace gendered divisions. The highly masculinised character of legal professions, notwithstanding their global expansion and demographic diversification (Sommerlad 1996), has itself become a leitmotif of the study of lawyers in society in the years since Abel and Lewis’s collection appeared. Meanwhile, a neo-liberal discourse premised on ideas of meritocratic and rational labour markets has justified neglect of the systemic structural causes of gender inequality and the continued constraint of women’s agency (Sommerlad and Hammerslev Vol 1, ch 1). B.  The Focus of this Chapter This chapter seeks to ‘shift the gaze’ to explore how understandings of the relationship between law and masculinities have evolved within studies of gender equality across the world’s legal professions. Focusing on developments in the 30 years since Lawyers in Society, it interrogates how masculinity and the associations between men and gender discussed above have been understood. The chapter reframes these debates by presenting a theoretical conceptualisation of masculinity – its analytic possibilities and limits – within the legal professions’ literature. To see questions of gender as problems primarily related to women, I have argued (2010a; 2010b), silences questions about men’s practices, accountability and responsibility for change within the law. As Hearn et al (2016: 57) ask: is it really possible to analyse professions and professionalisation without considering gender and gender relations? Far from constructing women in terms of ‘otherness’, therefore, what follows engages with men and masculinity in a way that was not possible at the time of Lawyers in Society. Asking the legal profession’s ‘man question’ (Dowd 2010) reveals underexplored aspects of the gendered dynamics of identity formation as a legal professional. As we shall see below ‘gendering applies as much to men and masculinities as to women and femininities … gender is not a synonym for women’ (Hearn et al 2016: 59). I begin by situating discussion of masculinities in contemporary debates about gender equality in legal professions, exploring the key methodological and theoretical approaches that underscore this literature. The subsequent section provides two examples of recent engagements with masculinities: first, the relationship between men, care, work and life in the law; and second, the concept of transnational business masculinities and their interconnections with the globalisation and financialisation of capitalism. Section III pulls these themes together and suggests that, while diverse issues in the legal professions literature can usefully be viewed through the gaze of masculinity studies, understandings of masculinity take different forms and rest on often contradictory ideas about men’s practices, identities and relationships to embodiment, care, vulnerability, and emotion.

Men, Masculinities and the Legal Professions  153 II.  MASCULINITIES, LAWYERS AND LEGAL PROFESSIONS IN A GLOBAL FRAME: HISTORY, KEY CONCEPTS AND RECENT DEVELOPMENTS

Within both civil and common law jurisdictions the law has historically had, compared to other disciplines, a different relationship to the study of men and masculinities (Collier 2019; 2010a; 2010b). Yet attempts to conceptualise the links between ‘doing law’ and ‘doing masculinity’ (Smart 1989) have long been central to feminist legal studies, including scholarship on women lawyers; ‘feminists are not simply challenging legal discourse but also naturalistic assumptions about masculinity’ (Smart 1989: 86–87, emphasis added). The primary focus of feminist work in law tended, understandably, to be women and women’s lives. Nevertheless, issues of masculinity were already being addressed within studies of law as a sex-typed profession in 1989 (see eg Thornton 1989; Collier 1991; Podmore and Spencer 1982; Sachs and Hoff Wilson 1978). By the early to mid-1990s a distinctive body of work had begun to engage with the law’s ‘man question’, including studies of lawyers and legal professions. This legal masculinities literature is shaped by two key influences which, although interconnected, draw on distinct theoretical and political trajectories. The first, and most significant in terms of political and theoretical orientation, is feminist and pro-feminist legal scholarship, for example about anti-essentialism (Dowd and Jacobs 2003), materialist feminism (cf Hennessy and Ingraham 1997), intersectionality (Cooper et al 2008; Christensen and Qvotrup Jensen 2014), sexualities (Ashford and Maine 2020), sex/gender critiques (Cealey Harrison and Hood-Williams 2002), masculinities, embodiment and queer theory (Dowd 2010: Collier 2010a). Within the feminist texts that began to influence law and legal education throughout the 1970s and 1980s, a challenge to the structural power of men involved reframing the relationship between masculinity and law. Just as feminist jurisprudence (Smart 1989; Conaghan 2013) displaced the fixity of feminism’s subject ‘woman’ and revealed the woman of legal discourse as a sexed, classed and raced subject (Smart 1992), so the ‘man’ of law was rendered contingent (Dowd 2010: Collier 2010a; 1998b). Against this backdrop, feminist and pro-feminist research on gender and legal careers sought to ‘deflect the objectifying gaze’ from women (Thornton 2004: 15) to focus on men’s practices and experiences (that is, the study of men as men referred to above). The second key influence on legal masculinities work is the now extensive interdisciplinary scholarship commonly referred to as critical study of men and masculinities (henceforth CSMM; for overviews see Gottzén et al 2019; Kahn 2009; Connell et al 2004; Ashe 2007; Messerschmidt et al 2018). This voluminous body of theory and empirical research, which has sought to explore the gender of men in an explicitly pro-feminist manner, includes research reports as well as dedicated encyclopaedias, handbooks and bibliographic databases (Kimmel et al 2004; Flood et al 2007; https://xyonline.net/). It has prompted a new focus on questions about men’s identities and practices across diverse social contexts (Pease 2000; Petersen 1999; Connell 2005a; 2000; 1987; Reeser 2010). As a result of this scholarship, where there was once an absence of work on the relationship between masculinity and law (Collier 1995), there is now a rich picture of ‘men’ in legal discourse (see for example Collier 2010a; Dowd 2010: Rudy Cooper and McGinley 2012). Masculinity has been extensively deployed within studies of the world of ‘public man’ as a subject of political and liberal legal theory: a masculine (legal) subject historically connected to liberal conceptions of the self and autonomy (including the ‘man’ of law), raising questions about how law constitutes ‘a Master discourse through which rational authority, social solidarity and the moral foundations of society are articulated’ (Sommerlad and Hammerslev Vol 1, ch 1: 1). Feminist accounts have addressed the gendering of law’s professional project

154  Richard Collier (cf Witz 1992), its (hi)story, structures, methods and ways of thinking and reasoning (Hunter et al 2010); law’s relationship to emotion, to what it means to be ‘a lawyer’ and to be seen (and feel) as professional, as belonging (or not belonging) to a legal/jurisprudential community (Sandberg and Pinnington 2009). Though this interdisciplinary scholarship is beyond the focus of this chapter, it is important to reflect on the ways in which masculinity has been conceptualised in this work. A.  Methodology and Key Concepts: Sociological and Psychosocial Research on Masculinity I argue elsewhere (2019; 2010a; 1998b) that two sociological and social-psychological approaches to masculinities are of note in understanding work on men, law and gender. First, a central engagement with the concept of hegemonic masculinity (Connell 2005a; 1987) in which law and legal institutions are accorded a pivotal position within the reproduction of gender relations and the gender regime of social structures (Holter 2009). This presents a systematic sociological theory of gender. Masculinities are defined as configurations of practice structured by gender relations, historically made and remade, enmeshed with questions about the balance of interests and power in society and the direction of social change. The concept of hegemonic masculinity attempts to integrate the complexities and intersectionality of race, class, gender and sexuality and take seriously structural patterns of inequality (Connell and Messerschmidt 2005a; Connell 2000; Howson 2005; Howson and Hearn 2019; Beasley 2012; 2008; Messerschmidt 2018). It thus lends itself well to accounts of legal professions that seek to understand the reproduction of social relations with regard to lawyers’ lives within a particular gendered social context, highlighting what Connell depicts as a multiply-structured field of gender relations. Notwithstanding the extensive critique of the concept of hegemonic masculinity (Collier 1998b; Donaldson 1993; Howson 2005; Beasley 2008; Whitehead 1999), it nevertheless illuminates the gendered nature of legal professions (see further Dowd 2010: 28–34). Aspects of the workplace cultures associated with the masculine professional model are interlinked, for example, to the reproduction of a distinctive form of hegemonic masculinity in relation to which femininity and ‘subordinated’ masculinities are positioned (Connell 1987; 2005a). Varying across countries (Beasley 2012), this is a model of masculinity most commonly associated with the social dominance and power of white, able-bodied, middle and upper-class men. The second approach to masculinity relevant to the legal profession literature concerns the relation between the social and psychological processes that shape understandings of masculinity within specific social contexts (such as a legal workplace). In ways that connect to developments in feminist philosophical work and queer theory (Richardson et al 2006), as well studies of men and emotion, intimacy and affect (Reeser and Gottzén 2018), the focus becomes the social and psychological processes that inform men’s experience of masculinity (Collier 1998b; Kahn 2009). Building on the insights of feminist legal theory, and rejecting the idea of a unitary rational male (legal) subject, the aim has been to develop a social understanding of the complexity of male subjectivities in ways that shed light on men’s behaviour within specific contexts, including legal communities and legal practice (see Collier 2010a: 39–43; Dowd 2010: 35–45). Previous work on masculinity often failed to engage with the ‘lived reality’ and inner life of a complex male subject and the diversity of masculinities and men’s lives in any meaningful way. Instead, the target of academic critique was often the gendered concept ‘masculinity’ and not the lived practices and privileges of men and questions of accountability and power

Men, Masculinities and the Legal Professions  155 raised by feminist work (contrast the reading of Hearn 2004a). Writing in 2005, Connell and Messerschmidt (2005: 851–52) observed, for example, how ‘the internal complexities of masculinities have only gradually come into focus as a research issue’, urging us to recognise that hegemonic masculinity does not necessarily translate into a satisfying experience of life. Certainly, if we look to accounts of masculinity within autobiographical, empirical and theoretical work in sociology, psychology, history and literature, as well as cultural representations of male lawyers’ lives in literature and film (Travis 2005), it is precisely the emotional complexity of the individual’s relationships to gendered categories that is prominent. This theme is central to the discussion of fatherhood and male lawyers below and resonates through contemporary engagements with wellbeing and mental health across the world’s legal professions (Collier 2020; 2016; 2014a; Thornton 2016d). By integrating questions of individual biography and life history in approaching masculinity and addressing the contingency and conflicted dimensions of lived experience, our analysis is shifted away from social structure. An overarching ‘masculine’ gender norm embodied in or reproduced through law or legal institutions is not seen as accounting for what men do. It is the interaction between the social realm and the individual psyche that explains the disposition or motivation towards particular action. This approach has not escaped criticism, generating further changes in these pro-feminist engagements with masculinities across legal studies internationally. Before addressing these developments I discuss two areas that illustrate how configurations of masculinities in legal professions have shifted in the last 30 years and how the concept of masculinity has both analytic possibilities and limitations for a comparative study of lawyers and legal professions. III.  TWO CASE STUDIES: FATHERHOOD, CARE AND TRANSNATIONAL MASCULINITIES

A.  Men, Care and Parenting: Reframing the ‘Work-Life’ Question in Lawyers’ Lives Debates about gender equality in the world’s legal professions exhibit a recurring concern about how gender intersects with ideas of parenting, care and commitment. Work on lawyers’ lives has tended to focus primarily on the interaction between women’s family practices and work as a lawyer. By contrast, there has been little research on the intersections between fatherhood, work-life balance and gender (Ruspini and Crespi 2016; Thornton 2020). Fatherhood, it is argued, does not exert the same effect as motherhood on a career in law (Thornton and Bagust 2007: 784). Recent studies of legal professions, however, have sought to probe the relationship between fatherhood and masculinity in law, and men and care (Collier 2019; Thornton 2020), exploring parental leave policies for male lawyers in Finland and Canada (Chorozweicz and Tremblay 2018; Chorozweicz 2016) and the interconnections of masculinities and work in large transnational law firms, banks and finance (Collier and Longlands 2019; McDowell 2010; Connell 2012; 2010; Cunningham 2001). In this work, commercial legal practice is seen as the locus of hegemonic processes associated with masculinity and professional identity formation, raising questions about the gendering of an increasingly commercial and hyper-competitive legal professional paradigm. Demographic shifts relating to families, work and parenting, meanwhile, are reframing the experience of fathers in law firms in complex ways (Collier 2019; 2015a; 2013; Thornton and Wood Vol 1, ch 2; Wallace 2006; Plickert and Hagan 2011). At the same time, countries have reappraised social and legal norms relating to fatherhood and men’s employment patterns in different ways (Collier and Sheldon 2008; Dermott 2006; Ruspini and Crespi 2016). Several themes are relevant for understanding ­masculinities in the legal professions.

156  Richard Collier i.  Reframing Choice: The ‘Good Father’ as a ‘Good Lawyer’ First, influenced by sociological depictions of contemporary fatherhood as involving an intimate relationship with children (Dermott 2008; Miller 2011; Henriksson 2019), studies of lawyer fathers and masculinity highlight the importance of micro-practices that shape the intersections of men’s work and family lives in law (Collier and Longlands 2019): asking what it means to be a ‘good dad’, recognising the symbolic resonance of spending time with children (the ‘good night kiss’: Madrid 2017), engaging in activities such as reading bedtime stories, attending bath times, and breakfasts. This expresses the idea that contemporary fatherhood embraces both traditional breadwinner and caring/new father ideals (Madrid 2017; see also Ranson 2012). Scholarship on fatherhood highlights a belief that a successful father in law can, if he so chooses, reconcile the ‘competing devotions’ (Blair-Loy 2003) of work and family in a hyper-competitive and financialised legal profession (see further Cunningham 2001; Bornstein 2012; Thornton 2016b; also Collier 2019; 2015a; Coltrane et al 2013). Reflecting cultural notions about their ability to cope and to control their lives, men depict becoming a ‘good father’ as something to be achieved through ‘struggle’, whereas motherhood, by contrast, is seen as somehow naturally given (Kugelberg 2006). Men, certainly, can recognise that their ability to work long hours, especially in certain areas of law practice (or, indeed, legal academia), may depend on the care work and emotional labour of others, particularly women, whether partners, family members or paid help (Madrid 2017; Longlands 2020), the last revealing the significance of global care chains (Kilkey 2010). The disposition to engage in childcare can itself be seen as part of a particular gendered professional identity, an acknowledgement by male lawyers of their ability to choose where and when they participate in such caregiving (see further Bekkengen 2006: Johansson and Klinth 2008). Far from indicating a rejection of power and privilege, this embrace of affective, emotional qualities is consistent with a form of ‘caring masculinity’ (Elliott 2016; also Hanlon 2012) and ‘does not imply more egalitarian men’ (for example sharing responsibilities and practical tasks associated with children). In this masculinity, children are central, not women (Madrid 2017: 243; Brandth and Kvande 1998). Men’s bodies are marked more by absence and physical disengagement from care practices than any sense of corporeal presence. This reflects the model of autonomy discussed in Section II, based upon a historical separation of men from areas of social life connected to the affective domain and relations of care associated with the ‘sexual family’ (Fineman 2004; 1995). ii.  The Spatiality of Fatherhood in Law Firms: Locating Masculinities in the Global City and the Importance of Social Context Second, work on masculinity highlights the interconnections between fatherhood and the spatial dynamics of men’s work and care. There is a rich body of scholarship, for example, exposing the role of the finance industry and associated professional services in shaping and deepening local and global socio-economic inequalities (Sassen 2001; Harvey 2006). The new geopolitical conjuncture in which the legal field is ‘everywhere splintered’ and ‘the meaning of the profession [is] contested’ (Sommerlad and Hammerslev Vol 1, ch 1) is related to work exploring the contemporary gendered dynamics of global cities as new ‘State Spaces’ (Brenner 2004), which exclude and include, disadvantage and reward businesses and individuals, favouring those men in positions of power and privilege and the forms of masculinity with which they are associated (Sassen 2014; Massey 2007). Gender matters in addressing new configurations of masculinities, gender and capitalism (Acker 2004; Connell 2005b) and the interconnections

Men, Masculinities and the Legal Professions  157 of legal professions, globalisation and social change (Chow 2003). While ostensibly genderneutral, the configurations of spatial practices in legal cultures fostered by neoliberal global capitalism interrelate with gendered ideas in ways that reinforce the authority and legitimacy of certain models of masculinity in high-status workplaces (Longlands 2020; McDowell 2010; Tienari et al 2010) and help perpetuate the gender divisions of labour within the family (Collier and Longlands 2019). This spatiality can also be traced to the local, performative and situated nature of men’s fathering practices (Collier 2019; see also Hopkins and Noble 2009). Distinctive local, regional and national cultures and histories mark not only the development of legal professions and legal systems but also the patterns and evolution of gender relations, families and parenting cultures (Lohokare 2019). In questioning the perpetuation of masculine and economic hegemony in specific areas of legal practice (Thym 2019), placing these interconnections between fatherhood and masculinity at the forefront of gender equality entails unpacking the traditional binaries of men’s public/private commitments, responsibilities and dependencies through which fatherhood has traditionally been understood (Marsiglio et al 2005). It reveals a fatherhood ideal associated with distinctly gendered assumptions about historical forms of legal professionalism expressed in gendered ideas about care and commitment, workplace authority, competence, rationality, and related assumptions about sexualisation, corporeality and what will be required, at a subjective level, to pursue a successful career in law (see further Bostock 2014). This highlights the plural dynamics and forms of masculinity, the multiple, contradictory, pathways through which men make and remake identities within particular occupational contexts in law (see further Aboim 2010). B.  Transitional Business Masculinities: New Configurations of Gender in Legal Professions Engaging with the spatiality of masculinity further illustrates how men working in the large law firms and industries that dominate the physical space of cities such as London, as well as the global economy more generally, have considerable transnational presence. These are transnational centres of men’s power closely linked to the financial and political restructurings that have occurred since the 1980s (Hearn et al 2019). Across Volume 1’s national reports, for example, we find recurring depictions of increasingly fragmented and hyper-competitive legal-business cultures (Wald 2010), a reconstitution of legal professionalism (Muzio 2004; Webley 2015) within the context of production processes in law and financial services that have come to embody the entrepreneurial and market-oriented values of a new geopolitical conjuncture associated with neo-liberalism (Sommerlad and Hammerslev Vol 1, ch 1; Sommerlad 2011). The cultures and practices associated with this ‘law as business’ model exemplify what Connell and Messerschmidt (2005) refer to as hegemonic, global ‘transnational business masculinities’ (see further Elias 2008; Elias and Beasley 2009; Hearn 2015a; Hearn et al 2012). This term refers to a new form of masculinity which has emerged over the past three decades among globally mobile managers and businessmen, personified by the transnational ‘City’ corporate male lawyer (Collier 2015a; 2013). It is a model of masculinity that coheres in gendered forms of leadership of organisations (Hearn et al 2009; Hearn and Piekarri 2005; Hearn 2004b), marked by certain characteristics: an acute individualism and high degree of self-reflexivity, not least towards career management and planning (linked to the idea of being ‘in control’), a conditional loyalty to organisations, a declining sense of responsibility for others (except for purposes of image-making: Ashe 2007: 150; Connell 2000: 52), and a commitment

158  Richard Collier to competition which broadly aligns with the pyramidal organisational structure of career progression and the culture of ‘up or out’ within large law firms. It is a masculinity that is a ‘thousand miles from kind’ (Connell 2009), resting on a core commitment to the market and the primacy of capital accumulation (Hearn 2015a; Hearn et al 2012; Elias and Beasley 2009: Connell and Wood 2005: see also Bakan 2005). In the case of legal professions and women lawyers, it is enmeshed with questions about professional values (Webley and Duff 2007) and ideas of transnational ‘winners’ in a global frame (Del Aguila 2019). The concept of transnational business masculinities sheds further light on the re-gendering of legal professions aligned to processes of organisational adaptations to formal equality agendas and a reframing of legal professionalism (Sommerlad 2007). The increasing degree of (gendered) polarisation or segmentation (Ashley and Empson 2013; Bolton and Muzio 2007; Sommerlad 2016; 2015a) and perpetuation of gendered divisions in legal professions takes place not just in the context of internationalisation and outsourcing legal services but also through a growing division between these elite global corporate firms and ‘the rest’ in terms of income, status, size and influence. It is striking how, within the legal professions’ literature, culturally powerful and resonant ideas about the income and professional status of fields of law, along with interlinked ideas about social class and global mobility, continue to be hierarchically associated with workplace cultures closely related to this transnational business masculinity. What does this bring to the study of legal professions? In contrast to earlier concerns about the proletarianisation and deskilling of legal professionals (Derber 1982) or depictions of a ‘tournament’ of lawyers (Galanter and Palay 1991), the social, economic and political shifts associated with the financialisation of law have had a distinctly masculine inflection in ways that affirm the power and status of already privileged social groups of men (Connell 1987; 2005b: see also Codourey 2008; Dinovitzer and Hagan 2006). The interplay of social and cultural capital in recruitment and selection processes across many legal professions continues to facilitate the reproduction of male legal elites in ways marked by intersections of gender, race and class (Cook et al 2012). Men from diverse backgrounds, Giazitzoglu and Muzio (2020) suggest, engage with distinctive forms of cultural capital to enact the configuration of corporate masculinity deemed hegemonic in the field of law. If the adaptations discussed above reveal how professionalism is a disciplinary mechanism (Fournier 1999), it is also a model marked by new formations of gender and masculinity. This depiction of transnational business masculinities further aligns with Thornton’s (2016a) depiction of the corporate lawyer as a ‘flexible cyborg’, an encoded masculine figure disconnected from the domains of emotion, affect, corporeality and vulnerability. One feature of the dismantling of the liberal-legal state is precisely a replacing of ‘… separate spaces of “enclosure”’ with a ‘continuous network’ as ‘leisure, work, education, healthcare, intimacy all blended into one, producing an exhausted individual who lacks any downtime or breaks’ (Davies 2020: 239). This is the context in which the upending of traditional working lives in law during the COVID-19 pandemic has revealed deep fault-lines around issues of care of the young and the elderly, questions about who assumes responsibility for the preponderance of housework and caring, and the silencing of men’s caring – issues central to the reproduction of gendered divisions across legal professions (Collier 2019; Thornton and Wood Vol 1, ch 2). Notwithstanding the new opportunities that the neoliberal deregulation of legal services may have afforded some in the legal professions, a new (feminised) underclass performs routinised tasks traditionally assigned to law firm employees or outsourced (Sommerlad 2016; Thornton 2014; Sommerlad et al 2010). This not only further elides the distinction between

Men, Masculinities and the Legal Professions  159 managed positions culturally marked as feminine and the (masculine) domain of the highly competitive and financially lucrative law firm partnership but also reshapes understandings of law as a masculine profession. The deployment of ostensibly gender-neutral notions of merit (Sommerlad 2012; Thornton 2013) have not just served to frustrate formal policies of equity and inclusion but also policed the boundaries of legal professionalism as masculine while espousing a belief that law is always ‘open to all’ (Sommerlad 2015a). IV.  MEN IN THE GLOBAL FRAME: LEGAL PROFESSIONS AND THE LIMITS OF MASCULINITY

A.  From Masculinity to the Hegemony of Men Recent scholarship on masculinity has sought to explore and conceptualise more precisely what it means to speak of ‘men’ as a gender category in relation to law. This work is raising new questions about and challenging the ‘hegemony of men’ (Hearn 2004a; 1998) within law’s diverse institutions and practices (Dowd 2010: Collier 2013; 2010a; 2010b; Fineman and Thomson 2013; McGinley 2013). In the United States, for example, there is an engagement with ‘multidimensional masculinity theory’ and law (Rudy Cooper and McGinley 2012; Harvard Journal of Law and Gender 2010; Nevada Law Journal Special Issue 2013), building on insights of critical race and intersectionality scholarship (Crenshaw 1991). A recognition that ‘men’ is a heterogeneous category (Carbado 2012) questions the reproduction of organisational workplace structures and cultures marked by a hegemony of men or rather, more accurately, of certain kinds (Hearn 2014) of socially dominant groups of men (Gibb 2000), the ‘white … and older’ men of the law (Ashdown 2015: 2249).1 Elsewhere interdisciplinary work has sought to critique the concept of masculinity, leading to intriguing questions about how social constructionist accounts of masculinity in studies of legal professions have characterised what it might mean to change men’s practices (for instance, around engagement in practices of care). The problem with focusing on an abstract ‘ideological apparatus’ of masculinity (Whitehead 2002: 94) is that it can divert attention from questions about responsibility, accountability and agency (cf Howe 2009; McMahon 1999). An appreciation of the subjective experience of individuals, and contradictions surrounding gender and identity that this entails, is then lost, resulting, paradoxically, in an erasure of men’s practices. Defining the problem as ‘masculinity’ set apart from its production through social agency (Ashe 2007: 155) erases the embodied and inter-subjective dimensions of gender experience. Hearn (2004a) has argued that we must move away from debates about ‘masculinities’ and ‘back to men’ to distinguish hegemonic masculinity from the ‘hegemony of men’ (see also Hearn 2010; 2006) and reveal how ‘men are both a social category formed by the gender system and dominant collective and individual agents of social practices’ (Hearn 2004a: 59). This argument has implications for situating masculinity in a global frame. Three observations can be made in the context of a comparative sociological study of legal professions.

1 In the UK, studies have drawn attention to the legacy of the legal profession’s white, male and elitist origins. If demographic changes have seen a move away from a historical model of the (male) ‘lawyer as gentlemen’, of law as a public service, ostensibly archaic forms of (specifically) English class-based masculinity continue to have considerable capital in this context (Cook et al 2012).

160  Richard Collier B.  The Importance of Social Context Accounts of law and masculinity deriving from the common law tradition, exemplified in CSMM literature by work from the UK, Australia and United States, have tended to view hegemonic masculinity as a foundational concept in discussing gender and legal professions. There are marked differences of emphasis, however, in relation to the way issues of class, race and ethnicity frame questions about men and gender in these jurisdictions. In many Continental European states shaped by a civil law tradition the analysis of masculinities is inflected by different ideas of citizenship, community, and nationhood (see, for example, Büchler and Cottier 2012; also Collier 2015b; 2014b). There is no one narrative of what is happening to men, masculinities and gender relations in Europe (Hearn and Pringle 2006). Rather, the distinctive nature of these national legal-political systems shapes the contours of discussion of masculinity in subtle ways. It is also difficult to generalise across engagements with masculinity from North America, Western Europe, Latin America, Asia, Australia, North Africa and the Middle East, subSaharan Africa and former communist countries. Set against the backdrop of the proliferating studies of postcolonialism over the past 30 years (Duncanson 2003) and work exploring the place of the professions within a globalising world (Bellini and Maestripieri 2018), recent literature on global masculinities engages with diverse social and cultural contexts, for example, with regard to the homosocial dimensions of masculinities in India (Gabriel 2004); the specificities of Caribbean (Haynes 2019), East Asian (Liong and Chan 2019) and African masculinities (Ouzgane and Morrell 2005; Ratele 2019; 2014) and how nationalism has shaped gender configurations across diverse nation states (eg Vijayan 2019). Recent work has addressed another theme neglected in broader CSSM and legal scholarship, ‘white masculinity’ (Hubinette 2019), and how this connects to assumptions about men and intimacy, rationality and emotion in ways different from those in other social and cultural contexts (Jamieson 2011; Kabesh 2013); how associations between technology and transnational men, for example, can themselves be subverted within specific local contexts (for India, see Poster 2013). C.  The Institutionalisation of Critical Masculinity Studies National differences in welfare regimes and the varying development and institutionalisation of critical masculinity studies internationally are also significant in understanding differences of approach (Hearn and Howson 2019). In the UK, for example, some attempt has been made to connect masculinity to public policy concerning gender equality (COMAB 2009). In Nordic countries, engagements with men and masculinities have been historically more embedded in legal policy debates. There are also marked differences in the institutionalisation of CSMM within systems of higher education and legal education. Studies of masculinity and law shaped by the dominant methodology of Anglo-American jurisprudence, however, may not resonate elsewhere. The organisational structures of legal education and scholarship have evolved across countries in ways that reflect different degrees of sympathy with the critical, contextual, socio-legal analysis that has tended to shape law’s engagement with questions of masculinity. At the same time, a rich body of legal studies has interrogated the multifarious dimensions of the marketisation of the university law schools and explored its consequences for law students and legal academics (Thornton 2015; 2011), a development that has played out with different inflections across countries. In order to look beyond the ‘Anglosphere’ it is necessary, therefore, to question the Western-centred focus of much discussion about masculinities (Connell 2007). Notwithstanding

Men, Masculinities and the Legal Professions  161 the commonalities of masculinities under neoliberalism (Cornwall et al 2016), it is far from clear that neoliberalism plays out in the same way from the perspective of the Global South (Connell and Dados 2014). Like classical sociology, dominant theories of masculinity have been constructed from Global-North viewpoints, causing Connell (2007) to propose a ‘world social science’ in relation to masculinity, inclusive of many voices, a more democratic, global recognition of theory. This emphasises how discussion of masculinities in Latin America, Asia, Africa, the Islamic world and other post-colonial societies can make important and vital contributions to the study of legal professions. Each has its distinctive relation to nation state building (Wimmer and Schiller 2002; Nagar et al 2002), economic crisis (Perrons 2015) and global market hierarchies (Hanieh 2009). Adopting a comparative perspective suggests that there is a texture and nuance to discussions about men, law and gender, which broad brush approaches to masculinities and globalisation may miss (Connell 1998). D.  The Political Context: Authoritarian Populism, Anti-Feminism and Hetero-Patriarchy If we look at the ‘global tides’ of a ‘market world’ (Connell 2014), meanwhile, neoliberal economic agendas have accentuated the professional shifts detailed in this chapter, stripping away welfare law and social care provision across countries, fostering new (gendered) social inequalities and divisions and maintaining the power of male global elites. These processes are enmeshed in the rise over the past decade of virulent anti-feminist and misogynistic masculinities associated with authoritarian populist parties and attacks on the tenets of liberal democracy (Davies 2020; Norris and Inglehart 2019). Traditionally ‘mainstream’ politics and media, and norms and institutions of liberalism, have come under attack from nationalist and authoritarian forces: ‘neoliberalism has grown increasingly illiberal producing new mutations of nationalism and deregulation’ (Davies 2020: 240). These developments are bound up with a resurgence of white hetero-patriarchy seen in studies of ‘angry white men’ (Kimmell 2015), new configurations of masculinity, power and violence that raise new questions about global inequalities (Connell 2011). Meanwhile the prevalence of ‘everyday sexism’ (Bates 2014), including in the world’s legal professions (International Bar Association 2019), is being exposed by an international #MeToo movement. The 2020 Gender Social Norms Index, drawing on data from 30 countries, reveals that despite decades of progress in closing the gender equality gap, close to 90 per cent of men and women feel bias against women (United Nations Development Programme 2020). This, too, is part of the backdrop against which a discussion of lawyers in contemporary legal professions must be located. Finally, contemporary CSMM scholarship is addressing a range of new issues: transmasculinities (Gottzén and Straube 2016), which seek to de-essentialise gender grounded in a cis-male body, postcolonial masculinities (Kabesh 2013; Farahani and Thapar-Björkert 2019), ‘inclusive’ (Anderson 2011) and ‘hybrid’ masculinities (Bridges and Pascoe 2014), m ­ asculinities and migration (Wojinicka and Pustulka 2017), men, affect (Brickell 2014) and disability (Robertson et al 2019), work on queer theory (Allan 2019), men, gender and care in a global frame (Held 2006), and how critical masculinity studies relate more generally to feminist ­scholarship (Beasley 2019; 2015). V.  CONCLUDING REMARKS

This chapter has traced the diverse political, intellectual and institutional influences that have shaped the study of masculinities and legal professions over the past 30 years. Masculinity is

162  Richard Collier not a fixed, homogenous or unchanging concept (cf Collier 2010a; 2010b). If we are to speak of a coherent discourse of masculinity, a ‘masculine’ legal profession, it would be necessary to show that usages of the term were located structurally within clearly defined legal institutions with their own methods, cultures and practices (Middleton 1992). Rather than take for granted what is meant by the term masculinity, locating its meaning within a grand political narrative, transhistorical or cultural frame, it is more helpful to look at how it has been deployed within heterogenous national contexts, in different ways, at different moments, as a particular kind of inter-discursive construction. A more complex and nuanced picture of the masculine culture of law and the profession is required, one grounded within the contexts of the diverse legal professions discussed in Volume 1. The differential commitments that individual men have to dominant modes of masculinity in geographically specific legal professions, mediated by race, ethnicity, class, sexual orientation and so forth, suggest it is simplistic to say that law is ‘masculine’ without noting how the normative nature of masculinity has changed significantly. Echoing Hearn’s (2004a) observation that it is ‘men’ who are far more hegemonic than masculinity, I argued that the concept of transnational business masculinities offers intriguing insights into the changing nature of large law firms understood as transnational gendered organisations (Hearn et al 2019; 2012; Hearn 2015a). This form of professionalism differs significantly from the models of masculinity associated with bonds of kinship (Galanter and Roberts 2008) and ­autonomy (Engel 1970) which characterised earlier studies of legal professions (cf Burrage 1996; Hanlon 1999). Consideration of the human consequences of globalisation (Bauman 1998) and the lives of lawyers in an era of digital capitalism (Caserta and Madsen 2019) reveals new forms of working lives suffused with assumptions about masculinity. At a conceptual level, masculinity has been used in different ways within discussions of legal professions. It has been deployed to describe men’s psychological characteristics and gendered experiences and identities and an array of gendered cultural practices, rationalities and ways of thinking deemed masculine in particular social and legal contexts. Theoretically, it has been central to psychoanalytic, psychological and power-based readings of men and gender, as well as analyses of men’s gendered practices within specific legal/institutional settings. Masculinity has appeared as something reproduced through hierarchical gender divisions structurally embedded within societies and interconnected, albeit in often ill-defined ways, to culturally specific assumptions about the bodies of men, male identity, desire(s) and life course. Legal professions might more accurately be seen to interact with a range of discourses around masculinities within particular transnational, national and local settings, producing distinctive configurations of gender relations. Taking men as men seriously entails paying attention to the heterogeneous and frequently contested ideas about masculinity, which circulate within specific legal institutions. It is therefore important to look critically at, and beyond, masculinity in ways that might produce a richer, more nuanced conceptual framework in which to approach men’s and women’s practices, subjectivities and bodies (cf Collier 2010b). Locating questions about men’s agency and men as emotive subjects in organisations (Hearn 1993), for example, entails recognising the politically open-ended nature of practices that people socially categorised as men reproduce through their agency within specific contexts of power (Ashe 2007: 159). What may be required is an engagement with these institutional and structural relationships, including ideologies, which involves a move away from gender and other identity markers, rethinking masculinity from the perspective not of identities but ‘of privilege and disadvantage and with a firm grounding in a theory of state responsibility for the vulnerable legal subjects who actually populate society’ (Fineman 2013: 35).

Men, Masculinities and the Legal Professions  163 As Choroszewicz (2016) notes, despite the ubiquity of policies addressing gender inequality across legal professions internationally, there remains a reluctance to challenge the male advantage instilled in the dominant prerequisites for career advancement. Paradoxically, at the very moment that discourses of equality and inclusion are embedded at an organisational level across the world’s legal professions, the gendered, masculine nature of these cultures, forms of embodiment and disciplinary technologies ensures that the masculinity of super-élite law firms is sustained (Garlick 2018). In such a context there is reason to question how effective change strategies will be as long as problems in this area are conceptualised as issues primarily about women, rendering men invisible. Re-theorising men’s identities beyond the term masculinities to produce ‘a more multi-conceptual framework for examining men’s subjectivities, bodies and practices’ (Ashe 2007: 158), by contrast, leads to new questions about the gender divisions of the world’s legal professions and with it a new constellation of ideas about the relationship between law, men and gender. REFERENCES Aboim, S (2010) Plural Masculinities (London, Routledge). Acker, J (2004) ‘Gender, Capitalism and Globalization’ 30 Critical Sociology 17–41. Ackroyd, S and Muzio, D (2007) ‘The Reconstructed Professional Firm: Explaining Change in English Legal Practices’ 48(5) Organization Studies 1–19. Acland, L and Broomfield, K (2019) First 100 Years of Women in Law (London, Scala). Allan, JA (2019) ‘Queer Theory and Critical Masculinity Studies’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) 72–82. Anderson, E (2011) Inclusive Masculinity: The Changing Nature of Masculinities (London, Routledge). Ashdown, J (2015) ‘Shaping Diversity and Inclusion Policy within Research’ 85 Fordham Law Review 2249–75. Ashe, F (2007) The New Politics of Masculinity Men, Power and Resistance (London, Routledge). Ashford, C and Maine, A (eds) (2020) Research Handbook on Gender, Sexuality and the Law (Cheltenham, Edward Elgar). Ashley, L and Empson, L (2013) ‘Differentiation and Discrimination: Understanding Social Class and Social Exclusion in Leading Law Firms’ 66 Human Relations 219–44. Bakan, J (2005) The Corporation: The Pathological Pursuit of Profit and Power (Robinson Publishing). Bates, L (2014) Everyday Sexism (London, Simon and Schuster). Bauman, Z (1998) Globalization: The Human Consequences (Cambridge, Polity Press). Beasley, C (2008) ‘Rethinking Hegemonic Masculinity in a Globalising World’ 11 Men and Masculinities 86–103. —— (2012) ‘Rethinking Hegemonic Masculinity in Transnational Context’ in J Hearn, M Bragojevic and K Harrison (eds), Rethinking Transnational Men: Beyond, Between and Within Nations (London, Routledge). —— (2015) ‘Caution! Hazards Ahead: Considering the Potential Gap between Feminist Thinking and Men/Masculinities Theory and Practice’ 51 Journal of Sociology 566–81. —— (2019) ‘Feminism and Men/Masculinities Scholarship: Connections, Disjunctions and Possibilities’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) 31–41. Bekkengen, L (2006) ‘Men’s Parental Leave: A Manifestation of Gender Equality or Child-Orientation’ in L Gonäs and JC Karlsson (eds), Gender Segregation: Divisions of Work in Postindustrial Welfare States (Aldershot, Ashgate). Bellini, A and Maestripieri, L (2018) ‘Professions Within, Between and Beyond. Varieties of Professionalism in a Globalising World’ 8(16) Cambio 5–14.

164  Richard Collier Blair-Loy, M (2003) Competing Devotions: Career and Family among Women Executives (Cambridge, Harvard University Press). Bolton, S and Muzio, D (2007) ‘Can’t Live with ‘Em: Can’t Live Without ‘Em: Gendered Segmentation in the Legal Profession’ 41 Sociology 47. Bornstein, S (2012) ‘The Law of Gender Stereotyping and the Work-Family Conflicts of Men’ 63 Hastings Law Journal 1297. Bostock, J (2014) The Meaning of Success: Insights from Women at Cambridge (Cambridge, Cambridge University Press). Braithwaite, J (2010) ‘Diversity Staff and the Dynamics of Diversity Policy Making in Large Law Firms’ 13 Legal Ethics 141–63. Brandth, B and Kvande, E (1998) ‘Masculinity and Childcare: The Reconstruction of Fathering’ 46 The Sociological Review 293–313. Brenner, N (2004) New State Spaces: Urban Governance and the Rescaling of Statehood (Oxford, Oxford University Press). Brickell, C (2014) ‘Affect and the History of Masculinities’ 14 Qualitative Research Journal 28–40. Bridges, T and Pascoe, CJ (2014) ‘Hybrid Masculinities: New Directions in the Sociology of Men and Masculinities’ 8 Sociology Compass 246–58. Brockman, J (2001) Gender in the Legal Profession: Fitting or Breaking the Mould (Vancouver, UBC Press). Büchler, A and Cottier, M (eds) (2012) Legal Gender Studies – Rechtliche Geschlechterstudien Konzepte Entwicklungen und Perspektiven – eine kommentierte Quellensammlung Inhaltsverzeichnis (Basel, Helbing und Lichtenhahn). Buoncore Porter, N (2006) ‘Re-defining Superwoman: An Essay on Overcoming the “Maternal Wall” in the Legal Workplace’ 13 Duke Journal of Gender, Law and Policy 55–84. Burrage, M (1996) ‘From a Gentleman’s to a Public Profession: Status and Politics in the History of English Solicitors’ 3 International Journal of the Legal Profession 45. Carbado, DW (2012) ‘Masculinity by Law’ in FR Cooper and AC McGinley (eds), Masculinities and the Law: A Multidimensional Approach (New York, New York University Press). Caserta, S and Madsen, MR (2019) ‘The Legal Profession in the Era of Digital Capitalism: Disruption or New Dawn?’ 8 Laws 1–17. Cealey Harrison, W and Hood Williams, J (2002) Beyond Sex and Gender (London, Sage). Choroszewicz, M (2016) ‘Women Attorneys and Gendering processes in Law Firms in Helsinki’ 53 Sosiologia 122–37. Chorozewicz, M and Tremblay, D-G (2018) ‘Parental-Leave Policy for Male Lawyers in Helsinki and Montreal: Cultural and Professional Barriers to Male Lawyers Use of Paternity and Parental Leaves’ 25 International Journal of the Legal Profession 303–16. Chow, EN-L (2003) ‘Gender Matters: Studying Globalisation and Social Change in the 21st Century’ 18 International Sociology 443. Christensen, AD and Qvotrup Jensen, S (2014) ‘Combining Hegemonic Masculinity and Intersectionality’ 9 NORMA: International Journal for Masculinity Studies 60–76. Coalition on Men and Boys (COMAB) (2009) Man Made: Men, Masculinities and Equality in Public Policy (London, COMAB). Codourey, M (2008) ‘Mobile Identities and the Socio-Spatial Relations of Air Travel’ 5 Surveillance and Society 188–202. Collier, R (1991) ‘Masculinism, Law and Law Teaching’ 19 International Journal of the Sociology of Law 427–51. —— (1995) Masculinity, Law and the Family (London, Routledge). —— (1998a) ‘“Nutty Professors”, “Men in Suits” and “New Entrepreneurs”: Corporeality, Subjectivity and Change in the Law School and Legal Practice’ 7 Social and Legal Studies 27–53. —— (1998b) Masculinities, Crime and Criminology (London, Sage). —— (2010a) Men, Law and Gender: Essays on the ‘Man’ of Law (London, Routledge).

Men, Masculinities and the Legal Professions  165 —— (2010b) ‘Masculinities, Law and Personal Life: Towards a New Framework for Understanding Men, Law and Gender’ 33 Harvard Journal of Law and Gender 431–77. —— (2013) ‘Rethinking Men and Masculinities in the Contemporary Legal Profession: The Example of Fatherhood, Transnational Business Masculinities and Work-Life Balance in Large Law Firms’ 13 Nevada Law Journal 101–30. —— (2014a) ‘“Love Law, Love Life”: Neo-Liberalism, Wellbeing and Gender in the Legal Profession – The Case of Law School’ 17 Legal Ethics 202. —— (2014b) ‘Rechtswissenschaft (Law and Masculinities: European Perspectives)’ in S Horlacher, B Schötz, and W Schwanebeck (eds), Handbuch Männlichkeitsforschung (Stuttgart, Verlag JB Metzler). —— (2015a) ‘Naming Men as Men in Corporate Legal Practice: Gender and the Idea of “Virtually 24/7 Commitment” in Law’ 83 Fordham Law Review 2347–2406. —— (2015b) ‘Sources, Methods and the “Man Question”’ 15 Legal Information Management 19. —— (2016) ‘Wellbeing in the Legal Profession: Reflections on Recent Developments’ 23 International Journal of the Legal Profession 41–60. —— (2019) ‘Fatherhood, Gender and the Making of Professional Identity in Large Law Firms: Bringing Men into the Frame’ 15(1) International Journal of Law in Context 68–87. —— (2020) ‘Moving Across Silos: Legal Academic Wellbeing and the Legal Professions – Some Reflections on the UK Experience’ in J Chan, P Vines and M Legg (eds), Wellbeing in a Changing World: The Impact of Technology and Innovation on the Legal Profession (Cambridge, Intersentia). —— (2021) ‘Rethinking Men, Masculinities and the Legal Academy: Or, Whatever Happened to the “Nutty Professor?”’ in U Schultz (ed), Gender and Careers in the Legal Academy (Oxford, Hart Publishing). Collier, R and Longlands, H (2019) ‘Interrogating Transnational Masculinities, Fatherhood and the Institution of Men – Rethinking Gender Equity in Global Finance and Large International Law Firms’ in J Hearn, W Poster, and EV del Aguila (eds), Unsustainable Institutions of Men: Interrogating Transnational Centres, Institutions and Power (Abingdon, Routledge). Collier, R and Sheldon, S (2008) Fragmenting Fatherhood (Oxford, Hart Publishing). Coltrane, S (1997) Family Man: Fatherhood, Housework and Gender Equity (Oxford, Oxford University Press). Coltrane, S, Miller, EC, DeHaan, T and Stewart, L (2013) ‘Fathers and the Flexibility Stigma’ 69 Journal of Social Issues 279–302. Conaghan, J (2013) Law and Gender (Oxford, Clarendon). Connell, RW (1987) Gender and Power (Cambridge, Polity). —— (1998) ‘Masculinities and Globalization’ 1 Men and Masculinities 3–23. —— (2000) The Men and the Boys (Cambridge, Polity). —— (2005a) Masculinities, 2nd edn (Cambridge, Polity). —— (2005b) ‘Globalization, Imperialism and Masculinities’ in M Kimmel, J Hearn and RW Connell (eds), Handbook of Men and Masculinities (London, Sage). —— (2007) Southern Theory (Cambridge, Polity). —— (2009) ‘A Thousand Miles from Kind: Men, Masculinities and Modern Institutions’ 16 Journal of Men’s Studies 1237–52. —— (2010) ‘Lives of the Businessmen: Reflections on Life-History Method and Contemporary Hegemonic Masculinity’ 35(2) Österreichische Zeitschrift für Soziologie 54–71. —— (2011) Confronting Equality: Gender, Knowledge and Global Change (Sydney, Allen & Unwin). —— (2012) ‘Inside the Glass Tower: the Construction of Masculinities in Finance Capital’ in PK McDonald and E Jeanes (eds), Men, Wage, Work and Family (New York, Routledge). —— (2014) ‘Global Tides: The Market World and Gender Dynamics on a World Scale’ 1 Social Currents 5–12. Connell, R and Messerschmidt, J (2005) ‘Hegemonic Masculinity: Rethinking the Concept’ 19 Gender and Society 829–59. Connell, R and Wood, J (2005) ‘Globalization and Business Masculinities’ 7 Men and Masculinities 347–64.

166  Richard Collier Connell, RW and Dados, N (2014) ‘Where in the World Does Neoliberalism Come From? The Market Agenda in Southern Perspective’ 43 Theory and Society 117–38. Connell, RW, Hearn, J and Kimmel M (eds) (2004) The Handbook of Masculinity Studies (London, Sage). Cook, A, Faulconbridge, J and Muzio, D (2012) ‘London’s Legal Elite: Recruitment Through Cultural Capital and the Reproduction of Social Exclusivity in City Professional Service Fields’ 44 Environment and Planning 1744–62. Cooper, D, Grabham, E, Herman, D and Krishnadas, J (2008) Intersectionality and Beyond: Law, Power and the Politics of Location (London, Routledge). Cornwall, A, Karioris, FG and Lindisfarne, N (eds) (2016) Masculinities under Neoliberalism (London, Zed Books). Cownie, F (1998) ‘Women Legal Academics – A New Research Agenda?’ 25 Journal of Law and Society 102. —— (2015) ‘The United Kingdom’s First Woman Law Professor: An Archerian Analysis’ 42 Journal of Law and Society 127. Crenshaw, KW (1991) ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ 43 Stanford Law Review 1241–99. Cunningham, K (2001) ‘Father Time: Flexible Work Arrangements and the Law Firm’s Failure of the Family’ 53 Stanford Law Review 967. Davies, W (2020) This is Not Normal: The Collapse of Liberal Britain (London, Verso). Derber, C (ed) (1982) Professionals as Workers: Mental Labor in Advanced Capitalism (Boston, GK Hall). Del Aguila, EV (2019) ‘Transnational “Winner” Masculinities: Modernity and the Transformation of Intimacy’ in J Hearn, W Poster, and EV del Aguila (2019) (eds), Unsustainable Institutions of Men: Transnational Dispersed Centres, Gender Power, Contradictions (London, Routledge). Dermott, E (2006) The Effect of Fatherhood on Men’s Employment (London, ESRC). —— (2008) Intimate Fatherhood: A Sociological Analysis (New York, Routledge). Dinovitzer, R (2011) ‘The Financial Rewards of Elite Status in the Legal Profession’ 36 Law and Social Inquiry 971–98. Dinovitzer, R and Hagan, J (2006) ‘Lawyers on the Move: the Consequences of Mobility for Legal Careers’ 13 International Journal of the Legal Profession 119–35. Donaldson, M (1993) ‘What is Hegemonic Masculinity?’ 22 Theory and Society 643–57. Dowd, N (2010) The Man Question: Male Subordination and Privilege (New York, New York University Press). Dowd, N and Jacobs, MS (eds) (2003) Feminist Legal Theory: An Anti-Essentialist Reader (New York, New York University Press). Drew, NM-C, Datta, D and Howieson, J (2015) ‘The Holy Grail: Work-Life Balance in the Legal Profession’ 38 UNSW Law Journal 288–322. Duff, L and Webley, L (2004) Equality and Diversity: Women Solicitors Research Study 48, vol 2: Qualitative Findings and Literature Review (London, Law Society). Duncanson, I (2003) ‘Writing in the Postcolonial: Postcolonial Legal Scholarship’ 2003(1) Law, Social Justice and Global Development Journal (LGD). Elias, J (2008) ‘Hegemonic Masculinities, the Multinational Corporation and the Developmental State: Constructing Gender in “Progressive” Firms’ 10 Men and Masculinities 405. Elias, J and Beasley, C (2009) ‘Hegemonic Masculinity and Globalization: Transnational Business Masculinities and Beyond’ 6 Globalizations 281–96. Elliott, K (2016) ‘Caring Masculinities: Theorising and Emerging Concept’ 19 Men and Masculinities 240–59. Engel, GV (1970) ‘Professional Autonomy and Bureaucratic Organization’ 15 Administrative Science Quarterly 12–21. Farahani, F and Thapar-Björkert, S (2019) ‘Postcolonial Masculinities: Diverse, Shifting and in Flux’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) 92–102.

Men, Masculinities and the Legal Professions  167 Fineman, M (1995) The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (New York, Routledge). —— (2004) The Autonomy Myth (New York, New Press). —— (2013) ‘Feminisms and Masculinities: Questioning the Lure of Multiple Identities’ in M Fineman and M Thomson (eds), Exploring Masculinities; Feminist Theory Reflections (Farnham, Ashgate). Fineman, M and Thomson, M (eds) (2013) Exploring Masculinities; Feminist Theory Reflections (Farnham, Ashgate). Flood, M and Howson, R (eds) (2015) Engaging Men in Building Gender Equality (Newcastle, Cambridge Scholars Publishing). Flood, M, Pringle, K. Gardiner, JK and Pease, B (eds) (2007) International Encyclopaedia of Men and Masculinities (London, Routledge). Foster, SE (1995) ‘The Glass Ceiling in the Legal Profession: Why do Law Firms Still have so Few Female Partners?’ 42 UCLA Law Review 1631. Fournier, V (1999) ‘The Appeal to “Professionalism” as a Disciplinary Mechanism’ 47 Sociological Review 280–307. Gabriel, K (2004) ‘Formulating Patriarchal Homosociality: Notes from India’ 9(1–2) NORMA International Journal for Masculinity Studies 45–60. Galanter, M and Palay, T (1991) Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago, University of Chicago Press). Galanter, M and Roberts, S (2008) ‘From Kinship to Magic Circle: the London Commercial Law Firm in the Twentieth Century’ 15 International Journal of the Legal Profession 143. Garlick, S (2018) The Nature of Masculinity: Critical Theory, New Materialisms and Technologies of Embodiment (Vancouver, UBC Press). Giazitzoglu, A and Muzio, D (2020) ‘Learning the Rules of the Game: How is Corporate Masculinity Learned and Enacted by Male Professionals from Nonprivileged Backgrounds?’ 28(1) Gender, Work and Organization 67. Gibb, F (2000) ‘Law “Still Biased towards Rich, White and Male”’ The Times 20 November. Glucksmann, M (1995) ‘Why “Work”? Gender and the “Total Social Organisation of Labour”’ 2(2) Gender, Work and Organization 63–75. Gottzén, L, Mellström, U and Shefer, T (eds) (2019) International Handbook of Masculinity Studies (London, Routledge). Gottzén, L and Straube, W (2016) ‘Trans Masculinities’ 11(3–4) NORMA: International Journal for Masculinity Studies 217–25. Groysberg, B and Abrahams, R (2014) ‘Manage Your Work, Manage Your Life’ 92 Harvard Business Review 58–66. Hagan, J and Kay, F (1995) Gender in Practice: A Study of Lawyers Lives (Oxford, Oxford University Press). Hanieh, A (2009) ‘Forum Hierarchies of a Global Market: the South and the Economic Crisis’ 83 Studies in Political Economy 61–84. Hanlon, G (1999) Lawyers, the State and the Market: Professionalism Revisited (Basingstoke, Macmillan). Hanlon, N (2012) Masculinities, Care and Equality: Identity and Nurture in Men’s Lives (Basingstoke, Palgrave Macmillan). Harvard Journal of Law and Gender (2010) ‘Special Issue on Law and Masculinities’ 33(2) Harvard Journal of Law and Gender. Harvey, D (2006) Spaces of Global Capitalism: Towards a Theory of Uneven Geographic Development (London, Verso Books). Haynes, T (2019) ‘Contradictory Consciousness: Men and Feminist Activism in the Caribbean’ in J Hearn, W Poster, and EV del Aguila (eds), Unsustainable Institutions of Men: Transnational Dispersed Centres, Gender Power, Contradictions (London, Routledge). Headworth, S, Nelson, RL, Dinovitzer, R and Wilkins, DB (eds) (2016) Diversity in Practice: Race, Gender and Class in Legal and Professional Careers (Cambridge, Cambridge University Press). Hearn, J (1993) ‘Emotive Subjects: Organizational Men, Organizational Masculinities and the (De) construction of “Emotions”’ in S Fineman (ed), Emotion in Organisations (London, Sage) 142–66.

168  Richard Collier —— (1996) ‘Is Masculinity Dead? A Critique of the Concept of Masculinity’ in M Mac an Ghaill (ed), Understanding Masculinities (Buckingham, Open University Press) 202–17. —— (1998) ‘Theorizing Men and Men’s Theorizing: Men’s Discursive Practices in Theorizing Men’ 27 Theory and Society 781–816. —— (2004a) ‘From Hegemonic Masculinity to the Hegemony of Men’ 5 Feminist Theory 49–72. —— (2004b) ‘Tracking “the Transnational”: Studying Transnational Organizations and Managements, and the Management of Cohesion’ 10 Culture and Organization 273–90. —— (2006) ‘From Masculinities Back to Men: Tracing Diverse Psychological, Social and Political Threads’ 8 Psychology of Women Section Review 38–52. —— (2010) ‘Reflecting on Men and Social Policy: Contemporary Critical Debates and Implications for Social Policy’ 30 Critical Social Policy 165–88. —— (2014) ‘Men, Masculinities and the Material(-)discursive’ 9(1) NORMA: International Journal for Masculinity Studies 6–24. —— (2015a) Men of the World: Genders, Globalizations, Transnational Times (London, Sage). —— (2015b) ‘Transnational Reflections on Transnational Research Projects on Men, Boys and Gender Relations’ 10(1–2) NORMA: International Journal for Masculinity Studies 86–105. Hearn, J and Piekarri, R (2005) ‘Gendered Leaderships and Leaderships on Gender Policy: National Context, Corporate Structures and Chief Human Resources Managers in Transnational Corporations’ 1 Leadership 429–54. Hearn, J and Pringle, K (2006) European Perspectives on Men and Masculinities. (Basingstoke, Palgrave Macmillan). Hearn, J and Howson, R (2019) ‘The Institutionalization of (Critical) Studies on Men and Masculinities: Geopolitical Perspectives’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) 19–31. Hearn, J, Biese, I, Choroszewicz, M and Husu, L (2016) ‘Gender Diversity and Intersectionality in Professions and Potential Professions’ in M Dent, IL Bourgeault, JL Denis and E Kuhlmann (eds), The Routledge Companion to the Professions and Professionalism (London, Routledge). Hearn, J, Bragojević, M and Harrison, K (eds) (2012) Rethinking Transnational Men (London, Routledge). Hearn, J, Piekkari, R and Jyrkinen, M (2009) Managers Talk about Gender: What Managers in Large Transnational Corporations Say about Gender Policies, Structures and Practices (Helsinki, Edita). Hearn, J, Poster, W and del Aguila, EV (eds) (2019) Unsustainable Institutions of Men: Transnational Dispersed Centres, Gender Power, Contradictions (London, Routledge). Held, V (2006) The Ethics of Care: Personal, Political and Global (Oxford, Oxford University Press). Hennessy, R and Ingraham, C (eds) (1997) Materialist Feminism: A Reader in Class, Difference and Women’s Lives (London, Routledge). Henriksson, HW (2019) ‘Exploring Fatherhood in Critical Gender Research’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) 320–31. Holter, OG (2009) ‘Power and Structure in Studies of Men and Masculinities’ 4 NORMA: International Journal for Masculinity Studies 132–50. Hopkins, P and Noble, G (2009) ‘Masculinities in Place: Situated Identities, Relations and Intersectionality’ 10 Social and Cultural Geography 811–19. Howe, A (2009) Sex, Violence and Crime: Foucault and the ‘Man’ Question (London, Routledge Cavendish). Howson, R (2005) Challenging Hegemonic Masculinity (London, Routledge). Howson, R and Hearn, J (2019) ‘Hegemony, Hegemonic Masculinity, and Beyond’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) 41–52. Hübinette, T (2019) ‘White Masculinity’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge) ch 12. Hunter, R, McGlynn, C and Rackley, E (eds) (2010) Feminist Judgments: From Theory to Practice (Oxford, Hart Publishing).

Men, Masculinities and the Legal Professions  169 International Bar Association (2019) Us Too? Bullying and Sexual Harassment in the Legal Profession (London, IBA). Jamieson, L (2011) ‘Intimacy as a Concept: Explaining Social Change in the Context of Globalisation or Another Form of Ethnocentrism?’ 16(4) Sociological Research Online 15. Johansson, T and Klinth, R (2008) ‘Caring Fathers: The Ideology of Gender Equality and Masculine Positions’ 11 Men and Masculinities 42–62. Kabesh, AT (2013) Postcolonial Masculinities: Emotions, Histories and Ethics (Aldershot, Ashgate). Kahn, JS (2009) An Introduction to Masculinities (Oxford, Wiley-Blackwell). Kay, F and Gorman, E (2008) ‘Women in the Legal Profession’ 4 Annual Review of Law and Social Sciences 299–332. Kilkey, M (2010) ‘Men and Domestic Labour: a Missing Link in the Global Care Chain’ 13 Men and Masculinities 126–49. Kimmel, M (2015) Angry White Men: American Masculinity at the End of an Era (New York, Nation). Kimmel, M, Hearn, J and Connell, RW (eds) (2004) Handbook of Men and Masculinities (London, Sage). Kugelberg, C (2006) ‘Constructing the Deviant Other: Mothering and Fathering at the Workplace’ 3 Gender, Work and Organization 152–73. Kumra, S (2015) ‘Busy Doing Nothing: an Exploration of the Disconnect between Gender Equity Issues Faced by Large Law Firms in the United Kingdom and the Diversity Management Initiatives Devised to Address Them’ 83 Fordham Law Review 2277–99. Law Society (2019) Male Champions for Change: the Case for Gender Equality in the Legal Profession (London, Law Society). Liong, M and Chan, LS (2019) ‘Men and Masculinities in Contemporary East Asia: Continuities, Changes, and Challenges’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge). Lohokare, M (2019) ‘Locating Critical Masculinities Theory: Masculinities in Space and Place’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge). Longlands, H (2020) Gender, Space and City Bankers (London, Routledge). Louie, K (2014) ‘Chinese Masculinity Studies in the Twenty First Century: Westernizing, Easternizing and Globalizing Wen and Wu’ 9(1–2) NORMA: International Journal for Masculinity Studies 18–30. Madrid, S (2013) ‘Getting into the Lives of Ruling Class Men: Conceptual Problems. Methodological Solutions’ in B Pini and B Pease (eds), Men, Masculinities and Methodologies (London, Palgrave Macmillan). —— (2017) ‘“The Good Night Kiss”: Fatherhood among Corporate Managers and the Reconfiguration of Hegemonic Masculinity in Chile’ 12(3–4) Norma: International Journal of Masculinity Studies 240–55. Marsiglio, W, Roy, K and Litton Fox, G (eds) (2005) Situated Fathering: A Focus on Physical and Social Spaces (Oxford, Rowman and Littlefield). Massey, D (2007) World City (Cambridge, Polity). McDowell, L (2010) ‘Capital Culture Revisited: Sex, Testosterone and the City’ 34 International Journal of Urban and Regional Research 652–58. McGinley, AC (2013) ‘Introduction: Men, Masculinities, and Law: A Symposium on Multidimensional Masculinities Theory’ 13 Nevada Law Journal 315. McGlynn, C (1998) The Woman Lawyer (Oxford, Oxford University Press). McMahon, A (1999) Taking Care of Men: Sexual Politics in the Public Mind (Cambridge, Cambridge University Press). Mellstrom, U (2016) ‘In the Time of Masculinist Political Revival’ 11 NORMA: International Journal for Masculinity Studies 135–39. —— (2017) ‘A Restoration of Classic Patriarchy?’ 12 NORMA: International Journal for Masculinity Studies 1–5.

170  Richard Collier Menkel-Meadow, C (1989) ‘Feminization of the Legal Profession: The Comparative Sociology of Woman Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 196–255. Messerschmidt, J (2018) Hegemonic Masculinity: Formulation, Reformulation, and Amplification (Rowman & Littlefield). Messerschmidt, J, Messner, MA, Connell, RW and Yancye Martin, P (eds) (2018) Gender Reckonings: New Social Theory and Research (New York, New York University Press). Middleton, P (1992) The Inward Gaze: Masculinity and Subjectivity in Modern Culture (London, Routledge). Miller, T (2011) Making Sense of Fatherhood: Gender, Caring and Work (Cambridge, Cambridge University Press). Morgan, D (1996). Family Connections: An Introduction to Family Studies (London, Polity). Mossman, MJ (2006) The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions (Oxford, Hart Publishing). Muzio, D (2004) ‘The Professional Project and the Contemporary Re-Organization of the Legal Profession in England and Wales’ 11 International Journal of the Legal Profession 33–51. Muzio, D and Tomlinson, J (2012) ‘Researching Gender and Diversity in Contemporary Professions and Professional Organizations’ 19 Gender, Work and Organization 455–66. Nagar, R, Lawson, V, McDowell, L and Hanson, S (2002) ‘Locating Globalization: Feminist (Re)readings of the Subjects and Spaces of Globalization’ 78(3) Economic Geography 257. Nevada Law Journal (2013) ‘Special Issue: Men, Masculinities and Law: A Symposium on Multidimensional Masculinities Theory’ 13(2) Nevada Law Journal. Norris, P and Inglehart, R (2019) Cultural Backlash: Trump, Brexit and Authoritarian Populism (Cambridge, Cambridge University Press). Ouzgane, L and Morrell, R (eds) (2005) African Masculinities: Men in Africa from the Late Nineteenth Century to the Present (New York, Palgrave Macmillan). Pease, B (2000) Recreating Men: Postmodern Masculinity Politics (London, Sage). Peretz, T (2019) ‘Trends and Trajectories in Engaging Men for Gender Justice’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge). Petersen, A (1999) Unmasking the Masculine: Men and Identity in a Sceptical Age (London, Sage). Perrons, D (2015) ‘Gender Inequality in Times of Inequality, Crisis and Austerity: Towards Gender Sensitive Macroeconomic Policies’ in F Bettio and S Sansonetti (eds), Visions of Gender Equality (Luxembourg, European Commission). Pinnington, A and Sandberg, J (2013) ‘Lawyers Professional Careers: Increasing Women’s Inclusion in the Partnership of Law Firms’ 20 Gender, Work and Organization 616–31. Plickert, G and Hagan, J (2011) ‘Professional Work and the Timing of Family Formation among Young Lawyers in US and German Cities’ 18 International Journal of the Legal Profession 237–61. Podmore, D and Spencer, A (1982) ‘Law as a Sex Typed Profession’ 9 Journal of Law and Society 21–36. Poster, W (2013) ‘Subversions of Techno-Masculinity: Indian ICT Professionals in the Global Economy’ in J Hearn, M Bragojević and K Harrison (eds), Rethinking Transnational Men (London, Routledge). Ranson, G (2012) ‘Men, Paid Employment and Family Rresponsibilities: Conceptualizing the “Working Father”’ 19 Gender, Work and Organization 741–61. Ratele, K (2014) ‘Currents against Gender Transformation of South African Men; Relocating Marginality to the Centre of Research and Theory of Masculinities’ 9 NORMA: International Journal for Masculinity Studies 30–45. —— (2019) ‘African and Black Men and Masculinities’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge). Reeser, T (2010) Masculinities in Theory: An Introduction (Oxford, Blackwell). Reeser, T and Gottzén, L (2018) ‘Masculinity and Affect: New Possibilities, New Agendas’ 13 NORMA: International Journal for Masculinity Studies 145–58. Rhode, D (2001) Balanced Lives: Changing the Culture of Legal Practice (Chicago, American Bar Foundation).

Men, Masculinities and the Legal Professions  171 Richardson, D, McLaughlin, J and Casey, M (eds) (2006) Intersections Between Feminism and Queer Theory (London, Palgrave). Robertson, S, Monaghan, L and Southby, K (2019) ‘Disability, Embodiment and Masculinities: a Complex Matrix’ in L Gottzén, U Mellström and T Shefer (eds), International Handbook of Masculinity Studies (London, Routledge). Rudy Cooper, F and McGinley, AC (eds) (2012) Masculinities and the Law: A Multidimensional Approach (New York, New York University Press). Ruspini, E and Crespir, I (2016) Balancing Work and Family in a Changing Society: The Fathers’ Perspective (London, Palgrave). Sachs, A and Hoff Wilson, J (1978) Sexism and the Law: A Study of Male Beliefs and Judicial Bias (Oxford, Martin Robertson). Sandberg, J and Pinnington, A (2009) ‘Professional Competence as Ways of Being: An Existential Ontological Perspective’ 46 Journal of Management Studies 1138–70. Sassen, S (2001) The Global City: New York, London, Tokyo, 2nd edn (Princeton, Princeton University Press). —— (2014) Expulsions: Brutality and Complexity in the Global Economy (London, Belknap Press). Schultz, U and Shaw, G (eds) (2003) Women in the World’s Legal Professions (Oxford, Hart Publishing). —— (2013) Gender and Judging (Oxford, Hart Publishing). Schultz, U, Shaw, G, Thornton, M and Auchmuty, R (eds) (2021) Gender and Careers in the Legal Academy (Oxford, Hart Publishing). Smart, C (1989) Feminism and the Power of Law (London, Routledge). —— (1992) ‘The Woman of Legal Discourse’ 1 Social and Legal Studies 29–44. Sommerlad, H (1996) ‘The Myth of Feminization: Women and Cultural Change in the Legal Profession’ 1 International Journal of the Legal Profession 31. —— (2002) ‘Women Solicitors in a Fractured Profession: Intersections of Gender and Professionalism in England and Wales’ 9 International Journal of the Legal Profession 213. —— (2007) ‘Researching and Theorizing the Processes of Professional Identity Formation’ 34 Journal of Law and Society 190–217. —— (2011) ‘The Commercialisation of Law and the Enterprising Legal Practitioner: Continuity and Change’ 18 International Journal of the Legal Profession 73–108. —— (2012) ‘Minorities, Merit, and Misrecognition in the Globalized Profession’ 80 Fordham Law Review 2481–2512. —— (2015a) ‘The “Social Magic” of Merit: Diversity, Equity and Inclusion in the English and Welsh Legal Profession’ 83 Fordham Law Review 2325–47. —— (2015b) ‘The New “Professionalism” in England and Wales: Talent, Diversity and a Legal Precariat’ in S Headworth, R Nelson, R Dinovitzer and D Wilkins (eds), Rhetoric and Reality (Cambridge, Cambridge University Press). —— (2016) ‘“A Pit to Put Women In”: Professionalism, Work Intensification, Sexualisation and Work-life Balance in the Legal Profession in England and Wales’ 23 International Journal of the Legal Profession 61–82. Sommerlad, H, Harris-Short, L, Vaughan, S and Young, R (eds) (2015) The Futures of Legal Education and the Legal Profession (Oxford, Hart Publishing). Sommerlad, H and Sanderson, P (1998) Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (Aldershot, Ashgate). Sommerlad, H, Webley, L, Duff, L, Muzio, D and Tomlinson, J (2010) Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barriers and Individual Choices (London, Legal Services Board/University of Westminster). Thornton, M (1989) ‘Hegemonic Masculinity and the Academy’ 17 International Journal of the Sociology of Law 115–30. —— (1996) Dissonance and Distrust: Women in the Legal Profession (Oxford, Oxford University Press). —— (1998) ‘Authority and Corporeality: the Conundrum for Women in Law’ 6 Feminist Legal Studies 147.

172  Richard Collier —— (1994) ‘Discord in the Legal Academy: The Case of the Feminist Legal Scholar’ 3 Australian Feminist Law Journal 53. —— (2004) ‘Neoliberal Melancholia: The Case of Feminist Legal Scholarship’ 20 Australian Feminist Law Journal 7–22. —— (2011) Privatising the Public University: The Case of Law (London, Routledge). —— (2013) ‘The Mirage of Merit: Reconstituting the “Ideal Academic”’ 28 Australian Feminist Studies 127. —— (2014) ‘Hyper-Competitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms’ 17 Legal Ethics 153–76. —— (2015) Through a Glass Darkly: The Social Sciences Look at the Neoliberal University (Canberra, Australian National University Press). —— (2016a) ‘The Flexible Cyborg: Work-Life Balance in Legal Practice’ 38 Sydney Law Review 1–21. —— (2016b) ‘Work/Life or Work/Work? Corporate Legal Practice in the Twenty-First Century’ 23 International Journal of the Legal Profession 13–39. —— (2016c) ‘Squeezing the Life out of Lawyers: Legal Practice in the Market Embrace’ 25 Griffith Law Review 471–91. —— (2016d) ‘Law Student Wellbeing: A Neoliberal Conundrum’ 58(2) The Australian Universities Review 42–50. —— (2020) ‘Who Cares? The Conundrum for Gender Equality in Legal Practice’ 43 UNSW Law Journal 1473–93. Thornton, M and Bagust, J (2007) ‘The Gender Trap: Flexible Work in Corporate Legal Practice’ 45 Osgoode Hall Law Journal 773–811. Thym, A (2019) ‘Hegemony Self-Critique: How Men in Finance Question Aspects of Masculine and Economic Hegemony from Within’ in J Hearn, W Poster and EV del Aguila (eds), Unsustainable Institutions of Men: Transnational Dispersed Centres, Gender Power, Contradictions (London, Routledge). Tienari, J, Vaara, E and Meriläinen, S (2010) ‘Becoming an International Man: Top Manager Masculinities in the Making of a Multinational Corporation’ 29(1) Equal Opportunities International 38–52. Travis, J (2005) Wounded Hearts: Masculinity, Law and Literature in American Culture (Aldershot, Ashgate). United Nations (2014) HeforShe: A Solidarity Movement for Gender Equality www.heforshe.org/. —— (2020) Tackling Social Norms: A Game Changer for Gender Inequalities (New York, United Nations) hdr.undp.org/en/GSNI. Vijayan, PK (2019) ‘The Ends of Imagination: Hindu Nationalism, Masculine Networks and Political Transformation’ in J Hearn, W Poster and EV del Aguila (eds), Unsustainable Institutions of Men: Transnational Dispersed Centres, Gender Power, Contradictions (London, Routledge). Wald, E (2010) ‘Glass Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes and the Future of Women Lawyers at Large Law Firms’ 78 Fordham Law Review 2245–88. Wallace, J (2006) ‘Work Commitment in the Legal Profession: A Study of Baby Boomers and Generation Xers’ 13 International Journal of the Legal Profession 137–51. Webley, L (2015) ‘Legal Professional De(Re)Regulation, Equality, and Inclusion, and the Contested Space of Professionalism within the Legal Market in England and Wales’ 83 Fordham Law Review 2349–67. Webley, L and Duff, E (2007) ‘Women Solicitors as a Barometer for Problems in the Legal Profession – Time to Put Values before Profits’? 34 Journal of Law and Society 374–402. Wells, C (2001) ‘Working Out Women in Law Schools’ 21 Legal Studies 116. Whitehead, S (1999) ‘Hegemonic Masculinity Revisited’ 6 Gender, Work and Organization 58–62. —— (2002) Men and Masculinities: Key Themes and New Directions (Cambridge, Polity). Wimmer, A and Schiller, NG (2002) ‘Methodological Nationalism and Beyond: Nation-State Building, Migration and the Social Sciences’ 2 Global Networks 301–34. Witz, A (1992) Professions and Patriarchy (London, Routledge). Wojinicka, K and Pustulka, P (2017) ‘Migrant Men in the Nexus of Space and (Dis)empowerment’ 12(1–2) NORMA: International Journal for Masculinity Studies 89–96.

8 Race, Ethnicity and the Legal Profession1 HILARY SOMMERLAD, ANGELA MELVILLE, LISA HANSON, SAMEER ASHAR, MEERA DEO AND MARIJKE TER VOERT

I. INTRODUCTION

Hilary Sommerlad

T

he Black Lives Matter (BLM) movement has underlined the extent to which we inhabit a ‘racialised  … world in which material and symbolic resources continue to be deeply unequally distributed’ (Hall 20062). BLM has also highlighted the pivotal role of law generally, not just the criminal justice system, in producing and sustaining that racialised world (Akbar 2018; Butler 2016: 1458–66). Law’s conceptual categories and schema inform the construction, communication, and interpretation of social relations (Silbey 2005), enacting and legitimating the unequal distribution of material and symbolic resources. Yet the law is also a site of struggle and source of the tools for challenging archetypal cultural categories – while determining the terms of contestation (Merry 1995: 20). This double-sided and hence indeterminate character of law, which operates on an ‘ethical, emotional or political basis’ rather than according to general norms (Weber 1994: 204), highlights the significance of practitioners’ identity (ethnicity, gender and class) (Menkel-Meadow 1985: 57). The underlying status order is reflected in (and reinforced by) the d ­ ifficulties which ‘outsider’ groups encounter in entering and remaining in the profession and moving up its hierarchy (Gorman and Kay 2010; Sommerlad et al 2013). These difficulties are not merely material but also result from the profession’s totalising culture (Goffman 1961) which, subalternising those who do not resemble the norm (even while demanding acceptance of its foundational claims of impartiality), affects practitioners’ sense of self, values and behaviour (Fanon 2008: 83–86). Racial identification and subjectivisation entail simultaneous hyper-visibility and ­invisibility (Buchanan and Settles 2019), while professional socialisation (training for h ­ ierarchy: Kennedy 1982) places pressure on ‘outsiders’ to do ‘identity work’ to counteract negative ­stereotypes and expectations (Carbado and Gulati 2003). 1 With the twentieth century scientific refutation of biogenetically distinct peoples, understanding race as an invention of Western imperialism became scholarly orthodoxy. But although race is a somatic index and ethnicity is grounded in cultural practices, there is little consensus about the boundaries of each classification (Bloch and Solomos 2010: 4), and the terms tend to be used interchangeably as signifiers of hierarchical categorical identities (Szwed 1975: 20–21). 2 Stuart Hall’s comments are cited by Claire Alexander (2009: 474); she explains that they were made in a seminar on ethnicity and identity, held in June 2006 as part of the ESRC’s programme on Identities and Social Action, but does not include a citation in her references.

174  Hilary Sommerlad et al A.  Law, Race, Ethnicity and Colonialism Weber (1978: 395) noted the vernacular origins and shifting associations of the terms race and ethnicity, rendering precise definitional distinctions problematic. As relational constructs, they require a social processual and dynamic analysis which focuses on how they function in social practices of differentiation and closure (ibid: 28) in complex stratified societies – both in terms of minoritised ethnic groups’ opportunities to enter and progress within the profession and their access to legal remedies for the social ills they experience. Weber hints at the role of economic circumstances in crystallising cultural differences into ethnic group identity (ibid: 388); and his writing on monopolistic closure indicates how groups may actively seek to control occupational and social goods (Hechter 1976: 1164). The legal profession could be regarded as an ideal type of ethnic, class and gender closure – though understanding the means by which this is achieved requires a more nuanced theory of social fields. Weber (1978: 341–42) describes the process of closure as follows: one group of competitors takes some externally identifiable characteristic of another group of (actual or potential) competitors – race, language, religion, local or social origins, descent, residence, etc. – as a pretext for attempting their exclusion. … [the purpose of] this monopolization … is always the closure of social and economic opportunities to outsiders.

This position is developed by Barth’s (1969: 14–15) argument that ethnic identity is the product of ascriptive boundaries, creating categories that ‘provide an organizational vessel that may be given varying amounts of content in different socio-cultural systems’. Once the boundary is established, the ‘cultural stuff’ it encloses furnishes the symbolic means for mobilising an ‘imagined community’ as a form of identification (Anderson 1991). This process of identification (and the categorisation of ‘others’ as outsiders) occurs at different levels of granularity, moving outwards from the locality and region to the nation and supra-national categories based on a common language and beliefs about shared origins and culture. Dominant ethnic identities are equated with the core of the community or nation, subordinated ones located at its peripheries, and others despised and ostracised – a status order that depends on maintaining increasingly rigid boundaries (Tatum 2003: 22). The Spanish and Portuguese conquest of the Americas systematised these boundaries, creating a racially hierarchical political economy grounded on ‘a civilized “Europe” and later “the West” which … shared an imperial comity over and against certain “others”’ (Fitzpatrick 1992: 113). Consequently, although slave economies and some ‘racial’ categories (eg Jews) antedated European imperialism, its global social, economic, political and cultural transformations produced new configurations of ethnicity, race and nationalism, shaped by conceptualisations of humanity as a racial hierarchy, with race understood as a unitary, inherited characteristic combining phenotype and ancestry. This ‘biological’ racism apparently distinguishes it from ethnicity, but in practice, as Barth implies, groups’ biological, phenotypical or genetic features are intermeshed with their ethnic, cultural traits and then naturalised. As a result, the racism produced by colonialism was always concerned with cultural competences (Stoler and Lambert 2014), while the cultural hierarchies implicit in the concept of ethnicity could be no less rigid and determinist. Enlightenment thought – including the conceptualisation of civility as the basis for rational debate (Thomas 2018) and scientific discoveries of human diversity (Bancel et al 2014: 11) – nurtured this ‘culturalist racism’ (Lentin 2018) and its hierarchies.3 The formulation of the 3 However Malik (2008) argues that even conservative Enlightenment thinkers doubted claims about racial inferiority; he associates hierarchical racial typologies with Romanticism, particularly Herder’s stress on cultural uniqueness.

Race, Ethnicity and the Legal Profession  175 Western subject as self-determining, disciplined and individual (Fitzpatrick 1992: 130) and non-whites as irrational, undisciplined, in a state of nature, was generated by the essentialising discourses of biological and cultural difference.4 The parallel construction of the modern state and its key institutions in racial terms (Hall et al 1978; Makdisi 2014; Balibar 1990) depicted Western cultures as uniquely dynamic engines of progress, characterised by secular forms of political power, authority and legitimacy. By contrast non-European societies were identified with stasis5 or stagnancy and decay,6 mired in superstition and tradition, their lawlessness7 or (in the case of ‘Oriental despotism’) arbitrariness (Ferguson 1966: 103) justifying occupation and settlement. The slave trade exemplifies law’s pivotal role in racial capitalism (Robinson 1983), stimulating the development of maritime law, banking and insurance.8 Law also transmitted Western moral values and provided the tools for colonial domination9 – whether through the British technique of indirect rule or the French system of assimilation – and for the resource extraction that continues today. The synchronous and mutually constitutive development of the modern legal profession, business law and the global capitalist order were central to the ‘axial division of labour …. the core-periphery antinomy’ (Wallerstein 1991: 79), its functioning enabled by the legal devices (most notably Western forms of property ownership) developed by lawyers as capital’s conceptive ideologists (Cain 1994). Law also regulated shifts in relations between dominant and subaltern groups (Shohat 1992: 101), stimulated by the global transportation of labour (both slave and free) and the articulation of capitalist with pre-capitalist modes of production and consequent use of pre-modern forms of social ordering and differentiation (eg caste). A system of rules allocated hierarchies of subordinated ethnic groups to production, distribution, and consumption (Alonso 1994: 393–94), allowing articulation in some sectors but preventing interaction in others (Barth 1969: 16–17). The mix of regulatory forms included indentured labour and master-servant law, and archaic residential restrictions, exemplified by the Jewish ghetto. Kenya (Kamau Vol 1, ch 24) and Nigeria exemplify how this racially stratified legal field drew on different temporalities, with native tribunals applying customary law to Indigenous Africans, reserving modern (English) legal institutions to British settlers and the Asian business community, thereby shielding imperial commercial interests from Indigenous legal challenge (Oguamanam and Pue 2007).10 Similarly complex forms of legal pluralism and racial hierarchy were developed to regulate the importation of millions from the Indian subcontinent and China into Burma. Through such techniques, colonial peoples were ‘tribalized, ethnicized, and racialized’ (Comaroff 2006: 307), perpetuating the need for the West’s ‘civilising mission’. The development in the 1870s (coterminous with the second wave of imperialism) of the Social Darwinist allocation of races to a mental and moral hierarchy,11 and its permeation of social, cultural and political fields, bolstered these justifications for transgressing law’s claimed universalism: since the unique cultural, genetic and biological identities of different 4 The extent to which legal personhood was denied to the colonised varied; for instance, while in principle slaves had no legal personhood they could sometimes act as plaintiffs and defendants and be held criminally responsible. 5 Such as the Indigenous cultures of the Americas and Australasia. 6 Karl Marx saw Asia as an unchanging ‘vegetative’ place (Ahmed 1992: 224). 7 Austin (1863: 85) described the colonised as in need ‘of positive law; of legal right; of legal injury’. 8 This is not to overlook the fact that slavery has been historically prevalent around the globe, nor the engagement of Black African and Arab traders in the ‘modern’ slave trade. 9 Legalism was both central to the civilising mission discourse and the mechanism for buttressing despotic rule (Sharafi 2007). 10 In Nigeria, by the 1920s, the British moved from military to civilian forms of rule, consolidating colonial control founded on law, specifically the English legal system (Ibhawoh 2007: 57). 11 Building on earlier ‘scientific’ ethnologies such as phrenology, eg the development in the 1830s and 40s of ­craniometry by Samuel Morton in the US and Friedrich Tiedemann in Germany.

176  Hilary Sommerlad et al ‘races’ destined them to their social places and economic roles, imperialism was the ‘natural’ order (Renan 1871: 390–91).12 Classifying groups along a spectrum also made it possible to position some – who often enjoyed high status before colonisation – as ‘native’ compradors or administrators (Geertz 1993: 236–37). The ambiguous subject position of such groups is reflected in their relationship to the colonial legal profession. The promise of universality and hence formal equality generated opportunities for individual advancement, which many group members seized. In Indonesia these lawyers, mostly drawn from the Javanese aristocracy, trained in the Netherlands and were devoted to Dutch legal institutions and codes (Kouwagam and Bedner Vol 1, ch 37). Such devotion benefited the colonial order, either stunting aspirations for independence or confining them to legal strategies – for instance, using law in pursuit of internal state consolidation, ‘modernisation’ and secularisation (Oguamanam and Pue 2007). In this history of collaboration with the colonial power, ‘sealed by the marriage of law and literacy’ (Shamir 2001: 109), such lawyers can be regarded as intellectual middlemen, evoking Fanon’s (2000: 34–35) depiction of native intellectuals, identifiable by their ‘closeness to the colonist with regard to the universal abstract’ and their collusion with oppressive power structures (ibid: 27, 85). Yet the duality of law, its language of rights and the social contract, were also deployed in the anti-colonial struggle, supporting the interpretation of lawyers as key players in the rise of liberal, democratic values (Halliday and Karpik 1997). The tension between assimilation and resistance is exemplified by such leading figures in the Indian independence movement as Gandhi, Nehru, Ambedkar and Jinnah, all London-trained barristers. B.  Post-Colonialism and the Contemporary Diversification of the Profession The demise of formal colonialism13 contributed to the post-war expansion of human rights law and institutions. The Universal Declaration of Human Rights became an important component of nationalist rhetoric, and the 1963 UN Declaration on the Elimination of All Forms of Racial Discrimination proclaimed biological ideas of race as lacking scientific basis. However they did not disappear; furthermore, culturalist racial discourses persisted. Although independent nations sought to develop a new identity, power was generally retained by major players in the colonial administration, including lawyers, drawn from dominant ethnic groups. As a result, the ‘dense assemblage of cultural, racial, local and linguistic categories of self-identification’ (Geertz 1993: 239) and external identification (Barth 1969), produced (or perpetuated) and instrumentalised by colonialism, not only survived independence but also was used to construct patrimonial states based on denying the linguistic and religious specificities of minority groups. For instance, the legacy of race-based thinking in Burma generated a nativist social framework, with citizenship tied to Burmese ‘races’. The post-colonial legal fields exemplify this persistence of colonial racial hierarchies. Despite the significance of independent legal professions for nation building projects and the transformation of some formerly peripheral societies into global powers (most notably Brazil, Russia, India and China), with their own increasingly powerful corporate law firms, globalisation has effectively re-colonised formally independent legal fields. Anglo-American

12 ‘Nature has made a race of workers, the Chinese race, who have wonderful manual dexterity, and almost no sense of honour; govern them with justice, levying from them, in return for the blessing of such a government, an ample allowance for the conquering race, and they will be satisfied’ (Renan 1871: 390). 13 Between 1945 and 1968, 66 countries attained political independence.

Race, Ethnicity and the Legal Profession  177 multi-nationals across the world have positioned Indigenous lawyers as cultural intermediaries whose subaltern role is to negotiate transnational relationships (Dezalay and Garth 2011) and undertake routine piecework,14 thereby evading bans on practice by foreign lawyers (see Vol 1, eg Kamau, ch 24; Uzebu-Imarhiagbe, ch 25). The Global South’s legal fields are thus key sites in this latest stage of imperialism. Yet globalisation, with the accompanying phenomena of migration and diasporic communities, has also stimulated professional diversification and social justice struggles. The periphery’s growing economic power has obliged large corporate firms to recruit a more diverse, culturally competent workforce – including in the West, where some corporate clients expect greater diversity in their lawyers. Concurrently, the expansion and partial democratisation of higher education throughout the world during the last 30 years (see Volume 1) has produced some racial and ethnic diversification of the profession’s supply base. Meanwhile, the profession’s dramatic growth and the erosion of its traditional forms, the commercialisation and industrialisation of large firm practice, and the (fictive) discourse of meritocracy, have enabled minoritised groups to use formal qualifications to gain access, and also to develop alternative, radical forms of practice aimed at challenging ‘natural’ hierarchies. These developments are especially apparent in white settler and metropolitan countries, whose increasing multiculturalism due to the massive population flows from former colonies (Magubane 2004) has produced ‘new articulations of “the local” and “the global” that cannot be mapped within the terms of nations and national cultures’ (Hall 2017: 116). Pressure for social inclusion has, on one hand, generated business case Diversity and Inclusion (D & I) initiatives and, on the other, reinforced law’s social justice aspiration. Civil rights struggles accelerated in the twentieth century in both metropolitan societies and colonies still struggling for independence (see eg Bonelli and Fortes Vol 1, ch 19 for discussion of access to justice; Kim Vol 1, ch 40 on the pivotal role played by lawyers in the candlelight revolution against state authoritarianism). Their use of law has been supported by critical scholarship (eg Hall et al 1978; Matsuda 1987; Lawrence 1990) that builds on pioneering (eg du Bois 1903; Cox 1948; Freire 1972) and post-colonial scholarship (eg Said 1978; Spivak 1988), emphasising the salience of race to law. This literature has focused on the symbolic violence against the ‘other’ represented by law’s universalisation and impartiality (Cornell 1987–1988: 1591), while also echoing Barth’s insights that social categories are relational constructs and thus mutable. Concurrently, empirical research has highlighted how exclusionary professional structures and practices shape the careers of minoritised groups (eg Payne-Pikus et al 2010 on the US) and how labour market privilege/penalty is mediated by multiple, intersecting axes of subordinated categories (Greenman and Xie 2008). As Volume 1’s reports reveal, although some countries have adopted quotas to widen access, students from minoritised and economically disadvantaged groups are generally concentrated in low-status schools, legitimising the asymmetrical terms of their inclusion in the profession. Germany typifies the metropolitan pattern: the few children of the Gastarbeiter (guest workers recruited in the 1960s–80s) who had entered the profession generally practised alone or in small firms. Such lawyers are able to use their linguistic and cultural competence to provide their ethnic communities with access to justice; however, these communities’ marginalisation reinforces that of their lawyers. Meanwhile we have the ‘third generation’, and there

14 Facilitated by technological developments that enabled the decomposition, economisation and commodification of professional work (Susskind 2013).

178  Hilary Sommerlad et al is some increase in lawyers with ‘migration background’. Even non-white lawyers who belong to the majority ethnic group in former colonies can experience marginalisation. Trinidad and Tobago is exemplary: Afro- and Indo-Trinidadians constitute 80 per cent of the population but were excluded from the profession and are still under-represented (Anisette 2000). Similarly, in South Africa the aim of increasing black representation in the profession (enshrined in the constitution) has been subordinated to the demands of the global economy (Matthews and Samaradiwakera-Wijesundara 2015). Despite changes in the Brazilian profession’s demography, black lawyers have fewer opportunities than whites, and favela residents are unlikely to become members of the legal elite (Bonelli and Fortes Vol 1, ch 19). Racial segregation of Chilean higher education and the professions is demonstrated by the fact that the 50 most common family names of lawyers are of European origin, while the 50 family names that never occur are overwhelmingly Indigenous (United Nations Development Programme 2017, cited in Hersant, ch 12, below). The classical profession’s formation within the structural and historical parameters of the imperial order, shaped for and by distinctively raced collectivities, and the status aspirations of its project are major factors in persistent racialised closure. The determination to maintain high status is pursued through informal exclusionary mechanisms, including homosocial activities and networks of patronage (McGuire 2002). Outsiders’ ignorance of ‘the rules of the game’ (Bourdieu and Wacquant 1992: 97) combined with elites’ ‘misrecognition’ of their capacity to enact them (Sommerlad 2015) justify their confinement to sub-professional roles. There is thus mutual reinforcement between the identities of the power-holder and the outsider, articulated through the mechanism of merit and need to ‘fit’ (creating ‘the homogeneity incentive’ Carbado and Gulati 2003: 1765–66). The difficulty of describing and analysing such complex and shifting phenomena as race and ethnicity is accentuated by the multiple axes of differentiation (Brah and Phoenix 2004) which extend beyond ethnicity, gender, class and sexuality to encompass family structure, education, religion and migrant status. Yet it is still possible to speak of the ‘matrix of domination’ – the complex system of interlocking differentiators of oppression (Collins 2000) established in the colonial era which continues to shape the experience of ‘non-normative’ ethnic groups in the contemporary profession. We consider that experience in six jurisdictions chosen to underline the significance of the colonial era in establishing contemporary ethnic and racial hierarchies: the white settler colonies of Australasia and Canada and the USA, which developed their own internal colonies, and England and Wales and the Netherlands, as major imperial powers with substantial diasporic communities. II.  INDIGENOUS LAWYERS: AUSTRALIA, CANADA AND NEW ZEALAND

Angela Melville and Lisa Hanson The experiences of Indigenous lawyers in the British white settler nations of Australia, Canada and New Zealand exemplify colonialism’s role in constructing racialised identities. All three societies appeared to epitomise wild disordered nature, their untamed, savage inhabitants irredeemably different from the Western hyper-rational, abstract, disciplined legal subject. Thus, although their histories have some significant differences, each society exemplifies imperialism’s civilised/savage nexus and the centrality of law to expropriation, with physical and cultural dispossession justified through the denial of Indigenous people’s capacity

Race, Ethnicity and the Legal Profession  179 for legal subjectivity.15 This denial underpinned the exclusion/assimilation dichotomy, which has persisted beyond the end of the colonial era, contouring the experience of contemporary Indigenous lawyers. The British declaration (in 1788) that Australia was terra nullius (‘land belonging to no-one’) encapsulated the view of Indigenous society as lacking history and hence enlightenment, whose dispossession required neither treaty nor compensation. The denial of Indigenous people’s basic humanity (Simpson 1993) continued to form the legal basis for their dispossession, social exclusion and policies of forced assimilation, which, through ‘protection legislation’, continued until the late 1960s, legalising the removal of Indigenous children from their families.16 Indigenous peoples were only enfranchised in 1967, and the terra nullius doctrine was only overturned in 1982, in a judgment which ruled that Australian common law’s denial of Indigenous people’s subjectivity had violated international human rights.17 However, although the judgment also introduced the doctrine of native title, this is extremely limited, and there is still no recognition of Indigenous people in the Australian Constitution (Simpson 1993). While there are many parallels between Australia’s colonial history and that of Canada,18 especially in their policies of assimilation and protection, Canada differed in its initial recognition of the rights of First Nation peoples. In 1763, France ceded most of its Canadian settlements to Britain, and in 1793 a Royal Proclamation established the basis for recognition of Indigenous people’s rights to land and resources. However, later legislation increased and, through the Indian Act (1876), consolidated colonial control of First Nations people (Baker 1972). This ‘civilising’ policy empowered government to decide whether someone had Indian status, to control the use of Indian lands and resources, and to determine Indian children’s education. The incongruence between Indigeneity and ‘civilised’ personhood was epitomised by the Act’s stipulation that Indigenous people could become lawyers only by renouncing Indigenous status, preventing them from living on a reserve, voting for a Chief, or inheriting Indigenous land. Indigenous Canadians could not even hire lawyers until 1951 (Griner 2013). The Treaty of Waitangi established the relationship between Indigenous people and the colonial state in New Zealand. The English and Māori texts differ. In English, the treaty cedes ‘all rights and powers of sovereignty’ to the Crown, whereas the Māori text grants only governance rights. The British used these discrepancies to either circumvent the treaty or ignore Māori rights altogether. A.  The Under-Representation of Indigenous Lawyers The racial formations established by the colonial histories of Australia, Canada and New Zealand have largely endured. Thus, although Indigenous people share some experiences 15 Colonial discourse defines Indigenous identity largely in terms of biological descent (ie categoriies of ‘full’ or ‘half blood’), from which flow concepts of citizenship and property (Turner 2004). For Indigenous people, however, Indigenous identity is primarily defined by culturally defined kinship and affinal relationships, which include relationships with the land and participation in community and cultural activities. 16 The devastating consequences of the Stolen Children generation for Indigenous communities are well-documented (Australian Human Rights Commission 1997). 17 Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court. It also granted Eddie Koiki Mabo and four other Indigenous Meriam people ownership of their traditional lands. 18 The French established the colony of New France in 1534; and the first British settlement at St John’s in Newfoundland was in 1583. Both colonisers then attempted to secure military control through alliances with the Indigenous people.

180  Hilary Sommerlad et al of discrimination with other minoritised groups, their exclusion is uniquely grounded in the ­colonial discourse of their incompatibility with full (civilised) personhood. But despite the law’s pivotal role in effecting and legitimating the (ongoing) dispossession of Indigenous peoples (Watson and Harris 2004), its transformative potential has attracted them to the legal profession (Phillips 2012: 63). However, persistent discrimination and disadvantage have shaped their professional experience, as reflected in their under-representation. In 2016, 1.2 per cent of Australian solicitors identified as Indigenous (Urbis 2017: 7) compared to 2.77 per cent of the population (ABS 2018); in British Columbia in 2012, only 1.5 per cent of lawyers were Indigenous compared to 4.6 per cent of the population (Griner 2013); while in Ontario in 2016, 1.4 per cent of the legal profession identified as Indigenous, compared to 2.3 per cent of the population in the 2011 census (Equity and Aboriginal Issues Committee 2015: 27). In New Zealand in 2015, 2.62 per cent of solicitors and barristers identified as Māori, compared to 15.3 per cent of the population (Adlam 2016). The barriers to becoming – and working as – a lawyer start well before law school. The colonial legacy (eg deprivation) shapes Indigenous experiences of education but is overlooked in official policy, which attributes under-representation in law schools to the failure to obtain the requisite grades (Nikora et al 2002: 1; Mikaere 2011; Watson and Harris 2004) and assimilate (Wood 2011). Once in law school, Indigenous students in Australia (Behrendt et al 2012), New Zealand (Mikaere 2011) and Canada (Monture 1990) report an overwhelming sense of social and cultural alienation, leading to above-average withdrawal rates (Douglas 2001: 2). As Monture (1990: 198) argues ‘[t]he stark reality … for First Nations is that our education has not been about access to opportunities, but about forced assimilation to a different and foreign world view’. Since this entails accepting a legal system that rejects Indigenous knowledge and is responsible for their dispossession, there have been increasing calls for a legal curriculum that ‘changes the norms to deconstruct racial, social, and cultural dominance in the context of colonized space’ (Darlaston-Jones et al 2014: 1) and unmasks how knowledge is socially constructed, mediated by power relations, and aggravates rather than alleviates social injustices (Jones 2009). However, incorporation of Indigenous knowledge into the university curriculum has been largely limited to optional topics (Behrendt et al 2012). B.  The Everyday Lives of Indigenous Lawyers Discrimination and closure also shape the passage of Indigenous law graduates into the profession and their subsequent careers. In Ontario, Indigenous lawyers earn less than white lawyers of the same age and are more likely to be associates and employees and less likely to be partners. The systemic disadvantage they suffer (Equity and Aboriginal Issues Committee 2015: 349) results in their over-representation in solo practice (Law Society of Upper Canada 2010: ii). However, the extent and nature of the racial penalty varies by gender, age, sexuality, and geography (Lindberg 1997): female Indigenous lawyers suffer the greatest wage gap (Law Society of Upper Canada 2010) and report that negotiating a legal system founded on colonisation and patriarchy is especially alienating and oppressive (Monture 1990). Nevertheless, many Indigenous lawyers and judges have been able to advocate for Indigenous rights, and present an Indigenous perspective, as this barrister explains: ‘I have an understanding of the Aboriginal side of the equation – the way community business is done – as well as having a reasonable knowledge of the law’ (Pelly 2008). However, the crude but powerful racial stereotypes grounded in the colonial civilisation/savage dichotomy surface repeatedly in the experiences of Indigenous lawyers. In Canada, they report being seen as lacking academic

Race, Ethnicity and the Legal Profession  181 ability, having been unfairly promoted (Lawrence and Shanks 2015), or ‘exceptional’ (Monture 1990: 198). Some encounter incredulity that they could be an Indigenous person and a lawyer. Mallenjaiwakka, the first Indigenous law graduate in Australia in 1972, recalled that ‘people thought I was a Greek or Italian. When I told them, they said “but you are not a real Aborigine”. They didn’t think you could have an Aboriginal with a degree and a pin-striped suit’ (Pelly 2008). Another Australian Indigenous lawyer working in Victoria recounted how there was curiosity in the office because people thought ‘here is this person and they don’t look Indigenous’. For them I think that was a big thing … The irony is identifying as an Aboriginal person when you’re not black [skinned], and it would be difficult to be black if your history is in Victoria [Australia]. (Morley 2007: 18)

The persistence of racial stereotypes is underlined in a Canadian lawyer’s explanation of the impact of perceptions of her as Aboriginal (Lindberg 1997: 307): ‘I cannot be a member of the very real boys club; I am to be an expert on all Aboriginal groups and all Aboriginal concerns’. Other studies also report this expectation that Indigenous lawyers work exclusively on Indigenous matters. Māori lawyers claim that firms expect them to be solely interested in Māori issues and to bring in Māori work (even while encountering practitioners who refuse to acknowledge Māori culture: Eruera 1999: 46). In fact Māori lawyers do often focus on Treaty of Waitangi work and have effected the reinterpretation of treaty rights: in 1975 the Waitangi Tribunal was established to consider remedies for treaty breaches; and Māori practices such as kaitiakitanga (guardianship), wāhi tapu (sacred sites), and taonga (treasures) are now being considered by the courts (Ruru 2018). However, while these victories underline law’s potential as a tool for social justice, they generate few prospects for career advancement, while the fear that reporting discrimination may harm careers and reputations deters complaints (Law Society of Upper Canada 2010). The need to bridge two very different worlds has also been identified as a major source of stress for Indigenous lawyers: ‘law represents an emotional, intellectual and spiritual assault’ (Milroy 1996, cited in Eruera 1999: 9). On one hand, Indigenous lawyers are required to work within a legal system that recognises only western law; on the other, trying to maintain connections with their primary communities can be difficult (Lawrence and Shanks 2015). For instance, Indigenous lawyers are accused of becoming ‘neo-colonizers’ who fail to live up to their communities’ expectations (ibid: 43). In recent years professional associations have sought to support Indigenous lawyers. The Law Society of Upper Canada has produced reports on racial discrimination within the profession (Law Society of Upper Canada 1997; Kay et al 2004; Cain 2003). The Law Council of Australia (LCA) launched a Policy Statement on Indigenous Australians and the Legal Profession in 2010, supported unanimously by Australian law societies and bar associations, which acknowledges Indigenous Australians as the continent’s original inhabitants and custodians, the distinctiveness of their cultures and identities, and their history of dispossession and continuing disadvantage. It also recognises their professional under-representation and commits to supporting Indigenous law students and lawyers (LCA 2010). In New Zealand, the Te Hunga Rōia Māori o Aotearoa (Māori Law Society Inc) was created in 1988; more recent initiatives, such as a website, The Legal Māori Project, support lawyers working in the Māori language. Yet there is no evidence that these initiatives have reduced the institutional racism experienced by Māori lawyers; furthermore, neither they, nor those adopted in Canada or Australia, have significantly increased the number of Indigenous lawyers (Smith 2008: 56) or challenged the norm of the white, middle-class, male lawyer. The discourse that justified colonisation on the basis of Indigenous savagery (McGregor 1997), epitomised by the lack of law (Watson and Harris 2004), persists. Law’s

182  Hilary Sommerlad et al continuing use as a tool of dispossession is exemplified by Rio Tinto Zinc’s recent destruction of Juukan Cave, a sacred site in Western Australia. Although the company misled Indigenous Elders in order to destroy the cave, its blasting was approved by the government, and the BHP mining company plans to destroy a further 40 sacred sites. Marcia Langton, a prominent Indigenous academic, has described the legal process by which mining companies are able to devastate significant cultural sites as a denial of ‘traditional owners’ very basic and fundamental rights’ (Toscano and Hastie 2020). This privileging of capitalist interests over Indigenous culture highlights the colonial legacy; thus, although the number of Indigenous lawyers is increasing, the price of their inclusion is assimilation into a legal system that continues to deny their communities’ rights. Legal education, the profession and the law sustain a racialised world in which Indigenous dispossession continues to be legitimised. III.  UNITED STATES

Sameer Ashar and Meera Deo This brief overview of diversity in US legal education and the profession offers basic data about the representation of racial/ethnic groups and suggests reasons for sustained underrepresentation. Although the importance of representation is self-evident – lawyers acquire and wield economic, social, and political power on behalf of their clients – the legal profession has largely resorted to half-measures rather than a concerted commitment to counteracting centuries of exclusion. Entry into elite spaces by the historically excluded is a fraught and complicated process. Underrepresented lawyers often have a form of double consciousness, ‘this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity’ (du Bois 1903: 2). Fanon (2008: 105) wrote that colonial subjects are ‘an object in the midst of other objects’ and ‘the movements, the attitudes, the glances of the other fixed [them] there’. Exclusion is born of systems of discourse and hegemony that produce subjugation and alienation (Said 1978). Furthermore, those experiencing multiple forms of oppression, such as Black women, are particularly subject to disciplinary surveillance in work settings and dependent on the whims of the market for economic opportunity (Collins 2000). These systems cannot be undone with half-measures. Representation in the legal profession and acquisition of economic, social, and political power remain a multi-generational project that is non-linear and uncertain. Moreover, lawyers from formerly excluded racial and ethnic groups are often deployed by the powerful to impose legality as an instrument of violence in their own communities. They are thus both agents and victims of dehumanising discourse and hegemony. Some formerly excluded lawyers make ‘a deliberate choice to see the world from the standpoint of the oppressed’ (Matsuda 1987: 324). But many cannot or do not. A.  Demographic Shifts and Under-representation While the past few decades have seen increases in people of colour in the population, the demographics of lawyers, students, and legal academics remain structured by racial and ethnic power inequities.

Race, Ethnicity and the Legal Profession  183 Table 1  Demographics of the population (per cent) (Humes et al 2010) 2000

2010

White

69

64

Native American

.9

.9

Black

12

13

Latinx

13

16

Asian

3.6

4.8

Multiracial

2.4

2.9

These trends have continued in the past decade (US Census 2019). Although white non-Hispanics remain a majority of the population, communities of colour are increasing at higher rates. Women have remained just over 50 per cent for decades (Howden and Meyer 2010). Representation within the legal profession differs significantly. In 2018 there were 1.34 million lawyers. Table 2  2018 Lawyer statistics (per cent) (ABA 2020) Race Black

5

Asian

3

Hawaiian/Pacific Islander

0

White

85

Hispanic

5

Native American

1

Multiracial

1

Gender Male

64

Female

36

People of colour and women remain under-represented in law firms. Table 3  2018 Law Firm Demographics (per cent) (NALP 2019) 2018 Law Firm Associates White men

43

White women

32

Men of colour

14

Women of colour

11

Law Firm Partners White men

68

White women

23

Men of colour

6

Women of colour

3

While these percentages reflect some improvement from previous decades, the last five years have seen little change (NALP 2013), indicating the resilience of the structure of power that

184  Hilary Sommerlad et al benefits white elites (Omi and Winant 1994: 106) and the symbolic nature of progress for lawyers of colour (Bell 1992: 19, 25). Among law students, women are a slight majority, but although there is greater representation than 10 or 20 years ago, communities of colour remain under-represented in law school compared to the population (Deo et al 2019). Law faculties lag even further behind, with women and men of colour comprising less than 10 per cent each (ABA 2013). Ongoing raceXgender challenges prop up the inflexible boundaries of a profession created by and for white male elites (Deo 2019). The few non-traditional tokens granted entry are told both overtly and through ‘implicit messages’ that they must yield to a power structure that continues to devalue and degrade them (Mertz 2019). B.  Reasons for Sustained Under-representation i. Gatekeeping The profession devises and reifies gatekeeping mechanisms that ensure under-representation (Martinez 2019). Legal education and entry to the profession through the bar examination exclude on the basis of race and class (Williams 2020), and attacks on affirmative action in higher education limit opportunities for under-represented groups. Proposition 209 in California prohibited the use of race in admissions decisions by public institutions, and other states have followed suit. Another barrier is legal education’s prohibitive cost (Taylor et al 2016). Some Black and Latinx students cannot afford law school, even with loans; women of colour are likely to incur the highest levels of debt but least likely to benefit from scholarships (ibid): 16 per cent of Latinx women and 14 per cent of Black women graduate owing over $200,000, compared to 12 per cent of Latinx men, 7.3 per cent of Black men, 5.5 per cent of white women, and only 4.3 per cent of white men (Deo and Christensen 2019). Evidently, under-representation in legal education reinforces the exclusionary dynamics of the profession. ii.  Inadequate Programmatic Interventions Public commitments to D & I require scrutiny: sponsors may seek reputational benefits by promulgating programmes that prioritise symbolic or incremental progress without making significant efforts to reduce under-representation, and their efficacy depends on implementation and resource allocation. At the level of elite corporate law firms, clients have demanded diverse legal teams. For instance, the insurance giant MetLife recently required firms to ‘create a formal plan to retain and promote [their] diverse talent’ or risk losing its business (Big Law Business 2017). Facebook stipulates that one-third of their legal matters be handled by teams including women and people of colour (Rosen 2017). However, if such demands do not disaggregate non-white populations, the programmes may not target the most under-represented. Pipeline programmes operated by non-profit organisations and law schools seek to signal the profession’s commitment to racial and ethnic diversity. Yet according to a former law school dean who helped create such a programme, ‘many of these pipeline plans are valuable, feelgood, community-building programs, but they cannot make up for disadvantaged educations that lead fewer students of colour to aspire to become attorneys or to have the opportunity to develop the critical skills’ necessary to gain entry to the profession (Anderson 2009: 1030). While such programmes focus on mentoring and coursework, Law School Aptitude

Race, Ethnicity and the Legal Profession  185 Test performance may be the biggest hurdle; however, the commitment of resources to such programmes is uneven (AccessLex Inst 2018). iii.  Surface and Structure There is increasing diversity in legal education, with rising numbers of students, professors, and practitioners from diverse backgrounds (Hurtado et al 1999). Nevertheless, the biases, discrimination, and barriers that thwarted non-traditional participants decades ago persist. Those who overcome the obstacles to entry pay the price in uncompensated and menial work as well as in real dollars (Mertz 2019). The law school environment continues to be shaped by straight, white, male, non-immigrant, wealthy norms; those who are admitted are expected to conform, or suffer the consequences (Goffman 1961). This signals a surface commitment to diversity – characterised by publicising a well-crafted diversity statement, including images of people from diverse backgrounds on the website, or even accepting a token number of non-traditional students and faculty. Yet without making diversity a core commitment – namely to a critical mass of students and faculty of colour from diverse backgrounds who have institutional power (not limited by raceXgender bias) – full inclusion cannot be achieved (Lee 2010; Deo et al 2019). The mismatch between surface commitments to diversity and persistent underrepresentation is replicated in the profession. The few who break through barriers of race and class must perform identity in ways likely to undermine further progress (Carbado and Gulati 2013). The under-represented struggle with this in mostly white spaces, attempting to find a balance between outwardly acknowledged identity consciousness and assimilation (Wilkins 2000). This dynamic will persist unless professional institutions make significant efforts to reduce the structural exclusion of the under-represented. IV.  THE NETHERLANDS

Marijke ter Voert Over the past three decades, Dutch society has become ethnically diverse due to its colonial history and increased labour and family migration and refugee flows. Dutch inhabitants with a non-Western immigrant background increased from 7.6 per cent (1.2 million) in 1996 to 12.7 per cent (2.2 million) in 2017.19 Most can be divided into three groups: labour migrants recruited in the 1960s and their families (Turks and Moroccans: 5 per cent); migrants from former colonies (Surinamese and Antillean: 3 per cent), and refugees (Afghan, Iraqi, Iranian, Somali, Syrian and Eritrean). This section describes the extent to which this macro-level diversity is reflected in the legal profession and considers the forces that have stimulated or hindered professional diversification, including the colonial legacy, clash of cultures and rise of Islamophobia. A.  Law Students Higher education was elitist until the 1960s ‘education for all’ policy led to a rise in the educational level of young people from non-Western backgrounds (although this remains below

19 Statistics

Netherlands: opendata.cbs.nl/statline/#/CBS/nl/dataset/83894NED/table?ts=1634813977483.

186  Hilary Sommerlad et al average). The legal profession’s high standing among immigrant groups and the apparent value of a law degree for social mobility led parents from non-Western backgrounds to encourage their children to study law (Böcker and de Groot-van Leeuwen 2007), leading to the gradual diversification of the law student population (Doornbos and de Groot-van Leeuwen Vol 1, ch 12): law graduates from non-Western backgrounds are now over-represented, having increased from 5 per cent (162) in 1995 to 19 per cent (767) in 2017 (see Figure 1). Since 2005, the possibility of studying law at a lower level (HBO, higher professional education) has also diversified the paralegal professions. This option is very popular among students from non-Western backgrounds, who comprised 31 per cent of HBO graduates in 2017.20 Figure 1  Number of law school graduates (masters degree) with a Dutch, Western and non-Western background** 5000

90%

4500

80%

4000

70%

3500

60%

3000

Non-Western background 50%

2500

Western background Dutch background

40% 2000 30%

1500

% Dutch background % Western background % Non-Western background

20%

1000

10%

500

1 01 / 20 '02 02 /'0 20 3 03 /' 20 04 04 /' 20 05 05 /' 20 06 06 /' 20 07 07 /' 20 08 08 /' 20 09 09 /' 20 10 10 /' 20 11 11 /' 20 12 12 /' 20 13 13 /' 20 14 14 /' 20 15 15 / 20 '16 16 /'1 7*

0

/'0

00

20

9

/'0

99

19

20

8

/'9

19

98

/'9

19

97

/'9

/'9

96

95

19

19

7

0%

6

0

* preliminary data ** Non-Western background: at least one parent born in Turkey, Africa, Latin America or Asia (with the exception of Indonesia and Japan). Western background: at least one parent born in Europe (excluding Turkey), North America, Oceania, Indonesia, or Japan. Source: Statistics Netherlands, statline

B.  The Profession Since professional organisations – like the Bar, the Council for the Judiciary and the Public Prosecution Service – do not register the migrant background of their members or personnel, the extent of their diversity is unclear. Nevertheless, it is apparent that the profession generally is segregated and segmented on ethnic (and class and gender) lines: older native Dutch men are over-represented at the higher levels and under-represented at the middle and lower levels, while the reverse is true for legal professionals from ethnic minority groups (and women).

20 Statistics

Netherlands: https://opendata.cbs.nl.

Race, Ethnicity and the Legal Profession  187 Ethnic minority participation in the training programmes to become a judge or public prosecutor (RAIO) seems to be increasing, from 4 per cent in 2000–05 to 7 per cent since 2014 (Böcker and de Groot-van Leeuwen 2007; Verheij 2016). However, despite the decline in ­elitism and increase in judges with a middle class or working class background (Van der Kraats et al 2010), only 2 per cent had a ‘bicultural background’ in 2010 (Council for the Judiciary 2010: 14). In 2015, the Dutch Bar Association estimated that only 2 per cent of legal professionals working at the Zuidas law firms21 had a non-Western background; their typical lawyer is white, male and middle or upper class (van der Raad 2015). The extent to which other firms reflect the ethnic diversity in society is largely unknown, but an Internet search for ‘advocate’ and ‘Moroccan’, ‘Turkish’, or ‘Surinamese’ revealed many firms and lawyers, especially in the four largest cities. These use their immigrant background to attract clients. C.  Stimulating Forces Persistent low levels of ethnic minority representation in the profession despite transnational migration have generated growing concern about the profession’s legitimacy; and since the beginning of this century the bar, the Council for the Judiciary and the Public Prosecution Service have initiated diversity-enhancing practices. Within the judiciary, ethnicity was not discussed in the 1990s (Böcker and de Groot-van Leeuwen 2007), but in the 2000–01 collective agreement, the NVvR (Dutch Association for the Judiciary) and Minister of Justice stated it should contribute to overcoming disadvantages encountered by women and disabled and non-Indigenous groups; and the 2002–05 Strategic Agenda acknowledged the potential threat to the legitimacy of, and confidence in, the profession posed by the low intake of non-Indigenous lawyers. In 2008, initiatives were therefore introduced to achieve a balanced composition of the judiciary by modernising recruitment, selection and training (van der Raad 2015). Since January 2017, the Public Prosecution Service has been publicising start-up positions to the Unknown Talents Foundation, which looks for bicultural candidates. This programme is informed by the ‘business case’ approach, which sees workplace diversity as a tool to improve the quality of work. In 2006, the importance of gender and ethnic diversity also became an issue for the Dutch Bar Association (NOvA); a Diversity Committee was formed to raise firms’ awareness, and the 2007 Advocatenblad (Advocates’ Journal) contained a declaration of intent. This was endorsed by the 26 largest Zuidas law firms, and diversity committees were established to deal with recruitment (van der Raad 2015). D.  Oppositional Forces Empirical studies suggest that persistent under-representation of ethnic minorities despite the introduction of diversity stimulating practices is multi-causal: (1) policy and social discourses; (2) recruitment and selection practices; and (3) exclusionary cultural barriers. i.  Changing Policy and Discourse in Society Legal organisations are influenced by their social context, including dominant discourses on migration. The decreasing demand for low-educated labour in the 1980s resulted in high

21 The

large international law firms located at the Zuidas (south axis) business district of Amsterdam.

188  Hilary Sommerlad et al unemployment among migrant groups, particularly Turks and Moroccans, whose educational achievements were viewed as unsatisfactory. This reinforced explanatory models which attribute low representation to lack of education, language skills and knowledge of cultural and social norms and values, rather than barriers within Western culture (van der Raad 2015). Concurrently, the apparent inefficacy of the 1980s multicultural model (that emphasised preservation of one’s primary cultural identity) exposed it to criticism, resulting in the sharp ‘assimilationist turn’ (Verbeek et al 2016). Anti-immigration, anti-asylum, and anti-Islamic discourses, epitomised by stridently anti-Islam political figures such as Pim Fortuyn and Geert Wilders, have been fostered by increased immigration and events such as 9/11 and other terrorist attacks (ibid). By contrast, young people from Turkish and Moroccan backgrounds feel they are excluded, not seen as Dutch citizens (Huijnk and Andriessen 2016). These feelings appear to be vindicated by media representations and shifts in the political landscape suggesting increased resistance to migrants. Yet, the statistics depict a more nuanced picture: the proportion of Dutch natives who believed there were too many different nationalities in the Netherlands fell from almost 50 per cent in 2004 to almost 40 per cent in 2015 (ibid: 245); between 2006 and 2015 those who did not object to inter-ethnic friendships (90 per cent) or inter-ethnic marriages (80 per cent) remained the same (ibid: 249–50), and attitudes to migrants are not becoming more negative (ibid: 252). Nevertheless, research suggests a significant group of Dutch people are concerned about immigration and integration (ibid: 246). ii.  Recruitment and Selection Practices Research in the Amsterdam district court and big corporate law firms revealed that, although diversity practitioners say they value diversity, they assume minority workers are inferior, a view reinforced by the fact that many ethnic minority professionals come from less-educated families. They therefore look for the ‘ideal colleague’, who conforms to their own profile and possesses the correct (gendered, classed, and raced) attributes, whereas ethnic minority workers ‘do not fit the team’ and are not ‘one of our kind’ (van der Raad 2015). Most D & I projects, therefore, focus on eliminating (assumed) deficits and assimilating the ‘other’ to the prevailing organisational norm. Van der Raad found that while legal professionals from Islamic backgrounds felt different, this did not always have negative connotations. However, with the demonisation of Islam in both the larger society and the professional workplace following 9/11 and other terrorist attacks, Muslims began to encounter scepticism about their language skills, especially their mastery of Dutch, and co-workers started to ask questions about identity issues (eg dual nationalities), particularly related to Islam. iii.  Cultural Barriers and Feelings of Not Belonging The under-representation of minority groups within the profession can also be attributed to cultural barriers grounded in class and religion. The legal culture in the Amsterdam district court and large law firms is elitist, prescribing behaviours, modes of dress, and speech. This elitism and firms’ alcohol consumption create a culture which is alien to Muslim lawyers who mainly come from lower socio-economic groups (van der Raad 2015). The illustration of religious barriers is exemplified by the ineligibility of Islamic women wearing hijabs for professions like judge or public prosecutor, since wearing religious signs is regarded as jeopardising their appearance of neutrality and impartiality.

Race, Ethnicity and the Legal Profession  189 V.  ENGLAND AND WALES

Hilary Sommerlad ‘Would we consider hiring a woman?’ Long pause. ‘You know, I think we would – we hired a Jew the other day’.22

This intertwining of women and Jews as equally alien to professional culture highlights its formation within the structure of patriarchal imperialism. The profession’s masculinity was taken for granted, secured by women’s lack of legal personality, but the exclusion of lower class groups required direct action. Conversely, the elite class background of the small, Indigenous Jewish population eased their entry:23 by the mid-nineteenth century there were about 50 Jewish lawyers in London (Lachs 1982). However, following the 1870s mass immigration of lower-class Eastern European Jews, anti-Semitism surged, expressed as a defence of British values (Terwey 2012).24 This implication of race, class, gender, nation and imperialism in the modern profession’s development is captured in Sugarman’s (2021: 39) account of it as an Anglo-American enterprise, fashioned by a small, homogenous community of elite jurists who shared ‘the conviction that the uniqueness of the common law tradition reflected the uniqueness of Anglo-American character, and represented the cornerstone of political liberty and constitutional progress’. The end of empire destabilised this sense of civilisational and racial superiority, and subsequent waves of immigration from the new British Commonwealth further eroded it, dislocating its hegemonic narratives (Hall et al 1978: 25). Yet these new diasporas also revivified racist discourses, articulated as scepticism about the compatibility of immigrants’ culture and hence their capacity to ‘belong’, while obstructing their efforts to do so. Nevertheless, post-colonial diversification of UK society contributed to the progressive national politics fostered by other major socio-economic and cultural changes from the 1960s onwards25 and the development of ‘political’ lawyering. The related decline of deference to established elites and erosion of the conditions sustaining professional cohesion were accelerated by subsequent neoliberal policies such as the massification of higher education26 (producing new lawyers in the numbers required by the profession’s dramatic expansion) and by the industrialisation of its working practices. A.  Statistics and Terminology Between 2000 and 2010 the number of Black, Asian and minority ethnic (BAME) solicitors increased by 80 per cent (Fletcher and Muratova 2010). By 2019, as compared to 13.4 per cent

22 Senior partner of medium-sized firm in regional legal centre, 1996, in interview with author. 23 Made possible by the 1830s extension of civil rights and vehemently opposed by such key figures as Thomas Arnold and Thomas Carlyle; Jewish lawyers’ over-representation in the colonies indicates persistent metropolitan anti-Semitism, also evident in contemporary literature. 24 Notions of national identity inflected socialist discourse, racialising class politics and specifically excluding migrant Jews (Virdee 2017). 25 A commitment to meritocratic values encouraged the expansion of higher education and an interest in law as a social justice tool. 26 By 2015, 49 per cent of UK 17–30-year-olds attended university, providing opportunities for second and third generation Black, Asian and minority ethnic (BAME) individuals, who were particularly drawn to degrees, like law, that offered the potential for social mobility.

190  Hilary Sommerlad et al of the working population, they accounted for 41 per cent of UK law school acceptances, 21 per cent of all solicitors (Law Society 2020), and 13 per cent (1078) of all practising barristers, including pupils27 (Bar Council 2020). But disadvantage persisted: there is an attainment gap between ‘white’ and BAME students at all levels of legal education;28 BAME law graduates have greater difficulty accessing vocational in-practice training and are paid less during training contracts (Aulakh et al 2017: 14). However, grounding these statistics in the generic concept BAME is problematic. By essentialising race, it instantiates it as ‘a property of bodies and of cultures … [rather] than as an effect of histories of racism’ (Ahmed 2012: 9). It therefore masks the continual reformulation of the boundaries of ethno-cultural identities (Barth 1969: 14), whose meaning shifts, depending on socio-cultural context, between physical appearance, subjective identification, cultural and religious affiliation and the mobilisation of stereotypes, including popular status rankings, frequently grounded in religion and actual and perceived degrees of willingness to assimilate (Neckerman et al 1999). Consequently, official statistics cannot capture the profession’s complex fluid inter-ethnic and intersectional segmentation (Crenshaw 1991; Brah and Phoenix 2004) and must be treated with caution.29 The ‘South Asian’ and ‘Black’ populations are exemplary. At 7.5 per cent of the total population in 201930 but 20 per cent of law school acceptances (Law Society 2020) and 15 per cent of solicitors (ibid), ‘South Asian’ groups are heavily over-represented. However, this category encompasses Chinese and high status ‘Indians’ as well as ‘Pakistanis’ and ‘Bangladeshis’31 who, as Muslims, represent the most stigmatised groups in the UK. Generalising about ‘Black’ lawyers is similarly problematic. At 3 per cent of the profession (SRA 2020), the number of ‘Black’ solicitors approximates their share of the population32 but includes Black Caribbeans, whose socio-economic disadvantage and alienation from mainstream culture is reflected in their low level of representation in the profession (2.1 per cent: SRA 2020), and Black Africans, who tend to be drawn from more privileged backgrounds. The profession is stratified not only by ethnicity and its intersections with class and gender but also, as a result of its fragmentation, by a complex ecology of firms and sectors, each with its own practices, rules, schemas and normative expectations (Cook et al 2012). Middle class applicants’ familiarity with professional cultures, their ‘feel for the game’ (Bourdieu 1990: 66–67), enables them to negotiate elite fields, where their social, cultural, economic and symbolic capital signal that they are the ‘right kind’ of people (Cook et al 2012: 1750). As a result they are over-represented in the largest firms (81+ partners), which in 2019 employed 29.7 per cent of private practitioners, and BAME groups under-represented.33 By contrast, the

27 Pupillage is the compulsory practical stage of the barrister’s training. 28 Research attributes this underachievement to several factors, including institutionalised racism (Jivraj 2020). 29 Poor response rates to diversity questionnaires undermine their reliability (Vaughan 2017); few investigate intersectionality; and we have no insight into the perceptual frameworks of individuals self-allocating to inflexible and questionable categories. See Aulakh et al 2017 for a granular account of professional diversity. 30 See www.ethnicity-facts-figures.service.gov.uk/uk-population-by-ethnicity. 31 Indians are 1.45 million (2.3 per cent), Pakistanis 1.17 million (1.9 per cent) and Bangladeshis 451,500 (0.7 per cent). The term also encompasses those of Chinese heritage (0.7 per cent); those of Asian heritage expelled from East Africa in the 1970s (eg Ugandan Asians), Sri Lankans, Asians of mixed parentage, people from Nepal, Bhutan, and some from the Middle East: https://minorityrights.org/minorities/south-asians/. 32 The term Black British encompasses a wide range of ethnicities and lengths of settlement (from hundreds of years to first generation immigrants). Definition is further hampered by self-ascription, but in 2018, 3.3 per cent of the population was described as from Black ethnic groups (Gov.UK Ethnicity Facts). 33 28 per cent of all White Europeans are employed by these firms; this contrasts with 11.9 per cent of all African Caribbeans and 15.3 per cent of Asians.

Race, Ethnicity and the Legal Profession  191 majority of BAME solicitors work in firms with 2–4 partners (34 per cent) and as sole owners (20 per cent)34 (Law Society 2020), and are over-represented in the (increasingly under-funded) legal aid sector. This structured inequality is mirrored at the bar: in 2019, BAME groups were 16 per cent of pupils, but 7.8 per cent of QCs35 (Bar Council 2020). Ethnic stratification is also spatial. BAME solicitors are over-represented in regions outside London, where there are more small firms and solo practices and sizeable ethnic minority communities. Not only are they under-represented in the large London corporate firms, but they are also concentrated in their lower levels and over-represented in these firms’ satellite branches, which perform low status, repetitive work (Vaughan and Carroll 2019). This concentration in lower status work is general; for instance, 24 per cent of lawyers in criminal law firms are ‘Asian’ and 6 per cent ‘Black’; and in firms specialising in private client (rather than company) work, 27 per cent of lawyers are ‘Asian’ and 10 per cent ‘Black’. By contrast, firms with a mixed portfolio of work and those doing mainly corporate work have the lowest proportion of BAME lawyers (15 per cent). BAME solicitors are also under-represented in in-house work: a total of 18 per cent (11 per cent Asian, 3 per cent Black, 2 per cent multiple/mixed ethnicity, and 2 per cent other ethnic groups); women predominate in each BAME group. However, whereas BAME in-house solicitors are only 18 per cent of those working in commerce and industry, they are 30 per cent in advice services. Finally, the difficulties experienced by BAME lawyers are indicated by their high levels of attrition (Law Society 2020). B.  Intersectionality and Different Pathways36 Career success in the mainstream profession depends on enacting a convincing performance of professionalism (Goffman 1961), thereby distancing oneself from an identity that is ‘othered’ by the wider society and treated by the profession as alien. This ‘homogeneity incentive’ (Carbado and Gulati 2003) entails continuous self-monitoring to counter stereotypical assumptions and achieve ‘partial passing’ (Carbado and Gulati 2013). Such a strategy may then gain the outsider lawyer the patronage that determines the success of individual assimilation strategies (underlining the relational and hence mutable nature of ethnic identity). As a woman solicitor recounted, this can entail evasion of one’s ethnic identity: ‘Whenever I go to a firm and see another Black face, I tend to nod, but some people won’t even make eye contact with me. It’s as if I’ve exposed them for being Black’. However, a primary mechanism for containing diversification’s threat to professional status and white male hegemony is the dominant group’s use of patronage to achieve cloning. ‘Acting white’ (ibid) may therefore neither generate the important assignments, mentoring or training opportunities needed to succeed nor stem the ‘micro-aggressions’ (Essed 1991) that reinforce outsider status. Successful passing is also a function of the privileges or penalties of ethnic groups and their intersecting identities. For instance, the degree of incompatibility between ethnic minority and national identity is replicated in the difficulties of passing as authentic professionals and is generally amplified by being female. In her qualitative study of Muslim female lawyers, Atherton-Blenkiron (2018) illustrates how the convergence of historical contexts of

34 8 per cent of all solicitors are sole practitioners and 22.8 per cent are in small firms. 35 The most senior level of barrister, decided upon application to a committee. 36 The qualitative data in the following sections are drawn from Sommerlad et al (2013), which describes the methodology.

192  Hilary Sommerlad et al colonisation, racial, cultural and linguistic differences and integration versus assimilation debates, reinforces Islam’s stigmatisation. Religious veiling, prayer and speech supply ‘visual and audial disjunctures’ (Mirza 2013), orientalising Muslim women lawyers and positioning them between two cultures (Brah 1996). The incompatibility of Muslim and professional identity is then strengthened by difficulties in participating in the professional game’s (Bourdieu 1990) homo-social activities and associated long hours and heavy drinking, which signal and maintain its normative whiteness. Passing is also impeded by the continuing importance of phenotype. An African Caribbean barrister asked: ‘why do I have to think about my hair? I should be worried about the job not my hair! But my natural state is not good enough and so, even though I’m sick of wigs, I feel I have to wear one’. Pervasive sexual harassment further undermines women’s professional status: ‘I was propositioned by a pupil master for sex in exchange for a pupillage – sexual patronage / harassment is rife’. The fallacy of professional meritocracy (Sommerlad 2015) revealed by these experiences is summarised by an African woman barrister’s reflections: [I]nitially I thought because I had a good degree I would eventually succeed. But I made over 150 applications over 5 years without success … I wasn’t completely surprised because I knew it wasn’t really meritocratic – but I wanted to believe it was – we all wanted to believe – we wanted to be able to go through the front door. But we couldn’t. It was closed to us.

By contrast some groups now occupy a favourable labour market position, illustrating the fluidity of ethnicity and the significance of intersectionality. The over-representation of uppermiddle class (male) UK ‘Indians’ and male Chinese lawyers from major financial and legal centres such as Singapore and Hong Kong in large corporate firms, including at partnership level (Tomlinson and Valizalde 2020), is attributable to the rise in the value and hence status of their ethnicity and the privileges associated with their gender and class. The generally high socio-economic status of Jewish lawyers (and their longevity in the profession) have similarly reduced (but not eradicated) overt discrimination. Conversely, the combination of their ethnicity, gender, religion and class place Bangladeshi women lawyers at the bottom of the professional hierarchy (Aulakh et al 2017). In summary, the law and the profession have been key sites in struggles by subordinated groups against their marginalisation, whether driven by social justice motivations or social mobility. In the mainstream profession, this has been a factor in the adoption of D & I ­initiatives;37 however, since these tend to attribute the profession’s horizontal segmentation and vertical stratification to choice and inadequate human capital, they have had little impact on professional closure. Institutionalised career structures and practices continue to actively structure racial inequality, reproducing stereotypical tropes of the ‘other’,38 drawing on archaic discourses of racial and gender inferiority and national identity rooted in Britain’s imperial past. The resulting reinforcement of the profession’s normative and structural barriers and the wider racial landscape is epitomised by a longstanding client’s comment to his African Caribbean male solicitor: ‘God you’re black. If I’d have known I would have never instructed you’.

37 These initiatives celebrate cultural diversity and include the appointment of diversity officers, pre-university outreach, work placement and law student mentoring schemes, mentors and support for diversity networks. 38 The multiple axes of discrimination faced by BAME lawyers are documented in a recent Law Society report (2020), which also discusses the mental strain these impose, and firms’ low retention rates.

Race, Ethnicity and the Legal Profession  193 VI. CONCLUSION

Hilary Sommerlad Law was pivotal in colonisation’s consolidation of pre-modern ethnic hierarchies, based on the essentialisation of embodied properties and selected cultural practices. Europe’s spatial and temporal engagements with the ‘periphery’ were structured and legitimised by the racial discourses and practices which, created by law, shaped public and individual consciousness, and by formal laws such as those which governed the slave trade (eg the French Code Noir). Everywhere, ethnicity and race remain among the most significant social and cultural structures (Brubaker 2009), and law and the profession continue to play a pivotal role in their production and maintenance. However, examining the recursive relationship between race, ethnicity and the profession is methodologically challenging: we began by noting the conceptual opacity of race and ethnicity; professionalism is also a contested term. All three concepts are forged by exclusionary criteria and only comprehensible in relationship to other (changing) systems and discourses. The transformation of the world order as a result of neoliberal globalisation has eroded democratic norms (Held 1995; Cerny 1999), fragmented national professions and affected racial regimes: interaction with, and insertion into, the globalised economy determine the ways in which a jurisdiction’s ethnic hierarchies are interpellated into its power and occupational structures, affecting patterns of raced labour market segmentation. The contingency of ethnicity, race and the profession does not, however, mean these concepts are meaningless. As our snapshots indicate, there are universals and continuities. In all six jurisdictions discussed above, a range of factors – such as struggles against majority domination and the emergence of progressive legal practice; ethnic minority lawyers’ value in facilitating access to law; and the need for legal labour and social legitimacy – weakened entry barriers and led to the partial diversification of mainstream firms as well as opening up spaces for different forms of practice and professional identities that could accommodate deviation or opposition to professional norms. But our snapshots also demonstrate that minoritised groups remain antithetical to the profession’s status aspirations and incompatible with its need for homogeneity and peer control. Further more, despite neoliberal discourses of the erosion of traditional social categories, in practice individual cultural identities and status hierarchies have been strengthened as a result of globalisation’s intensification of socio-economic inequalities and erosion of traditional communities. A resurgent neo-Darwinism and sociobiology, which synthesise ‘nature and culture, biology and history’ into ‘bio-culturalism’ (Gilroy 2000: 33), have reinvigorated racial ideologies. And although lawyers across the world have been active in resisting the assault on the rule of law and the most egregious racism, legal professions both reflect and, through their boundary practices, instantiate, maintain and legitimate contemporary society’s racial formations and their own elite position. Internal closure practices produce hierarchical, ethnically segmented and segregated labour markets; and racist discourses continue to ‘other’ non-white professionals, obliging those who wish to engage with the mainstream to suppress their differentiated identity and funnelling them towards less prestigious professional spaces. Yet just as the normative lawyer’s maleness is obscured by his claimed neutrality, so too whiteness has achieved the status of not being, or not needing to be, racially marked (Frankenberg 1993). Differential outcomes are therefore attributed to individual capital deficiencies, with consequent disregard for systemic causes of labour market segmentation (such as ritualised cultural practices) (Sommerlad et al 2013), which reproduce professional norms through exclusionary, homosocial activities

194  Hilary Sommerlad et al and the permeation of understandings of merit by assumptions about race (and gender and class), justifying selection, recruitment and promotion biases. D & I initiatives’ surface level engagement with the problem (described by Ahmed (2004) as simply ‘doing the document’) is, however, not merely ineffective; since it is frequently presented as the solution, those who continue to demand full inclusion are constructed as ‘the problem’ (ibid). At the same time, in a range of jurisdictions, the impact of neoliberal policies on the social state have eviscerated the spaces which made alternative legal practice possible, leaving them dependent on charitable projects – just at the moment when law’s role in contesting accentuated racialised oppression (exemplified by the voter suppression laws currently being implemented in some US states, as well as police violence) has become more significant. REFERENCES ABA (2013) ABA Approved Law School Staff and Faculty Members, Gender and Ethnicity: Fall 2013 www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_ bar/statistics/2013_law_school_staff_gender_ethnicity.xlsx. —— (2020) National Lawyer Population Demographics, 2010–2020 www.americanbar.org/content/dam/ aba/administrative/market_research/2021-national-lawyer-population-survey.pdf. AccessLex Institute (2018) Priming the Pump: How Pipeline Programs Seek to Enhance Legal Education Diversity (West Chester, PA, AccessLex Institute). Adlam, G (2016) Snapshot of the Profession 2016 (Wellington, New Zealand Law Society). Ahmed, A (1992) In Theory: Classes, Nations, Literatures (London, Verso). Ahmed, S (2004) ‘Declarations of Whiteness: The Non-Performativity of Anti-Racism’ 3(2) Borderlands e-Journal. —— (2012) On Being Included: Racism and Diversity in Institutional Life (Durham, NC, Duke University Press). Akbar, A (2018) ‘Toward A Radical Imagination of Law’ 93 NYU Law Review 405. Alexander, C (2009) ‘Stuart Hall and “Race”’ 23 Cultural Studies 457. Alonso, AM (1994) ‘The Politics of Space, Time and Substance: State Formation, Nationalism and Ethnicity’ 23 Annual Review of Anthropology 379. Anderson B (1991) Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York, Verso). Anderson, M (2009) ‘Legal Education Reform, Diversity, and Access to Justice’ 61 Rutgers Law Review 1011. Anisette, M (2000) ‘Imperialism and the professions: the education and certification of accountants in Trinidad and Tobago’ 25 Accounting, Organisations and Society 631. Atherton-Blenkiron, D (2018) Professionalism, Disadvantage and Identity: Marginal Actors in the Legal Profession – A Case Study of Muslim Women Solicitors (Keele Research Respository https://eprints. keele.ac.uk/view/subjects/K1.html). Aulakh, S, Charlwood, A, Muzio, D, Tomlinson, J and Valizade, D (2017) Mapping advantages and disadvantages: Diversity in the legal profession in England and Wales Final Report for the Solicitors Regulation Authority (London, SRA). Austin, J (1863) Lectures on Jurisprudence (London, John Murray). Australian Bureau of Statistics (2018) Estimates of Aboriginal and Torres Strait Islander Australians (Sydney, Commonwealth of Australia). Australian Human Rights Commission (1997) Bringing Them Home (Sydney, Commonwealth of Australia). Baker, DG (1972) ‘Color, culture and power: Indian-White relations in Canada and America’ 3 Canadian Review of American Studies 3. Balibar E (1990) ‘Paradoxes of universality’ in D Goldberg (ed), Anatomy of Racism (Minneapolis, University of Minnesota Press).

Race, Ethnicity and the Legal Profession  195 Bancel, N, David, T and Thomas, D (2014) The Invention of Race: Scientific and Popular Representations (New York, Routledge). Bar Council (2020) Diversity at the Bar 2019 (London, Bar Standards Board). Barth, F (1969) ‘Introduction’ in F Barth (ed), Ethnic Groups and Boundaries: The Social Organization of Culture Difference (Oslo, Universitetsforlaget). Behrendt, L, Larkin, S, Griew, R, and Kelly, P (2012) Review of Higher Education Access and Outcomes for Aboriginal and Torres Strait Islander People: Final Report (Canberra, Australian Government). Bell, D (1992) Faces at the Bottom of the Well: The Permanence of Racism (New York, Basic Books). Big Law Business (2017) ‘Deadline for Diversity Issued by Top MetLife Lawyer’ available at https://biglawbusiness.com/deadline-for-diversity-issued-by-top-metlife-lawyer. Bloch, A and Solomos, J (2010) Race and Ethnicity in the 21st Century (Basingstoke, Palgrave Macmillan). Bӧcker, A and de Groot-van Leeuwen, L E (2007) Ethnic minority representation in the judiciary: diversity among judges in old and new countries of immigration (The Hague, Council for the Judiciary, The Judiciary Quarterly). Bourdieu, P (1990) The Logic of Practice (Stanford, Stanford University Press). Bourdieu, P and Wacquant, L (1992) An Invitation to Reflexive Sociology (Chicago, University of Chicago Press). Brah, A (1996) Cartographies of Diaspora: Contesting Identities (London, Routledge). Brah, A and Phoenix, A (2004) ‘Ain’t I A Woman? Revisiting Intersectionality’ 5(3) Journal of International Women’s Studies 75. Brubaker, R (2009) ‘Ethnicity, Race and Nationalism’ 39 Annual Review of Sociology 2. Buchanan, N and Settles, I (2019) ‘Managing (In)visibility and Hypervisibility in the Workplace’ 113 Journal of Vocational Behavior 1. Butler, P (2016) ‘The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform’ 104 Georgetown Law Journal 1419. Cain, M (1994) ‘The Symbol Traders’ in M Cain and C Harrington (eds), Lawyers in a Postmodern World: Translation and Transgression (Buckingham, Open University Press). —— (2003) Ten Years into the Future: Where Are We Now After Touchstones? (Ottawa, Canadian Bar Association). Carbado, DW and Gulati, MT (2003) ‘The Law and Economics of Critical Race Theory’ 112 Yale Law Journal 1757 —— (2013) Acting White?: Rethinking Race in ‘Post-Racial’ America (New York, Oxford University Press). Cerny, P (1999) ‘Globalization and the Erosion of Democracy’ 36 European Journal of Political Research 1. Collins, PH (2000) Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (New York, Routledge). Comaroff, J (2006) ‘Colonialism, Culture, and the Law: A Foreword’ 26 Law & Social Inquiry 305. Cook, A, Faulconbridge, J and Muzio, D (2012) ‘London’s Legal Elite: Recruitment through Cultural Capital and the Reproduction of Social Exclusivity in City Professional Service Fields’ 44 Environment and Planning 1744–62. Cornell, D (1987–88) ‘Post-Structuralism, the Ethical Relation and the Law’ 9 Cardozo Law Review 1587. Council for the Judiciary (2010) Annual Report 2010 (The Hague, Council for the Judiciary) www. rechtspraak.nl/SiteCollectionDocuments/Jaarverslag-2010.pdf. Cox, O (1948) Class, Caste and Race: A Study in Social Dynamics (New York, Monthly Review Press). Crenshaw, K (1991) ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’ 43 Stanford Law Review 1241. Darlaston-Jones, D, Herbert, J and Ryan, K (2014) ‘Are We Asking the Right Questions? Why We Should Have a Decolonizing Discourse Based on Conscientization Rather than Indigenizing the Curriculum’ 37 Canadian Journal of Native Education 86. Deo, M (2019) Unequal Profession: Race and Gender in Legal Academia (Stanford, Stanford University Press).

196  Hilary Sommerlad et al Deo, M and Christensen, C (2019) 2019 LSSSE Annual Results: The Cost of Women’s Success https:// lssse.indiana.edu/wp-content/uploads/2015/12/LSSSE-AnnualSurvey-Gender-Final.pdf. Deo, M, Lazarus-Black, M, and Mertz, E (eds) (2019) Power, Legal Education, and Law School Cultures (New York, Routledge). Dezalay, Y and Garth, B (2011) Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge). Douglas H (2001) ‘The Participation of Indigenous Australians in Legal Education 1991–2001’ 24 UNSW Law Journal 485. du Bois, WEB (1903) The Souls of Black Folk (New York, New American Library). Equity and Aboriginal Issues Committee (2015) Report to Convocation (Ontario, Law Society of Upper Canada). Eruera, MJ (1999) Maori Lawyers and Stress (unpublished Masters dissertation, Massey University) https://mro.massey.ac.nz/handle/10179/7831. Essed, P (1991) Understanding Everyday Racism: An Interdisciplinary Theory (Newbury Park, CA, Sage). Fanon, F (2000) The Wretched of the Earth (London, Penguin Books). —— (2008) Black Skin, White Masks (New York, Grove Press). Ferguson, A (1966) An Essay on the History of Civil Society 1767 (Edinburgh, Edinburgh University Press). Fields, K and Fields, B (2014) Racecraft: The Soul of Inequality in American Life (New York, Verso). Fitzpatrick, P (1992) The Mythology of Modern Law (London, Routledge). Fletcher, N and Muratova, Y (2010) Trends in the Solicitors’ Profession. Annual Statistical Report 2010 (London, Law Society). Frankenburg, R (1993) ‘Growing up White: Feminism, Racism and the Social Geography of Childhood’ 45(1) Sociology, Gender Studies and Cultural Studies 51. Freire, P (1972) Pedagogy of the Oppressed (New York, Herder & Herder). Geertz, C (1993) The Interpretation of Cultures (London, Fontana Press). Gilroy, P (2000) Between Camps: Nations, Cultures and the Allure of Race (London, Allen Lane). Goffman, E (1961) Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Garden City, NY, Doubleday). Gorman, E and Kay, F (2010) ‘Racial and Ethnic Minority Representation in Large US Law Firms’ 52 Studies in Law, Politics and Society 211. Greenman, E and Xie, Y (2008) ‘Double Jeopardy: The Interaction of Gender and Race on Earnings in the US’ 86 Social Forces 1217. Griner, A (2013) ‘Aboriginal Lawyers Stride in Footsteps of Legal Pioneer’ https://thethunderbird. ca/2013/03/25/aboriginal-lawyers-stride-in-footsteps-of-legal-pioneer/. Hall, S (2017) The Fateful Triangle: Race, Ethnicity, Nation (Cambridge, Harvard University Press). Hall, S, Critcher, C, Jefferson, T, Clarke, J and Roberts, B (1978) Policing the Crisis: Mugging, the State, and Law and Order (London, Macmillan). Halliday, T and Karpik, L (eds) (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford, Clarendon Press). Hechter, M (1976) ‘Response to Cohen: Max Weber on Ethnicity and Ethnic Change’ 81 American Journal of Sociology 1162. Held, D (1995) Democracy and the Global Order (Stanford, Stanford University Press). Howden, L and Meyer, J (2010) Age and Sex Composition: 2010, Census Briefs www.census.gov/ prod/cen2010/briefs/c2010br-03.pdf. Huijnk, W and Andriessen, I (2016) Integratie in zicht? (Den Haag, SCP). Humes, K, Jones, N, and Ramirez, R (2010) Overview of Race and Hispanic Origin: 2010, Census Briefs www.census.gov/prod/cen2010/briefs/c2010br-02.pdf. Hurtado, S, Milem, J, Clayton-Pedersen, A, and Allen, W (1999) ‘Enacting Diverse Learning Environments: Improving the Climate for Racial/Ethnic Diversity in Higher Education’ 26 ASHE-ERIC Higher Education Report 8.

Race, Ethnicity and the Legal Profession  197 Ibhawoh, B (2007) Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (Albany, State University of New York Press). Jivraj, S (2020) Towards Anti-Racist Legal Pedagogy (Canterbury, University of Kent Press). Jones, C (2009) ‘Indigenous Legal Issues, Indigenous Perspectives and Indigenous Law in the New Zealand LLB Curriculum’ 19 Legal Education Review 357. Kay, F, Masuch, C and Curry, P (2004) Diversity and Change: The Contemporary Legal Profession in Ontario, A Report to the Law Society of Upper Canada (Toronto, Law Society of Upper Canada). Kennedy, D (1982) ‘Legal Education and the Reproduction of Hierarchy’ 32 Journal of Legal Education 591. Lachs, P (1982) ‘A Study of a Professional Elite: Anglo-Jewish Barristers in the Nineteenth Century’ 44 Jewish Social Studies 125. Law Council of Australia (2010) Policy Statement on Indigenous Australians and the Legal Profession (Canberra, Law Council of Australia). Law Society (2016) Trends in the Solicitors Profession: Annual Statistical Report 2015 (London, Law Society). —— (2020) Race for Inclusion: the Experiences of Black, Asian & Minority Ethnic Solicitors (Cheshire, DJS Research). Law Society of Upper Canada (1997) Bicentennial Report and Recommendations of Equity Issues in the Legal Profession (Toronto, Law Society of Upper Canada). —— (2001) Articling Student Feedback Report (Toronto, Law Society of Upper Canada). —— (2010) Racialization and Gender of Lawyers in Ontario (Toronto, Law Society of Upper Canada). Lawrence, C (1990) ‘If He Hollers Let Him Go: Regulating Racist Speech on Campus’ 3 Duke Law Journal 431. Lawrence, S and Shanks, SD (2015) ‘Indigenous Lawyers in Canada: Identity, Professionalization, Law’ 38 Dalhousie Law Journal 503. Lee, R (2010) ‘Core Diversity’ 19 Temple Political & Civil Rights Law Review 477. Lentin, A (2018) Race and Culture www.alanalentin.net/2018/08/20/race-culture/. Lindberg, T (1997) ‘What Do You Call an Indian Woman with a Law Degree? Nine Aboriginal Women at the University of Saskatchean College of Law Speak Out’ 9 Canadian Journal of Women and the Law 301. Magubane, Z (2004) Bringing the Empire Home: Race, Class, and Gender in Britain and Colonial South Africa (Chicago, University of Chicago Press). Makdisi, S (2014) Making England Western: Occidentalism, Race and Imperial Culture (Chicago, University of Chicago Press). Malik, K (2008) Strange Fruit: Why Both Sides are Wrong in the Race Debate (Oxford, Oneworld). Martinez, VR (2019) ‘Combating Silence in the Profession’ 105 Virginia Law Review 805. Matsuda, M (1987) ‘Looking to the Bottom: Critical Legal Studies and Reparations’ 22 Harvard Civil Rights-Civil Liberties Law Review 323. Matthews, T and Samaradiwakera-Wijesundara, C (2015) ‘The Fiction of Transformation: An Analysis of the Relationship Between Law, Society and the Legal Profession in South Africa’ 31 South African Journal on Human Rights 553. McGregor, R (1997) Imagined Destinies: Aboriginal Australians and the Doomed Race Theory, 1880–1839 (Melbourne, Melbourne University Press). McGuire, G (2002) ‘Gender, Race, and the Shadow Structure: A Study of Informal Networks and Inequality in a Work Organization’ 4 Gender & Society 139. Menkel-Meadow, C (1985) ‘Portia in a Different Voice: Speculations on a Women’s Lawyering Process’ 1 Berkeley Women’s Law Journal 39. Merry, S (1995) ‘Resistance and the Cultural Power of Law’ 29 Law & Society Review 11. Mertz, E (2019) ‘Canaries in the Mines of the US Legal Academy’ in M Deo, E Mertz and M Lazarus-Black (eds), Power, Legal Education, and Law School Cultures (New York, Routledge). Mikaere, A (2011) Colonising Myths – Maori Realities. He Rukuruku Whakaaro (Wellington, Huia Publisher).

198  Hilary Sommerlad et al Mirza, H (2013) ‘“A Second Skin”: Embodied Intersectionality, Transnationalism and Narratives of Identity and Belonging among Muslim Women in Britain’ 36 Women’s Studies International Forum 5. Monture, PA (1990) ‘Now That the Door Is Open: First Nations and the Law School Experience’ 15 Queen’s Law Journal 179. Morley, H (2007) ‘Breaking the Barriers: Victorian Indigenous Lawyers’ 81(8) Law Institute Journal 18. NALP (2019) 2018 Report on Diversity in US Law Firms www.nalp.org/uploads/2018NALPReportonDi versityinUSLawFirms_FINAL.pdf. NALP Bulletin (2013) Women and Minorities at Law Firms by Race and Ethnicity – An Update www.nalp.org/0413research. Neckerman, KM, Carter, P and Lee, J (1999) ‘Segmented Assimilation and Minority Cultures of Mobility’ 22 Ethnic and Racial Studies 945. Nikora, LW, Levy, M, Henry, J and Whangapirita, L (2002) Addressing the Recruitment and Retention of Maori Students in Tertiary Education Institutions (Hamilton, University of Waikato). Oguamanam, C and Pue, W (2007) ‘Lawyers’ Professionalism, Colonialism, State Formation and National Life in Nigeria, 1900–1960: “The Fighting Brigade of the People”’ 13 Social Identities 769. Omi, M and Winant, H (1994) Racial Formation in the US (New York, Routledge). Payne-Pikus, M, Hagan, J and Nelson, R (2010) ‘Experiencing Discrimination: Race and Retention in America’s Largest Law Firms’ 44 Law & Society Review 4. Pelly, M (2008) ‘Black Lawyers Can Raise the Bar’ The Australian 28 March www.theaustralian.com. au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww. theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Fblack-lawyers-can-raise-the-bar%2Fnewsstory%2F8527377bfc1e32c042ee0e090cd47ded&memtype=anonymous&mode=premium. Phillips, T (2012) Cultural Factors Affecting Tertiary Education Access for Bundjalung Men (MEd dissertation) (Brisbane, Queensland University of Technology). Renan, J-E (1871) [1929] La Réforme intellectuelle et morale (Paris, Calmann-Levy). Robinson, C (1983) Black Marxism: The Making of the Black Radical Tradition (Chapel Hill, University of North Carolina Press). Rosen, E (2017) ‘Facebook Pushes Outside Law Firms to Become More Diverse’ New York Times www.nytimes.com/2017/04/02/business/dealbook/facebook-pushes-outside-law-firms-to-becomemore-diverse.html?mcubz=0. Runciman, W (1989) A Treatise on Social Theory (Vol II) (Cambridge, Cambridge University Press). Ruru, J (2018) ‘First Laws: Tikanga Maori in/and the Law’ 1 Victoria University of Wellington Law Review 211. Said, E (1978) Orientalism (New York Vintage). Shamir, R (2001) ‘Colonialism’s Civilising Mission’ 26 Law & Social Inquiry 435. Sharafi, M (2007) ‘A New History of Colonial Lawyering: Likhovski and Legal Identities in the British Empire’ 32 Law & Social Inquiry 1059. Shin, P, Carbado, D, and Gulati, M (2014) ‘The Diversity Feedback Loop’ in S Bagenstos and E Katz (eds), A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Ann Arbor, University of Michigan Press). Shohat, E (1992) ‘Notes on the Postcolonial’ 31/32 Social Text 99. Silbey, S (2005) ‘After Legal Consciousness’ 1 Annual Review of Law and Social Science 323. Simpson, G (1993) ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: an Unresolved Jurisprudence’ 19 Melbourne University Law Review 195. Smith, C (2008) ‘Who Is Afraid of the Big Bad Social Constructionists – Or Shedding Light on the Unpardonable Whiteness of the Canadian Legal Profession’ 45(2) Alberta Law Review 55. Sommerlad, H (2015) ‘The “Social Magic” of Merit: Diversity, Equity and Inclusion in the English and Welsh Legal Profession’ 83 Fordham Law Review 2325. Sommerlad, H, Webley, L, Duff, L, Muzio, D and Tomlinson, J (2013) Diversity in the Legal Profession in England, and Wales: a Qualitative Study of Barriers and Individual Choices (London, University of Westminster Law Press).

Race, Ethnicity and the Legal Profession  199 Spivak, GC (1988) ‘Can the Subaltern Speak?’ in C Nelson and L Grossberg (eds), Marxism and the Interpretation of Culture (London, Macmillan). SRA (2020), How Diverse is the Legal Profession? www.sra.org.uk/sra/equality-diversity/key-findings/ diverse-legal-profession/. Statistics Netherlands (2016) Annual Report on Integration 2016: Summary (The Hague, Statistics Netherlands). Stoler, AL and Lambert, L (2014) ‘The Colonial Administration of Bodies and Space’ Conversation recorded with Ann Laura Stoler in New York on 11 August 2014, Archipelago http://the-archipelago. net/2014/08/21/ann-laura-stoler-thecolonial-administration-of-bodies-and-space/. Sugarman, D (2021) ‘How America did (and didn’t) influence English Legal Education, circa 1870–1965’ in S Bartie et al (eds), American Legal Education Abroad: Critical Histories (New York, NYU Press). Susskind, R (2013) Tomorrow’s Lawyers (Oxford, Oxford University Press). Szwed J (1975) ‘Race and the Embodiment of Culture’ 2(1) Ethnicity 19. Tatum, BD (2000) ‘The Complexity of Identity: “Who Am I?”’ in M Adams, WJ Blumenfeld, C Castañeda, HW Hackman, ML Peters and X Zuñiga (eds), Readings for Diversity and Social Justice: An Anthology on Racism, Sexism, Anti-Semitism, Heterosexism, Classism and Ableism (New York, Routledge). Tatum, BD (2003) Why Are All the Black Kids Sitting Together in the Cafeteria? (New York, Basic Books). Taylor, AN, Christensen, C and Rocconi, L (2016) LSSSE 2015 Annual Report: How a Decade of Debt Changed the Law Student Experience lssse.indiana.edu/wp-content/uploads/2016/01/LSSSE-AnnualReport-2015-Update-FINAL-revised-web.pdf. Terwey, S (2012) ‘British Discourses on “the Jew” and “the Nation” 1899–1919’ 3 Questions and Issues in Contemporary Jewish History 10. Thomas, K (2018) In Pursuit of Civility: Manners and Civilisation in Early Modern England (New Haven, Yale University Press). Tomlinson, J, Valizade, D, Muzio, D, Charlwood, A and Aulakh, S (2019) ‘Privileges and Penalties in the Legal Profession: an Intersectional Analysis of Career Progression’ 70 British Journal of Sociology 1043. Tomlinson, J and Valizalde, D (2020) ‘Gender, Ethnicity and the Stratification of Career Pathways in the Legal Profession of England and Wales’ CERIC Anniversary Webinars 8 July https://business. leeds.ac.uk/divisions-work-employment-relations/events/event/555/ceric-anniversary-webinars-ge nder-ethnicity-and-the-stratification-in-the-legal-profession. Toscano, N and Hastie, H (2020) ‘Indigenous Leaders, Investors Urge BHP to Halt Works at Sacred Sites’ Sydney Morning Herald 13 August www.smh.com.au/business/companies/indigenous-leaders-investor s-urge-bhp-to-halt-works-at-sacred-sites-20200813-p55lds.html. Turner, T (2004) ‘Comment on Kuper’s “Return of the native”’ 45 Current Anthropology 264. Urbis (2017) National Profile of Solicitors 2016 Report (Sydney, Law Society of New South Wales). US Census (2019) Population Estimates July 1, QuickFacts www.census.gov/quickfacts/fact/table/US/ PST045218. van der Kraats, K, Croes, M, Klijn, A and Diephuis, B (2010) Magistrale perspectieven: De RAIO’s anno 2010 (Zutphen, SSR). van der Raad, S (2015) Othering and Inclusion of Ethnic Minority Professionals. A Study on Ethnic Diversity Discourses, Practices and Narratives in the Dutch Legal Workplace (Amsterdam, Free University). Vaughan, S (2017) ‘“Prefer Not to Say”: Diversity and Diversity Reporting at the Bar of England and Wales’ 24 International Journal of the Legal Profession 207. Vaughan, S and Carroll, E (2019) ‘Matter Mills and London-Lite Offices: Exploring Forms of the Onshoring of Legal Services in an Age of Globalisation’ 22 Legal Ethics 3. Verbeek, S, Entzinger, H and Scholten, P (2016) ‘Research-Policy Dialogues in the Netherlands’ in P Scholten, H Entzinger, R Penninx and S Verbeek (eds), Integrating Immigrants in Europe: Research-Policy Dialogues (IMISCOE Research Series) (New York, Springer) 213.

200  Hilary Sommerlad et al Verheij, L(2016) Etnische diversiteit in de Rechtspraak Installatietoespraak 2 June www.rechtspraak. nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Den-Haag/Nieuws/Documents/ Installatietoespraak%202%20juni%202016.pdf. Virdee, S (2017) ‘Socialist Antisemitism and its Discontents in England, 1884–98’ 51 Patterns of Prejudice 356. Wallerstein, I (1991) ‘The Construction of Peoplehood: Racism, Nationalism, Ethnicity’ in E Balibar and I Wallerstein (eds), Race, Nation, Class: Ambiguous Identities (New York, Verso). Watson, I and Harris, C (2004) ‘How Did Colonialism Dispossess? Comments for the Edge of Empire’ 94(1) Annals of the Association of American Geographers 165. Weber, M (1978) Economy and Society: An Outline of Interpretative Sociology (Berkeley, University of California Press). —— (1984) ‘Rationality and Formalism in Law’ in W Heydebrand (ed), Sociological Writings: Max Weber (London, Bloomsbury). Wilkins, D (2000) ‘Beyond “Bleached Out” Professionalism: Defining Professional Responsibility for Real Professionals’ in D Rhode (ed), Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation (Oxford, Oxford University Press). Williams, C (2020) ‘Gatekeeping the Profession’ 26 Cardozo Journal of Equal Rights & Social Justice 171. Wood, A (2011) ‘Law Studies and Indigenous Students’ Wellbeing: Closing the (Many) Gap(s)’ 21 Legal Education Review 251.

Part III

Production of Law and Lawyers

202

9 Still Special After All These Years? Fundamental Questions in Legal Services Regulation ANDREW BOON AND NOEL SEMPLE*

I.  INTRODUCTION AND THEORETICAL FRAMEWORK

P

revalent theories of legal services regulation draw on analyses of established frameworks for regulating legal services in Western liberal democracies, focusing heavily on common law jurisdictions and Anglo-American examples. Regulation by independent and self-regulating legal professions, using powers delegated expressly or implicitly by the state, permeated the first edition of Lawyers in Society (Abel and Lewis 1988–89). The underlying justification for a legal system dominated by legal professions has been the claim that the institutional independence of lawyers from government is an important – if not fundamental – prerequisite for liberal democracy and the rule of law (Halliday and Karpik 1997; Hazard and Dondi 2004: 93; Dezalay and Garth 2011; Boon 2017b; 2017d). Legal professionalism has, therefore, been an aspirational model for countries seeking to establish a democratic constitutional framework. In recent years, however, some jurisdictions have liberalised and de-regulated their legal services markets, notably England and Wales, Denmark, Norway and Sweden. This has been seen as an attempt to balance professional and consumer interests in markets for legal services (Boon 2010; 2017c). It may even augur a more broadly applicable ‘competitive-consumerist’ paradigm of regulation (Semple 2015). This chapter assesses the current circumstances of legal services regulation worldwide. A dictionary definition of ‘regulation’ encompasses all efforts to ‘control, govern, or direct’ human conduct. Accordingly, enforced rules are certainly regulation but so are ideologies, customer demands and other influences on behaviour. The traditional model of professional regulation seeks to control lawyer behaviour by imposing extensive educational and training requirements supported by codes of conduct. It is arguably through the process of professional identification that lawyers become institutionally disposed to support the citizen and resist the encroachment of state power on rights. We therefore conceive of legal services regulation as

* The authors are grateful for comments from Pablo Fuenzalida and participants at the 2017 International Meeting of Law and Society in Mexico City, contributors to the 2017 workshop on Lawyers in 21st Century Societies in Oñati, Spain and participants in the 2018 Socio-Legal Studies Association Annual Conference at Bristol, England.

204  Andrew Boon and Noel Semple potentially including processes associated with professionalism generally, particularly ethical socialisation through education and training, ethical codes and other means. The prevalence of non-professional regulation of legal services markets in some parts of the world, together with reduced support for legal professionalism in other jurisdictions, call for reconsideration of the fundamentals of legal services regulation. The professional project of market control (Larson 1977; Abel 1988; 1999) is resisted, more or less vigorously, in different places and at different times, by the state, clients, and competing legal workers (Johnson 1972; Rhode 2013). These efforts appear to be bearing fruit in some jurisdictions. However, in many parts of the world professionalism continues to be an aspiration of lawyers, particularly in emerging democracies. In light of the diverse directions the professional regulation of lawyers and legal services has taken in the last 30 years, this chapter focuses on three questions: who regulates and how and why they do so. In Section II we ask whether, and to what extent, lawyers regulate legal services, using four markers of professionalism: market control; occupational unity; insulating rules; and self-regulation. Institutional alternatives to professions could include governments, clients or consumers more generally (Johnson 1972), each of which may favour different regulatory strategies. Section III considers the prevalence of professional regulation compared with alternatives, focusing on three dimensions – admission, practice and discipline (Boon 2017a) – and considering how different jurisdictions allocate responsibility for these functions. Turning to the question of ‘how’ regulation occurs, Section IV considers the use and compatibility of three competing regulatory logics, which Freidson (2001) identifies as professionalism, market competition and corporate bureaucracy. Each has a distinctive rationale, calling for regulatory methods that may be inconsistent with those of the other logics. Section V takes up the question of why legal services are regulated, in the light of these rationales, by contrasting public interest and private interest theories and examining the continuing importance of the rule of law as a guiding principle. The questions we pose are neither new nor exclusive to law. In answering them we mine the rich literature published in the 30 years since the original Lawyers in Society project. In addition to the country reports in Volume 1, we draw on responses of contributors to a questionnaire about regulation. We seek to engender a conversation between regulatory theory and the lawyer-specific issues raised by the country reports and other data sources. II.  LEGAL PROFESSIONALISM: LAWYERS REGULATING LAWYERS

A.  Professional Control of Legal Services Markets In the law and society tradition, legal services regulation is typically understood as an arena in which lawyers advance a self-interested ‘professional project’ of market control (Larson 1977; Witz 1992; Rhode 1981; Abel 1988) in order to improve, or at least protect, their income, social standing, and political power. An initial task is to guarantee the quality of service provided, typically through education and control over entry. According to Freidson, the regulatory logic of professionalism is distinguished by being organised along collegial lines in a spirit of public service. Its stated rationale is that only a professional peer group can judge practitioner performance. Professionalism argues that the consumer interest is served by the inculcation of professional norms during a long period of education and training. These norms prioritise client interests and subordinate the profit motive. The need to organise education often leads to

Still Special After All These Years?  205 formation of a professional body, which seeks to establish the machinery of self-regulation: licensing regimes; codes of conduct; powers to inspect and intervene in legal businesses; and requirements that members insure against the risk of client claims. Among the myriad strictures on the practice of law, four are considered defining features of the regulatory infrastructure of legal professionalism: (i) monopoly; (ii) occupational unity; (iii) insulating rules; and (iv) self-regulation. The prevalence and significance of each may vary over time and by jurisdiction. Before considering the evidence for a decline in professional market control we examine the circumstances of legal professionalism across jurisdictions, including those considered in Volume 1. i.  Monopolies and Other Limitations on the Provision of Legal Services: Reserved Activity, Licensing Regimes and Prohibition of Alternative (Non-Professional) Legal Service Providers Monopolies of legal work arise in different ways. The widest monopoly provides that legal services, broadly defined, must be delivered by regulated lawyers. In jurisdictions such as the US and Canada, licensees have a de jure monopoly on all ‘practice of law’, including advicegiving. In other jurisdictions, England and Wales (Boon 2017a) and the Netherlands, for example, giving legal advice is not reserved to lawyers. Licensing regimes may impose additional post-admission requirements (such as annual practising certificates), the grant of which may be contingent on maintaining a continuing professional development record and linked to the performance of specialties. The scope of a broadly defined lawyers’ monopoly is often hard to specify (Terry 2014). For example, it may be difficult to distinguish legal and general business advice. This may lead to legislation enumerating the ‘reserved activities’ of lawyers, such as advocacy (eg Cummings et al Vol 1, ch 6; Katvan Vol 1, ch 30). In OECD countries, regulators are generally able to protect the lawyers’ reserved areas of practice from unlicensed competitors, who are often prosecuted vigorously, even in the absence of quality problems or client complaints (Brockman 2010). Sanctions for the unauthorised practice of law may also apply to those who have been admitted to a profession but do not meet current practising requirements. Only courtroom advocacy and a few other special functions are reserved for lawyers in countries such as Mexico, Belgium, Thailand, and England and Wales. Some states have sought to limit lawyer monopolies. England and Wales (in 1987) and New Zealand (in 2006) created new sub-professions for conveyancing, a traditional solicitors’ task, as a first step in undermining professional market control. In England and Wales the historic distribution of core legal functions – courtroom advocacy by barristers and other work by solicitors – was upended in 1990 by legislation allowing solicitors access to higher courts, which had been exclusive to barristers (Boon and Flood 1999a). Further legislation in 2007 recognised eight legal occupations, all of which could perform one or more reserved activities (Boon 2017c). While many of these were longstanding sub-professions, they were encouraged to apply to conduct different reserved activities and even to regulate each other’s members. The legislation also provided a mechanism for non-legal professions to seek authorisation to conduct reserved legal activities. ii.  Occupational Unity Historically, a degree of occupational unity was essential for a profession asserting market control. The profession may coalesce around and claim jurisdiction over broad areas of work (Abbott 1988). Typically, this body is more important in forming professional identity than the wide variety of organisational units and forms of practice. The work claimed by a profession

206  Andrew Boon and Noel Semple may be the result of historic ‘settlements’ dividing the legal field between occupational groups. Legal roles in many jurisdictions derive from these historical divisions in a former colonial power. For example, countries following the common law tradition often adopted the English sub-professions of barristers (courtroom advocates) and solicitors (transactional lawyers) (see eg Dinovitzer and Dawe Vol 1, ch 3), while civil law countries allocated responsibility differently, for example, among the French avocats, avoués and notaires.1 In colonial Africa, the legal professions reflected a substantive, although permeable divide between customary and colonial legal systems (Dezalay 2017). Not all countries adopted divided legal professions. In India, there is ‘only one class of persons entitled to practise the profession of law, namely, advocates’ (Advocates Act, s 29). The same is true in Thailand and most jurisdictions of common law North America (Wilkins 1993; see also Kamau Vol 1, ch 24). There is contradictory evidence about whether a particular form of occupational unity – a single provider of legal services – is a marker of legal professionalism. Yet, there is a fused profession in countries where lawyer hegemony appears to be robust – such as Canada, India, and the US – and fragmented providers in countries where professional regulation is relatively weak, such as Russia and Eastern European countries. While occupational control is not necessarily diminished when sub-professions perform different legal roles, occupational unity may still help to establish and maintain market control. Occupational subdivisions raise questions about restrictive trade practices, for example, referral rules for advocacy (Klaaren Vol 1, ch 26), and foster territorial squabbles between different types of lawyer (Kouwagam and Bedner Vol 1, ch 37) or foreign and local lawyers in many Asian jurisdictions (see eg Chen and Whalen-Bridge 2017; Kim Vol 1, ch 40; Ballakrishnen Vol 1, ch 36; Katvan et al Vol 1, ch 30). This can draw the attention of sceptical states and publics to the privileges lawyers enjoy. Adjusting the boundaries between professions can provide the occasion for reforms eroding their individual and collective positions (Semple 2015: 88). Subdivisions open the door to ad hoc competition, weaken a common front against unlicensed competitors, and dilute resistance to government control. The position of professions in England and Wales illustrates this weakness of occupational disunity. That jurisdiction used to be regarded as a paradigm of professionalism, despite the division of functions between solicitors and barristers. A government strategy of increasing the variety of legal services providers and competition between them has been paralleled by attempts to reduce the distinctions between the practice structures of solicitors (who work in firms) and barristers (who had to be independent practitioners) (Boon and Flood 1999a; Stephen 2013a). If this eventually leads to fusion, it will be a notable example of what an IBA survey of legal services regulation identified as a global trend toward occupational unity (International Bar Association 2016b). France’s 1991 merger of legal advisors and lawyers fits this mould, as does British Columbia’s possible merger of notaries and lawyers (Society of Notaries of British Columbia and Law Society of British Columbia 2015). The next 30 years may reveal whether occupational unity helps professionalism to remain the dominant way to manage legal services. iii.  Insulating Rules Occupational sub-groupings are not the only difference that might disrupt the apparent coherence of professional practice. Another regulatory restriction governs how lawyers can provide



1 The

first two of which were combined in a single profession in 1971 (Karpik 1999).

Still Special After All These Years?  207 legal services. Business structure rules or authorisation frameworks are typically used to specify the lawyers’ practice sites. Professionalised legal services markets traditionally require that a particular type of lawyer work only in businesses owned and managed by that type of lawyer, usually in partnership or as a sole practitioner. This rule is said to maintain a homogeneous ethical culture, ‘insulating’ members from commercial interests or the potentially divergent ethical norms of other, non-legal professions or legal sub-professions. Non-lawyer ownership or management of law firms is forbidden in some jurisdictions. Among OECD jurisdictions, common law Canada and the United States arguably go furthest in this direction (Hadfield 2014; American Bar Association 2018 R 5.4). France has traditionally had fairly tight business structure rules but is in the midst of a modest liberalisation (Snyder 2017). Since publication of the previous volumes, there has been a growth in the number of jurisdictions permitting non-lawyer ownership and management of law firms. In England and Wales and Australia, entrepreneurs and venture capitalists can now create or acquire law firms, and non-lawyers can manage them (Boon 2017d). Even if they employ licensed lawyers, these ‘alternative business structures’ compete with lawyer-owned firms for the profits generated through the sale of legal services. Quebec’s regime is an interesting compromise. Law firms cannot be publicly traded corporations, but multi-disciplinary partnerships are permitted, and non-lawyers can own up to 49 per cent of the shares in an incorporated law firm (Legis Québec 2010; Semple 2017). Another potential relaxation allows lawyers to work for non-lawyers in entities not regulated as legal services providers. In England and Wales independent regulators are proposing to let solicitors work for alternative legal services providers in competition with solicitors’ firms; they will be subject to the same code of conduct as solicitors in law firms but not to the same requirements regarding professional liability insurance. These examples suggest that some jurisdictions have recently relaxed insulating rules, while others have preserved them. We are not aware of any that have introduced rules to reinforce insulation. This indicates a trend toward liberalising business structure rules and authorisation regimes. iv. Self-Regulation An occupational group is self-regulating if those making regulatory decisions are: (i) members of the occupational group; and (ii) accountable (if at all) only to other members (Kaye 2006). Self-regulation generally is administered by a professional body. There are typically three dimensions: admission; practice regulation; and discipline (Boon 2017b). The regulation of admission includes courses to be studied, qualifications to be obtained and practical experience to be gained. Practice regulation specifies conduct rules and monitoring standards. Discipline involves establishing a system for investigating misconduct and tribunals to hear cases and impose sanctions, including possible expulsion from the profession. In federal states legal professions often handle disciplinary functions at the territorial level. Thus, in the US, State Bars set professional entry requirements, prescribe conduct practice and engage in discipline. In Argentina, entry is by law degree, but there are 80 different bar associations publishing ethics codes and handling disciplinary cases. Very little information is available about the self-regulating activities of these associations, including the outcomes of cases. A relatively pure form of self-regulation is also found in Canada’s common law provinces (Woolley 2011; Semple 2017). Such variations can cause problems for lawyers working across the entire federal jurisdiction, and there are often efforts to harmonise regulation. In 2002, for example, 24 Swiss regional bars, each with separate rules, were unified to facilitate more effective regulation.

208  Andrew Boon and Noel Semple Across the range of international jurisdictions there is an ebb and flow in the power of legal professional groupings. Lawyer self-regulation is robust in some parts of the world and increasing in many developing jurisdictions. Self-regulation depends on effective control by professional bodies, typically liberal institutions, which struggle to become established and thrive in autocratic states, such as Russia and other former Soviet satellites, such as Serbia. Professionalism does, however, flourish in unexpected places. The Palestinian Bar Association, for example, has augmented its role since its establishment in 1997, and the Israeli Bar Association has suffered only minor incursions to its traditional dominance. Italian lawyers managed to resist the state’s efforts at regulatory reform after 2005. The IBA has identified a global trend away from pure self-regulation, even in disciplinary processes (2016: 15). The evidence for this may be minimal, involving little more than an increase in instances of lay participation. Japan is among the jurisdictions that added non-lawyers to disciplinary tribunals previously staffed exclusively by lawyers. In other jurisdictions action has been more drastic. In England and Wales, for example, professional bodies have been removed from all front-line regulatory activity by the Legal Services Act 2007 (Boon 2017c). In Germany, decisions of the Constitutional Court have left little scope for professional self-regulation. B.  The Decline of Professional Market Control The decline of legal professionalism can be attributed to factors identified in the previous edition of Lawyers in Society and subsequent work. A primary cause is the accusation that legal professionalism is self-serving. Critics suggest that a self-interested occupational group can manipulate regulation to reduce competition (Smith 1776; Rhode 1996), evade discipline for malpractice (Paterson et al 2003; Arthurs 1998), and otherwise feather its own nest. These perceptions may lead to measures to weaken professional control of markets. The intellectual climate they foster may also weaken resolve to address the external forces that undermine professional arrangements, including globalisation, specialisation, growth in the number of qualified lawyers, paralegal workers, diversification of practice settings and increases in numbers of alternative legal services providers. Many jurisdictions have seen an increase in numbers of lawyers working ‘in-house’, for corporations or public utilities. This often opens the door to questioning professional arrangements, for example, whether the advice of in-house counsel enjoys legal professional privilege (Doornbos and de Groot-van Leeuwen Vol 1, ch 12; Kilian and Schultz Vol 1, ch 10). The solutions could rupture both occupational unity and insulating rules, whether they limit the scope of arrangements to the existing group or extend them to new contexts. The growth of international practice can have a similar impact. Lawyers practising outside their home jurisdiction may be subject to regulation by the host country, for example, lawyers moving between EU countries, incomers to Scandinavian countries and commercial lawyers in Singapore (Chen and Whalen-Bridge 2017). Some jurisdictions ban foreign firms but allow partnerships with host firms (Vuković et al Vol 1, ch 17). Unregulated transnational practice can cause tension between indigenous and incoming lawyers, as in Myanmar, ‘the last wild west for global law firms’ (Crouch Vol 1, ch 39). The diversification of practice sites over the past 30 years has sometimes forced professions to change practice rules, either to accommodate changes or to maintain a semblance of occupational unity. This has weakened arguments against diversification of the entities in which lawyers can work, which has become a contentious issue as the number of practitioners increases in some jurisdictions. Controlling entry to practice has generally been seen to be

Still Special After All These Years?  209 a primary method of securing a market for professional services (Larson 1977). In situations where there are several legal professions, further diversification of practice arrangements can weaken arguments for profession-specific educational arrangements, undermining efforts by professions to dictate the legal curriculum in universities. Lawyers’ inability to control legal education is the Achilles heel of market control. Law graduates demand legal jobs, challenge professional restrictions on entry, and work for non-lawyer competitors. There is little incentive for providers to control numbers. Legal education is attractive both to universities (Abel 2012; Thornton and Wood Vol 1, ch 2) and students (Bonelli and Fortes Vol 1, ch 19; Kalem Vol 1, ch 34), and there is global competition for law students (Flood 2011a). The range of providers of legal education has also expanded rapidly in many parts of the world, as the country reports illustrate (eg Kim Vol 1, ch 40; Gadowska Vol 1, ch 15). In Mexico, for example, an average of one new law school has opened each week since the mid-1980s. Lawyers’ self-regulatory organisations generally cannot prevent public universities and private law schools from opening and expanding legal education programmes (Shanahan 2000; Bonelli and Fortes Vol 1, ch 19; Zer-Gutman 2017). Suppressing competition in order to support prices requires control of the number of new licensees. In jurisdictions where legal professions have more effective market control, measures can be taken to stem the growth in professional ranks. The numerus clausus (a hard ceiling on the number allowed to practise) is the strongest such measure (see eg Kober Vol 1, ch 14). More typically, a licensing regime establishes entry barriers and other conditions of practice that can restrict supply, thereby maintaining prices for existing suppliers (Maurizi 1974). Regulators can decide which legal educational credentials will be sufficient to gain entry to the next stage of education, training or the profession itself. The American Bar Association effectively used this power to control growth between the 1920s and 1970s (Abel 1989), but thereafter enrolment expanded rapidly (Galanter 2011) until student demand fell off sharply after the 2008 recession. Whereas centralised professions may actively seek to control entry, local associations dependent on membership fees have incentives to expand (Böhmer Vol 1, ch 18). Regulators may seek to control entry by mechanisms such as bar examinations and practical training requirements. After its unsuccessful effort to prevent the creation of new law schools, Brazil’s bar implemented a tough bar exam with a pass rate of only 17.5 per cent. In Ghana, universities confer 1,000 LLB degrees per year, but to be licensed an applicant must also attend the Ghana School of Law, which until recently admitted only 250 (MyJoyOnline 2015; Dawuni 2017; see also Kim Vol 1, ch 40). Japan’s bar association used its exam to tightly restrict the supply of bengoshi for many years. Regulatory entry barriers such as the length of mandatory apprenticeship (Katvan et al Vol 1, ch 30) and the recognition of educational credentials (Gobe Vol 1, ch 33) have been adjusted for essentially political reasons. Foreign-trained lawyers also threaten market control. Pressure from foreign governments to allow them access has led to negotiated compromises in countries such as Japan and Taiwan. Because the legal profession (like other professions) emphasises formal academic education to justify its exclusivity (Larson 1977: 17; Abel 2012), and because legal education is expensive and arduous, it is difficult to deny a career to those who have survived it. When graduates have invested time and money in law school with the reasonable expectation of being able to practise, using entry rules to deny them licences can be politically difficult (Kilian 2017; Zer-Gutman 2017). Political demands on government may translate into pressure on legal professions to expand in order to accommodate aspiring entrants (Dinovitzer and Dawe Vol 1, ch 3). Government may also wish to expand the profession to increase competition between legal services providers and reduce prices. There may also be other political motives behind state-led expansion. Japan dramatically increased the number of lawyers after 2001 in an

210  Andrew Boon and Noel Semple effort to ‘establish the rule of law in every corner of the Japanese society’ (Murayama Vol 1, ch 38: 753). Lawyers’ market control project has failed to restrict numbers in most jurisdictions. The number of licensees per capita has grown dramatically in many parts of the world (Galanter 2011), as the country reports illustrate (eg Gibens et al Vol 1, ch 7; Bonelli and Fortes Vol 1, ch 19; see also Abel Vol. 1 ch. 44). One way to limit the size of the profession is to encourage and control regulated paraprofessions. In some North American jurisdictions, the inability of individual clients to afford lawyers has led to licensure of para-professions, such as Ontario’s licensed paralegals and Washington State’s Limited License Legal Technicians (Levin 2014; International Bar Association 2016b). In Ontario, lawyers’ market control appeared to have survived when the government decided in 2007 to grant the Law Society regulatory control over paralegals, including the right to define their scope of practice. Cynics were unsurprised that the definition was very narrow. However, in response to the dire state of access to civil justice, the government appointed a commission, which recommended that paralegals be able to practise family law (Bonkalo 2016). Lawyers’ groups are organising in opposition, initiating a classic market control struggle. The more licensure succeeds in maintaining prices, the more vigorously unlicensed competition will bubble up. Where professions refuse to expand, or where growth does not lower prices, government may tolerate or encourage an alternative, unregulated legal sector. In Poland, for example, lightly controlled legal occupations dedicated to business advising and debt collection have emerged in a regulatory vacuum. Suppressing this competition requires cooperation from the judiciary and law-enforcement authorities. In countries like Russia the state has declined to cooperate, leaving the organised Bar ‘a rather small island of professionalism in a stormy sea of the unregulated market for legal services’ (Mrowczynski 2016). Consequently, there are unknown numbers of unqualified practitioners, possibly up to one million, providing legal services, including advocacy in civil cases.2 In China, licensed lawyers have also confronted strong competition from unlicensed rivals (Liu 2011). In England and Wales, government competition agencies actively promote alternative legal services providers, even in core activities such as advocacy (Boon 2017c). Since the later 1980s, Germany’s Constitutional Court has eroded restrictions on most unregulated practice of law except higher court work. Legal professions face competition from Internet providers of legal information and forms. The Israeli judiciary has generally supported the bar in suppressing online competition (Zer Gutman 2017). In the US, unlicensed competitors such as LegalZoom and Rocketlawyer have been sued by several state bar associations (Barton 2015).3 Their virtual existence ensures these corporations are not limited by national boundaries. Both operated online in England and Wales, where the regulatory environment was more hospitable, but Legal Zoom’s plans to establish a physical presence by law firm ownership (Rose 2018) were abandoned (Hyde 2020). Corporations seeking to play an intermediary role in the legal services market have also been threatened by regulators. In a variant on the ‘closed-panel prepaid plans’ that the American Bar Association fought in the 1970s and 1980s (Abel 1989), Avvo.com marketed the ‘Avvo Legal 2 The exception is administrative cases, for which a law degree is required and must be produced before the case begins. 3 These suits typically allege unauthorised practice of law, which is prohibited by Rule 5.5 of the American Bar Association’s Model Rules of Professional Conduct. State bar associations have brought most of these suits. However, LegalZoom was also named in a 2010 unauthorised practice class action brought on behalf of its customers (Janson v LegalZoom.com, Inc, 802 F Supp 2d 1053 (WD Mo 2011)), which it settled in 2012 by making significant payments, WD Mo Case No 2:10-cv-04018-NKL. LegalZoom won a significant victory in a South Carolina case, and the Supreme Court decision in North Carolina State Board of Dental Examiners v FTC, 135 S Ct 1101 (2015) has reduced the scope for self-regulatory entities (including bar associations) to sue competitors without falling foul of anti-trust legislation. Nevertheless, multiple new lawsuits against the new entrants have been filed.

Still Special After All These Years?  211 Services’ programme to individuals and small businesses. In exchange for monthly fees, users received services from licensed lawyers who entered contracts with (and paid fees to) Avvo. In the summer of 2017, a committee of the Supreme Court of New Jersey ruled that lawyers licensed by that state could not participate in these programmes, which violated ethical rules about fee-sharing and referral schemes (Superior Court of New Jersey, 2017). Under pressure from multiple bar associations, Avvo abandoned the programme in January 2018. Increasing heterogeneity of the bar in many jurisdictions (eg Gibens et al Vol 1, ch 7; Thornton and Wood Vol 1, ch 2) and lawyer specialisation (eg Bessy and Bastard Vol 1, ch 9) may make it more difficult to act collectively against potential competition. When paralegals threaten a niche of the established bar (eg Ontario family lawyers), specialisation means that most lawyers have no direct pecuniary interest. But as firms increase in size and practise in many substantive areas, they have a greater interest in protecting all lawyers from incursions. Developing and small countries often exhibit a regulatory bifurcation between local lawyers and those trained and licensed abroad. Legal services regulation cuts both ways for foreign lawyers. Countries such as India exclude them altogether. However, regulation may also give foreign lawyers their own market shelters (Bonelli and Fortes Vol 1, ch 19) and exempt them from some ethical rules applicable to domestic lawyers in the host jurisdiction (Liu 2011). In other countries, differences may exist between host and incoming professions in terms of work performed and regulation. Singapore, for instance, restricts foreign lawyers to corporate practice, forbidding them to compete for personal clients, but subjects foreign and domestic lawyers to a common code of conduct (Chen and Whalen-Bridge 2017). The International Bar Association (2016) has identified a global shift in favour of granting practice rights to foreign lawyers. III.  ALTERNATIVE REGULATORY INSTITUTIONS

A.  State Regulation State regulation is deeply problematic for lawyers’ collective project because, as Abel argued (1989), self-regulation was both a motive of professionalisation and a basis for claims to autonomy. A recent study by the International Bar Association identified the regulator in 158 countries containing 233 jurisdictions. It found that national or local lawyer associations were the majority of regulators of practice and discipline but not admissions (see Table 1). Table 1  Regulation of admission, practice and discipline by jurisdiction Regulator

Admission

Practice

Discipline

National (N) or local (L) bars

N 71 (32%)

N 114 (52%)

N 100 (46%)

L 22 (10%)

L 17 (8%)

L 16 (7%)

Total 93 (42%)

Total 131 (60%)

Total 116 (53%)

Independent regulatory authorities

58 (26%)

24 (11%)

51 (24%)

Courts

27 (12%)

42 (19%)

27 (12%)

Government

16 (7%)

14 (6%)

13 (6%)

Mixed or shared responsibility

29 (13%)

8 (4%)

9 (4%)

223 (100%)

219 (100%)

217 (100%)

Source: International Bar Association Directory of Regulators of the Legal Professions (IBA, 2016) available at www.ibanet.org/IBA_Regulation_Directory_Home.aspx.

212  Andrew Boon and Noel Semple However, Table 1 does not tell the whole story. Since the first edition of Lawyers in Society, some leading jurisdictions have increased state regulation. In over half of nine leading jurisdictions in the previous ten years, government had made significant legislative interventions in legal services markets4 or significant changes to market arrangements (Boon 2017c).5 Some changes involve the creation of regulators in niche areas. In England and Wales, for example, all complaints against any of the eight regulated legal occupations are now heard by a single Ombudsman (ibid). England and Wales, Denmark, and Canada6 have separated the regulatory and representative roles of professional bodies (Boon 2017d; IBA 2016b) and prohibited the latter from trying to influence new ‘independent’ regulatory agencies. This impinges on what is arguably the key area of self-regulation for maintaining professional culture – practice regulation. In England and Wales, regulators continued to use a code of conduct based almost entirely on previous codes (Boon 2016); but significant changes continue to be implemented, including those concerning entry and educational requirements. Although the IBA views this as self-regulation because the independent regulator was established by the professional body, it actually represents a transition from self-regulation to a regime of ‘pure’ regulation (Flood 2011b) or state regulation. In some jurisdictions, state entities create and enforce legal services regulation with no more than technical input from lawyers. The Persian Gulf States, Egypt, and many central and east Asian nations generally take this approach (International Bar Association 2016b). State regulation of lawyers need not be formal or rule-bound. Liu (2011) shows that, despite the weakness of the Chinese Ministry of Justice, state officials exercise power over lawyers through a process of ‘symbiotic exchange’ of resources such as market opportunities. The state is the lead actor in regulating legal services in many countries. It has always been involved in civil law systems (eg Micelotta and Dorian Vol 1, ch 11) but is also becoming more active in common law countries (such as Sommerlad et al Vol 1, ch 4 and Thornton and Wood Vol 1, ch 2), which have been transformed by competitive-consumerist regulatory reform over the last three decades (Boon 2017c; Semple 2015). Supranational bodies, especially the European Union, are also actors in the regulatory space (Terry 2009), often spurring nations to pursue competition-oriented regulatory reforms (eg Micelotta and Dorian Vol 1, ch 11; for Ireland, see Hosier 2015). B.  Judicial Regulation Although it is a branch of the state, the judiciary often regulates lawyers as part of regimes perceived to be self-regulating. It may delegate this inherent jurisdiction to the professions or play a more central role (International Bar Association 2016b). In the United States, state supreme courts have constitutional authority to discipline lawyers but generally defer to bar associations on policy matters (Fischer 2006; Barton 2011). Similarly, the Supreme Court of

4 New Zealand (Lawyers and Conveyancers Act 2006); England and Wales (Legal Services Act 2007); Eire (Legal Services Regulation Act 2015). 5 In Germany, the Rechtsdienstleistungsgesetz 2008 (Legal Services Act) allowed unregulated legal services to operate on the fringes of the market. In Singapore, the Legal Profession Act (2009) gave professional rule-making powers to a new body. The Israeli Bar Association Act gave the Minister of Justice default powers if the Association did not perform its functions. 6 This may seem inconsistent with the proposition that Canada has a traditional professionalist regime; but though there are separate representative bodies in Canada (CBA, OBA, etc), the law societies still have almost total control of regulation.

Still Special After All These Years?  213 Chile gave legal force to a previously voluntary Code of Conduct drafted by the Chilean Bar Association. In Iran, by contrast, the Bar Association is completely subject to the judiciary, which is subordinate to the theocracy. In fact, judges in Iran are more religious officials than lawyers. In Germany, decisions of the Constitutional Court have liberalised the legal profession, forcing its decision-making to conform to the Basic Law of the Constitution (Kilian 2017). C.  Co-Regulatory Arrangements In many jurisdictions power is divided between self-regulatory and state bodies, so-called co-regulation. A government can delegate broad regulatory authority to a bar association, as Libya did in 2014. Some states regulate lawyers’ conduct in specific niches and contexts in pursuit of broader policy goals (Wilkins 1990), while leaving bar associations and courts a free hand in other matters. Securities regulation and laws against money-laundering require lawyers to ‘blow the whistle’ on client wrongdoing despite confidentiality protections (Semple 2017; Katvan et al Vol 1, ch 30). States may also regulate lawyers appearing before state institutions, such as tribunals (Wilkins 1992). In some jurisdictions, states have created regulatory agencies including lawyers, judges, and lay representatives. In Singapore, the Legal Services Regulatory Authority controls both Singapore and foreign lawyers; in New Zealand, government regulators oversee or participate in professional regulation; and in Australia, the Competition and Consumer Commission has intervened in legal services regulation to enforce consumer standards (Boon 2017d). IV.  ALTERNATIVE REGULATORY LOGICS

Freidson proposed two regulatory logics as alternatives or complements to professionalism: market competition and corporate bureaucracy. He suggests that most regulatory contexts will contain a combination of these mechanisms, although one may predominate. The decline of professionalism is some jurisdictions has provided scope for the expansion of these competing logics. A.  Market Regulation One rationale for professionalism is that legal services are ‘credence goods’, whose quality consumers cannot easily assess (Ogus 1995). Lawyers must therefore be socialised in an ideal of public service so they do not exploit this information asymmetry. Clients may be offered additional protections, such as making lawyers fiduciaries of client monies. In some jurisdictions, clients receive little or no regulatory protection beyond that provided to consumers of other services. In others, notably England and Wales, government has sought to promote market regulation at the expense of professionalism (Boon 2017c). The theory of market regulation is that inefficient providers will be driven out by more efficient competitors, but there are problems in creating a perfectly responsive system. For market competition to benefit consumers, they must be sufficiently well informed to understand the trade-offs between quality and cost (Competition and Markets Authority (UK) 2016; Semple 2018), using their market power to regulate lawyers. Abel (1994) argued that large corporate clients, especially those with in-house legal departments capable of shopping

214  Andrew Boon and Noel Semple around, can wield significant market control over outside lawyers. It is less clear whether clients in other markets can effectively control their lawyers through market mechanisms. For competition to function as an effective regulatory mechanism in mass legal services markets it would be necessary for lawyers to publish data on quality and price. This has been proposed by the Competition and Markets Authority in the UK (2016). But even publication may not ensure that clients behave as perfectly rational consumers. Market imperfections are arguably addressed by post hoc mechanisms making lawyers liable for harming client interests. As a control mechanism, however, liability has two problems: first, there may be a long delay before the provider feels the penalty; and second, impecunious lawyers may be unable to pay awards. Many jurisdictions therefore impose requirements that lawyers carry professional indemnity insurance (see section IV.C below). Control by powerful clients is such a powerful influence on lawyer behaviour that some academics doubt whether regulatory intervention can be an effective counterweight. Lawyers may fail to exercise ‘independence’ when in thrall to corporations. Recent empirical work on UK corporate counsel has tended to emphasise the dominance of ‘commercial’ imperatives (Moorhead and Hinchly 2015). Vaughan and Oakley (2016) observed London corporate finance lawyers articulate a ‘client-centered, client-first role’, which might exclude concern for other interests. But though a study of Canadian corporate lawyers also found client capture, it expressed optimism about lawyers’ ability to say ‘no’ to illegal or unethical client demands by drawing on various resources (Dinovitzer et al 2014; 2015). Since the 1980s many developed countries have supported efforts to subject their economies to market forces, by creating powerful competition authorities (Boon 2017c; Sommerlad et al Vol 1, ch 4; Klaaren Vol 1, ch 26). Such bodies may impose measures to force down prices, an attractive policy in legal services markets where costs are high. In most countries, litigation is too expensive for all but the wealthiest. In many, access to justice is a dominant discourse (Klaaren Vol 1, ch 26). This contradicts one of the key promises of the modern state: the enforcement of individual rights. States may attempt to increase competition in order to drive down prices. Measures may include creating professional competitors, reducing legal professions’ restrictive practices and encouraging non-professional competitors (Boon 2017c; Hammerslev Vol 1, ch 8; Doornbos and de Groot-van Leeuwen Vol 1, ch 12). These moves may be supplemented by removing regulation seen to impede a particular market. In many common law jurisdictions contingency fee agreements were banned under ancient crimes and torts aimed at restricting third-party support for litigation. They were also considered unethical and conducive to lawyer misconduct. In England and Wales, declining legal aid support for litigation led to the introduction of various conditional fee agreements that were previously banned. Reduction of regulation to facilitate competitive markets often confronts traditional professional ethics. There are potential threats to lawyer independence when quality and price are controlled by market mechanisms alone. There is also a risk that lawyer behaviour may be influenced by third-party payers, such as legal aid authorities and commercial funders of litigation. The results do not always clearly justify marketisation. In England and Wales, for example, the burden of regulation has proved to be an impediment to cheaper legal services irrespective of the business model used by providers (Boon 2017c). Academic opinion often reflects ambivalence regarding the balance between professionalism and competition in legal services markets. While many academics are supportive of more competitive markets for legal services, there is also criticism of weak regulation, such as allowing lawyers to limit liability or practise without insurance (Fortney 2012).

Still Special After All These Years?  215 B.  Corporate Bureaucratic Regulation The legal ethics literature advocates designing the ‘ethical infrastructure’ of conventional law firms to discourage lawyer misconduct (Schneyer 1991; Chambliss and Wilkins 2002; Parker et al 2008). Such measures often include imposing responsibility on a firm for the conduct of its members. In England and Wales, the independent regulator for solicitors did so by amending the Code of Conduct to specify the ‘outcomes’ legal entities had to achieve and requiring all firms to appoint Heads of Legal Practice and Finance. These compliance posts have additional regulatory responsibilities, and individuals can be held accountable for disciplinary failings within those areas (Boon 2017c). Combined with the reduced powers of the professional body, steps such as these can be seen as a shift in regulatory logic towards a corporate bureaucratic model (Boon 2017c) in which the firm is the ‘primary site of normative control’(Sommerlad et al Vol 1, ch 4). C.  Mixed-Logic Regimes The difficulties in either competition or bureaucracy as alternatives to professionalism suggest they will usually augment conventional regulatory mechanisms. Some shifts towards bureaucratic regulation have coincided with the wishes of legal professions. The desire of sectors of the legal profession for more flexible authorisation arrangements (for example in cross-border work) dovetails with that of government for more competitive domestic market arrangements, including multi-disciplinary partnerships (typically with accountants) or Alternative Business Structures (ABS), allowing non-lawyers to own and manage legal businesses. ABS were eventually introduced in Scotland, where lawyers feared competition with England and Wales. However, the liberalisation of legal services markets may be hindered by the reluctance of states to interfere in professional self-regulation in the belief it serves the public interest. Thus, Germany is allowing multi-disciplinary practice but not ABS because of opposition from the German Bar. The literature on the potential of liability claims as a method of professional regulation is relatively undeveloped (Wilkins 1992). We speculate that the success of liability as a regulatory mechanism depends on two institutions: the judiciary and the insurance industry. Judicial regulation of legal services operates via malpractice lawsuits against lawyers and firms. By determining whether legal services provided to a client were deficient, judges establish baseline quality standards. In many jurisdictions, this is the primary avenue for clients who want compensation for lawyer wrongdoing (Kritzer 2017). For example, the failure of Indonesian bar associations to discipline lawyers has led to increased reliance on lawsuits by aggrieved clients. In some countries, difficulties in bringing malpractice claims encourage alternative, non-judicial avenues for obtaining compensation, particularly small amounts (Fortney 2017; Boon 2017a). Judicial standards affect lawyers through incentives created by professional indemnity insurance (PII). PII policies are mandatory for lawyers in many countries (Kritzer 2017; Kamau Vol 1, ch 24), although only in one state (Oregon) in the US. A detailed empirical study by Kritzer and Vidmar (2018) suggests that malpractice litigation, at least in the US, has very different characteristics in the corporate client and personal client practice ‘hemispheres’. In the latter, claims are relatively common although damages are typically small. Corporate lawyers are named in such suits much less frequently, but the damages claimed are greater, and many are resolved through settlement. In England and Wales, since the Law Society ended its

216  Andrew Boon and Noel Semple mutual insurance scheme, the inability to obtain such insurance on the open market has led to many small firm closures (Boon 2017a). Private insurers offer experience-rated premiums based on the type of practice and work and claims records, resulting in high quotes for many small firms. Thus, it could be argued, compulsory PII allows insurance companies to regulate in a professionalised market by setting the boundary of affordable practice. V.  THE RATIONALE OF LEGAL SERVICES REGULATION: PUBLIC AND PRIVATE INTEREST THEORIES

In this section we consider why legal services are regulated and why they tend to be regulated by professions in democratic states. There are two schools of thought: that regulation serves the interest of some or all of the public (Hantke-Domas 2003); or that regulation advances the interests of those who control it. A.  Public Interest Accounts of Regulatory Motivation Regulation might serve legitimate goals, including correction of the market failures to which legal services are vulnerable, such as information asymmetry, negative externalities, and undersupply of public goods (Bergh 2006; Semple 2015). Recent reforms in the OECD (eg entity regulation, principles-based regulation, and risk-based regulation) seem to be good-faith efforts to make regulation more effective or efficient. Client regulation of lawyers may pursue goals other than profit-maximisation. Some corporations seek to use their market power to encourage outside law firms to adopt programmes of corporate social responsibility, including pro bono contributions and diversity (Boon and Whyte 1999; Vaughan et al 2015; Whelan and Ziv 2013). The promotion of competition in professionalised legal services markets is a distinctively neoliberal public interest goal, emphasised especially in the UK and Australia (Parker 2002; Stephen 2013a; Boon 2010; 2017c; Webb 2013), but also in other advanced economies (Hammerslev Vol 1, ch 8). Promoting competition was also a central motive for the Italian government’s forceful 2005 intervention into what had been a self-regulated profession. Interventions may include the adoption of new philosophies and styles of regulation, for example, shifting the focus away from professionals, acting individually and collectively, and onto employing organisations (Boon and Whyte 2019). Whether new kinds of regulation actually do correct market failure or improve consumer welfare is an empirical question. Results are inconclusive in the two jurisdictions that have attempted to introduce greater competition. In England and Wales, for example, the authorisation of new business structures has had relatively little effect on innovation and the price of services, leading competition authorities to advocate greater use of unregulated services (Boon 2017c) and the growth of unregulated activity, even in core areas such as advocacy. B.  Lawyer Independence and the Rule of Law States may expressly acknowledge the importance of the lawyer’s role by recognising legal professional privilege, which protects lawyers and clients from being compelled to reveal the content of their discussions. Arguments for self-regulation sometimes make broader claims, for example that an independent bar is a necessary incubator for an independent judiciary

Still Special After All These Years?  217 (Millen 2005), independent legal professions nurture limited or balanced constitutionalism (Halliday and Karpik 1997; Boon 2010), or professional autonomy is conducive to public service activities such as provision of services pro bono publico (Boon and Whyte 1999). Proponents of self-regulation have long claimed it serves the public interest because lawyers have, historically, been key political players in the emergence of rule of law regimes in Western liberal democracies (Halliday and Karpik 1997; Gordon 2010). Conversely, ethical rules created and enforced by the state can easily become ‘tool[s]to guarantee the loyalty of lawyers to the Party-state’, as in Vietnam (Nicholson and Do Vol 1, ch 43: 864). In that country, lawyers are required to report their clients’ crimes, refrain from criticising the state, and cooperate with the government-controlled media. The role of lawyers in rule of law regimes has been under attack during most of the period since the first edition of Lawyers in Society. From the 1970s, many US academics expressed considerable doubt about whether the client-centric propensities of lawyers could be justified in moral terms (Wasserstrom 1975; Schwartz 1978). This disquiet grew with more precise analysis of lawyers’ behaviour. The ‘standard conception’ of the lawyer’s role was drawn from the American Bar Association ethics rules, based on courtroom advocacy (Simon 1978), which encouraged extreme partisanship that would otherwise be considered unethical (Freedman 1966). This was justified as supporting the autonomy of litigants (Sward 1989). There are concerns, however, about the protection of third-party and public interests in regimes that are more focused on client interests (Nicholson and Webb 2000). The standard conception required lawyers to treat clients as consumers, accepting their objectives regardless of the lawyer’s moral views (principle of neutrality) and using all lawful means to achieve those objectives (principle of partisanship). Lawyers, then, were not accountable for the consequences (principle of non-accountability) (Simon 1978). Simon argued that while these principles derived from criminal defence, they also permeated lawyers’ non-adversarial roles. This model of the professional role, emphasising client-centricity at the expense of public-facing duties, defined subsequent academic debates about lawyers’ roles (Boon and Levin 1999; Nicolson and Webb 2000; Dare 2009; Wendel 2010). In particular, it dominated discussions of the ethical responsibilities of lawyers and the legal implications, such as professional privilege. Many early contributions to the debate on the role morality of lawyers noted the baleful impact of neutrality and partisanship on individual lawyers and the culture of legal practice and society (Pepper 1986; Luban 1988; Goodrich 2000; Nicolson and Webb 2000), while more recent contributions have tended to support versions of the standard conception, based on the relationship between the conventional professional roles of lawyers and the rule of law. They do so by confining partisanship to limited spheres, such as criminal defence (Dare 2009), or restricting the client interests lawyers legitimately may pursue (Wendel 2010). While debates concerning the validity of the lawyer’s professional role remained grounded in moral and political philosophy (Luban and Wendel 2017), little attention has been paid to whether the standard conception offers a true account of the lawyer’s role in the US (but see Schneyer 1984) or elsewhere. Lawyers’ obligations to clients and others may differ significantly between the US and other jurisdictions, including England and Wales (Boon 2016), where the principles of neutrality and partisanship are often said to have originated. In the US, the ABA Model Rules now differentiate standards by context (thereby qualifying partisanship) and extend lawyers’ duties to third parties. In the common law jurisdictions influenced by English law, codes of conduct may only pay lip-service to the standard conception. There are few examples of disciplinary rules requiring lawyers to accept all clients (the English bar’s ‘cab rank’ principle) or pursue a client’s lawful objectives. In most leading common law jurisdictions, ethical codes commit lawyers to defending

218  Andrew Boon and Noel Semple their clients’ best interests, a formula opening the door to paternalistic interpretations of those interests (Boon 2016). Indeed, lawyers’ codes of conduct generally qualify obligations to clients by invoking a public role, such as duties to the court, requiring independence from clients. Scepticism regarding the claims of lawyers in liberal democracies to independence, support for the rule of law or other ideologies is not new. In the first edition of Lawyers in Society, however, Friedman said that there may be ‘a core of truth to the myth, and perhaps more than just a core’ (1989: 18–19). He also suggested that, since nothing exactly like legal professions existed in most third world countries before the colonial period, the notion of ‘law’ in those countries came to mean Western law, while ‘lawyer’ meant primarily ‘Western lawyer’ (ibid: 1). In many former European colonies lawyers sometimes had to be trained in the home ­jurisidiction7 (Uzebu-Imarhiagbe Vol 1, ch 25) or were imported from the metropole or other colonies (Crouch Vol 1, ch 39; Karekwaivanane Vol 1, ch 27). Where legal education evolved in former colonies it was often offered first by European academics, and legal services were delivered by European lawyers (Dezalay Vol 1, ch 23). It is not surprising, therefore, that the ideology of emergent legal professions in former colonies continues to draw inspiration from notions of democracy and the rule of law. This may partially explain the rise of ‘cause lawyering’, on behalf of regime opponents or against regime policies in emerging democracies like Tunisia, Taiwan, Zimbabwe and pre-1992 Ghana (Dawuni 2017). Legal professions often claim to support the rule of law in countries that lack a colonial history linked to Western democracies, for example, Brazil and China. In Turkey, the Union of Turkish Bar Associations has been a prominent voice opposing authoritarian trends and supporting regime opponents (Elveriş 2016; see also Carlisle Vol 1, ch 31 and Gómez and Pérez-Perdomo Vol 1, ch 22). This activity may be encouraged by the main international bar associations, which have promoted ‘Western’ notions of lawyers’ ethics and independent legal professions as an aspiration for all nations (Boon and Flood 1999b; Council of Bars and Law Societies of Europe 2013; International Bar Association 2011). In most legal systems, lawyers also have duties to the judiciary, the legal system and the administration of justice. Litigators and advocates, for example, may be obligated not to mislead the court. Lawyers should counsel against, and cannot participate in, illegal client activity. They may be required by statute to report suspected money laundering or terrorist activity by clients. In the absence of such statutory provisions, however, they generally are not obligated to report client wrongdoing, even to prevent third-party harms. In the leading jurisdictions, rules about reporting client behaviour threatening the physical or financial security of third parties tend to be permissive rather than mandatory (Boon 2016). Ethical codes perform a range of public interest functions: role definition, guidance, regulation, discipline, education, and differentiation, and as well as public relations (Abel 1981; Abbott 1988; Nicolson 1998). Codes are often the closest that legal professions come to public statements of values and aspirational ideals, typically reflecting the confluence of purposes we have identified. For example, the Federation of Law Societies of Canada’s Model Code of Professional Conduct states that a ‘special ethical responsibility comes with membership in the legal profession. This Code attempts to define and illustrate that responsibility in terms of a lawyer’s professional relationships with clients, the Justice system and the profession’. The core private practitioner norms expressed in codes of conduct, covering advertising, conflicts of interest, court conduct and legal professional privilege, tend to be ubiquitous, even in places like Russia, where professionalism is weak.



7 A

requirement in Nigeria until the 1960s.

Still Special After All These Years?  219 Lawyers’ roles in bringing judicial review proceedings challenging legislation (in the US) or holding the executive to account (in the UK) assert the constitutional separation of powers (see eg Dieng 1997). These functions support arguments for the independence of lawyers, arguably based on autonomy in independently established legal professions, and are said to be incompatible with state regulation of lawyers (Gordon 1988; Dingwall and Fenn 1987; Kirby 2005). We argue that, in general, independent legal professions are imperfect indicators of rule of law regimes. Yet, there is clearly some connection. In developed countries like Poland, weakened legal professions are symptomatic of the decline of the rule of law and expose the judiciary to increased risk of attacks (Davies 2018). Claims that lawyers support the rule of law are most clearly substantiated when lawyers are a focus of resistance to regime interference in civil society (Dezalay Vol 1, ch 23) or assert clients’ rights against the state by representing those accused of political crimes or challenging abuses of rights by state administrations or bureaucracies in national or international forums (Pue 1997; Gobe Vol 1, ch 33; Böhmer Vol 1, ch 18; Klaaren Vol 1, ch 26). Some such champions of the rule of law risk torture and death (Crouch Vol 1, ch 39). Advocacy for the rule of law may be weakened by growth in corporate practice, the high cost of litigation, the decline of pro bono work and a growth of in-house legal sectors (Doornbos and de Groot-van Leeuwen Vol 1, ch 12). It is debateable whether independent professions are necessary to address such issues: lawyers may be subject to statutory public responsibilities, such as pro bono representation, even when self-regulation is weak (Böhmer Vol 1, ch 18). C.  Private Interest Accounts of Regulatory Motivation Many academics and policy makers are sceptical of the motives underlying professional legal services regulation (Abel 1981). The market control theory contends that professional projects are self-interested. Arthurs (1998) found an ‘ethical economy’, in which self-regulatory organisations focus on ‘those disciplinary problems whose resolution provides the highest returns to the profession with the least risk of adverse consequence’ (see also Brockman 2010). Beil (1970) suggests that American bar associations in the 1960s aggressively persecuted lawyers who represented opponents of the powerful clients of the legal establishment. The Israeli Bar Association, which has a dominant regulatory role in that country, is ‘highly proactive in resisting any real or perceived threat to the profession’s symbolic status or material concerns’ (Katvan et al Vol 1, ch 30). After Tunisian lawyers played a leading role in the 2010–11 protests that removed President Ben Ali from power, they sought to use the resulting social capital to enlarge their legal services monopoly. Naturally, state officials may promote selfish interests through regulation. Discipline may be used to cow lawyers who represent politically dangerous opponents. For example Mrowczynski (2016) describes a 2008 effort by President Vladimir Putin to increase the Russian government’s power to disbar advocates defending his rival Mikhail Khodorovskii. In Vietnam, lawyers’ power to do anything contrary to the interests of the regime is tightly constrained, as the disbarment of lawyer Võ An Đôn illustrates. Different groups experience different degrees of regulation in the same jurisdiction (Nicholson and Do Vol 1, ch 43: 871–72). In Iran, ‘legal advisors’ are controlled by the judiciary, whereas its traditional lawyers enjoy a small measure of self-regulatory independence under the Iranian Bar Association. One Iranian lawyer said: [I]f we defend a political case [involving dissidents] or give an interview, we know that our license won’t be revoked at the end of the year because of that. But legal advisors’ licenses are renewed by the judiciary, which may revoke them at will.

220  Andrew Boon and Noel Semple Lawyers’ relationship to the rule of law arguably confers special responsibility to defend it. Lawyers may be more active in protecting the rule of law in emergent or fragile democracies than in those better established. Recent examples include Pakistan, where lawyers defied riot police to protest the removal of the Chief Justice (Library of Congress, undated), and Turkey, where numerous lawyers were subjected to harassment, arrest, and prosecution, usually for being members of terrorist organisations, as part of the crackdown on civil society (Human Rights Watch 2019). The efforts of some wealthy Western countries to erode restrictive practices, subordinate client confidentiality to mandatory reporting of money laundering and legalise third-party funding of litigation and fee agreements giving lawyers a stake in the outcome may subvert legal ethics, independence, and hence the rule of law (Turriff 2010). VI. CONCLUSION: LAWYERS IN SOCIETY: 30 YEARS ON

The original volumes of Lawyers in Society expressed doubts about the motives and integrity of regulatory processes controlled by lawyers’ organisations. Clients injured by negligence or incompetence were relegated to risky civil claims; the most common client complaints (about discourtesy, delay, and cost) fell outside the ambit of disciplinary procedures; a large proportion of claims that qualified for consideration were dismissed without a hearing (Abel 1989: 133–35). As legal professions have been subjected to further investigation there has been continuing criticism of self-regulation: failure to require insurance against the risk of client harms (Kritzer 2017); diversion of serious complaints (Brockman 2004); and overrepresentation of solo and small firm lawyers in disciplinary proceedings (Abel 2008). At the same time, efforts to control lawyer autonomy, usually by promoting competition, raise the danger of unduly expanding state power (Halliday and Karpik 1997). Perspectives on regulation and ethics advanced in the original edition remain helpful in understanding the evolving nexus between lawyers, clients, states, and markets. By the time it was published in 1988, sociological reverence for professional norms (Durkheim 1992) had been supplanted by scepticism (Larson 1977). Moreover, the loss of control over educational routes to qualification and, hence, supply, posed a real threat to the logic of professional regulation (Abel 1986). There is ample evidence that this trend has continued, presenting internal challenges to self-regulation and external challenges by, for example, creating pools of viable non-professional labour. The scholarly attack on legal professionalism and the profession’s efforts to control its market resonated with policy-makers. Activist states, dedicated to free market ideologies and consumer rights, had ‘transformed the professional configuration’ in some jurisdictions (Abel 1989: 137). Under neoliberal regimes, deprofessionalisation has accelerated on several fronts (Boon 2017d), including state attacks on self-regulation and increasing emphasis on the firm as a site for practitioner socialisation and continuing training (Boon and Fazaeli 2014). Although the ideologies of professionalism and the rule of law continue to animate legal ethics and legal services regulation in many countries, they are losing traction in others, raising fundamental questions about legal services regulation. These developments give new relevance to the question, ‘who regulates legal services and why?’ Scholarship in the original Lawyers in Society volumes encouraged a comparative analysis of legal services regulation in response to these questions. At that time, it was widely recognised that lawyers played a central role in their own regulation, acting primarily through professional associations. Today, however, most jurisdictions grant lawyers little or no control

Still Special After All These Years?  221 over the markets in which they must sink or swim. In some jurisdictions the state plays a leading role, not only through broad legislative initiatives but also through institution-specific rules, judicial administration of discipline, and malpractice regimes. Clients and third parties may also play a ‘regulatory’ role, exercising both their authority under the ‘standard conception’ of legal ethics and the economic power large consumers wield over their law firms. For what purposes do self-regulatory organisations, state actors, and clients regulate lawyers? Their stated public interest goals – correcting market failures, promoting competition, and especially upholding lawyer independence and the rule of law – resonate with some scholars. Others advance convincing accounts showing how legal services regulation serves the interests of those who regulate. Thus, even in established bastions of lawyer independence, the state uses regulation to increase competition and weaken lawyers’ control of the market. Co-regulation by professions and state agencies may be the ultimate outcome. We expect professions to remain responsible for entry and discipline, while other agencies take a leading role in practice regulation because of the significance of the competitive agenda. We expect that these spheres may clash where the length and cost of legal education is perceived to affect the cost of legal services. Other important regulatory features, attributed by some to lawyer self-interest, can also be understood as necessary safeguards for lawyers’ independence and the rule of law. Insulating rules are said to guarantee that lawyers’ loyalty to clients is insulated from economic dependence on profit-seeking managers or investors (Green 2000). Codes of conduct often embody a client orientation consistent with the protection of citizens’ rights. Efforts to preserve occupational unity and control entry can be seen as ways to ensure that a single, independent legal profession includes all those – and only those – willing to work together to advance the cause of law (Freidson 2001: 202). The future of lawyer regulation resists easy generalisation. Some trends erode professional control: centralisation of regulatory regimes, separation of representative and regulatory functions, and the creation of specialist regulatory agencies (IBA 2016b; Boon 2017d). Others suggest the strengthening, or perhaps the adaptation, of professionalism: increasing fusion of sub-professions, the professionalisation of paralegal groups, harmonisation of international ethics regimes, and increasing co-regulation by professions and other agencies. There are also some contrary indicators: while England and Wales is in the vanguard of legal services regulatory reform, Scotland – a neighbouring jurisdiction but part of the same country – has seen little change over the past 30 years. Given the variety of lawyer regulation, the comparative approach introduced 30 years ago and reflected in the country reports continues to be a fertile source of insight. Lawyer self-regulation may be a historical accident rather than a necessity. By expanding the range of jurisdictional examples we see there is no ideal type of regime. There are a significant minority of jurisdictions where legal professionalism does not operate. This highlights the many alternatives to self-regulation. The increase in state involvement in regulation in some Western liberal democracies suggests that the market shelter offered by traditional professional control is becoming less secure. Although occupational unity is strengthening in some countries, insulating rules and self-regulation remain vulnerable. Inability to control the supply of new licensees is a fatal chink in the professional armour. Lawyers, it seems, have less control over their markets. Such developments may reduce their authority in civil society and undermine their support for the rule of law. Yet, in many jurisdictions, the aspiration to establish independent legal professions remains a component of efforts to strengthen the rule of law. While the proliferation of examples may seem to weaken the scope for overarching theory, for the reasons we have identified, we expect co-regulatory models to dominate increasingly over the next 30 years.

222  Andrew Boon and Noel Semple REFERENCES Abbott, AD (1988) The System of Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). Abel, RL (1981) ‘Why Does the American Bar Association Promulgate Ethical Rules?’ 59 Texas Law Review 639–88. —— (1986) ‘The Decline of Professionalism?’ 49 Modern Law Review 1. —— (1988) ‘England and Wales: A Comparison of the Professional Projects of Barristers and Solicitors’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol 1 The Common Law World (Berkeley, University of California Press) 23. —— (1989) American Lawyers (New York, Oxford University Press). —— (1994) ‘Transnational Law Practice’ 44 Case Western Reserve Law Review 737. —— (2008) Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (New York, Oxford University Press). —— (2012) ‘What Does and Should Influence the Number of Lawyers?’ 19(2–3) International Journal of the Legal Profession 131. Abel, RL and Lewis, PSC (eds) (1988–89) Lawyers in Society, 3 vols (Berkeley, University of California Press). American Bar Association (2018) ‘Model Rules of Professional Conduct’ www.americanbar.org/groups/ professional_responsibility/publications/model_rules_of_professional_conduct/. Arthurs, H (1998) ‘Why Canadian Law Schools Do Not Teach Legal Ethics’ in K Economides, Ethical Challenges to Legal Education and Conduct (Oxford, Hart Publishing) 105–17. Barton, BH (2011) The Lawyer-Judge Bias in the American Legal System (Cambridge, Cambridge University Press). —— (2015) Glass Half Full: The Decline and Rebirth of the Legal Profession (Oxford, Oxford University Press). Beil, M (1970) ‘Controlling Lawyers by Bar Associations and Courts’ 5 Harvard Civil Rights–Civil Liberties Law Review. Bergh, RV d (2006) ‘Towards Efficient Self-Regulation in Markets for Professional Services’ in C-D Ehlermann, European Competition Law Annual 2004: The Relationship Between Competition Law and the (Liberal) Professions (London, Hart Publishing). Bonkalo, AE (2016) Report of the Family Legal Services Review (Toronto, MAG) www.attorneygeneral. jus.gov.on.ca/english/about/pubs/family_legal_services_review/. Boon, A (2010) ‘Professionalism under the Legal Services Act 2007’ 17(3) International Journal of the Legal Profession 195–232. —— (2016) ‘The Legal Professions’ New Handbooks: Narratives, Standards and Values’ 19(2) Legal Ethics 207–33. —— (2017a) ‘Understanding Lawyer Default in England and Wales: An Analysis of Insurance and Complaints Data’ 24(2) International Journal of the Legal Profession 91–108. —— (2017b) ‘The Regulation of Lawyers and Legal Services’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing) 1–26. —— (2017c) ‘England and Wales: A Cocktail of Strategies for Legal Services Reform’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing) 209–39. —— (2017d) ‘Innovation and Change in the Regulation of Legal Services’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing) 241–69. Boon, A and Fazaeli, T (2014) ‘Professional Bodies and Continuing Professional Development: A Case Study’ in S Crowley (ed), Challenging Professional Learning (London, Routledge). Boon, A and Flood, J (1999a) ‘Trials of Strength: The Reconfiguration of Litigation as a Contested Terrain’ 33 Law & Society Review 595. —— (1999b) ‘The Globalisation of Professional Ethics?: The Significance of Lawyers’ International Codes of Conduct’ 2(1) Legal Ethics 129–57.

Still Special After All These Years?  223 Boon, A and Levin, J (1999) The Ethics and Conduct of Lawyers in England and Wales (Oxford, Hart Publishing). Boon, A and Whyte, A (1999) ‘“Charity and Beating Begins at Home”: The Aetiology of the New Culture of Pro Bono Publico’ 2(2) Legal Ethics 169–91. —— (2019) ‘Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015’ 3 Legal Studies 455–78. Brockman, J (2010) ‘Money for Nothing, Advice for Free: The Law Society of British Columbia’s Enforcement Actions Against the Unauthorized Practice of Law’ 29 Windsor Review of Legal and Social Issues 1–43. Chambliss, E, and Wilkins, DB (2002) ‘Promoting Effective Ethical Infrastructure in Large Law Firms: a Call for Research and Reporting’ 30 Hofstra Law Review 691. Chen, A and Whalen-Bridge, H (2017) ‘Singapore’s Unified Approach: Regulating Domestic and Foreign Lawyers in an Internationalised Jurisdiction’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing). Competition & Markets Authority (UK) (2016) Legal Services Market Study: Final Report https://assets. publishing.service.gov.uk/media/5887374d40f0b6593700001a/legal-services-market-study-final-report. pdf. Council of the Bars and Law Societies of Europe Statutes (adopted November 2013) www.ccbe.eu/ fileadmin/user_upload/document/statuts/statutes_en.pdf. Dare, T (2009) The Counsel of Rogues: A Defence of the Standard Conception of the Lawyer’s Role (Aldershot, Ashgate). Davies, C (2018) Hostile Takeover: How Law and Justice Captured Poland’s Courts (Washington DC, Freedom House). Dawuni, JJ (2017) ‘Lawyers in Ghana’ (Paper presented at the International Meeting on Law and Society, Mexico City). Dezalay, S (2017) ‘Lawyers in Africa: From Comparison to Interconnected Stories of Globalization (Stakes for an Open Research Agenda)’ (Paper presented at the International Meeting on Law and Society, Mexico City). Dezalay, Y and Garth, BG (2011) Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge). Dieng, A (1997) ‘Role of Judges and Lawyers in Defending the Rule of Law’ 21(2) Fordham International Law Journal 550. Dingwall, R and Fenn, PT (1987) ‘A Respectable Profession? Sociological and Economic Perspectives on the Regulation of Professional Services’ 7 International Review of Law and Economics 51–64. Dinovitzer, R, Gunz, H and Gunz, S (2014) ‘Corporate Lawyers and their Clients: Walking the Line between Law and Business’ 21 International Journal of the Legal Profession 3–21. —— (2015) ‘The Changing Landscape of Corporate Legal Practices: an Empirical Study of Lawyers In Large Corporate Law Firms’ 93 Canadian Bar Review 343–69. Durkheim, E ([1890] 1992) Professional Ethics and Civic Morals (C Brookfield, trans) (New York, Routledge). Elveriş, I (2016) ‘Cause Lawyering When it Really Matters: How Istanbul Lawyers Reacted to Events in Gezi’ 23 International Journal of the Legal Profession 131–56. Fischer, JM (2006) ‘External Control over the American Bar’ 19 Georgetown Journal of Legal Ethics 59. Flood, J (2011a) ‘The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation’ 59(4) Current Sociology 507. —— (2011b) Legal Education in the Global Context: Challenges from Globalization, Technology and Changes in Government Regulation (London, Legal Service Board). Fortney, SS (2012) ‘Law as a Profession: Examining the Role of Accountability’ 40(1) Fordham Urban Law Journal 177. —— (2017) ‘Legal Malpractice, A Tort in Search of a Remedy, Prying Open the Courthouse Doors for Legal Malpractice Victims’ 85 Fordham Law Review 2099. Freedman, MH (1966) ‘Professional Responsibility of the Criminal Defence Lawyer: The Three Hardest Questions’ 64 Michigan Law Review 1469.

224  Andrew Boon and Noel Semple Freidson, E (2001) Professionalism: The Third Logic (Cambridge, Polity Press). Friedman, L (1989) ‘Lawyers in Cross-Cultural Perspective’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Galanter, M (2011) ‘More Lawyers than People: The Global Multiplication of Legal Professionals’ in SL Cummings, The Paradox of Professionalism: Lawyers and the Possibility of Justice (Cambridge, Cambridge University Press). Goodrich, P (2000) ‘Law-Induced Anxiety: Legists, Anti-Lawyers and the Boredom of Legality’ 9(1) Social and Legal Studies 143. Gordon, RW (1988) ‘The Independence of Lawyers’ 68 Boston University Law Review 1. —— (2010) ‘The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections’ 11 Theoretical Inquiries in Law 441. Green, BA (2000) ‘The Disciplinary Restrictions on Multidisciplinary Practice: Their Derivation, Their Development, and Some Implications for the Core Values Debate’ 84 Minnesota Law Review 1115. Hadfield, GK (2014) ‘The Cost of Law: Promoting Access to Justice through the Corporate Practice of Law’ 38 International Review of Law and Economics 43–63. Halliday, TC and Karpik, L (eds) (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (New York, Oxford University Press). Hantke-Domas, M (2003) ‘The Public Interest Theory of Regulation: Non-Existence or Misinterpretation?’ 15(2) European Journal of Law and Economics 165–94. Hazard, GC and Dondi, A (2004) Legal Ethics: A Comparative Study (Stanford, Stanford University Press). Heinz, JP, Nelson, RL, Sandefur, RL and Laumann, EO (2005) Urban Lawyers: The New Social Structure of The Bar (Chicago, University of Chicago Press). Hosier, M (2015) ‘The Legal Profession in Troikaland: Before and After the Irish Bailout’ 22 International Journal of the Legal Profession 193. Human Rights Watch (2019) Lawyers on Trial: Abusive Prosecutions and Abuse of Fair Trial Rights in Turkey www.hrw.org/report/2019/04/10/lawyers-trial/abusive-prosecutions-and-erosion-fairtrial-rights-turkey. Hyde, J (2020) ‘Expanding Law Group Buys Yorkshire ABS from LegalZoom’ Law Society Gazette 24 April. International Bar Association (2011) International Principles on Conduct for the Legal Profession (adopted 28 May 2011) www.ibanet.org/Publications/publications_IBA_guides_and_free_materials. aspx#ethics. —— (2016a) Directory of Regulators of the Legal Profession (London, IBA) www.ibanet.org/Legal_ Regulators_Directory. —— (2016b) Findings From the Directory of Regulators of the Legal Profession (London, IBA) www.ibanet.org/MediaHandler?id=1ecea440-9157-4a78-b4b5-6559c7d2876c. Johnson, T (1972) Professions and Power (London, Macmillan). Karpik, L (1999) French Lawyers: A Study in Collective Action, 1274–1994 (Oxford, Oxford University Press). Kaye, RP (2006) ‘Regulated (Self-)Regulation: A New Paradigm for Controlling the Professions?’ 21 Public Policy and Administration 105–19. Kilian, M (2017) ‘Germany: the Constitutional Court as the Driver of Change in the Regulation of Legal Professions’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing). Kirby, M (2005) ‘Independence Of The Legal Profession: Global And Regional Challenges’ (Speech delivered to the Presidents of Law Associations in Asia Conference in Broadbeach, Australia on 20 March 2005). Kritzer, HM (2017) ‘Lawyers’ Professional Liability: Comparative Perspectives’ 24(2) International Journal of the Legal Profession 73–89. Kritzer, HM and Vidmar, N (2018) When The Lawyer Screws Up: Access To Justice For Victims Of Legal Malpractice (Kansas, University Press of Kansas).

Still Special After All These Years?  225 Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Legis Québec (2010) ‘Règlement sur l’exercice de la profession d’avocat en société et en multidisciplinarité (chapitre B-1, r. 9)’. Levin, LC (2014) ‘The Monopoly Myth and Other Tales about the Superiority of Lawyers’ 82 Fordham Law Review 2611. Liu, S (2011) ‘Lawyers, State Officials and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market’ 206 The China Quarterly 276. Luban, D (1988) Lawyers and Justice: An Ethical Study (Princeton, Princeton University Press). Luban, D and Bradley Wendel, W (2017) ‘Philosophical Legal Ethics: An Affectionate History’ 30 Georgetown Journal of Legal Ethics 337. Maurizi, A (1974) ‘Occupational Licensing and the Public Interest’ 82(2) Journal of Political Economy 399–413. Millen, R (2005) ‘The Independence of the Bar: An Unwritten Constitutional Principle’ 84(1) Canadian Bar Review 107. Moorhead, R and Hinchly, V (2015) ‘Professional Minimalism? The Ethical Consciousness of Commercial Lawyers’ 42(3) Journal of Law and Society 387. Mrowczynski, R (2016) ‘Institutional Professionalization of Lawyers in State Socialism and Post Socialism Poland and Russia Compared’ 23(2) International Journal of the Legal Profession 157–84. MyJoyOnline (2015) ‘Restrictions on Entering Ghana Law School Arbitrary, Unfair – Lawyers’ Myjoyonline.com 13 August 2015. Nicolson, D (1998) ‘Mapping Professional Ethics: The Form and Focus of the Codes’ 1(1) Legal Ethics 51. Nicolson, D and Webb, J (2000) Professional Legal Ethics: Critical Interrogations (Oxford, Oxford University Press). Ogus, A (1995) ‘Rethinking Self-Regulation’ 15 Oxford Journal of Legal Studies 97. Parker, C (2002) ‘Regulation of the Ethics of Australian Legal Practice: Autonomy and Responsiveness’ 25 University of New South Wales Law Journal 676. Parker, C, Evans, A, Haller, L, Mire, SL and Mortensen, R (2008) ‘The Ethical Infrastructure of Legal Practice in Larger Law Firms: Values, Policy and Behavior’ 31 University of New South Wales Law Journal 158. Paterson, I, Fink, M and Ogus, A (2003) Economic Impact of Regulation in the Field of Liberal Professions in Different Member States, Study for the European Commission, DG Competition (Vienna, Institute for Advanced Studies). Pepper, S (1986) ‘The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities’ 4 American Bar Foundation Research Journal 613. Pue, WW (1997) ‘Lawyers and Political Liberalism in Eighteenth and Nineteenth Century England’ in TC Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) 167. Rhode, DL (1981) ‘Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions’ 34(1) Stanford Law Review 1. —— (1996) ‘Professionalism In Perspective: Alternative Approaches To Nonlawyer Practice’ 22 New York University Review of Law and Social Change 701. —— (2013) ‘Reforming American Legal Education and Legal Practice: Rethinking Licensing Structures and the Role of Nonlawyers in Delivering and Financing Legal Services’ 16(2) Legal Ethics 243. Rose, N (2018) ‘LegalZoom secures “largest ever investment in law”’ Legal Futures 2 August 2018. Schneyer, T (1984) ‘Moral Philosophy’s Standard Misconception of Legal Ethics’ 6 Wisconsin Law Review 1529. —— (1991) ‘Professional Discipline for Law Firms’ 77 Cornell Law Review 1. Schwartz, ML (1978) ‘The Professionalism and Accountability of Lawyers’ 66 California Law Review 669. Semple, N (2015) Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, Edward Elgar).

226  Andrew Boon and Noel Semple —— (2017) ‘Legal Services Regulation in Canada: Plus ça change?’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing). —— (2018) ‘Mystery Shopping: Demand-Side Phenomena in Markets for Personal Plight Legal Services’ 26(2–3) International Journal of the Legal Profession 181–216. Shanahan, T (2000) ‘A Discussion of Autonomy in the Relationship between the Law Society of Upper Canada and the University-Based Law Schools’ 30(1) Canadian Journal of Higher Education 27. Simon, W (1978) ‘The Ideology of Advocacy: Procedural Justice and Professional Ethics’ 1978 Wisconsin Law Review 29. Smith, A (1776) An Inquiry into the Nature and Causes of the Wealth of Nations (London, W Strahan and T Cadell). Snyder, L (2017) ‘France’s Haeri Report and Alternative Structures (2 of 2): Je t’aime, moi non plus’ Not Just for Lawyers (27 February 2017) notjustforlawyers.com/haeri-report-alternative-structures-2/. Society of Notaries of British Columbia and Law Society of British Columbia (2015) ‘Memorandum of Understanding and Appendices’. Stephen, F (2013a) Lawyers, Markets and Regulation (Cheltenham, Edward Elgar). —— (2013b) ‘Legal Services Act 2007 and the Promotion of Regulatory Competition’ in Lawyers, Markets, and Regulation (Cheltenham, Edward Elgar) ch 7. Sward, EE (1989) ‘Values, Ideology and the Evolution of the Adversarial System’ 64(2) Indiana Law Journal 301. Terry, LS (2009) ‘The European Commission Project Regarding Competition in Professional Services’ 29 Northwestern Journal of International Law and Business 1. —— (2014) ‘Putting the Legal Profession’s Monopoly on the Practice of Law in a Global Context’ 82 Fordham Law Review 2903. Turriff, G (2010) ‘The Consumption of Lawyer Independence’ 17 International Journal of the Legal Profession 283. Vaughan, S and Oakley, E (2016) ‘“Gorilla Exceptions’ and the Ethically Apathetic Corporate Lawyer’ 19(1) Legal Ethics 50–75. Vaughan, S, Thomas, L and Young, A (2015) ‘Symbolism over Substance? Large Law Firms and Corporate Social Responsibility’ 18(2) Legal Ethics 138. Wasserstrom, R (1975) ‘Lawyers as Professionals: Some Moral Issues’ 5 Human Rights 1. Webb, J (2013) ‘Regulating Lawyers in a Liberalized Legal Services Market: The Role of Education and Training’ 24(2) Stanford Law & Policy Review 533–70. Wendel, WB (2010) Lawyers and Fidelity to Law (Princeton, Princeton University Press). Whelan, CJ and Ziv, N (2013) ‘Law Firm Ethics in the Shadow of Corporate Social Responsibility’ 26 Georgetown Journal of Legal Ethics 153. Wilkins, DB (1990) ‘Legal Realism for Lawyers’ 104(2) Harvard Law Review 468. —— (1992) ‘Who Should Regulate Lawyers?’ 105(4) Harvard Law Review 799. —— (1993) ‘Making Context Count: Regulating Lawyers after Kaye, Scholer’ 66 Southern California Law Review 1145. Witz, A (1992) Professions and Patriarchy (New York, Routledge). Woolley, A (2011) Understanding Lawyers’ Ethics in Canada (Markham, Ontario, LexisNexis). Zer-Gutman, L (2017) ‘Regulation of Lawyers and Legal Services in Israel’ in A Boon (ed), International Perspectives on the Regulation of Lawyers and Legal Services (Oxford, Hart Publishing).

10 When and Why Do Lawyer Organisations Seek to Influence Law?1 LYNN MATHER AND LESLIE C LEVIN

I. INTRODUCTION

M

uch has been written about the legal profession, including its stratification, market control, changing demographics, education, and entry barriers. But as the title of the Abel and Lewis (1996) chapter in Lawyers in Society suggests, let’s consider ‘Putting Law Back into the Sociology of Lawyers’. Besides the occupational aspects of the profession, where is the ‘law’ in what lawyers do? This chapter explores that question by focusing on lawyers’ collective efforts. Some are informal and loosely coordinated, such as the networks of ‘cause lawyers’ pursuing human rights, feminist, environmental, or other agendas (Scheingold and Sarat 2004; Hilbink 2004). Other efforts to effect policy change result from bar association activities, as discussed in Halliday’s (1989) chapter on legal professions and neocorporatism in the original Lawyers in Society. Yet research in the past three decades has focused far more on informal networks of politically engaged lawyers than on formal organisations of lawyers. We seek to explore when and why lawyer organisations seek to influence law, primarily by considering the efforts of professional organisations (mandatory and voluntary). By ‘lawyers’ we mean a country’s legal services providers who are legally educated, permitted to appear in court, and licensed to practise. For example, ‘lawyers’ include abogados, avocats, barristers, solicitors, and bengoshi. We exclude legal professionals in civil law countries such as notaries, prosecutors, judges, and government lawyers who, after obtaining their law degrees, are often trained separately. We also exclude lawmaking efforts by international lawyer organisations.2 We are focusing not on outcomes – success or failure – but rather on the professions’ attempts to affect law. These can take many forms, such as drafting or responding to proposed rules or legislation, lobbying, filing lawsuits or amicus briefs, and engaging in strikes or other public protests. We include ‘pre-law making’ activities, such as problem definition, agenda setting, and mobilisation for change, as well as implementation activities focused on enforcement or resistance. We start with a short theoretical discussion of why lawyer organisations might seek to influence the law. We next identify four situations in which these organisations

1 Research for this chapter was completed in January 2020. We do not consider any changes in the countries since then. 2 For discussion of lawmaking efforts by international lawyer organisations see Levin et al (2018).

228  Lynn Mather and Leslie C Levin seek to influence the law, using examples from seven countries. We then expand our analysis to lawmaking attempts by lawyer associations in 40 other countries, based on the national reports in Volume 1. Finally, we explore the factors that seemingly affect the ability of lawyer organisations to take steps to influence law and the likelihood they will do so. II.  THEORETICAL PERSPECTIVES ON WHY LAWYER ORGANISATIONS MIGHT SEEK TO INFLUENCE LAW

A. Functionalism A classic theory posits that the legal profession uses its independence and expertise to mediate diverse private interests, thereby promoting a broader public interest. This functionalist view, articulated especially by Parsons (1964), endowed lawyers with moral superiority as they legitimised private arrangements. Although largely discredited today, the ideology behind it resonates in recent efforts by the American Bar Association’s Rule of Law Initiative (ABA ROLI) to promote the rule of law in other countries. By identifying lawyers as key actors for advancing the public interest and reducing corruption in developing or transitional nations, the ABA’s activities echo functionalist assumptions about the legal profession. B.  Market Control An alternative view of the professions also sees them as powerful actors but ‘less benign and more self-interested’ and thus ‘less [able] to play a mediative role that binds the society together’ (Heinz 1983: 894). Abel (1985) draws on the work of Larson (1977) to articulate a market control theory: professions seek to influence law to maintain their professional power and advance their collective status. Abbott (1988) develops the concept of jurisdiction to link professional power with expertise and market control: groups compete for jurisdiction by persuading governments and the public that they have the special expertise to do this work. Examples include the legal profession’s efforts to limit entry and reduce intra-professional competition through restrictive laws and practices. C.  Client Interests A third view sees legal professions working to change the law to benefit their clients, not always consciously but rather due to ‘their close identification with, and sharing in, those interests’ (Powell 1988: 341). ‘Although lawyers may leave their immediate clients at the door of the bar association committee room, they are unable to leave behind the common culture and values they share with clients in general’ (ibid). Likewise, Nelson (1985: 527) found that large firm lawyers tended to adopt the views of their corporate clients, making it unlikely that lawyers’ ‘law reform activities will depart to any significant extent from the positions that they advocate for their clients’. In some cases, however, lawyers’ identification with client interests could reduce the ability of a bar organisation to engage in meaningful collective action due to the diversity of the profession (Heinz et al 1976). Reaching agreement on law-making objectives is complicated when the profession has separate hemispheres of lawyers serving either corporations or individuals and small businesses.

When and Why Do Lawyer Organisations Seek to Influence Law?  229 D.  Political Liberalism Halliday (1987: 353–54) draws on the history of the Chicago Bar Association and other sources to describe ‘a historical transition from formative to established professionalism’. As states develop and as professions become more secure, professions’ political activities extend beyond market control. Instead of ‘a vulnerable occupation’ dependent on ‘an empowering state’ (from which it seeks favours), lawyers in a mature state are more ‘empowered’ and the state weaker, facing political and structural crises. Powell (1988: 247–48) picks up this discussion of ‘civic professionalism’ in his study of the New York City Bar, noting that the organised bar helps with state ‘overload’ by devoting time and effort to questions of civic importance, sometimes advancing interests other than those of clients. Powell posits two reasons for this: (1) the elite bar prefers to signal that its own house is in order and problems reside in non-elite practice areas; and (2) the bar acts to maintain the larger system to which it belongs and foster respect for the law. When comparing US bar activities to those in other Western countries (especially France), Halliday and Karpik (1997) expand the concept of political liberalism to include political activities of lawyers in opposition to the state. They also suggest how the historical development of the bar, the relative autonomy of judges and courts in different countries, and the relative emphasis placed on economic interests or political goals influence the likelihood that lawyers will engage in collective political action. In a later comparative study, Halliday et al (2007: 2) test ‘the proposition that lawyers are active agents in the construction of liberal political regimes’: those that embrace individual freedoms with a moderate state, an independent judiciary, and an autonomous civil society. Sometimes legal professions mobilise to defend political liberalism, but in other situations or countries they are constrained from defending it or are openly hostile to it. Some of these approaches reflect more general theories of organisations. Functionalism, for example, emphasises the role of organisations in social structures, promoting stability and integration. Market control theory sees organisations as rational self-interested actors seeking to gain benefits for their members. Political liberalism takes a temporal view of changes in society over time, reflecting the ideas and values of historic institutionalism. III.  LAW-MAKING ACTIVITIES BY LAWYER ORGANISATIONS IN SEVEN COUNTRIES

In view of these theories of the legal profession, when and why do we see efforts by lawyer organisations to influence the law? We begin by focusing on seven countries –Brazil, China, Israel, Japan, Kyrgyzstan, Libya, and the United States – which differ in size, legal systems (civil law, common law, Islamic law), political systems (democracies, transitional governments, autocracies), regions, and attitudes toward the lawyer’s role in civil society.3 The nature of civil society in each country differs as well. While lawyers must be licensed in all these countries and must belong to a state-sanctioned organisation in many of them, most of these countries also have voluntary lawyer associations whose members share common interests or goals.

3 In addition to the citations below, see the following: Bonelli and Fortes Vol 1, ch 19; Liu Vol 1, ch 35; Katvan et al Vol 1, ch 30; Murayama Vol 1, ch 38; Carlisle Vol 1, ch 31; Cummings et al Vol 1, ch 6.

230  Lynn Mather and Leslie C Levin Table 1  Overview of Seven Countries and Their Bar Organisations Population (in millions) (UN 2019)

Legal system4

Type of government

Major bar organisation, date formed, membership type

Brazil

211.0

Civil law

Federal presidential OAB – 1930 republic mandatory

China

1,433

Civil law

Communist

ACLA – 1986 mandatory

Israel

8.5

Primarily common law

Parliamentary democracy

IBA – 1961

Japan

126.9

Civil law

Parliamentary constitutional monarchy

JFBA – 1949

mandatory mandatory

Kyrgyzstan

6.4

Civil law/post Parliamentary Advocatura – 2014 Soviet republic/post-Soviet mandatory transition

Libya

6.8

Civil law/ Islamic law

United States

329.1

In transition

Common law Federal ­constitutional republic

LBA – 1962 mandatory ABA – 1878 voluntary (plus ­mandatory bar ­organisations in 31 states)

The strength of the lawyer organisations in these countries, their relationship to the state, and their ability to mobilise to affect the law vary significantly. Brazil and Japan provide examples of legal professions in civil law democracies. The Ordem dos Advogados do Brasil (OAB), to which all Brazilian lawyers must belong, was created by decree in 1930 and regulates Brazilian lawyers (Bonelli 2003). Much of its important regulatory and political decisionmaking occurs in its 81-member Federal Council (Almeida and Nassar 2018: 195). Before the OAB was formed, Brazil’s elite Institute of Brazilian Lawyers (IAB), which was founded in 1843, regularly advised the state about legislation and helped draft the first republican constitution (Bonelli 2003; IAB 2018). The IAB is tiny in comparison to the OAB but remains committed to social reform. Brazil has other voluntary bar organisations, as well as lawyers’ unions (Falcão 1988). In Japan, all lawyers (bengoshi) are required by the Practicing Attorney Act of 1949 to belong to both the Japan Federation of Bar Associations (JFBA) and their local bar association (Feeley and Miyazawa 2007). Other voluntary lawyer organisations also exist in Japan, such as the Japan Lawyers Association for Freedom and the Japan Young Lawyers Association, which are actively involved in social issues. The US is an example of an established legal profession in a democratic common law country. In the US, every lawyer must be admitted to practice in one of the 50 states or the District of Columbia. Lawyers are required to join their state lawyer organisation (known as a unified bar) in three-fifths of the states. There are also hundreds of voluntary professional lawyer associations. The American Bar Association (ABA) is the largest voluntary bar association in the world (yet less than a quarter of US lawyers are members). Other bar associations



4 The

information in this column and the next comes from the Central Intelligence Agency’s The World Factbook.

When and Why Do Lawyer Organisations Seek to Influence Law?  231 organise by location, areas of practice, racial, ethnic, gender, or religious affinity, and political or social goals. Israel is also a democracy, with a mostly common law legal system. The legal profession there pre-dated the formation of the state in 1948, but the mandatory Israel Bar Association (IBA) was not formed until 1961 (Rosen-Zvi 2001). The IBA is the only bar association permitted by law. Some Israeli lawyers also participate in other organisations that perform advocacy work. One such group, Adalah, is primarily composed of Arab-Palestinian Israeli lawyers advocating for non-discriminatory treatment of Arab-Israeli citizens (Barzilai 2007). Another is the Association for Civil Rights in Israel (ACRI), established in 1972, which works for human rights in Israel and the Occupied Territories (ACRI 2019). Lawyer associations can also be found in countries with transitional governments, which are often plagued by corruption and violence. For example, in Kyrgyzstan, a Muslim majority country formerly part of the USSR, ‘advocates’5 are the licensed legal services providers who can represent clients in criminal matters (ABA ROLI 2014). Although Kyrgyzstan became independent in 1991, it was not until 2014 that a mandatory bar organisation, the Advocatura, was formed for advocates (ICJ 2016). Prior to that time, some advocates belonged to voluntary associations, such as the Association of Attorneys of Kyrgyzstan (AAK), formed in 1995, or the Advocates’ Union, formed in 2002 (ABA ROLI 2014). Libya and its legal profession are also in transition. The Libyan Bar Association (LBA) was formed in 1962 (ILAC 2013). In 1969, Muammar Qaddafi led a coup and vested his Revolutionary Command Council with legislative, executive and judicial authority (Abdelmoula 1992). The LBA maintained its independence until 1981, but thereafter legislation placed significant restrictions on lawyers’ activities and the bar came under the control of the regime. After Qaddafi’s fall in 2011, the LBA and its regional bar associations became active in their own governance, drafting a new law to govern the legal profession (ILAC 2013). Other lawyer groups have also emerged, such as the Hakki Organisation, composed of women lawyers concerned with the rights of women and children (ABA ROLI 2017), and the Libyan Lawyers’ Organisation, which focuses on transitional justice and constitution building (ILAC 2013). Finally, in China, after the legal profession was revived in 1979, lawyers were closely embedded in the state bureaucracy. Privatisation of the bar began in the late 1980s and accelerated thereafter (Michelson 2007). The primary lawyer organisation, the All-China Lawyers Association (ACLA), has mandatory membership and close ties to the state. China also has regional lawyer organisations, such as the important Beijing Lawyers Association, and specialised committees of ACLA, such as the Criminal Law Committee (Liu and Halliday 2011). The Communist Party maintains control of the bar associations through provincial and local justice bureaux, which then influence provincial and local bar associations, whose bar leaders are ‘appointed from above’ followed by ‘a cosmetic “election” to confirm appointments’ (Liu and Halliday 2016: 107). With this brief overview, we turn next to our central question about lawyer organisations’ attempts to influence law. We construct four categories of activities and discuss illustrative cases. These categories suggest a continuum ranging from the most self-interested actions to the most altruistic; although they sometimes overlap, we treat them separately for analytic purposes.



5 The

term ‘advocate’ is used here because a ‘lawyer’ in Kyrgyzstan can only handle civil matters (ABA ROLI 2014).

232  Lynn Mather and Leslie C Levin A.  Working to Benefit the Legal Profession as an Occupation or for the Lawyer Organisation Itself Consistent with market control theory, lawyer associations often seek to influence development of the law in ways that directly affect lawyers’ ability to perform and profit from their work. For example, lawyer groups seek to define, expand or defend their monopoly on the provision of legal services, raise their status, or improve their economic circumstances. These efforts include attempts to attain or maintain the right to self-regulate, which lawyers claim is essential to their independence from the state (Abel 1989). i. Self-Regulation In the United States, bar organisations have fought for the right to promulgate their own rules of conduct without interference by state legislatures or Congress. This can be seen in ABA lobbying against the Sarbanes-Oxley gatekeeping regulations, which the Securities and Exchange Commission imposed on lawyers representing publicly traded companies, in conflict with state bar confidentiality rules (Barnes 2003). In Israel, the IBA actively lobbies against efforts to amend the Bar Act in ways that affect IBA self-governance (Ziv 2003). Many lawyer associations also seek to control admission to the bar. The JFBA strenuously opposed efforts by the Japanese Ministry of Justice to increase the pass rate on the National Bar Examination, which remained less than 3 per cent as late as 1998 (Miyazawa 2001: 90–93). Likewise in Israel, the IBA has warned since the 1960s about the ‘overcrowding’ of the profession (Katvan 2012). The IBA has acted to make it more difficult for applicants to pass the bar examination and extended the length of apprenticeship. In Brazil, the OAB pressed the government to control the number of university places for law students to reduce the number of lawyers produced (Falcão 1988). Lawyer organisations claim that these measures help ensure quality by admitting only the most qualified applicants, but they also act as a form of market control. Legal professions whose self-regulatory powers extend to lawyer discipline have also worked to influence the law to preserve that authority. For example, in the US, the organised bar in California unsuccessfully fought efforts by the state legislature to move control of the lawyer discipline system from a lawyer-dominated process to a more independent State Bar court (Abel 2011). In Israel, the IBA actively opposed and successfully limited legislative efforts to change lawyer discipline procedures (Ziv 2009). In some emerging democracies and autocratic regimes, the story is different, because the legal professions are largely or entirely controlled by the state. In Kyrgyzstan, the Ministry of Justice handled regulation of the legal profession until 2015 (ICJ 2016). Some lawyers opposed efforts to create a unified bar to which all lawyers must belong, partly out of fear that the association would be used by authorities to interfere with lawyer independence and from suspicion of bureaucracies. With assistance provided to lawyers in Kyrgyzstan by international groups such as the ABA ROLI, a self-regulatory model with a unified bar association was finally adopted there (ABA ROLI 2014; ICJ 2016). In Libya and China, the idea of self-regulation by the legal profession was inconceivable when lawyers were effectively government employees. In 1981, Qaddafi nationalised the Libyan legal profession, creating ‘people’s lawyers’ whose revenues were determined by the state. He also replaced the LBA with the state-controlled General Professional Conference. Starting in 1990, a new law permitted lawyers to choose whether to work in private practice but placed significant limitations on their compensation and practices (Abdelmoula 1992).

When and Why Do Lawyer Organisations Seek to Influence Law?  233 Libyan lawyers’ collective efforts were largely aimed at maintaining control over their bar organisations. For example, in 2005 they protested after the Qadaffi regime appointed a leader to the Benghazi Bar Association against the members’ will and again in early 2011 when he overstayed his term (ILAC 2013; Shokr 2011). In 2010 they demonstrated for the right to form a lawyers’ union (Hilsum 2012). Similarly, the new legal profession in China was established by the Interim Regulation on Lawyers, which took effect in 1982 and defined lawyers as ‘state legal workers … [working to] serve the cause of socialism’ (Liu and Halliday 2016: 21). Fifteen years later, China’s Lawyers’ Law formally ‘unhooked’ the legal profession from the state; but in practice, ACLA has remained under close control of the Ministry of Justice (ibid; Michelson 2007). In 2008 some activist Chinese lawyers attempted to challenge state control over the Beijing Lawyers Association (BLA) by asking for the free election of officers and a decrease in mandatory bar fees. The association responded that it was democratic and that ‘inflammatory’ statements to the contrary violated the law (Liu and Halliday 2016: 109). After intense political conflict, the BLA made a few symbolic concessions, but many lawyers who led the fight for change lost their right to practise law. ii.  Defining, Expanding and Defending the Market In many countries, lawyer organisations have sought to define, expand, or defend the territory in which lawyers are the sole providers of legal services, which typically encompasses, at a minimum, appearances in court. In Israel, the IBA has vigorously enforced u ­ nauthorised practice of law rules. In Brazil, the OAB (unsuccessfully) fought the introduction of new small claims courts that would enable litigants to appear without lawyers (Falcão 1988). In Japan, the JFBA unsuccessfully opposed efforts by administrative scriveners to represent clients in objection procedures in administrative actions (Umeda 2014). In the US, state bar associations have sought to protect their turf in legal fights against LegalZoom, an online provider of legal services and documents that competes with lawyers for work (Ambrogi 2014). Some lawyer groups fought against the creation of a new class of legal services providers in Washington State, known as limited license legal technicians, although they were split on this issue (Holland 2013). Lawyer organisations have not only sought to protect lawyers’ turf by preventing incursions by non-lawyers but have also worked to limit the impact of global lawyer competitors. In the late 1990s, Brazil saw an influx of global competitors into the legal market (Almeida and Nassar 2018). By 2002, the OAB’s Federal Bar Council issued a rule prohibiting foreign lawyers from engaging in litigation in Brazil or advising clients on Brazilian law. In 2011, it acted to further limit foreign lawyers’ ability to do business by prohibiting associations between Brazilian and foreign law firms and punishing some firms that maintained such alliances. Similarly, in Japan, the JFBA fought hard to limit competition by foreign lawyers and battled for five years with the Japanese government and the ABA over legislation concerning the right of foreign lawyers to practise in Japan. The legislation finally passed in 1986,6 but continued efforts by the JFBA to limit competition by foreign lawyers resulted in foreign law firms being subjected to limitations not placed on Japanese lawyers (Bettin 2015). Likewise in Israel, the IBA objected to an amendment to the IBA Act to permit foreign lawyers to work in Israel and was able to limit the scope of permissible work.



6 Civil

Procedure in Japan 2018: §2.02 [3][b].

234  Lynn Mather and Leslie C Levin In Kyrgyzstan, advocates have begun to consider expanding their turf. Currently legal training is not required to represent a client in a civil case (ABA ROLI 2014), but the Advocatura recently explored whether licensed advocates should attempt to attain a monopoly in such representation (Resolution 2016). The Advocatura has also formed a Committee on the Rights of Lawyers, to address the challenges they face dealing with corrupt and hostile judges, and the threats and attacks they endure, which interfere with their ability to do their work (ICJ 2016). In Libya, the bar helped draft the 2014 legislation governing the legal profession, which protected lawyers’ turf and economic interests. It provides that only Libyan citizens with a university degree in Sharia or law, who actually reside in Libya, may be admitted to appear in court.7 Libyan lawyers may not use non-lawyers to assist them in practising law or as intermediaries.8 Foreign lawyers need the permission of the president of the bar to appear in court and must work with a Libyan lawyer. Foreign companies must consult with a Libyan lawyer before performing any activities in Libya (Art 25). B.  Acting on Issues to Benefit Clients Lawyer organisations act to benefit clients but in doing so may also benefit lawyers. The benefits for lawyers may include making it easier to predict legal outcomes, elevating the need for or importance of lawyers, broadening the market for lawyers’ services, or protecting the attorneyclient relationship. In countries where legal professions are relatively weak with respect to the state or where legal systems are being reconstituted, lawyer associations often first seek to influence the criminal law – an activity consistent with the theoretical perspective of political liberalism. In China, criminal defence has become a crucial site of struggle between the legal profession and the powerful state. When individual criminal defence lawyers sought to meet clients or collect evidence, some lawyers were arrested or detained. In response, criminal defence lawyers posted comments on the ACLA internet bulletin board to resist state power and publicise the issues; the website enabled lawyers ‘to reveal problems, exchange opinions, and promote collective ideologies’ (Liu and Halliday 2009: 934). In light of the state’s authoritarian control over lawyers, these pre-lawmaking efforts by criminal defence lawyers are noteworthy. Ultimately, however, the ACLA forum exposed lawyers to too many risks and was effectively shut down by the government after 2007 (Liu and Halliday 2016). In countries with more autonomous or better established legal professions, lawyer organisations influence the law in the commercial context or other areas that directly benefit clients. In Israel, the IBA unsuccessfully opposed efforts to raise the monetary ceiling in small claims court, where parties are not represented by lawyers. The IBA noted that defendants (often their business clients) could not choose the venue for hearing the claim and would be forced into that forum (Weissman 2008). This change also hurt Israeli lawyers, because it enabled litigation without them. The American Trial Lawyers Association (ATLA) vigourously opposed efforts by business interests to curb personal injury and product liability litigation and cap damages (Barnes 2005). ATLA sought to protect their clients but also to preserve their own fees and client base. Similarly, the American Immigration Lawyers Association has worked to increase the number of visas available for skilled workers (Immigration Lawyers Urge Mass



7 Law

8 ibid,

No 3 on Legal Practice 2014: Art 4. Art 35.

When and Why Do Lawyer Organisations Seek to Influence Law?  235 Lobbying 2000). Such voluntary organisations, which are more homogenous than mandatory state bars, may find it easier to act. Lawyer organisations have also opposed efforts to implement gatekeeping legislation that would require members to report information to authorities about their clients. Sometimes these efforts are coordinated internationally. For example, several national and international bar associations, including the International Bar Association, the Council of Bars and Law Societies of Europe (CCBE), the ABA and the JFBA, actively negotiated with a group of regulators who were developing anti-money laundering guidelines imposing gatekeeping requirements on lawyers (Shepherd 2009). Subsequently, the JFBA opposed money laundering legislation that would require lawyers in Japan to report suspicious financial deals they encountered as a result of their work, arguing it would ‘undermine clients’ confidence in lawyers’ (Minister Asks Lawyers to Divulge 2006). In Israel, the IBA also opposed such gatekeeping requirements, as did the ABA in the United States (Shepherd 2009). The OAB filed a lawsuit in the Brazilian Supreme Court after the 2012 anti-money lawyering law went into effect in an effort to exempt Brazilian attorneys from having to disclose suspicious information about their clients (Fonseca 2014). C.  Issues Directly Affecting Courts and the Administration of Justice This next set of issues concerns lawyers’ efforts to bolster the legitimacy of the judicial system – consistent with political liberalism. In some cases, lawyer organisations may take the lead or work cooperatively with courts or legislative bodies to improve the administration of justice. In other cases, they may act against courts that lawyers view as corrupt, overreaching, or inefficient. Lawyer organisations also seek to protect courts from what they view as threats to judicial independence or legitimacy. i.  Improving and Protecting the Judicial System In some countries, where lawyers are considered officers of the court, they view their own standing as tied to the legitimacy of the judicial system. Indeed, the desire to improve the judicial system was part of the impetus for the formation of some of the elite US bar associations in the 1870s, which were concerned about the quality of the judiciary and judicial corruption (Halliday 1987; Powell 1988). Since then, US bar associations have continued to try to improve the workings of the courts, as have bar organisations in other countries. In Japan, the JFBA has issued 11 ‘declarations on judicial reform’ since 1990 in an effort to make the justice system more accessible to its users. These recommendations contributed to the passage of 24 laws related to justice system reform by the end of 2004 (JFBA, Justice System Reform). These efforts also benefit lawyers and their clients by making it easier to navigate the judicial system. Even weaker lawyer organisations are sometimes involved in efforts to bolster the independence and workings of the courts. In Libya, the Tripoli Bar Association, in partnership with a transitional justice programme, operated the Libyan Trial Monitoring Network, established by 17 lawyers in 2013 to support the right to a fair trial, promote accountability, and advance judicial reform (NPWJ 2017). In Kyrgyzstan, the AAK worked with the Supreme Court and NGOs to monitor and evaluate activities aimed at increasing the independence of the judiciary and reducing corruption, which is reportedly rampant in the legal system (Millennium Challenge 2007). It is not clear, however, to what extent these activities were initiated by the bar association rather than other actors.

236  Lynn Mather and Leslie C Levin In some cases, lawyer organisations oppose courts they believe are exceeding their power or acting ineffectively. In Israel, starting in the 1990s, bar leaders and others accused the Supreme Court of political activism under the leadership of Chief Justice Aharon Barak (Ziv 2009: 1779). The bar claimed that the Court had exceeded its institutional power and that its handling of cases generated injustices. The IBA also opposed efforts to change the structure of the judiciary in ways that it thought would undermine the quality of judging and the ‘appearance of justice’ (Rosen-Zvi 200l). Dissatisfaction with the judiciary later led the IBA to survey members about judges’ efficacy and publish the results (Barzilai 2007). The IBA only abandoned the survey after the Supreme Court agreed to the appointment of a public ombudsman to review complaints against judges and justices. While the IBA’s criticism of the courts may have been partly motivated by decisions adversely affecting the bar (Rosen-Zvi 200l), the bar’s actions also reflected an effort to improve the judiciary and ensure it was serving its proper role in a democracy. In China, the legal profession must contend with a ‘judiciary [that] is treated as an administrative arm of the Party-state’ (Halliday et al 2007: 20). Through the ACLA internet forum and more recent online discussions, criminal defence lawyers have expressed their grievances about specific cases and sought to hold courts accountable for procedural violations. For example, the Inner Mongolia Lawyers Association brought close to a hundred lawyers to attend the 2003 trial of Ma G, a defence lawyer prosecuted for work he did for his client (Liu and Halliday 2016). Government opposition to activist criminal defence lawyers has blocked most organised collective action by them. But immediately following a government crackdown in 2015, lawyers used social media to expose the injustices and sought support from a broad international coalition of human rights and other groups. Through world-wide publicity favourable to the activist lawyers, they succeeded in using international lawyer organisations, among others, to exert pressure on China’s leaders to increase judicial independence and enforce the rule of law (Liu and Halliday 2016). ii.  Access to Justice Access to justice constitutes another area in which lawyer organisations in some countries have sought to influence the law in order to bolster the legitimacy of the courts. Lack of affordable legal services undermines respect for the courts and can foster resentment of lawyers since only the well-off can afford their services. The JFBA and the Japan Civil Liberties Union established the Legal Aid Association, which was incorporated into the Civil Code in 1952.9 Since then, the JFBA has continued to advocate for expanded legal aid (Ichiki and Ohishi 1999). In the United States, during the 1980s, when President Ronald Reagan was attempting to eliminate the Legal Services Corporation, the ABA led efforts to lobby Congress to preserve it and resist the financial cuts (Taylor 1981). Since then, the ABA and other US bar associations have advocated for laws that will increase funding for legal services (Robert 2019; The Bar Report 2011). Even during the Qaddafi regime, the Libyan Bar Association formed a committee for legal aid to provide political prisoners and persons charged with serious offences with legal aid (Abdelmoula 1992). Addressing the access to justice problem presents challenges for the legal profession because it pits some lawyers’ economic interests against the goal of helping litigants navigate the legal system without a lawyer. Yet the bar also recognises that if the access to justice problem is



9 Civil

Procedure in Japan 2018: § 2.01(3)(f)(a).

When and Why Do Lawyer Organisations Seek to Influence Law?  237 not addressed, non-lawyers may be given greater latitude to represent parties in court and elsewhere. Moreover, bar association efforts to improve access to justice can increase the legitimacy of the organisation. Some US bar associations have considered requiring lawyers to represent clients pro bono, although most have opposed it (Cummings 2004). In Israel, the IBA was divided over whether to establish a voluntary pro bono programme, which some members saw as unfair competition (Ziv 2003). Similarly in Brazil, segments of the corporate bar and legal elite supported pro bono work, which was consistent with their clients’ interests in corporate social responsibility and their own conceptions of their social role (Sa e Silva 2018). Yet other lawyers, including some who represented low-income clients, viewed pro bono practice as unfair competition and pressured the OAB leadership to limit or prohibit it. The OAB in São Paulo adopted a regulation that limited pro bono work to giving legal advice, outside of court, to non-profit organisations that could not pay for legal services (ibid). It was only after the Federal Ministério Público held a public hearing about this regulation, signalling that he would litigate against it, that the OAB rewrote it so that pro bono work could be performed for individuals unable to pay for legal services. D.  Acting to Advance Human Rights or Address Other Issues Affecting Civil Society Some lawyer organisations also advocate for other issues affecting civil society. The Japanese bar is imbued with an anti-government ethos, taking seriously the statement in the Practising Attorney Act of 1949 that attorneys are ‘entrusted with a mission to protect fundamental human rights and to realize social justice’ (Feeley and Miyazawa 2007: 176). The JFBA publicises its positions on a wide variety of issues, seeking to promote human rights or oppose government actions it views as illegitimate. In 2014 the JFBA called on Prime Minister Abe’s ruling coalition to withdraw legislation that would allow Japan’s self-defence forces to fight to protect allies even if there is no direct threat to Japan. The bar saw the legislation as contrary to Article 9 of Japan’s Constitution, which provides that land, sea and air forces will never be maintained and that ‘the right of belligerency of the state will not be recognised’ (JFBA opposes right to collective self-defence 2014). Some JFBA members joined public demonstrations and made public statements opposing this legislation, which ultimately passed notwithstanding strong public opposition (Japan Lawyers Join Opposition 2015). The JFBA has also taken a stand on many human rights issues, opposing capital punishment and working to abolish it in Japan (JFBA 2018), and on purely political issues, urging the government to end nuclear power in the wake of the 2011 Fukushima disaster (JFBA opposes right to collective self-defence 2014). Similarly in Brazil, the legal profession has viewed its role as a protector of public liberties and human rights (Falcão 1988). When the military regime suppressed basic political rights and replaced the democratic Constitution with authoritarian rule after the 1964 coup, lawyer organisations acted to defend the rule of law (Bonelli 2003; Junquiera 1999). For example, the OAB fought for the withdrawal of authoritarian legislation and the restoration of habeas corpus (Falcão 1988). By 1977, the OAB was playing a main role in democratisation (Junqueira 1999). After 1980, the OAB formed Human Rights Commissions in its federal council and regional associations (Falcão 1988; Taylor 2008). It has complained to the Inter-American Court of Human Rights about conditions in Brazilian prisons (Ruas 2016). The organisation voted in 2016 to support the impeachment of President Dilma Rousseff and add new charges of obstructing justice (Brazil Lawyers File New Impeachment Case 2016). This controversial vote put the OAB squarely in the midst of political conflict. Indeed, the much smaller, voluntary IAB issued an opinion that the impeachment was unconstitutional (Impeachment de Dilma 2016).

238  Lynn Mather and Leslie C Levin In contrast to Brazil, the Israeli bar does not share a tradition of speaking out on issues concerning the rule of law or human rights (Barzilai 2007). Until relatively recently, the IBA rarely became involved in such issues unless they related to the legal system or legal representation (Ziv 2003). Because the IBA is the only bar association in Israel, lawyers who wished to act on human rights issues had to do so mainly through other groups like Adalah and ACRI. Only since the early 2000s has the IBA begun to take positions on human rights violations in Israel and other issues broadly affecting Israeli society. In Libya, even under the Qadaffi regime, lawyers formed a group to campaign for political prisoners in 2004 (Hilsum 2012). The jailing of Benghazi lawyer Fathi Terbil, a human rights activist, sparked the popular protests that turned into the 2011 uprising. The Benghazi courthouse and the Benghazi Bar Association were ‘cradles of rebellion’ in the final year of Qaddafi’s rule (ILAC 2013: 61). ABA ROLI subsequently worked with Libyan Bar Associations to help lawyers draft an Election Law Handbook for the 2012 elections (MEPI 2012), and other international groups supported the bar and the judiciary. In Kyrgyzstan, the new Advocatura has not been involved in human rights advocacy. Lawyer associations rely on NGOs and other organisations, such as the International Commission of Jurists, to address human rights violations (ICJ 2015). Similarly, although official Chinese lawyer organisations have not engaged in human rights advocacy, some groups of lawyers have attempted to do so. IV.  EXPANDING THE ANALYSIS OF LAWYER ORGANISATIONS TO OTHER COUNTRIES

This section extends the above analysis by drawing on the national reports in Volume 1, following the same common law, civil law, and regional grouping of countries. This allows us to highlight some of the historical parallels in legal professions and political developments in each group. Since we rely entirely on material in Volume 1, our discussion is limited by the coverage provided in that volume. The chapter authors devoted varying amounts of space – if any – to activities of lawyer organisations. Due to inconsistency across the national reports, this section only partially reflects the organisations’ efforts at lawmaking in the countries. Yet it largely bolsters our analysis and provides a valuable starting point for further comparative inquiry. A.  Anglo-American Common Law With their established common law democracies, Australia, Canada, England and Wales, and Scotland have strong legal professions and robust civil societies, much like the United States.10 In England and Wales, lawyer organisations vigorously opposed government measures that ultimately stripped the Law Society and Bar Council of their regulatory authority. When governments introduced new policies to increase competition, challenging lawyers’ traditional monopolies (eg conveyancing), lawyer organisations spoke out. In Australia, the legal profession worked for innovations in business structures benefiting law firms, including incorporated legal practices and the ability to list law firms on the stock exchange. Canadian lawyer

10 In addition to the citations below, see Thornton and Wood Vol 1, ch 2; Dinovitzer and Dawe Vol 1, ch 3; Sommerlad et al Vol 1, ch 4; Paterson and Robson Vol 1, ch 5; Cummings et al Vol 1, ch 6.

When and Why Do Lawyer Organisations Seek to Influence Law?  239 organisations split on the issue of allowing non-lawyer ownership of law firms: a Canadian Bar Association study recommended it, while the Law Society of Upper Canada opposed it. A similar division occurred in Scotland, when the Bar fought the introduction of Alternative Business Structures, while the Law Society ultimately embraced the change despite conflict among its members. Beyond occupational issues of direct concern to lawyers, the professional organisations in England and Wales and Scotland have defended legal services for the poor when they were threatened by new government policies. For instance, the legal profession overwhelmingly opposed the English Government’s decision to drastically curtail civil legal aid, a move that hurt both lawyers and their clients. The Law Society of England and Wales filed a High Court challenge in 2018 to the reduction and restructuring of legal aid fees for criminal defence. The Law Society and the Bar Council also defended the independence of judges after government ministers attacked them for a High Court ruling concerning Brexit. In Australia, the Law Council (representing all law societies and bar associations) has publicly embraced progressive stands on a range of issues, lobbying domestically for change in criminal sentencing law and immigration and speaking out on international human rights matters. B.  Western European Civil Law Most of the nine Western European countries described in Volume 1 are strong democracies with a history of largely independent legal professions.11 As civil law systems, their definition of lawyer is usually restricted to advocates, excluding groups such as notaries, magistrates, or prosecutors, who are represented by separate professional associations. The professions in these countries confronted the challenges of harmonising national law with European Union efforts to promote market liberalisation and competition in professional services. Some of the Western European bar organisations opposed the suggested changes as threats to lawyers’ independence and feared competition from non-lawyers. In Italy, the National Bar Council fought government proposals for harmonisation through public protests, strikes, and delaying trials. Bar organisations defended professional privilege and self-regulation in Belgium, Denmark, France, and Germany. Other efforts to protect the profession include: the Flemish bar’s resistance to Alternative Business Structures; the Dutch Bar Association’s opposition to changes in lawyer discipline that could undermine its independence from the government; and the Belgian bar’s opposition to legislation charging VAT on lawyers’ services. Some Western European lawyer organisations advocated for changes benefiting their clients. The Conseil de l’Ordre of the Paris Bar endorsed letting legal advisors practise with lawyers in order to meet the needs of their business clients. The French Ordre also advocates for individual rights and those of the criminal defendant. Germany’s two professional organisations (Federal Chamber of Advocates and German Advocates Association) play an important role in evaluating legislation proposed by the government. Indeed, lawyer associations are among the most active interest groups in Germany in commenting on legislation.

11 See Gibens et al Vol 1, ch 7; Hammerslev Vol 1, ch 8; Bessy and Bastard Vol 1, ch 9; Kilian and Schultz Vol 1, ch 10; Micelotta and Dorian Vol 1, ch 11; Doornbos and de Groot-van Leeuwen Vol 1, ch 12; Boni-Le Goff Vol 1, ch 13.

240  Lynn Mather and Leslie C Levin C.  Eastern Europe and Russia As in Western European civil law countries, there are several different types of legal professionals in Russia and most of Eastern Europe.12 The separate categories of legal professionals are defined by their workplace or legal practice (eg advocates, judges, prosecutors, notaries, and bailiffs). In most of these countries, advocates have enjoyed independence from the state and the privilege of self-governance, although the Communist Party controlled the work of advocates during part of the Soviet era. But advocates have also had to fight for their privilege of self-governance. In Russia, as in Kyrgyzstan, only advocates can represent defendants in criminal cases, whereas anyone can represent parties in civil cases. From the mid-1990s, the advocate community sought to control the rest of the legal market and introduce entry barriers, but they failed, in part because they were insufficiently unified. New alternative bar organisations emerged in Russia, seeking more rights for unlicensed professionals. In 2002, the alternative bars and the advocate bar merged to form the Federal Chamber of Advocates and advocated for restrictions on foreign lawyers. In the mid-1950s in Serbia and Bosnia and Herzegovina, advocates were categorised as civil servants with little professional autonomy. More recently, bar associations in two Bosnia and Herzegovina territories, for example, advocated to improve the status of advocates. One association participated in discussions on constitutional and legislative changes affecting the judiciary and the rule of law, while another, angry that they had not been consulted over pending legislation to regulate advocates’ fees, threatened to strike. After the latter received support from the CCBE, the government reversed its position. Similarly, in 2014, the Serbian bar association instituted a compulsory advocates’ strike over increased tax burdens on advocates and whether notaries should be given a monopoly over the authentication of real estate transactions. The Serbian bar has also successfully resisted legalisation of the provision of free legal aid by civil society groups. Poland has a long tradition of separate self-governing professions of advocates and attorneys at law (or legal advisors). Each has its own professional association with compulsory membership. The Council of Advocates has resisted unification of the two groups despite similar qualifications and mandates for practice. Both organisations have sought to maintain their control over training new advocates and advisors when threatened by government regulations. Advocates in the Czech Republic lost their independence during the Soviet period but regained it thereafter. In 1994, the Czech Chamber of Advocates worked with the Chamber of Commercial Counsel to merge the groups and defend their professional independence. In sum, the primary focus of advocate organisations in Eastern Europe has been to maintain their autonomy, preserve their economic interests, and protect their turf against other legal service providers. D.  Latin America Although Latin American lawyers have long been involved in public affairs, the role of lawyer organisations in lawmaking varies.13 Among the five countries covered in Volume 1, only Brazil’s OAB has a strong tradition of working to influence law on a range of issues. For over 50 years,

12 See Kober Vol 1, ch 14; Gadowska Vol 1, ch 15; Moiseeva and Bocharov Vol 1, ch 16; Vuković et al Vol 1, ch 17. 13 See Böhmer Vol 1, ch 18; Bonelli and Fortes Vol 1, ch 19; Villalonga Vol 1, ch 20; Pérez-Hurtado Vol 1, ch 21; Gómez and Pérez-Perdomo Vol 1, ch 22.

When and Why Do Lawyer Organisations Seek to Influence Law?  241 the Chilean Bar Association (CBA) was essentially a public guild with mandatory membership, responsibility for legal aid, and oversight of lawyers’ conduct. The CBA’s role changed after the adoption of the 1980 constitution under the Pinochet dictatorship. The bar became a private, voluntary association, and the government took over legal aid and most lawyer discipline. The CBA lobbied against these changes but lost, leading to substantial decline in the organisation’s membership and power. The CBA’s subsequent attempts to regain its former powers were also unsuccessful. Other specialised lawyer organisations have emerged, and some lawyers align themselves with NGOs engaged in public interest litigation. As in Chile, political change in Venezuela explains changes in the bar’s role. Prior to Chávez, lawyers in Venezuela were intimately involved in political affairs, but bar leaders agreed not to ‘make waves’ by advocating for social justice or human rights (Gómez and Pérez-Perdomo Vol 1: 452). With the new authoritarian regime under Chávez, however, lawyer associations became increasingly active in protesting government actions. When pro-Chavista candidates for bar leadership lost elections, the government-dominated Supreme Justice Tribunal retaliated by suspending elections. Other lawyer groups such as the Association of Administrative Law have also defended human rights in Venezuela. In Mexico and Argentina, lawyers are largely unregulated beyond the requirement that they have a law degree. In Mexico, the lawyer organisations function as local social clubs or political societies. Membership is voluntary, and only 6 per cent of legal professionals belong. Since 2010, three of the most prestigious bar associations have advocated for laws to raise professional standards through required certification and compulsory bar membership. Most lawyers opposed the changes, which were soundly defeated. Lawyers in Argentina ‘still enjoy a virtually unregulated legal monopoly’ (Böhmer Vol 1: 379) and are required to belong to local bar associations that operate essentially as trade unions, focusing on members’ benefits, such as parking permits and discounts, and opposing pro bono as unfair competition. Some Argentinian lawyers have worked through human rights and civil society organisations to seek social justice for disadvantaged groups and promote democracy. E. Africa Most of the five African countries covered in Volume 1 have relatively young lawyer organisations, which emerged from colonial legacies or, in the case of South Africa, the end of apartheid.14 These countries have deep internal divisions within lawyer associations and a history of conflict between lawyer groups, sometimes due to ethnic rivalries. In South Africa, which had a divided profession of advocates and attorneys, two separate organisations of advocates (General Council of the Bar (GCB) and Independent Association of Advocates) engaged in extensive litigation over whether the GCB’s professional rules were anti-competitive. Both groups, along with other South African lawyer associations, worked to shape the 2014 law that created a single unified profession subject to the same disciplinary and regulatory rules. Other lawyer organisations in South Africa (eg Black Lawyers Association) engaged in public interest litigation against apartheid and for reforms of health, education, and human rights laws. In Zimbabwe, which gained independence in 1980, the Law Society (LSZ) had close ties with the new government and preferred private meetings with state officials over public confrontations.

14 See Dezalay Vol 1, ch 23; Kamau Vol 1, ch 24; Uzebu-Imarhiagbe Vol 1, ch 25; Klaaren Vol 1, ch 26; Karekwaivanane Vol 1, ch 27.

242  Lynn Mather and Leslie C Levin During the 1990s, new lawyer organisations and NGOs emerged to challenge the government on human rights issues. The LSZ also became more involved in political struggles, at times openly defying the government and defending judicial independence. Government officials criticised lawyers for using their professional association as a political platform, and the LSZ subsequently backed off, fearing loss of its independence. It has focused recently on its regulatory function and legal education, leaving political advocacy to the NGOs. In contrast, the Law Society of Kenya (LSK), along with the clergy, emerged as the opposition to the ruling party’s efforts to create a de jure one-party state. LSK played a key role in 2003 in efforts to purge judicial corruption and was also influential in designing the new 2010 Constitution. The Law Society Act (2014) sought to expand LSK’s concerns from traditional ‘bread and butter’ issues to include ‘assisting government and the courts with legislation and the administration of justice, upholding the Constitution and advancing the rule of law, and assisting members of the public’ (Kamau Vol 1, ch 24: 510). In Nigeria and Burundi, internal ethnic divisions weaken the lawyer organisations. The Nigerian Bar Association (NBA) succeeded in ensuring that its president was independent of the government, but the method of selection – based on rotating the position among the three principal ethnic regions – excludes some ethnic groups and has created internal conflict. The NBA has attempted to advance occupational interests by tightening regulatory guidelines to control the ‘foreign invasion’ by big international law firms (Uzebu-Imarhiagbe Vol 1, ch 25: 531). The Burundi Bar is a stronghold of the Tutsi elite, while the competing Gitega Bar is allegedly infiltrated by the Hutu government’s party. International NGOs’ post-conflict efforts in Burundi employed lawyers and created a larger market for lawyers doing civil society work. Today the Burundi Bar serves as an ‘opposition platform’ while also seeking to preserve its monopoly over the small market for private legal services (Dezalay Vol 1, ch 23: 491). F.  North Africa and Middle East Lawyer organisations in this region have dealt with intense political upheaval and government repression. Governments suspended bar associations in Egypt, Iran, Libya, Turkey, and Palestine (in that case, by Israel) or abolished their elected bodies.15 Unlike some African countries, where bar associations were divided by ethnicity, it was political and social differences that divided lawyer organisations in Egypt, Palestine, Turkey, and Tunisia. Also, in contrast to countries where bar organisations supported the judiciary, relations between lawyers and judges in Iran, Egypt and Tunisia are tense and conflictual. In Iran, judicial hostility towards lawyers is due in part to ideological differences. Many judges resolve cases in accordance with the Islamic law in which they were trained, while lawyers argue for a rule-based approach aimed at winning cases for their clients. Consequently, judges view lawyers’ efforts on behalf of defendants as impeding the legal process and see lawyers as ‘the enemy’ (Banakar and Ziaee Vol 1, ch 29: 587). Tensions between lawyers and judges in Egypt intensified in the last decade with arrests of lawyers critical of the regime and judges’ refusal to respect lawyers’ rights. After the 2011 crackdown on lawyers who complained about mistreatment by judges, the Bar forbade its members to appear or plead in certain courts. Judges also opposed the Bar’s insistence on protections for lawyers’ independence in the 2014 constitution.

15 See Bernard-Maugiron and Omar Vol 1, ch 28; Banakar and Ziaee Vol 1, ch 29; Katvan et al Vol 1, ch 30; Carlisle Vol 1, ch 31; Qafisheh Vol 1, ch 32; Gobe Vol 1, ch 33; Kalem Vol 1, ch 34.

When and Why Do Lawyer Organisations Seek to Influence Law?  243 Similarly, the bar and judiciary in Tunisia have engaged in repeated disputes over violations of lawyers’ rights, control over admission to the bar, and the law allowing retired judges to become lawyers, leading to both groups going on strike in 2014–15. In contrast, lawyer organisations in Turkey have defended the judiciary. The Istanbul bar and Union of Turkish Bars (TBB) recently condemned the government for requesting dismissal of judges. In some of these countries, lawyer organisations are fighting for their survival. In Iran, the judiciary created a new class of legal representatives to undermine lawyers, and in Egypt, the authoritarian government extended the right to be a ‘lawyer’ to anyone with a law degree. The Iran Bar Association devotes virtually all its resources to maintaining its authority to renew licences and discipline lawyers. It has, however, acted discreetly in seeking the release of detained attorneys. Yet the lawyer organisations in this region also sometimes work to advance other interests. In Egypt, the Bar has raised its fees, in part to reduce the number of members. It has consulted with Parliament about laws affecting lawyers and opposed an increase in plaintiffs’ filing fees, arguing these would reduce access to courts. The Bar Association also organised conferences on human rights and, in 2015, declared a general strike after a police officer attacked a lawyer. The Palestinian Bar Association has been primarily concerned with the creation and enforcement of a professional code of ethics and other occupational issues. It also defends lawyers from attacks, including by the Israeli security forces. Bar associations in Turkey and Tunisia have sought to promote occupational interests but also have advocated for human rights and the rule of law. During the 2017 referendum, the Turkish Bar Association’s president travelled throughout the country, leading educational discussions about the constitution, activities that President Erdoğan condemned as blatantly political, rather than professional. G. Asia The lawmaking activities of lawyer organisations in the ten Asian countries discussed in Volume 1 can be divided into two groups: authoritarian (or transitional) countries in which the organisations lack independence or struggle even to exist; and democratic countries in which organisations advocate for occupational issues and may also engage in law reform.16 In post-reunification Vietnam, like China, the Communist Party controls the legal profession. Yet also like China, the Party-state in Vietnam allows lawyers some influence through party channels and space to mobilise social pressure. The voluntary Vietnam Lawyers Association, commonly led by party officials, promotes the party line. It focuses on domestic affairs including law making and legal aid. The Vietnamese Bar Federation (VBF), formed in 2009 and mandatory for all lawyers, regulates and represents the profession. The VBF has advocated for legal rights for criminal defence lawyers, but the group also recognises the limits on where and how much it can oppose the Party-state. As in China, the VBF has generally failed to support lawyers targeted by the Party-state. Similarly Myanmar, an authoritarian state, and Indonesia, a transitional state, illustrate the dangers and obstacles to political advocacy by lawyers. Because lawyers and bar associations were involved in the failed 1988 pro-democracy uprising against Myanmar’s socialist military rule, the state responded with significant controls over the bar. The government-run Bar

16 See Liu Vol 1, ch 35; Ballakrishnen Vol 1, ch 36; Kouwagam and Bedner Vol 1, ch 37; Murayama Vol 1, ch 38; Crouch Vol 1, ch 39; Kim Vol 1, ch 40; Hsu Vol 1, ch 41; Munger Vol 1, ch 42; Nicholson and Do Vol 1, ch 43.

244  Lynn Mather and Leslie C Levin Association is under the control of the Attorney General’s office, which has sought to weaken the legal profession. In 2016, a new organisation (the Independent Lawyers’ Association of Myanmar) was established, largely driven by the International Bar Association, to bolster the profession’s independence. In Indonesia, when the lawyers’ association opposed authoritarian government measures, the state responded by setting up an alternative bar in 1985, which it attempted to control. Economic development led to new, specialist lawyer organisations, which further divided the voice of the legal profession in Indonesia. The first Law on Lawyers in Indonesia, passed in 2003 as part of broader reforms sponsored by the IMF, recognised the autonomy of the legal profession. Subsequently, the profession experienced bitter fights within and between lawyer organisations over who would administer the bar exam. Lawyers remain divided into multiple organisations, too weak to protest systemic corruption or ‘engage in debates about what the law is and should become’ (Kouwagam and Bedner Vol 1, ch 37: 750). In South Korea, as in Japan, the bar fought to preserve high entry barriers in order to limit the size of the legal profession. Successive Korean administrations joined civic groups to urge an increase in the number of lawyers, but the Korean Bar Association (KBA) and the Supreme Court were opposed. In 2007, after 14 years of fighting, a new law adopted a three-year, post-graduate US-style legal education model, leading to rapid expansion in the number of lawyers and struggles for employment. Competition over jurisdiction among legal occupations (eg administrative and judicial scriveners) has intensified. The KBA has advanced its members’ interests by successfully advocating for legislation requiring large companies to hire lawyers as compliance officers. Progressive lawyers who disliked the KBA’s conservatism formed a more liberal association that advocated allowing lawyers to choose their national organisation and imposing pro bono requirements. The KBA, however, persuaded the legislature to require mandatory membership in the KBA, while accepting mandatory pro bono. Lawyer organisations have played key lawmaking roles in three democracies: Taiwan, Hong Kong, and Thailand. In Taiwan, the Taipei Bar’s 1990 election replaced ethnic Chinese leaders with military backgrounds with locally-born, civilian-educated Taiwanese. Under this new leadership, the Taipei Bar advocated for human rights and significant legal reforms. An active participant in national politics, the Bar lobbied for constitutional restructuring of government, transforming the bar’s ‘technical legal expertise into moral authority’ (Hsu Vol 1, ch 41: 814). The Bar used the new structure to successfully press for legal aid and judicial reform. In Hong Kong, the Law Society sought to protect its turf by making it more difficult for UK and US lawyers to practise there. Lawyers have collectively organised demonstrations since 1999 to defend Hong Kong’s judicial autonomy and protest Beijing’s interference in the legal system. Lawyer organisations in Thailand, such as those created recently to address women’s issues and human rights, have been increasingly active in mobilising support and lobbying for law reform. The Lawyers Council, an official statutory organisation of practitioners in Thailand, licenses and oversees its members. The Council sometimes provides expert advice to Parliament, and its Human Rights Committee has organised networks of lawyers to work for legal change and social justice. The Bar Council of India, a statutory body, enacts and enforces rules for lawyers and has sought to protect the profession there. V.  CONCLUSION: WHEN AND WHY DO LAWYER ORGANISATIONS ACT TO INFLUENCE LAW

This account of collective lawyer activities to influence law suggests some key points. At the very least, lawyer organisations must have the ability to act on legal issues. Broadly speaking,

When and Why Do Lawyer Organisations Seek to Influence Law?  245 their ability to do so depends on three factors: the extent of bar autonomy vis-à-vis the state (including laws governing lawyer organisations); characteristics of the lawyer organisation (including its age, homogeneity, and decisionmaking processes); and support from the international legal community. In addition, lawyers’ willingness to act depends on their professional self-conception, including their role in civil society. Our discussion of these factors builds on and supports Abel’s (1985) market control theory and Halliday and Karpik’s (1997) analysis of lawyers working for political liberalism in Western democracies. The relationship between lawyer organisations and the state suggests a good deal about lawyers’ collective ability to influence the law. Authoritarian governments can limit the ability of lawyer associations to operate autonomously, especially on matters that might threaten or oppose state interests. In China, or Libya under Qaddafi, the state controlled the leadership of lawyer organisations. Other authoritarian countries revealed the same pattern – eg Venezuela, Iran, Vietnam, and Myanmar. Efforts within lawyer organisations to affect the law – or even to achieve self-governance – were readily thwarted. Informal efforts by lawyer activists operating outside bar organisations provoked punitive responses, including loss of their law licences and arrests. Even in democracies, laws governing lawyer organisations can limit or facilitate their ability to influence the law. In Israel, lawyers are legally barred from forming voluntary bar associations, making it more difficult for lawyers who disagree with the IBA to take collective action. In the US, dues collected by mandatory state bars cannot be used for political or ideological purposes (Johnstone 1996), which limits their ability to lobby or file amicus briefs outside the traditional range of issues directly affecting the legal profession. In contrast, in Brazil the OAB has legal standing to challenge state actions it views as unconstitutional, which makes it easier for that association to influence the law (Taylor 2008). Characteristics of lawyer organisations constitute a second factor affecting their ability to influence law. New bar associations such as the Advocatura in Kyrgyzstan, the Palestinian Bar Association, and multiple organisations in Indonesia face questions of legitimacy that inhibit such efforts. By contrast, older bar associations such those as in Brazil, the United States, France, and Germany are well-established and have a history of – and mechanisms for – ­engaging in public debate. The membership composition can also affect their ability to take action since lawyers from different practice settings or ethnic or social groups may disagree about whether or how to influence the law. New lawyer organisations emerged in Brazil, Japan, the United States, South Korea, and Zimbabwe precisely because the existing organisations would not work for legal changes that some lawyers viewed as necessary or desirable. In countries such as Russia and Poland with multiple lawyer associations, they have been more concerned with preserving their professional autonomy than in acting to influence law. Working for legal change is also easier when lawyers share common goals, as in lawyer organisations dedicated to advancing human rights. Taking a collective stance on law reform is also more difficult in associations with a history of ethnic or political conflict, as in Nigeria, Burundi, or Turkey. The method of decisionmaking within a lawyer organisation can also affect its ability to act. In China, the state-appointed bar leadership controls the decisions. In lawyer organisations where a vote by many members is required to take action, such as the almost 600-member ABA House of Delegates in the United States (ABA 2017), efforts to achieve a sufficient consensus may be slow, difficult or altogether impossible. By contrast, in bar associations with committee structures that do not require agreement among a large number of members, it is often easier for the group to act (Johnstone 1996). This can be seen in Brazil’s OAB, where decisionmaking is consolidated within a fairly small group of leaders, led by the president of the Federal Council (Taylor 2008).

246  Lynn Mather and Leslie C Levin The emergence of a powerful global legal community in recent decades – focused on rule of law and human rights issues – adds a third force, which can help counter state power and provide support to lawyer organisations or informal lawyer networks. In China, although the official bar associations have opposed certain human rights activities, lawyer activists have mobilised global media coverage and received support from international organisations, such as the Chinese Human Rights Defenders and the China Aid Association (Liu and Halliday 2016). Likewise, in Kyrgyzstan, ABA ROLI helped advocates draft the law establishing the Advocatura and requiring membership. Lawyer organisations in other countries (eg Nigeria, Burundi, Myanmar) also benefited from assistance from international groups. Even when lawyer associations are able to act to influence law, other factors affect why they will attempt to do so. The theoretical perspectives discussed earlier provide guidance for answering the second question: why do lawyer associations act? The answer depends on lawyers’ collective understanding of their role. Whose interests are they representing? The three main theories of the legal profession – market control, client representation, and political liberalism – help explain why lawyers will seek to act. Viewing lawyers as self-interested actors seeking to exert market control provides one important lens for understanding many efforts by lawyer organisations to influence law. That is, to advance their professional power and status, bar associations concentrate on issues affecting the legal profession as an occupation, seeking to preserve their autonomy or protect lawyers’ turf. Examples include opposing expansion of the bar in Brazil, Israel, Japan, and South Korea; seeking bar autonomy in Chile, the Czech Republic, and Poland; and lobbying for restrictions on foreign lawyers in Japan, Hong Kong, and Russia. A second perspective on the ‘why’ question focuses on lawyers’ fundamental commitment to their clients and client interests. Examples from the commercial context in Israel and the US showed bar associations attempting to influence the law in order to benefit their corporate clients. Similarly, lawyer organisations in Brazil, Israel, Japan, and the US opposed antimoney laundering regulations that would force lawyers to disclose client information. The Belgian bar resisted legislation to add VAT to lawyers’ services, and the Egyptian bar fought an increase in filing fees for plaintiffs. Sometimes these efforts to protect clients’ interests also benefit lawyers – for example, by making their work easier or more remunerative or expanding the pool of clients. Yet the consequences were not always favourable to lawyers. Efforts by networks of criminal defence lawyers in China to use the ACLA forum to enforce the procedural laws and expose violations by state officials would both benefit their clients and help the lawyers by allowing them to meet privately with clients and gain access to procurator’s case files. But such advocacy came at great personal cost to the lawyers, who risked arrest for their efforts. The work of activist lawyers in China also supports the third perspective, political liberalism, by showing lawyers working collectively for due process and the rule of law and opposing an authoritarian state and a weak or corrupt judiciary. Political liberalism entails an independent judiciary, but lawyers and judges may have different views of independence, as seen in Iran, Egypt, and Tunisia. Israel’s bar opposed its Supreme Court when lawyers believed the court was exceeding its institutional power and acting on political questions. Where lawyer organisations view the courts as corrupt or lacking legitimacy, they would sometimes seek to increase the independence and integrity of the judiciary, as in Kyrgyzstan and Libya. Even where courts are stronger, lawyer organisations seek to strengthen them, as in Brazil, Japan, and the US They may also defend the judiciary when it is attacked. Legal organisations and judiciaries sometimes unite to promote and defend political liberalism. In many countries, the legitimacy and importance of lawyers is tied to that of courts. In the US, courts also protect lawyers in a variety of ways, including from extensive regulation

When and Why Do Lawyer Organisations Seek to Influence Law?  247 (Barton 2011). One form of joint action can be seen in efforts by lawyers and courts to expand access to justice, which promotes the rule of law and improves the administration of justice, consistent with political liberalism. For example, lawyer organisations lobbied to expand government funding for legal services in Japan and the US and to oppose funding cuts in Australia and England and Wales. But lawyer associations in Brazil, Israel, the US, and Serbia were divided over lawyer pro bono, in part out of concerns about competition. The latter examples underscore the internal divisions that may impede lawyer organisations in working for or against legal change. Another tenet of political liberalism is a moderate state. Lawyer associations in numerous countries – eg Australia, Brazil, Hong Kong, Japan, Libya, Thailand, Turkey, and the US – promote human rights, defend political prisoners, and support persecuted minorities, illustrating lawyers working to curb state power. When lawyers believe they have a responsibility to moderate the state, and historically have done so, they are more willing to act to influence law for that purpose. For example, Japanese lawyers have a strong commitment to social justice and a history of opposition to the state. For almost 100 years, the Japanese bar has actively pursued civil rights and human rights agendas. Similarly, in Brazil, the OAB has viewed itself as a defender of democratic values for half a century. But not all lawyer associations share this understanding. In Israel, when the act creating the IBA was debated in the Knesset, most of the discussions ‘rested upon an assumption that the bar does not carry strong commitments to the public good’ (Ziv 2003: 1646). The IBA has focused its efforts to influence the law primarily on issues affecting the interests of lawyers, clients and the legal system, narrowly defined and, until recently, avoided other controversial issues. In Mexico, those few lawyers belonging to the lawyer association see it as a local social club, while those in Argentina value the lawyer organisation for its material benefits. Even in countries where lawyer organisations lack a strong tradition of promoting political liberalism, they may still do so because of encouragement and technical assistance from international lawyer organisations and other NGOs. Some of these international NGOs help lawyer organisations to meet international standards, such as the UN Basic Principles on the Role of Lawyers (1990) and the European Parliament’s Resolution on the Legal Professions (2006). These standards declare that lawyer organisations should be self-governing and lawyers should promote justice and respect for human rights. Thus, ABA ROLI assisted lawyers in Kyrgyzstan and Libya to draft laws making the legal professions self-governing. It and other international lawyer groups have also provided technical assistance to lawyer organisations in their efforts to strengthen the judiciary and to promote human rights. Even when lawyer organisations act to make law, their motives are often mixed and may reflect the priorities of some members more than others. Moreover, lawyer organisations – like any other political actor – use public interest rhetoric to justify positions that may be shaped by self-interest. For example, lawyer associations may cloak efforts to defend their turf in the language of public protection. We agree that ‘politics matter’ in explaining the mobilisation of lawyers (Halliday and Karpik 1997: 15) and that some collective efforts by lawyers to influence law reflect support for political liberalism. But it is important not to overemphasise this motive or understate the conflicting motives at play when lawyer associations act to influence the law. In countries such as Iran, Egypt, and Tunisia, professional rivalry based on ideological or political differences characterises the relation between lawyers and judges. Thus, political liberalism does not always explain lawyer organisations’ efforts relating to the judiciary. Finally, this preliminary effort to map the terrain provides only a snapshot of efforts by lawyer organisations to influence the law. A fuller understanding of when and why they act requires a deep understanding of the history of lawyers and their organisations in each

248  Lynn Mather and Leslie C Levin country, their relations to the state and to the courts, and the role of lawyers in that society. Also needed is research on the internal workings of lawyer organisations, their leaders’ political affiliations and social capital, the relationships among lawyer organisations in a country, and the impact of international lawyer organisations on national and local lawyer associations. Although we have depicted the associations in each country largely as rational actors pursuing specific interests and goals, they are operating in a wider public framework of social capital and assumptions about the nature of law. We need a closer examination of the role these factors play in determining when and why lawyer organisations act to influence law. REFERENCES ABA (2017) ABA House of Delegates – General Information www.americanbar.org/groups/leadership/ delegates.html. ABA Rule of Law Initiative (ABA ROLI) (2014) Legal Profession Reform Index for the Kyrgyz Republic Vol II (Chicago, ABA). —— (2017) Promoting Change through Women’s Legal Network in Libya, March (Chicago, ABA). Abbott, A (1988) The System of the Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). Abel, RL (1985) ‘Comparative Sociology of the Legal Professions: An Exploratory Essay’ 10 American Bar Foundation Research Journal 1. —— (1989) American Lawyers (New York, Oxford University Press). —— (2011) Lawyers on Trial: Understanding Ethical Misconduct (New York, Oxford University Press). Abel, RL and Lewis, PSC (1996) ‘Putting Law Back into the Sociology of Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: an Overview (Berkeley, University of California Press). Abdelmoula, A (1992) ‘Libya: The Control of Lawyers by the State’ 17 International Journal of the Legal Profession 55. Almedia, F de and Nassar, PA (2018) ‘The Ordem dos Advogados de Brasil and the Politics of Professional Regulation in Brazil’ in LG Cunha et al (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Sector and its Impact on Lawyers and Society (Cambridge, Cambridge University Press) 181–209. Ambrogi, R (2014) ‘Latest Legal Victory has LegalZoom Poised for Growth’ ABA Journal 1 August. Association for Civil Rights in Israel (ACRI) (2019) About ACRI www.english.acri.org.il/about-us. Barnes, C (2003) ‘ABA, states, and SEC hash out lawyers’ responsibility in corporate settings’ Bar Leader, November–December. —— (2005) ‘Tort Reform Momentum Slowed but not Stopped’ Bar Leader, July–August. Barton, BH (2011) The Lawyer-Judge Bias in the American Legal System (Cambridge, Cambridge University Press). Barzilai, G (2007) ‘The Ambivalent Language of Lawyers in Israel: Liberal Politics, Economic Liberalism, Silence and Dissent’ in TC Halliday, TL Karpik and MM Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). Bettin, A (2015) ‘Foreign lawyers fight for reform in Japan’ Japan Today, 28 September. Bonelli, MdaG (2003) ‘Lawyers’ Associations and the Brazilian State, 1843–1997’ 28 Law & Social Inquiry 1045. ‘Brazil lawyers file new impeachment case against Rousseff’ (2016) Reuters reut.rs/1MOnFcP. Central Intelligence Agency. The World Factbook, www.cia.gov/library/publications/the-world-factbook/. Cummings, S (2004) ‘The Politics of Pro Bono’ 52 UCLA Law Review 1. European Parliament Resolution on the Legal Professions, P6_TA (2006) 0108. Falcão, J (1988) ‘Lawyers in Brazil’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press).

When and Why Do Lawyer Organisations Seek to Influence Law?  249 Feeley, M and Miyazawa, S (2007) ‘State, Society and the Legal Complex in Japan’ in TC Halliday, L Karpik and MM Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism. (Oxford, Hart Publishing). Fonseca, A (2014) ‘O Papel Do Advogado Frente Ás Alterações Na Lei de Lavagem de Dinheiro’ [The Role of the Lawyer in Light of the Amended Money Laundering Law] 3 Revista Jurídica Direito & Realidade 199. Halliday, TC (1987) Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago, University of Chicago Press). —— (1989) ‘Legal Professions and the State: Neocorporatist Variations on the Pluralist Theme of Liberal Democracies’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Halliday, TC and Karpik, L (1997) ‘Politics Matter: a Comparative Theory of Lawyers in the Making of Political Liberalism’ in TC Halliday and L Karpik (eds), Lawyers and the Rise of Western Liberalism (Oxford, Oxford University Press). Halliday, TC, Karpik, L and Feeley, M (2007) ‘The Legal Complex and Struggles for Political Liberalism’ in TC Halliday, L Karpik and MM Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). Heinz, JP (1983) ‘The Power of Lawyers’ 17 Georgia Law Review 891. Heinz, J, Laumann, EO, Cappell, CL, Halliday, T and Schaalman, MH (1976) ‘Diversity, Representation, and Leadership in an Urban Bar’ 1 American Bar Foundation Research Journal 717. Hilbink, TM (2004) ‘You Know the Type …: Categories of Cause Lawyering’ 29 Law & Social Inquiry 657. Hilsum, L (2012) Sandstorm: Libya in the Time of Revolution (London, Penguin Press). Holland, B (2013) ‘The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice’ 82 Mississippi Law Journal 75. IAB, (2018) History of the Institution Iabnacional.org.br/institucional/historia-da-instituicao. Ichiki, G and Ohishi, T (1999) ‘Current Issues for Legal Aid in Japan-Reform Perspective’ in LG Trubek and J Cooper (eds), Educating for Justice Around the World: Legal Education, Legal Practice and the Community (Farnham, Ashgate). ‘Immigration Lawyers Urge Mass Lobbying of Elected Officials’ (2000) Global Atlanta 16 September www.globalatlanta.com/immigration-lawyers-urge-mass-lobbying-of-elected-officials. Impeachment de Dilma é Inconstitucional, Diz Instituto dos Advogados do Brasil [Impeachment of Dilma is Unconstitutional, Says Brazilian Bar Association], Consultor Jurídico (5 August 2016) www. conjur.com.br/2016-ago-05/iab-aprova-parecer-contrario-impeachment-dilma. International Commission of Jurists (ICJ) (2015) Krygyzstan: Searches of lawyers’ premises are contrary to international law (Geneva, ICJ). —— (2016) The Birth of a New Advokatura in the Kyrgyz Republic: Mission Report (Geneva, ICJ). International Legal Assistance Consortium (ILAC) (2013) Rule of Law Assessment Report: Libya 2013 (Stockholm, ILAC). ‘Japan Lawyers Join Opposition to Controversial Security Bills’ Agence France-Presse (26 August 2015). JFBA, Justice System Reform www.nichibenren.or.jp/en/about/judicial_system/justice_system_reform.html. JFBA (2018) Declaration Calling for Reform of the Penal System Including Abolition of the Death Penalty (Tokyo, JFBA). JFBA Opposes Right to Collective Self-Defense, Nuclear Power Japanese Economic Newswire (30 May 2014). Johnstone, Q (1996) ‘Bar Associations: Policies and Performance’ 15 Yale Law & Policy Review 193. Junqueira, EB (1999) ‘The Brazilian Bar Association in the Struggle for Human Rights’ in LG Trubek and J Cooper (eds), Educating For Justice Around the World: Legal Education, Legal Practice, and the Community (Farnham, Ashgate). Katvan, E (2012) ‘The “Overcrowding of the Profession” Argument and the Professional Melting Pot’ 19 International Journal of the Legal Profession 301. Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press).

250  Lynn Mather and Leslie C Levin Law No 3 on Legal Practice 2014 (Libya). Levin, LC, Mather, L and de Groot-van Leeuwen, L (2018) ‘The Impact of International Lawyer Organisations on Lawyer Regulation’ 42 Fordham International Law Journal 407. Liu, S and Halliday, TC (2009) ‘Recursivity in Legal Change: Lawyers and Reforms of China’s Criminal Procedure Law’ 34 Law & Social Inquiry 911. —— (2011) ‘Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers’ 45 Law & Society Review 831. —— (2016) Criminal Defense in China: The Politics of Defense Lawyers at Work (Cambridge, Cambridge University Press). MEPI (2012) Libyan Lawyers Prepare for Elections 27 July. Michelson, E (2007) ‘Lawyers, Political Embeddedness, and Institutional Continuity in China’s Transition from Socialism’ 113 American Sociological Review 352. Millennium Challenge Account Threshold Program Concept Paper of the Kyrgyz Republic (2007). ‘Minister asks lawyers to divulge client info to stem money laundering’ (2006) Japan Economic Newswire 20 October. Miyazawa, S (2001) ‘The Politics of Judicial Reform in Japan: The Rule of Law at Law?’ 2 Asian-Pacific Law & Policy Journal 89. Nelson, R (1985). ‘Ideology, Practice and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm’ 37 Stanford Law Review 503. No Peace Without Justice (NPWJ) (2017). International Criminal Justice Program. Supporting Libya’s Democratic Transition through Justice and Accountability (New York, NPWJ). Parsons, T (1964) ‘A Sociologist Looks at the Legal Profession’ in T Parsons (ed), Essays in Sociological Theory (Glencoe, IL, Free Press). Powell, M (1988) From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York, Russell Sage). Resolution of the Second International Scientific and Practical Conference of the Advocatura of the Kyrgyz Republic (2016) 10–11 October. Robert, Amanda (2019) ‘With LSC under threat for third year, ABA president asks Congress to increase legal aid funding’, ABA Journal, 18 March. Rosen-Zvi, I (2001) ‘Constructing Professionalism: The Professional Project of the Israeli Judiciary’ 31 Seton Hall Law Review 760. Ruas, C (2016) ‘Running the Joint: A Story about the Worst Prisons in Brazil’ 1 February medium.com/ bang-bang/running-the-joint-3459f29111a. Sa e Silva, F (2018) ‘Doing Well and Doing Good in an Emerging Economy: The Social Construction of Pro Bono among Corporate Lawyers and Law Firms in São Paulo’ in LG Cunha et al (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (Cambridge, Cambridge University Press) 210–46. Scheingold, SA and Sarat, A (2004) Something to Believe In: Politics, Professionalism, and Cause Lawyering (Stanford, Stanford University Press). Shepherd, KL (2009) ‘Guardians at the Gate: The Gatekeeper Initiative and the Risk-Based Approach for Transactional Lawyers’ 43 Real Property, Trust and Estate Law Journal 607. Shokr, A (2011) ‘Benghazi’s lawyers, Libya’s revolutionaries’ Al-Masry Al-Youm 3 October. Taniguchi, Y et al (eds) (2018) Civil Procedure in Japan, 3rd edn (Huntington, NY, Juris Publishing). Taylor, MM (2008) Judging Policy: Courts and Policy Reform in Democratic Brazil (Stanford, Stanford University Press). Taylor, S (1981) ‘House Action Near in the Fight Over Legal Aid’ The New York Times 16 June. The Bar Report (2011) ‘State Bar Association asks Washington to restore funding’ New Jersey Law Journal 21 March. Umeda, S (2014) ‘Japan: Other Professionals Expand Practice Areas, Lawyers Displeased’ Global Legal Monitor (17 September).

When and Why Do Lawyer Organisations Seek to Influence Law?  251 United Nations (1990) Basic Principles on the Role of Lawyers (New York, UN). United Nations, Department of Economic and Social Affairs (2019), World Population Prospects 2019, Volume 1: Comprehensive Tables, Table A.9 (2019) population.un.org/wpp/Publications/Files/ WPP2019_Volume-I_Comprehensive-Tables.pdf. Weissman, L (2008) ‘Small Claims Limit Raised; The Maximum Has Been Raised from NIS 17,800 to NIS 30,000’ Globes 7 July. Ziv, N (2003) ‘The Professional Project of the Israeli Bar 1928–2002’ 71 Fordham Law Review 1621. —— (2009) ‘Regulation of Israeli Lawyers, From Professional Autonomy to Multi-Institutional Regulation’ 77 Fordham Law Review 1763.

252

11 Globalisation and Education Reconfigurations in Location, Scale, Form and Content OLE HAMMERSLEV

I. INTRODUCTION

A

principal dichotomy in thinking about the purposes of education is that between the functionalist/utilitarian view that the primary concern of employers and states is to achieve social consensus and work-readiness in individuals, and the view of critical scholars that institutional socialisation and qualifications are a means of perpetuating homological social hierarchies. This second perspective informs theorisations of education’s role in reproducing hegemonic consciousness by transforming students’ identities, values, visions and analytic abilities (Bourdieu 2005; 1996; Bourdieu and Passeron 1979; Mertz 2007). Interpretations of the nature of ‘knowledge’ are similarly polarised. On one hand, it can be taken at face value as the necessary pre-requisite for performing a social or occupational role. On the other, it can be viewed as a form of capital, generated and controlled by ruling elites as a means of culturally reproducing the system that protects their monopoly of opportunities and resources. This interpretation is exemplified by Bourdieu’s focus on the key role education played in reproducing the state nobility in continental Europe, as dominant classes used it to convert their forms of capital into certified resources, enabling them to control the state (Bourdieu 1996; 2005). It also underpins the neo-Weberian focus on the centrality of education to the production of lawyers and the professional project (Larson 1977). Whichever perspective we adopt, legal education is pivotal to understanding the development of lawyers and legal professions around the world and thus their role in state construction, a role which exposes the Janus-faced character of both law and education. In addition to producing and legitimating the status quo, law’s capacity to act as a social justice mechanism offers lawyers the potential to be both forces of conservatism and social change actors, making legal education a potentially contested site. Its ambivalent character is illustrated by its role in the post-colonial era, and in particular that played by the law and development movement which emerged in the 1960s (Trubek and Galanter 1974; Gardner 1980; Trubek et al 2021). Comprised of a diverse body of North American institutions, this movement promoted US models of law and legal education, especially in Latin America and Africa and later Eastern Europe and East Asia, by providing professional, financial and moral support for programmes developed by US lawyers (including leading law school faculties) (Gardner 1980; for the history

254  Ole Hammerslev of the law and development movement see eg Trubek et al 1994; 2021). Describing this movement as anti-communist, Dezalay and Garth (2002; 2010; see also Dezalay and Garth, ch 24 below) have demonstrated the key role played by legal education in bringing new political leaders and elites to power. This interpretation of legal education as a vector of cultural imperialism is supported by the national reports on India (see Ballakrishnen Vol 1, ch 36) and South Korea (see Kim Vol 1, ch 40). However, other post-colonial nation-building projects illustrate legal education’s counter-hegemonic potential, exemplified by Kenya’s prioritising of the development of an indigenous legal profession, viewed as essential to the construction of an independent state (Kamau Vol 1, ch 24, and see below). This potential has been fostered by the increased significance of human rights, legal education’s contribution to political activism, and struggles against theocratic powers and colonial legacies, as well as the resilience of discourses informed by social democratic rationalities (Sommerlad and Hammerslev Vol 1, ch 1). The recognition that law, and thus legal education, play a pivotal role in the processes of modernisation (as seen in eg Foucault 2002; Pue 2016) and, correspondingly, that the teaching of legal doctrine entails the transmission of values, outlooks and practices and thus identity formation,1 underlines the fact that law is not ‘morally neutral’ (Burridge and Webb 2007; see also Kennedy 2004). The links between law (and what counts as legal knowledge) and power are illustrated by Boon et al’s (2005, see also Boon 1998) study of how specific institutions in England and Wales (the Law Society, universities, solicitors’ firms) played a role in determining – albeit in negotiation with other key players – what is valid knowledge. Formal education in black letter law remains the core of models of professional formation since it confers the credentials necessary to exercise the exclusive right to perform certain tasks (and hence to establish the profession’s boundaries). However, legal education does not just comprise formal learning in higher educational institutions based in nation states, or even apprenticeship in skills in organisations, but also all the tacit learning that informs the neophyte lawyers’ acquisition of knowledge, skills and competences and how to perform professionalism. Legal education in this broader sense can be located almost anywhere, influencing citizens’ legal consciousness in neighbourhoods, families, social media, law schools etc (Friedman 1989) or to rephrase Sarat (1990), legal education ‘is all over’ in the US and most of the West. In recent decades, globalisation and the neoliberal paradigm have shaped the learning of law and identity formation by repeatedly reconfiguring legal education. One example is the intensified focus on lifetime learning programmes, in which qualified lawyers and judges receive additional training in order to continue to practise and stay abreast of changes in the law. Such training can be provided outside universities, by public training institutions or private suppliers, such as corporate law firms (Faulconbridge and Muzio 2009; Gordon 2005). The role of law firms in legal education is particularly important in common law countries, where most law graduates enter private practice. Those firms have always been major sources of education, not just through the formal apprenticeship schemes which still exist in some jurisdictions but also through the role they play in professional identity formation (Sommerlad 2007). The significance of this form of education has been accentuated by neoliberal globalisation, since it has splintered professions across the world, eroding the close relationship between university education, especially legal education, and the nation state. In the process, organisational professionalism has displaced occupational professionalism, as the locus of power and source of socialisation and regulation have shifted to law firms (Faulconbridge and Muzio 2009), disrupting national legal cultures and the ability of national professional and educational bodies 1 Carr (2003) distinguishes between the acquisition of knowledge, skills and competences, the objects of education (ie learners), different modes of pedagogy, and the institutions in which education occurs.

Globalisation and Education  255 to regulate legal education and support professional closure. Globalisation has also challenged the neo-Weberian focus on national variations in the demographics and size of the profession and how it controls the production of lawyers (Abel 1988), as national educational credentials are complemented by transnational credits and recalibrations of educational institutions (Faulconbridge and Muzio 2009). Thus, the effects of the transformation of the profession have interacted with equally dramatic changes to legal education. This is most apparent in the vastly expanded corporate hemisphere, which, as several chapters in this volume illustrate, has become an industry that requires legal technicians more than autonomous ‘craft’ lawyers. Its reliance on large quantities of cheap labour provided by paralegals without (or even with) legal educational credentials has contributed to the expansion and massification of legal education, accentuating its pre-existing stratification, and also to the blurring of professional boundaries (on paralegals, see Sommerlad et al, ch 12 below). However, the story is further complicated by the fact that processes of globalisation – or Americanisation (Webb 2015) – are influencing legal education unevenly in form and pace throughout the world and within countries and workplaces, which therefore remain inflected by national trajectories. Based on the country reports in Volume 1, this chapter examines how legal education has been recalibrated in terms of location, scale, form and content, focusing on specific signifiers of globalisation. Because legal education is still mainly embedded in national settings, I start by discussing its relocation to law firms and how it has been globalised by new, transnational legal educational institutions. I then examine the scale of legal education. One of the key signifiers of globalisation is the massive expansion of legal education and particularly private provision. Next, the chapter discusses a related issue: the massification and diversification of legal education. While this development has facilitated ‘outsiders’ usurpationary projects (Witz 1992), challenging the profession’s closure practices, various elite groups have managed to reproduce their positions (Bourdieu 1996; 2005). Finally, the chapter discusses the changing form and content of legal education, focusing on the curriculum and noting how these developments are found throughout the world – for instance, the emergence of legal clinics, one of the fastest growing pedagogies, in many different countries. Rather than conducting a ‘full-fledged’ and ‘symmetrical’ comparison (Azarian 2011: 117), the chapter contextualises illustrative instances of these themes in order to reflect the many ways legal education reconfigures and adapts to globalisation depending on the national fields of power. In this way it illuminates both the commonalities and nuances in the development of legal educational fields in relation to the trajectories of state power (on comparison, see Sommerlad and Hammerslev, ch 1 above; Hammerslev and Sommerlad 2021). II.  CHANGES IN THE LOCATION OF LEGAL EDUCATION

Although lawyers and legal education have long been strongly rooted in national settings, globalisation has created new markets for a growing number of elite lawyers and hence for legal education. The processes of globalisation have accelerated the displacement of legal education to institutions other than universities. Faulconbridge and Muzio (2009) have discussed how legal education in the West has become increasingly focused on corporate law firms. They also report that in 2009, about 50 per cent of partners in ‘German and Italian offices of Magic Circle firms have some kind of training outside of their country of practice’ (ibid; for the US, see Silver 2013). This trend also characterises the English corporate sphere: Flood’s review of English legal education (2011: 1) revealed the increasing internationalisation of the labour market for English lawyers in the sense that work stations were overseas: in 2010, more than

256  Ole Hammerslev 6,000 solicitors were ‘practising outside their home jurisdiction out of just over 150,000 solicitors on the Roll and nearly 118,000 with practising certificates’, making England ‘one of the largest exporters of legal talent, if not the biggest, in the world’. As a result, an English diploma represents a form of cultural capital, enhancing the chance to obtain an elite position: in 2011–12, there were more than 20,000 international undergraduate and postgraduate law students in England and Wales, 22 per cent of all such students (Webb 2015: 105 n 36). The value of a Western degree in tandem with the creation of a global market for legal services has similarly stimulated an international market in elite legal educational institutions. The resulting rise in international student exchanges and export of domestic law schools – US, UK and Australian universities have established campuses in Asian countries like China, Malaysia, Japan and Singapore (Arthurs 2009; Flood 2011) – has enhanced interconnectedness among legal educational institutions across the world. Flood (2011) also describes how these global law schools are structured to attract cosmopolitan students. This is most evident in India, which exemplifies the role played by individuals, US foundations and corporate law firms in exporting educational institutions, as well as the interconnectedness and hegemonic relationship between jurisdictions. The Jindal Global Law School in New Delhi is exemplary. A private institution funded by corporate money, whose main goal is preparing Indian lawyers for elite positions, it also offers international LLM courses: The faculty is cosmopolitan with most possessing international law degrees. However, the school’s formulation of global is restrictive in that it has formed alliances with foreign law schools but all of American origin. (ibid)

A further example is provided by Brazil, where new legal educational institutions have also been created, drawing on foreign private investment (Bonelli and Fortes Vol 1, ch 19). The Bologna Declaration of 1999 represents another manifestation of the transnationalisation of legal education and the consequent reconfiguration of national practices. Designed to enhance the competitiveness of European higher education threatened by growing US dominance, this initiative brought together 29 European countries with the aim of harmonising the EU educational market and promoting student mobility among the EU countries. This was to be achieved through a three-year BA followed by a two-year MA, and changes to the form and content of legal education. These measures required a common semester structure, making it possible for students to study abroad and to choose specific topics (often taught in English), and by facilitating the transfer of credits (formalised in the European Credit Transfer System). However, some countries, including Germany, did not adopt the Bologna model for law, and Italy adopted but later rejected it (Piana et al 2013; Witte and Forder 1992). Similar attempts at regional harmonisation of higher education occurred in South America (see Gómez, ch 2 above). III.  CHANGES IN SCALE – EXPANSION OF LEGAL EDUCATION

Emphasising the context of legal education reveals how macro-level developments affect legal education differently, illustrated by the varying pace and degree of change and the persistence of pre-existing patterns. Contextualisation is fundamental to Neave’s (1989) chapter in Lawyers in Society vol III, which discusses higher education policy in Western Europe and the US from 1950 to the late 1980s. The shift from elite to mass education enabled large numbers of students to enter traditional professions, resulting in the creation of new degrees and bodies claiming professional status for their holders, making it possible for them to enter some of the

Globalisation and Education  257 markets traditionally dominated by the established professions (ibid: 154 ff). Neave argued that the increased number of students from more diverse backgrounds demonstrated education’s potential to disrupt trajectories traditionally determined by social inheritance. However, the need to situate these developments within their national contexts is underlined by both the varying rates at which they occurred, reflecting national differences in the pace of modernisation, and differences in the forms they took and the agents involved (individuals, institutions, funders). For instance, these changes occurred about 15 years later in Western Europe than in the US (ibid: 156). As the Volume 1 chapters show, this process happened still later and more unequally in Africa, the Islamic world, Latin America, Israel, Asia, and Eastern Europe.2 As the Lawyers in Society project illustrated, the interaction between national socioeconomic and political structures and cultures and professional developments also generated different types of labour markets. For instance, whereas the European labour market was partly protected, with relatively clear career structures, some security of employment, and ‘often salaries and pensions indexed to inflation’ (Neave 1989: 160), the legal labour market in common law countries was private. Between 1960 and 1968, investment in higher education in Western Europe (including the UK, as well as Australia) was based on expanding existing universities, creating new ones and upgrading those of lower status. Public funding made it possible for states to shape the educational system and use it as an instrument of national policy (ibid: 157). However, by the 1970s the state could neither expand much more nor absorb the many new graduates. In the late 1970s and early 1980s, therefore, higher education redirected student expectations towards the private sector. With the widespread rejection of the Keynesian agenda and statist policies, the emergence of neoliberal ideology signalled the beginnings of market fundamentalist reforms (Wacquant 2009; Brown 2003). European welfare states and universities came under increasing pressure to demonstrate efficiency, and higher education responded by engaging with the private market, seeking alternative funding sources, and enhancing entrepreneurship at the same time as university budgets were cut in Belgium, the Netherlands, and the UK (Neave 1989: 169). In the Netherlands, for instance, the rapid increase in student intake occurred before 1990, and the neoliberal funding model emphasised ‘output financing’, ie payment per successful graduate (Doornbos and de ­Groot-van Leeuwen Vol 1, ch 12), implicitly encouraging law faculties to increase the number of students and graduate them quickly. Recent literature primarily based on developments in the US, UK, Australia and Canada suggests that these neoliberal processes have intensified, motivating educational institutions to focus on economic rationalism, efficiency and income generation (Thornton 2001a; 2011). Students are turned into consumers with an increasing number of choices in the educational market. One manifestation of this trend is the steady and significant rise in fees in many jurisdictions. For instance, across Canada, law school tuition fees doubled between 2006 and 2016 (Dinovitzer and Dawe Vol 1, ch 3). In Australia fees have also risen, and there has been a shift to a user-pays regime – a government-funded, low interest loan scheme with incomecontingent repayment. The combination of high law school fees and high demand has led

2 In Asia and Africa, the increasing number of legal educational institutions and students should be seen in relation to the colonial legacies, ie in relation to the former colonies’ aim to effect state transformations. As Chesterman (2017b: 203) notes: ‘By the Second World War, the Dominions, British India, and British-administered Egypt had reasonably developed systems of higher education, including law schools. But for the 66 million people living in the other territories in Asia and Africa controlled by the British Colonial Office’ there were only three universities. However, after the Second World War, a number of university colleges were established in Africa, especially in 1945–49 in Nigeria, Sudan, what is now Ghana, and Uganda.

258  Ole Hammerslev to a proliferation of law schools (Thornton and Wood Vol 1, ch 2). Yet, in other countries like Germany legal education remains free (Kilian and Schultz Vol 1, ch 10), and in Denmark students are even paid a stipend (Hammerslev Vol 1, ch 8). What Neave described up to 1989 can be seen as the first stage of neoliberal developments, which later intensified and became global (Sommerlad and Hammerslev Vol 1, ch 1). One of the most significant results is the massive and continuous expansion of legal education through increases in the number of law students, law graduates and legal educational institutions – generating not only more public law schools but also, as noted above, a substantial number of private institutions. There are only a few counterexamples like Japan, which initially responded to US pressure in the 1980s by increasing the number of law schools and students and deregulating financial markets but then subsequently (in 2018) reduced the number of law schools (Murayama Vol 1, ch 38). Webb (2015: 105) sees the rapid expansion of higher education as a ‘direct consequence of the equation, within the knowledge economy discourse, of global competitiveness with the development of a highly educated workforce’. Yet, as we will see through our comparisons below, the story is more complicated, since the expansion of legal education is related to several other factors, including universities’ need to compensate for budgetary cuts, students’ perception of law degrees as providing a route to social mobility, and nation-building projects. Most remarkable is the expansion of legal education in the BRICS countries (Brazil, Russia, India, China and South Africa). Although subject to similar influences from ideas in general circulation (Bourdieu 2002) and (funding) agencies, their national educational trajectories diverged. Russia offers an extreme example of the expansion of legal education when, following the fall of communism and subsequent engagement with the global economy, it required a (cheaply) educated workforce. Since 1989, it has deregulated private practice, allowing law graduates to do everything except represent criminal accused, without qualifying as lawyers. The extreme marketisation of legal education has meant that any university can establish a law degree at little cost, with the result that the number of law schools increased from 30 in the 1980s to more than 1,000 in 2012, granting 150,000 degrees a year. Notably, almost 75 per cent of law students pursue their degrees through part-time correspondence courses, which involve minimal classroom attendance. However, state legal professionals and other lawyers are educated differently. For example, special higher educational institutions for law are designed for training police investigators, leading to further fragmentation within the profession. Thus, legal education has become ‘a wild west’ (Moiseeva and Bocharov Vol 1, ch 16; Bogdanova 2019). This unregulated massification of legal education in Russia and its consequences for the segmentation and segregation of the professional labour market are now common phenomena, accentuated by the fact that certified lawyers compete with unlicensed lawyers. Brazil also experienced the expansion and marketisation of legal education, facilitated by the deregulation of higher education in 1996, and consequent transformation of legal education into a commodity: With investments from private entrepreneurs and support from the government and international investors, the number of law schools grew exponentially, from 130 in 1980 to 1,171 in 2015. The increase was especially rapid in the most recent decade because of the governmental agenda, the opening of education to foreign investors, and initial public offerings of shares of higher education companies in the stock market. (Bonelli and Fortes Vol 1, ch 19)

In India, legal education was transformed in the late 1980s with the creation of the new National Law Schools. A ‘Harvard of the East’ model sought to make Indian legal education globally competitive. The first National Law School was established with ‘tangible and symbolic investments from the Bar Council of India, the judiciary, local government and external agencies,

Globalisation and Education  259 such as the Ford Foundation’ (Ballakrishnen Vol 1, ch 36: 723). By 2017 there were 17 National Law Schools. Yet, this figure should be seen in relation to the 1,390 law schools operating in 2013, graduating an estimated 50–80,000 annually. The number of students who took the National Law School entrance exams increased from 11,000 in 2008 to 45,000 in 2017. The new elite legal educational institutions formed the basis on which Indian lawyers participated in the economic boom (which started in 1991) (ibid). China offers another clear example of the expansion of legal education. Like India, it recognised that participation in global markets required an educated workforce. As late as 1988, anyone with a junior college degree in any subject could take the national bar exam, and there were still fewer than 200 law schools in the 1990s. But by 2006 this number had increased to more than 600, and the number of law students grew from 25,075 in 1991 to 449,295 in 2005 and 613,752 in 2012 (Liu Vol 1, ch 35). The forces of neoliberal globalisation and the growing significance of the knowledge economy similarly affected the provision of legal education in emerging economies. For instance, around 1980 the Mexican government, driven by free market ideology, enacted legislation authorising the establishment of new educational institutions. However, government policy was also motivated by the need to defuse radical political currents circulating within the universities and society generally. The new universities, therefore, were initially envisaged as not for profit and were regionally based, making them more accessible to local populations. However, many institutions began to behave as market actors, and, while in 1985 just 93 offered LLB degrees, in 2015 there were 1,715, a growth rate of one new law school every week. The number of LLB students rose from 85,418 in 1985 to 312,429 in 2015. In 1985, half the institutions offering LLBs were private (47 of the 93), and they enrolled only 13 per cent of students (11,263). By 2015, 92 per cent of law schools were private (1,580 out of 1,715), and they enrolled 54 per cent of students (168,752). These private law schools are founded by individuals, religious groups and private entities and financed primarily by tuition and student fees (Pérez-Hurtado Vol 1, ch 21). Global competitiveness was again the spur for the South Korean proposal, in the 1990s, to establish American-style law schools that would prepare students for globalised practice, thereby, it was hoped, enabling South Korean lawyers to compete with foreign (including American) lawyers (Kim Vol 1, ch 40; see also Lee 2010). This resulted in 25 law schools operating under a new model and accepting 2,000 students a year in 2007. As a result, the number of lawyers increased from 9,240 in 2007 to 23,154 in 2017 (Kim Vol 1, ch 40). Socialist Vietnam exemplifies both government use of legal education to promote economic growth and the role it was expected to play in state construction. Shortly after national reunification, in 1976, a law faculty was established. After economic reforms in the late 1980s, the expansion of law colleges and faculties accelerated. The aim was twofold: law faculties would produce more technically trained experts to promote economic integration and trade; and public universities would generate new sources of income (Nicholson and Do Vol 1, ch 43). Similar motivations prompted the expansion of Turkish legal education: 56 new universities were established between 1980 and 2002 after the government permitted private non-profit institutions of higher education. By 2001, there were 23 law faculties, 11 at privately funded universities. As Kalem (Vol 1, ch 34: 681) notes: ‘Law was one of the most profitable faculties because the promise of a solid professional training and a relatively secure financial future, together with the steadily expanding global market for legal services, increased the demand for legal education’. All these cases underline the significance of common factors driving the expansion of legal education, such as the global competitiveness and the value to universities of law as a cheap and profitable degree. Furthermore, even though only a small fraction of national legal professions are directly involved in global economy, the growth of local economies – a process in which lawyers were directly involved – has expanded the market for their services.

260  Ole Hammerslev The trajectories of legal education in the former communist countries were also related to the transformation from a command to a market economy, which motivated lawyers serving the state (jurisconsults) to become private practitioners (see Mrowczynski, ch 5 above). With privatisation and international investment and trade directed towards open markets, new universities and colleges were established, and the intake of students increased to help these countries participate in the knowledge economy. In Serbia there are now five private law faculties enrolling approximately 16 per cent of university law students, a consequence of the liberalisation of higher education. In the Czech Republic the scarcity of advocates and the booming market for legal services after 1990 created a public image of the legal profession as promising a ‘golden bonanza’, ensuring that the intake of students would remain high (Kober Vol 1, ch 14). In post-communist Poland the educational market changed dramatically after 1989. Private universities offering fee-based legal education complemented the free state universities. Within approximately 15 years the total number of students in higher education increased from 403,800 in 112 institutions in 1990/91 to 1,953,800 students, 68 per cent at the 130 public universities and 32 per cent at the 315 private institutions. The number of law students also grew, more rapidly in private institutions (Gadowska Vol 1, ch 15; Śliwa 2010). A few more examples are illuminating. From the mid-1990s the Tunisian state sought to create a knowledge economy through the massification of higher education, and between 2000 and 2011 the proportion of the relevant age group enrolled in higher education rose from 19 to 36 per cent. The transformation of university education into a positional good is illustrated by the dominance of degrees such as management, finance and law, which together accounted for over 60 per cent of diplomas awarded in the mid-2000s. From 1991 to 2011, bar membership increased nearly sixfold, from approximately 1,400 to 7,759. The number of postgraduate law courses in Tunisia doubled from 30 in 2004–05 to 61 in 2012–13, following the increasing number of undergraduate law students (Gobe Vol 1, ch 33). Israel also saw a dramatic expansion of legal education with the opening of private law colleges from the mid-1990s. What had been three law schools with 2,000 students became 14 law schools with 16,000 students (Katvan et al Vol 1, ch 30). IV.  CHANGES IN THE SCALE OF LEGAL EDUCATION – DIVERSIFICATION AND STRATIFICATION

As the above discussion indicates, the massive expansion of legal education, including the private sector, has resulted in a diversification of institutions and their student populations. This trend is documented by virtually all the Volume 1 chapters, which show that the first ‘outsiders’ are generally women, dramatically increasing their representation in law schools (see also Schultz and Shaw 2013; Schultz et al 2021; Schultz and Shaw 2003). In many jurisdictions, the first women to enter en masse were drawn from middle class social groups and attended higher status law schools. However, most jurisdictions report that women have been quickly followed by increasing proportions of ethnic minorities (see also Choroszewicz and Kay, ch 6 above), including those drawn from lower socio-economic groups, and that these later entrants are frequently clustered in the new, mass law schools. These developments are linked to the expansion and diversification of the profession and the accentuation of its division into what Heinz and Laumann (1994) called the two hemispheres of practice (see the country reports in Volume 1 on China, France, Israel, Switzerland, and Australia). In the corporate hemisphere, the high degree of specialisation and the industrialisation of legal practice as a result of new technologies has generated a demand for a

Globalisation and Education  261 technically competent but sub-professional form of labour. The new law schools produce this new type of legal worker, while appearing to offer lower status groups opportunities for social mobility through the acquisition of the necessary credentials for entry into the profession. Credentials traditionally conferred authority on certain positions, at the same time as they imbued degree holders with specific competences. However, this profound ‘social alchemy’ (Bourdieu 1996) maintains and masks the reproduction of social hierarchies (see eg Collier, ch 7 above and Mertz 2007). Thus, although low status groups’ mass entrance into legal education could be seen as a democratisation of law, the potential threat they pose to the value of credentials is defused by the stratification of the extremely diverse legal educational institutions now in existence and the reconfiguration and reinforcement of the cultural capital that apical institutions provide. This stratification, and the resilience of tradition in perpetuating the profession’s hierarchies, reinforced by the impact of globalisation on the labour market, confines the majority of ‘outsiders’ to the profession’s lower levels, in sub-professional roles (see Sommerlad et al on paralegals, ch 12 below, and Choroszewicz and Kay, ch 6 above). Educational institutions thus play a key role in reproducing social hierarchies (including gender and ethnicity) through both objective structures such as high fees and the symbolic transmission of the visions and divisions of the social world (Bourdieu 1996). The way this happens varies from jurisdiction to jurisdiction and includes students’ knowledge of the university sector and their sense of being out of place in elite institutions, frequently making even those with the requisite pre-university credentials decide to go elsewhere. For instance, even in social democratic Sweden, research has shown how students’ social backgrounds affect their choice of what and where to study, ie whether and where to study abroad and whether to follow an exchange programme like Erasmus (which supports student mobility in Europe) or organise and pay for one themselves (Börjesson and Broady 2006).3 The chapters in Volume 1 provide multiple examples of the stratification of higher education institutions and its impact on the legal labour market. For instance, Indonesia reports enormous status differences among its more than 300 law faculties: students aiming to enter a corporate law firm must attend one of the two most prestigious state universities or the few expensive private universities. An increasing (though still relatively small) number take an LLM abroad, mainly lawyers in corporate law firms. Modern corporate firms increasingly hire Chinese-Indonesian lawyers who perform well in university. Virtually all corporate firms were established by lawyers from elite backgrounds (Kouwagam and Bedner Vol 1, ch 37). In Brazil, despite both dramatic expansion and the adoption of affirmative action policies, the higher education system is deeply stratified (Bonelli and Fortes Vol 1, ch 19). In Australia, too, the increase in the number of law graduates (despite disinvestment in public higher education following the embrace of neoliberal policies) has intensified stratification and competition within higher education, which has been accentuated by domestic and international university league tables (Thornton and Wood Vol 1, ch 2). Similarly in Europe, governments have emphasised greater participation in education, but massification is accompanied by the persistence of inequalities among the various social strata. For instance, some Belgian institutions attract disproportionate numbers of native Belgian students from the upper classes (Gibens et al Vol 1, ch 7). England and Wales has also seen a dramatic diversification of law students: from the early 1990s the numbers of ethnic minorities enrolled at universities began to increase, reaching 32 per cent of those starting a first degree in law in 2008. In Israel, the educational market also diversified, with top universities educating graduates for commercial law firms and 3 Law studies abroad contribute significantly to domestic social stratification among law students and educational institutions: only a minority are privileged to compete in foreign or international arenas (Börjesson and Broady 2006).

262  Ole Hammerslev private law schools offering access to previously underrepresented Sephardic students (Katvan et al Vol 1, ch 30). Chilean legal education is described as a hierarchical market of law schools and programmes, reflecting the social capital of students and instructors, thereby reproducing the profound stratification of primary and secondary education (Villalonga Vol 1, ch 20). The significance of ethnic diversification is particularly great in many former colonies, which – as noted in the above discussion of education’s role in nation building – adopted educational policies specifically designed to increase indigenous representation in the profession. Kenya exemplifies the colonial policy of excluding Africans from higher education for fear they would agitate for independence, producing a profession dominated by British and Asian lawyers, many of whom were not Kenyan citizens. However, as a result of the independent government’s policy of Africanisation and expanding legal education to include the indigenous African population, the profession is now dominated by Africans (Kamau Vol 1, ch 24). Zimbabwe also demonstrates that ethnicity is a key factor in making legal education a site of struggle against former colonial patterns. After independence in 1980, the country sought to enrol more Black law students at the University of Zimbabwe. Prior to 1980 the entering class of about 30 law students had just 1–5 Black students; after 1980, the size of the class tripled, and Black students soon constituted more than 90 per cent. The number of Black women, who had been even more under-represented than their male counterparts, also rose gradually, to about 25 per cent in 1988 and half by the 2000s. At the same time, control of entry into the profession was transferred to a newly created Council for Legal Education. The erosion of established law firms’ gatekeeping power and the elimination of the racial and gender barriers to entry, which they had created, allowed new currents of legal thinking to challenge the status quo (Karekwaivanane Vol 1, ch 27). Nigeria offers another example of the priority given to building an indigenous legal profession and the concomitant importance of legal education. At independence, Nigeria had 540 indigenous lawyers out of a total of 963. After independence, most foreign lawyers left, and the legal profession quickly became representative of the population (Uzebu-Imarhiagbe Vol 1, ch 25). However in some former colonies, complex ethnic stratification – frequently instrumentalised by the colonial powers as a means of domination – hampered or patterned attempts to create an indigenous profession. For instance, in the former Belgian colony of Burundi, the colonial power exploited and exacerbated deep divisions between ethnic groups, which then endured into the Independence period. Thus, the division between Hutu and Tutsi was mirrored in legal education because the latter group was favoured by the Belgian colonisers. The university, which had monopolised legal education until the early 2000s and produced an annual average of 30 law graduates, ‘was affected by the ethnic and factionalist politics of the Micombero regime. From the 1972 massacres until the 2000s, over 90 per cent of law students were Tutsi’ (Dezalay Vol 1, ch 23: 486). V.  FORM AND CONTENT OF LEGAL EDUCATION

Much of the English writing on legal education notes the gap between labour market changes and the form and content of legal education and questions whether legal education is producing enough well-qualified candidates and adapting them to the accelerating processes of globalisation (Sherr et al 2017; Twining 2018; Webb 2015; Sommerlad et al 2015). This reveals both the necessary relationship between macro-level social development and education and the difficulties of changing the form and content of legal education within stable societies, because of the persistence of traditional social traits and elite lawyers’ strategies of social closure. Law,

Globalisation and Education  263 and therefore legal education, must change in order to fulfil their socially constitutive role, but this is in tension with their implicit world affirming function. The link between forms of legal education and legal systems and the impact on the possibilities of rationalising the law and establishing legal hierarchies, is perhaps most clearly illustrated in Weber’s (1978)4 studies, which outlined the ideal types of legal education as they emerged in common law and civil law systems. Weber saw that the demystification and systematisation of law, which was fundamental to the wider process of social rationalisation, entailed the development of new forms of legal education. Differentiating between the theoretical education offered by universities in civil law countries, especially Germany (Treiber 2011), and training for craft through apprenticeship in the common law of England, he noted that the close relationship between bench and bar meant that English legal education was dominated by ‘practitioners, especially attorneys [ie solicitors], who have made admission to practice a guild monopoly’ (Weber 1978: 787 ff). These differences in approach to legal education persist. Although the vast majority of solicitors and barristers in England and Wales first study law at university (and, if they read another subject for a first degree, take the Graduate Diploma in Law), apprenticeship is still required. In continental Europe, too, the traditional educational model remains more or less intact. This entails the transmission of abstract theoretical norms and concepts that are coherent and can be interpreted through logic, which the student learns during a fixed course of study in an academic institution. This period of abstraction and intellectual formation, divorced from the reality and pressures of law practice (described by Weber 1978: 789 as a ‘priestly approach to the law’) exemplifies legal positivism’s division between doctrinal studies and law in action. This is enforced in the civil law tradition through universities’ monopoly over legal education: only law school graduates were admitted to practice. Although some systems of qualification embrace elements of both the common law and civil law models, most are based on either one or the other, as a result of their imposition across the world during the Age of Imperialism (as several chapters in Volume 1 illustrate; see also Schmidhauser 1997). These Western models also influenced countries that were not formally colonised, such as Japan and China (Chesterman 2017a). However, these educational models have everywhere been disrupted by globalisation and new markets for legal services, which have transformed not only the location and scale of legal education but also its form and content and discourses about it. Legal educators have had to reconsider what knowledge, skills and identities are required by the neophyte lawyer, in light of the legal labour market’s transformation. As discussed above, this has entailed the industrialisation of legal practice, as legal tech has made it possible to subdivide work into series of tasks (Boltanski and Chiapello 2007), making redundant the autonomous generalist lawyer educated in all legal disciplines and hence able to engage in general practice. The transformation also comprises the division between a majority of lawyers practising domestically, an elite in corporate law, and growing numbers working in government administration and the private economy as in-house counsel. Now, extra-legal skills such as collaboration, project management, understanding markets and the ability to communicate with clients are complementing doctrinal knowledge (Hammerslev Vol 1, ch 8; Boon et al 2005). Thus, the expansion and diversification of legal education and the market for legal services, together with substantive and functional specialisation, have compelled law schools to reconsider how to educate their students, including the balance between theoretical and vocational training and the choice of subjects. 4 Wirtschaft und Gesellschaft (Tübingen, Mohr, 1922) X, 840 S (Grundriß der Sozialökonomik; Abt. 3) Wirtschaft u. Gesellschaft. 2. verm. Aufl. (Tübingen, Mohr, 1925) (Grundriss der Sozialökonomik. Teil: 3. Halbbd 1/2).

264  Ole Hammerslev This new, utilitarian approach to legal education – making it a component of legal capitalism – is the antithesis of the ideal of the English liberal law school, whose main purpose was to stimulate students to participate in conversations about law (Bradney 2003), promoting pluralistic research and education while downplaying top-down management and audits. In its place, ‘the restructured, corporatized or entrepreneurial university’ (Collier 2005: 477) stresses the subordination of the academic world to the visions and practices of business. As Boon et al (2005: 481) note: ‘it implies strong epistemological ties between new approaches to learning and the new, flexible, capitalist economy’ as the majority of universities adapt to the global knowledge economy. As governments assert that increasing competition between educational institutions for students – re-constituted as consumers – and evaluation in terms of standardised learning outcomes will foster greater efficiency and effectiveness (Slaughter and Leslie 1997; Metcalfe 2010; Thornton 2001b; Arthurs 2009), the form and content of legal education have been subjected to increasing scrutiny, and academic staff are disciplined through the imposition of targets. With an expanding international legal services market for foreign graduate students – mainly in the US and UK but also in civil law countries such as Germany – law schools have adapted to and engaged with this competition (thereby intensifying it) by restructuring the form and content of legal education, as discussed in relation to the Bologna process. One signifier of this reconfiguration is the development and increase in auditing by external (and transnational) accreditation (or quality assessment) institutions and rankings focusing on specific aspects of the form and content of legal education (Tamanaha 2012), as happened in England and Wales (Sommerlad et al Vol 1, ch 4), Denmark (Hammerslev Vol 1, ch 8), Mexico (Pérez-Hurtado Vol 1, ch 21), and Kenya (Kamau Vol 1, ch 24), and the parallel growth in management and top-down processes at universities. These forces have affected higher education in general (Smelser 2013) and have opened legal education to new forms of multi-disciplinary collaborations. One indication of this movement is the increasing focus of the law school curriculum on commercial subjects and practical skills (through moot courts and legal clinics) and also on topics transferrable to other jurisdictions, such as human rights law, banking law and alternative dispute resolution. VI.  SHIFTS IN THE CURRICULUM TO LEGAL CLINICS

One of the clearest signifiers of the transformation of curricula which features throughout the Volume 1 country reports, is the adoption of legal clinics.5 Clinical education is one of the most rapidly spreading teaching methods globally, due in part to the influence of US models of legal education and funding, exemplifying their role as a key vector of Americanisation, transmitting Western legal forms and values. As we noted in the earlier reference to the law and development movement (Trubek and Galanter 1974), international donors, such as the Ford Foundation (eg in Chile, Argentina and Peru, China, India, Sri Lanka and Bangladesh) and the Soros Foundations (in Central and Eastern Europe), often funded these new legal clinical programmes (Wilson 2004). Clearly, as indicated by the above discussion of the pedagogy in civil law countries, such as Germany, the legal clinic approach represents a dramatic shift, exemplified by the fact that students in legal clinics work on actual client cases (or simulations) at university or in a practical law school. This practical training inevitably begins to instil a professional habitus (Sherr 1999). 5 A development that may be analogous to the spread of the case method and Socratic pedagogy throughout the US a century ago. The Socratic method poses open-ended questions with no right answer, ideally engendering a cooperative exchange between student and teacher to encourage critical thinking and rhetorical skills.

Globalisation and Education  265 Legal clinics are considered a US invention (even though they originated in Denmark in 1885, see Wilson 2018) and reflect changes in the history of legal education. Partly a response to the extremely unrepresentative nature of the student body and traditional law school curricula, they can be seen as an attempt to democratise legal education. Locating itself within the literature of higher education – including John Dewey’s insistence on learning by doing (1916), the US Journal of Legal Education, and the UK The Law Teacher – much of the literature initially emanated from the clinical law movement (see eg Council 1973; LaFrance 1987; Leleiko 1979), which accelerated in the US in the late 1960 and early 1970s (Wilson 2018), stimulated by a growing number of teachers from the 1970s onwards concerned with counterhegemonic approaches to law and legal education. Articles and books on how and why to educate focused on legal education in the university and the acquisition of a craft through apprenticeship. In the 1970s, cases and texts began to appear on clinical law teaching (see eg Freeman and Weihofen 1972), and journals and conferences began to explore the work and theory of clinics. The social democratic dimension of legal education’s expansion, in part a result of the late 1960s and 1970s civil rights movements, generated critique – in some Western jurisdictions – of legal positivism and the development of socio-legal, critical and feminist studies and courses concerned with professional skills, addressing almost every field of social activity – summed up in the term ‘dangerous supplements’ (Fitzpatrick 1991). An example of such critical engagement occurred in Norway, where a group of socio-legal scholars exposed flaws in the Norwegian welfare state’s approach to legal aid (Eidesen et al 1975). They found that legal aid was unequally distributed: even though the ‘lumpen proletariat’ often had more legal problems than many other groups in society, they did not have real access to legal aid. In 1971, inspired by legal aid clinics in New York, they launched the JussBuss (Law Bus) at the University of Oslo to educate jurists more critically, deliver legal aid to marginalised groups, and give these groups a voice in the democratic debate (Mathiesen 1975; Hammerslev at al 2018). While advancing justice for marginalised groups remains an important goal of clinical legal education, neoliberal policies have affected the discourses which inform it and its purposes (Boon et al 2005). For instance, the erosion of the welfare state in many parts of the world (including even Scandinavia) has meant that legal clinics are now seen as a cheap way to address flaws in legal aid (see eg Olesen and Hammerslev forthcoming; see also Hunter et al, ch 13 below, and Hammerslev Vol 1, ch 8). At the same time, the value of clinic work for volunteer students’ resumes may outweigh motivations grounded in altruism and public service (Newman and Nicolson 2016) and underline the benefit to law schools of offering it. The Canadian report (Dinovitzer and Dawe Vol 1, ch 3) illustrates the role played by clinics in shifting the focus from an ‘intellectual approach to law’ towards ‘experiential learning’, making graduates ‘ready to practise’ when they leave law school. Clinics therefore form part of the move toward the apprenticeship model of learning, which underpinned traditional professionalism in the common law tradition. This shift has made them a key component of the utilitarian transformation of the university into a servant of ‘the new, flexible, capitalist economy’ (Boon et al 2005: 481). Thus, although clinics in the US were initially focused almost exclusively on the legal problems of underserved communities, over the last two decades they have increasingly addressed the legal problems of business. This trend is apparent in different societies, such as England and Wales, where legal clinics are viewed as enhancing employability, entrepreneurialism and the privileging of skills and ‘appropriate’ values,6 and China, where they were established to rapidly expand the number of lawyers who could function in the new

6 See also Francis (2015) for a nuanced evaluation of the increased significance of employability in the curriculum in England and Wales, where the shift to commercial law may be largely designed to cater for international students.

266  Ole Hammerslev globalised economy (Phan 2005; for an overview of different reasons for implementing legal clinics in Asia, see Taylor 2010). The expansion of legal clinics in other countries (South Africa, Palestine, Turkey, Argentina, Chile, Nigeria, Germany, the Czech Republic, Turkey) indicates a similar range of causes, including critiques of traditional positivist and doctrinal pedagogy, a concern with social justice, and the perceived capacity of clinics to fill gaps in the provision of legal services following cuts in legal aid. In countries like South Africa, Palestine and Chile, legal clinics are related to political struggles. In South Africa, legal clinics based at universities and NGOs began to offer free legal services and promote access to justice under apartheid in the 1970s. These clinics continue contesting professional rules limiting student practice and pupillages at public interest organisations (Klaaren Vol 1, ch 26). In Palestine, most universities now host legal clinics contributing to social justice by providing legal advice, community education, and representation (Qafisheh Vol 1, ch 32). In Chile, a significant number of law schools have established legal clinics in order to enhance access to justice. Because universities are associated with different political and ideological movements, clinics litigate in areas where faculty propose legal reforms (Villalonga Vol 1, ch 20). Germany too, which exemplified the civil law model of abstract, theoretical pedagogy, has seen the development of clinics, focused primarily on human rights issues (Kilian and Schultz Vol 1, ch 10).7 Seen in relation to the ideal types of common law and civil law legal education, the movement towards apprenticeship through clinics blurs the boundaries between the two models. Together with the expansion of moot courts (see the national reports on Serbia, Vietnam, South Korea, Palestine, Argentina, the Netherlands, Iran and Denmark; see also Piana et al 2013), the emphasis on employability and the withdrawal of the state from legal aid in favour of cheaper volunteer students demonstrates that the rapid expansion of legal clinics is consistent with neoliberal reforms. VII. CONCLUSION

Larson (1977) stressed the central importance of the training and socialisation of lawyers in giving the professional product its distinctive form. The cognitive basis of that product, and the consequently universalistic (and meritocratic) criteria which ground its production, were thus crucial to the professional project. But the transformations in that project, including the shift from occupational to organisational professionalism, have similarly transformed systems of legal education. Nevertheless, a constant factor is the role of legal education in reproducing social hierarchies in modern western states by changing students’ values, visions and analytic abilities. Through a comparison of Volume 1 national reports, this chapter illustrates how educational changes and continuities unfold unequally around the globe, even though they are affected by neoliberal trends everywhere. The chapter shows how the location of legal education is moving towards supranational institutions supplementing national institutions and towards law firms, limiting the effects of traditional closure strategies. It considers how legal education has expanded massively in scale, both through an increasing number of public law schools and the emergence of a substantial private sector. While a key impetus is societies’ need to adapt to the knowledge economy, expansion has also been stimulated by the 7 Here the emergence of clinics also appears to be related to lawyers’ monopoly over legal advice, which precluded students from practising. This was changed by the Legal Service Act of 2008, which permitted clinical students to offer advice under the supervision of a trained lawyer.

Globalisation and Education  267 commoditisation of legal education and its profitability, due in large part to its apparent value as a route to social mobility. The resulting massification of legal education has sharpened the differentiation of institutions and their students. Virtually all jurisdictions report the mass entrance of women into legal education, followed by ethnic minorities. But while these groups have the potential to challenge established social hierarchies, elite groups have managed – largely through the stratfication of law schools – to reproduce their positions by reconfiguring their cultural and financial capital. In post-colonial jurisdictions, however, legal education has assisted majorities in transforming the independent states. Moreover, the form and content of legal education have been transformed in most jurisdictions in many ways and for several, sometimes conflicting, reasons, most recently due to governments’ marketisation policies and the (ideological) claim that increasing competition will foster greater efficiency and effectiveness as legal educational institutions compete for students, reconfigured as customers. This ‘entrepreneuring’ of higher education has, in turn, led to the reorientation of law school curricula towards commercial subjects and practical skills, including through legal clinics, which are developing in most jurisdictions and which have largely been divested of their original social justice orientation. Finally, because of this continuous process of adaptation to global trends of legal education, the boundaries between civil law and common law models of legal education are blurred in many jurisdictions. REFERENCES Abel, RL (1988) The Legal Profession in England and Wales (Oxford, Basil Blackwell). Arthurs, HW (2009) ‘Law and Learning in an Era of Globalization’ 10 German Law Journal 629–40. Azarian, R (2011) ‘Potentials and Limitations of Comparative Method in Social Science’ 1(4) International Journal of Humanities and Social Science 113–25. Bogdanova, EA (2019) ‘Objectives of Russian law schools today: what is the “ideal jurist”?’ 26 International Journal of the Legal Profession 295–320. Boltanski, L and Chiapello, E (2007) The New Spirit of Capitalism (New York, Verso). Boon, A (1998) ‘History is Past Politics: A Critique of the Legal Skills Movement in England and Wales’ 25 Journal of Law and Society 151–69. Boon, A, Flood, J and Webb, J (2005) ‘Postmodern Professions? The Fragmentation of Legal Education and the Legal Profession’ 32 Journal of Law and Society 473–92. Bourdieu, P (1996) The State Nobility. Elite Schools in the Field of Power (Cambridge, Polity Press). —— (2002) ‘Les conditions sociales de la circulation internationale des idées’ 145(5) Actes de la recherche en sciences sociales 3–8. —— (2005) ‘From the King’s House to the Reason of State: A Model of the Genesis of the Bureaucratic Field’ in L Wacquant (ed), Pierre Bourdieu and Democratic Politics (Cambridge, Polity Press) 29–54. Bourdieu, P and Passeron, JC (1979) The Inheritors: French Students and Their Relations to Culture (Chicago, University of Chicago Press). Bradney, A (2003) Conversations, Choices and Chances: The Liberal Law School in the Twenty-First Century (Oxford, Hart Publishing). Brown, W (2003) ‘Neo-Liberalism and the End of Liberal Democracy’ 7(1) Theory & Event. Burridge, R and Webb, J (2007) ‘The Values of Common Law Legal Education: Rethinking Rules, Resposibilities, Relationships and Roles in the Law School’ 10 Legal Ethics 72–97. Börjesson, M and Broady, D (2006) ‘The Social Profile of Swedish Law Students: National Divisions and Transnational Strategies’ 29(3/114) Retfærd.Nordic Legal Journal 80–107. Carr, D (2003) Making Sense of Education: An Introduction to the Philosophy and Theory of Education and Teaching (Abingdon, Routledge).

268  Ole Hammerslev Chesterman, S (2017a) ‘The Fall and Rise of Legal Education in Asia: Inhibition, Imitation, Innovation’ in AJ Harding, J Hu and M de Visser (eds), Legal Education in Asia: From Imitation to Innovation (Leiden, Brill, Nijhoff) 1–16. —— (2017b) ‘The fall and rise of legal education in Singapore’ 2017 Singapore Journal of Legal Studies 201–14. Collier, R (2005) ‘The Liberal Law School, the Restructured University and the Paradox of Socio-Legal Studies’ 68 Modern Law Review 475–94. Council on Legal Education for Professional Responsibility (1973) Clinical Education for the Law Student; Legal Education in a Service Setting (New York, Council on Legal Education for Professional Responsibility). Dewey, J (1916) Democrcy and Education: An Introduction to the Philosophy of Education (New York, Macmillan). Dezalay, Y and Garth, BG (2002) The Internationalization of Palaces War: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago, University of Chicago Press). —— (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). Eidesen, A, Eskeland, S and Mathiesen, T (1975) Rettshjelp og samfunnsstruktur (Oslo, Pax Forlag). Faulconbridge, JR and Muzio, D (2009) ‘Legal Education, Globalization, and Cultures of Professional Practice’ 22 Georgetown Journal of Legal Ethics 1335–60. Fitzpatrick, P (ed) (1991) Dangerous Supplements: Resistance and Renewal in Jurisprudence (London, Pluto Press). Flood, J (2011) ‘Legal Education in the Global Context: Challenges from Globalization, Technology and Changes in Government Regulation – Report for the Legal Services Board (London, University of Westminster School of Law). Foucault, M (2002) Overvågning og straf. Fængslets fødsel (Helsingør, Det lille Forlag). Francis, A (2015) ‘Legal Education, Social Mobility, and Employability: Possible Selves, Curriculum Intervention, and the Role of Legal Work Experience’ 42 Journal of Law and Society 173–201. Freeman, HA and Weihofen, H (1972) Clinical Law Training: Interviewing and Counseling (St Paul, West Publishing). Friedman, LM (1989) ‘Law, Lawyers, and Popular Culture’ 98 Yale Law Journal 1579–1606. Gardner, JA (1980) Legal Imperialism: American Lawyers and Foreign Aid in Latin America (Madison, University of Wisconsin Press). Gordon, RW (2005) ‘Professionalisms Old and New, Good and Bad’ 8 Legal Ethics 23–34. Hammerslev, O, Olesen, A and Rønning, OH (2018) ‘JussBuss’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave) 147–67. Hammerslev, O and Sommerlad, H (2021) ‘Comparison as a socio-legal tool: A celebration of Reza Banakar and his work on methodology’ 168(1) Retfærd. Nordic Journal of Law and Justice 39–50. Heinz, JP and Laumann, EO (1994) Chicago Lawyers: The Social Structure of the Bar (Chicago, Northwestern University Press). Hunt, A (1986) ‘The Theory of Critical Legal Studies’ 6 Oxford Journal of Legal Studies 1–45. Kennedy, D (2004) Legal Education and the Reproduction of Hierarchy: A Polemic against the System (New York, New York University Press). LaFrance, AB (1987) ‘Clinical Education and the Year 2010’ 37 Journal of Legal Education 352–63. Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Lee, SSR (2010) ‘Legal Education in Korea: New Law School Reforms’ in S Steele and K Taylor (eds), Legal Education in Asia: Globalization, Change and Contexts (London, Routledge) 169–82. Leleiko, SH (1979) ‘Clinical Education, Empirical Study, and Legal Scholarship’ 30 Journal of Legal Education 149–65. Mathiesen, T (1975) ‘Noen konklusjoner om rettshjelp, rettspolitikk og samfunnsstruktur’ in A Eidesen, S Eskeland and T Mathiesen (eds), Rettshjelp og samfunnsstruktur (Oslo, Pax) 187–206. Mertz, E (2007) The Language of Law School: Learning to ‘Think Like a Lawyer’ (Oxford, Oxford University Press).

Globalisation and Education  269 Metcalfe, AS (2010) ‘Revisiting Academic Capitalism in Canada: No Longer the Exception’ 81 Journal of Higher Education 489–514. Neave, G (1989) ‘From the Other End of the Telescope: Deprofessionalization, Reprofessionalization, and the Development of Higher Education, 1950–1986’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 154–95. Newman, J and Nicolson, D (2016) ‘A Tale of Two Clinics: Similarities and Differences in Evidence of the Clinic Effect on the Development of Law Students’ Ethical and Altruistic Professional Identities’ 35 Buffalo Public Interest Law Journal 1–118. Olesen, A and Hammerslev, O (forthcoming) ‘Legal Pro Bono Work in Denmark’ in SL Cummings, FCM de Sa e Silva and L Trubek (eds), Global Pro Bono: Causes, Consequences, and Contestation (Cambridge, Cambridge University Press). Peterson, RA (2005) ‘Problems in comparative research: The example of omnivorousness’ 33 Poetics 257–82. Phan, PN (2005) ‘Clinical legal education in China: in pursuit of a culture of law and a mission of social justice’ 8 Yale Human Rights & Development Law Journal 117–52. Piana, D, Langbroek, P, Berkmanas, T, Hammerslev, O and Otilia, P (eds) (2013) Legal and Judicial Training in Europe (The Hague, Eleven International Publishing). Pue, W (2016) Lawyers’ Empire: Legal Professions and Cultural Authority, 1780–1950 (Vancouver, UBC Press). Sarat, A (1990) ‘The Law is All Over: Power, Resistance, and the Legal Consciousness of the Welfare Poor’ 2 Yale Journal of Law and the Humanities 343–79. Schmidhauser, JR (1997) ‘The European Origins of Legal Imperialism and Its Legacy in Legal Education in Former Colonial Regions’ 18 International Political Science Review 337–51. Schultz, U and Shaw, G (eds) (2003) Women in the World’s Legal Professions (Oxford, Hart Publishing). —— (2013) Gender and Judging (Oxford, Hart Publishing). Schultz, U, Shaw, G, Thornton, M and Auchmuty, R (eds) (2021) Gender and Careers in the Legal Academy (Oxford, Hart Publishing). Sherr, A (1999) Client Care for Lawyers: An Analysis and Guide (London, Sweet and Maxwell). Sherr, A, Moorhead, R and Sommerlad, H (eds) (2017) Legal Education at the Crossroads: Education and the Legal Profession (Abingdon, Routledge). Silver, C (2013) ‘Getting real about globalization and legal education: potential and perspectives for the US’ 24 Stanford Law & Policy Review 457–502. Slaughter, S and Leslie, LL (1997) Academic Capitalism: Politics, Policies, and the Entrepreneurial University (Baltimore, Johns Hopkins University Press). Śliwa, J (2010) Report on the Legal Education in Poland (Public Interest Law Network). Smelser, NJ (2013) Dynamics of the Contemporary University: Growth, Accretion, and Conflict (Berkeley, University of California Press). Sommerlad, H (2007) ‘Researching and Theorizing the Processes of Professional Identity Formation’ 34 Journal of Law and Society 190–217. Sommerlad, H, Harris-Short, S, Vaughan, S and Young, R (eds) (2015) The Futures of Legal Education and the Legal Profession (Oxford, Hart Publishing). Tamanaha, BZ (2012) Failing Law Schools (Chicago, University of Chicago Press). Taylor, VL (2010) ‘Legal education as development’ in S Steele and J Taylor (eds), Legal Education in Asia: Globalization, Change and Contexts (London, Routledge) 215–40. Thornton, M (2001a) ‘Among the ruins: law in the neo-liberal academy’ 20(3) The Windsor Yearbook of Access to Justice 3–24. —— (2001b) ‘The demise of diversity in legal education: Globalisation and the new knowledge economy’ 8 International Journal of the Legal Profession 37–56. —— (2011) Privatising the Public University: The Case of Law (London, Taylor & Francis Group). Treiber, H (2011) ‘Insights into Weber’s Sociology of Law’ in K Papendorf, S Machura and K Andernæs (eds), Understanding Law in Society: Developments in Socio-Legal Studies (Berlin, Lit Verlag) 21–79.

270  Ole Hammerslev Trubek, DM, Abel, RL, Bryant, G, Giovanopoulou, A, Kennedy, D and de Sousa Santos, B (2021) ‘The Short Happy Life of the Yale Program in Law and Modernization: From the Cold War to Comparative Legal Sociology and Critical Legal Studies’ 7(2) Journal of Institutional Studies. Trubek, DM Dezalay, Y, Buchanan, R and Davis, JR (1994) ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas’ 44 Case Western Reserve Law Review 407–98. Trubek, DM, and Galanter, M (1974) ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States’ 1974 Wisconsin Law Review 1062–1102. Twining, W (2018) ‘Rethinking legal education’ 52 The Law Teacher 241–60. Wacquant, LJD (2009) Punishing the Poor: The Neoliberal Government of Social Insecurity (Durham, NC, Duke University Press). Webb, J (1998) ‘Ethics for Lawyers or Ethics for Citizens? New Directions for Legal Education’ 25 Journal of Law and Society 134–50. —— (2015) ‘The Legal Education and Training Review’ in H Sommerlad, S Harris-Short, S Vaughan and R Young (eds), The Futures of Legal Education and the Legal Profession (Oxford, Hart Publishing). Weber, M (1978) Economy and Society (Berkeley, University of California Press). Wilson, RJ (2004) ‘Training for justice: the global reach of clinical legal education’ 22 Penn State International Law Review 421–32. —— (2018) ‘Legal Aid and Clinical Legal Education in Europe and the USA: Are They Compatible?’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave) 263–85. Witte, BD and Forder, C (eds) (1992) The Common Law of Europe and the Future of Legal Education (Rijn, Kluwer Law International). Witz, A (1992) Professions and Patriarchy (London, Routledge).

12 Paralegals and the Casualisation of Legal Labour Markets HILARY SOMMERLAD, JEANNE HERSANT, NINA HOLVAST, LUCA VERZELLONI, STEFANIE GUSTAFSSON, REBECCA L SANDEFUR AND TOM CLARKE

I. INTRODUCTION

Hilary Sommerlad

T

he market-oriented economic and social revolutions which were transforming Western societies from the end of the eighteenth century (Polanyi 1957) enabled some actors to gain ‘control over a set of work-related tasks … organize a body of knowledge around those tasks … and fend off incursions from other social groups into [their] domain’ (Ryfe 2017: xx). The success of this ‘boundary work’ (Gieryn 1983) therefore turned on establishing the cognitive exclusivity and superiority of their services and controlling the ‘production of producers’ (Larson 2013). As major forces in the developing rationalisation of society, this task entailed objective verification of professional competence, thereby connecting inequality to expertise rather than social category (ibid). Since this expertise was inseparable from the person (and personality) of the professional, creating social credit also necessitated the development of a rigid discourse about jurisdiction, which could standardise the public image of both professional identity and its cognitive product (Abbott 1988: 60–65). A distinctive division of labour was thus central to the professions’ institutionalisation of expertise. In practice, the purported clarity of the profession’s jurisdictional boundaries and identity, underpinned by claims to an unchanging lineage (ibid: 61–67, 192), was belied by its origins in a diverse, pre-modern universe of serjeants, notaries, scriveners and clerks, and the wide range of law workers who have always populated legal fields. This heterogeneity exposes the contingent, ‘processual’ nature of professionalism (Bucher and Strauss 1961; Liu 2013), manifest in the fragility and fluidity of its boundaries with other occupational groups and intra-organisational divisions of labour. Key features of the legal field, such as its intimate connection with social differentiation (Johnson 1972) and changes in the nature of and demand for legal and advice services and in professional functions and practices, therefore converge in the relationship between paralegalism and professionalism. This relationship reveals the contradictions pervading the professional project. As a result of its development in periods of rapid social change, the profession’s espousal of capitalism’s ideological egalitarianism was undercut by its status aspirations and retention of pre-capitalist criteria and conceptualisations of merit (Larson 2013: 5, 16), which – despite

272  Hilary Sommerlad et al the democratisation of legal education – continue to shape its forms of cultural capital and the division between law and non-law work and hence between professional and paralegal. The status of the profession’s clientele has been another determinant of this division (Johnson 1972): juridification and social and human rights discourses and consequent extension of legal subjectivity to lower socio-economic groups have generated lower status ‘dirty’ work (Hughes 1971), leading to its routinisation and hence new divisions of labour. At the other end of the professional spectrum, supra-national clients’ demands that large corporate firms become more cost efficient have also intensified routinisation and the need for low cost labour. But in practice the ‘living complexity of professional life’ makes intra-organisational divisions of labour susceptible ‘to continual organizational perturbations’ (Abbott 1988: 63–64), while the vulnerability of external boundaries to challenge from other occupational groups has been accentuated by changes in government policies. As a result, ostensibly rigid divisions of labour have always been regularly transgressed, with both reserved and unreserved law work performed by different occupational groups. The consequent instability of divisions of legal labour and huge variety of (and paucity of statistical data on) paralegals make it extremely challenging to use paralegalism as a lens to view recent reconfigurations of the profession’s jurisdictional boundaries and working practices. Paralegals include both independent workers with a clearly defined scope and those dependent on qualified lawyers to define tasks and provide a market. The spectrum encompasses law-workers whose origins are pre-modern, such as the ‘fixers’ who operate at the fringes of law and the profession in Indonesia and lawyers’ touts in Tunisia; solicitors’ managing clerks1 and Legal Executives in England and Wales (Francis 2002); court clerks or civil servants; the (increasing) numbers of off-shore and on-shore employees of large corporate firms (Carroll and Vaughan 2019) and independent practitioners who are regulated and exclusionary (eg mediators). The term can therefore include almost anyone who does legal work (broadly defined to encompass Alternative Dispute Resolution (ADR), for instance) but is not a qualified, practising lawyer. The archetypal paralegal is thus the obverse of the professional; their mutually reinforcing relationship is captured in the definition of the paralegal as a worker ‘to whom a particular aspect of a professional task is delegated but who is not licensed to practise as … a fully qualified professional’ (Oxford Dictionary 2015). But this definition belies the inherently uneasy settlement between different professional and para-professional groups and consequent instability within the concept of profession. However, conceptual indeterminacy is an inherent feature of social constructs; most foundational sociological terms are therefore essentially contested (Gallie 1956) – hence the need to use our sociological imagination (Mills 1959) to provide them with some validity by linking connotation with denotation, applied to material reality. The relationship between the profession’s patterns of exclusion and inclusion and the status hierarchies of class, gender and race represents one consistent materiality of paralegal/professional relationships. In this chapter we seek to shed further light on both concepts by drawing on data to identify some of their historically specific characteristics and commonalities. We begin by elaborating the definitional issues. Professionalism and Paralegalism The inherent dynamism of legal work and consequent fluidity of the profession’s internal order and jurisdictional boundaries have been accentuated by the impact of neoliberal

1 Immortalised

by Charles Dickens’s character Uriah Heep.

Paralegals and the Casualisation of Legal Labour Markets  273 globalisation on national legal fields. The emancipation of the emergent transnational legal field – the vanguard of this revolution – from national regulatory structures has resulted in a general weakening of archaic professional forms and ethos. Transnational firms are now informed by an explicitly commercial logic (Hanlon 1998; Flood 2011), and the digitalisation of legal transactions, based on Taylorist procedural grids (Crowley et al 2010), has accelerated the shift in relations of production (progressing for decades in the large US, and subsequently UK, firms – see eg Anleu 1992) from kinship-based groupings of independent practitioners to businesses comprising multiple tiers of employees (Galanter and Roberts 2008). These highly complex divisions of labour depend on a range of subordinate groups which, working as technicians subject to extensive surveillance (Susskind and Susskind 2015), comprise both paralegals and qualified lawyers. The consequent ambivalence about what constitutes legal work and the erosion of such core professional traits as autonomy have emptied professionalism of its normative meaning, reducing it to a disciplinary discourse (Ehrenreich and Ehrenreich 1979; Fournier 1999) and vindicating predictions of lawyers’ ideological and technical proletarianisation (Derber 1982), ‘déclassement’ (Bourdieu 1978) and de-professionalisation (Haug 1973; Spangler 1986). This blurring of the meaning of professionalism (for both the law worker and general public) has been accentuated by the expansion and diversification of higher education, the result of nation states’ modernisation projects and efforts to develop a ‘knowledge economy’ (Ross 2009). The lower social standing of many non-normative2 law graduates renders them anathema to the status aspirations of the professional project and incompatible with its need for homogeneity and peer control. However, the sheer volume of legal labour required by large firms’ industrial mode of production,3 together with the bureaucratisation of their selection processes and neoliberal principles of market rationality (reinforcing the profession’s meritocratic discourse), have combined to relax entry level closure. As a result, some non-normative graduates have been able to use the qualifications lever to gain access to the profession and become fully qualified. But while some have been able to establish their own practice niches,4 large corporate firms generally confine them to low prestige, time intensive, routinised work, which is consequently potentially ‘shameful or degrading’, threatening to professional status (Carroll and Vaughan 2019: 3). The increased pressure to generate profits following the financialisation of large law firms (Cooper et al 1996; Faulconbridge and Muzio 2009) has intensified these processes of routinisation, compartmentalisation and internal stratification, which continue to be patterned by social category. The complex symbolic order which maintains and justifies ‘maximis(ing) the extension of dominant effort without division of dominant perquisites’ (Abbott 1988: 72) draws on the discourses of class, gender and ethnicity, expressed in the different forms of capital (economic, social, symbolic, and cultural) which circulate in a firm (Bourdieu and Wacquant 1992: 97). The networks and activities which generate high levels of capital encompass a range of signifiers of merit, including accent and dress, and such activities as participation in key

2 Non-normative (as well as non-traditional or ‘outsider’) refers to the diversification of higher education from a preserve of elite groups to accommodate those of a different (generally subordinate) social category or origin (Carbado and Gulati 2000). 3 Although the extent to which this industrial mode of projection has been adopted varies greatly between and within jurisdictions, it is the most visible manifestation of the polarisation of virtually every national profession between the sector dedicated to the needs of international capital, which has adopted it, and those sectors that serve private clients or local communities (such as Sharia courts), which have not. 4 For discussion of the opportunities for improvisation offered by ever-changing circumstances, see White and his concept of kairotic situatedness (1987).

274  Hilary Sommerlad et al sports, club membership and evidence of embeddedness in the state as in China (Liu Vol 1, ch 35). These are the mechanisms which produce and maintain the profession’s status boundaries and hence its divisions of labour (Sommerlad 2012). Nevertheless, while the low levels of capital possessed by the non-normative graduate (whether paralegal or salaried, low status lawyer) confine them to micro-labour markets on the fringes of the profession, both may see these liminal spaces (Turner 1995: 95; van Gennep 1960) as offering opportunity (Gustafsson and Empson 2018; Yau et al 2019). And since subordination is an ‘inherently uneasy settlement’ and the mix of workers in large law firms so broad, assimilation can take place (Abbott 1988: 65–66, 72), and para-professions can be ladders of upward mobility. This is also the case outside the large corporate firms, where paralegal groups are exploiting the loss of status and markets suffered by some lawyers. ADR is exemplary; following its active promotion throughout the EU, mediators and negotiators play an increasingly significant role in civil and commercial disputes. In other jurisdictions (eg Mosieeva and Bocharov Vol 1, ch 16; Munger Vol 1, ch 42; Boni-Le Goff Vol 1, ch 13; Kalem Vol 1, ch 34; and Katvan et al Vol 1, ch 30; also see Napley 2014), mediators are active in a range of spheres, from commercial disputes to divorce. Correspondingly, the turn to mediation has threatened the livelihood, power and status of traditional family lawyers (eg in Sommerlad et al Vol 1, ch 4), who may experience downward mobility into the paralegal space.5 The rise of ADR, a result of the ongoing juridification of societies worldwide, and the consequent expansion of the numbers and types of people requiring legal advice on property transactions, family issues and small civil disputes (among other matters), is thus a major source of demand for new forms of paralegal labour. Another driver has been the perception of law as a potential mechanism for social justice. ‘Community paralegals’ have existed throughout the world since at least the 1950s (Maru and Gauri 2018: 4), and the efflorescence of the 1960s and ’70s human rights discourses and civil rights struggles has led to their proliferation; examples include community surveyors working on land rights in Andhra Pradesh (ibid); the assistants trained to support attorneys during the ‘War on Poverty’ in the US; ‘barefoot lawyers’ in South Africa (Leach 2018; Dugard and Drage 2013) and Field Officers for Aboriginal Legal Services in Australia (Cowley 2004). This increased demand for access to justice also prompted the establishment of legal aid schemes from the early 1970s, frequently staffed by lawyers; however, subsequent neoliberal restructuring generally led to reductions in their funding and in the number of courts (eg Sommerlad et al Vol 1, ch 4; Hunter et al, ch 13 below) and the promotion of ADR.6 The resulting justice deficit has been compounded by increased inequalities of income and wealth (Davies et al 2006) and the geographical distortions generated by policies concentrating investment (and wealth) in a few ‘global’ centres. This conjuncture has stimulated further demand from private citizens and communities for paralegal support;7 generating new actors such as law students working in clinics as part of their education (eg Sommerlad et al Vol 1, ch 4). Lack of access to justice has also been cited by some national professions as a reason for their relaxation of closure practices. For instance, some provincial law societies in Canada are allowing paralegals, notaries and other licensed agents to participate in particular areas of legal practice, either autonomously or 5 For instance, the UK’s unregulated paralegals known as McKenzie Friends, who tend to specialise in family law, include qualified lawyers (Trinder et al 2014). 6 These larger trends display significant national variation. In Germany, for instance, despite the existence of trained mediators, mediation is neither an established procedure nor promoted by the state; furthermore, legal aid funding has remained stable over several decades. In Brazil, legal aid in both criminal and civil cases is a constitutional right for anyone who cannot pay (Alves 2014). 7 For instance, community paralegals, see https://namati.org/.

Paralegals and the Casualisation of Legal Labour Markets  275 supervised by a lawyer,8 and are considering establishing new classes of legal service providers to practise independently in such areas as debtor-creditor, employment, and family law and to represent clients in arbitrations and mediations. As a result, the Canadian profession is rethinking the training, certification and regulation of paralegals and the regulatory framework. Other political and socio-economic changes are driving an increase in paralegal labour. These include the expansion of political space to advocate for legal reforms, which has emerged following moves towards democratisation (eg Crouch Vol 1, ch 39) and the commercialisation of legal services, which in Russia has stimulated a proliferation of unlicensed practitioners operating through commercial entities, such as limited liability companies and individual enterprises, while lacking such professional attributes as educational and work credentials, an ethical code, licences, associations, or even a specific title (Moiseeva and Bocharov Vol 1, ch 16). And virtually everywhere the liberalisation and marketisation of legal services have facilitated their commodification (eg through online advice9) and legal process outsourcing to cheaper labour (Leicht and Fitzgerald 2006; Susskind and Susskind 2015) (eg global law firms outsourcing work to Nigeria and India, and onshoring to regional centres in the UK), encouraging the decline in status of qualified workers, and generating new sources and forms of casual legal labour. Repetitive mass litigation of small claims in Brazil typifies this accelerating casualisation of professional labour (Bonelli and Fortes Vol 1, ch 19). Nevertheless, these broad cross-jurisdictional trends are inflected by persistent national differences. For instance, ancient forms of paralegal advisor – such as scriveners – who have long supported community and individual engagement with officialdom, survive in many societies, part of the ‘fabric of pluralism’ (Aiyedun and Ordor 2016). Such traditional forms of service provision in less developed rural areas of China include enterprise legal advisors (qiye falü guwen) working in state-owned enterprises, and unauthorised practitioners (Liu 2013), supplemented in the 1980s by ‘township legal workers’ who were created to provide grassroots legal services. Although the educational and licensing requirements for this paralegal workforce are significantly lower than those for lawyers, the scope of their services includes most professional work; and until the turn of the twenty-first century they outnumbered lawyers and conducted most ordinary litigation. By contrast the new mega law firms in China are characterised by the same industrialised (and highly stratified) labour processes found in other global firms. Although the German legal profession remains shaped by tradition, parts of its monopoly are eroding (see Kilian and Schultz Vol 1, ch 10). In 2007 the Rechtsdienstleistungsgesetz authorised ‘registered legal service providers’ to give legal advice in three areas (foreign law, pension law and debt collection), and legal services in connection with another activity became permitted if they are ancillary to the profession or activity. The highly regulated character of German society had also produced a specific form of paralegalism: the Rechtsbeistände, an exclusionary association, membership of which required an examination. Admission was closed in 1980, and only few members remain. There is also a tradition of (generally female) assistants, primarily employed in solo practices and small firms, who receive an intensive training combining vocational education with apprenticeship. The low salaries for this work, the emergence of new apprenticeship trades and the rise of legal studies at universities of applied sciences have all contributed to a decline in these paralegal apprenticeships: despite the fact 8 As of 2014, 24,400 individuals worked in paralegal and related occupations in Canada, including notaries public (Government of Canada 2016 ‘Job Market Report: Paralegal and Related Occupations’). 9 See eg www.legalalliancenetwork.org and www.justanswer.com. Companies such as Direct Law promote their technology as a way for firms to sell and deliver legal services.

276  Hilary Sommerlad et al that the number of advocates (and therefore potential employers) doubled between 1997 and 2017, new paralegal apprenticeship contracts nearly halved, from almost 9,000 to 4,611, and law firms have been obliged to employ mostly older, unskilled office staff without legal training. Finally, as elsewhere, the academisation process has increased the number who obtain bachelors and masters of law degrees, but since the classical legal professions remain closed to them, these law graduates generally work in the legal departments of banks and insurance companies or the public sector. This depiction of the historical roots of the divisions of labour and resilience of national tendencies as well as the convergence generated by neoliberal globalisation and technological change and the significance of social category is pursued in this chapter through micro-studies of five jurisdictions, chosen for their heterogeneity: Chile, the Netherlands, Italy, England and Wales, and the US. The studies are not comparative because the indeterminacy of the paralegal form and consequent absence of harmonious data preclude cross-national comparison. Their primary focus is paralegals; however they also illuminate lawyers’ experience of the intensification of the processes of casualisation and de-professionalisation, which has been occurring in many jurisdictions for several decades (see eg Carlin 1962). The first two studies focus on court clerks in civil law jurisdictions and the tradition of civil service paralegals. Hersant’s discussion of Chile’s paralegals in the judiciary highlights the persistence until the early 2000s of pre-modern patronage in modes of recruitment and deployment, while revealing how judicial reforms fostered the development of education programmes for paralegal labour, creating legal technicians. Holvast describes a similar development of legal education programmes in the Netherlands, prompted by increased interest in the ‘stratification of the workload’ and a (limited) relaxation of the profession’s monopoly due to government cuts and efficiency drives. Verzelloni’s study of the Italian paralegal discloses both the persistence of tradition in the form of the precarious legal career as well as isomorphism, as common law style paralegals become more widespread. However, all Italian paralegals share the trait of invisibility. Gustafsson and Sommerlad’s section on England and Wales portrays the limbo which unregulated paralegals and lower level lawyers occupy in large law firms (both corporate and legal aid and private client firms). The links between the huge rise in paralegal numbers, their demographic and educational profiles, and the related pressures on lower level lawyers illustrate the industrialisation of legal practice in these firms. Finally, Sandefur and Clarke explain how the access to justice deficit in the US has led courts and bar associations to create new legal roles that enlarge the capacities of non-lawyers, further stratifying legal practice but also expanding the legal services markets to incorporate new practitioners and clients. II.  PARALEGALS IN CHILE: COURT CLERKS, LAW GRADUATES AND JUDICIAL REFORMS AFTER THE DICTATORSHIP10

Jeanne Hersant There has been a long tradition of paralegal work in the Chilean judiciary, due mainly to high social stratification and segregation in legal education and the legal labour market. As Villalonga notes (Vol 1, ch 20), graduates of less prestigious law schools, usually from lower 10 The author thanks Luca Verzelloni, Cristián Villalonga and Javier Wilenmann for their insightful comments on previous drafts of this text. She gratefully acknowledges the financial support of the Chilean research agency (ANID) for her research on Access to Justice in Chile (Fondecyt Regular 1180038).

Paralegals and the Casualisation of Legal Labour Markets  277 class backgrounds, have great difficulty finding jobs. Many of those who do are underemployed in notaries’ offices, banks, or municipalities. ‘(D)etailed written procedural requirements at every stage of legal proceedings and a ritualistic approach to discharging bureaucratic duties’ (Lowenstein 1970: 43) are characteristic of Chilean legal activity, and ‘lawyers with five years of university training [are used] to do routine work such as repetitive collection of defaulted instruments, or the paperwork involved in non-judicial contested judicial administration which so many lawyers are occupied with today’ (ibid: 65). These lawyers compete in a micro-market against law students and untitled law graduates known as procuradores, who have experienced the process of proletarianisation in the legal field since the mid-1990s. The judicial system is especially full of intermediaries dedicated to its ‘dirty work’ (Hughes 1971: 311–15). In order to have a complete picture of paralegal work in Chile, it is necessary to consider the role of these paralegals in judicial processes, how the judicial reforms11 have affected them, and their competition with proletarianised law graduates. Implemented between 2000 and 2008 in the criminal, family and labour jurisdictions,12 the reforms affected two of the main paralegal figures in the Chilean legal field: procuradores (trainee lawyers) and actuarios (court officials of the former criminal and labour justice systems). Strictly speaking, only procuradores fit the common definition of paralegal, but considering the fact that actuarios used to act in criminal and labour courts as unofficial intermediaries between the judge and the parties, they also may be considered paralegals.13 The implementation of the reforms also affected the new – and ephemeral – figure of legal technician, who is symptomatic of the transformations and tensions of the Chilean legal field in the context of attempts to professionalise the judiciary. More than 40 years after Lowenstein’s study (1970), the division of work remains central to understanding the Chilean legal field; in the last 15 years, one of the most challenging issues has been competition between trainee or recently graduated lawyers and legal technicians in a saturated and socially highly segregated legal labour market. A.  Court Officials and Trainee Lawyers: The Classical Trend of Paralegal Work in Chile Patronage was the traditional way of recruiting court officials: most were hired through personal recommendation and worked without pay for weeks or months before being appointed to a permanent position: at the end of the 1990s, 21 per cent of court employees in the lower criminal courts had no contract or salary (Hersant 2017: 438). Those who gained experience and the judiciary’s trust were promoted to actuario. As noted in the early 1980s: The actuarios do the routine court work, such as … interviewing witnesses, receiving lawyers’ briefs, filing pieces of written evidence, and the like …. The function of the judge in judicial proceedings is therefore limited to ongoing supervision over the handling of cases by actuarios (and even this function may be partly delegated to the secretary of the court) and to deciding the case (Ietswaart 1981–1982: 656).

11 These transformed a written, secret procedure into an oral, public and adversarial one in all jurisdictions except civil courts. 12 Family courts were created in 2008. 13 Another type of paralegal, receptores judiciales, act in civil courts as official intermediaries between the judge and the parties; like actuarios, they have neither legal training nor certification. However, the government plans to replace them with professional lawyers because they are not part of the judicial reform process. I have not discussed them here.

278  Hilary Sommerlad et al The judicial reforms of 2000–08 ended the practice of written procedures led by actuarios. Law graduates and students are the other face of paralegal work in Chile. They sometimes work as court officials, mostly in civil courts,14 but more commonly as procuradores since the Ius postulandi privilege allows them to train as litigators under supervision by a professional lawyer ‘without having completed law school or having been admitted to the bar’ (Lowenstein 1970: 48).15 They ‘function primarily as law assistants to lawyers, law firms or the law offices of private or public institutions, but are allowed to accept powers of attorney to act for personal clients when a titled lawyer signs court documents as … patron’ (ibid). However, the tasks of the procurador ‘in his common role as legal assistant, include mainly the drafting of simple documents and the handling of innumerable minor paper transactions at the courts’ (ibid). These ‘untitled law graduates’ and even some lawyers might work for years as procuradores (Lowenstein 1970; Martin 2012). Conditions for students are harsh, and the final oral examination is a major barrier to qualification (Arriagada and Naranjo 2016); for example, in 2015, only 3,487 of more than 34,000 enrolled students graduated (Pizarro 2016).16 Concurrently, in the last ten years untitled law graduates have been competing with unemployed young lawyers – generally graduates of less prestigious universities – for a reduced number of jobs as procurador (Martin 2012). Indeed, following implementation of the judicial reforms, it is no longer possible to litigate without the title of lawyer outside the unreformed civil courts. B.  Professionalisation of the Legal Field and Competition between Trainee Lawyers and Legal Technicians Along with the process of judicial reform, there has been a trend to professionalise both the magistracy and judicial administration in order to eradicate the endemic backlogs and corruption (coima) in the judiciary (Hersant 2017). The first step towards professionalisation was taken in 1982 when, as part of the military government’s liberalisation of academia, the paralegal degree (generally termed a ‘legal technician’ degree) was created and designed for a court clerk job (Zúñiga 2011). Then, at the beginning of the 2000s, the judiciary ceased using unpaid, unqualified officials as legal assistants, creating an expectation that there would be an imminent and durable increase in job opportunities for legal technicians with both administrative and legal skills. First, the Criminal Procedure Reform (CPR) created new entities, such as the Office of Public Prosecutor (Ministerio Público) and the Public Criminal Defender Service (Defensoría Penal Pública). Then, in 2005, Parliament approved the reform of labour courts and the creation of family courts (Zúñiga 2011). These reforms led to a significant increase in staff numbers in the judiciary, resulting in a boom in academic institutions offering three-year legal technician degrees: in 2010, there were 131 such programmes in 26 universities and professional institutes enrolling more than 4,000 students (ibid).17 However, by 2016 only 14 In civil courts, legal assistants are called proveedores rather than actuarios; proveer means stating minor judicial resolutions in response to the parties’ petitions (motion practice in the US). The reform of the civil procedure code was postponed sine die at the end of 2016 (Maturana et al 2016), and civil courts still hire law graduates as court officials, which is forbidden in reformed jurisdictions (where court officials must have a degree). 15 Ley 18.210, Art 2. 16 There were 1000 law graduates in 2000 (Pizarro 2016). The degree course lasts 10 semesters (5 years), but because of the difficult final examination most students take up to 10 years to graduate. Until 1980, there were only five law schools in Chile. By 2006, there were more than 140 programmes licensed to grant the undergraduate law degree throughout the country. 17 There are almost as many names for programmes offering paralegal training, many of which did not last long. Available data only covers the number of graduates of the previous year, making comparisons virtually impossible.

Paralegals and the Casualisation of Legal Labour Markets  279 68 programmes were available, and several had no students.18 In fact, many legal technicians could not find a job:19 there were so many qualified applicants for administrative positions in the reformed courts (Hersant 2017) that technicians specialised in public administration or other professionals, such as accountants and business managers, tended to be hired in preference to legal technicians. Legal technicians now compete for legal work with law students, untitled law graduates and even unemployed lawyers. In response, legal technicians – through their guild association founded in 2005 – are claiming the right to the Ius postulandi privilege.20 C.  Conclusion: The Weight of the Chilean Legal Field’s Peculiar Trends Confusion between administrative and legal tasks in judicial procedure derives from the tradition of written and inquisitorial proceedings, which has only recently been replaced by adversarial justice in criminal, labour and family cases. Legal technicians and procuradores do not always handle specific tasks; instead, the legal technician is associated with the action of ‘tramitar’ (literally ‘processing’ but in reference to written bureaucratic formalities) rather than with litigation. Unlike law graduates, legal technicians are not necessarily considered paralegals by other actors in the legal field (Martin 2012). Yet, despite the implicit hierarchy between ‘professionals’ (including lawyers) and ‘technicians’, legal technicians and procuradores do not always handle different tasks. A feature common to all kinds of paralegal is their relationship to the segregated character of higher education in Chile. This segregation is clearly raced: the latest report of the United Nations Development Programme (2017) in Chile showed that the 50 family names most often borne by lawyers, doctors and engineers – the three most prestigious and lucrative professions in the country – are all of European origin. The vast majority of the 50 family names that never occur among those professions are indigenous. III.  PARALEGALS IN THE NETHERLANDS

Nina Holvast The Netherlands has a long-standing tradition of paraprofessional participation in the production of legal services, especially in the judiciary and the prosecution office. However, juridification of Dutch society in the 1990s and 2000s (see eg Schwitters 2008; Van Aeken 2010) and structural changes within the legal profession have resulted in paraprofessionals occupying a more prominent position. Judges and prosecutors are currently far outnumbered by paralegals and clerical staff. In 2018, the judiciary employed 2,303 judges and 5,099 non-judge personnel involved in adjudication. In the same year, the prosecution office employed 930 prosecutors and 4,026 non-prosecutors (the annual report of the prosecution office does not specify whether the latter are involved in prosecution of cases or provide administrative assistance).21 Despite their numbers, these employees are largely overlooked in academic research. Two recent studies, 18 Servicio de Información de Educación Superior del Ministerio de Educación, www.mifuturo.cl/index.php/ donde-y-que-estudiar/buscador-de-carreras. 19 For a sample of testimonies see http://derechoopina.blogspot.cl/2007/12/tcnicos-jurdicos-los-silenciosos.html. 20 Asociación de Técnicos Jurídicos y Carreras Afines de Chile, ‘Minuta propuesta a S.E Presidenta Bachelet, Ministro de Justicia y Ministro de Educación’, April 2014, www.lanuevaopcion.cl/?p=19679. 21 See Jaarverslag Rechtspraak 2018, table 3, Jaarbericht Openbaar Ministerie 2018, p 56.

280  Hilary Sommerlad et al of the prosecution office (Lindeman 2017) and the judiciary (Holvast 2017), have begun to address this lacuna. Their research discloses the important contribution that paralegals make to these institutions. There is currently little academic research on paralegals in Dutch law firms and no information on the number of non-attorneys working there. From data on the composition of law firms, we know that paralegals are not as numerous as they are in government institutions. Instead, firms primarily employ (trainee-)attorneys, assisted by secretaries and other non-legal support staff (see eg Bannier and Fanoy 2005). A.  Paralegals in the Judiciary and Prosecution Office Over the past two decades, the Dutch judiciary and the prosecution office have been confronted with governmental budget cuts and criticised for paying too little attention to the needs of society.22 This new reality resulted in organisations that increasingly weigh efficiency and effectiveness in their policy decisions, and a focus by court managers on workload stratification. This is most evident in the prosecution office, where the number and responsibilities of paralegals have grown since the 1990s. One example is the 1999 mandate authorising paralegals to decide whether to prosecute or dismiss suspects (see Lindeman 2017: sec 8.5). Recently, the position of ‘assistant prosecutor’ was introduced, allowing paralegals to perform certain prosecutorial duties in court in simple cases (ibid: 275). The creation of the latter position is particularly striking since it threatens the prevailing monopoly of fully-qualified prosecutors to appear in court. In the judiciary, the role of paralegals has expanded more tacitly. Although no new functions have been created, assisting functions have quietly burgeoned. For example, paralegals regularly advise judges on legal matters and contribute to discussions in the deliberation room. Paralegals also are now responsible for drafting judgments. In the courtroom, however, judicial paralegals’ responsibilities remain limited to taking minutes and performing administrative duties (Holvast 2017: chs 5 and 6). B.  Paralegals in Law Firms Paralegals appear to play a relatively small role in law firms. This is partly attributable to a long tradition of not delegating duties (de Rooij 2013). Nonetheless, many larger firms have assigned various duties to ‘paralegals’.23 Almost all of the biggest 25 law firms also employ so-called Professional Support Lawyers (PSLs), who assist practice groups by building and managing legal know-how and facilitating the development of knowledge (Soeters and Fris 2010; de Fijter 2011). No specific training is required for PSLs; they can be former attorneys or former academics or graduates from universities of applied sciences (de Fijter 2011). In 2010, these firms employed an average of four to six PSLs (Soeters and Fris 2010: 31). Several smaller firms also employ legal assistants, some of whom are attending law school (see de Rooij 2013: 147). Yet, on average, there is less functional differentiation in small firms.

22 For the prosecution office these changes started in the 1980s, see eg Van der Meij 2010: 279–280; Lindeman 2017: 50–60. The judiciary followed in the late 1990s, see eg Rutten-van Deurzen 2010: 3–14. 23 As becomes clear from the positions mentioned on firms’ websites and the advertised job openings.

Paralegals and the Casualisation of Legal Labour Markets  281 This is partially due to the financing of legal aid, which assumes that attorneys perform all the work (see Timmer et al 2016: 49–51). The requirement that qualified attorneys provide all legal representation is currently under discussion. For instance, Brouwer (2017), a practising lawyer and law professor, has proposed that paralegals, instead of attorneys, provide legal assistance in police interrogations. Hence, interest in further division of work within law firms is slowly growing (see also Timmer et al 2016: 59; de Rooij 2013: 191). C.  Introduction of New Education Programmes In line with the impression that the demand for paralegals is increasing, many universities of applied sciences have created legal education programmes (HBO Rechten). While their graduates cannot become attorneys, many perform paralegal work. The 11 programmes initiated since 2002 have more than 10,000 alumni (Timmer et al 2016). Most firms seeking to fill paralegal positions require applied science university-level education.24 One might expect these newly-developed educational programmes to mesh well with the job market; however, an over-supply of law graduates has resulted in them taking many paralegal positions. D.  Ambiguity Regarding the Position of Paralegals The professional position of paralegal in the Netherlands remains undefined, and there is considerable ambiguity concerning the role of judicial assistants, eg in judicial decision-making (see Holvast 2017: 196–99). On one hand, judges are apprehensive about the involvement of judicial paralegals in adjudication and the effect on public perceptions. Judges consider it improper to prepare for a hearing simply by reading a paralegal’s memorandum. On the other, judges also consider it improper to exclude paralegals from decision-making and therefore include assistants in their deliberations. Although the duties of judicial paralegals offer scope to influence decision-making, it is unclear whether they are expected to share their views regarding the content of judicial decisions. Consequently, their involvement varies greatly. Paralegals’ responsibilities in the prosecution office are somewhat better defined, although there is also discomfort about the dependence on paralegals in run-of-the-mill cases or their involvement in decisions about which cases to prosecute (Holvast and Lindeman 2017: 317–20). Though the influx of paraprofessionals has motivated attorneys to protect their professional identity (Abbott 1988), reservations about hiring paralegals appear to be declining as the benefits of further stratification of work are recognised (see de Rooij 2013: 144–46). Thus, judges, prosecution officers and attorneys are all struggling to defend their professional positions in response to the incursion of paralegals. Nevertheless, paralegals are still far from enjoying full professional status – a fact that is reflected in the absence of professional associations. While attorneys, judges, and prosecution officers are organised into powerful associations (which are regularly consulted by the government), paralegals lack such representation. Hence, although paralegals in the Netherlands are performing an increasingly large proportion of legal work, they are overshadowed by their fully-qualified counterparts, and their professional status remains largely undefined.



24 A

minority of the most demanding paralegal positions require a university law degree.

282  Hilary Sommerlad et al IV.  PARALEGALS IN ITALY: INVISIBLE FIGURES IN SEARCH OF A PROFESSIONAL STATUS25 LUCA VERZELLONI

Paralegals are gradually becoming more widespread in Southern European legal systems. Even though there is no regulatory framework governing this type of activity, the term ‘paralegal’ has already established itself in the Italian legal lexicon. Despite the increasing currency of the label, however, there is little awareness of, or interest in, the role and functions of these paraprofessionals, who remain almost invisible, without a properly defined status, occupying a sort of limbo halfway between a legal secretary and an apprentice. In contrast to the numerous studies of the Italian legal profession, the socio-legal literature on paralegals in Italy is practically non-existent. The activities carried out by the Italian paralegals can be grouped into three major categories: (1) external collaborators, organised in different types of firms (individual firm, enterprise, cooperative, etc); (2) well-defined professional figures, employed within the context of large legal firms; (3) sans papier professionals26 – especially young and female lawyers – who practise as de facto paralegals, to receive an, albeit modest, remuneration. First, several entrepreneurial initiatives have been launched, especially in the larger Italian cities, offering paralegal services, principally for law firms but also for other professional firms, businesses, and even private citizens. These companies, which sometimes are spin-offs of existing law firms, perform various functions, including administrative procedures in court registry offices, data retrieval, lodging procedural documents, writing deeds, executing judgments, and non-litigious proceedings (voluntary jurisdiction). Given the unregulated nature of the sector, such outsourcing by legal firms means that paralegal entities now perform a variety of functions that were previously limited to legal practitioners, without any control of the qualifications or experience needed to engage in such activities. As a result, not only is there no roll of Italian paralegals, there also are no statistics regarding their number, characteristics, and earnings. Despite the numerous advertisements on the web, these companies are effectively invisible, which may lead to problems such as a lack of transparency or low quality of services provided to law firms and, indirectly, to clients. Second, the larger law firms – both branches of international corporate law firms and the more structured Italian offices with higher turnovers – have begun recruiting paralegal personnel with specific skills. Although no statistical data exist, the increase in paralegals is confirmed by their coverage in legal journals and the emergence of training courses devoted to them. However, the fact that most Italian law firms employ fewer than ten people27 represents

25 The author gratefully acknowledges the financial support of the exploratory project ‘The paradox of the judicial innovation in South European Countries’ funded by the Portuguese Foundation for Science and Technology (FCT) IF/00938/2014/CP1262/CT0001. 26 While this French expression suggests that such lawyers are undocumented (as per the meaning in France) or that the person lacks legal credentials, in Italy it is used to define the lawyers without their own headed paper, who use that of the studio owner – the so-called dominus. 27 Prandstraller 1967; Olgiati and Pocar 1988; CENSIS 2016.

Paralegals and the Casualisation of Legal Labour Markets  283 an obstacle to the growth of paralegals, since only a limited number of organisations could afford to hire a qualified practitioner.28 And finally, a large number of qualified lawyers – especially young people and women – practise essentially as paralegals. This phenomenon is directly related to the evolution of the legal profession in Italy. A century ago Calamandrei (1921) expressed concern about the rapid rise in the number of Italian lawyers, which threatened the prestige of the legal profession. Since then the number of Italian legal practitioners has increased more than tenfold to over 240,000, equivalent to 319 professionals per 100,000 inhabitants (Biancofiore 2016; Cassa Forense 2017). Italy has highest number of lawyers of any country in the Council of Europe (CEPEJ 2016). Those enrolled in the Court of Cassation alone exceed the total number registered in France. The exponential increase in Italian lawyers is due to the number of law graduates. From 1975 to 2005, their numbers increased by 473.4 per cent. As noted by Cassese (2001), this transformation contributed to the so-called Italian ‘law explosion’. The trend has only been interrupted in recent years by the sharp decline in the number of students enrolling at Italian universities.29 Figure 1  Law graduates, years: 1926–2013

Source: Italian National Institute of Statistics (ISTAT), historical series.30

28 The main obstacle is the non-wage labour costs. The average personal income tax and social security contribution rates on gross labour income is much higher in Italy than in other countries: IT: 47.9%; UK 30.9%; US 29.6%; OECD countries 36.1%. This is especially evident if we consider the average social security contributions paid by the employer: IT 31.6%; UK 10.8%; US 8.3%; OECD countries 17.8%. Source: OECD.Stat, year 2018, table I.5, our elaboration. 29 The reasons for this decline are manifold: the persistent effects of the economic crisis, budget cuts, the decrease in the number of scholarships and grants, and the lack of investment in infrastructure, combined with the structural difficulties of the Italian labour market. 30 See http://seriestoriche.istat.it.

284  Hilary Sommerlad et al The uncontrolled increase in the number of lawyers has led to a progressive saturation of the legal market, part of the wide-ranging changes taking place within the Italian legal profession. After years of growth, the number of legal apprentices fell (81.5 per cent 2004–2012), as did the number of individuals registering on the law lists for the first time (26.1 per cent 2008–2012). Following the introduction of compulsory registration in the legal provident system,31 voluntary cancellations or suspensions continued to increase (4,888 in 2016). Due to the persistence of the economic crisis, the average actual income of Italian lawyers fell by 20.5 per cent over the period 2007–2014. In 2015, the figure stood at €38,277, the level recorded in 1987 (Cassa Forense 2017).32 Figure 2  Average income of Italian lawyers, in Euros, 1996–2015

Source: Cassa Forense (2017).

In addition, there are significant gender and generational differences: women’s income is less than half of men’s (43 per cent), and the average income of lawyers over 60 is more than four times that of their counterparts under 40. Professionals under 35 earn very little indeed: a clear indication of the proletarianisation of a large part of the Italian legal profession.33 For these reasons, many skilled lawyers (especially the young and the female) perform some activities that are entrusted to paralegals in other countries.34 Despite the fact that the rules regulating the legal system expressly create a distinction between employee and legal practitioner,35 many Italian lawyers spend a large part of their working lives in a sort of

31 Art 21 of Law 247/2012. 32 All the data are adjusted for inflation. Cassa Forense is the Italian Lawyers’ Pension Fund. 33 As is happening in other countries, such as the UK. 34 As highlighted by a qualitative research on the Italian legal profession (Verzelloni 2015; 2019). The study involved 28 lawyers from five law firms specialised in civil and labour litigation. Case studies were selected on the basis of size and geographic location. The research was based on four techniques: document analysis, interviews, participant observation, and shadowing. 35 Art 19 of Law 247/2012, which replaced Art 3 of Royal Decree Law 1578/1933. The discussion of the possibility of repealing this incompatibility is ongoing. See law proposal no 4408/2017, presented on 5 April 2017.

Paralegals and the Casualisation of Legal Labour Markets  285 ‘perpetual internship’. Although they cannot count on the rights guaranteed to employees, these sans papier lawyers receive a predetermined salary (often much lower than the market rates), are required to work fixed hours, and are subject to the directives of owners, partners or senior lawyers in their law firms. These individuals have thus been forced to relinquish their professional autonomy and become ‘service providers’, performing routine tasks on behalf of colleagues who retain control of the ‘client portfolio’. All of this results in a substantial debasement of the legal profession, creating a sense of precariousness and frustration, especially among the new generations of lawyers, many of whom work in the shadows, without any career prospects. Figure 3  Average income of Italian lawyers by gender and age range, in Euros, 2015

Source: Cassa Forense (2017).

In conclusion, the absence of a regulatory framework makes Italian paralegals essentially invisible: undefined figures in search of a professional status. Invisibility is the distinguishing feature of the companies that provide such services for the legal firms (which are ignored by statistics), legal professionals working in large law organisations, without a public registry, and qualified lawyers who carry out activities normally assigned to a paralegal, under the control of a dominus, in contravention of the rules regulating the Italian legal profession. Thus, an analysis of the paralegal phenomenon in Italy at this moment reveals a largely submerged and unknown area of the legal profession. V.  ENGLAND AND WALES: THE UNREGULATED PARALEGAL

Stefanie Gustafsson and Hilary Sommerlad Recent research highlights the intensification of the stratification of the UK legal labour market and casualisation of qualified practitioners.36 In this section, however, we focus primarily on 36 See Carroll and Vaughan’s study of the shift to ‘onshoring’ within the UK, whereby both law graduates and qualified lawyers are employed by Magic Circle firms to undertake routinised work in satellite ‘legal services centres’ located outside London. At least 50 per cent of the workforce they studied were sourced from a ‘pool [of] legal professionals

286  Hilary Sommerlad et al semi-qualified37 paralegals, who are employed in firms, and whose experience exemplifies the contemporary precarious and fluctuating career landscape (Garsten 1999; Ibarra and Obodaru 2016: 47). Following a brief discussion of this type of paralegal and some causes of their proliferation, we discuss two research projects (RP1 and RP2).38 In England and Wales the term paralegal is unregulated. The definition offered by the Law Society39 is consequently very wide: not a lawyer … a legal assistant who: is qualified through education in legal studies, training and/or work experience in a law environment; is employed or retained by a solicitor in private practice, law office, corporate or in-house solicitor, government agency or other entity; works under the ultimate direction and supervision of a solicitor; and performs substantive legal work (this is work requiring sufficient legal knowledge that, without the assistance of a paralegal, would be performed by a solicitor). (Law Society 2016: 55–56)

While this definition makes clear that a key characteristic of paralegals is their lack of autonomy, it is sufficiently capacious to encompass the spectrum of unadmitted lawyers engaged in legal work, from school-leavers performing routine administrative tasks in legal service firms to senior legal secretaries (excluding legal executives, who are regarded as semi-professionals). This definitional ambiguity is reflected in the absence of precise statistics. According to the Solicitors’ Regulatory Authority (SRA), in 2009/10 around 40 per cent of fee earners in SRA-regulated firms and legal aid firms were paralegals (LSB 2012: 56). More recent estimates indicate there are about 60,000 paralegals employed in solicitors’ firms, while some 250,000 workers perform tasks with distinct legal elements in the unregulated sector,40 compared to 136,176 solicitors (Law Society 2017: 3). The Institute of Paralegals suggested that in 2017 there were around 6,000 commercial organisations operating independently or in entities such as local authorities, the NHS, charities, housing associations, and conveyancing firms, without direct involvement of lawyers (Institute of Paralegals 2017) offering services such as will-writing, debt recovery, mediation and construction disputes (Lawcareers.net 2019). The huge growth in the paralegal phenomenon over the last three decades is clearly linked to the wider changes in legal professionalism discussed in this chapter’s introductory sections. The abundance of law graduates, in part due to the marketisation of legal education, has dramatically intensified competition for both training contracts and pupillages, which are prerequisites for qualification as a solicitor and barrister respectively. By 2006, 12,221 of those who had graduated from the postgraduate Legal Practice Course (LPC) between 1993 and 2005 had failed to obtain a training contract (Law Society 2007); in 2016, only 5,723 traineeships were registered by the 15,950 law graduates from universities in England and Wales

with a law degree’; a recurring theme was the sense of subordination manifest in several ways, including invisibility and the lack of a career trajectory and autonomy (2019: 11). 37 Law graduates, who may even have passed the Legal Practice Course (LPC) but who have not obtained the Training Contract necessary to complete their qualification. 38 RP1 was conducted in 2011 by Hilary Sommerlad with the Young Legal Aid Lawyers (YLAL) group, using in-depth interviews, a questionnaire survey and analysis of the trade press and Law Society and Legal Services Board data. RP2 is an ESRC funded study led by Stefanie Gustafsson, ‘Working in the shadows of professionalism: An investigation into the career experiences and dynamics of paraprofessionals’, with 68 qualitative interviews of paralegals, associates, legal executives, partners and management professionals across four UK law firms (Project reference: ES/ N017110/1). 39 The professional association representing solicitors in England and Wales. 40 It is unclear whether this statistic includes secretaries, but since it is provided by the Institute of Paralegals (2017), this seems unlikely.

Paralegals and the Casualisation of Legal Labour Markets  287 (Law Society 2017).41 Obtaining pupillage is even more difficult, although far fewer students aspire to become barristers: in 2016/17 only 474 pupillages were available to the 815 students who successfully completed the Bar Professional Training Course (BPTC); only 39 per cent of UK and EU domiciled BPTC graduates who graduated between 2014 and 2017 had managed to gain pupillages by 2018.42 However, as we argued above, the increase in paralegals is not simply the result of the ‘overproduction’ of law graduates but also relates to the interplay between the forces eroding the classical form of professionalism and macro-level inequalities. Both the reproduction of professional status and an industrial mode of production require low-cost, low status, salaried employees, allocated to particular labour market segments through subcontracting, outsourcing and onshoring, subject to managerial discourses and disciplines. This practice model is not confined to the transnational field. As the private client sector began to experience a sharp decline in profitability following its loss of market shelters (conveyancing and probate), increasing competition from other occupational groups (such as claims adjusters) and cuts in legal aid, it too rationalised work processes, cut its training places and employed growing numbers of paralegals to provide cheap, off-the-shelf services to (low status) clients. Employers’ reluctance to invest in human capital and a preference for disposable workers has been observed for over two decades (eg Hanlon and Shapland 1997); as the managing director of one firm declared: ‘flexibility is needed to operate in a fluctuating economy’ (Lawyer2b 2010 and see Sommerlad 2011; 2016). Concurrent with this move to create a flexible labour market, the dramatic diversification which legal education and the profession have undergone over the last three decades has reinforced the significance of status hierarchies in rationalising the use of a transient workforce of salaried solicitors and paralegals (and also often unpaid interns). For some time, the new paralegal positions have been disproportionately filled by graduates drawn from Black, Asian and Minority Ethnic (BAME) groups, women, and those who have studied at new universities (a proxy for lower socio-economic status).43 More recently, although over one-third of those accepted onto first degree law courses in England and Wales in 2016 were drawn from BAME groups, they represented only 13.5 per cent of trainees (Law Society 2016: 37). Class similarly remains a key factor in a successful legal career: 78 per cent of ‘top’ barristers were educated at fee-paying schools and went to either Oxford or Cambridge Universities; 48 per cent of UK-educated partners or equivalent at Magic Circle law firms attended these schools, and 78 per cent graduated from elite universities (Kirby 2016: 3; and see Sutton Trust 2019; Sommerlad 2015; Ashley and Empson 2013).44 This bias towards white upper middle class trainees who have an ‘aura of polishedness’ (Ashley et al 2015) is particularly evident in the corporate sector. As a result, even where the role and workloads of graduate paralegals and trainee solicitors are similar, the former have much lower status (Yau et al 2019).

41 There are no statistical data, but it is clear that a proportion of law students embark on their degree with no intention of qualifying as lawyers, and others decide against qualification in the course of their studies: www.theguardian. com/law/2014/jun/29/law-graduates-legal-aid-university-lawyers. 42 See www.chambersstudent.co.uk/the-bar/a-career-at-the-bar/a-preliminary-warning. 43 At least 50 per cent of Carroll and Vaughan’s respondents were graduate lawyers (but not necessarily qualified), and one of their research sites was entirely staffed by female lawyers (2019). See Sommerlad et al (2010) on intersections between social category and professional position, and Pierce (1996) on female over-representation among US paralegals. 44 See www.legalcheek.com/2016/02/research-over-70-of-top-judges-and-barristers-are-privately-educated-or-oxbridgeelite.

288  Hilary Sommerlad et al A.  The Paralegal Experience The career is the key reference point for endowing professional work with meaning (Gustafsson et al 2018; Leicht and Fennel 2001). This is common to the various law firm career models – Cravath, up-or-out, and the tournament – which are grounded in the logics of internal competition for promotion to equity partner (Sherer and Lee 2002; Morris and Pinnington 1998). However, the disposable nature of the paralegal means that the role lacks any systematic, objectively defined criteria of professionally recognised success and is thus incapable of generating professional status through career progression: para-professionalism is, by definition, a liminal status. Law firms employ paralegals as a flexible, cost-effective resource measured by an efficiency logic. While the substance of their work is too varied to specify (Sidaway and Punt 1997), it generally comprises mundane tasks. The repetitive nature of (the supervised) work – which may, like document management, have very little to do with legal practice – means that it rarely offers any potential for skill development: ‘the work was very routinised and specialised and effectively scripted by the pc – you’d just click buttons according [to] the stage of the case, pull out certain court forms’ (RP1: paralegal in banking sector). As a result, whereas diagnostic capacity was fundamental to traditional professionalism (Abbott 1988), mandating a generalised training in the ‘whole field’ which made it possible to situate a client’s problem in the wider context, paralegals often lack understanding of how or where their particular task fits: ‘I don’t necessarily [know] how or why, they’re, I suppose, little pieces of a jigsaw but I don’t know what shape that jigsaw is’ (RP2: paralegal in law firm). Not only does this task segmentation obstruct learning and developing, but law firms’ focus on economic efficiency also makes them reluctant to invest in formal training programmes for paralegals. As a result, many felt that they lacked the specialist expertise and knowledge to do their work and had to resort to ‘trial and error’: ‘The only training people received was for the work they were doing – ie there was no staff development that would assist them in moving out of that sort of low level paralegal work. It was really just a brief induction’ (RP1). However, the formal connection between status of worker and work was often disregarded to accommodate organisational imperatives (Abbott 1988: 63–64). As a result, in spite of the absence of training described above, some paralegals and interns employed in legal aid practice were assigned tasks which exceeded their levels of expertise: ‘close to the standard of a qualified solicitor and often the same as a qualified solicitor’ (RP1). Yet this paralegal was not given even the basic ‘resources such as a Dictaphone or work mobile phone or even a desk’, and such higher level (fee-earning) work did not necessarily generate better pay. Some paralegals in City firms’ on-shore Legal Service Centres had similar experiences: ‘The type of work that comes in has evolved because we have become more senior, we’re getting more work … a lot of the work I would do would be more junior associate level rather than trainee level or paralegal level’ (RP2). Nevertheless, status differences were maintained, distinguishing non-qualified legal workers from trainees and solicitors, keeping paralegals at the bottom of the chain, ‘just a bit further up from a secretary’ (RP2). One of the defining characteristics of paralegal work in the corporate sector is the lack of client contact (Sommerlad 2016), and the minority of paralegals whose work did involve such contact recounted being treated by clients as low-status employees. By contrast, those paralegals (and some low level lawyers) in legal aid firms who performed work for which they were not trained often felt too inexperienced and unsupported to cope with client contact – an assessment echoed by an experienced legal aid lawyer who worried that ‘the huge numbers

Paralegals and the Casualisation of Legal Labour Markets  289 of untrained and poorly paid paralegal workers’ in her firm ‘cannot deliver a good service’ (RP1).45 In conclusion, macro-level socio-economic polarisation is mirrored in the profession in England and Wales, accentuating the significance of class and race for entry into and career progression within its prestigious sectors. The aspiration of graduate paralegals to obtain a training contract reinforces law firms’ power to exploit their labour (Davin and Navarrete 2008), with the result that few wish to become a ‘career paralegal’.46 Nevertheless the establishment in 2003 of an Institute of Paralegals47 and the support offered by some firms for alternative career routes such as the Chartered Legal Executive (CILEX) qualification or the Equivalent Means Scheme (EMS)48 suggest that the paralegal role can offer potential ‘processes of growth’ (Turner 1995: 99). Yet the RP2 Study found that employment opportunities in elite law firms after CILEX or EMS were scarce, forcing paralegals to leave to other lower status firms in order to progress. Moreover, the repetitive nature of paralegal work made it difficult for paralegals to demonstrate experience in different areas of the law, a requirement under the EMS. As a result, liminality and precarity remain the modal paralegal conditions, driving many to adopt a strategy of ‘hyper-mobility’ (characteristic of other casualised forms of labour), frequently changing firms in order to acquire a portfolio of relevant expertise in the hope of entering the profession as a trainee solicitor. VI.  PARALEGALS IN THE UNITED STATES: NEW FRONTIERS

Rebecca Sandefur and Tom Clarke American lawyers maintain a strong monopoly on both representation in court and legal advice. Though the specific rules about who can do what vary by state, the US treats legal advice as a restricted activity (in many countries, lawyers have a monopoly only of rights of audience). Nevertheless, people who have acquired legal expertise but not qualified as lawyers have long contributed to the production of legal services in the US. Most have done so as employees of attorneys or judges, but non-lawyers have also worked as independent, specialised legal services providers and advocates in a range of tribunals, such as those involving benefits, employment and immigration (Kritzer 1998; Sandefur 2015). Those in the former category are commonly called paralegals, while the latter operate under a variety of names. 45 These accounts highlight how paralegals’ working conditions can threaten traditional professional norms (Hanlon and Shapland 1997), most particularly the fiduciary duties to the client and to the administration of justice. 46 Yau et al (2019: 85); they write that ‘The attitude of the recruiters interviewed to GLP recruits was such that these graduates may in fact find themselves joining a separate career track and inadvertently ruling themselves out of selection for future trainee roles. Several participants explained that recruiting candidates who scored highly against their selection criteria for GLP roles posed a risk; such candidates were likely to be ‘gone when a better opportunity [came] along’. Instead, firms are recruiting candidates unlikely to obtain a training contract to GLP roles, on the basis that they are more likely to remain in such roles for long enough to become efficient. 47 In 2005 they were granted Institute status by the Secretary of State for the Department of Trade & Industry, with the support of The Law Society, the Bar Council, the Crown Prosecution Service and Citizens Advice. In 2015 the Institute introduced a Professional Paralegal Register, which required its members to possess professional indemnity insurance and comply with a Paralegal Code of Conduct. 48 The CILEx Level 6 Professional Diploma in Higher Law and Practice is the second stage of training for non-law degree holders who wish to qualify as a Chartered Legal Executive. The Equivalent Means route to qualification was introduced by the SRA in late 2014 to allow paralegals with years of legal experience to become solicitors without needing a training contract, by completing an application and providing a portfolio of evidence.

290  Hilary Sommerlad et al Traditional paralegals, who work under the supervision of attorneys, are well-established. Their work typically requires some post-secondary education but not a four-year college degree. There are several hundred paralegal and legal assistant degree programmes, more than 250 accredited by the American Bar Association. Community colleges (far less costly than four-year colleges and universities) offer accredited paralegal training that can be completed in two years or less. At least three national professional membership associations (National Association of Legal Assistants, National Federation of Paralegal Associations, and National Paralegal Association), all founded in the mid-to-late 1970s, support lawyer-supervised legal assistants by providing benefits and services typical of professional membership organisations, such as insurance products and assistance in finding employment. These organisations also accredit paralegal training programmes and represent their members’ interests before regulators and legislators. The US Bureau of Labor Statistics (2017) reported that in 2016 over a quarter of a million (277,310) people worked as paralegals or legal assistants. For some, work as a traditional paralegal is a step to becoming a fully qualified attorney; for others – including both those who originally aspired to paralegal employment and some law graduates who fail to pass the bar examination and cannot practise law – it is a destination (Yakowitz 2010). Traditional paralegals are a crucial source of legal labour and play an important role in supporting lawyers’ professional status within law firms. Beginning in the 1970s and reaching their heyday in the 1980s, legal clinics around the country employed large numbers of paralegals in new models of service delivery that relied on these workers and computer technology to operate at scale, pricing their services at rates that working- and middle-class consumers could more readily afford (Abel 1989: 138; Van Hoy 1997). These models were very different from traditional small firm and solo practice, where lawyers often did ‘bespoke’ work for each client, though some of these small legal practices did innovate in their use of paralegal labour (Seron 1996). Most paralegals are women (Guy and Newman 2004), while men are still a majority of lawyers in private practice and occupy a much higher proportion of more senior positions (Lee 2019). In addition to doing work that frees lawyers from clerical tasks and performing other ‘professionally [im]pure’ functions (Abbott 1988), female paralegals provide emotional support to male lawyers through caretaking and deference (Pierce 1996). Thus paralegal work supports not only the power structure within traditional law firms but also the broader system of gender inequality in which those firms participate. In the early twenty-first century, in order to control legal services expenditures, private law firms and house counsel outsourced and sometimes offshored legal work, as part of a broader pattern of ‘disaggregating’ such work by using contingent labour (Regan and Heenan 2010). The movement started with temporary and contract lawyers but has recently expanded to paralegals. In the early years of this development, a common form was ‘legal process outsourcing’ to countries such as India, where local lawyers proficient in English performed specific tasks at the direction of the US legal services providers who contracted with them (Krishnan 2006). Though these Indian lawyers might ‘love their American jobs’, they did not have the traditional autonomy of free professionals and could not practise independently in US jurisdictions (Ballakrishnen 2012). During this period, American law firms and house counsel also began to use more domestic contingent attorney labour. More recently, legal services providers have begun to use contract and temporary paralegal labour. Though their terms of employment are different from those of traditional law firm employees, their limited autonomy in performing their work and their authorisation to do so only under attorney supervision remain the same. These shifts in legal services reflect a broader pattern in which US employers in a range of sectors have sought to control labour costs and impose labour discipline by using contingent and temporary workers (Kalleberg 2009).

Paralegals and the Casualisation of Legal Labour Markets  291 Law schools are an additional source of paralegal labour. Students in some 700 liveclient clinics and pro bono projects offer legal services to clients under the supervision of fully qualified attorneys, conducting legal research, offering legal advice, interviewing clients, and performing other tasks permitted by state rules. Some programmes do only litigation, while others focus on legal advice and offer no representation (American Bar Association 2018; Kuehn and Santacroce 2017). Some clients are individuals facing problems like eviction, domestic violence, or immigration; some are communities seeking protection from corporate land grabs, government corruption or environmental hazards; others are non-profit or public interest organisations. While traditional paralegal work is low status, some of the tasks performed by paraprofessionals are highly prestigious. For well over a century, select law school graduates have served as clerks to trial and appellate state and federal judges. Many clerks have not passed the bar or been admitted to practise in any jurisdiction and therefore are not qualified lawyers. They are, however, fully trained, and the most elite clerkships go to top graduates of the most prestigious law schools. Clerks typically serve one or two year terms, performing legal research and drafting judicial opinions. Serving as a clerk is an important stepping stone for lawyers who aspire to be law professors or judges (Fournet et al 2009; George and Yoon 2014). These diverse roles are of long standing and share the limitation that the paralegal may not practise law outside the supervision of a fully qualified attorney. The last two decades have seen a new development: the creation by different organs of the legal profession of independent legal roles permitting non-lawyers to provide legal services to litigants (Sandefur and Clarke 2016a). Despite what many criticise as the over-production of lawyers in the US, ordinary people facing civil legal problems often appear in court without a lawyer (Engler 2008; Schauffler and Strickland 2014). Courts have responded to the growing number of unrepresented litigants by creating new roles to assist them. Examples include family law facilitators, court employees who ‘help people with family law matters who do not have lawyers’ (Judicial Council of California 2017) and Self-Represented Litigant Coordinators (with an acronym pronounced ‘Sherlock’) who ‘wor[k] for the Court and hel[p] self-represented litigants with general questions, paperwork, resources and forms related to their cases while educating’ them on the applicable law (Colorado Judicial Branch nd). The New York State courts created ‘Court Navigators’, non-lawyers who can provide legal information, assist unrepresented litigants in preparing paperwork and advise them in court. While Navigators cannot represent litigants in court or in settlement negotiations, they can speak in court on their client’s behalf when asked factual questions by judges or other court staff (Sandefur and Clarke 2016b). A 2019 landscape survey found more than a score of such programmes in areas such as divorce, eviction, foreclosure, debt, and domestic violence (McClymont 2019). Because of the legal profession’s monopoly on legal advice and representation, these support roles can provide only general information about substantive law and legal processes. Some workers are paid employees of court systems or local non-profit legal or social services organisations; others are volunteers. Some are formally supervised by attorneys, while others are not; since none is formally providing legal services, the standard requirement of lawyer supervision is not always applied, and their work is often referred to as a form of ‘self-help’ for litigants unrepresented by attorneys. This language is meant to signal that these helpers are not practising law, and there is no liability for malpractice. The ability of these helpers to perform their work competently is dependent on another form of the disaggregation of legal work: the commodification of legal knowledge into fixed-choice paper or electronic forms that identify the relevant law and ‘outlin[e the litigant’s] choices in plain language …, guiding the user through the steps and choice points in taking a legal action’ (Sandefur 2020: 17). One study concluded that the

292  Hilary Sommerlad et al success of such projects ‘depends heavily on the … development and use of’ these kinds of ‘simplified pleading forms’ (Milleman et al 1997: 1182). More recently, courts and bar associations have created new legal roles that expand the lawyer-like capacities of non-lawyers, permitting them to practise independently. In 2012, the State Bar of Washington created an independent occupation, the Limited License Legal Technician (LLLT), whose members, after completing educational, training and certification requirements, can practise independently in a specific field of law. The LLLT can give legal advice, complete documents on the client’s behalf, and operate within a lawyer-client relationship that protects client confidentiality. LLLTs cannot represent clients to other parties or in court. LLLTs are essentially lawyers with a limited licence (Clarke and Sandefur 2017). Only 33 held active licences at the end of 2019. In 2018, Utah created Licensed Paralegal Practitioners (LPPs), a trained and certified occupation whose members may practise independently in debt collection, landlord-tenant, and family law. Within that ambit, LPPs are authorised to perform most lawyer functions except appearing in court (Dupont 2018). Watching these developments, other states are considering creating their own independent para-lawyer occupations. The hope is that these workers will provide legal services more cheaply and accessibly than lawyers. Not all paralegal assistance is legally authorised. Near many courthouses, document preparers offer to help those who need to file official papers. Arizona allows licensed Legal Document Preparers (LDPs) to assist litigants and charge fees. Authorised document preparers usually may not give legal advice, but since unrepresented people often need assistance in choosing between official forms, preparers sometimes cross that boundary. Notarios, non-lawyers using a title that implies legal qualifications in Latin America, offer a highly controversial form of paralegal assistance that frequently constitutes the unauthorised practice of law, including document preparation and translation services as well as assistance in navigating the immigration system. Immigrants are more likely than the native-born to use these services, which are often are often delivered in immigrants’ languages and located in their communities. A 1996 survey of low-income immigrant households in five US cities found that 13 per cent had used the services of a notario, most commonly for immigration issues (Bach 1996). Although some notarios do excellent work, others are frauds or incompetent; but there is wide variation in quality and competence among immigration lawyers as well (Abel 2008). Whether the restrictions on non-lawyer practice are justified by concerns for consumer protection is hotly debated (Rhode and Ricca 2014). Many empirical studies show that non-lawyers can be competent and effective as independent providers of limited legal services (Sandefur 2020). Recent developments suggest that US lawyers will lose their long battle to preserve their monopoly over the practice of law but not without a fight (Chambliss 2019a). Many of the projects offering new sources of legal services originate from core professional entities like state supreme courts and bar associations, indicating the profession’s attempt to control developments threatening its historic status and jurisdiction. Though lawyers and other legal services providers may feel these developments intimately, these shifts are almost inevitable results of the broader forces of market de-regulation and technological change affecting other industries. One central challenge for these new paralawyer roles, as yet unresolved, is striking the right balance between regulation and independence. For example, while the education and licensing requirements of an LLLT are less demanding than those of an attorney, qualification still requires three years of higher education and a significant period of supervised practice, as well as passing examinations, licensing, continuing education and payment of malpractice insurance premiums. Not all these requirements may be necessary for consumer protection. They also constitute entry barriers that may slow the growth of these occupations and the access to legal services they would provide. Another key challenge, also unresolved, is

Paralegals and the Casualisation of Legal Labour Markets  293 educating the public about these new roles, their capacities, and how they differ from those of attorneys. Many members of the public are unaware of the new roles and ignorant of how they differ from those of lawyers (Chambliss 2019b). These new roles may expand legal services markets by incorporating new practitioners and clients. By performing routine work, these new roles may free fully-qualified lawyers to practise ‘at the topic of their licenses’. This may also signify the end of a unitary legal profession. Future years may see the reproduction of the segmented legal services markets within the formal structure of the profession, a natural extension of the current division among US lawyers between those serving organisational and individual clients (Heinz et al 2005). If this happens, paralegals, limited licence attorneys and lower status lawyers will compete to serve individual clients and small businesses, while traditional corporate practice will be formally reserved for fully qualified practitioners with more elite credentials. VII. CONCLUSION

Hilary Sommerlad As the empirical data indicate, paralegalism and legal professionalism are highly malleable social constructs, and the boundary between them shifts across time and jurisdictions. The prestige of some forms of paralegal work makes them established stepping stones to high level professional posts, and an object of choice. Frequently, however, becoming a paralegal is not a choice but results from (mis-)recognition of the aspiring lawyer’s cultural rather than human capital (Friedman 1989). Shaped by the capacity of powerful social groups to create and maintain a market for their services, the tasks assigned to this type of paralegal are therefore generally low value, ‘dirty’ and ‘professionally impure’, stigmatising the person who performs them. This hierarchy of different forms and tiers of legal work is thus a product of the relationship between law, the profession (and its status), socio-cultural location and new technologies. However, factors such as volume of work can generate patterns at the micro-level within organisations, disrupting formal divisions of labour (Abbott 1988). Consequently, although the paralegal/ professional division is pervasive worldwide, both categories are fluid, assuming multiple modalities; for instance, the persistence of pre-modern criteria and practices may lock lawyers like the Chilean actuarios and Italian sans papier lawyers into quasi-patrimonial relationships with the profession – yet legal clerks in the UK may successfully graduate to become qualified lawyers if their experience is sufficiently valuable. Nevertheless, a constant driver of the paralegal/profession division is the wider status order; for instance, as Sandefur and Clarke note, the preponderance of women in some paralegal roles and the emotional labour their work involves supports macro-level gender inequalities. The relationship between societal-wide power structures and paralegalism also reflects the profession’s ‘organic connection with the propertied class’ (Larson 2013). The legal (or quasilegal) problems of low status social groups were traditionally left to a host of unregulated advisors, fixers and scribes working on the margins of the law. The socialisation of citizenship, human rights discourses and juridification of social relations produced legal aid systems across the world, thereby including such clients in law’s formal domain. However, the routinisation and characterisation of their legal problems as ‘garbage’ (Merry 1990: 7) highlight the fundamental challenge low status clients present to the profession’s claims regarding both the esoteric nature of their work and a unified identity surpassing social relations. The subsequent erosion of legal aid consequent on the evisceration of civil and social rights has led many

294  Hilary Sommerlad et al states (eg Sommerlad et al Vol 1, ch 4; Thornton and Wood Vol 1, ch 2; Cummings et al Vol 1, ch 6; Hunter et al, ch 13 below) to reduce their responsibility for the provision of civil justice, expanding the numbers of litigants in person and the use of ADR and generating new types of paralegal. Like lower status clientele, law graduates drawn from lower social status groups threaten the profession’s standing and have been a significant force in its fragmentation and organisational stratification. In large and medium-sized firms, the move to ‘digital Taylorism’, with the colonisation of increasing areas of legal practice by machine learning and artificial intelligence, has increased the potential for routinisation, blurring the boundaries between low status employed lawyers and graduate paralegals, both of whom are deployed as engines of accumulation for highly capitalised multi-national Magic Circle firms. However, the links between macro-level forces and this intensification of internal stratification, realised through the development of flexible and insecure working practices, erosion of practitioner independence and blurring of internal boundaries, mean that the same patterns are visible in other professional fields (eg accountancy), again at both the transnational and national levels. It is commonplace that neoliberal rationality has deepened socio-economic inequalities and labour market precarity; the ‘cultural logic of neo-liberal flexible capitalism’ (Sennett 1998: 85; Kalleberg 2009) is now pervasive, manifest in the ‘flexploitation’ of the increasing numbers of qualified workers through short-term contracts and outsourcing (Ross 2009). Other professions have therefore also experienced shifts in their structural boundaries (Suddaby et al 2007: 334), destabilising settled institutional forms and jurisdictions. There is, consequently, a complex ecology of both organisations and social groups competing for markets, intensifying the definitional difficulties which beset the concepts of legal work and of para-professionalism and professionalism. And it is clear that COVID-19 has exacerbated labour market precarity generally, including among lawyers and paralegals – and that other threats such as fresh pandemics, global warming, trade wars and migration will continue to unsettle global and national economies and societies and therefore legal professions. But it is precisely this interrelationship between socio-economic context and professional fields which generates indeterminate, permeable boundaries between professional jurisdictions and different forms of labour, making the study of those on the fracture lines so vital for understanding the contemporary legal field. REFERENCES Abbott, A (1988) The System of the Professions. An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). Abel, RL (1989) American Lawyers (New York, Oxford University Press). —— (2008) Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (New York, Oxford University Press). Aiyedun, A and Ordor, A (2016) ‘Integrating the traditional with the contemporary in dispute resolution in Africa’ 20 Law, Democracy and Development [online] 155 www.scielo.org.za/scielo.php. Alves, C (2014) ‘Contemporary challenges to legal aid in Brazil and England: comparative perspectives on access to justice’ 98 Amicus Curiae 22. American Bar Association (2018) Directory of Law School Public Interest and Pro Bono Programs (Chicago, American Bar Association) www.americanbar.org/groups/center-pro-bono/resources/ directory_of_law_school_public_interest_pro_bono_programs/. Anleu, SL Roach (1992) ‘The Legal Profession in the United States and Australia: Deprofessionalization or Reorganisation?’ 19(2) Work and Occupations 184.

Paralegals and the Casualisation of Legal Labour Markets  295 Arriagada, I and Naranjo J-P (2016) ‘Enseñanza del Derecho fuera de las aulas universitarias: oficinas de interrogadores y educación legal en Chile’ 2(1) Derecho y Crítica Social 1. Ashley, L, Duberley, and Sommerlad, H (2015) A Qualitative Evaluation of Non-educational Barriers to the Elite Professions (London, Social Mobility and Child Poverty Commission). Ashley, L and Empson, L (2013) ‘Differentiation and Discrimination: Understanding Social Class and Social Exclusion in Leading Law Firms’ 66 Human Relations 219. Bach, RL (1996) Becoming American, Seeking Justice: The Immigrants’ Legal Needs Study (Binghamton, Institute for Research on Multiculturalism and International Labour). Ballakrishnen, S (2012) ‘“I Love my American Job”: Professional Prestige in the Indian Outsourcing Industry and Global Consequences of an Expanding Legal Profession’ 19(2–3) International Journal of the Legal Profession 379. Bannier, F and Fanoy, N (2005) Beroep: Advocaat. In de ban van de balie (Deventer, Kluwer). Biancofiore, G (2016) ‘I redditi professionali dichiarati dagli avvocati nel 2015’ 1 La previdenza forense 6. Bourdieu, P (1978) ‘Classement, déclassement, reclassement’ 24(1) Actes de la Recherche en Sciences Sociales 2–22. Bourdieu, P and Wacquant, L (1992) An Invitation to Reflexive Sociology (Chicago, University of Chicago Press). Brouwer, D (2017) Verhoorbijstand 2.0; een onderzoek naar de toelaatbaarheid van verhoorbijstand door anderen dan advocaten (Deventer, Wolters Kluwer). Bruinsma, F (2009) ‘Rechten studeren als socialisatieproces’ 30(1) Recht der Werkelijkheid 103. Bucher, R and Strauss, L (1961) ‘Professions in Process’ 66 American Journal of Sociology 325. Bureau of Labour Statistics (2017) ‘Occupational Employment and Wages, May 2016: 23-2011 Paralegals and Legal Assistants’ www.bls.gov/oes/current/oes232011.htm#(1). Carbado, D and Gulati, M (2000) ‘Working Identity’ 85 Cornell Law Review 1259. Carlin, JE (1962) Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, NJ, Rutgers University Press). Carroll, E and Vaughan, S (2019) ‘Matter Mills and London-Lite Offices: Exploring Forms of the Onshoring of Legal Services in an Age of Globalisation’ 22(1–2) Legal Ethics 3. Calamandrei, P (1921) Troppi avvocati! (Firenze, La Voce). Cassa Forense (2017) ‘Bilancio d’esercizio al 31/12/2016’ (Rome, Cassa Forense) www.cassaforense.it/ media/6157/bilancio-cons-2016.pdf. Cassese, S (2001) ‘L’esplosione del diritto. Il sistema giuridico italiano dal 1975 al 2000’ 28 Sociologia del Diritto 55. CENSIS (2016) ‘Rapporto annuale sull’avvocatura italiana’ (Rome, CENSIS) www.cassaforense.it/ media/4240/rapporto_censis_marzo2016.pdf. CEPEJ (2016) ‘European judicial systems. Efficiency and quality of justice’ CEPEJ studies No 23 (Strasbourg, CEPEJ) rm.coe.int/european-judicial-systems-efficiency-and-quality-of-justice-cepejstud/1680789851. Chambliss, E (2019a) ‘Evidence-Based Lawyer Regulation’ 97 Washington University Law Review 297. —— (2019b) ‘Marketing Legal Assistance’ 148(1) Daedalus 98. Clarke, TM and Sandefur, RL (2017) Preliminary Evaluation of the Washington State Limited License Legal Technician Program (Chicago and Williamsburg, American Bar Foundation and National Center for State Courts). Colorado Judicial Branch (nd) ‘Self Help’ www.courts.state.co.us/Courts/District/Custom.cfm?District_ ID=14&Page_ID=471. Cooper, D, Hinings, B, Greenwood, R and Brown, J (1996) ‘Sedimentation and Transformation in Organizational Change: The Case of Canadian Law Firms’ 17(4) Organization Studies 623. Cowley, J (2004) ‘A Comparative Study of Paralegalism in Australia, the United States of America and England and Wales’ (Masters thesis, Southern Cross University). Crowley, M, Tope, D, Chamberlain, L and Hodson, R (2010) ‘Neo-Taylorism at Work: Occupational Change in the Post-Fordist Era’ 57(3) Social Problems 421.

296  Hilary Sommerlad et al Davies, J, Sandstrom, S, Shorrocks, A, and Wolff, E (2006) The World Distribution of Household Wealth 5 December. Davin, S and Navarette, M (2008) ‘YLAL Survey Reveals Unfair Treatment of Paralegals’ March Legal Action 8. De Fijter, A (2011) Professional Support in de advocatuur www.hetoverleg.org/files/AKDPVW-3993226v1-Professional_Support_in_de_advocatuur_AdF_nov2011.pdf. De Rechtspraak (2017) Jaarverslag Rechtspraak 2016 www.jaarverslagrechtspraak.nl/. De Rooij, S (2013) De HBO-jurist: kans of bedreiging? (Nijmegen, Wolf Legal Publishers). Derber, C (1982) ‘The Proletarianisation of the Professional: A Review Essay’ in C Derber (ed), Professionals as Workers: Mental Labour in Advanced Capitalism (Boston, GK Hall). Dugard J and Drage, K (2013) ‘To Whom Do the People Take Their Issues? The Contribution of Community-Based Paralegals to Access to Justice in South Africa’ Justice and Development Working Paper Series (Washington: World Bank). Dupont, CJ (2018) ‘Licensed Legal Practitioner’ 31(3) Utah Bar Journal 16. Ehrenreich, B and Ehrenreich, J (1979) ‘The Professional-Managerial Class’ in P Walker (ed), Between Labor and Capital (Boston, South End Press). Engler, R (2008) ‘Ethics in Transition: Unrepresented Litigants and the Changing Judicial Role’ 22 Notre Dame Journal of Law, Ethics and Public Policy 367. Faulconbridge, J and Muzio, D (2009) ‘The Financialization of Large Law Firms: Situated Discourses and Practices of Reorganization’ 9 Journal of Economic Geography 641. Flood, J (2011) ‘The Re-landscaping of the Legal Profession: Large Law Firms and Professional Re-regulation’ 59(4) Current Sociology 507. Fournier, V (1999) ‘The Appeal to “Professionalism” as a Disciplinary Mechanism’ 47 The Sociological Review 280. Fournet, MR, Kopko, KC and Wittmer, D (2009) ‘Evolution of Judicial Careers in the Federal Courts, 1789–2008’ 93 Judicature 62. Francis, A (2002) ‘Legal Executives and the Phantom of Legal Professionalism: the Rise and Rise of the Third Branch of the Legal Profession?‘ 9(1) International Journal of the Legal Profession 5. Friedman, L (1989) ‘Lawyers in Cross Cultural Perspective’ in RL Abel and PSC Lewis (eds), Lawyers in Society Vol 3: Comparative Theories (Berkeley, University of California Press). Galanter, M and Roberts, S (2008) ‘From Kinship to Magic Circle: the London Commercial Law Firm in the Twentieth Century’ 15 International Journal of the Legal Profession 143. Gallie, WB (1956) ‘Art as an Essentially Contested Concept’ 6(23) The Philosophical Quarterly 97. Garsten, C (1999) ‘Betwixt and Between: Temporary Employees as Liminal Subjects in Flexible Organizations’ 20 Organization Studies 601. George, TE and Yoon, AH (2014) ‘The Labour Market for New Law Professors’ 11(1) Journal of Empirical Legal Studies 1. Gieryn, TF (1983) ‘Boundary-Work and the Demarcation of Science from Non-Science’ 48(6) American Sociological Review 781. Gustafsson, S and Empson, L (2018) ‘Climbing Invisible Walls: The Construction of Career (Im)mobility in Liminal Professional Roles’ 1 Academy of Management Proceedings. Gustafsson, S, Swart, J and Kinnie, N (2018) ‘They Are Your Testimony: Professionals, Clients and the Creation of Client Capture during Professional Career Progression’ 39 Organization Studies 73. Guy, ME and Newman, MA (2004) ‘Women’s Jobs, Men’s Jobs: Sex Segregation and Emotional Labor’ 64(3) Public Administration Review 289. Hanlon, G (1998) ‘Professionalism as Enterprise: Service Class Politics and the Redefinition of Professionalism’ 32 Sociology 43. Hanlon, G and Shapland, J (1997) ‘Professional Disintegration. The Case of Law’ in J Broadbent, M Deitrich and J Roberts (eds), The End of the Professions (London, Routledge). Hardman, L (2010) ‘Are you Prepared for the Future?’ Legal Week Benchmarker 10–11 April. Haug, MR (1973) ‘Deprofessionalization: An Alternative Hypothesis for the Future’ 20 Sociological Review Monographs 195.

Paralegals and the Casualisation of Legal Labour Markets  297 Heinz, JP, Nelson, RL, Sandefur, RL and Laumann, EO (2005) Urban Lawyers: The New Social Structure of the Bar (Chicago, University of Chicago Press). Hersant, J (2017) ‘Patronage and Rationalization. Reform to Criminal Procedure and the Lower Courts in Chile’ 42 Law & Social Inquiry 423. Holvast, NL (2017) In the Shadow of the Judge. The Involvement of Judicial Assistants in Dutch District Courts (The Hague, Eleven International Publishing). Holvast, NL and Lindeman, JMW (2017) ‘De onttovering van de magistraat: reflecties op de organisatorische ontwikkelingen bij het openbaar ministerie en binnen de rechtspraak’ in R Staring, R Swaaningen and K Wingerde (eds), Over de muren van stilzwijgen. Liber amicorum Henk van de Bunt (The Hague, Boom Crimonologie). Hughes, EC (1971) The Sociological Eye (Chicago, Aldine). Ietswaart, H (1981–82) ‘Labor Relations Litigation: Chile, 1970–1972’ 16 Law & Society Review 625. Ibarra, H and Obodaru, O (2016) ‘Betwixt and Between Identities: Liminal Experience in Contemporary Careers’ 36 Research in Organizational Behaviour 47. Institute of Paralegals (2017) ‘Career Paths’ letr.org.uk/references/storage/SESQPRNR/career-path.html. Johnson T (1972) Professions and Power (London, Macmillan). Judicial Council of California (2017) ‘County of Alameda: Family Law Facilitator’. Kalleberg, A (2009) ‘Precarious Work, Insecure Workers: Employment Relations in Transition’ 74 American Sociological Review 1. Kirby P (2016) Leading People: The Educational Backgrounds of the UK Professional Elite (London, Sutton Trust). Krishnan, JK (2006) ‘Outsourcing and the Globalizing Legal Profession’ 48 William & Mary Law Review 2189. Kritzer, HM (1998) Legal Advocacy: Lawyers and Nonlawyers at Work (Ann Arbor, University of Michigan Press). Kuehn, RR and Santacroce, DA (2017) ‘The 2016–17 Survey of Applied Legal Education’ Center for the Study of Applied Legal Education (Ann Arbor, CSALE). Larson, MS (2013) The Rise of Professionalism: Monopolies of Competence and Sheltered Markets (New Brunswick, Transaction Publishers). Lawcareers.net (2019) Paralegals www.lawcareers.net/MoreLaw/Paralegals. Law Society (2007) Trends in the Solicitors’ Profession Annual Statistics Report 2006 (London, Law Society). —— (2016) Trends in the Solicitors’ Profession Annual Statistics Report 2015 (London, Law Society). —— (2017) Trends in the Solicitors’ Profession Annual Statistics Report 2016 (London, Law Society). Leach, N (2018) ‘The Paralegal and the Right of Access to Justice in South Africa’ (PhD thesis, University of the Western Cape, unpublished). Lee, P (2019) ‘The Demographics of the Profession’ in IILP Review 2019–2020: The State of Diversity and Inclusion in the Legal Profession (Chicago, IILP). Legal Services Board (LSB) (2012) Market Impacts of the Legal Services Act – Interim Report April 2012 (London, Legal Services Board). Leicht, K and Fitzgerald, ST (2006) Post-industrial Peasants: The Illusion of Middle-Class Prosperity (New York, Worth Publishers). Leicht, KT and Fennel, ML (2001) Professional Work: A Sociological Approach (Malden, MA, WileyBlackwell). Lindeman, JMW (2017) Officieren van justitie in de 21e eeuw: Een verslag van participerend observatieonderzoek naar de taakopvatting en taakinvulling van officieren van justitie (Den Haag, Boom Juridische uitgevers). Liu, S (2013) ‘The Legal Profession as a Social Process: A Theory on Lawyers and Globalization’ 38(3) Law & Social Inquiry 670. Lowenstein, S (1970) Lawyers, Legal Education, and Development. An Examination of the Process of Reform in Chile (New York, International Legal Center).

298  Hilary Sommerlad et al Martin, S (2012) ‘Procuradores: estudiantes de Derecho, técnicos jurídicos y …. abogados titulados’ El Mercurio 4 April www.elmercurio.com/legal/movil/detalle.aspx?Id=901035&Path=/0D/BF/. Maru, V and Gauri, V (eds) (2018) Community Paralegals and the Pursuit of Justice (Cambridge, Cambridge University Press). Maturana, C, Silva, JP, Tavolari, R, Montero, R, Cortez, G, Riesco, R and Palomo, D (2016) ‘La reforma procesal civil, indebidamente postergada’ El Mercurio 17 December. McClymont, M (2019) Nonlawyer Navigators in State Courts: An Emerging Consensus (Washington, DC, Georgetown Law School). Merry, S (1990) Getting Justice and Getting Even. Legal Consciousness among Working Class Americans (Chicago, University of Chicago Press). Milleman, M, Gilfrich, N and Granat, R (1997) ‘Limited-Service Representation and Access to Justice: An Experiment’ 11 American Journal of Family Law 1. Mills, CW (1959) The Sociological Imagination (Oxford, Oxford University Press). Morris, T and Pinnington, A (1998) ‘Promotion to Partner in Professional Service Firms’ 51 Human Relations 3. Napley, K (2014) ‘A Global Trend Towards Mediation: Views from Lawyers in 13 Countries’ Lexology www.lexology.com/library/detail.aspx?g=141327c6-452b-4f69-a6b1-a834c0453c90. Olgiati, V and Pocar, V (1988) ‘The Italian Legal Profession: an Institutional Dilemma’ in RL Abel and PSC Lewis (eds), Lawyers in Society Vol II: The Civil Law World (Berkeley, University of California Press) 336–68. Prandstraller, GP (1967) Gli avvocati italiani. Inchiesta sociologica (Milan, Edizioni di comunità). Pierce, JL (1996) Gender Trials: Emotional Lives in Contemporary Law Firms (Berkeley, University of California Press). Pizarro, G (2016) ‘Juicio a las escuelas de Derecho: las alarmantes falencias de los nuevos abogados’ CIPER 2 March ciperchile.cl/2016/03/02/juicio-a-las-escuelas-de-derecho-las-alarmantes-falencias-delos-nuevos-abogados/. Polanyi, K (1957) The Great Transformation (New York, Rinehart). Regan, MC and Heenan, PT (2010) ‘Supply Chains and Porous Boundaries: The Disaggregation of Legal Services’ 78 Fordham Law Review 2138. Rhode, DL and Ricca, LB (2014) ‘Protecting the Profession or the Public: Rethinking UnauthorizedPractice Enforcement’ 82 Fordham Law Review 2587. Ross, A (2009) Nice Work If You Can Get it: Life and Labor in Precarious Times (New York, New York University Press). Rutten-van Deurzen, WMCJ (2010) Kwaliteit van rechtspleging: Kwaliteitsbevordering en de rol van de raad voor de rechtspraak (Nijmegen, Wolf Legal Publishers). Ryfe, D M (2017) Journalism and the Public (Cambridge, Polity Press). Sandefur, RL (2015) ‘Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact’ 80(5) American Sociological Review 909. —— (2020) ‘Legal Advice from Nonlawyers: Consumer Demand, Provider Quality, and Public Harms’ 16 Stanford Journal of Civil Rights and Civil Liberties 283. Sandefur, RL and Clarke, TM (2016a) ‘Designing the Competition: A Future of Roles beyond Lawyers? The Case of the USA’ 67 Hastings Law Journal 1467. —— (2016b) Roles beyond Lawyers: Evaluation of the New York City Court Navigators Program (Chicago, American Bar Foundation and Williamsburg, VA, National Center for State Courts). Schauffler, R and Strickland, S (2014) ‘The Case for Counting Cases’ 51 Court Review 52. Schwitters, R (2008) Recht en samenleving in verandering. Inleiding in de rechtssociologie (Deventer, Kluwer). Sennett, R (1998) The Corrosion of Character: The Personal Consequences of Work in the New Capitalism (New York, WW Norton). Seron, C (1996) The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia, Temple University Press).

Paralegals and the Casualisation of Legal Labour Markets  299 Sherer, PD and Lee, K (2002) ‘Institutional Change in Large Law Firms: A Resource Dependency and Institutional Perspective’ 45 Academy of Management Journal 102. Sidaway, J and Punt, T (1997) Paralegal Staff in Solicitors’ Firms (RPPU Law Society, London, Research Study No 23). Soeters, JM and Fris, M (2010) ‘Tussen kennis en uitvoering’ IK Magazine 1. Sommerlad, H (2011) ‘The Commercialisation of Law and the Enterprising Legal Practitioner: Continuity and Change’ 18(1–2) International Journal of the Legal Profession 73. —— (2012) ‘Minorities, Merit, and Misrecognition in the Globalized Profession’ 80 Fordham Law Review 2482. —— (2015) ‘The “Social Magic” of Merit: Diversity, Equity and Inclusion in the English and Welsh Legal Profession’ 83 Fordham Law Review 2325. —— (2016) ‘The New “Professionalism” in England and Wales: Talent, Diversity, and a Legal Precariat’ in S Headworth, R Nelson, R Dinovitzer and D Wilkins (eds), Diversity in Practice: Race, Gender, and Class in Legal and Professional Careers (Cambridge, Cambridge University Press). Sommerlad, H, Webley, L, Duff, L, Muzio, D, Tomlinson, J and Parnham, R (2010) Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barriers and Individual Choices (London, Legal Services Board). Spangler, E (1986) Lawyers for Hire: Salaried Professionals at Work (New Haven, Yale University Press). Suddaby, R, Cooper, D and Greenwood, R (2007) ‘Transnational Regulation of Professional Services: Governance Dynamics of Field Level Organizational Change’ 32 Accounting, Organizations and Society 333. Susskind, R and Susskind, D (2015) The Future of the Professions. How Technology Will Transform the Work of Human Experts (Oxford University Press, Oxford). Sutton Trust (2019) Elitist Britain (London, Sutton Trust) www.suttontrust.com/wp-content/ uploads/2019/12/Elitist-Britain-2019.pdf. Timmer, I, Wegman, H, Mafi, S and Duijvenvoorde, M (2016) HBO-Rechten aan het werk: Een onderzoek naar de arbeidsmarktpositie van alumni HBO-Rechten (Amsterdam, Hogeschool van Amsterdam). Tomlinson, J, Muzio, D, Sommerlad, H, Webley, L and Duff, L (2013) ‘Structure, Agency and Career Strategies of Women and Black and Minority Ethnic Individuals in the Legal Profession’ Human Relations journals.sagepub.com/doi/abs/10.1177/0018726712460556. Trinder, L, Hunter, R, Hitchings, E, Miles, J, Moorhead, R, Smith, L, Sefton, M, Hinchly, V, Bader, K and Pearce, J (2014) Litigants in Person in Private Family Law Sases (London, Ministry of Justice) www.gov.uk/government/uploads/system/uploads/attachment_data/file/380479/litigants-in-person-inprivate-family-law-cases.pdf. Turner, VW (1995) The Ritual Process: Structure and Anti-Structure (New York, Aldine de Gruyter). UNDP (2017) Desiguales. Orígenes, Cambios y Desafíos de la Brecha Social en Chile (Santiago de Chile, United Nations Development Programme). Van Aeken, K (2010) ‘Een rechtssociologische analyse van de juridisering van de samenleving’ in Vlaamse onderwijsraad (ed), Meester over meester? Een probleemverkenning over juridisering en onderwijs (Leuven, Acco). Van der Meij, PPJ (2010) De driehoeksverhouding in het strafrechtelijk onderzoek. Een onverminderde zoektocht naar evenwicht in de rolverdeling tussen de rechter-commissaris, de officier van justitie en de verdediging (Deventer, Kluwer). Van Gennep, A (1960) The Rites of Passage (Chicago, University of Chicago Press). Van Hoy, J (1997) Franchise Law Firms and the Transformation of Personal Legal Services (Westport, Greenfield Publishing Group). Verzelloni, L (2015) Gli avvocati nella giustizia civile. Utenti e protagonisti (Rome, Carocci). —— (2019) Pratiche di sapere. I rituali dell’innovazione nella giustizia italiana (Soveria Mannelli, Rubbettino). White, EC (1987) Kaironomia: on the will-to-invent (Harvard University Press). Yakowitz, J (2010) ‘Marooned: An Empirical Study of Law School Graduates Who Fail the Bar Exam’ 60(1) Journal of Legal Education 3.

300  Hilary Sommerlad et al Yau, B, Catanzariti, D and Atkinson, J (2019) ‘The Information Gap: A comparative study of the paradigms shaping perceptions of career success for law undergraduates and professional legal training students in Australia and the latent implications of non-professional legal career opportunities for law graduates in England’ in R Field and C Strevens (eds), Educating for Well-Being in Law (Abingdon, Routledge). Zúñiga A (2011) ‘Técnicos jurídicos: una solución administrative para el trabajo legal’ El Mercurio 25 July www.elmercurio.com/legal/movil/detalle.aspx?Id=900470&Path=/0D/BD/.

Part IV

Lawyers and Social Justice

302

13 Lawyers and Access to Justice ROSEMARY HUNTER, ANNETTE OLESEN AND REBECCA L SANDEFUR

I. INTRODUCTION

A

t its most basic, access to justice involves the provision of legal advice and representation to people who need and seek those services. It may also include providing legal knowledge and services as a means of raising consciousness about legal options, empowerment, and promotion and vindication of people’s rights against the state and other powerful actors; and using law as a tool to challenge social inequities and injustices and promote perceived public goods. This chapter focuses on the provision of legal services to disadvantaged individuals rather than on lawyering directed to particular causes. In the US, for example, cadres of cause lawyers champion specific interests across the political spectrum, ranging from classical poverty law issues, such as employment, housing, and access to health care, to conservative/right-wing causes such as restrictions on abortion, union activity, or immigration. Several country reports describe cause lawyering for the poor and vulnerable (eg Bonelli and Fortes Vol 1, ch 19; Nicholson and Ha Vol 1, ch 43) and to promote human rights and the rule of law (eg Bernard-Maugiron and Omar Vol 1, ch 28; Crouch Vol 1, ch 6; Klaaren Vol 1, ch 26; Kim Vol 1, ch 40; Hsu Vol 1, ch 41) (and see chs 14 and 15 below). Access to justice has traditionally focused on people with limited financial resources and has therefore generally been provided through public defender and legal aid schemes, in which lawyers have played a central role. In many countries, publicly-funded criminal defence and civil legal assistance are provided exclusively by the private legal profession and organised by either national or regional law societies and bar associations (eg Villalonga Vol 1, ch 20; Kober Vol 1, ch 14; Bernard-Maugiron and Omar Vol 1, ch 28; Qafisheh Vol 1, ch 32; Moiseeva and Bocharov Vol 1, ch 16; Boni-Le Goff et al Vol 1, ch 13; Munger Vol 1, ch 42; Nicholson and Ha Vol 1, ch 43) or a state-funded coordinating body (eg Gibens et al Vol 1, ch 7; Ballakrishnen Vol 1, ch 36; Uzebu-Imarhiagbe Vol 1, ch 25). Other countries (eg Thornton and Wood Vol 1, ch 2; Dinoviter and Dawe Vol 1, ch 3; Katvan et al Vol 1, ch 30; Murayama Vol 1, ch 38; Doornbos and de Groot-van Leeuwen Vol 1, ch 12; Kim Vol 1, ch 40) operate on a mixed model of legal aid, providing state-funded legal services through a combination of salaried lawyers employed by public legal aid agencies and private lawyers. In a handful of countries, legal aid is exclusively provided by a public body, such as public defender’s offices in Brazil and Mexico, the Taiwan Legal Aid Foundation or Legal Aid South Africa. A very interesting public legal aid scheme is described in the Libyan country report (Carlisle Vol 1, ch 31). While each model relies on state funding, they differ in how they distribute responsibilities for administering the scheme and the engagement, regulation and quality control of lawyers. Debates over the merits

304  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur of each model have revolved around questions of lawyers’ independence, quality of services delivered, efficiency and cost control. A fundamental issue for all legal aid schemes, however, has been how much access to justice the state has been willing to subsidise, defined by the kinds of legal problems and services covered, overall funding and the level of fees paid to lawyers undertaking legal aid work. Low fees for criminal defence work have raised concerns about the quality of services in Russia and Vietnam, for example, while French lawyers have periodically gone on strike over the level of reimbursements for legal aid cases. According to the Nigerian country report (Uzebu-Imarhiagbe Vol 1, ch 25), the relatively few lawyers willing to accept legal aid work have sometimes foregone pay because it is not worth the trouble to claim the low fees. With a small number of exceptions (eg Gibens et al Vol 1, ch 7; Bonelli and Fortes Vol 1, ch 19; Katvan et al Vol 1, ch 30), total legal aid budgets in most countries in the recent past have either stagnated or suffered cuts, reflecting neoliberal shifts away from universal state welfare provision (Sommerlad and Hammerslev Vol 1, ch 1). Although, as discussed in the case studies below, governments have sought to justify ‘targeting’ legal aid at restricted categories of citizens and legal issues, in several countries, including Australia, Canada, Ghana, India, Nigeria and Thailand, provision is inadequate to meet most conceptions of legal need (see eg Pleasence and Balmer 2018). National levels of eligibility for legal aid vary considerably, but even in the Netherlands, where over one third of the population would still qualify, the services available have been reconfigured to emphasise the provision of legal information and advice rather than traditional legal representation, consonant with neoliberal preferences for efficiency (particularly making use of new technologies), individual responsibility and self-help. In recent years, access to justice has attracted supranational attention as part of the European Union’s fundamental rights agenda and the World Bank’s and OECD’s development agendas. The OECD’s focus illustrates the global neoliberal turn. Rather than framing access to justice as a matter of human dignity, equal citizenship or social justice, it promotes the ‘business case’ for access to justice as promoting stronger national economic performance, growth and sustainable development (OECD and Open Society Foundations 2016). Accordingly, it has gathered and disseminated evidence and resources on international best practices in achieving access to justice, measuring impact and outcomes, and ensuring cost-effectiveness and efficiency. These hallmarks of New Public Management also illustrate the move away from legal professional control of access to justice, as demonstrated in the case studies below. Nevertheless, the definition and implementation of access to justice remain primarily a matter for national states rather than supranational institutions (see also European Parliament 2017). Consequently, the interaction of neoliberal agendas with national histories, structures, cultures and contingencies has resulted in varying configurations of access to justice and the role of lawyers within it. The three case studies in this chapter document the retrenchment and reconstruction of access to justice over the last 30 years in the US, Scandinavia (Hammerslev Vol 1, ch 8) and England and Wales.1 Although developments in each setting have been very different, two common and interlinked themes emerge, which have undermined the legal profession’s autonomy in defining and providing access to justice. First, lawyers have been displaced from their central role as providers and been forced to share the stage with other actors. Second, as states have withdrawn funding from legal aid, they have intervened more actively in determining what constitutes access to justice and who is entitled to it. Lawyers, in turn, have regrouped, responded to and resisted these developments to varying degrees. The three case studies 1 See the relevant country reports in Vol 1 for general discussions of the legal profession and legal aid in these countries.

Lawyers and Access to Justice  305 represent points on a spectrum. The US is the furthest advanced in the fragmentation and marketisation of access to justice; the Scandinavian countries have advanced a considerable way down that route; while England and Wales stands uncomfortably on the threshold, unable to return to the past but uncertain of its future. II.  ACCESS TO JUSTICE AND AMERICAN LAWYERS

The forces of globalisation, neoliberalism and market fundamentalism shaping the Big Law sector in the US also affect access to justice. By contrast to countries where the global spread of market fundamentalism undermined expansive welfare states, however, markets have always been the principal mechanism for allocating legal services to all segments of the US population. This is equally the case for poor Americans eligible for civil legal aid: most of those who take their problems to lawyers (and many do not: Sandefur 2016) purchase legal services on the market. Outside of markets, legal services for poor people are funded by private philanthropy, both cash and in-kind, as well as by agencies of local, state and federal government. For most criminal matters there is a constitutional right to counsel, implemented by mandating that local governments organise and pay for public criminal defence. While this means that government plays a role in funding and regulating public criminal defence, jurisdictions differ widely in how such services are provided, at what rates of pay and with what quality assurance (if any). By contrast, no such right exists on the civil side; civil legal aid work is supported by a wide range of funding sources, resulting in a diverse ecology of services for poor and other disadvantaged populations. A.  Restrictions on Federally-Funded Legal Aid Lawyering The centrepiece of American civil legal aid, the federal Legal Services Corporation (LSC), provides only about 40 per cent of the funding received by the organisations it supports (Legal Services Corporation 2015). It funds services only for people below 125 per cent of the federal poverty level, or an annual income of around $US30,000 for a family of four; these eligibility standards encompassed about 16 per cent of the US population in 2018. The LSC is periodically under attack, with Republican presidential administrations, including, famously, Ronald Reagan’s and, later, Donald Trump’s, proposing to end all funding. Although efforts to abolish the LSC have been unsuccessful, lawyers’ scope of action has been restricted. In 1996, Congress passed legislation prohibiting LSC-funded organisations from engaging in legal work related to: legislative redistricting, challenges to welfare laws or regulations, and civil lawsuits on behalf of prisoners and many categories of immigrants. Congress also prohibited LSC-funded lawyers from participating in class actions, claiming court-ordered awards of attorneys’ fees, and engaging in lobbying (Powell 2001).

These restrictions apply to all activities of LSC-funded organisations, whether or not those activities are funded by the LSC. Their intent, and to some extent effect, has been to limit legal aid lawyers to helping individuals facing justice problems rather than advocating for groups with shared interests or for systemic change. And while funding has not been eliminated, it is miserly compared with that provided by many peer nations: $US410 million was allocated to the LSC by the US Congress in 2018, out of over $US4 trillion in federal spending (0.01 per cent) (see Johnson 2013).

306  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur While the restrictions limit legal services organisations’ scope of action, within that scope the LSC permits considerable autonomy. Grantees largely set their own service priorities, determining the types of legal problems their staff will work on: for example, focusing on housing, domestic violence, or military veterans. They also determine their own quality assurance procedures, if any. Unlike other jurisdictions, where quality assurance processes have been used by central funders of legal services to shape which services are provided and how they are performed (see the England and Wales case study below) what constitutes appropriate and competent practice continues to be left largely to practitioners and professional disciplinary bodies when clients or others complain (as is true of the profession generally). A particular issue has been how lawyers manage the imbalance of power between themselves and their disadvantaged clients. Several studies have explored how lawyers interested in emancipating oppressed groups through their legal work try to negotiate the use of their superior power and expertise while respecting their clients’ wishes to define their own problems and choose among possible solutions (eg Shdaimah 2009; Southworth 1996; White 1990). B.  New Providers of Access to Justice Employed legal aid lawyers’ work is supplemented by hundreds of thousands of hours of pro bono services annually (Cummings and Sandefur 2013).2 The American Bar Association’s Model Rules of Professional Conduct encourage lawyers to contribute at least 50 hours per year of uncompensated service to the poor or to programmes that benefit the community; although a 2017 survey found that just half of respondents provided any pro bono services in 2016 (an average of 37 hours), and less than 20 per cent reached the ABA’s goal of 50 hours (American Bar Association Standing Committee on Pro Bono and Public Service 2018). The heavy reliance of legal aid offices on labour donated by the private bar is characteristic of American-style human and social services provision, which draws on volunteers and donations to provide food, shelter, health care and many other life essentials to people who cannot afford to purchase them. But while lawyers’ pro bono service expands direct service provision, it also make legal aid more market-dependent in two respects. First, the supply of pro bono hours is counter-cyclical with respect to legal need: the same economic contractions that push people out of employment and into foreclosure, eviction and debt collection also reduce the supply of pro bono legal services, as was demonstrated in the recession of the early twenty-first century. Second, reliance on volunteer labour from the private bar shapes service priorities. Private practitioners may encounter real or positional conflicts of interest in representing pro bono clients. Conflicts rules typically mean that lawyers in a firm cannot appear on both sides of a case. Lawyers also attempt to avoid positional conflicts of interest, which occur when a lawyer or firm appears in opposition to a class of clients it typically represents. Lawyers who work for businesses in a specific industry – for example, real estate, energy, or health care – or represent one side in common disputes, such as management in labour disputes, will often avoid pro bono work involving claims against any businesses in the industry of their paying clients or against any parties of their paying clients’ type. Real and perceived conflicts shape what pro bono work actually gets done, leading to specific types of cases being under-served 2 Pro bono provision is also a major form of legal aid in the Czech Republic. For discussions of pro bono lawyering and mandates in other jurisdictions, see the country reports of Böhmer Vol 1, ch 10; Thornton and Woods Vol 1, ch 2; Dinovitzer and Dawe Vol 1, ch 3; Ballakrishnen Vol 1, ch 36; Katvan et al Vol 1, ch 30; Uzebu-Imarhiagbe Vol 1, ch 25; Kim Vol 1, ch 40; Nicholson and Ha Vol 1, ch 43.

Lawyers and Access to Justice  307 regardless of significance or need. For example, because the large law firms that provide many of these pro bono hours have many large employers among their clients, these firms invest less of their volunteer time on employment cases, instead working on cases in areas less likely to bring them into opposition with organisations similar to their clients, such as children’s issues (Boutcher 2013). Legal aid is further augmented by other non-traditional providers. The formal law school curriculum may require students to provide legal aid, while some states, notably New York, now require pro bono service during law school for bar admission. An experiential component of US legal education (six hours of which is required for ABA accreditation3) sometimes involves law students, supervised by qualified attorneys, providing direct services to indigent clients. Most law school clinics are very small and focused much more on training than service, with groups of 10–15 students spending an entire academic term working up one or two cases. But a few law school clinics operate like legal aid offices, serving hundreds of clients each year, such as the East Bay Community Law Center, run out of the University of California-Berkeley. Though there are many clinics – a recent survey counts over 1,400 – their contribution to legal services is small, serving at most 2 per cent of civil legal aid clients (Houseman 2015; Kuehn et al 2017). In most US jurisdictions, lawyers maintain a strong monopoly on the provision of legal advice and representation in most kinds of forums. But in some contexts, the devolution of lawyers’ functions to other people and computer programmes is being supported by regulatory changes that will permit new forms of non-lawyer practice and capital investment and non-lawyer control of legal service-providing organisations. By the end of 2019, two states, Arizona and Utah, had adopted rules intended to open legal services to new practice models, while other states, including California and Illinois, were exploring similar changes. Thus, expanding access to justice has become one rationale for market liberalisation to end legal professional monopolies (Hadfield 2010). The most prominent examples of the new kinds of multi-disciplinary practice models involve ‘medical-legal partnerships’, where lawyers and medical services providers collaborate, and partnerships between lawyers and social workers that serve specific populations, such as veterans or the elderly. C.  The Profession Responds The profession’s ideas about how to respond to the continuing shortfall in access to civil justice are divided between those advocating greater lawyer involvement and those focused on new models of service delivery not involving lawyers. i.  Increasing Access to Legal Aid Lawyers Some call for expanding access to traditional lawyers; these advocates tend to be lawyers, whether or not they do legal aid, who hold traditional views on the practice of law, including concerns about protecting the profession’s monopoly. The perennial calls for more pro bono service, which come from both the bench and the bar, are part of this chorus (eg Rhode 2005). Another strand is a small civil right-to-counsel movement, which seeks a right to counsel in specific civil matters, by analogy to the constitutional right to counsel in criminal cases



3 See

ABA Standards and Rules of Procedure for Approval of Law Schools 2019–2020 Standard 303(a)(3).

308  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur (eg Engler 2010). This movement has won victories when some states and cities declared a ‘right to counsel’ for all litigants in particular kinds of cases, such as termination of parental rights (45 states), or indigent tenants threatened with eviction (a few major cities). What a ‘right to counsel’ means in terms of which services, at what level of quality, for which clients, remains an open question, because many jurisdictions that recognise the right cannot now, and probably will never be able to, fund full representation by a traditional attorney for every eligible person. Lawyers providing legal services to disadvantaged people now look to a wider range of sources of financial support. Some legal aid agencies refuse federal money so they can freely choose service priorities and legal strategies (Udell 1998). Few studies have systematically explored how legal aid agencies make this decision, but some observers find that cause-focused organisations are more likely to do so (Mentor and Schwartz 2014). Currently, additional funding for legal aid comes from Interest on Lawyers’ Trust Accounts (IOLTA) and other state and local sources of public funding, as well as private foundations and the bar (Houseman 2015). Nevertheless, salaried legal aid provision remains a minority professional activity. The 13,000 criminal and civil legal aid lawyers comprise about 1 per cent of the 1.3 million lawyers in the US (Carson 2012: Table 5). Like the American profession as a whole, most legal aid lawyers are white (Chambliss 2017: Tables 1 and 7). Unlike the profession as whole, legal aid lawyers are more likely to be women (Carson 2012: 9). Salaried attorneys in the civil legal aid system receive some of the lowest pay in the profession. Among attorneys entering practice around 2000, legal aid lawyers’ initial salaries averaged about $US39,000/year, compared with $US135,000/year for lawyers in the largest firms – roughly 3.5 times higher (Dinovitzer et al 2009: Table 5.1). The low pay, combined with the high levels of educational debt that many American law students accrue, mean that legal aid lawyers labour under some of the largest debt burdens in the profession (Dinovitzer et al 2004). In this context, observers have raised concerns about the future supply of legal aid lawyers (McGill 2006). Lawyers’ motivations for doing access to justice work, given its low pay and professional prestige, have been of perennial interest to scholars of the American profession (for example, Epstein 1999; Granfield and Koenig 1992; Mertz 2007; Stover and Erlanger 1989). Much of this research emphasises law schools’ role in diverting, discouraging, or destroying aspiring lawyers’ desires to do legal aid or other public interest legal work (Sandefur and Selbin 2009). For example, Schleef has shown how law school may divert students from public service by supporting the development of an ethic of ‘reasonable responsibility’. This ethic includes the belief that ‘public service should only be undertaken when time and resources permi[t]’, the ‘compartmentalization of day-to-day work and social responsibility’ and ‘the redefinition of responsibility as any action that was not irresponsible’ (Schleef 2005: 131). A more encouraging finding for the supply of legal aid lawyers is the demonstration that early motivations for doing access to justice work are more likely to be realised when supported by participation in access to justice activities in law school, such as clinics (Erlanger et al 1996; Albiston et al 2021). ii.  New Roles for Non-Lawyers At the same time, many lawyers believe that the US will never commit sufficient resources to provide comprehensive representation by fully qualified attorneys to every person in need. Accordingly, courts, bar associations and lawyers have focused their energies on new models of legal services provision. Some of the most significant work of lawyers in responding to what organisations such as the LSC, the World Justice Project and the American Bar Association term the ‘justice gap’ has been devising new models of service delivery without lawyers.

Lawyers and Access to Justice  309 These vary widely, but all involve distributing functions previously reserved to lawyers to non-lawyer providers, software programmes, or the people actually facing justice problems. One common model involves workshops where many people in a specific situation – responding to a court summons or seeking to regularise their immigration status – can receive information about how to handle it. A variant is court-based ‘self-help’ centres, which offer assistance, often from non-lawyers, with basic legal activities like completing legal forms, such as petitions for divorce. The expansion of such self-help efforts rests on a key procedural change: replacing complex legal documents like pleadings and motions with simpler, standardised, plain language forms offering a codified set of legal options, such as defences to an eviction (Zorza and Udell 2014). An important growth area uses computers, with a rapid expansion in recent years of software that seeks to empower people to respond to civil justice problems on their own. While these innovations are popular with their developers, observers offer many reasons to suspect that most are not yet effective routes to justice for many people (Hagan 2019; Sandefur 2019). Lawyers have also been at the forefront in designing non-lawyer roles that assume responsibilities traditionally handled by fully qualified attorneys.4 For example, the Washington State Bar created the Limited License Legal Technician (LLLT), who may practise independently within a limited scope after being trained, examined, licensed and insured. Other new roles are sponsored by the courts and offer free services, such as Court Navigators in New York City, who assist unrepresented litigants in housing and consumer debt cases (Sandefur and Clarke 2016). Debate continues about the effectiveness of these innovations (Carpenter et al 2017; Steinberg 2011). The US case study illustrates the inevitable centrifugal force of the search for market solutions to unmet demands for access to justice. While the legal profession continues to be concerned about this issue, market logic dictates that answers must lie in cheaper and more limited services than those traditionally provided by lawyers. III.  LAWYERS AND ACCESS TO JUSTICE IN THE SCANDINAVIAN WELFARE STATES

The Nordic countries’ ideal of access to justice for all has been, and to some extent still is, closely related to the ‘universalist’ welfare paradigm, promoting equality and individual autonomy by making the tax-financed public sector the main provider and regulator of social security and ‘caregiver’ for all in need (Esping-Andersen 1990).5 Providing access to justice for all citizens was highly prioritised in the 1970s (Muther 1975; Johnsen 1994). But the golden years of welfare ended during the 1980s economic crises (Christiansen et al 2006; Erikson et al 1987). The Scandinavian welfare states met with domestic criticism linking public sector growth with uncompetitive economies undermining private investments and private entrepreneurship (Agell et al 1997). The impact of such thinking widened concurrently with growing crisis symptoms and prepared the ground for a neoliberal formula. Market-oriented solutions became a serious competitor to public sector welfare strategies, resulting in the partial privatisation or contracting out of welfare services, including legal aid (Bonoli et al 2000; Kangas and Palme 2005). Access to justice has consequently gone from being a responsibility of the welfare state to a ‘service’ that is more frequently outsourced to private legal expenses insurers (LEIs),

4 See also ch 12 above on paralegals. 5 The Nordic countries include Finland and Iceland; however, this chapter focuses only on Scandinavia. For information about access to justice in Iceland and Finland see Antonsdottir (2018) and Rissanen (2018).

310  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur membership organisations and Not-for-Profit (NFP) organisations (Hammerslev and Rønning 2018). This, in turn, has resulted in a shift in the role of lawyers in providing access to justice. From being the central actors in state-funded legal aid schemes, lawyers have been downgraded in two ways. First, they now offer limited services for little or no payment in administratively burdensome circumstances; second, they now share the legal aid field with non-lawyers who are less constrained. The resulting access to justice, however, is patchy and often unsatisfactory. A.  The Marginalisation of Publicly-Funded Legal Aid Lawyers There is no common Scandinavian access to justice approach beyond free, brief advice on any legal matter.6 This is delivered by legal aid offices, supplemented by ‘lawyers on call’ – lawyers and assistant attorneys-at-law (see Hammerslev Vol 1, ch 4) available a few hours a week in public libraries, court buildings or occasionally law offices (Danish Bar and Law Society 2011). The Danish initiative of ‘lawyers on call’, for example, was launched in 1978 to strengthen access to justice, supplement the work of legal aid offices and, perhaps even more importantly, improve the negative image of lawyers. Beyond this basic service, Scandinavian residents have faced a mobilisation of neoliberal privatisation and individual responsibilitisation. They are now obligated to use other means of legal assistance before applying for legal aid, which is subject to means and merit tests in most civil matters. For decades, Sweden had a system of public legal aid offices (Johnsen 2006). In 1997, however, to cut the public budget and forestall an economic downturn, it introduced a Legal Aid Act to make the legal aid scheme – previously one of the most generous and comprehensive in the world – subordinate to LEI (Kilian and Regan 2004). Concurrently, financial eligibility criteria were tightened, user-charges based on income level were introduced, and most civil and family law disputes previously funded by public legal aid were directed to alternative dispute resolution procedures (Regan 2003). The public legal aid offices were closed in 1999 (Schoultz 2018). These measures to reduce the cost and target the provision of legal aid were accompanied by wider regulatory changes stripping lawyers of their monopoly on legal advice and representation in court (Regan 2003). By contrast, Denmark and Norway adopted a judicare model in 1974 and 1980 respectively, in which private lawyers and law firms received public subsidies along with clients’ co-payments to handle eligible cases (Johnsen 1999; Hammerslev and Rønning 2018). However, LEI supplanted the Norwegian legal aid scheme in 1997 and the Danish in 2007. Services have been reconfigured to exclude business law, penal law, debt relief and social security. Since the changes in Denmark, public expenditure on legal aid by lawyers has decreased by 75 per cent (Danish Lawyers and the Danish Bar and Law Society 2012). Norway has been criticised for randomly selecting legal areas for means testing (Botheim et al 2008; Rønning 2018; Schoultz 2018). For example, cases concerning immigration, child welfare and domestic violence are not means tested because they are deemed to be of vital importance to the individual, whereas cases regarding child custody, employment, tenancy and marriage are means tested (Rønning 2018). The main concern expressed by lawyers, however, has been the complex and timeconsuming bureaucratic administration of the tests (Danish Lawyers and the Danish Bar and Law Society 2011).

6 Belgium has a similar model of ‘front line’ legal aid (information and advice) for all, provided by private attorneys but centrally organised by the Commission for Legal Aid.

Lawyers and Access to Justice  311 Although the proportion of civil cases brought to Norwegian courts with ‘litigation aid’ from legal aid lawyers remains relatively high (Rønning 2018), Danish and Swedish litigants are highly dependent on LEI as legal aid has been substantially reduced through means testing and user charges. For example, litigation aid by legal aid lawyers to couples in a registered relationship in Denmark covered 67 per cent of the population in 1988 but only 17 per cent in 2009 (Justitia 2016; for the situation in Sweden see Regan 2003). In addition, some areas of law are ineligible for legal aid (see eg Rønning and Bentsen 2008; Botheim et al 2008; Justitia 2019; Schoultz 2018), such as claims against public authorities, or cases processed by public authorities or heard by boards of appeal, which are fundamental to a large part of the Scandinavian populations, especially the most vulnerable (Kristiansen 2018; Rønning 2018). This exception is justified by the claim that public authorities are obligated to assist people with their justiciable welfare rights. Public administration remains a legal professional stronghold, employing about a third of law school graduates (Hammerslev 2003), but its contribution to access to justice is ambiguous. On one hand, the public sector claims responsibility for being a ‘caregiver’ and for remedying many social ills, including its own administrative failures. It facilitates access to welfare and fundamental rights, helps people solve problems arising from the private market (for example through consumer councils and housing complaints commissions), and ensures that official acts are consistent with the law through complaints commissions, appeal committees and ombudsmen. On the other, the powerful public administration is criticised for its weak commitment to the rule of law. The decisions of Danish public authorities, for example, are reversed by the appeals board in a high proportion of cases: 36 per cent of reviewed social security decisions, 47 per cent of reviewed disabled children decisions, and 32 per cent of reviewed disabled adults decisions in 2018 (Ministry of Social Affairs and the Interior 2019). Despite the power and failings of the administrative state, neither Denmark nor Norway has administrative courts, so disputes concerning the exercise of public powers must be pursued in the ordinary courts. Henrichsen (2019) suggests that fragmented, complex welfare legislation and a global competition economy relying more on employment policy than social policy helped to reconfigure the Scandinavian public sector into a service provider and rule of law protector for the middle class rather than the poor, marginalised and vulnerable (see also Kolstrup 2014; Jensen 2017). For example, a person cannot seek legal aid concerning the placement of a child in care until the public authorities have made their decision and the person lodges a complaint. Studies of Danish legal aid offices, however, show that vulnerable people often need legal aid at the outset of these cases because they distrust the impartiality of public authorities and struggle to comprehend the advice they give (Danish Lawyers and the Danish Bar and Law Society 2012). Danish legal aid offices (but not private lawyers) still provide legal assistance to some clients with such cases even though they are no longer eligible for subsidy, making access to justice available to a smaller number of clients and dependent on the goodwill of the lawyers involved. B.  The Challenges of Quality and Recruiting Lawyers Following the cuts outlined above, the residual legal aid schemes face challenges in attracting lawyers, aggravated by the law firm mergers that occurred in the 1980s. Influenced by Anglo-American law firms, the landscape of solo practitioners and smaller law offices slowly changed, resulting in a division of labour between a ‘hemisphere’ of lawyers in (the few) large law firms situated in the largest cities, serving corporations, labour unions, the government, and larger organisations, and another ‘hemisphere’ of regional solo practitioners and lawyers

312  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur from smaller law offices serving private clients and smaller businesses (see Heinz and Laumann 1994). Highly specialised lawyers from the largest firms no longer handled individual legal problems, tacitly leaving solo practitioners and lawyers from smaller law offices with more generalised expertise responsible for doing traditional legal aid work for individuals, including ‘lawyers on call’ (Olesen and Hammerslev forthcoming). Difficulties recruiting lawyers and assistant attorneys-at-law7 to legal aid work and ‘lawyers on call’ thus arose from the legal industry’s focus on more profitable market segments at the expense of individual clients, the complexity of the law and the focus on specialised legal knowledge that now permeates the legal profession. Even though law students are trained to be generalists they often develop a specialised profile to meet the needs of the larger law firms (Kristiansen 2018; Rønning 2018). Furthermore, lawyers from larger law firms practising legal aid may be challenged by their limited knowledge of the complex legal aid schemes, unfamiliarity with client groups and lack of language skills (see eg Andenæs 2001). Another obstacle is low pay. The Norwegian Bar Association has argued that fixed fees undermine the quality of the legal aid scheme by encouraging lawyers to minimise the time devoted to cases or work without remuneration (Norwegian Bar Association 2015; see also Rønning 2018 and the England and Wales case study below). A Danish report has shown that the relatively few lawyers still participating in the legal aid scheme (fewer than one in five) do so in spite of the low fixed rates and time-consuming bureaucratic impediments, mainly because they view their contribution as pro bono work or know and sympathise with their clients’ legal needs (Danish Lawyers and the Danish Bar and Law Society 2011). Previously, work as ‘lawyers on call’ offered an opportunity to cultivate new client groups, but this is no longer true because solo practitioners and lawyers from smaller law offices are also more specialised, and their business model seldom appeals to the clientele of ‘lawyers on call’ (Kristiansen 2018). Simultaneously, rural areas face a severe need for competent legal aid lawyers and ‘lawyers on call’ (Hammerslev and Rønning 2018). A working group under the Danish Lawyers and the Danish Bar and Law Society (2016) has drawn up proposals to recruit more lawyers and assistant attorneys-at-law to participate in ‘lawyers on call’ by offering free courses that satisfy the postgraduate training requirements of assistant attorneys-at-law and lawyers who are or plan to be ‘lawyers on call’. Another suggestion is to certify ‘lawyers on call’ work as a postgraduate course. In summary, what remains of legal aid seems to be critically dependent on goodwill from regional solo practitioners and lawyers from smaller law offices, while strategies to recruit lawyers to legal aid work rely on appeals to their financial and educational interests rather than their sense of responsibility to facilitate and enhance access to justice. C.  Alternative Providers of Access to Justice In place of the former legal aid schemes, a plethora of alternative sources of legal advice and assistance have emerged. Some continue to rely on private lawyers, while others sideline lawyers and law firms in favour of different organisational and professional arrangements.

7 To become a qualified lawyer in Denmark one must hold a master’s degree in law, complete a three-year apprenticeship in a law firm as an assistant attorney-at-law which includes a law clerk programme, complete mandatory basic training and pass a bar exam.

Lawyers and Access to Justice  313 i.  Private Lawyers, LEI and Pro Bono Work More than 90 per cent of the Scandinavian populations have LEI as part of their household insurance policy, making it the primary source of legal assistance (Hammerslev and Rønning 2018).8 LEI mainly covers assistance in litigation and arbitration. In determining whether a complaint should be pursued, an insurance company will normally consult an external law firm with professional qualifications in the relevant legal area. However, many law firms decline to review LEI complaints, mainly because of their low profit margin. Those that do tend to be small businesses which, like their counterparts doing legal aid work, handle these cases because they understand their clients’ needs and feel a moral obligation, despite disagreements with the insurance companies about fees and administration. Lawyers find LEI cases administratively burdensome. More than one fifth of Danish lawyers undertaking LEI work reported arranging for clients to pay privately instead of using the insurance coverage (Danish Lawyers and the Danish Bar and Law Society 2011: 28). Thus, lawyers have resisted cooperation with LEI both by refusing to undertake this work and, when they do it, circumventing the scheme. Another shortcoming of the LEI schemes is that entire legal areas, such as property, succession and child custody, are not covered by insurance, while others like lost earning capacity, have limited coverage (Justitia 2016). In addition, policyholders are obliged to pay substantial amounts before insurance coverage begins and are often also required to pay for preliminary legal work and legal costs that exceed insurance coverage. Consequently, many low-income policyholders cannot afford to assert their rights and may, therefore, be in a worse position than those without LEI, who are entitled to free litigation aid (ibid). Another criticism is that LEI almost never covers pre-trial processes. Regardless of the need for help in naming, blaming and claiming before trial (Felstiner et al 1980; Olesen et al 2017) or the desirability of advice and assistance in resolving matters without going to court, this is unavailable from LEI (see eg Danish Lawyers and the Danish Bar and Law Society 2016; Swedish National Courts Administration 2009). It has therefore been argued that LEI not only contributes to unequal access to the courts but also creates an access to justice gap among the most disadvantaged (Justitia 2016). Pro bono legal work may fill some of the gap in access to justice, but even though Scandinavian Bar Associations encourage such work, this is not mandated, and pro bono culture is still in the process of development. The term ‘pro bono’ was not part of the Danish vocabulary until the early 2000s, after which the concept – heavily inspired by global AngloAmerican law firms – slowly took root in the larger Scandinavian firms, which systematised and professionalised their voluntary activities through pro bono budgets, programmes and policies and re-established their branding profiles (Olesen and Hammerslev forthcoming). Two business surveys of Norwegian law firms and lawyers showed that awareness of pro bono increased from about 65 per cent to 90 per cent between 2013 and 2015, and the number of pro bono hours increased. While only 25 per cent of firms with more than 50 lawyers performed an average of 150 hours of pro bono services in 2013, 92 per cent of those firms offered an average of 850 hours in 2015 (Norwegian Bar Association 2014; 2016). The surveys do not describe the types of pro bono work Norwegian lawyers perform. According to a qualitative analysis, it includes legal advice to national and international organisations, collegial work in the Bar Association, work for disciplinary councils, teaching and giving donations. It appears that the marketisation, globalisation and specialisation of legal services have also shaped the larger law firms’ voluntary strategies: highly specialised lawyers

8 This

is also true in Germany, which has the world’s largest LEI market.

314  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur devote their pro bono hours to larger organisations and associations rather than individuals. In 2009, the first Danish law firm included pro bono in its corporate social responsibility (CSR) programme to demonstrate its philanthropic contribution and central community priorities. This trend of interlinking pro bono and CSR while downgrading advice to individuals indicates a corporate focus, which is supported by the largest law firms’ collaborations and partnerships with local communities, educational institutions, and NGOs (Olesen and Hammerslev forthcoming). ii.  New Service Providers The significant drop in public expenditure on legal aid by lawyers in Denmark since 2006-2007 has been accompanied by a significant increase in public expenditure on legal aid offices staffed mainly by volunteer law students (Justitia 2019). Throughout Scandinavia, student-run legal aid clinics, membership organisations and NFP organisations seek to fill the gaps in access to justice for applicants no longer eligible for legal aid.9 As in the US, these entities often rely on a wide range of private funding sources and therefore are not bound by the same restrictions (on clients and cases) as the publicly-funded legal aid offices. Alternative suppliers can therefore provide legal and paralegal assistance to specific target groups through specialised outreach strategies without limitations on their work. One source of demand for assistance from legal aid offices has been the small claims court introduced in Denmark in 2008 (a similar initiative has been launched in Sweden). The court was intended to ensure easier access without a lawyer and to lower the cost of claims through a simplified procedure based on self-representation supplemented by directions and guidance from the court. This guidance, however, does not include support to complete the summons, with the result that legal aid offices face a bottleneck of requests for help with small-claim court cases. While legal aid offices mainly use volunteers with a law degree, membership organisations and NFP organisations deploy volunteers with a wide range of social and professional skills. A recent study found that Danish trade unions and health and refugee organisations offer legal advice primarily by social workers supplemented by law students, and occasionally by a single jurist10 or lawyer for specialised problems (Olesen and Hammerslev 2019). These trends suggest that social workers and law students are coming to dominate the pathways to justice at the expense of the legal profession. At the same time, there is no central coordination of the many initiatives offering fee-charging or free legal assistance and little information about their extent or quality (Kristiansen 2018; Johnsen 2009). D.  The Professional Response The major changes in Scandinavian legal aid schemes have been discussed and criticised by Bar Associations, Associations of Law Firms and judicial think tanks (see eg Regan 2003; Justitia 2019). For years, the Danish and Norwegian associations have tried to convince their respective parliaments to reform and simplify the legal aid systems (Norwegian Bar 9 For legal aid provision by NGOs and welfare organisations in other jurisdictions, see the country reports by Gibens et al Vol 1, ch 7; Kober Vol 1, ch 14; Vuković et al Vol 1, ch 17; Karekwaivanane Vol 1, ch 27. 10 Degrees and titles are discussed in Hammerslev Vol 1, ch 8.

Lawyers and Access to Justice  315 Association 2017; Danish Lawyers and the Danish Bar and Law Society 2016). Recently, the criticism of legal aid schemes and the social imbalance they cause have attracted political attention (Danish Lawyers and the Danish Bar and Law Society 2016: 3; Rønning 2018: 36), but no reforms have been enacted. Rather, it appears that the new legal aid providers are here to stay and are taking a leading role in filling the access to justice gaps. That mission calls for a strong civil society able to create a new space for generating legal assistance, a challenge for Scandinavian countries with long traditions of entrusting social responsibility to the public sector (Hammerslev and Rønning 2018; Enjolras and Strømsnes 2018). IV.  ENGLISH LAWYERS AND ACCESS TO JUSTICE

The legal aid scheme in England and Wales was initially established under the control of the private legal profession, but from the late 1980s the state has progressively asserted the right to define the meaning of access to justice and how it will be provided. This process has resulted in the transformation not only of the legal aid scheme but also of legal aid lawyers and their clients. Thirty years later, legal aid functions as a residual welfare benefit providing minimal legal assistance only to those judged to be the most needy, while questions of the meaning of access to justice and the role of lawyers in providing it remain unresolved. A.  The Quality Debate Under the legal aid scheme as originally established, lawyers provided the same services to privately paying and legally aided clients, leaving the quality of lawyering to be determined by traditional notions of professionalism. When the Legal Aid Board assumed the administration of legal aid in 1988, it introduced a range of efficiency measures under the aegis of New Public Management (a capped budget, franchising, fixed fees), but it also sought to ensure that these measures would not lower the quality of services. It has been argued, however, that the new quality assurance measures were destructive of both professional autonomy and the service ethos underpinning the quality of legal services. The standardised, auditable ‘transaction criteria’ on which quality assessments were based operated as a ‘mechanism of governance’ which ‘define[d] a new type of professional’ (Wall 1996: 115). They represented a ‘mechanistic, unidimensional vision of professional work’, a ‘supermarket’ as opposed to ‘craft shop’ model of practice (Sanderson and Sommerlad 2002: 1002, 1011), which neglected relational, creative and human dimensions of lawyering, ignored the complexity of poor people’s problems, and produced goal displacement and superficial compliance. The subsequent introduction of contracting after 1999 tightened central control over lawyers’ working practices and further challenged the lawyer-client relationship (Welsh 2016: 124–25, 132). This process was accompanied, and exacerbated, by a policy discourse which accused legal aid lawyers of putting their own financial and professional interests above those of their clients (Lewis 2000; Moorhead and Pleasence 2003: 3–4; see also Sommerlad 1999: 311; 2001: 350). One consequence of this ‘discourse of practitioner greed and mediocrity’ (Sommerlad 2004: 360) was the introduction of new service providers in the mid-1990s. Not-for-profit (NFP) advice agencies were seen to offer better value for money than solicitors and to take a broader, more holistic approach to clients in social welfare areas such as debt, employment and welfare

316  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur benefits (Moorhead et al 2003: 766–67). In family law, mediators were introduced as a means of reducing costs and better serving clients and their children by taking a conciliatory approach to disputes, rather than lawyers’ allegedly adversarial approach. B.  Supplier-Induced Demand The introduction of fiscal discipline in the late 1980s did not succeed in curbing the costs of the legal aid scheme. The continued rise in expenditure was attributed to supplier-induced inflation: the notion that lawyers were seeking to maintain a target income over time, by increasing either the amount of legally-aided work they undertook (where fees were fixed) or the amount of work done on cases, and hence the fees charged, where that was possible (Bevan 1996). This argument was taken as evidence that lawyers were milking the legal aid scheme by overservicing, a problem exacerbated by the ‘moral hazard’ of clients having no incentive to control the costs of their cases (Tata 2007: 490–93). The supplier-induced demand thesis was vigorously contested; and research demonstrated that much of the increase in costs was due to a plethora of new legislation and institutional changes in the criminal and civil justice systems resulting from government policy, well beyond the control of legal practitioners (Cape and Moorhead 2004; Moorhead 2004: 177–78). Nevertheless, ever more stringent measures to hold down costs were justified, and opposition stifled, by reference to the need to contain the rent-seeking behaviour of ‘fat cat lawyers’ (eg Sommerlad 2004: 163). This argument was also extended to the NFP agencies which had previously been seen as providing better value-for-money than lawyers but now were also accused of over-servicing and consequently subject to fixed fees and more stringent auditing, while face-to-face services began to be replaced with web-based information and telephone advice (Sommerlad 2008: 187; Sommerlad and Sanderson 2013: 310–11). As Tata has noted, however, the relationship between the client’s interest and lawyers’ selfinterest is ‘subtle and complex’ (2007: 494). Lawyers may seek to maximise their financial position without disadvantaging their clients; and if they do reduce the level of some kinds of service in response to fixed fees, it is not clear whether this represents a reduction of overservicing or a compromise in quality. Tata argues that the assumption that clients or cases have inherent and essential needs is sociologically unrealistic and that supply and demand are in fact mutually constitutive (ibid: 516–19). Nevertheless, as in the US and Scandinavian case studies, the trajectory of legal aid policy has increased state control over the definition of client needs – not only how services are delivered but also which services are delivered. This also has been evident, for example, in reductions in the number of contracted legal aid suppliers in the name of efficiency, resulting in ‘advice deserts’ and service gaps (Moorhead 2004: 162; National Audit Office 2014). In addition, areas of law have been progressively removed from the scope of the legal aid scheme, beginning with personal injury in 1999 and extending to large swathes of civil and family law in 2013. In each case, access to justice is supposedly provided by other means: conditional fee agreements for personal injury cases (see eg Higgins 2012; Sommerlad 2004: 361), legally-aided mediation in family law (see eg Hunter 2017b), and the new category of ‘exceptional case funding’, which in theory provides legal aid coverage in those ‘exceptional’ civil and family law cases where a failure to fund would result in a violation of the applicant’s human rights. Moreover, for a range of matters that remain within scope, clients are required to contact a telephone gateway before being referred for face-to-face advice and assistance. That these alternatives present major barriers to access to justice, with huge declines in take-up

Lawyers and Access to Justice  317 (Brookes and Hunter 2016; Logan Green and Sandbach 2016; House of Commons Justice Committee 2015; Law Society 2017; National Audit Office 2014), is attributed to the shortcomings of clients, not the system. C.  Redefining the Client In the limited neoliberal state, citizens are reconfigured as active consumers, and material inequality is depoliticised. The interests of taxpayer-citizens predominate, while welfare recipients who rely on public services but pay no tax are effectively excluded from citizenship. Hence, legal aid has been reframed in terms of affordability, and legal aid clients have been reconstructed as ‘flawed consumers’, irresponsible parasites gaining an unfair advantage over their opponents (Sommerlad 2004: 359; see also Sommerlad 2008: 181, 188). Legal aid has retreated from universalism to a residual scheme, which now caters only for the most marginalised, through the removals from scope described above and increased means testing. The process of residualisation (Crouch 2000) has been accompanied by abandonment of the quality control concerns which characterised the legal aid scheme in the 1990s and 2000s. For example, recent proposals to introduce price competition in the award of criminal legal aid contracts ignored potential impacts on quality (Smith and Cape 2017: 72; Welsh 2013: 29). Proposals in 2014 would have seen many criminal defendants lose their right to choose a representative, instead being allocated to one of a small number of contracted firms. As Sommerlad argues, the ‘true client’ of legal aid has become the taxpayer, while recipients have become the product, the ‘matters’ to be processed (Sommerlad 2004: 358; 2008: 188). ‘The logic of [neoliberalism] in the legal aid sector is to produce a market in rather than for clients, as the level of service judged applicable for these units of production is both standardised and set at a low level’ (Sommerlad 2001: 359). D.  Resistance and Accommodation Sustained cuts to legal aid rates (both erosion by inflation and actual reductions), deliberate reductions in the number of suppliers through franchising and contracting, and increasing transaction costs of administering legal aid contracts, have resulted in many solicitors’ firms giving up legal aid work, firms and NFPs closing, and rising concerns about the sustainability of the legal aid supplier base (Anonymous 2013; Black 2015; Brookes and Hunter 2016: 167–68; Burridge and Gill 2017: 28–29; Emmerson 2003; Law Society 2017: 14; Maclean and Eekelaar 2016: 19–20; Moorhead 2004: 162; Robins 2015; Smith and Cape 2017: 78; Young Legal Aid Lawyers 2013). For example, adjusted for inflation there was a 34 per cent reduction in the fees paid for civil legal aid between 1998/99 and 2017, while fees for criminal legal aid work were cut by 17.5 per cent in 2014–15 (Law Society 2017: 14; Smith and Cape 2017: 73). A report commissioned by the Ministry of Justice in 2013 found the financial position of many criminal legal aid solicitors’ firms to be ‘fragile’ and the supplier base ‘not financially robust’.11 And in 2014 the National Audit Office recommended that ‘The Ministry of Justice should develop its understanding of the challenges facing civil legal aid providers’ and should ‘use this improved understanding to ensure sustainability in the market’ (National Audit Office 2014: 8). 11 R (on the application of the Law Society), London Criminal Courts Solicitors’ Association v The Lord Chancellor [2015] EWCA Civ 230 [23].

318  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur Given that women and Black, Asian and minority ethnic (BAME) lawyers were over-represented as employees and partners of firms with legal aid contracts in the mid-late 2000s (Legal Services Research Centre 2009; Sommerlad et al 2013: 18), subsequent cuts and firm closures probably had a disproportionate impact on these groups. (Unfortunately, one by-product of the most recent reforms is that diversity statistics on legal aid suppliers are no longer published.) Certainly, aspiring lawyers joining legal aid firms receive some of the lowest training salaries, and the concentration of BAME trainees in such firms partially accounts for the observed pay gap between white and BAME trainees (Solicitors Regulation Authority 2017: 8–9, 28). Lawyers have resisted implementation of many proposed changes in their conditions of work, often through court challenges, which have enjoyed some success (eg Harris 2015: 268–69; Paterson 2012: 95; Smith and Cape 2017: 72–74; Welsh 2016: 129, 135)12 and, more recently, through direct strike action by criminal barristers and solicitors (Black 2015; Robins 2015). The ability to mobilise and resist, however, has been restricted by a number of factors: the risk of accusations that lawyers are simply defending their own comfortable livelihoods (Byrom 2017: 230), the limited scope of judicial review to address fundamental policy directions, and the fragmentation of the legal aid sector (between solicitors and barristers, civil and criminal lawyers), which impedes solidarity. More generally, however, legal aid lawyers have largely accommodated successive changes to the legal aid scheme by converting their business models from individualised client service to routinised volume processing (Moorhead 1998: 380; Sommerlad 2001: 350, 357–58; 2008: 179; Welsh 2016: 129, 222). While it is politically impossible for lawyers to oppose legal aid fee restrictions on the ground that the level of service they offer will suffer, several empirical studies have shown that the introduction of fixed fees and contractual risks of non-payment have indeed resulted in lawyers doing less work for individual clients, or lowering costs through greater use of paralegals, discontinuous service, less face-to-face contact and limitation of client choices (Barlow et al 2017: 92–94, 115; Burridge and Gill 2017: 35; Byrom 2017: 223–24; Fenn et al 2007: 678; Newman 2013: 83–84, 87–89, 107; Smith 2013: 911; Sommerlad 2001: 352; 2015: 261; Welsh 2016: 142, 217–20). Maximising income from legal aid under the franchising and contracting regimes required specialisation to achieve a sufficient volume of work to be economical (Flynn and Hodgson 2017: 2; Paterson 2012: 103), resulting in the rise of ‘conveyor-belt’ or ‘factory’ firms (Newman 2013; Sommerlad 1999: 313). Even while some lawyers continued to decry managerialism and assert their client focus and public service orientation, legal aid practice necessarily entailed the mass processing of clients (Newman 2013: 39, 58–59, 92–95). Ironically, having become specialised in legal aid work and hence dependent on legal aid payments, many firms found themselves bereft of clients and sufficient income following the latest round of reductions in rates, and unable to switch to other areas of work to make up the shortfall (Flynn and Hodgson 2017: 2; Paterson 2012: 103; see also Maclean and Eekelaar 2016: 46–47). Family law firms which previously relied on legal aid have adopted a range of imaginative strategies to stay in business, including fixed-price packages, unbundling, improved marketing, cutting overheads, pooling resources among firms, working with online providers, and providing new services such as mediation and life coaching (Maclean 2014: 179–81; 2015:

12 See also ibid, and R (on the application of Ben Hoare Bell Solicitors) v The Lord Chancellor [2015] EWHC 523 (Admin).

Lawyers and Access to Justice  319 329–30; 2016: 203; Maclean and Eekelaar 2016: 31, 47; Maclean and Eekelaar 2019: chapter 3). However, family law was always a mixed economy serving both private and legally-aided clients (together with child protection work which remains legally-aided). There is much less capacity for criminal or welfare lawyers to find a paying market for unbundled, fixed-price and tiered services (Low Commission 2014: 49). Moreover, these strategies are less helpful for more vulnerable clients with more complex problems (Maclean 2014: 181). E.  Rethinking Access to Justice Finding alternative ways for lawyers to stay in business is not the same as finding alternative ways to provide access to justice. This remains a work in progress, and efforts to date have been piecemeal and uncoordinated (Maclean and Eekelaar 2019). The spotlight has fallen on pro bono work, but this cannot possibly meet the demand; and it is politically problematic to suggest that pro bono might become a substitute for publicly-funded legal aid (ibid; Robins 2014; Yates 2016: 251). Commercial firms have universally rejected proposals that they contribute by sponsoring legal aid firms or paying a levy on turnover or on the salaries of high-earning lawyers (Anonymous 2013; Bindman 2016; Byrom 2017: 234). As observed in the Scandinavian case study, firms servicing corporate clients in the global economy are far removed from the concerns of individuals with welfare or family law problems. Some think tanks and consumer bodies have advocated the use of unregulated and semi- or unqualified providers, such as student law clinics and litigation assistants,13 to provide free or affordable help to those who would otherwise have none (see, eg Legal Services Consumer Panel 2014; Maclean and Eekelaar 2019; Smith and Cape 2017; Webley 2015: 317–19). But the notion that something is better than nothing is questionable, and the risks of predatory exploitation of desperate and vulnerable people are high (see, eg Hunter 2017a). Many initiatives have been developed to assist litigants in person to navigate the court system,14 including an entirely new online court for small civil claims (see also JUSTICE 2015; Yates 2016). Finally, some attention has been paid to the social reproduction of the legal aid sector. As seen in the previous case studies, recruiting new legal aid lawyers has been difficult due to high student debt, low salaries and the inability of many legal aid firms to offer training contracts (Byrom 2017: 226; Moorhead 2004: 180; Robins 2014). The Legal Services Commission introduced a scheme in the early 2000s to pay the training costs for graduates to work in welfare law. This was abolished by the Ministry of Justice in 2010 but has been revived by a coalition of charitable foundations to fund a handful of training places annually with leading community law organisations (Byrom 2017: 233; Emmerson 2003; Paterson 2012: 97). Nicolson (2015) has argued that law schools should be explicitly concerned to train lawyers for access to justice and suggests that volunteer work in law school clinics may have this virtuous effect while also fulfilling the neoliberal goal of enhancing students’ employability and transferrable skills (see also Albiston et al 2021). 13 These are known as ‘McKenzie Friends’ from the case in which the concept originated. As originally conceived, a McKenzie Friend was a lay assistant permitted to sit in court with a self-represented litigant, provide moral support, help organise paperwork and offer quiet advice. This has developed into a fee-charging service by people with some experience of litigation (often their own), incorporating these functions but adding help with preparing documents out of court and sometimes addressing the court on behalf of the litigant, without being subject to regulation or insurance requirements. 14 See eg https://atjf.org.uk/supporting-litigants-in-person.

320  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur V. CONCLUSION

The US, the Scandinavian countries and England and Wales entered the 1980s with very different state welfare systems, levels of public funding for legal aid and organisation of legal aid services. The retrenchment of legal aid in each case has been achieved by a variety of policy mechanisms: direct funding cuts, efficiency measures, regulatory changes, discursive denigration of legal aid lawyers and clients, the ‘targeting’ of public funding, restrictions on the scope of legal aid, making individuals responsible for solving their own legal problems, replacement of state-funded with marketised services (LEI), or simply leaving it to the market to provide. Yet common themes emerge across the case studies: the loss of legal professional monopolies on the provision and definition of access to justice; concerns about legal aid lawyers’ relationships with their clients and the quality of their services; obstacles to the social reproduction of legal aid lawyers; and the fragmentation and marketisation of access to justice. In each case, the legal profession’s responses have been shaped by wider professional changes, including the widening gap between globalised corporate law firms and local firms serving private clients and the effects of neoliberal ideology on the profession’s conception of its role vis-à-vis the state and the market, transmitted through law schools, lawyer organisations and law firm business models. The trends in the three case studies are exemplified in a recent OECD publication, which envisages a continuum of services contributing to access to justice, including legal aid, paralegals, law foundations and NGOs, pro bono lawyers, law and bar associations, community legal clinics and university student legal clinics. The major topics of discussion in relation to the role of lawyers in this assemblage concern the targeting of legal assistance to those in greatest need, unbundled services and the development of new financing models for legal services (OECD 2016: 10, 15–16, 18). In other words, lawyers are presented as problematically costly and hence as relatively marginal or residual players in the provision of access to justice. The three case studies show, however, that while the cost-conscious and dispersed provision of access to justice may be the way of the future, lawyers have played a role in resisting such moves and may also play an important role in the reconfiguration of legal aid systems. As such, access to justice remains a key site for the legal profession’s engagement with the state. At a national level, state and professional configurations of neoliberalism significantly affect the nature of that engagement and its results. REFERENCES Agell, J, Lindh, T and Ohlsson, H (1997) ‘Growth and the Public Sector. A Critical Review Essay’ 13(1) European Journal of Political Economy 33–52. Albiston, C, Cummings, SL and Abel, RL (2021) ‘Making Public Interest Lawyers in a Time of Crisis: An Evidence-Based Approach’ 34 Georgetown Journal of Legal Ethics 223–94. American Bar Association Standing Committee on Pro Bono and Public Service (2018) Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers (Chicago, ABA). Andenæs, K (2001) ‘Språk og rett – om utlendingers og språklige minoriteters møte med rettsvesenet’ in Juss-Bus (ed), Tvers igjennom lov til seier (Oslo, Unipax). Anonymous (2013) ‘The Secret Diary of a Legal Aid Solicitor: The Day-to-Day Story of a High Street Practitioner’ Legal Action (June). Antonsdottir, HF (2018) ‘Legal Aid in Iceland’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Barlow, A, Hunter, R, Smithson, J and Ewing, J (2017) Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Basingstoke, Palgrave Macmillan).

Lawyers and Access to Justice  321 Bevan, G (1996) ‘Has There Been Supplier-Induced Demand for Legal Aid?’ 15 Civil Justice Quarterly 98–114. Bindman, G (2016) ‘For the Good of the Profession’ 166 (7684) New Law Journal 8. Black, J (2015) ‘Dispatches from the Legal Aid Front’ Solicitors Journal 22 December. Bonoli, G, Vic, G and Taylor-Gooby, P (2000) European Welfare Futures. Towards a Theory of Retrenchment (Cambridge, Polity Press). Botheim, I, Hyllseth, E and Vik, G (2008) Kartlegging av rådgivnings-og konfliktløsningstilbudet i Norge (Oslo, Direktoratet for forvaltning og IKT). Boutcher, S (2013) ‘Lawyering for Social Change: Pro Bono Publico, Cause Lawyering, and the Social Movement Society’ 18 Mobilization 179–196. Brookes, A and Hunter, C (2016) ‘Complexity, Housing and Access to Justice’ in E Palmer, T Cornford, A Guinchard and Y Marique (eds), Access to Justice: Beyond the Policies and Politics of Austerity (Oxford, Hart Publishing). Burridge, A and Gill, N (2017) ‘Conveyor-Belt Justice: Precarity, Access to Justice and Uneven Geographies of Legal Aid in UK Asylum Appeals’ 49(1) Antipode 23–42. Byrom, N (2017) ‘Cuts to Civil Legal Aid and the Identity Crisis in Lawyering: Lessons from the Experience of England and Wales’ in A Flynn and J Hodgson (eds), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford, Hart Publishing). Cape, E and Moorhead, R (2004) Demand Induced Supply? Identifying Cost Drivers in Criminal Defence Work (A Report to the Legal Services Commission) (London, Legal Services Research Centre). Carpenter, AE, Mark, A and Shanahan, CF (2017) ‘Trial and Error: Lawyers and Nonlawyer Advocates’ 42(4) Law & Social Inquiry 1023–57. Carson, Clara N with Park, J (2012) The Lawyer Statistical Report: The Legal Profession in 2005 (Chicago, American Bar Foundation). Chambliss, E (2017) ‘The Demographics of the Profession’ in E Chambliss et al (eds), IILP Review 2017: The State of Diversity and Inclusion in the Legal Profession (Chicago, Institute for Inclusion in the Legal Profession). Christiansen, NF, Peterson, K, Edling, N and Haave, P (2006) The Nordic Model of Welfare (Copenhagen, Museum Tusculanum Press). Crouch, C (2000) Coping with Post-Democracy (London, Fabian Society). Cummings, SL and Sandefur, RL (2013) ‘Beyond the Numbers: What We Know – and Should Know – About American Pro Bono’ 7 Harvard Law and Policy Review 83–111. Danish Bar and Law Society [Advokatsamfundet] (2011) Rapport om Advokatvagter i Danmark. Danish Lawyers and the Danish Bar and Law Society [Danske Advokater og Advokatsamfundet] (2011) Advokaters syn på Offentlig retshjælp ved advokat, Fri process, Retshjælpsforsikring. —— (2012) Retshjælpen i nød? En analyse af udviklingen siden 2007 og dens konsekvenser (Copenhagen, Copenhagen Economics). —— (2016) Rapport om retshjælp. Dinovitzer, R, Garth, BG, Sander, R, Sterling, J and Wilder, GZ (2004) After the JD: First Results of a National Study of Legal Careers (Overland Park, KS and Chicago, NALP Foundation and American Bar Foundation). Dinovitzer, R, Nelson, RL, Plickert, G, Sandefur, R and Sterling, JS, with Garth, BG, Hagan, J, Wilder, GZ and Wilkins, DB, with the assistance of Cobb, CL III (2009) After the JD: Second Results of a National Study of Legal Careers (Overland Park, NALP Foundation and Chicago, American Bar Foundation). Emmerson, D (2003) ‘The Future for Legal Aid Family Lawyers’ 33 Family Law. Engler, R (2010) ‘Connecting Self-Representation to Civil Gideon: What Existing Data Reveal about when Counsel Is Most Needed’ 37 Fordham Urban Law Journal 37–91. Enjolras, B and Strømsnes, K (2018) Scandinavian Civil Society and Social Transformations: The Case of Norway (Cham, Springer International Publishing). Epstein, CF (1999) ‘Knowledge for What?’ 49 Journal of Legal Education 41–49. Erikson, R, Hansen, EJ, Stein, R and Uusitalo, H (1987) The Scandinavian Model: Welfare States and Welfare Research (New York, ME Sharpe).

322  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur Erlanger, HS, Cahill, M, Epp, CR and Haines, KM (1996) ‘Law Student Idealism and Job Choice: Some New Data on an Old Question’ 30 Law & Society Review 851–64. Esping-Andersen, G (1990) The Three Worlds of Welfare Capitalism (Cambridge, Polity Press). European Parliament, Directorate-General for Internal Policies, Policy Department C: Citizens Rights and Constitutional Affairs (2017) Effective Access to Justice: Study for the Peti Committee (Luxembourg, European Parliament). Felstiner, WLF, Abel, RL and Sarat, A (1980) ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …’ 15 Law & Society Review 631–54. Fenn, P, Gray, A and Rickman, N (2007) ‘Standard Fees for Legal Aid: An Empirical Analysis of Incentives and Contracts’ 59 Oxford Economic Papers 662–81. Flynn, A and Hodgson, J (2017) ‘Access to Justice and Legal Aid Cuts: A Mismatch of Concepts in the Contemporary Australian and British Legal Landscapes’ in A Flynn and J Hodgson (eds), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford, Hart Publishing). Granfield, R and Koenig, T (1992) ‘The Fate of Elite Idealism: Accommodation and Ideological Work at Harvard Law School’ 39 Social Problems 315–31. Hadfield, G (2010) ‘Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans’ 37 Fordham Urban Law Journal 129–56. Hagan, M (2019) ‘Participatory Design for Innovation in Access to Justice’ 148 Daedalus 120–27. Hammerslev, O (2003) Danish Judges in the 20th Century: A Socio-Legal Study (Copenhagen, DJØF Publishing). Hammerslev, O and Rønning, OH (2018) Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Harris, PG (2015) ‘Casualties of Friendly Fire: Counter Productive Campaigning on Public Funded Legal Services’ in M Maclean, J Eekelaar and B Bastard (eds), Delivering Family Justice in the 21st Century (Oxford, Hart Publishing). Heinz, JP and Laumann, EO (1994) Chicago Lawyers: The Social Structure of the Bar (Chicago, Northwestern University Press). Henrichsen, C (2019) ‘Velfærdssamfundets krise – kommunerne, den offentlige velfærd og borgernes sikkerhed’ 34 Samfundslederskab i Skandinavien 101–20. Higgins, A (2012) ‘Referral Fees: The Business of Access to Justice’ 32 Legal Studies 109–31. House of Commons Justice Committee (2015) Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (8th report of session 2014–15, HC 311) (London, The Stationery Office). Houseman, A (2015) ‘Civil Legal Aid in the United States: An Update for 2015’ (Washington DC, Consortium for National Equal Justice Library). Hunter, R (2017a) ‘Paid McKenzie Friends: The Case for Regulation’ 47 Family Law 13–17. —— (2017b) ‘Inducing Demand for Family Mediation: Before and After LASPO’ 39 Journal of Social Welfare and Family Law 189–202. Jensen, C (2017) Velfærd (Aarhus, Universitetsforlag). Johnsen, JT (1994) ‘Nordic Legal Aid’ 5 Maryland Journal of Contemporary Legal Issues 301–31. —— (1999) ‘Progressive Legal Services in Norway?’ 6 International Journal of the Legal Profession 261–310. —— (2006) ‘How Has the Complexity of the Law and the Market for Legal Expertise Impacted on the Development of Legal Aid in Norway?’ 13 International Journal of the Legal Profession 19–39. —— (2009) Hva kan vi lære av finsk rettshjelp? En sammenligning av rettshjelpsordningene i Norge og Finland (Oslo, Justis- og Politidepartementet). Johnson, E (2013) To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States [3 volumes] (Santa Barbara, ABC-CLIO). JUSTICE (2015) Delivering Justice in an Age of Austerity (London, JUSTICE). Justitia (2016) Analyse: Fri proces – har danskerne reelt adgang til domstolene? (Copenhagen, Justitia). —— (2019) Den danske retshjælpsmodel Retshjælp, retshjælpsforsikring og fri proces (Copenhagen, Justitia). Kangas, O and Palme, J (eds) (2005) Social Policy and Economic Development in the Nordic Countries (Basingstoke, Palgrave Macmillan and UNDRISD).

Lawyers and Access to Justice  323 Kilian, M and Regan, F (2004) ‘Legal Expenses Insurance and Legal Aid – Two Sides of the Same Coin? The Experience from Germany and Sweden’ 11 International Journal of the Legal Profession 233–55. Kolstrup, S (2014) Den danske velfærdsmodel 1891–2011 – sporskifter, motiver, drivkræfter (Copenhagen, Frydenlund). Kristiansen, BL (2018) ‘Legal Aid in Denmark’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Kuehn, RR, Santacroce, DA, with Reuter, M and Schechter, S (2017) The 2016–17 Survey of Applied Legal Education (Ann Arbor, Center for the Study of Applied Legal Education). Law Society of England and Wales (2017) Access Denied? LASPO Four Years On: A Law Society Review (London, Law Society). Legal Services Consumer Panel (2014) Fee-Charging McKenzie Friends (London, Legal Services Board). Legal Services Corporation (2015) Grant Services Reports (Washington DC, Legal Services Corporation). —— (2017) 2017 Justice Gap Report: Measuring the Civil Legal Needs of Low-Income Americans (Washington DC, Legal Services Corporation). Legal Services Research Centre (2009) Routine Diversity Monitoring of the Supplier Base (London, Legal Services Commission). Lewis, P (2000) Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (London, Lord Chancellor’s Department). Logan Green, L and Sandbach, J (2016) ‘Justice in Free Fall: A Report on the Decline of Civil Legal Aid in England and Wales’ Legal Action (December). Low Commission on the Future of Advice and Legal Support (2014) Tackling the Advice Deficit: A Strategy for Access to Advice and Legal Support on Social Welfare Law in England and Wales (London, Legal Action Group). Maclean, M (2014) ‘The Changing Professional Landscape’ 44 Family Law 177–82. —— (2015) ‘New Ways to Seek Legal Information and Advice on Family Matters in England and Wales: From Professional Legal Services to Google and Private Ordering’ in M Maclean, J Eekelaar and B Bastard (eds), Delivering Family Justice in the 21st Century (Oxford, Hart Publishing). —— (2016) ‘Renegotiating Family Justice’ in E Palmer, T Cornford, A Guinchard and Y Marique (eds), Access to Justice: Beyond the Policies and Politics of Austerity (Oxford, Hart Publishing). Maclean, M and Eekelaar, J (2016) Lawyers and Mediators: The Brave New World of Services for Separating Families (Oxford, Hart Publishing). —— (2019) After the Act: Access to Family Justice After LASPO (Oxford, Hart Publishing). McGill, C (2006) ‘Educational Debt and Law Student Failure to Enter Public Service Careers: Bringing Empirical Data to Bear’ 31 Law & Social Inquiry 677–708. Mentor, KW and Schwartz, RD (2014) ‘A Tale of Two Offices: Adaptation Strategies of Selected LSC Agencies’ 21 Justice System Journal 143–69. Mertz, E (2007) The Language of Law School: Learning to ‘Think Like a Lawyer’ (New York, Oxford University Press). Ministry of Social Affairs and the Interior (2019) Omgørelsesprocenter på socialområdet 2018. Moorhead, R (1998) ‘Legal Aid in the Eye of a Storm: Rationing, Contracting and a New Institutionalism’ 25 Journal of Law and Society 365–87. —— (2004) ‘Legal Aid and the Decline of Private Practice: Blue Murder or Toxic Job?’ 11 International Journal of the Legal Profession 159–90. Moorhead, R and Pleasence, P (2003) ‘Access to Justice after Universalism: Introduction’ 30 Journal of Law and Society 1–10. Moorhead, R, Sherr, A and Paterson, A (2003) ‘Contesting Professionalism: Legal Aid and Nonlawyers in England and Wales’ 37 Law and Society Review 765–808. Muther, PS (1975) ‘The Reform of Legal Aid in Sweden’ 9 International Lawyer 475–98. National Audit Office (2014) Implementing Reforms to Civil Legal Aid (London, National Audit Office). Newman, D (2013) Legal Aid Lawyers and the Quest for Justice (Oxford, Hart Publishing). Nicolson, D (2015) ‘Legal Education, Ethics and Access to Justice: Forging Warriors for Justice in a Neo-liberal World’ 22 International Journal of the Legal Profession 51–69.

324  Rosemary Hunter, Annette Olesen and Rebecca L Sandefur Nielsen, SPP and Hammerslev, O (2018) ‘Gadejuristen [The street lawyers]: Offering Legal Aid to Socially Marginalized People’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Norwegian Bar Association [Den norske Advokatforening] (2014) Rapport fra Bransjeundersøkelsen 2014. —— (2015) Krav og varsel om aksjon. —— (2016) Rapport fra Bransjeundersøkelsen 2016. —— (2017) Rapport om fremtidens fri rettshjelpsordning. OECD and Open Society Foundations (2016) Leveraging the SDGs for Inclusive Growth: Delivering Access to Justice for All (Issues Brief) (Paris, OECD). Olesen, A and Hammerslev, O (2019) ‘Nye udbydere af retshjælp i Danmark’ in K Dahlstrand et al (eds), Festskrift till Håkan Hydén (Lund, Juristförlaget). —— (forthcoming) ‘Legal Pro Bono Work in Denmark’ in SL Cummings, FSE Silva and L Trubek (eds), Global Pro Bono: Causes, Context, and Contestation (Cambridge, Cambridge University Press). Olesen, A, Nielsen, SPP and Hammerslev, O (2017) ‘Gadejura – kunsten at fremelske gadefolkets oplevelse af at bære rettigheder’ in NJ Clausen et al (eds), Festskrift til Hans Viggo Godsk Pedersen (Copenhagen, Jurist-og Økonomforbundet). Paterson, A (2012) Lawyers and the Public Good: Democracy in Action (Cambridge, Cambridge University Press). Pleasence, P and Balmer, N (2018) Legal Needs Surveys and Access to Justice (Paris, OECD). Powell, R (2001) ‘FACT SHEET: The Restriction Barring LSC-Funded Programs from Freely Using Their Non-LSC Money’ (New York, The Brennan Center, New York University Law School). Regan, F (2003) ‘The Swedish Legal Services Policy Remix: The Shift from Public Legal Aid to Private Legal Expense Insurance’ 30 Journal of Law and Society 49–65. Rhode, DL (2005) Pro Bono in Principle and in Practice (Stanford, Stanford University Press). Rissanen, A (2018) ‘Legal Aid in Finland’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Robins, J (2014) ‘A Complex State of Affairs’ 164 (7590) New Law Journal 7. —— (2015) ‘Breaking Point’ 165 (7679) New Law Journal 7. Rønning, OH (2018) ‘Legal Aid in Norway’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Rønning, OH and Bentsen, HK (2008) Bruken av unntaksbestemmelsene i lov om fri rettshjelp (Oslo, det juridiske fakultet, Universitetet i Oslo). Sandefur, RL (2009) ‘Lawyers’ Pro Bono Service and Market-Reliant Legal Aid’ in R Granfield and L Mather (eds), Private Lawyers in the Public Interest (New York, Oxford University Press). —— (2016) ‘What We Know and Need to Know about the Legal Needs of the Public’ 67 University of South Carolina Law Review 443–60. —— (2019) ‘Legal Tech for Nonlawyers: Report of the Survey of US Legal Technologies’ (Chicago, American Bar Foundation). Sandefur, RL and Clarke, TM (2016) ‘Designing the Competition: A Future of Roles beyond Lawyers? The Case of the USA’ 67 Hastings Law Journal 1467–92. Sandefur, RL and Selbin, J (2009) ‘The Clinic Effect’ 16 Clinical Law Review 57–107. Sandefur, RL and Smyth, AC (2011) Access across America: First Report of the Civil Justice Infrastructure Mapping Project (Chicago, American Bar Foundation). Sanderson, P and Sommerlad, H (2002) ‘Exploring the Limits to the Standardization of the Expert Knowledge of Lawyers: Quality and Legal Aid Reforms in the United Kingdom’ 52 Syracuse Law Review 987–1016. Schleef, DJ (2005) Managing Elites: Professional Socialization in Law and Business Schools (Lanham, MD, Rowman and Littlefield). Schoultz, I (2018) ‘Legal Aid in Sweden’ in O Hammerslev and OH Rønning (eds), Outsourcing Legal Aid in the Nordic Welfare States (Basingstoke, Palgrave Macmillan). Shdaimah, CS (2009) Negotiating Justice: Public Interest Lawyering, Low-Income Clients, and the Pursuit of Social Justice (New York, NYU Press).

Lawyers and Access to Justice  325 Smith, L, Hitchings, E and Sefton, M (2017) A Study of Fee-Charging McKenzie Friends and Their Work in Private Family Law Cases (Cardiff, University of Cardiff). Smith, T (2013) ‘Trust, Choice and Money: Why the Legal Aid Reform “U-Turn” is Essential for Effective Criminal Defence’ 2013 Criminal Law Review 906–13. Smith, T and Cape, E (2017) ‘The Rise and Decline of Criminal Legal Aid in England and Wales’ in A Flynn and J Hodgson (eds), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford, Hart Publishing). Solicitors Regulation Authority (2017) Impact Assessment of the Deregulation of the Prescribed SRA Trainee Minimum Salary (Birmingham, Solicitors Regulation Authority). Sommerlad, H (1999) ‘The Implementation of Quality Initiatives and the New Public Management in the Legal Aid Sector in England and Wales: Bureaucratisation, Stratification and Surveillance’ 6 International Journal of the Legal Profession 311–43. —— (2001) ‘“I’ve Lost the Plot”: An Everyday Story of Legal Aid Lawyers’ 28 Journal of Law and Society 335–60. —— (2004) ‘Some Reflections on the Relationship between Citizenship, Access to Justice and the Reform of Legal Aid’ 31 Journal of Law and Society 345–68. —— (2008) ‘Reflections on the Reconfiguration of Access to Justice’ 15 International Journal of the Legal Profession 179–93. Sommerlad, H and Sanderson, P (2013) ‘Social Justice on the Margins: The Future of the Not for Profit Sector as Providers of Legal Advice in England and Wales’ 35 Journal of Social Welfare and Family Law 305–27. Sommerlad, H, Webley, L, Duff, L, Muzio, D and Tomlinson, J (2013) Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barriers and Individual Choices (London, Legal Services Board). Southworth, A (1996) ‘Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers’ Norms’ 9 Georgetown Journal of Legal Ethics 1101–55. Steinberg, JK (2011) ‘In Pursuit of Justice: Case Outcomes and the Delivery of Unbundled Legal Services’ 18 Georgetown Journal on Poverty Law & Policy 453–506. Stover, RV and Erlanger, HS (1989) Making It and Breaking It (Urbana-Champaign, IL, University of Illinois Press). Swedish National Courts Administration (2009) Översyn av rättshjälpslagen – ett regeringsuppdrag (Jönköping, Domstolsverket rapportserie 2009:2). Tata, C (2007) ‘In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and “Ethical Indeterminacy” in Criminal Defence Work’ 34 Journal of Law and Society 489–519. Udell, D (1998) ‘The Legal Services Restrictions: Lawyers in Florida, New York, Virginia and Oregon Describe the Costs’ 17 Yale Law and Policy Review 337–68. Wall, D (1996) ‘Keyholders to Criminal Justice? Solicitors and Applications for Criminal Legal Aid’ in R Young and D Wall (eds), Access to Criminal Justice: Legal Aid, Lawyers and the Defence of Liberty (London, Blackstone Press). Webley, L (2015) ‘When is a Family Lawyer a Lawyer?’ in M Maclean, J Eekelaar and B Bastard (eds), Delivering Family Justice in the 21st Century (Oxford, Hart Publishing). Welsh, L (2013) ‘Does Tendering Create Travesties of Justice?’ 93 Criminal Justice Matters 28–29. —— (2016) ‘Magistrates, Managerialism and Marginalisation: Neoliberalism and Access to Justice in East Kent’ (PhD thesis, University of Kent). White, LE (1990) ‘Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hearing of Mrs G’ 38 Buffalo Law Review 1–58. Yates, P (2016) ‘CourtNav and Pro Bono in an Age of Austerity’ in E Palmer, T Cornford, A Guinchard and Y Marique (eds), Access to Justice: Beyond the Policies and Politics of Austerity (Oxford, Hart Publishing). Young Legal Aid Lawyers (2013) Social Mobility and Diversity in the Legal Aid Sector: One Step Forward, Two Steps Back (London, Young Legal Aid Lawyers). Zorza, R and Udell, D (2014) ‘New Roles for Non-Lawyers to Increase Access to Justice’ 41 Fordham Urban Law Journal 1259–1315.

326

14 Cause Lawyering in Conflicted, Authoritarian and Transitional Societies Politics, Professionalism and Gender ANNA BRYSON, KIERAN McEVOY AND ALEX BATESMITH

I. INTRODUCTION

T

he classical western sociological view of lawyers rested on claims to ‘political neutrality and social detachment’ (Sommerlad and Hammerslev Vol 1, ch 1: 1). Building on the pioneering work of Abel and Lewis (1988a; 1988b; 1989b), this chapter employs an explicitly engaged sociology of lawyers to explore the intersection between politics, professionalism and gender for cause lawyers. Because the bulk of the cause lawyering scholarship during the last 30 years has been based on the experience of settled democracies, we begin with an overview of its key themes. Drawing on an international comparative research project, we then focus on the particular challenges for cause lawyers in conflicted, authoritarian and transitional contexts. In an attempt to redress the literature’s disproportionate focus on male cause lawyers and ‘masculine’ causes we consider the relationship between gender and cause lawyering in these contexts. Informed mainly by our interviews with female cause lawyers, we reflect on how gender affects professional identity as well as strategies, tactics and relations with social or political movements. We also look at the ways in which female cause lawyers manage the paradoxical opportunities and challenges presented by conflict and transition and engage with competing understandings of struggle (eg the relationship between the gender equality movement and the struggle against apartheid or the Israeli occupation). To conclude, we reflect on how cause lawyers strive, in exceptionally difficult circumstances, to reimagine, reshape and reconfigure the law. II.  CAUSE LAWYERING IN SETTLED DEMOCRACIES

Research on lawyers and social change can be traced to the early twentieth century (Krishnan 2006; see also Hurst 1950; Vose 1959). The theoretical foundations of cause lawyering have included socio-legal literature on access to justice (Cappelletti 1979), professional identities (Larson 1977), the sociology of the professions (Riesman 1951, Johnson 1972) and strategic litigation (Vose 1958). Critical discussion of cause lawyering, however, was only beginning to bear scholarly fruit as the first ‘Lawyers in Society’ volumes were published in 1988/89

328  Anna Bryson, Kieran McEvoy and Alex Batesmith (eg O’Connor 1980; Katz 1982; Barkan 1984). Since then it has emerged as one of the richest streams in socio-legal studies. The prominent role of lawyers in the civil rights movement sparked sustained interest in cause lawyering in the US (McCann 1994; Sarat and Scheingold 1998; 2001; 2004; 2005; 2006; 2008; Krishnan 2006). That focus has since expanded to the UK (Meili 2013), France (Kawar 2011), India (Krishnan 2005), Thailand (Munger 2015), Latin America (Pérez-Perdomo 2008), and elsewhere. Scholarship has addressed the relationship between cause lawyers, social movements and civil society as well as other legal actors including judges, legal academics and university law clinics, and the identity and motivation of those who perform this type of legal work (Eagly 2012; Halliday et al 2007). As the literature has grown, definitions and typologies have been contested and revised.1 Recognising the need to account for diverse historical, legal and cultural contexts, Sarat and Scheingold (1998: 5) argued for a cross-cultural and comparative perspective. Our research embraces that challenge, but before attempting to ‘make sense of difference’ (Nelken 2010) in our comparative data it is necessary to establish some definitional parameters.2 We regard cause lawyering as a form of ‘moral activism’ which involves ‘using legal skills to pursue ends and ideals that transcend client service’ (Sarat and Scheingold 2004: 3–4). In contrast to more conventional lawyering, cause lawyering ‘implies agency and consciousness, political identification, social solidarity and goals’ (Hajjar 2005: 154). Rather than only deploying technical legal skills, it seeks to use law ‘as a vehicle through which to build a better society’ (McEvoy and Rebouche 2007: 305). This commitment to the promotion of a moral, social or economic cause reconstitutes cause lawyers as ‘essentially political actors – albeit ones whose work involves doing law’ (Boukalas 2013: 396; see also Sarat and Scheingold 2004: 15–17). In contrast to other lawyers’ claims to be a neutral ‘hired gun’ (Spaulding 2003), cause lawyers typically ‘take sides’ (Sarat and Scheingold 2004: 9; see also Sterett 1998; Simon 1984) and identify with their client’s cause. Research by McConville et al (1994) has highlighted the disturbing degree to which clients in criminal cases are dependent on their lawyers. In the case of cause lawyering the balance of power less obviously favours the lawyer. Indeed, a central concern for cause lawyers is how politically motivated engagement squares with the idea of legal professionalism. The ethical challenges of a commitment to ‘non-client’ goals distinguish cause lawyers both in theory and practice (McEvoy 2011; 2019). They may accept work that is less well compensated and involves personal, physical, economic and social status risk (Menkel-Meadow 1998; Sfard 2009), particularly if clients (and their movements) were involved in armed struggle. While cause lawyering was originally viewed as primarily affiliated to left-wing causes, it now also embraces right-leaning causes such as advocacy against abortion and for gun ownership in the US, the rights of Israeli settlers, and even state agencies (Southworth 2008; Bob 2012; Dudai 2017; Dotan 2014). A key challenge for cause lawyers is how to manage relationships not only with clients but also with the organisations or civil society groups to which they belong. It is unsurprising, therefore, that a significant theme in the literature is the relationship between cause lawyers and social movements (McCann 1994; Sarat and Scheingold 2004; 2006). Significant sub-themes include tensions between serving the interests of individual clients and those of the movement and the risk that lawyers may dominate such movements (diverting resources and energy from other potentially more transformative forms of social and political struggle). Other work (eg Tam 2010) has unpacked the complex web of factors shaping the professional and 1 For a typology of cause lawyers in conflicted, authoritarian or transitional societies see McEvoy 2019. 2 Recognising the contested nature of the concept, Sarat and Scheingold (1998: 5) posit that it is more appropriate to speak of ‘the parameters rather than the definition of cause lawyering’.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  329 moral framework within which cause lawyers act and the range of approaches and structures they adopt, from reformist to radical sole practitioner to grassroots collaborator.3 Because self-identification as a cause lawyer does not necessarily dissolve pre-existing commitments it is common to find ethnic, religious and political demarcations within their ranks.4 Cause lawyering is not necessarily a ‘label for life’. A particular event – such as the Grenfell Tower fire in London – may inspire conventional lawyers to adapt their tactics to suit that cause.5 Afterwards, cause lawyers may return to commercial or private practice. National legal cultures may also have their own terminology for such lawyers. In Indonesia, lawyers who commit to political and social change are called aktivis or aktivis hokum (activist or legal activist) (Lindsey and Crouch 2013: 623). In South Africa, they are ‘struggle lawyers’ (from the anti-apartheid legacy), in Israel ‘ideological lawyers’. In many conflict or postconflict sites, including Northern Ireland, the preferred term is human rights lawyer (McEvoy 2011). Although they may not identify as ‘cause lawyers’, the work of lawyers affiliated to UK Law Centres (who routinely provide their services free) and other organised pro bono institutions resonates strongly with our notion of a commitment to broader social and political causes (Byles and Morris 1977; Cummings 2004). III.  CAUSE LAWYERING IN CONFLICTED AND AUTHORITARIAN SOCIETIES

Although most recent cause lawyering scholarship has focused on settled democracies, there is a growing literature on cause lawyering in conflicted, authoritarian and transitional societies (eg Bisharat 1989; Sarat and Scheingold 2001; Hajjar 2005; Halliday et al 2007; Tam 2013; Stern 2016), exploring themes such as legal strategies, relations with the state, conventional lawyers, and social movements (Sfard 2018). Our research has sought to develop that work by focusing on the relationship between cause lawyers and political movements, including those engaged in political violence (Bryson and McEvoy 2016; McEvoy 2019). With Louise Mallinder, we conducted over 130 interviews in 2014/15 in South Africa, Israel/ Palestine, Cambodia, Chile, and Tunisia, with 92 lawyers (mostly former cause lawyers), 20 legal academics, 10 judges, as well as human rights or NGO activists, politicians, officials, journalists, civil society actors and former political prisoners.6 The six jurisdictions were chosen to facilitate ‘structured, focused comparisons’ of theoretical themes (Patrick 2006). They had: (a) a history of violence, authoritarianism or political transition; (b) legal systems based on the principal ‘legal families’ (common, civil, and Islamic law, as well as Asian and African legal traditions); (c) a tradition of cause lawyering; and (d) in the case of the post-conflict and post-authoritarian sites, diverse transitional justice mechanisms (eg domestic trials, truth

3 Luban (2012) divided cause lawyers into radical and reformist. McCann and Silverstein (1998) distinguished between ‘staff technicians’, ‘staff activist lawyers’, ‘hired guns’ and ‘non-practicing’ lawyers. Hilbink (2004) proposed a tripartite typology (proceduralist, elite/vanguard and grass roots), each further demarcated by their views of the legal system, cause, and client. 4 For example, Indonesian cause lawyers display many of the society’s wider ethnic, religious and political cleavages (Lindsey and Crouch 2013). South African cause lawyers include members of the Black Lawyers Association and the South African Women’s Lawyers Association. 5 At a public inquiry into this tragedy, the worst UK residential fire since World War II, many bereaved families have been represented by Michael Mansfield QC, one of the UK’s best-known human rights barristers. Other victims were represented by more conventional criminal defence, public law, housing and personal injury lawyers. 6 Funding was provided by the Economic and Social Research Council (ES/J009849/1). We acknowledge Louise’s friendship, help and support and thank all those who agreed to be interviewed. For further information see https:// lawyersconflictandtransition.org.

330  Anna Bryson, Kieran McEvoy and Alex Batesmith commissions, amnesty processes, recourse to international tribunals). An interview schedule mapped the broader theoretical themes, with adaptations for each site. Forty interviewees were female.7 A purposeful sampling methodology was employed to identify a diverse range of lawyers based on professional seniority, experience of politically contentious cases, and relations with a diverse spectrum of political and civil society organisations and perspectives (see O’Donovan-Polten 2001). These data were coded and analysed in light of our interdisciplinary literature review on cause lawyers, conflict and transitional justice. While transitional justice scholars and activists are sometimes accused of exaggerating the ‘exceptional’ nature of the field (Posner and Vermeule 2004), the sites chosen were indisputably difficult for cause lawyers. Those that we interviewed had all encountered state violence or authoritarianism as well as deeply engrained suspicions from state authorities and mainstream legal professionals. Some had also experienced significant levels of non-state violence, including ‘armed struggle’ against the various regimes. Those challenging environments inevitably shaped the practice and self-image of cause lawyers as well as their relations with the legal system, other lawyers, and clients and their affiliated movements. One prominent feature of the lives of cause lawyers in conflicted and authoritarian societies is the intensity of their professional and ethical challenges. There is ample research on the meaning of professionalism for professionals in general (eg Freidson 1994; Evetts 2003; Dent et al 2016) and lawyers in particular (Abel 1989; Hanlon 1998; Seron 2007). In some conflicted or authoritarian contexts (eg South Africa during apartheid) the law was a tool of repression, injustice and discrimination (eg Ellmann 1992; Abel 1995). In such circumstances, as one South African cause lawyer explained: ‘Your real allegiance should be to the rule of law, not to an unjust law’.8 Cause lawyers may also face harassment from hostile state actors; and conventional lawyers and the local bar could be indifferent or hostile (McEvoy and Rebouche 2007; Batesmith and Stevens 2019). Many cause lawyers had to manage complex relations with politically motivated clients and their affiliated movements. Cause lawyers in South Africa, Israel/ Palestine and Chile had all represented clients who engaged in political violence for objectives with which the lawyers sympathised. Lawyers affiliated with a political or military struggle deployed a wide spectrum of approaches and styles of engagement. Some were prepared to break the law to achieve a political goal,9 but few appeared willing to abandon their commitment to some version of the rule of law.10 Given the widespread distrust of their own bar associations,11 many cause lawyers we interviewed developed their own version of ‘struggle ethics’ to provide a roadmap to appropriate professional standards and advice on strategy and tactics (McEvoy 2019). One difference between cause lawyers in conflicted and authoritarian contexts and those in settled democracies appeared to be an openness to tactics other than litigation. Our research

7 Details on the female sub-sample are discussed below. We recognise the dangers of conflating ‘gender’ with ‘women’ and ‘leaving men as the unmarked, default category – the generic human against which others are compared and potentially deviate’ (Ní Aoláin et al 2018: xxxvi). We are also mindful of the ongoing debate in gender politics regarding use of the pronoun ‘female’ given its biological orientation. There is certainly widespread agreement that gender categories are much more complicated than a binary male/female dichotomy. Mindful of these differences and debates, we have opted to use ‘female’ and ‘woman’ interchangeably in this chapter since all the women we interviewed were female and the terms ‘female lawyers’ and ‘women lawyers’ were used by our interviewees. 8 Interview with female international human rights lawyer, Johannesburg, 16 August 2014. 9 See Kouwagam and Bedner Vol 1, ch 37; see also Lindsey and Crouch 2013. 10 See Gowder 2016 on the contested meaning of the term. 11 This problem is not confined to authoritarian regimes. For example, Mather and Levin, ch 10 above, note that because the Israeli Bar Association has no tradition of defending the rule of law or human rights, Israeli human rights lawyers must ally themselves to NGOs like as Adalah and ACRI (Association for Civil Rights in Israel).

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  331 suggests that relations between cause lawyers and social or political movements differ from those described in the cause lawyering and social movement literature (McCann 1994; Barclay et al 2011). As one of the authors has detailed elsewhere, some cause lawyers negotiated with their clients and the movements to which they were affiliated in order to transform trials into sites of political resistance against the regime – perhaps most famously in the Rivonia trial of Nelson Mandela and his co-accused (McEvoy 2019, see also Allo 2015). The concern about legal dominance (Scheingold 1975; Handler 1978; Olson 1984; McCann 1986) appeared to be diluted in conflicted or authoritarian contexts (Bryson and McEvoy 2016). As a prominent South African cause lawyer noted: To be honest, it wasn’t a classical client/lawyer relationship; it was more a kind of partnership because of where we had come from and what our history was. We were seen as partners or comrades … it certainly wasn’t a case of X or Y struggle lawyer saying to Jay Naidoo or to Cyril Ramaphosa do this do that … these are very strong, highly intelligent, very committed people who’d been to jail … They’re not going to sort of sit back and listen to a lawyer wax lyrical. I think they would take advice, you’d discuss it, but it wasn’t a question of struggle lawyers giving advice in a sort of hierarchical or autocratic manner. They would have told us to piss off, you know.12

Another important restraint on legal dominance was the fact that lawyers regularly questioned whether they were doing more harm than good. This was particularly true for lawyers operating in what they saw as hopelessly corrupt or oppressive regimes, where there was little chance of legal victory.13 Cause lawyers often focus on test cases, class actions or other strategic legal activities as part of a broader social or political struggle. Cause lawyers in conflicted or authoritarian contexts were, of course, eager to secure legal victories where possible. But given the intense conflict in such sites, many cause lawyers were acutely conscious of the risks of draining resources from other more effective and creative political or mobilising strategies (Albiston 2011; Scheingold 1975; Cummings 2017). As one South African lawyer told us: My view in the 80s was that in many respects we were dulling the militancy of the people involved in our struggle and therefore dulling the militancy of people.14

In a similar vein, many cause lawyers were wary of legitimating the regime by participating in fundamentally unfair legal processes. For example, in the Israeli military courts, which process the vast majority of Palestinian politically motivated offences, the conviction rate has been reported to be as high as 99.7 per cent (Yesh Din 2007). Consequently, much of the work of Israeli and Palestinian cause lawyers is focused on negotiations and plea-bargaining regarding sentence reduction rather than the broader legal and political aspects of the occupation (Ziv 2018). As the prominent Israeli lawyer, Michael Sfard, has written (2005; 2018), such tactics pose profound existential questions for progressive Israeli lawyers. Those concerns resonated strongly with Palestinian cause lawyers. One high-profile Palestinian lawyer told us: I don’t want to beautify the Occupation. I want to end the Occupation. That is the big difference … The military court system has been around for a very long time and I consider that the lawyers are partners in the crime.15

The sheer volume of cases processed in such contexts only heightened anxiety about legitimation. For example, one lawyer, who worked primarily on Palestinian administrative detention 12 Interview with male South African cause lawyer, Johannesburg, 14 August 2014. 13 For example in Venezuela litigation for human rights almost invariably failed before the Chavista revolution (Gómez and Pérez-Perdomo Vol 1, ch 22). 14 Interview with male politician and former cause lawyer, Cape Town, 11 August 2014. 15 Interview with male Palestinian cause lawyer, Ramallah, 19 May 2014.

332  Anna Bryson, Kieran McEvoy and Alex Batesmith cases, recalled that he had represented approximately 1,700 clients in a single year.16 Fearing they had become part of the problem, some cause lawyers have boycotted legal proceedings (McEvoy and Bryson 2021).17 In some sites we studied, the space for legal activism was narrowed not just by authoritarianism but also by widespread corruption. In Cambodia, for example, lawyers not only struggle with the legacy of the Khmer Rouge but also work within a contemporary legal and political system widely regarded as authoritarian, unfair and endemically corrupt (Morris 2016; Donovan 1993). A leading human rights lawyer in Cambodia told us: I promise you, anybody that wants to be a human rights defender their soul will be crushed basically. I’ll tell you this seriously and I’m thinking of one specific individual right now, she is the most inspirational young person I have ever met in Cambodia and she is amazing and she wants to be a human rights lawyer and specifically work on women’s rights – no way! She did the Bar exam, she comes from the provinces, she was asked for the bribe, she couldn’t pay it. In the final round of the Bar exam the President said you are a remarkable individual and if I had my way I would hire you tomorrow – and he doesn’t give praise like that – and she still failed because she can’t pay the bribe.18

Even after being admitted, lawyers believed they must bribe court officials before a party can lodge a case and then had little confidence in the independence of the judge or the fairness of the proceedings (Batesmith et al 2015). Finally, there was widespread evidence of intimidation and harassment of lawyers, particularly those who attempted to uphold human rights and otherwise challenge the regime.19 There are serious repercussions for engaging in legal work challenging undemocratic regimes. What Hilbink (2004) defines as ‘proceduralist’ cause lawyering in the US context may be deemed political in situations where even legal opposition to state power is viewed as potentially subversive.20 Reflecting on his work during the Ben Ali regime, one Tunisian lawyer said: All of your work as a defender of human rights made you a politician in the eyes of the regime – they classified you that way. As long as you were defending human rights whatever you said was taken as political.21

This is consistent with the findings in a number of the national reports in Volume 1. In Vietnam, lawyers who resist cooperating with the state may be prosecuted under the criminal code, and there is limited protection for any lawyer who fails to denounce a client’s offence.22 Similarly, during Nigeria’s military regime, lawyers who provided conventional legal assistance to clients deemed disloyal were viewed as undermining the government and posing a threat to national security. In such contexts, even the defence of an ‘ordinary’ apolitical criminal accused may

16 ibid. 17 For example, to protest the annexation of East Jerusalem in June 1967, more than 50 West Bank lawyers boycotted Israeli military tribunals (Catterall et al 2016; see also Qafisheh Vol 1, ch 32). 18 Interview with female human rights lawyer, Phnom Penh, 14 March 2014. 19 In 2009, UN Special Rapporteur on the independence of judges and lawyers Leandro Despouy decried the threats and intimidation lawyers faced, remarking that recent moves against lawyers in Cambodia indicated ‘a worrying new trend which could have a chilling effect on the legal profession’: UN News, ‘UN Rights Expert Concerned at Restrictions of Lawyers’ Freedom in Cambodia’ 1 July 2009. Yash Ghai (2010), former UN Special Representative for human rights in Cambodia, repeated these concerns. 20 Jewish-Israeli lawyers who represent Palestinians from the West Bank – even in cases that are not explicitly political – are sometimes considered cause lawyers given the level of risk involved and the political motivation imputed to those who ‘cross lines’ to protect Palestinians. See, for example, Hajjar 1997, Jabareen 2010, Sfard 2009. 21 Interview with male Tunisian cause lawyer, Tunis, 17 June 2014. 22 See Nicholson and Ha Vol 1, ch 43.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  333 become ‘a crucial site for struggle between the legal profession and the authoritarian state’ (Levin and Mather 2019). Although most of our respondents suggested that their profession conferred some protection from the worst excesses of an authoritarian regime, many described threats, intimidation, beatings, and imprisonment. In Myanmar throughout the 1990s and 2000s, lawyers who advocated for the rule of law and social reform risked imprisonment, physical harm and even death, as tragically underlined in January 2017 by the assassination of U Ko Ni (Batesmith and Stevens 2019).23 Even in situations where lives were not at risk, respondents reflected on the burden of work. A seasoned Israeli human rights defender noted: I think there is a major problem with cause lawyering everywhere and it’s not limited to this profession – social workers are the same, teachers are the same – that is that you get tired and you get frustrated.24

IV.  CAUSE LAWYERING IN TRANSITIONAL SOCIETIES

Social and political transitions are generally considered sui generis – extraordinary periods of ‘great flux’ typically involving ‘paradigm shifts in the conception of justice’ (Teitel 2005: 279). The mediating function of law is particularly important in such contexts (Dezalay and Garth 2011: 273). Given that cause lawyers function at the intersection between law and politics, they are often at the centre of political transition. It is clear from the national reports that cause lawyers may sometimes function as a powerful symbol at the inflection point. In Libya, the arrest of a human rights lawyer, Fathi Terbi, is widely regarded as a pivotal moment in the collapse of Gaddafi’s regime.25 Similarly, we found that the image of Tunisian lawyers in their robes protesting against the Ben Ali regime was an important symbolic factor in the fall of the government (El Gantri et al 2015). As the President of the Tunisian Bar Association told us: Everybody knows … that when the lawyers went in a march with their robes – that means that it is something very symbolic and significant and very important … something really serious is taking place.26

In many transitions, cause lawyers are viewed more favourably than conventional lawyers by those opposed to the regime.27 For opponents of the Pinochet regime in Chile, Ben Ali dictatorship in Tunisia, apartheid regime in South Africa, Israeli government in the Occupied Territories, or authoritarian Hun Sen government in Cambodia, the image of lawyers challenging a repressive state was often a powerful symbol of ‘work that encourages pursuit of the right, the good or the just’ (Sarat and Scheingold 1998: 3). For example, South African cause lawyers today are widely venerated as ‘struggle heroes’ in political discourse, official 23 U Ko Ni was a well-known Burmese lawyer who founded the Laurel Law Firm. A leading constitutional lawyer and human rights campaigner, he was a senior legal advisor to the National League for Democracy party and played a leading role in pushing for constitutional reform. 24 Interview with Israeli human rights lawyer, Tel Aviv, 14 May 2014. Lawyers who confronted the Turkish military regime in the early 1980s also experienced widespread burnout. 25 Carlisle Vol 1, ch 31. 26 Interview with President of Tunisian Bar Association, Tunis, 20 June 2014. 27 Lenin’s derogatory reference to ‘confounded rascals’ and ‘intellectual scum’ has found echoes throughout the twentieth century, See Lenin’s letter to D Stasova and to the Other Comrades in Prison in Moscow (1905) available at www.marxists.org/archive/lenin/works/1905/jan/19.htm. As former US Supreme Court Justice Sandra Day O’Connor remarked (1998), in settled democracies ‘lawyers are compared frequently, and unfavorably, with skunks, snakes and sharks’.

334  Anna Bryson, Kieran McEvoy and Alex Batesmith commemorations and the legal community (Marschall 2006).28 In Russia, the production of a special lapel badge in 2015 to celebrate the contribution of pre-revolutionary advocates illustrates the veneration of cause lawyers in oppositional public discourse.29 Another reason regime opponents respect cause lawyers during conflict, authoritarianism and transition is the latter’s strong association with claims-making through human rights work. This is particularly true of ‘second wave’ cause lawyers who, having played an active role in the struggle against authoritarianism, may then shift their attention during and after the transition to address issues of gender equality, sexual orientation, migrant status, the environment or animal cruelty. Although many commentators bemoan the decline in political commitment among Indian lawyers in recent years (especially given their prominent role during and after the independence struggle), legal activists have been very influential in socio-legal political movements, championing cases concerning sexual harassment, gay rights, the death penalty and pro bono services.30 Chilean cause lawyers made a similar transition from political dissidence to strategic litigation on key human rights and equality issues after the transition to democracy.31 Similarly, in Taiwan, an increasing number of lawyers showed commitment to socio-political rights-based litigation as the country democratised (Hsu Vol 1, ch 41). Gobe highlights a similar generational difference between Tunisian lawyers born in the 1950s, who engaged in ‘highly transgressive’ activism against Bourguiba’s regime and suffered the sharp end of the state (beatings, car tampering, wiretapping, imprisonment), and younger professionals born in the 1970s, less transgressive and more likely to be affiliated with a host of radical left ‘fringe groups’, who lobbied hard to convince the Tunisian Bar Association to oppose Ben Ali’s regime. After the collapse of the regime, some of these younger cause lawyers became involved in the past-facing work of transitional justice, including prosecutions of former Ben Ali regime affiliates and the work of the Truth and Dignity Commission, while others either focused on more generic forms of cause lawyering involving issues of gender, trade union rights and so forth or returned to conventional legal practice.32 Of course, not all cause lawyers transition from political dissidence to rights-based litigation. Recent work by NeJaime (2012) has called attention to the role of cause lawyers inside the state: reforming the state; shaping state personnel and priorities; harnessing state power to advance shared movement-state goals; and facilitating and mediating relationships between political movements and the state. We documented numerous examples of cause lawyers who had once resolutely opposed the old state but now occupied a leading position in the new political or legal establishment, including ministers of state and front-row politicians, senior civil servants and judges. Some interviewees felt they had little choice in the matter: their appointment was essentially a continuation of the struggle by other means. A former ANC activist, now a senior government lawyer in South Africa, explained: I’m in this job purely by accident, I didn’t want to be in it, but … I was told that I would have to submit myself to the democratic will of the movement, and I did ….

28 We noted similar attitudes towards cause-lawyers in Tunisia and among left-leaning political actors and activists in Chile and Israel. 29 See Moiseeva and Bocharov Vol 1, ch 16. 30 See Ballakrishnen Vol 1, ch 36. 31 This has resulted in a transformation of Chilean legal culture from ‘a positivist jurisprudence and deference to political power’ towards the ‘embrace [of] a new understanding of rights and adversarial litigation for political ends’. See Villalonga Vol 1, ch 20. 32 Gobe (Vol 1, ch 33) argues that the Tunisian Bar Association reluctantly joined the mobilisation against Ben Ali but was later able to claim ‘revolutionary legitimacy’ by virtue of retrospective association with the young lawyers who had led the way.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  335 Although he conceived of himself as an activist he added: Parliament is still a site of struggle … I wouldn’t have believed it a couple of years ago, but you can be an activist lawyer in government as well.33

A South African legal academic who briefly served in what he described as ‘the establishment of the new state’ was less confident about the role of cause lawyers within the state: We have a particular duty now not to make the assumption that the people we knew once in the struggle who have now gone up to government are going to remain true to the struggle, because their struggle was something else now, their struggle was to govern. And very quickly we had an understanding that in the first five or seven years of the government that the persons who were being appointed to positions had no qualifications, besides the struggle qualification … they were actually placed in very, very difficult positions that they were never ever prepared for.34

A human rights activist in Johannesburg was even more scathing about the new phenomenon of what she described as ‘a progressive who’s talking left and walking right’.35 Although cause lawyers were typically associated with left-leaning and liberal causes, especially civil rights activism,36 the conservative shift in American politics in the 1980s sparked an interesting change in the relationship between lawyers and right-wing movements (Diamond 1995; Hodgson 1996). Sarat and Scheingold (2006: 7) suggest that, ‘If the history of the last half of the twentieth century was a history of civil rights activism, its successes, and its failures, the history of the early part of the new century may be a story of counter-mobilization and its apparent triumph’. Much of the recent literature on right-wing cause lawyers focuses on the US, but their role is also interesting in the context of conflict and transition (see Hatcher 2005; Southworth 2008; Tagliarina 2012; see also Bob 2012; Dotan 2014; Dudai 2017). In Chile, for example, we noted a growing concern among cause lawyers about the appropriation of human rights discourse by conservative forces. A leading human rights lawyer stated: In Chile, the human rights agenda was ‘owned’ by the progressive world up until the end of the dictatorship. Afterwards it became part of the government agenda, but it was never an issue taken up by the right. Never. However, nowadays, and especially since the opening up of the country three years ago, conservative forces have started to re-articulate a discourse based on human rights. And this is much more dangerous because if they said before: ‘Those human rights bodies are full of left-wing activists’ nowadays they say, ‘what is the margin for State assessment, if everything comes from the outside?’37

This issue has also been prominent in debates in Israel. Dudai (2017: 869) has argued that the state and the right in Israeli politics have dedicated huge resources to demonising traditional Israeli human rights NGOs as the nation’s ‘most despised enemy … dangerous “traitors”’ who must be countered with legislation, detention and even violence. At the same time, rightist groups have ‘mimicked’ the tactics and language of human rights mobilisation to support the occupation, settler land annexation and occasional police heavy-handedness (ibid: 873). As another legal academic at Hebrew University told us: The human rights discourse was used by the left in the 90s, in the early 2000s and it was identified with the left – now this is not the case anymore in Israel. In Israel now anything is human rights – left, 33 Interview with male politician and former cause lawyer, Cape Town, 11 August 2014. 34 Interview with male legal academic and human rights activist, Johannesburg, 15 August 2014. 35 Interview with female former ANC and human rights activist, Johannesburg, 15 August 2014. 36 Hilbink (2004) notes that discussion of right-wing lawyers is curiously absent from much of the early research on cause lawyers. 37 Interview with female Chilean human rights lawyer, Santiago, 30 April 2014.

336  Anna Bryson, Kieran McEvoy and Alex Batesmith right, whatever you want – everything is translated into [human rights] discourse, everything that potentially can translate into the language of human rights is translated into human rights.38

The appeal to universal human rights standards in a global context is reflected in both transnational activism for human rights, social justice and the environment and what can be described as a robust ‘counter-movement’ in defence of conservative causes (Bob 2012). Merry (2006a: 42) observes that human rights lawyers and activists (whether left or right leaning) serve as ‘translators’, who ‘negotiate the middle in a field of power and opportunity’, mediating between international law, local needs, donor interests, state policies and grassroots activism. This interpretation captures the myriad roles cause lawyers play, particularly at times of conflict and transition. Because women cause lawyers must negotiate all these challenges within a framework of gender differences and inequality, we turn next to their experiences. V.  GENDER AND CAUSE LAWYERING IN CONFLICT AND TRANSITION39

There are three reasons for highlighting the experience of female cause lawyers. First, much of the existing literature is distorted by what Bernard calls the ‘stag effect’ – a disproportionate focus on the activities of male cause lawyers and ‘masculine’ causes.40 Second, the experience and perspective of female cause lawyers can inform important debates on gender and the legal profession more generally. Third, because it draws on comparative research in extreme circumstances, this focus provides an opportunity to reflect on ‘the feminist theoretical project’ (Conaghan 2000) more broadly – for our purposes, the intersection between scholarship on transitional justice, human rights and socio-legal studies. Asking whether women do law differently potentially reignites divisive debates about whether women are intrinsically different in their approach to professional relations and affiliations (Gilligan 1982; Broughton 1983; Menkel-Meadow 1985). It must also be noted that all comparative analysis runs the risk of ‘flattening out differences’ within and between case studies (Sommerlad and Hammerslev Vol 1, ch 1). Our respondents’ experiences were significantly shaped by local political, historical, cultural, and religious forces. For example, religion was much more significant in Tunisia and Chile than in South Africa; and while serious ongoing human rights abuses were documented in Israel and Palestine, they were not remotely comparable to Cambodia, where much of the legal profession was murdered under the Khmer Rouge regime. Focusing on female lawyers also runs the risk of implying that all the women we interviewed experienced the law and oppression the same way or, more broadly, that there is a homogenous 38 Interview with male legal academic, Jerusalem, 12 May 2014. 39 It may be helpful to disaggregate female interviewees by category across the jurisdictions. Cambodia: lawyers working at the Extraordinary Chambers in the Courts of Cambodia (ECCC) as well as those employed by NGOs. Chile: human rights lawyers and activists, a legal academic and a government lawyer. Israel: legal academics, human rights lawyers and activists, a politician and lawyer, and lawyers in private practice. Palestine: human rights lawyers and activists working in private practice and on behalf of NGOs. Tunisia: one of Ben Ali’s former lawyers and allies and two Europeans working for Tunisian based NGOs, as well as human rights lawyers working in private practice and for NGOs. South Africa: two celebrated female struggle lawyers, a legal academic and activist, and a former ANC activist. Those who primarily identified as legal academics were also (or had been) practising lawyers. 40 Bernard (1976: 90) proposed the ‘stag effect’ to explain ‘the complex of habits, customs, and practices which have the effect of excluding women from male meetings, contacts and communications networks’. But it has since been applied more broadly to analyse the subtle ways in which women are overlooked and excluded in a range of professional and academic contexts (Dziech and Weiner 1984: 149).

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  337 category of ‘woman’ (Hunter 1996: 136).41 We have certainly been influenced by the ‘intersectionality’ critique of such essentialising: how black women may experience oppressive systems of racism and sexism simultaneously (see eg Crenshaw 1989; 1991). We have also tried to take seriously Hunter’s plea to legal feminists to ‘engage with law in non-essentialist ways’ (1996: 136).42 We were greatly assisted in that task by our interviewees. Black and white female cause lawyers in South Africa and Israeli and Palestinian female cause lawyers and activists were all acutely aware of the intersections of gender, race and class in their professional lives. While remaining alive to the danger of blurring distinctions between jurisdictions and respondents, we believe there is value in highlighting gender and offering what Popper (1959: 90) called ‘inductive generalizations’43 about the distinctive experience of female cause lawyers. The majority of our female respondents identified as feminists and often raised issues of intersectionality themselves. One cause lawyer reflected that during the apartheid era ‘being a woman was extremely difficult – and being a black woman was even more difficult’.44 Reacting to the contemporary veneration of male ‘struggle lawyers’, another South African said her ambition was ‘to recreate a history of black struggle lawyers which I don’t think has the same place in South African legal history … the real “untold story” is of female black lawyers who are now more or less forgotten about’.45 In other contexts, the gendered experiences of female cause lawyers intersected with ethnicity, citizenship and geography. One feature of life in the Palestinian Occupied Territories is Israel’s complex system of permits, which restricts the movement of the Palestinians, normalising the extensive use of checkpoints, stop and search and other intrusive security measures (Berda 2017; Parizot 2018). This distinguishes Palestinians who live within Israel and are entitled to Israeli citizenship from those who live in the Occupied Territories. One Palestinian Israeli citizen observed: I consider myself privileged in a number of ways. I am a lawyer, I don’t have to dress or conform to some of the stereotypical expectations of how a Palestinian woman should behave. Because of my skin tone, I could pass as an Israeli. I speak English and Hebrew. And because I don’t live in the Occupied Territories, if I am moving around or if I am at an airport, I am not usually subject to strip searching or the other indignities [that are inflicted on] my darker skin colleagues.46

The gendered experiences of female cause lawyers can also be differentiated by other variables. One Libyan Tunisian lawyer we interviewed in Tunis suggested that female lawyers involved in the revolution against the Ben Ali regime tended to be ‘an upper class elite’ of ‘intellectual lawyers’; some more religiously minded Tunisians (including female cause lawyers) viewed the elite emphasis on human rights as a ‘western concept’ in tension with Islamic values.47 41 As Spelman argues (1988: 14), even if we agree that all women are oppressed by sexism, we cannot conclude that all women experience sexism the same way. This danger has long been acknowledged by feminist scholars working in the field of transitional justice (see eg Alam 2014: 3). 42 For an authoritative overview, see Hancock (2016). 43 This type of comparative analysis is designed to facilitate cautious and reflexive theorising beyond the local experience of diverse sites (Cotterrell 2012: 60). 44 Interview with female former cause lawyer, Cape Town, 12 August 2014. See also Crenshaw 1989. A recent study of the demographics of the legal profession in South Africa reports that black women continue to experience racial as well as gender discrimination (Klaaren 2014). See also Grabham et al 2008; Bottomley et al 1991; Yeatman and Gunew 1993. 45 Interview with female international human rights lawyer, South Africa, 16 August 2014. 46 Interview with female cause lawyer, Jerusalem, 18 May 2014. Another Palestinian lawyer confirmed this fear when she told us that she was so used to being routinely strip searched when she went through airports that she carefully selected underwear for international travel in anticipation of such treatment. 47 Interview with female human rights activist, Tunis, 19 June 2014.

338  Anna Bryson, Kieran McEvoy and Alex Batesmith Across all our sites, lawyers identified familiar variables that could affect the professional lives of female cause lawyers, including perceived political affiliations, family connections, class, and rural/urban origins. A minority of our interviewees did not describe themselves as feminists, and some denied that gender influenced their experience of lawyering. A former legal advisor to the Israeli government stated: I don’t believe anyone relates to me because I am a woman. I am a strong woman, I have my own mouth, I’m not afraid of anyone, I can give answers to anyone, I can talk with the Prime Minister and look him in the eye. No, I don’t think it’s because I am a woman – [if they don’t like what I say] it’s because of what I said – they don’t like this. This is the main thing.48

This resonates with the broader literature on gender and the legal profession. For example, Hunter (2003: 120) found that, in order to navigate the ‘habitus’ of hegemonic masculinity, some Australian female barristers assume the roles of ‘honorary men’.49 Invoking the notion that women have superior ‘erotic capital’ in professions ‘where looking good, charm and social skills are important’ (Hakim 2010: 510), a number of our lawyers felt their status as a woman was an advantage. A South African Indian cause lawyer suggested that before her activism became well known, her femininity was disarming: Initially when I got to court, I must say I was given a lot of respect. I don’t know whether it was my sari, because I used to go into court in a sari, and a sari looks very feminine and, you know, it sort of disarms people.50

A legendary Israeli cause lawyer concurred: I was very aware that I was taking advantage of my being a woman, of my looks, of my attitude. I was not so vulnerable in reality, of course, and I could afford myself a very large range of talking – chutzpah perhaps. And being known for what I am – I didn’t have to hide it, I could speak like very few Arab lawyers could afford themselves to.51

Several female cause lawyers referred to the double burden of working within and outside their household. In South Africa, a female activist described an extreme version of the ‘long hours’ gender barrier in conflict situations, with obvious consequences for family life: Being a struggle lawyer is – it’s not nine to five, firstly. It can be at any time – and normally all the arrests were only ever happening from night onwards – so you couldn’t have a nine to five [life].52

Many interviewees also recounted examples of blatant sexism. A Tunisian cause lawyer recalled that when she arrived in a remote area to represent strikers, the offending landowner asked: ‘What are you doing here? Is there no man in your life that can control you?’ He then telephoned her husband (also a cause lawyer) to suggest he take his wife in hand.53 A legal

48 Interview with female state lawyer, Jerusalem, 16 May 2014. 49 Collier (2013) has argued that the concept of ‘hegemonic masculinity’ in studies of gender and the legal profession fails to account for important new dynamics within the global legal profession, such as ‘transnational business masculinities’ and rapidly evolving notions of ‘fatherhood’. See Collier ch. 7 above. 50 Interview with female former struggle lawyer, Cape Town, 12 August 2014. 51 Interview with female cause lawyer, Jerusalem, 20 May 2014. 52 Interview with female former ANC and human rights activist, Johannesburg, 15 August 2014. 53 Interview with female cause lawyer, Tunis, 16 June 2014. In Iran, judges treat female and male lawyers differently, instructing women to be quiet or fix their head-scarves (Banakar and Ziaee Vol 1, ch 29). Similar types of ‘courtroom sexism’ are reported in India and South Korea.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  339 academic and human rights lawyer in Chile noted that, while the situation for female litigators had improved, the legal profession was still a ‘very masculine world’. There are a lot of women who litigate but they never end up in firms. Their partners are always men but they do most of the work, women do most of the work … after 6pm all the important meetings take place and women go home.54

In addition to these familiar structural barriers, this interviewee highlighted the type of ‘microassaults, microinsults and microinvalidations’ that Sue et al (2007: 274–75) have identified in relation to racial microagressions. What grated most was the subtle undermining in court: ‘It’s very small things we notice that show that treatment for women is different – you are treated differently. The court employees, for example, call us “mijita” or “my dear”‘. These ‘everyday’ irritations are manifestations of deeply embedded structural inequities (Essed 1991). Moreover, they are often employed to deny or dilute women’s status as legal professionals, ensuring they remain ‘fringe-dwellers in the jurisprudential community’ (Thornton 1996: 3–4). The consequences of handling high-profile political cases depended on the scale of violence and rupture in a society, but female cause lawyers who ‘stuck their necks out’ to represent politically motivated clients or otherwise challenge the prevailing regime paid a high price. A Tunisian lawyer recalled: ‘They would beat us sometimes … I was actually kicked by a policeman wearing those big heavy boots and my foot was swollen for a while’.55 In Chile, while lawyers were undoubtedly less likely to be murdered or disappeared than other left-wing activists (Collins 2017), indirect intimidation could be worse: In my case they killed the little woman who worked in my house, who helped me with cleaning my house, so she’s one of the people officially recognised as a victim of human rights violations. They killed her to intimidate me.56

But despite this, political conflict and transition paradoxically offered women avenues for professional advancement (Bryson and McEvoy 2016; see also Turshen et al 2001: 7).57 A Palestinian lawyer who had worked through the exigencies of the first intifada recalled: The conflict really helped to push people into new roles that helped them to kind of define their own rights in new ways. So when Palestinian women in the 80s, when a huge percentage of the men were working inside of Israel leaving the homes with the families by themselves the mom became a huge kind of ‘responsibility taker’… many of the men actually were imprisoned and what does that mean for the woman that has to stay home and become the breadwinner and take care of the family and do all the traditional [male] roles? … I think all of that kind spurred more of an understanding of what those rights could be or should be.58

Opportunities also opened for female cause lawyers when societies began to transition away from violence, which happened in all our sites except Israel and Palestine. Feminist scholars studying transitional justice have warned that such junctures often have the potential for both advancement and entrenchment (Ní Aoláin and Turner 2007: 273).59 For example, 54 Interview with female legal academic and human rights lawyer, Santiago, 28 April 2014. This is confirmed by statistics. In 2014 women comprised 32 per cent of large law firm lawyers but only 6 per cent of partners: De La Maza et al 2016: 48–49 quoted in Villalonga Vol 1, ch 20. 55 Interview with female cause lawyer, Tunis, 20 June 2014. 56 Interview with female international human rights lawyer, Santiago, 28 April 2014. 57 These include cause lawyers we interviewed, such as Leah Tsemel, Gaby Lasky, Carmen Hertz and Yasmin Sooka, all described as legendary by legal colleagues. 58 Interview with female international human rights lawyer, Jerusalem, 22 May 2014. 59 In South Africa, Albertyn (1994: 62–63) cautioned that constitutionalism and rights can introduce a dangerous sense of apathy: ‘One of the tasks for women in South Africa is to ensure that the interim Constitution, with its rights

340  Anna Bryson, Kieran McEvoy and Alex Batesmith Ní Aoláin (2012: 3) has argued that, while transition can create new ‘opportunities, ideas and sites of intervention’, such novelty can hide ‘deep pitfalls of structural and entrenched gender discrimination’. Female activists in South Africa were very aware of this evanescent ‘window of opportunity’. A leading member of the women’s movement and legal academic recalled: The first five or ten years is a great window of opportunity in every way. I mean all the other African countries told us because they’d been down our road before … they were just saying, you know, ‘use that space because it all really closes down’ – and of course it does close down. Institutions slowed down, bureaucracies become embedded, that kind of idea that we’re going to change the state and it’s going to be open and participative and efficient disappears very quickly … women were one of the important kind of moral touchstones of delivery on democracy.

The women’s movement had to be particularly vigilant because of ‘the boys’ networks and the difficulties of penetrating those networks and the ways in which the negotiations were ‘run by male lawyers and male politicians and deals that were made outside the formal chamber … women’s ability to manoeuvre into that was quite difficult’.60 A Chilean human rights lawyer similarly reported that the transition from authoritarianism was marked by a struggle to get violations against women recognised as human rights abuses: We are trying to get them to understand that the violence suffered by women was a violence that was different from that of men and that it was also a kind of torture – but they are still trying to convince them … there’s not much reception … it’s much more than sexism. It’s a lack of awareness of women’s issues and it’s also awareness that this is a male chauvinist country. The challenge is that everybody thinks they are doing the right thing and that human rights are respected here. They are not even aware.61

A legal academic and public interest lawyer who served on the Rettig Commission (Chile’s first truth commission, designed to create an official record of the crimes committed during the Pinochet regime, 1973–90) recalled his embarrassment that no woman was initially selected to serve with him. He emphasised, nevertheless, that the two women eventually appointed – a lawyer and a social worker – played a vital role because it was important to record ‘not only the evidence but also what the people are feeling’.62 This raised concerns about pigeonholing women in ‘softer’ areas of transitional justice and the possibility that women commission members were expected to perform a disproportionate share of the emotional labour.63 There is also a danger, as Bourdieu (1998: 5) argues, that ‘being included, as man or woman, in the object that we are trying to comprehend, we have embodied the historical structures of the masculine order in the form of unconscious schemes of perception and appreciation’. Opportunities available to female lawyers during conflict and transition do not automatically translate into material gains for them or the wider society, raising the spectre of patriarchal state-building in the guise of transitional justice (Ní Aoláin and Turner 2007: 229; Snyder and Vinjamuri 2004). The durability of patriarchal legal and political cultures was a constant theme across all our jurisdictions. In South Africa, deep gender inequalities that have survived the overthrow of apartheid were often cited as a serious disappointment of the framework, is not used in a way which restricts rather than furthers the goal of gender equality … all of this needs to take place within a vision of social reconstruction that addresses the material bases of women’s inequality’. 60 Interview with female legal academic and human rights activist, Johannesburg, 13 August 2014. 61 Interview with female legal academic and human rights lawyer, Santiago, 28 April 2014. 62 Interview with male former secretary to the Rettig Commission, Santiago, 28 April 2014. 63 As noted in the thematic chapter on gender, women are often expected to perform emotional labour that is not demanded of men. Drawing on Menkel-Meadow’s research (2005), Choroszewicz and Kay, ch 6 above, also observe that women lawyers are held to higher ‘moral standards’.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  341 transition. Reflecting on ‘missed opportunities’ for women in South Africa, a former ANC activist stated: I think that golden age has gone … I think we lost a lot of opportunities, we lost a lot of ground and we lost a lot of women … Some of them have become diplomats, others went into the party hierarchy, into government … you get into the structure and well the structure swallows you. And then that voice is no more, you know, it’s not possible to put a foot out again and enter the other platform. So now we don’t have those public spaces … organisations we knew during the apartheid era no longer exist. Local structures are not there anymore and if you’re out to mobilise people you need a vehicle to do it, you need a mechanism, and we don’t have those mediating mechanisms anymore. So yeah, I think we’ve lost the momentum on that really.64

Reflecting on the broader patterns and themes emerging from our interviews, we want to reiterate that many of the gender barriers resemble those found in settled democracies.65 The following summary by a male South African legal academic will be familiar to anyone who has explored gender in the legal profession in the last 30 years: The women attrition rate is much higher. Women win all the prizes, nearly all the prizes in almost every law school. They are the majority in terms of numbers in classes … they’re the majority in terms of those who are seeking articles, let’s say, access to the profession. But something happens and they suddenly fall off the radar … women judges are largely invisible.66

Women were generally under-represented in the partnerships of large commercial firms and over-represented in less well-paid legal work for the government and NGOs or siloed in ‘softer’ areas of law – what Triedman (2014) refers to as a ‘pink ghetto’. This mirrors a well-documented clustering of female lawyers in public law across the globe (eg Stanford Law Review 1988; Wilder 2007; Nelson et al 2009)67 and a feminisation that is largely confined to the ‘base of the organisational pyramid’.68 When asked why such gender disparities persisted in societies that had undergone radical political transformation, our respondents pointed to familiar barriers: long and unsocial hours incompatible with caring responsibilities; strains on personal and family relations; a masculine culture that patronises, sidelines and excludes women; ignorance of sexism and inequality among senior male lawyers; difficulties confronting female lawyers who seek to challenge patriarchal structures and patterns of behaviour; and the incompatibility of gender equality with a broader neoliberal agenda.69 But many respondents also discussed the ways in which broader campaigns for gender equality intersect with competing understandings of struggle. To paraphrase Derrida and Ferraris (2001: 20), they reflected on gender equality and justice ‘as it promises to be, beyond what it actually is’. This theme – the role of gender in the broader political and sociological process of national imagination – featured repeatedly in our fieldwork. As feminist commentators have noted, Anderson’s seminal work on communal and national imagination tends to focus on the role of imagined ‘fraternities’ rather than ‘sororities’ (Anderson 1991:7; Zacharias 2001). 64 Interview with female former ANC and human rights activist, Johannesburg, 15 August 2014. 65 See Kay and Choroszewicz, ch 6 above. 66 Interview with male legal academic and human rights activist, Johannesburg, 15 August 2014. 67 There are some interesting exceptions. In Ghana, women occupy leadership positions as partners and senior associates in more than half the leading law firms (Dawuni 2017). In some post-communist countries such as Poland (Gadowska Vol 1, ch 15) and Serbia (Vuković et al Vol 1, ch 17), where the legal profession is particularly fragmented, there is a majority of female judges. The feminisation of the legal profession in Myanmar was part of the military regime’s strategy to lower the status of the profession (scores on entrance examinations are much higher for medicine and engineering than law) (Crouch Vol 1, ch 6). 68 See also Thornton and Wood Vol 1, ch 2. 69 See Kay and Choroszewicz, ch 6 above; see also Bryson and McEvoy 2016.

342  Anna Bryson, Kieran McEvoy and Alex Batesmith Similarly, queer theorists have done much to highlight the fact that the heteronormative notion of the nation is an ‘ideological effect rather than a pre-political truth’ (Somerville 2005: 600; see also Parker et al 1992). A number of our interviewees recognised how gender and sexuality could be manipulated by powerful actors to foster variants of ‘the nation’. For example, Israeli cause lawyers told us that a central element of the national vision (among some Israelis) is a progressive stance on LGBTQ and gender rights, which the state often deploys strategically to foreign audiences to support Israel’s claim to be ‘the only democracy in the Middle East’. One interviewee suggested that, in order to disguise the demonisation of human rights activism in Israel (Dudai 2017), the government sponsors NGO activists to attend international events on issues of gender or LGBTQ rights. She contrasted that with the vilification of those fighting human rights abuses related to the occupation, adding: The Ministry of Foreign Affairs was just parading them all over the world and saying ‘look how great Israel is’ – I think it’s very problematic.

The routine Israeli denial of violence, torture and institutionalised racism has long been the focus of critical political and sociological analysis.70 Cause lawyers repeatedly drew parallels between Israel’s relative progressivism on LGBTQ rights – sometimes referred to as ‘pinkwashing the occupation’ (Stallone 2019; Fenster and Misgav 2019) – and the normalisation of the occupation. As one Israeli cause lawyer said, emphasising Israel’s relatively progressive stance on the rights of animals, individuals with disabilities, and women provides useful cover. ‘We cannot really be pro human rights in terms of the occupation so we need to be good in something else’.71 A Palestinian journalist and human rights activist based in Jerusalem had been beaten and threatened with taser guns in administrative detention. The worst treatment had been inflicted by female members of the military, which she attributed to the normalisation of cycles of violence and the masculinisation of society.72 Members of the military tasked with inflicting this type of treatment on prisoners are themselves brutalised: You turn around and you beat your wife and you turn around and you shoot somebody and then you turn around in your anger and you beat Palestinians even more – you torture them even more. It’s a society that is violent, that is militaristic, that is obsessed with security. And they think they’re free and secure … this nationalistic, Zionistic, militaristic narrative is so strong, it is so embedded in all aspects of society that like it becomes normal.73

A similar phenomenon was noted in Tunisia. As Guellali has argued (2017), during the Ben Ali era ‘state feminism’ produced significant advances in gender equality, which were used to cover up systemic abuses of populations deemed threatening, including women (see also Ketelaars 2018). One prominent cause lawyer exiled by the Ben Ali regime noted: Among the big lies of the former regime is that Tunisia was the land of women’s freedom and equal rights. In fact it is true that Tunisian women are ahead of Arab women on a number of levels – particularly in the legal texts – but in fact women suffered a lot because they may have had a husband who was a political opponent a brother a relative okay and they would suffer indirectly much more just because they are women they are more vulnerable in that way.74

70 Stanley Cohen’s seminal book States of Denial (2001) was inspired in part by his work on torture with the human rights NGO B’Tselem. See also Friedman and Gavriely-Nuri 2017; Handel et al 2017. 71 Interview with male Israeli NGO lawyer, Jerusalem, 11 May 2014. 72 Interview with human rights activist, Ramallah, 22 May 2014. See further Mann-Shalvi 2018. 73 Interview with human rights activist, Ramallah, 22 May 2014. 74 Interview with female cause lawyer, Tunis, 20 June 2014.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  343 Finally, most of the left-leaning male cause lawyers we interviewed were alert to gender equality issues and did not display the structural homology we associate with elite conventional lawyering (Hagan and Kay 1995). But it was clear that all the societies we researched bore some hallmarks of what Bourdieu (1998: 1) termed ‘gentle, imperceptible and invisible’ masculine domination. Some female cause lawyers experienced gendered variants of domination not only from the state but also within the ranks of cause lawyers. A leading female cause lawyer in South Africa illustrated this with reference to domestic violence. She recalled the difficulties she encountered in exposing the fact that another female cause lawyer had been suffering domestic abuse at the hands of her partner (himself a prominent cause lawyer in the anti– apartheid movement) – lest it embarrass and damage the broader struggle and respect for cause lawyers: I said, ‘okay we’re going to help you and we’re going to take your case out’. And inside the movement there was such a powerful silence that she should not break, even though we were willing to help her take the risk … that’s the story of the struggle that’s not told.75

To recapitulate, the gendered experiences of female cause lawyers varied across societies we studied, although some common themes emerged. As in other contexts (eg Crenshaw 1989; 1991; Hancock 2016; Collins and Bilge 2016; Ang 2003), race, ethnicity, class, geography and citizenship all intersected with gender to shape the experience of female cause lawyers. Female cause lawyers experienced familiar patterns of structural exclusion, sexism and microaggressions across the sites. Paradoxically, periods of conflict, authoritarianism and transition created opportunities for such lawyers, but these were time limited and double-edged. Different understandings of gender, gender-based harm and gender-based rights were evident across the sites, and in two contexts (Tunisia and Israel) feminist lawyers told us that progressive state policies on gender were deliberately deployed by the regime to obscure other human rights abuses – what Ní Aoláin (2012: 11) has termed ‘a wily form of gendered window dressing’. Finally, domestic violence towards women was silenced in South Africa, even within the cause lawyering community itself. VI. CONCLUSION

In their seminal text on the political commitments and professional responsibilities of cause lawyers, Sarat and Scheingold (1998: 5) suggest that in the types of societies we studied ‘cause lawyering is cast in a largely defensive role – struggling to find a modicum of protection against arbitrary arrest and imprisonment, torture, and other acts of political repression’. The cause lawyers we interviewed were indeed often on the back foot, facing harassment and worse from the state and hostility or indifference from conventional lawyers and their own bar associations while simultaneously managing complex relations with clients and political/military movements. They nonetheless found creative ways to navigate this difficult terrain, often transcending a defensive adherence to minimal human rights protections for their clients. They developed mutually respectful working relations with political and social movements, mitigating their ‘legal co-option’ (eg Sarat and Scheingold 2004). They also devised strategies to resist and subvert the power of the state during periods of conflict or authoritarianism, ranging from boycotts of legal proceedings and joining public protests in their lawyers’ robes to transforming trials into sites of political resistance (Allo 2015). Much of this cause lawyering work,

75 Interview

with female international human rights lawyer, South Africa, 16 August 2014.

344  Anna Bryson, Kieran McEvoy and Alex Batesmith including that by lawyers within state structures, was sustained by a vision of a ‘real rule of law’ in which law could be ‘realigned with justice’ (Sachs 2011: 1). Efforts to realise that vision became a focus for cause lawyers in societies (Chile, South African and Tunisia) that have experienced a transition from authoritarianism. There is a broader tendency in the literature on conflict and transition to cast men as active agents and women as passive victims (Campbell 2007: 427). Our research offers a useful corrective. Sexism, professional ghettoisation, as well serious gendered violence and intimidation were reported by women cause lawyers. However, it was also clear that periods of conflict, authoritarianism and transition presented women with the opportunities to break through some of the familiar glass ceilings, and many fought hard to assert their agency, however difficult the circumstances of their work. For the majority of those identifying as feminists, the vision of advancing women’s rights often interacted with other political and social struggles. Ní Aoláin (2012: 206) has wisely cautioned against an essentialist feminist analysis of conflicted or transitional societies that adopts an ‘uncritical, liberal feminist positioning’, which ‘directs our gaze away from the cultural, material and geopolitical sites’ in which struggles are located. Many women cause lawyers we interviewed were deeply aware of how their lived realities of gender intersected locally with issues of race, ethnicity, citizenship, class, political affiliation and other variables. That intersectionality is the perfect counterweight to the ‘stag effect’ in the study of cause lawyers. REFERENCES Abel, RL (1989) ‘Taking Professionalism Seriously’ 1989 Annual Survey of American Law 1–63, 83–84. —— (1995) Politics by Other Means. Law in the Struggle against Apartheid 1980–1994 (London, Routledge). —— (1998) ‘Speaking Law to Power: Occasions for Cause Lawyering’ in A Sarat and SA Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford, Oxford University Press) 69–118. Abel, RL and Lewis, PSC (eds) (1988a) Lawyers in Society: Vol I The Common Law World (Berkeley, University of California Press). —— (1988b) Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press). —— (1989a) ‘Putting Law Back into the Sociology of Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 478–526. —— (1989b) Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Alam, M (2014) Women and Transitional Justice: Progress and Persistent Challenges in Retributive and Restorative Processes (London, Palgrave Macmillan). Albertyn, C (1994) ‘Women and the Transition to Democracy in South Africa’ in F Kaganas and C Murray (eds), Gender and the New South African Legal Order (Cape Town, Juta). Albiston, C (2011) ‘The Dark Side of Litigation’ 96 Iowa Law Review 61–77. Allo, A (ed) (2015) The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial (London, Routledge). Anderson, B (1991) Imagined Communities: Reflections on the Origins and Spread of Nationalism (New York, Verso). Ang, L (2003) ‘I’m a Feminist But … “Other” Women and Postnational Feminism’ in R Lewis and S Mills (eds), Feminist Postcolonial Theory: A Reader (New York, Routledge). Antoniou, A-S, Cary, C and Gatrell, C (eds) (2019) Women, Business and Leadership: Gender and Organisations (Cheltenham, Edward Elgar). Barclay, S, Jones, LC and Marshall, A (2011) ‘Two Spinning Wheels: Studying Law and Social Movements’ 54 Studies in Law, Politics and Society 1–16.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  345 Barkan, SE (1984) ‘Legal Control of the Southern Civil Rights Movement’ 49 American Sociological Review 552–65. Batesmith, A and Stevens, J (2019) ‘In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s “Disciplined Democracy”’ 28 Social and Legal Studies 573–99. Batesmith, A, McEvoy, K, Mallinder, L and Bryson, A (2015) ‘Transitional Justice Challenges Facing Lawyers in Cambodia’ (Lawyers, Conflict and Transition project) lawyersconflictandtransition.org/ themainevent/wp-content/uploads/2014/07/TRANSITIONAL-JUSTICE-CHALLENGES-FACINGLAWYERS-IN-CAMBODIA-JUNE-2015.pdf. Berda, Y (2017) Living Emergency: Israel’s Permit Regime in the Occupied West Bank (Stanford, Stanford University Press). Bernard, J (1976) ‘The Historical Roots of Occupational Segregation: Historical and Structural Barriers to Occupational Desegregation’ 1 Signs 175–79. Bisharat, GE (1989) Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank (Austin, University of Texas Press). Bob, C (2012) The Global Right Wing and the Clash of World Politics (Cambridge, Cambridge University Press). Bottomley, G, de Lepervance, M and Martin, J (eds) (1991) Intersexions: Gender/Class/Culture/Ethnicity (Sydney, Allen & Unwin). Boukalas, C (2013) ‘Politics as Legal Action / Lawyers as Political Actors Towards a Reconceptualisation of Cause Lawyering’ 22 Social and Legal Studies 395–420. Bourdieu, P (1987) ‘The Force of Law: Toward a Sociology of the Juridical Field’ 38 Hastings Law Journal 814–54. —— (1998) Masculine Domination (Stanford, Stanford University Press). Broughton, JM (1983) ‘Women’s Rationality and Men’s Virtues: A Critique of Gender Dualism in Gilligan’s Theory of Moral Development’ 50 Social Research 597–642. Bryson, A (2009) No Coward Soul: A Biography of Thekla Beere (Dublin, Institute of Public Administration). Bryson, A and McEvoy, K (2016) ‘Women Lawyers and the Struggle for Change in Conflict and Transition’ 42 Australian Feminist Law Journal 51–73. Byles, A and Morris, P (1977) Unmet Need: The Case of the Neighbourhood Law Centre (London, Routledge). Campbell, K (2007) ‘The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia’ 1 International Journal of Transitional Justice 411–32. Capelletti, M (ed) (1979) Access to Justice 4 vols (Leiden, Brill). Catterall, E, McEvoy, K, Mallinder, L and Bryson, A (2016) ‘Boycotting Unjust Legal Proceedings’ (Lawyers, Conflict and Transition project) lawyersconflictandtransition.org/themainevent/wp-content/ uploads/2014/07/BOYCOTTING-UNJUST-LEGAL-PROCEEDINGS-ENGLISH-FINAL.pdf. Cheesman, N (2015) Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge, Cambridge University Press). Clifford, B (2012) The Global Right Wing and the Clash of World Politics (Cambridge, Cambridge University Press). Cohen, S (2001) States of Denial: Knowing About Atrocities and Suffering (Cambridge, Polity Press). Collier, R (2013) ‘Rethinking Men and Masculinities in the Contemporary Legal Profession: The Example of Fatherhood, Transnational Business Masculinities, and Work-Life Balance in Large Law Firms’ 13 Nevada Law Journal 410–37. Collins, C (2017) Transitional Justice in Latin America: The Uneven Road from Impunity Towards Accountability (London, Routledge). Collins, PH and Bilge, S (2016) Intersectionality (Cambridge, Polity Press). Conaghan, J (2000) ‘Reassessing the Feminist Theoretical Project in Law’ 27 Journal of Law and Society 351–85. Cotterrell, R (2012) ‘Comparative Sociology of Law’ in DS Clark (ed), Comparative Law and Society (Cheltenham, Edward Elgar).

346  Anna Bryson, Kieran McEvoy and Alex Batesmith Crenshaw, K (1989) ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ 1989 University of Chicago Legal Forum 139–67. —— (1991) ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ 43 Stanford Law Review 1241–1300. Cummings, SL (2004) ‘The Politics of Pro Bono’ 52 UCLA Law Review 1–149. —— (2017) ‘Rethinking the Foundational Critiques of Lawyers in Social Movements’ 85 Fordham Law Review 1987–2015. Dawuni, JJ (2017) ‘Lawyers in Ghana’ presented at the International Meeting on Law and Society, Mexico City. Derrida, J and Ferraris, M (2001) A Taste for the Secret (Cambridge, Polity Press). De La Maza, I (2016) ‘Big Law en Chile. Un Vistazo a las Firmas de Abogados’ in I De La Maza et al (eds), Big Law: Estudios de Abogados en Chile (Santiago, Thomson Reuters). Dent, M, Bourgeault, IL, Denis, J-L and Kuhlmann, E (eds) (2016) Routledge Companion to the Professions and Professionalism (London, Routledge). Dezalay, Y and Garth, B (eds) (2011) Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge). Diamond, S (1995) Roads to Domination: Right Wing Movements and Political Power in the United States (New York, Guilford Press). Donovan, D (1993) ‘Cambodia: Building a Legal System from Scratch’ 27 International Lawyer 445–54. Dotan Y (2014) Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel (Cambridge, Cambridge University Press). Dudai, R (2017) ‘Entryism, Mimicry and Victimhood Work’ 21 International Journal of Human Rights 866–88. Dziech, BW and Weiner, L (1984) The Lecherous Professor: Sexual Harassment on Campus, 2nd edn (Urbana, University of Illinois Press). Eagly, IV (2012) ‘Criminal Clinics in the Pursuit of Immigrant Rights: Lessons from the Loncheros’ 2 University of California Irvine Law Review 91–123. El Gantri, S, McEvoy, K, Mallinder, L and Bryson, A (2015) ‘The Role of Lawyers as Transitional Actors in Tunisia’ (Lawyers, Conflict and Transition project) lawyersconflictandtransition.org/themainevent/ wp-content/uploads/2014/07/THE-ROLE-OF-LAWYERS-AS-TRANSITIONAL-ACTORS-INTUNISIA-ENGLISH1.pdf. Ellmann, S (1992) In a Time of Trouble: Law and Liberty in South Africa’s State of Emergency (Oxford, Oxford University Press). Epstein, L (1985) Conservatives in Court (Knoxville, University of Tennessee). Essed, P (1991) Understanding Everyday Racism: An Interdisciplinary Theory (London, Sage). Etzkowitz, H, Kemelgor, C and Uzzi, B (2000) Athena Unbound: The Advancement of Women in Science and Technology (Cambridge, Cambridge University Press). Evetts, J (2003) ‘The Sociological Analysis of Professionalism: Occupational Change in the Professional World’ 18 International Sociology 395–415. Fenster, T and Misgav, C (2019) ‘Israeli Feminist Geography: Women, Gender and Queer Geographies’ 26 Gender, Place and Culture 1119–27. Fincher, LH (2020) ‘Women Leaders are Doing a Disproportionately Great Job at Handling the Pandemic. So Why Aren’t There More of Them?’ CNN 16 April. Flaherty, M (1994) ‘Human Rights Violation against Defense Lawyers: The Case of Northern Ireland’ 7 Harvard Human Rights Journal 87–124. Franke, KM (2006) ‘Gendered Subjects of Transitional Justice’ 15 Columbia Journal of Gender and Law 813–28. Freidson, E (1994) Professionalism Reborn: Theory, Prophecy and Policy (London, Polity). Friedman, E and Gavriely-Nuri, D (2017) Israeli Discourse and the West Bank: Dialectics of Normalization and Estrangement (London, Routledge).

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  347 Ghai, Y (2010) ‘Access to Land and Justice: Anatomy of a State without the Rule of Law’ in Y Ghai and J Cottrell (eds), Marginalized Communities and Access to Justice (New York, Routledge). Gilligan, C (1982) In a Different Voice: Psychological Theory and Women’s Development (Harvard, Harvard University Press). Gowder, P (2016) The Rule of Law in the Real World (Cambridge, Cambridge University Press). Grabham, E, Cooper, D, Krishnadas, J and Herman, D (eds) (2008) Intersectionality and Beyond: Law, Power and the Politics of Location (London, Routledge). Gready, P (2011) The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond (London, Routledge). Guellali, A (2017) ‘One Step Forward, One Step Back in Tunisia: Progress on Women’s Rights; Regression on Justice’ 15 September www.hrw.org/news/2017/09/15/one-step-forward-one-step-back-tunisia. Hagan, J and Kay, F (1995) Gender and Practice: A Study of Lawyers’ Lives (New York, Oxford University Press). Hajjar, L (1997) ‘Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel / Palestine’ 31 Law & Society Review 473–504. —— (2005) Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (Berkeley, University of California Press). Hakim, C (2010) ‘Erotic Capital’ 26 European Sociological Review 499–518. Halliday, TC, Karpik, L, and Feeley, M (eds) (2007) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). Hancock, A (2016) Intersectionality: An Intellectual History (Oxford, Oxford University Press). Handel, A, Allegra, M and Maggor, E (eds) (2017) Normalizing Occupation: The Politics of Everyday Life in the West Bank Settlements (Bloomington, Indiana University Press). Handler, JF (1978) Lawyers and the Pursuit of Legal Rights (New York, Academic Press). Hanlon, G (1998) Lawyers, the State and the Market: Professionalism Revisited (London, Palgrave Macmillan). Hatcher, L (2005) ‘Economic Libertarians, Property, and Institutions: Linking Activism, Ideas and Identities among Property Rights Activists’ in A Sarat and SA Scheingold (eds), The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (Stanford, Stanford University Press) 112–46. Hawkesworth, M (2005) ‘Engendering Political Science: An Immodest Proposal’ 1 Politics and Gender 141–56. Hilbink, T (2004) ‘You Know the Type: Categories of Cause Lawyers’ 29 Law & Social Inquiry 657–98. Hodgson, G (1996) The World Turned Right Side Up: A History of the Conservative Ascendancy in America (New York, Houghton Mifflin). Human Rights First (HRF) (2005) ‘Human Rights Defenders and Justice and Accountability in the Americas’ (New York, Human Rights First). Hunter, R (1996) ‘Deconstructing the Subjects of Feminism: The Essentialism Debate in Feminist Theory and Practice’ 6 Australian Feminist Law Journal 135–63. —— (2003) ‘Women Barristers and Gender Difference in Australia’ in U Schultz and G Shaw (eds), Women in the World’s Legal Professions (Oxford, Hart Publishing) 103–23. Hurst, JW (1950) The Growth of American Law (Boston, Little Brown). Ignatieff, M (1998) The Warrior’s Honor: Ethnic War and the Modern Conscience (New York, Henry Holt & Co). Jabareen, H (2010) ‘Transitional Lawyering and Legal Resistance in National Courts: Palestinian Cases before the Israeli Supreme Court’ 13 Yale Human Rights and Development Law Journal 239–80. Johnson, T (1972) Professions and Power (London, Macmillan). Katz, J (1982) Poor People’s Lawyers in Transition (New Brunswick, NJ, Rutgers University Press). Kawar, L (2011) ‘Legal Mobilization on the Terrain of the State: Creating a Field of Immigrant Rights Lawyering in France and the United States’ 36 Law & Social Inquiry 354–87. Ketelaars, E (2018) ‘Gendering Tunisia’s Transition: Transformative Gender Justice Outcomes in Times of Transitional Justice Turmoil?’ 12 International Journal of Transitional Justice 407–26.

348  Anna Bryson, Kieran McEvoy and Alex Batesmith Khalil, A (2014) Tunisia’s Women: Partners in Revolution 19 Journal of North African Studies 186–99. Klaaren, J (2014) ‘Current Demographics in Large Corporate Law Firms in South Africa’ 8 African Journal of Legal Studies 174–81. Kricheli-Katz T, Rosen-Zvi, I and Ziv, N (2018) ‘Hierarchy and Stratification in the Israeli Legal Profession’ 52 Law & Society Review 436–70. Krishnan, K (2005) ‘Transgressive Cause Lawyering in the Developing World: The Case of India’ in A Sarat and A Scheingold (eds), The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (Stanford, Stanford University Press) 349–82. —— (2006) ‘Lawyering for a Cause and Experiences from Abroad’ 94 California Law Review 575–615. Larson, M (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Levin, LC and Mather, L (2019) ‘Beyond the Guild: Lawyer Organizations and Law Making’ 18 Washington University Global Studies Law Review 589–663. Lindsey, T and Crouch, M (2013) ‘Cause Lawyers in Indonesia: A House Divided’ 31 Wisconsin International Law Journal 620–45. Luban, D (2012) ‘The Moral Complexity of Cause Lawyers Within the State’ 81 Fordham Law Review 705–14. Mahdawi, A (2020) ‘The Secret Weapon in the Fight Against Coronavirus: Women’ The Guardian 11 April. Mann-Shalvi, H (2018) From Ultrasound to Army: The Unconscious Trajectories of Masculinity in Israel (London, Routledge). Marschall, S (2006) ‘Commemorating “Struggle Heroes”: Constructing a Genealogy for the New South Africa’ 12 International Journal of Heritage Studies 176–93. McAuliff, P (2016) ‘Structural Causes of Conflict and the Superficiality of Transition’ in C Corradetti, N Eisikovits and J Volperotondi (eds), Theorizing Transitional Justice (London, Routledge). McCann, MW (1986) Taking Reform Seriously: Critical Perspectives on Public Interest Liberalism (Ithaca, Cornell University Press). —— (1994) Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago, University of Chicago Press). McCann, MW and Silverstein, H (1998) ‘Rethinking Law’s Allurements: A Relational Analysis of Social Movement Lawyers in the United States’ in A Sarat and S Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) 261–92. McClintock, A (1993) ‘Family Feuds: Gender, Nationalism and the Family’ 44 Feminist Review 61–80. McConville, M, Hodgson, J and Bridges, L (1994) Standing Accused: The Organization and Practices of Criminal Defence Lawyers in Britain (Oxford, Oxford University Press). McEvoy, K (2011) ‘What Did the Lawyers Do During the “War”? Neutrality, Conflict and the Culture of Quietism’ 74 Modern Law Review 350–84. —— (2019) ‘Cause Lawyers, Political Violence, and Professionalism in Conflict’ 46 Journal of Law and Society 529–58. McEvoy, K and Bryson, A (2021) ‘Boycott, Resistance and the Law: Cause Lawyering in Conflict and Authoritarianism’ The Modern Law Review 1–36. McEvoy, K and Rebouche, R (2007) ‘Mobilizing the Professions: Lawyers, Politics, and the Collective Legal Conscience’ in J Morrison, K McEvoy and G Anthony (eds), Judges, Transition, and Human Rights (Oxford, Oxford University Press). Meili, S (2013) ‘UK Refugee Lawyers: Pushing the Boundaries of Domestic Court Acceptance of International Human Rights Law’ 54 Boston College Law Review 1123–48. Menkel-Meadow, C (1985) ‘Portia in a Different Voice: Speculations on Women’s Lawyering Process’ 1 Berkeley Women’s Law Journal 39–63. —— (1989) ‘Feminization of the Legal Profession: The Comparative Sociology of Women Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 196–255.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  349 — (1998) ‘The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers’ in A Sarat and S Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) 31–68. — (2005) ‘Portia Redux: Another Look at Gender, Feminism, and Legal Ethics’ in SD Carle (ed), Lawyer’s Ethics and the Pursuit of Social Justice, A Critical Reader (New York, New York University Press). Merry, SE (2006a) ‘Transnational Human Rights and Local Activism: Mapping the Middle’ 108 American Anthropologist 38–51. —— (2006b) Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago, University of Chicago Press). Morris, C (2016) ‘Justice Inverted: Law and Human Rights in Cambodia’ in K Brickell and S Springer (eds), The Handbook of Contemporary Cambodia (London, Routledge). Munger, F (2015) ‘Thailand’s Cause Lawyers and Twenty-First-Century Military Coups: Nation, Identity, and Conflicting Visions of the Rule of Law’ 2 Asian Journal of Law and Society 301–22. NeJaime D (2012) ‘Cause Lawyers Inside the State’ 81 Fordham Law Review 649–704. Nelken, D (2010) Comparative Criminal Justice: Making Sense of Difference (Los Angeles, Sage). Nelson, RL, Dinovitzer, R, and Pickert, G (2009) After the JD II: Second Results from a National Study of Legal Careers (Washington, DC, NALP and Chicago, American Bar Foundation). Ní Aoláin, F (2012) ‘Advancing Feminist Positioning in the Field of Transitional Justice’ 6 International Journal of Transitional Justice 205–28. Ní Aoláin, F, Cahn, N, Haynes, DF and Valji, N (2018) ‘Mapping the Terrain: Gender and Conflict in Contemporary Perspective’ in F Ní Aoláin, N Cahn, DF Haynes and N Valji (eds), The Oxford Handbook of Gender and Conflict (Oxford, Oxford University Press). Ní Aoláin, F and Turner, C (2007) ‘Gender, Truth and Transition’ 16 UCLA Women’s Law Journal 229–79. O’Connor, K (1980) Women’s Organizations’ Use of the Courts (Lexington, MA, Lexington Books). O’Connor, Sandra Day (1998) ‘Professionalism’ 76 Washington University Law Quarterly 5–13. O’Donovan-Polten, S (2001) The Scales of Success: Constructions of Life Career Success of Eminent Men and Women Lawyers (Toronto, University of Toronto Press). Olson, SM (1984) Clients and Lawyers: Securing the Rights of Disabled Persons (Westport, CT, Greenwood Press). O’Rourke, C (2013) Gender Politics in Transitional Justice (London, Routledge). Parker, A, Russo, M, Sommer, D and Yaeger, P (eds) (1992) Nationalisms and Sexualities (London, Routledge). Parizot, C (2018) ‘Viscous Spatialities: The Spaces of the Israeli Permit Regime of Access and Movement’ 117 South Atlantic Quarterly 21–42. Patrick, G (2006) ‘Comparative Legal Families and Comparative Legal Traditions’ in M Reimann and R Zimmerman (eds), The Oxford Handbook of Comparative Law (Oxford, Oxford University Press). Pérez-Perdomo, R (2008) ‘Lawyers, Rule of Law, and Social Justice: A Latin American Perspective’ 5 University of St Thomas Law Journal 730–42. Popper, K (1959) The Logic of Scientific Discovery (London, Routledge). Posner, E and Vermeule, A (2004) ‘Transitional Justice as Ordinary Justice’ 117 Harvard Law Review 761–825. Pringle, R (1998) Sex and Medicine: Gender, Power and Authority in the Medical Profession (Cambridge, Cambridge University Press). Rackley, E (2013) Judging and the Judiciary: From Difference to Diversity (London, Routledge). Ricoeur, P (2004) Memory, History, Forgetting (Chicago, University of Chicago Press). Riesman, D (1951) ‘Toward an Anthropological Science of Law and the Legal Profession’ 57 American Journal of Sociology 121–35. Sachs, A (2011) The Strange Alchemy of Life and Law (Oxford, Oxford University Press). Sarat A (ed) (2011) Studies in Law, Politics and Society: Special Issue: Social Movements/Legal Possibilities (Bingley, Emerald Books). Sarat, A and Scheingold, SA (eds) (1998) Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford, Oxford University Press).

350  Anna Bryson, Kieran McEvoy and Alex Batesmith —— (2001) Cause Lawyering and the State in a Global Era (Oxford, Oxford University Press). —— (2004) Something to Believe In: Politics, Professionalism and Cause Lawyering (Stanford, Stanford University Press). —— (2005) The World Cause Lawyers Make: Structure and Agency in Legal Practice (Stanford, Stanford University Press). —— (2006) Cause Lawyers and Social Movements (Stanford, Stanford University Press). —— (2008) The Cultural Lives of Cause Lawyers (Cambridge, Cambridge University Press). Scheingold, SA (1975) Politics of Rights: Lawyers, Public Policy and Political Change (New Haven, Yale University Press). Schultz, U and Shaw, G (eds) (2003) Women in the World’s Legal Professions (Oxford, Hart Publishing). —— (2013) Women in the Judiciary (London, Routledge). Seron, C (2007) ‘The Status of Legal Professionalism at the Close of the Twentieth Century: Chicago Lawyers and Urban Lawyers’ 32 Law & Social Inquiry 581–607. Sfard, M (2005) ‘The Human Rights Lawyer’s Existential Dilemma’ 38 Israel Law Review 154–69. —— (2009) ‘The Price of Internal Legal Opposition to Human Rights Abuses’ 1 Journal of Human Rights Practice 37–50. —— (2018) The Wall and the Gate: Israel, Palestine and the Legal Battle for Human Rights (New York, Metropolitan Books). Simon, W (1984) ‘Visions of Practice in Legal Thought’ 36 Stanford Law Review 469–507. Snyder, J and Vinjamuri, L (2004) ‘Advocacy and Scholarship in the Study of International War Crime Tribunals and Transitional Justice’ 7 Annual Review of Political Science 345–62. Somerville, S (2005) ‘Notes Towards a Queer History of Naturalization’ 57 American Quarterly 659–75. Southworth, A (2008) Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago, University of Chicago Press). Spaulding, N (2003) ‘Reinterpreting Professional Identity’ 74 University of Colorado Law Review 1–104. Spelman, E (1988) Inessential Women (Boston, Beacon Press). Stallone, S (2019) ‘A White City Turned Pink: Tel Aviv as Israel’s Homonormative LGBTQ Flagship’ 4 Queer Studies in Media & Popular Culture 257–70. Stanford Law Review (1988) ‘Project: Gender, Legal Education and the Legal Profession: An Empirical Study of Stanford Law Students and Graduates’ 40 Stanford Law Review 1209–97. Sterett, S (1998) ‘Caring about Individual Cases: Immigration Lawyering in Britain’ in A Sarat and S Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) 293–316. Stern, RE (2016) ‘Activist Lawyers in Post-Tiananmen China’ 42 Law & Social Inquiry 234–51. Sue, DW et al (2007) ‘Racial Microaggressions in Everyday Life: Implications for Clinical Practice’ 62 American Psychologist 271–86. Tagliarina, D (2012) ‘It Gets Better?: The New Right’s Countermobilization of Religious Rights Contra LGBT Rights’ prepared for the 2012 American Political Science Association Annual Conference. Tam, W (2010) ‘Political Transition and the Rise of Cause Lawyering: The Case of Hong Kong’ 35 Law & Social Inquiry 663–87. —— (2013) Legal Mobilization under Authoritarianism: The Case of Post-Colonial Hong Kong (Cambridge, Cambridge University Press). Teitel, R (2005) ‘Transitional Rule of Law’ in A Czarnota, M Krygier and W Sadurski (eds), Rethinking the Rule of Law After Communism (Budapest, Central European University Press). Thompson, EP (1975) Whigs and Hunters (London, Penguin). Thornton, M (1996) Dissonance and Distrust: Women in the Legal Profession (Melbourne, Oxford University Press). Triedman, J (2014) ‘Big Law is Losing the Race?’ American Lawyer 46–53 (June). Turshen, M, Meintjies, S and Pillay, A (2001) ‘There is No Aftermath for Women’ in S Meintjies, P Anu and T Meredeth (eds), The Aftermath: Women in Post-Conflict Transformation (London, Zed Books). Vose, CE (1958) ‘Litigation as a Form of Pressure Group Activity’ 319 Annals of the American Academy of Political and Social Science 20–31.

Cause Lawyering in Conflicted, Authoritarian and Transitional Societies  351 —— (1959) Caucasians Only: The Supreme Court, The NAACP, and the Restrictive Covenant Cases (Berkeley, University of California Press). Whyte, D (2007) ‘The Crimes of Neo-Liberal Rule in Occupied Iraq’ 47 British Journal of Criminology 177–95. Wilder, GZ (2007) Women in the Profession: Findings from the First Wave of the After the JD Study (Washington, DC, National Association for Law Placement and Overland Park, KS, NALP Foundation). Wittenberg-Cox, A (2020) ‘What Do Countries with the Best Coronavirus Responses Have in Common? Women Leaders’ Forbes Magazine 13 April. Yeatman, A and Gunew, S (eds) (1993) Feminism and the Politics of Difference (St Leonards, Allen & Unwin). Yesh Din (2007) Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories (Tel Aviv, Yesh Din). Zacharias, U (2001) ‘Trial by Fire: Gender, Power, and Citizenship in Narratives of the Nation’ 69 Social Text 29–51. Ziv, N (2018) ‘Navigating the Judicial Terrain under Israeli Occupation: Palestinian and Israeli Lawyers in the Military Courts’ 42 Fordham International Law Journal 729–60.

352

15 Advocates for Silenced Voices How Human Rights Lawyers in Europe and Latin America Defend the Rule of Law STEFANIE LEMKE

I. INTRODUCTION

T

his chapter is about the harassment of lawyers by an increasingly politicised judiciary in Europe and Latin America and the failure of international human rights mechanisms to protect them. Addressing the situation of lawyers in Azerbaijan, Bolivia, Ecuador, Russia and Venezuela, this chapter focuses on countries which, over the last two decades, repeatedly ignored calls from the international community to ensure the rights to a lawyer and an independent judge. In 2013, the UN Special Rapporteur on the Situation of Human Rights Defenders warned that the space for civil society and defenders had visibly shrunk in certain regions of the world and that more sophisticated forms of silencing their voices were emerging, including the misuse of the judicial system to criminalise and stigmatise their activities (Sekaggya 2013: 10). In Europe, the growing politicisation of judges is illustrated by the Polish Law and Justice Party’s packing of the Constitutional Court and Hungary’s metamorphosis from an admirably independent judiciary to one dominated by Viktor Orbán (European Commission 2019b; UN Special Rapporteur on the Independence of Judges and Lawyers 2019). Similarly, the politicisation of the courts has increased dramatically in Latin America. In Bolivia, Ecuador and Venezuela, for example, governments promised social change by openly rejecting liberal principles, including the separation of powers, and emphasising the ‘unity of government’. As a consequence, lawyers in both regions have encountered difficulty in taking cases involving politically sensitive matters. Lawyers representing activists and other regime critics are allowed little time to prepare the defence of their clients, and courts do not observe due process rules in such cases. Lawyers themselves are targeted for their human rights work: they are subjected to threats and attacks, have their licences revoked and are convicted of criminal offences (Human Rights Watch 2017; OSCE 2011: 38; PACE 2015; 2020). For example, Rasul Jafarov was charged with illegal entrepreneurship, abuse of authority, forgery and embezzlement after attending a Council of Europe event at which he had criticised

354  Stefanie Lemke Azerbaijan’s government.1 The European Court of Human Rights (ECtHR) later ruled that Azerbaijan’s courts had failed to base their actions on sufficient evidence, noting that the sole purpose of their judgment was to silence and punish Mr Jafarov for his human rights activities.2 This chapter examines the important relationship between lawyers and judges, which is essential to ensuring a fair trial. It provides a contextual study of a sample of European and Latin American countries (Azerbaijan, Bolivia, Ecuador, Russia and Venezuela), where governments are vested with far-reaching powers and use the judiciary to undermine the work of lawyers. It concludes with a critical assessment of the current international human rights mechanisms to more effectively resist judicial harassment of lawyers. II.  THE RULE OF LAW, THE RIGHT TO A FAIR TRIAL AND THE LEGAL PROFESSION

It is often said that any backlash against the independence of judges weakens the rule of law, a concept that has enjoyed much international support and features in the most prominent human rights documents such as the UN Declaration on Human Rights. The rule of law is invoked by lawyers, scholars, politicians, activists and citizens and is associated with justice. The UN, for example, states that the rule of law has ‘fundamental importance for political dialogue and cooperation’ and ‘international peace and security, human rights and development’.3 Accordingly, states should be guided by the rule of law in all their activities, which includes upholding the independence and impartiality of judges.4 Despite this, there is no agreed definition of the rule of law. There is some consensus that it should limit the arbitrary exercise of political power and require citizens to comply with legal norms: both the rulers and the ruled should be held accountable by law (Waldron 2020). This, however, can be interpreted in different ways, making the rule of law a perpetually contested concept. Aristotle (1287b) contrasted the rule of law with that of individuals, arguing that the form of government depends not only on the type of law imposed but also on the regime that enacts and administers law. For Montesquieu (1748), the essence of the rule of law was the separation of powers, particularly of the judiciary from the executive and legislative branches. Dicey (1885) contended that legal equality was a prerequisite for the rule of law. More recently, Krygier (2015) noted that conceptions of the rule of law are shaped by the ‘socio-political and legalinstitutional histories of the different societies’ in which we live. Consequently, institutional arrangements intended to promote the rule of law in one country may have little or no impact in another. It appears, however, that courts are central to the rule of law: through their rulings, judges participate in the lawmaking and social control functions of the government (Domingo 1999: 154; Guarnieri 2007). A judiciary controlled by the government or other powerful groups is less likely to check the exercise of power and deliver justice (Larkins 1996: 611, 624; Couso 2015: 254). International organisations have therefore developed a variety of regulations to remind judges of their powerful role in the judicial process and the importance of the right to a fair trial.5 1 Rasul Jafarov v Azerbaijan Application No 69981/14, Merits and Just Satisfaction, at para 106 (17 March 2016). 2 ibid at para 178. Although Azerbaijan is not geographically in Europe, it is a member of the Council of Europe, which has 47 member states including others at the rim of Europe like Russia, Turkey, Georgia and Armenia; it should not be confused with the European Union and its 27 Member States. 3 UN General Assembly, High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, UN Doc A/RES/67/1, at p 1 (24 September 2012). 4 ibid at p 1 and para 13 (24 September 2012). 5 Basic Principles on the Independence of the Judiciary para 6; Magna Carta of Judges rules 1 and 16; Universal Charter of the Judge of the International Association of Judges Art 1.

Advocates for Silenced Voices  355 Their responsibilities range from ensuring that the suspect is represented by a lawyer and upholding the presumption of innocence to safeguarding the equality of arms between defence and prosecution.6 Judges should perform their duties without bias. Their decisions should be based on the application of legal rules, through legal reasoning and findings of facts grounded in evidence and analysis.7 Judges should be the watchdogs of the political process: neutral servants of the law who apply it with integrity and free of corruption (Shapiro and Stone Sweet 2002: 3). In practice, there are many ways their independence may be compromised. Ideally, judges should be appointed and promoted by an independent, impartial and purely judicial body – such as a judicial council – on the basis of merit (Council of Europe 2017: 4; Domingo 1999: 154; Fiss 1993: 59; Jackson 2012: 26 and 28; Popkin 2002: 8). Such judges are thought to be less vulnerable to internal and external pressures because they are qualified to perform their tasks (ibid: 21; Jackson 2012: 28; Council of Europe 2017: 4). An impartial (external) authority should ensure that judges are dismissed only for good cause following a fair and transparent procedure in which they may exercise their basic formal rights (Cole 2002: 12; Council of Europe 2017: 3; UN Special Rapporteur 2014: 14). Other factors that may affect their independence are: the length and security of tenure (eg the possibility of reappointment, life tenure and mandatory retirement); protection against salary reduction; and the existence of a legal complex – a strategic alliance of courts with members of the civil society. Corruption (perhaps encouraged by insufficient funding) and the absence of an independent body overseeing disciplinary proceedings may also curtail the independence of judges (Brinks 2005: 622; Council of Europe 2017: 6; Fiss 1993: 58–59; Halliday et al 2007: 7; Jackson 2012: 36, 49, 53; Lemke 2017: 7; Popkin 2002: 35; Transparency International 2007: 7). Prosecutors, like judges, play a vital role in the administration of justice and owe the public a commitment to the rule of law (UNODC 2014: 38).8 The UN Guidelines on the Role of Prosecutors, for example, note that they should ‘respect and protect human dignity and uphold human rights’.9 Being tasked with instituting prosecutions and supervising the legality of investigations, the prosecution is either part of the judiciary (in civil law systems) or the executive (in common law systems) and has several other responsibilities (Myjer et al 2008: 1; UNODC 2014: 16–19). Prosecutors should ensure, for example, that the police observe legal principles, bring suspects promptly before a judge, and abstain from using illegally obtained evidence (UNODC 2014: 38).10 Finally, the rule of law is integral to the work of lawyers. In criminal cases, a defence lawyer’s task is to prevent unfairness, which can occur at all stages of the proceedings: when a person is taken into custody, questioned by the police, and tried in court.11 The lawyer’s role is to ensure that clients do not incriminate themselves, are informed of their procedural rights, and are enabled to influence the outcome. All accused have the right to defend themselves in person, obtain legal assistance of their own choosing, and (subject to certain conditions) be

6 Bangalore Principles of Judicial Conduct principle 5 and paras 5.2 and 11; Magna Carta of Judges principle 5 and para 5.2; Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct para 9.5. 7 Bangalore Principles of Judicial Conduct principle 5 and para 5.2; Magna Carta of Judges rule 11; Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct para 9.5. 8 International Association of Prosecutor’s Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors rule 3(e) and (f); UN Guidelines on the role of prosecutors (1990) rules 3, 11. 9 UN Guidelines on the role of prosecutors rule 14. 10 CCPE, Opinion No 9 (2014) para 24; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; UN Guidelines on the Role of Prosecutors principle 16 and rules 12, 14 and 16. 11 Sirghi v Romania Application No 19870/05, Merits and Just Satisfaction, at para 44 (13 December 2011); Simeonovi v Bulgaria Application No 21980/04, Merits and Just Satisfaction, at para 111 (12 May 2017).

356  Stefanie Lemke given free legal assistance.12 Such legal assistance should be effective. Lawyers must not only be present but also able actively to assist their clients, ensuring a fair balance between prosecution and defence.13 This requires that lawyers be given adequate time and facilities to prepare the defence, the opportunity to communicate with clients in private, to question witnesses, and to put all relevant arguments before the court and present the case under conditions that do not disadvantage their clients.14 There is, unfortunately, a considerable divergence in how these rules are applied. This is demonstrated by in-depth studies of the situation of lawyers in Azerbaijan, Russia, Bolivia, Ecuador and Venezuela, where judicial authorities systematically violate basic procedural rights in cases involving politically sensitive matters. III.  COUNTRY STUDIES

A.  Europe: Azerbaijan and Russia i.  Overview of Judicial Systems Azerbaijan’s judiciary suffers from very high levels of corruption and is exploited by government to penalise human rights defenders, including lawyers (Amnesty International 2018: 83; CAT 2016: 3; Transparency International 2017: 4). There is no separation of powers: the Aliyev family has controlled the judiciary since 1993. After Ilham Aliyev succeeded his father as president in 2003, he was re-elected to his fourth term in office in 2018 amid evidence of electoral fraud (OSCE 2018). The Azerbaijani constitution gives the president broad authority over the judicial system and parliament, making the judiciary totally subservient to the executive. The constitution allows the president to nominate the candidates for higher courts, including the constitutional and supreme courts.15 Although consent by the legislature is required, this is a formality since parliament consists mainly of pro-government parties (Freedom House 2021a). Furthermore, the president appoints the chief justices and Prosecutor General without parliamentary approval.16 The president also exercises significant control over lower court judges, whose nominations must be approved by him.17 They are nominated by the judicial council, a self-governing body, over which the minister of justice, a close ally of the president, has presided since its creation in 2005. Nine out of its 15 members are judges appointed by the president, two are selected jointly by the president and parliament, and one each is chosen by the Prosecutor General’s office and the board of the national bar association (Eastern Partnership Enhancing Judicial Reform in the Eastern Partnership Countries 2014). Judges are further controlled by an initial three-year probationary period18 during which the quality of 12 Pakelli v Germany Application No 8398/78, Merits and Just Satisfaction, at para 31 (25 April 1983). 13 Galstyan v Armenia Application No 26986/03, Merits and Just Satisfaction, at para 84 (15 November 2007); Salduz v Turkey Application No 36391/02, Merits and Just Satisfaction, at paras 53–54 (27 November 2008); Iglin v Ukraine Application No 9908/0, Merits and Just Satisfaction, at para 65 (12 January 2012); Ibrahim and Others v the United Kingdom Application No 5878/08, Merits and Just Satisfaction, at para 255 (30 March 2016); Simeonovi v Bulgaria Application No 21980/04, Merits and Just Satisfaction, at para 112 (12 May 2017). 14 Foucher v France Application No 22209/93, Merits and Just Satisfaction, at para 34 (18 March 1997); Öcalan v Turkey Application No 46221/99, Merits and Just Satisfaction, at para 140 (12 May 2005); Gregačević v Croatia Application No 58331/09, Merits and Just Satisfaction, at para 51 (10 July 2012); Faig Mammadov v Azerbaijan Application No 60802/09, Merits and Just Satisfaction, at para 19 (26 January 2017). 15 Azerbaijani Constitution Art 130(2). 16 Azerbaijani Constitution Art 133(4). 17 Azerbaijani Courts and Judges Act Art 93(1). 18 Amendment to the Azerbaijani Courts and Judges Act, adopted on 11 February 2015. When a probationary period is imposed on newly appointed judges, the decision to retain them should be based on pre-established legal criteria

Advocates for Silenced Voices  357 their work and their conformity to the government’s politics are evaluated. Such a practice is seen as threat to judicial impartiality by the ECtHR19 (Lemke 2017). In Russia, the right to a fair trial is frequently violated, and many cases are taken to the ECtHR (Council of Europe 2021). Russia’s criminal justice system suffers from such a selective approach to justice and severe levels of corruption that it is ranked 129th out of 180 countries by independent watchdogs (Freedom House 2021b; Transparency International 2020; World Justice Project 2019). Judges and prosecutors ignore constitutional guarantees, systemically violating the equality of arms principle and the rights of anti-government voices. Institutions to safeguard the legal order are absent, due mainly to the prosecution’s broad authority (Venice Commission 2005: 12; 2017: 11). Russia’s Prosecutor General, unlike its Western European counterparts, is vested with a general supervisory function that endows the office with far-reaching powers to monitor the implementation of legal acts, including Russia’s antiextremism legislation, and to oversee the compliance of public authorities and private entities (such as local authorities, military officials and NGOs) with international human rights standards. This allows the Prosecutor General to enter their premises and access documents and materials without the need to demonstrate reasonable and objective grounds.20 The Prosecutor General’s requests direct ‘unconditional execution’, ie they have binding effect.21 Given that ‘such broadly defined general supervisory function was a logical component of the [former Soviet] system of unity of power and resulted from that system’s lack of administrative and constitutional courts and the institution of an ombudsman’, the Venice Commission (2005: 12) recommended that Russia limit the prosecution’s influence. It also pointed out that, in a democratic law-governed state, protection of the rule of law should be ‘the task of independent courts’ (ibid). Despite this, the Prosecutor General launched a nationwide campaign of unannounced inspections of human rights groups in 2013, in which around a thousand NGOs were searched by lower rank prosecutors and officials of the Ministry of Justice, the federal tax authority and other government agencies (Human Rights Watch 2013; Prosecutor General 2013). A subsequent report by the NGO ‘Closed Society’ showed that these inspections targeted organisations that addressed politically sensitive topics and received foreign funding: both Russian NGOs and national chapters of foreign human rights groups such as Amnesty International and Human Rights Watch (Lemke 2018). ii.  The Situation of Lawyers In Azerbaijan and Russia, judges and prosecutors systematically ignore the equality of arms, making it is almost impossible for lawyers to defend their clients. Article 91 of Azerbaijan’s Criminal Procedure Code guarantees several basic procedural rights, such as enough time to prepare a defence, access in order to see and copy court files, a statement on the accuracy and completeness of written records, and the right to include relevant ‘circumstances’ in such records. In practice, however, activists and their lawyers are regularly deprived of fair trials (CAT 2016: 3). Ali Aliyev, a vocal government critic and director of the Legal Education Society, a human rights NGO campaigning for and representing Azerbaijan’s political prisoners as well as merit, having regard to the qualifications, skills, and capacity required to adjudicate cases by applying the law while respecting human dignity. Such criteria do not exist in Azerbaijan: Recommendation CM/Rec(2010)12 on Judges: Independence, Efficiency and Responsibilities (17 November 2010); CM/Rec(2010)12, note 15, paras 44 and 51. 19 See, for example, Henryk Urban and Ryszard Urban v Poland Application No 23614/08, Merits and Just Satisfaction, at para 53 (30 November 2010). 20 Federal Law on the Prosecutor’s Office Art 1(1). 21 Federal Law on the Prosecutor’s Office Arts 6, 21 and 22.

358  Stefanie Lemke at the ECtHR, was detained and convicted for his human right activities.22 After his NGO had compiled a list of Azerbaijan’s political prisoners, it was raided and closed, following a crackdown on dissident voices.23 The Prosecutor General’s office then summoned Aliyev to testify against local NGOs. During the interview, he was also questioned about his background, family and human rights work.24 Thereafter, Aliyev was detained on suspicion of embezzlement, forgery and tax evasion, which the local district court justified by the seriousness of the charges and his flight risk.25 He appealed this decision and the search of his NGO’s office – without success. Azerbaijani courts also pressed charges of embezzlement, forgery and tax evasion against Rasul Jafarov, another Azerbaijani human rights lawyer.26 At the request of his lawyers, Mr K Bagirov, a lawyer based in Azerbaijan, and Mrs R Remezaite, a lawyer based in London, the ECtHR dealt with Jafarov’s case. The Court strongly criticised the domestic courts for limiting their role to an automatic endorsement of the prosecution’s applications. It found there was no evidence showing that Jafarov had engaged in the criminal activities of which he was accused.27 Two years later the ECtHR again criticised the prosecution’s decision to bring charges against another lawyer, Rashad Hasanov, without any evidence to support its accusations.28 After organising and participating in peaceful anti-government protests in Baku, Hasanov and his colleagues were accused of having obtained and stored Molotov cocktails. Despite the lack of reasonable suspicion against them, judges ordered and extended their pre-trial detention.29 In another case, Huseyn v Azerbaijan, the lawyers for Panah Huseyn, an opposition politician, were not given ‘sufficient access to the prosecution’s evidence after the pre-trial investigation had been completed and before the trial had commenced nor had they enjoyed such access after the trial had commenced, despite their repeated complaints to that effect’.30 The ECtHR also noted that restricting access to court documents generates ‘serious problems’ concerning the adequacy of the time and facilities afforded lawyers to prepare the defence of their clients: ‘The defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the prosecution’.31 Disciplinary proceedings were instituted against Khalid Bagirov by the Azerbaijani Bar Association for defaming the police. After Bagirov had commented on the death of an individual in police custody and criticised police brutality in Azerbaijan, his licence was suspended for a year.32 Later, local courts disbarred Bagirov for questioning the impartiality of a judge while representing one of his clients, the opposition politician Ilgar Mammadov. The judge ignored the ECtHR’s findings in Mammadov v Azerbaijan about several shortcomings of Azerbaijan’s criminal justice system.33

22 Aliyev v Azerbaijan Application Nos 68762/14 and 71200/14/08, Merits and Just Satisfaction (4 February 2019). 23 ibid at para 23 (4 February 2019). 24 ibid at para 10 (4 February 2019). 25 ibid at paras 22 and 24 (4 February 2019). 26 ibid at paras 207 and 214 (4 February 2019). 27 Rasul Jafarov v Azerbaijan Application No 69981/14, Merits and Just Satisfaction, at paras 128–30 and 143–44 (17 March 2016). 28 Rashad Hasanov v Azerbaijan Application Nos 48653/13, 52464/13, 65597/13 and 70019/13, Merits and Just Satisfaction, at para 105 (7 September 2018). 29 ibid at paras 105 and 107 (7 September 2018). 30 Huseyn v Azerbaijan Application Nos 35485/05, 45553/05, 35680/05, 36085/05, Merits and Just Satisfaction, at paras 175 and 178 (26 October 2011). 31 ibid at para 175 (26 October 2011). 32 Bagirov v Azerbaijan Application Nos 81024/12 and 28198/15, Merits and Just Satisfaction, at para 18 (25 September 2020). 33 ibid at para 26 (25 September 2020).

Advocates for Silenced Voices  359 After the trial, local courts ruled that Bagirov’s remarks had cast ‘a shadow over our state’ and ‘tarnished the reputation of the judiciary’. They opted for the harshest disciplinary sanction, disbarment, without explaining why his comments represented serious misconduct.34 Both the court of appeal and the supreme court upheld the decision.35 In Insanov v Azerbaijan, the ECtHR found a violation of the rights of the defence, particularly the right to effective legal assistance.36 After being questioned by the police, the former health minister Ali Insanov was detained on suspicion of numerous acts of embezzlement of public property, abuse of official authority and complicity in an attempted coup d’état, allegedly planned for after the 2005 parliamentary elections. After searching Insanov’s home, the police found large amounts of cash in various currencies, large quantities of gold and jewellery, and deeds of various residential properties. At the pre-trial stage, Insanov’s lawyers had little access to their client and were not allowed to read his exceptionally voluminous case file, which would have required them to examine and evaluate an immense amount of documentary evidence, witness statements and other material.37 Insanov’s trial consumed the entire working week, without breaks.38 During weekends and non-working days, his lawyers were not allowed to see their client. At each hearing he was brought into the courtroom in handcuffs and seated in a metal cage. This forced his lawyers to counsel him through the bars of the metal cage, in the presence and within earshot of all trial participants, including the judge and the prosecution.39 Their requests to examine witnesses and grant adjournments for lawyer-client consultation were denied. The ECtHR concluded that the local authorities did not respect Insanov’s defence rights, particularly his right to effective legal assistance, including the examination of witnesses.40 The complex nature of the case would have required skilled legal assistance, including sufficient opportunities for lawyer and client to consult in private.41 The restrictions imposed on Insanov prevented him ‘from conversing openly with his lawyers and asking them questions that were important to the preparation of his defence’.42 The difficulties lawyers face when defending the political opposition in Russia are also well documented. Judges side with the prosecution, crediting evidence obtained by their investigators without reassessing it. The UNHRC (2015), for example, found there was excessive pre-trial detention of activists43 and few acquittals in politically sensitive cases. Courts also use their powers to prevent lawyers from doing their work. The ECtHR found that Russian courts violated the right to lawyer-client confidentiality of Khodorkovskiy and Lebedev, the senior managers of the former oil and gas company Yukos.44 Their lawyers argued that criminal charges were brought against them solely because of their political activities, particularly their financial support of opposition parties.45 After they were convicted and serving sentences in

34 ibid at paras 27 and 101–102 (25 September 2020). 35 ibid at paras 31 and 33 (25 September 2020). 36 Insanov v Azerbaijan Application No 16133/08, Merits and Just Satisfaction, at paras 165–170 (14 June 2013). 37 ibid at paras 166–67 (14 June 2013). 38 ibid at para 168 (14 June 2013). 39 ibid. 40 ibid at paras 165 and 170 (14 June 2013). 41 ibid at para 168 (14 June 2013). 42 ibid. 43 See, for example, Svinarenko and Slyadnev v Russia Application Nos 32541/08 and 43441/08, Merits and Just Satisfaction (17 July 2014); Vorontsov v Russia Application Nos 59655/14, 5771/15 and 7238/15, Merits and Just Satisfaction (31 January 2017). 44 Khodorkovskiy and Lebedev v Russia (No 2), Application Nos 51111/07 and 42757/07, Merits and Just Satisfaction, at para 533 (14 May 2020). 45 ibid at para 7 (14 May 2020).

360  Stefanie Lemke penal colonies, the Deputy General Prosecutor opened a new case, charging them with embezzlement and money-laundering, among other crimes. Both were transferred to a remand prison in Chita. When their lawyers tried to visit them, the police stopped, searched and detained them at a Moscow airport and examined and video-recorded confidential papers.46 On the way back to Moscow, investigators of the General Prosecutor’s Office also approached one of the lawyers, Ms Moskalenko, in the pre-flight security zone and ordered her to sign a formal undertaking not to disclose any information from her clients’ case materials.47 She did so but added a handwritten note that she had been coerced into signing the form and had not been given access to the documents.48 She also filed a formal complaint with the General Prosecutor’s Office, pointing out that the treatment of the defence team at the Moscow and Chita airports amounted to harassment and violation of their professional privilege.49 The General Prosecutor’s Office retaliated by initiating disbarment proceedings against her.50 Before the trial, Khodorkovskiy and Lebedev and their lawyers were given access to one copy of the case file, which they were allowed to study only in the presence of an investigator. When they asked to read in private the bill of indictment and appended written materials (which ran to 188 volumes), the investigator withdrew the case file.51 Khodorkovskiy and Lebedev were brought to their hearings in handcuffs, heavily guarded, and held in a poorly ventilated glass dock, preventing their lawyers from discussing the case and reviewing documents with their clients.52 Throughout the trial, all lawyer-client conversations were overheard by the guards, and a judge checked all documents the lawyers wished to show their clients.53 The ECtHR held that the local authorities violated Khodorkovskiy’s and Lebedev’s defence rights, including their right to an effective legal defence.54 The measures restricting their participation in the trial and consultation with their lawyers were neither necessary nor proportionate. The ECtHR stressed that legal assistance loses its utility if lawyers are unable to communicate with their clients and receive confidential instructions.55 B.  Latin America: Bolivia, Ecuador and Venezuela i.  Overview of Judicial Systems Latin American judges have faced serious threats to their autonomy from legislative and institutional reforms. This is seen in Bolivia, Ecuador and Venezuela, where judges are regarded as a tool of the government. When left-wing regimes came into power more than a decade ago, their leaders promised social change by openly rejecting liberal principles, including the separation of powers, while emphasising the ‘unity of government’ and politicising the judiciary. These governments created a climate of fear among judges at all levels, denouncing and arbitrarily removing from office anyone who held hostile views. Ecuadorian President Rafael Correa restructured the entire judiciary including the Constitutional Court and declared

46 ibid

at para 55 (14 May 2020). at para 56 (14 May 2020). 48 ibid at para 56 (14 May 2020). 49 ibid at para 57 (14 May 2020). 50 ibid at para 58 (14 May 2020). 51 ibid at para 69 (14 May 2020). 52 ibid at para 75 (14 May 2020). 53 ibid at paras 76, 464 and 466 (14 May 2020). 54 ibid at paras 463–472 (14 May 2020). 55 ibid at para 463 (14 May 2020). 47 ibid

Advocates for Silenced Voices  361 himself head of the judiciary after his party, Alianza País, won an absolute majority in parliament. Before Correa left office in 2017, his administration had increased the number of judges by 50 per cent and dismissed dozens of judges for ‘inexcusable errors’ (Grijalva 2011; ICJ 2014). The Supreme Court supported his policies, allowing him to abolish presidential term limits and run for a third term. Bolivia took similar steps to control the judiciary. Under President Evo Morales (2006–19), lower court judges could be removed for ‘grave violations while in office’. His administration also introduced the Ley Corta56 to allow the largest party, his Movimiento al Socialismo, to remove ‘unpopular’ higher court judges and appoint 15 new judges to Bolivia’s two Supreme Courts (Driscoll and Nelson 2011: 3; Los Tiempos 2017). In Venezuela, the country’s highest court, the Supreme Tribunal of Justice, affirmed laws that weakened the judiciary by suspending the judicial code of ethics and introducing short-term judicial appointments (Basabe-Serrano and Escobar 2014: 43). As a result, approximately 80 per cent of Venezuela’s judges had no security of tenure in 2014, employed on a provisional or temporary basis and vulnerable to removal by a simple administrative decision (ICJ 2014). Judges who oppose government policies are denounced in public, discredited as ‘saboteurs’ or ‘terrorists’, and face physical threats, a practice that was first reported to be common in 2009. Much international attention was generated by the case of Judge María Afiuni, who was jailed for granting conditional release to a government critic (Human Rights Watch 2010; UN 2011). During her own trial, she was accused of ‘spiritual corruption’ by the president, who said in a nationwide radio and television broadcast that she was an ‘outlaw’ and advised the Supreme Court President to sentence her to the maximum prison term of 30 years ‘in the name of the dignity of the country’ (Forero 2010). After a year in prison, she was transferred to house arrest. Her case was dropped but reopened two years later. In 2015, she was sentenced to another five years in prison. In 2020, authorities raided Judge Afiuni’s home, allegedly seeking evidence against her daughter, who had worked with the opposition leader, Juan Guaidó, in the US (Human Rights Watch 2021; IBA 2019). Pressure on judges in Bolivia, Ecuador and Venezuela is wielded by the judicial council, which selects, promotes and dismisses them. In Venezuela, the judicial council consists of six Supreme Court judges, appointed by the government, who can dismiss inferior judges without formal procedures. In Ecuador, the judicial council was headed by Gustavo Jalkh, Correa’s former minister of justice and member of his Alianza País (El Universo 2012; 2014; BasabeSerrano and Escobar 2014: 41). When Correa left office in 2017, his successor, Lenín Moreno, another member of Alianza País, promised to strengthen the judicial system. But Moreno’s administration retained the Organic Code on Judicial Function, which allows the judicial council to suspend and remove judges for acting with ‘criminal intent, evident negligence or inexcusable error’ and was used to justify the dismissal of 19 judges in the first half of 2019 (Human Rights Watch 2019). International calls to end such control of the judiciary are generally seen as an interference in domestic affairs and either ignored or met with accusations of neo-colonialism and espionage for the US. In response to criticism of its arbitrary judicial selection and removal criteria, Venezuela withdrew from the regional human rights system, rendering its citizens unable to request intervention by the Inter-American Court on Human Rights (IACHR 2010; UN 2011). After the Inter-American Commission on Human Rights57

56 Ley N° 180 de 24 de octubre de 2011 de Protección del Territorio Indígena y Parque Nacional Isiboro Sécure (TIPNIS). Gaceta Oficial de Bolivia 308NEC Del: 2011-10-25, 201112a.lexml. 57 The Inter-American Commission on Human Rights monitors state compliance with the regional human rights system.

362  Stefanie Lemke had supported three judges of Bolivia’s constitutional court, the country limited its funding for the Commission’s Special Rapporteur on Freedom of Expression. Prior to this, Bolivia’s parliament had passed a motion to suspend the three judges for opposing government policies (Terra 2014). ii.  The Situation of Lawyers For many years, the governments in Bolivia, Ecuador and Venezuela have attacked voices criticising their administrations by mobilising public condemnation, media censorship and the use of force, while judges have remained silent. With the judiciary58 abdicating its role as an independent branch, impunity for human rights violators is the norm (IACHR 2010; 2014; 2015a). In Venezuela, the government denounces critics through a website called Mission Truth,59 which names NGOs allegedly receiving funding from the US and conspiring against the government. In Ecuador, the president used his party’s parliamentary majority to pass the Communications Act 2013,60 which allows the government to dissolve civil society organisations on grounds of ‘political overtones’. In Bolivia, the government hired private firms to monitor online content of journalists known to write about the illicit business dealings of the president and his family. The journalists were imprisoned for ‘moral damage’ and ordered to apologise for their actions in public (Freedom House 2015: 211). Human rights lawyers are also a target of state repression in Bolivia, Ecuador and Venezuela. Their harassment and stigmatisation are state policies, conducted with the knowledge or direct support of commanding officers and senior government officials (Human Rights Watch 2021; OAS 2020b; OHCHR 2020). Bolivia has a long history of intimidating human rights lawyers and failing to prosecute those behind such attacks. Waldo Albarracín is a vocal government critic, member of the Committee for the Defence of Democracy in Bolivia and former president of Bolivia’s Permanent Assembly of Human Rights. He has a long history of resisting the Bolivian regime, questioning its legality and demanding the application of the rule of law. In 2020, it was reported that government authorities and the military monitored his mobile phone. He received death threats and was accused on social media of speaking out against the ruling Movimiento al Socialismo (MAS). The day after Luis Acre, a member of MAS and Evo Morales’s former minister of finance, was elected president, videos appeared on social media accusing Albarracín of being a traitor who participated in a coup against Morales’s government, and his home was burned down. A year earlier, Albarracín had been tear-gassed by the police and hit by an unidentified person on his arrival at a peaceful anti-government protest. Albarracín lodged a criminal complaint about this attack by the police with the Attorney General’s office, which ignored it. Not long thereafter, on the day of Morales’s resignation, hundreds of people looted and set fire to Albarracín’s home while his family were inside. His request for precautionary measures was denied by both the government and the Inter-American Commission on Human Rights. After he filed another criminal complaint, this time with a special law enforcement unit, the police arrested two people who, the police stated, had been at the scene when Albarracín’s house was set on fire. In the late 1990s, Albarracín was kidnapped and tortured after obtaining documents implicating

58 Except Bolivia’s constitutional court which showed a higher level of judicial independence and opposed government policies in recent years. 59 See misionverdad.com/. 60 Ley Orgánico de Communicación, Registro Oficial Nº 22 (25 June 2013).

Advocates for Silenced Voices  363 Hugo Banzer, the Bolivian military dictator turned president in 1997, in Operation Condor, a network of South American military dictatorships used in the 1970s and 1980s to eliminate political opponents. After national and international protests, Bolivia’s parliament began an investigation, which found that six high-ranking officials, including the then-chief of police and a prosecutor, had planned the abduction and torture of Albarracín. None of them have been brought to justice (Amnesty International 2020a; Frontline Defenders 2020a; Guarachi 2020; Lawyers’ Rights Watch Canada 2001; OAS 2019). In Venezuela, the cases of Juan Carlos Gutiérrez, Henderson Maldonado and Amalio Graterol show how hostile and unsafe the country is for lawyers. Juan Carlos Gutiérrez represents members of the opposition. After calling for peaceful anti-government protests in Venezuela in 2014, Leopoldo López, an opposition leader, was charged with delivering speeches inciting followers to commit acts of violence during rallies. He turned himself in and was held in solitary confinement at a military prison, where he was subjected to invasive body searches, inappropriate touching and physical attacks. The government ignored calls by the international community to free him, including a request by the Inter-American Commission on Human Rights to safeguard his life and personal integrity. López was sentenced to 13 years in prison for criminal conspiracy and instigating arson, allegations that turned out to be untrue. During his detention, his lawyer, Juan Carlos Gutiérrez, had only limited access to his client and was unable to communicate with him in private. This failure by the authorities to respect Gutiérrez’s professional privilege represented repeated violations of his client’s right to an effective defence. They photographed Gutiérrez, accessed and scrutinised information on his mobile phone, read and confiscated lawyer-client information, and recorded his meetings with López. The flawed trial, a ‘marathon’ of 71 hearings, took place behind closed doors. The (provisional) judge did not publish the evidence against López and excluded the evidence proffered by Gutiérrez (Human Rights Watch 2015b; IACHR 2015b; IBA 2016b; OAS 2015; OHCHR 2014). The treatment of lawyer Henderson Maldonado and his clients represents another example of government transgression of the rule of law. Maldonado has defended more than 200 victims of state repression and their family members and is a member of several civil society organisations including the pro-democracy NGO Movimiento Vinotinto. In 2020, he was arrested for filming a peaceful rally in front of the office of the notorious National Bolivarian Guard Detachment 121, a subgroup of the armed forces known for torturing and killings of protesters. Participants in the 2020 rally were health professionals and patients with cancer and kidney diseases, who were also clients of Mr Maldonado. Because they were at greater risk if infected with Covid-19, the protesters demanded access to fuel in order to visit hospitals. After Maldonado filmed the event with his mobile phone, officers ordered him to surrender it and, when he refused, took him inside the office of the National Guard, where he was detained, violently beaten and accused of working against the interests of Venezuela. He was told that he would not leave prison alive, and his mobile phone was destroyed. The following day, he was released and taken to the local court where he was charged with contempt of court and disturbing the peace. The judge also imposed a travel ban, suspended his driving licence and required him to report to court every 30 days (Frontline Defenders 2020b; OAS 2020a; Provea 2020). Another Venezuelan case involved Amalio Graterol, who is widely believed to have been punished for representing one of Venezuela’s best-known political prisoners, Judge Afiuni. Afiuni was held in pre-trial detention for three years, which is unlawful under Venezuelan criminal law. When defending her in 2009, Graterol argued that Afiuni had acted in accordance with national law and that the charges against her were politically motivated. By 2012,

364  Stefanie Lemke Graterol had received death threats for this defence. A day after he questioned the independence of Venezuela’s judiciary and its handling of Afiuni’s case during a television interview, he was detained for refusing to conduct a hearing in the absence of a client, despite the fact that this was prohibited under Venezuelan law. Before the hearing, Graterol had received a phone call, warning that judges of Venezuela’s Supreme Court were ‘upset’ about his television interview. Believing that the presiding judge would lack impartiality, Graterol advised Afiuni not to appear in court. Following Graterol’s arrest, Afiuni was sentenced to 30 years in prison despite being absent at her trial. After being released on conditional bail, Graterol was charged with obstruction of justice for refusing to participate in a trial in absentia, a penalty imposed on him retroactively. While he was in detention, President Maduro issued a decree amending Venezuela’s criminal procedure code to allow trials in absentia. Graterol was then sentenced to six months in prison and denied leave to appeal (CCBE 2013; IBA 2013; ICJ 2012). In Ecuador, courts remained indifferent to the excessive use of police force during antigovernment protests despite a change of regime. Officers are rarely held responsible for their actions. People participating in protests risk loss of their eyesight from water cannons, arbitrary arrest and severe beatings in police custody. Lawyers representing such activists report that it is a struggle to ensure an effective defence because of the very short notice before trial and the incomplete and inconsistent information provided by the police. They confront irregularities in filing formal complaints, collective arrests without evidence against individuals, signatures obtained from their clients illegally, police reports containing contradictory information about the circumstances of the arrest, and clients transferred to unauthorised sites without notice to their lawyers. Injuries suffered by detained clients are not recorded, and lawyers are informed of the charges against their clients just before the court hearing (Human Rights Watch 2020; Lawyers’ Rights Watch Canada 2014; OAS 2020b). IV. OUTLOOK

This chapter has offered evidence of several countries where lawyers are harassed and criminalised for their work. They are deprived of their liberty and challenged in court for representing anti-government voices. Judges undermine the rights of their clients and impair the effectiveness of their defence. While this chapter focused on the situation of lawyers in Central Asian and Latin American countries, there is strong evidence that lawyers’ work is also undermined in other parts of the world, including Western democracies, where a growing number of populist politicians undermine the liberal order (Cooley and Nexon 2021). In the UK and the US, for example, lawyers are attacked by the government for representing asylum seekers, with the UK government having introduced one of the harshest immigration policies in recent years (Townsend 2020; Woodcock 2020), and for defending equal voting rights, which protect communities of colour, people with disabilities and other traditionally disenfranchised populations in the US (Lawyers Committee 2021). Ensuring a safe environment for lawyers and allowing them to carry out their professional functions are essential to safeguard the rights of victims and society. It appears, however, that there is little the legal profession can do about interference in their work if national courts lack impartiality. In many jurisdictions, judicial councils have responsibility for detecting and evaluating breaches of legal standards, including human rights abuses. Reasons for dismissing judges may be formulated differently from country to country. Nevertheless, there is general agreement about removing judges for ‘incapacity or behaviour that renders them unfit to

Advocates for Silenced Voices  365 discharge their duties’,61 ‘serious grounds of misconduct or incompetence’ and ‘incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary’ (ICJ 2016: 25; UNHRC 2015).62 If the judiciary is controlled by the government, however, judges will be less likely to oppose unlawful orders by superiors or to be held responsible for their misconduct. It is not surprising, therefore, that judges in Azerbaijan, Bolivia, Ecuador, Russia and Venezuela do not face disciplinary or criminal consequences for their judicial violations. It is also unlikely that they are held to account at international level. There are currently no credible international auditing or monitoring instruments to support lawyers challenging the actions of judges who fail to comply with basic due process safeguards. Complaints and reporting mechanisms provided by the UN, for example, do not periodically review or sanction the human rights violations of judicial authorities and are often only mandated to issue ‘concluding observations’, in which the respective state is ‘recommended’ to take further action. Regional mechanisms also fall short. The European Court of Human Rights and its Inter-American counterpart have the authority to review judicial wrongdoing and issue decisions on individual complaints of human rights abuse perpetrated by or with the complicity of judges. But rulings focusing on politically motivated charges and convictions by judicial authorities are rare. Besides, international lawyers’ associations, such as the International Bar Association (IBA) and the International Association of Lawyers (UIA), have set up several initiatives to highlight the importance of rule of law standards to lawyers and the impact of judicial integrity on the legal profession (IBA 2016a; UIA). But their role and capacity to address judicial misconduct is very limited, apart from publishing letters and reports. Yet there is much underutilised potential to deal with the harassment of lawyers more effectively. International organisations and professional associations can strengthen their professional integrity policies, helping to reform countries where lawyers are subjected to arbitrary arrest, detention and other interference. For instance, the Bureau of the Consultative Council of European Judges (CCJE) is uniquely placed to draw attention to harassed lawyers since the CCJE is tasked with investigating problems concerning the status and situation of judges.63 So far the CCJE has not created an institutional human rights mechanism, such as an urgent appeal procedure for cases where the physical or mental integrity of lawyers and other victims of judicial harassment is at stake. Moreover, the International Association of Judges, as a body of 94 national associations and representative groups of judges64 from all regions of the world devoted to safeguarding human rights (IAJ 2019; 2020), has the means to introduce a stricter monitoring system to remind its members of their professional duties under international law. REFERENCES Amnesty International (2018) ‘Amnesty International State of the World’s Human Rights Annual Report 2017–2018’ www.amnestyusa.org/reports/amnesty-international-state-of-the-worlds-human-rights-annualreport-2017-18/. 61 Bangalore Principles of Judicial Conduct para 18. 62 Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct Art 16.1. 63 See for example, Framework Global Action Plan for Judges in Europe, CCJE (2001) 24 (12 February 2001), Appendix III.B.c); Magna Carta of Judges (2010) 3 Final (17 November 2010); Committee of Ministers, Recommendation CM/ Rec (2010) 12 on Judges: Independence, Efficiency and Responsibilities (17 November 2010). 64 As of 2021. Member associations include national judges’ associations of Azerbaijan, Bolivia and Ecuador. Russia joins the IAJ’s meetings occasionally as an observer and Venezuela lost its membership in 2008 because of its arrears in the payment of contributions.

366  Stefanie Lemke —— (2020a) ‘Urgent Action: Defenders’ Lives at Risk’ 29 October www.amnestyusa.org/urgent-actions/ urgent-action-defenders-lives-at-risk-bolivia-ua-159-20/. —— (2020b) ‘Bolivia 2020’ www.amnesty.org/en/countries/americas/bolivia/report-bolivia/. Aristotle (1995) ‘Book III’ in JL Ackrill and L Judson (eds), Aristotle: Politics: Books III and IV (Oxford, Clarendon Press) 3–66. Basabe-Serrano, S and Escobar, L (2014) ‘La Corte Suprema del Ecuador en el Período Democrático (1973– 2013): Entre la Instabilidad Institucional y la Influencia Partidista’ 63 América Latina Hoy 15–63. Brinks, D (2005) ‘Judicial Reform and Independence in Brazil and Argentina: The Beginning of a New Millennium?’ 40 Texas International Law Journal 595–622. Cole, L (2002) Access to Justice and Independence of the Judiciary in the Americas (Ottawa, Canadian Foundation for the Americas). Committee against Torture (CAT) (2016) Concluding observations on the fourth periodic report of Azerbaijan CAT/C/AZE/CO/4 27 January. Committee of Ministers (2000) Recommendation Rec(2000)19 on The Role of Public Prosecution in the Criminal Justice System 6 October (Strasbourg, Council of Europe). —— (2010) Recommendation CM/Rec(2010)12 on Judges: Independence, Efficiency and Responsibilities 17 November (Strasbourg: Council of Europe). Cooley, A and Nexon, D (2021) ‘The Illiberal Tide: Why the International Order Is Tilting Toward Autocracy’ Foreign Affairs 26 March www.foreignaffairs.com/articles/united-states/2021-03-26/illiberaltide. Council of Bars and Law Societies of Europe (CCBE) (2013) ‘Human Rights Letter: Concerns regarding the conviction of Mr José Amalio Graterol’ 16 September www.ccbe.eu/fileadmin/speciality_distribution/ public/documents/HUMAN_RIGHTS_LETTERS/Venezuela_-_Venezuela/2013/EN_HRL_2030916_ Venezuela_Jose_Amalio_Graterol.pdf. Council of Europe (2014) ‘Concerns over the Situation of Human Rights Defenders in Azerbaijan’ 7 August www.coe.int/en/web/commissioner/-/concerns-over-the-situation-of-human-rights-defendersin-azerbaijan. —— (2017) Challenges for Judicial Independence and Impartiality in the Member States of the Council of Europe Information Documents SG/Inf(2016)3rev 27 April. —— (2021) ‘Country Factsheet: Russian Federation’ www.coe.int/en/web/execution/russian-federation. Couso, J (2015) ‘Sine qua non. On the Role of Judicial Independence for the Protection of Human Rights in Latin America’ 33 Netherlands Quarterly of Human Rights 251–58. Dicey, AV (1885) Study of the Law of the Constitution (London, Macmillan). Driscoll, A and Nelson, MJ (2011) ‘The 2011 Judicial Elections in Bolivia’ 31 Electoral Studies 628–32. Domingo, P (1999) ‘Judicial Independence and Judicial Reform in Latin America’ in A Schedler, LJ Diamond and MF Plattner (eds), The Self-Restraining State: Power and Accountability in New Democracies (Baltimore, John Hopkins University Press) 151–76. Eastern Partnership Enhancing Judicial Reform in the Eastern Partnership Countries (2014) ‘Efficient Judicial Systems Report’ rm.coe.int/eastern-partnership-enhancing-judicial-reform-in-the-easternpartnersh/1680788f3e. El Universo (2012) ‘Los nuevos jueces de la Corte Constitucional’ 30 October www.eluniverso. com/2012/10/30/1/1355/nuevos-jueces-corte-constitucional.html. —— (2014) ‘Nuevos Jueces de la Corte Nacional son cercanos a Gustavo Jalkh’ 19 December www. eluniverso.com/noticias/2014/12/19/nota/4358671/nuevos-jueces-son-cercanos-jalkh. European Commission (2019a) ‘Rule of Law: European Commission Launches Infringement Procedure to Protect Judges in Poland from Political Control’ Press release 3 April ec.europa.eu/commission/ presscorner/detail/en/IP_19_1957. —— (2019b) ‘Rule of Law: European Commission Takes Next Step in Infringement Procedure to Protect the Independence of the Polish Supreme Court’ ec.europa.eu/commission/presscorner/detail/en/ IP_19_4189. European Commission for Democracy through Law (Venice Commission) (2005) Opinion on the Federal Law on the Prokuratura (Prosecutor’s Office) of the Russian Federation CDL-AD(2005)014 13 June.

Advocates for Silenced Voices  367 —— (2017) Compilation of Venice Commission Reports Concerning Prosecutors CDL-PI(2018)001 11 November. Fiss, OM (1993) ‘The Right Degree of Independence’ in IP Strotzky (ed), Transition to Democracy in Latin America: The Role of the Judiciary (Boulder, Westview Press) 55–72. Forero, J (2010) ‘Venezuelan Judge is Jailed after Ruling Angers President Hugo Chávez’ Washington Post 25 April. Freedom House (2015) Freedom of the World 2015: Ecuador (Lanham, MD, Rowman and Littlefield) 209–14. —— (2021a) ‘Freedom in the World 2021: Azerbaijan’ freedomhouse.org/country/azerbaijan/freedomworld/2021. —— (2021b) ‘Freedom in the World 2021: Russia’ Freedom House freedomhouse.org/country/russia/ freedom-world/2021. Frontline Defenders (2020a) ‘Ongoing Death Threats Against and Potential Surveillance of Waldo Albarracín’ www.frontlinedefenders.org/en/case/ongoing-death-threats-against-and-potential-surveillancewaldo-albarracin. —— (2020b) ‘Urgent Appeal: Henderson Maldonado’ 16 September www.frontlinedefenders.org/en/ case/arbitrary-detention-and-ill-treatment-human-rights-defender-henderson-maldonado. Grijalva, A (2011) ‘Independencia Judicial y Derechos Constitucionales en Ecuador’ Blog del Centro de Derecho Constitucional blogs.udla.edu.ec/centroderechoconstitucional/ensayos-constitucionales/ independencia-judicial-y-derechos-constitucionales-en-ecuador/. Guarachi, Á (2020) ‘Imputan por tres delitos a dos implicados en la quema de la casa de Waldo Albarracín’ 24 January www.la-razon.com/nacional/2020/01/24/imputan-por-tres-delitos-a-dos-implicados-en-laquema-de-la-casa-de-waldo-albarracin/. Guarnieri, C (2007) ‘Judicial Politicization’ in DS Clark (ed), Encyclopedia of Law and Society: American and Global Perspectives (Vol 1) (Thousand Oaks, CA, Sage Publications) 756–57. Halliday, TC, Karpik, L and Feeley, MM (2007) ‘Introduction: The Legal Complex in Struggles for Political Liberalism’ in TC Halliday, L Karpik and MM Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) 1–39. Human Rights House Foundation (2019) ‘Freedom for Mehman Huseynov’ humanrightshouse.org/ we-stand-for/human-rights-defenders/freedom-for-mehman-huseynov/. Human Rights Watch (2010) ‘Venezuela: Stop Attacks on Judicial Independence’ 8 April www.hrw.org/ news/2010/04/08/venezuela-stop-attacks-judicial-independence. —— (2013) ‘Laws of Attrition: Crackdown on Russia’s Civil Society after Putin’s Return to the Presidency’ 24 April www.hrw.org/report/2013/04/24/laws-attrition/crackdown-russias-civil-society-after-putinsreturn-presidency. —— (2015a) ‘Azerbaijan: Ailing Rights Defenders’ Trial Travesty of Justice’ 6 August www.hrw.org/ news/2015/08/06/azerbaijan-ailing-rights-defenders-trial-travesty-justice. —— (2015b) ‘The Shattered Case Against Leopoldo López’ 2 December www.hrw.org/news/2015/12/02/ shattered-case-against-leopoldo-lopez. —— (2017) ‘Russia: Events of 2017’ www.hrw.org/world-report/2017/country-chapters/russia. —— (2019) ‘Ecuador: Events of 2019’ www.hrw.org/world-report/2020/country-chapters/ecuador#. —— (2020) ‘Ecuador’s Constitutional Court Upholds Rights During Covid-19’ 4 May www.hrw.org/ news/2020/05/04/ecuadors-constitutional-court-upholds-rights-during-covid-19#. —— (2021) ‘World Report 2021: Venezuela’ www.hrw.org/world-report/2021/country-chapters/venezuela. Inter-American Commission on Human Rights (IACHR) (2010) IACHR Concerned about the Use of the Punitive Power of the State to Silence Opponents in Venezuela. Press Release 35/10 24 March. —— (2014) Office of the Special Rapporteur Expresses Concern over Confirmation of Criminal Sanctions for Defamation in Ecuador Press release R5/14 24 January. —— (2015a) Matter of Leopoldo López and Daniel Ceballos regarding Venezuela Resolution 12/2015 20 April Precautionary Measure 335/14. —— (2015b) UN and IACHR Experts Condemn Moves to Dissolve Prominent Organization in Ecuador Press release 103/15 17 September.

368  Stefanie Lemke International Association of Judges (IAJ) (2019) ‘Chronology of the admissions of the IAJ’ www.iaj-uim. org/chronology-of-the-admission/. —— (2020) ‘Documents: Resolutions and Declarations’ www.iaj-uim.org/?documentargument=&document-author=central-council&document-year=&document-type=resolutionsand-declarations&document-nation. International Association of Lawyers (UIA) ‘UIA IROL’ www.uianet.org/en/uia-irol. International Bar Association (IBA) (2013) The Criminal Trial of Venezuelan Lawyer José Amalio Graterol. Report of the International Bar Association’s Human Rights Institute (IBAHRI). —— (2016a) ‘IBA Judicial Integrity Initiative’ www.ibanet.org/Legal_Projects_Team/judicialintegrity initiative. —— (2016b) ‘IBAHRI concerned by harassment of lawyer Juan Carlos Gutiérrez in Venezuela’ International Bar Association 5 May defendlawyers.wordpress.com/2016/05/page/10/. —— (2019) Garantías Judiciales y Debido Proceso: Diez Años del Case Afiuni. International Commission of Jurists (ICJ) (2012) ‘Venezuela: profunda preocupación por la continuada detención preventiva de la juez María Lourdes Afiuni y el hostigamiento de sus abogados’ 12 April www.icj.org/venezuela-profunda-preocupacion-por-la-continuada-detencion-preventiva-de-la-juezmaria-lourdes-afiuni-y-el-hostigamiento-de-sus-abogados/. —— (2014) ‘Strengthening the Rule of Law in Venezuela’ 26 November www.icj.org/cijlcountryprofiles/ venezuela/. —— (2016) Judicial Accountability: A Practitioner’s Guide No 13 (Geneva, ICJ). Jackson, VC (2012) ‘Judicial Independence: Structure, Context, Attitude,’ in A Seibert-Fohr (ed), Judicial Independence in Transition (Heidelberg, Springer) 19–86. Krygier, M (2015) ‘Rule of Law (and Rechtsstaat)’ in JD Wright (ed), Encyclopedia of the Social and Behavioral Sciences, 2nd edn (Atlanta, Elsevier) 45–59. Larkins, CM (1996) ‘Judicial Independence and Democratization: A Theoretical and Conceptual Analysis’ 44 American Journal of Comparative Law 605–27. Lawyers’ Committee for Civil Rights under Law ‘Voting rights’ www.lawyerscommittee.org/project/ voting-rights-project/. Lawyers’ Rights Watch Canada (2001) ‘Bolivia: Waldo Albarracín: Lawyer’ 28 February www.lrwc.org/ waldo-albarracin-lawyer/. —— (2014) ‘Letter: Ecuador: Denial of Fair Trial Rights’ Lawyers’ 2 October www.lrwc.org/equadordenial-of-fair-trial-rights-letter/. Lemke, S (2017) ‘Observations to the Joint Report on “Challenges for judicial independence and impartiality in the member states of the Council of Europe” by the Bureau of the Consultative Council of European Judges and the Bureau of the Consultative Council of European Prosecutors’ (The Hague, Netherlands Helsinki Committee and Helsinki Foundation for Human Rights). —— (2018) ‘Who Holds Russia’s Judges and Public Prosecutors to Account? Völkerrechtsblog 29 January. Los Tiempos (2017) ‘225 Jueces Fueron Suspendidos y 27 Destituidos en 2016 por Faltas Graves’ 31 March www.lostiempos.com/actualidad/nacional/20170331/225-jueces-fueron-suspendidos-17-destituidos2016-faltas-graves. Montesquieu, C-L de S (1949 [1948]) The Spirit of the Laws (New York, Hafner Publishing). Myjer, E, Hancock, B and Cowdery, N (eds) (2008) International Association of Prosecutors: Human Rights Manual for Prosecutors (Nijmegen, Wolf Publishers). Organisation for Security and Co-operation in Europe (OSCE) (2011) ‘Trial Monitoring Report: Azerbaijan’ www.osce.org/baku/100593. —— (2018) ‘Azerbaijan Election Lacked Genuine Competition in an Environment of Curtailed Rights and Freedoms, International Observers Say’ 12 April www.osce.org/odihr/elections/azerbaijan/377623. Organization of American States (OAS) (2015). ‘IACHR Voices Concern over Ruling against Leopoldo López in Venezuela’ Press release No 107/15 25 September www.oas.org/en/iachr/media_center/ PReleases/2015/107.asp. —— (2019) ‘The IACHR presents its preliminary observations following its visit to Bolivia and requests an urgent international investigation take place into the serious human rights violations that have

Advocates for Silenced Voices  369 occurred in the country since the October 2019 elections’ Press release No 321/19 10 December www. oas.org/en/iachr/media_center/PReleases/2019/321.asp. —— (2020a) ‘IACHR Expresses Concern over Ongoing Acts of Harassment and Stigmatization of Human Rights Defenders in Venezuela’ Press release No 165/2020 15 July www.oas.org/en/iachr/ media_center/PReleases/2020/165.asp. —— (2020b) ‘IACHR Issues Observations Following Visit to Ecuador’ Press release No 008/2020 14 January www.oas.org/en/iachr/media_center/PReleases/2020/008.asp. Parliamentary Assembly of the Council of Europe (PACE) (2015) The Functioning of Democratic Institutions in Azerbaijan Resolution 2062 (2015) 23 June. —— (2020) The Progress of the Assembly’s Monitoring Procedure (January–December 2019). Resolution 2325 (2020) 30 January. Popkin, M (2002) ‘Iniciativas para Mejorar la Independencia Judicial en América Latina: una Perspectiva Comparativa’ DPLF 26 March www.dplf.org/sites/default/files/1184345829.pdf. Prosecutor General (2013) Report Order of 27 December 2012, N° 27-07-2012/14п1861-12в genproc.gov. ru/smi/interview_and_appearences/appearences/83568/. Provea (2020) Report: Civil rights violations patterns 2 months into the State of Alarm in Venezuela 28 May provea.org/en/publications/researches-and-investigations/report-civil-rights-violations-patterns2-months-into-the-state-of-alarm-in-venezuela-1/. Sekaggya, M (2013) Report of the Special Rapporteur on the Situation of Human Rights Defenders UN Doc A/HRC/25/55 23 December. Shapiro, M, and Stone Sweet, A (2002) ‘Law, Courts and Social Science’ in M Shapiro and A Stone Sweet (eds), On Law, Politics and Judicialization (Oxford, Oxford University Press) 1–18. Terra (2014) ‘Senado Boliviano Aplaza Otra Vez Juicio a Tres Magistrados del Constitucional’ 16 December www.terra.cl/. Townsend, M (2020) ‘Lawyers claim knife attack at law firm was inspired by Priti Patel’s rhetoric’ Guardian 10 October www.theguardian.com/politics/2020/oct/10/lawyers-claim-knife-attack-at-lawfirm-was-inspired-by-priti-patels-rhetoric. Transparency International (2007) ‘Global Corruption Report’ www.transparency.org/en/publications/ global-corruption-report-2007-corruption-and-judicial-systems. —— (2017) ‘Azerbaijan: Overview of Corruption and Anti-Corruption’ 7 September knowledgehub. transparency.org/helpdesk/azerbaijan-overview-of-corruption-and-anti-corruption. —— (2020) ‘Corruption Perception Index 2020’ www.transparency.org/en/cpi/2020/index/rus. UN (2011) ‘Venezuela: UN Human Rights Experts Voice Alarm at Extended Detention of Judge’ UN News Centre 27 December www.un.org/apps/news/story.asp?NewsID=40842. UN Human Rights Committee (UNHRC) (2015) Concluding Observations of the Human Rights Committee on the Seventh Periodic Report of the Russian Federation. UN Doc. CCPR/C/RUS/CO/7 28 April. UN Office on Drugs and Crime (UNODC) (2014) ‘The Status and Role of Prosecutors: A UN Office on Drugs and Crime and International Association of Prosecutors Guide’ www.unodc.org/documents/ justice-and-prison-reform/HB_role_and_status_prosecutors_14-05222_Ebook.pdf. UN Office of the High Commissioner for Human Rights (OHCHR) (2014) Opinions adopted by the Working Group on Arbitrary Detention at its seventieth session UN-Doc No 26/2014 (Bolivarian Republic of Venezuela) 25–29 August. —— (2020) Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela UN-Doc A/HRC/45/33 25 September. UN Special Rapporteur on the Independence of Judges and Lawyers (2014) Report of the Special Rapporteur on the independence of judges and lawyers UN Doc A/HRC/26/32 28 April. —— (2019) ‘Information on Hungary: Hungary: More Needs to Be Done to Bring Legislation on Administrative Courts in line with International Standards, UN Expert Says’ Press release 8 April www.ohchr.org/Documents/Issues/IJudiciary/InfoNoteHungary8Apr2019.docx. UN Special Rapporteur on the Situation of Human Rights Defenders (2019) ‘Country visits’ www.ohchr. org/EN/Issues/SRHRDefenders/Pages/CountryVisits.aspx.

370  Stefanie Lemke Walker, S (2014) ‘Sochi Environmentalist Jailed for Three Years for Spray-Painting a Fence’ Guardian 12 February www.theguardian.com/environment/2014/feb/12/sochi-environmentalist-jailed-paintingfence-revenge. Waldron, J (2020) ‘The Rule of Law’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy (Palo Alto, CA, Metaphysics Research Lab) plato.stanford.edu/archives/sum2020/entries/rule-of-law/. Woodcock, A (2020) ‘Priti Patel Accused of Putting Lawyers at Risk by Branding Them “Lefty DoGooders”’ Independent 6 October www.independent.co.uk/news/uk/politics/priti-patel-immigrationlawyers-migrants-law-society-bar-council-b832856.html. World Justice Project (2019) ‘Rule of Law Index 2019’ worldjusticeproject.org/our-work/publications/ rule-law-index-reports/wjp-rule-law-index-2019.

Part V

Multinational Firms

372

16 The Many Lives of Big Law Three Decades in the Evolution of Large Law Firms MANUEL A GÓMEZ AND MARC GALANTER

A cat has nine lives. For three he plays, for three he strays, and for the last three he stays Old English proverb

I.  INTRODUCTION: BIG LAW CONQUERS THE WORLD

T

his chapter is about the evolution of large law firms between 1990 and 2021. Large law firms are seen not merely as aggregations of lawyers under a single roof but also as complex organisations that have helped transform the provision of legal services and the legal profession during the last three decades. The sector of the legal industry created by large law firms is widely known as Big Law (BL), a folk category refering to the large multi-office and full-service law firms whose main clients are multinationals, large domestic corporations, and wealthy individuals. The legal services provided to BL’s clients usually demand teams of lawyers specialised in different areas or countries. As a result, the adjective ‘large’ denotes more than many lawyers housed together. The expansion – in both size and complexity – of international trade, investment and other global activities, the rise of new technologies, and social, political, and economic changes throughout the world during the last few decades, have have helped spur an unprecedented demand for high-end corporate legal services and, therefore, exponential growth of BL. Many of these law firms are international. Nevertheless, our discussion about their genesis and evolution is centred on the United States, given its critical role in the configuration of the BL sector. Today’s leading law firms are complex global or regional organisations with well-defined internal hierarchies, managerial structures, compensation schemes, marketing strategies, and a level of overall sophistication typically seen only in the corporate sector. Unsurprisingly, the challenges faced by large law firms are also significant. Some are internal to the firms, while others are related to changes in the legal professions (eg automation, outsourcing, non-lawyer

374  Manuel A Gómez and Marc Galanter partnerships) or stem from the political, social, and economic transformations of the countries where those firms operate. Global events, such as the Great Recession of 2007–09 and the pandemic of 2020–21, have also posed big challenges to this segment of the legal profession and, on more than one occasion, have prompted industry analysts, scholars, and the media to predict the death of BL. So far, these prophecies have not materialised, and BL remains strong and profitable, which some have credited to a focus on strategic planning and flexibility (Smith 2021). A.  In the Beginning The origin of the large law firm can be traced back to the late nineteenth century when the first formal lawyer partnerships were created in London, New York and other American business and financial hubs. The motivation was to meet the demands of wealthy commercial clients. The nascent organisations bore the names of the distinguished and well-connected lawyers who founded them and quickly differentiated themselves from traditional individual lawyer offices in at least two ways. First, the new firms were organised as partnerships, unlike the traditional individual practices, with the result that members were expected to share both their clients and revenues. Second, these large law firms were organised hierarchically, with partners and fee earners at the top and a larger cohort of salaried staff under them. Very much like the founders of the traditional individual law offices that preceded them, partners were usually connected through kinship or socio-economic ties and belonged to the local legal elites. Clients were often part of the same social networks as their lawyers, making relationships between them personal and enduring. Given the close connection between the large law firm and the business sector, most firms were established in cities like New York and London, where they had their only presence. These were not just any cities but rather important financial hubs that were central to the global (and imperial, in the case of London) economy. Particularly in the second half of the twentieth century, as business law firms received larger and more complex work exceeding the partners’ individual capacities, growth became inevitable. This was the result of the expansion and intensification of the global economy and political changes in some parts of the world. Law firm partners began recruiting more associates, usually from their alma mater, which also happened to be most reputable – and elite – law schools. With more lawyers joining the organisation, the allocation of tasks, internal hierarchies, salaries, and other compensation schemes also became more complex. Associates were eventually given the opportunity to rise and perhaps earn one of the few partnership positions available, but only after proving their worth through years of commitment and hard work. Those who did not become partners were pushed out, making the promotion system look like a medieval tournament (Galanter and Palay 1991). The increasing disparity between large cohorts of entry-level associates and the much smaller numbers of lawyers at the partner level made the classical large law firm look like an inverted funnel. ‘This was the shape of virtually all large American law firms providing legal services for organizational clients over the course of the last century (…) After World War II, and especially toward the end of the century, it became a model adopted in many countries around the world’ (Galanter and Henderson 2008: 1874; see also Galanter and Roberts 2009). Some of the organisational structure and management principles followed by most law firms ever since (Henderson 2008) are attributed to Paul Drennan Cravath (Oller 2019; Lambert and Stewart 2021), one of the name partners of the New York firm Cravath, Swaine & Moore,

The Many Lives of Big Law  375 founded in 1819. Under what became known as the ‘Cravath System’ throughout the twentieth century, only partners had tenure. The firm was led for fixed time periods by a senior partner elected by his peers. Lateral hiring of partners was exceptional since most were promoted from within the firm. Associates were recruited from the highest performing students at a handful of elite law schools, thereby signalling to the legal and business worlds that only the best and the brightest could join the firm. An entering associate would work under the supervision of a partner for several years before being considered for partnership. Finally, lawyer compensation was governed by a lockstep system tied to seniority (Swaine 1948). The elitist and exclusionary style of the corporate law firms earned them collective nicknames such as White Shoe for those located in the Northeastern US (Washington, New York, Philadelphia, Boston), Magic Circle for those in London, and Seven Sisters for those in Toronto. During that period, corporate law firms were exclusively male: lawyers, secretaries, stenographers, and messengers were men (Lambert and Stewart 2021), white and Protestant. Despite presenting themselves as a-religious and meritocratic, the White Shoe law firms sought to maintain a de facto Protestant religious and cultural identity, as a means to secure an elite status within the American legal profession. One of the most evident – albeit unspoken – rules among White Shoe firms was an absolute ban against Jewish lawyers. Interestingly, an unintended consequence of such segregation among cultural and religious lines was ‘the rise and growth of the Jewish firm’ in the US (Wald 2008: 1805). As a result, ‘by the mid-1960s six of the largest twenty law firms were Jewish, and by 1980 four of the ten largest law firms were Jewish firms’ (ibid). The UK equivalent, Magic Circle firms, were also very homogenous and elitist; hence their members were white, male, and from elite universities. There was also a pervasive and overt anti-semitism in the UK for most of period when those firms were being established, but the term Magic Circle never had those negative connotations. The next milestone in the growth of large law firms in the US occurred in the aftermath of World War II. As business clients expanded operations beyond the major American cities, the corporate law firms serving them followed by opening branches or representative offices throughout the country and eventually the world. The tournament system became more elastic with the addition of career routes paralleling the traditional associate-to-partner track. As a result, even though the partners remained at the top and core of the organisation, they were now ‘surrounded by a much larger mantle of employed lawyers’ (Galanter and Henderson 2008: 1877). This larger group included several categories of professionals, ‘some with labels more euphemistic than others – permanent associate, staff lawyer, special counsel, non-equity partner, junior partner’ (Gilson and Mnookin 1989). Starting in the 1980s, the large law firms also influenced other aspects of the legal profession, including legal education as some elite law schools became pipelines for BL. Growth and expansion were accompanied by bigger challenges, mainly related to increased competition among firms, partner mobility, cost management, fee structures, governance, and regulatory complications. By the end of the twentieth century – the beginning of the period that interests this chapter – the corporate legal services market caught the attention of the leading international accounting firms, which became direct competitors in areas of overlap between legal and accounting activities. Nevertheless, a series of scandals and the ensuing regulatory reforms enacted in the US and other countries to restrict the ability of accounting firms ‘to offer nonauditing services to their audit clients, appeared to signal a death knell’ that eliminated them from the race for global legal services (Wilkins and Esteban 2017: 982). This development offered traditional law firms only a temporary reprieve because countries like Australia and the UK soon relaxed the traditional prohibition on nonlawyer investment

376  Manuel A Gómez and Marc Galanter in law firms and partnerships between lawyers and nonlawyers (Steinitz forthcoming). In Australia, the liberalisation of legal practice began with the enactment of the Competition Policy Reform Act of 1995, which eliminated the traditional monopoly of lawyers by allowing ‘the incorporation of legal practices, multidisciplinary practices and listing on the stock exchange’ (Thornton and Wood Vol 1, ch 2: 46). In the UK, a series of government marketisation policies that included the Legal Services Act of 2007 ended ‘restrictions on law firm ownership allowing solicitors and barristers to practise together (Legal Disciplinary Partnership (LDP)) and with non-lawyers (Alternative Business Structures (ABS))’ (Sommerlad et al Vol 1, ch 4: 90). As a result, some law firms became publicly traded, and non-lawyers were able to conduct certain activities traditionally reserved to licensed lawyers (Vetula 2009). This period was also accompanied by a dramatic change in the demographic profile of large law firms as their increased need for labour, the industrialisation of their practice, and the expansion and partial democratisation of higher education in many metropolitan countries produced first a numerical feminisation and later increasing non-white participation. These developments were part of an ongoing reconfiguration of these firms as a series of vertically organised labour markets, characterised by gendered and raced segmentation and segregation. B.  Larger than Life Since the last decades of the twentieth century, increasing global capitalism and political changes have created ‘opportunities for law and lawyers and change[d] the logic of legal practices’ (Trubek et al. 1994: 407), thus allowing ‘national legal fields [to] become more “internationalized,” and transnational legal regimes [to] become more important and begin to penetrate previously closed national fields’ (ibid). This dynamic has also been essential to the growth and international expansion of the BL sector. The most visible change in the latter during the period covered by this chapter (1990–2021) is the size of firms. In 1980, Skadden Arps Slate Meagher & Flom, one of the most prominent US law firms, was one of the largest, with almost 200 lawyers (Cipriani 2019). Four decades later, Skadden has almost 1,700 lawyers and is far from the largest in the US or the world. That title goes to the global law firm Dentons, which at the time of writing (May 2021) has more than 12,000 lawyers. Dentons also differs from other global law firms in not having a single headquarters or tie to a specific country. Instead, its centres of power are spread throughout the world, in what the firm has called a polycentric model. Other law firms such as DLA Piper have embraced a similar model by splitting their leadership among at least two offices in different countries. The fact that their centre of power is not limited to a country or legal tradition signals these firms’ worldliness (Parnell 2015). Such worldliness is a symptom of the contemporary nature of globalisation, which generates and depends on these extra-national organisations. From a practical standpoint, having numerous professionals who are also diverse and spread around the world has helped large law firms diversify their portfolios, follow the global operations of their clients, and increase the earnings of equity partners. But it has also created organisational and cultural challenges and increased the risk of conflicts of interest, as firm lawyers find themselves on both sides of the same matter. The relationships among BL lawyers and between them and the firm, and the firm and its clients, are also very different from the personal relationships that prevailed during the early days. Business clients today tend to view legal work more as a commoditised service (Sechooler 2008) than as trusted individualised advice, lawyers are less committed to remaining with one firm throughout their careers, and law firms are also determined to only keep those lawyers

The Many Lives of Big Law  377 who can maintain an acceptable revenue stream (Regan and Rohrer 2021). Clients – especially multinationals, international organisations and governments – increasingly demand diverse teams of lawyers, in part reflecting the growing power of social and political pressures in different parts of the world. The elastic tournament model has found a competitor in Alternative Legal Service Providers (ALSPs) (Dzienkowski 2014) and other next-generation law companies (Armour and Sako 2020), which have abandoned traditional brick-and-mortar offices in favour of virtual law platforms and other innovative organisational arrangements. Examples include Clearspire, VLP Law Group, Axiom Law, VistaLaw, LegalForce, Paragon, Remon and Ambar. These innovators focus on delivering high quality legal services to corporate clients while reducing overhead and other costs associated with traditional BL. As a result of recent changes in the BL world, the term ‘partner’ no longer has the same connotation in every law firm (Randazzo 2019). The internal hierarchies and compensation pathways vary by BL firm, encompassing intricate divisions between equity and non-equity partners (the latter widely seen as a measure to placate women and other non-traditional lawyers), global, national and office partners, of counsel, non-partner-track associates, and other affiliates. These changes, which are intimately connected to diversification and an increased adoption of new technologies that allow for the reconfiguration of legal work into a series of tasks and their allocation to different hierarchies, could also refer to the differing demographic profiles of these various positions. Even the use of the founders’ surnames to signal distinction and legacy has been supplanted by fantasy names, corporate logos and other imagery that resemble multinational companies more than professional partnerships. Both the diversification of career pathways and the modification of compensation schemes have helped transform BL firms from lifelong associations of liberal professionals to business-like conglomerates. A reflection on these and other social, political, and economic changes affecting the legal professions between 1990 and 2021 is precisely what justifies this chapter. In addition to our own research on this topic (Galanter and Henderson 2008; 2010; Galanter and Roberts 2009; Galanter and Palay 1999; 1998; 1996; 1991; 1990; Galanter 1983; Gómez and Pérez-Perdomo 2017a; 2017c), this chapter benefits from the national reports in Volume 1 (Abel, ch 44; Sommerlad and Hammerslev, ch 1; Thornton and Wood, ch 2; Dinovitzer and Dawe, ch 3; Paterson and Robson, ch 5; Cummings et al, ch 5; Hammerslev, ch 8). The period of our study (1990–2021) has seen important changes in legal professions worldwide, the business sector, the state, and society. Our discussion also considers the impact of major global developments, namely the Great Recession of 2007–09 and the COVID-19 pandemic of 2020–21. The rest of this chapter explores the most important changes in the BL sector, offering vignettes about the most salient changes and trends, with occasional references to regions and countries. II.  THE CURRENT LANDSCAPE OF LARGE LAW FIRMS: BIG, WIDE AND COMPLICATED

A.  As the World Stood Still, BL Kept Growing In early 2020, a crippling global health crisis brought the world almost to a standstill. The rapid spread of the COVID-19 virus prompted the World Health Organization to declare a pandemic in March (WHO 2020), forcing most countries into lockdown. Commercial air travel was suspended, national borders were closed, and ordinary life was disrupted. National

378  Manuel A Gómez and Marc Galanter governments had to take unprecedented and desperate measures to prevent the spread of the deadly virus, which by mid-May 2021 had claimed more than three million lives globally (Ritchie et al 2021). In addition to human life, the pandemic has affected the economy, education, politics, and all of society, including the legal sector. To minimise the risk of contagion, many national courts had to shut down all physical operations and adopt mechanisms allowing the electronic reception and transmission of documents. National judiciaries substituted videoconferencing for live hearings, so judges, lawyers and clients could participate in legal proceedings remotely while respecting self-isolation measures. Lawyer-client meetings, settlement negotiations with opposing counsel in litigated matters, and most interactions between lawyers and their colleagues also moved to the virtual world. The success of these measures has obviously depended on access to reliable internet connectivity, proper equipment, and training. Anecdotal evidence suggests that problems have arisen even in the best-equipped countries, impeding effective access to justice. The response to the virtualisation of national legal systems has been mixed. On one hand, legal modernisation advocates have celebrated the sudden adoption of new technologies and used the opportunity to urge more aggressive and widespread embrace of information, communication, and technology (ICT) infrastructures by the legal system (UNODC 2020). On the other, some have warned of government abuse under cover of emergency measures and more unequal access to justice caused by the digital divide (Brown 2020), lack of personnel, and other challenges. Both the haves and have-nots of the legal system have suffered the onslaught of the pandemic. But as the quintessential haves, members of the BL were better equipped to face the challenges of this global crisis. During the last several years, the BL sector had increasingly embraced the advantages of new technologies, and many law firms created and maintained robust departments charged with managing their information technology needs and made significant investments in state-of-the-art videoconferencing equipment, cloud storage and cybersecurity protocols. Nevertheless, the apparent convenience of working from home has also revealed a pernicious dark side that exacerbates inequality. Working from home has resulted in a shift backwards to women carrying most of the domestic burden, and professional women are no exception. In fact, some have even predicted that this shift might cause an exodus of women from BL (Chen 2020). As a result of the pandemic, several major business transactions that constituted a significant portion of BL work were put on hold. Some of BL’s most emblematic clients had to suspend or downsize their operations. Some large law firms responded by laying off employees, reducing or modifying partner bonuses, suspending summer clerkship programmes, and freezing the recruitment of new associates (ALM Staff 2020). Nonetheless, ‘even as some clients in sectors ranging from hospitality to retail have suffered’ (Randazzo 2020), the highest-grossing law firms according to the AmLaw100 ranking saw a 6.6 per cent record increase in their revenue for 2020 (Rubino 2021), and some continued expanding their operations around the world. As we write, the pandemic is far from ending, so its long-term effects remain unknown. One change in BL’s workflow, which also occurred during the Great Recession of 2007–09 (McKinsey 2020), could be the contraction of transactional practices and the growth of litigation. The travel restrictions still in place in most of the world have prevented lawyers from interacting face-to-face with existing clients and obstructed the acquisition of new ones. At the same time, law firms and clients have saved significant amounts of money by reducing travel expenses and office use.

The Many Lives of Big Law  379 The fact that BL has been able to maintain profitability during the pandemic does not mean that large law firms are free of risks. The remote work environment has also created challenges for their internal operations. As most lawyers and staff are working from home, firms are increasingly concerned about ensuring remote access to files and communications while preserving the confidentiality of client documents and protecting the firm from an increased risk of cyberattacks (ABA 2020). The workplace culture and internal social interactions that have helped build BL have also been adversely affected. To preserve the morale and wellbeing of its members and the social fabric of the organisations, large law firms have invested resources in health-related initiatives (Roberts 2020) and virtual social events and have increased their social media presence (Sexton 2020). Even though several vaccines were developed in late 2020 and are being rolled out in industrialised nations – the headquarters of most BL – it is uncertain whether those firms will retain the lavishly appointed offices occupying entire floors of prominent skyscrapers in every major city in the world. The inability to use most of their physical space for long periods of time has given law firm managers an opportunity to rethink how much real estate they really need (Jeffreys 2020), especially if relinquishing their traditional offices helps the organisation reduce operating costs (Seal 2020). Fees and hiring strategies may also be affected (Maloney 2020). The current situation has reinvigorated the conversation about the transformation of BL, a topic that has occupied the attention of legal scholars, business analysts and the media for some time. Both the downfall of emblematic law firms such as Dewey & LeBoeuf, Bingham McCutchen, Heller Ehrman, and Howrey and the economic recession of 2007–09 prompted predictions of the decline and collapse of BL (Ribstein 2010). Some even predicted the ‘the end of lawyers’ as the outcome of several globalising trends, including the distribution of legal tasks to different professionals – in part following gender, race and class lines, the standardisation, commoditisation and systematisation of legal services, and the incorporation of new technologies (Susskind 2008). Contrary to these doomsday predictions and despite some setbacks, however, BL remains unsurpassed ‘as a social form for organizing the delivery of comprehensive, high-quality legal services, especially to businesses’ (Galanter and Palay 1999: 956). The size and influence of BL firms seem to be greater than ever. At least in the US and other big economies where large law firms dominate, many recent law graduates remain eager to join the BL ranks (Jenoff 2018), even though not necessarily to stay there for long. B.  Never Big Enough In May 2019, the global law firm Dentons announced that it had ‘reached a historic milestone by passing 10,000 lawyers worldwide’.1 A year later, while the COVID-19 pandemic was ravaging the world, Dentons added 21 more offices to its fast-growing megastructure and merged with six firms in the US, New Zealand, South Korea, Uruguay, and Argentina. In late 2020, Dentons announced a dual partnership model in the US, dubbed Project Golden Spike,

1 Dentons, ‘Dentons reaches milestone of 10,000 lawyers’, Press release of 14 May 2019 www.dentons. com/en/whats-different-about-dentons/connecting-you-to-talented-lawyers-around-the-globe/news/2019/may/ dentons-reaches-milestone-of-10000-lawyers.

380  Manuel A Gómez and Marc Galanter which would allow ‘lawyers to be members of both their current firm and the new national partnership’.2 With 207 offices in 82 countries, Dentons calls itself the world’s largest and the most global law firm and the only one with a truly polycentric governance structure, as opposed to the widely used model that ties the firm’s leadership, management and overall structure to its country of origin. The international expansion of corporate law firms was a common strategy of the most prominent Anglo-American players in the late twentieth century. These firms had a robust domestic network of offices and a reliable portfolio of corporate clients. International diversification usually entailed opening satellite offices in other countries and adding foreign lawyers to domestic branches. The growth was generally gradual and almost always depended on the traditional strategy of following the firms’ clients ‘in overseas expansion activities’ (Brock et al 2006) in the hope of early profitability. In addition to making themselves available to global clients in the markets to which they expanded, international diversification also served local clients who needed globally standardised legal services or sought the reputation and experience of a well established international law firm. Although firms believed international diversification would have several benefits, the strategy has not always been profitable. In a study involving more than one hundred US law firms that opened offices in London, Maister (2005) found that ‘almost all [were] unprofitable’ (Brock et al 2006), and also discovered that Australian law firms followed suit, favouring hope over experience. International law firm expansion has not been easy, even for those following global clients. Entering a foreign legal market also requires dealing with cultural differences, regulatory barriers to the practice of law, disparate employment and labour standards, and the threat of new competitors. These and other challenges drove some of the largest global law forms to change their growth strategies. Starting in the first decade of the twenty-first century, instead of adding partners and associates, some of the larger firms began acquiring or absorbing their smaller counterparts, while others merged with similar-sized firms. The fact that some of these mergers crossed continents gave the resulting organisation a global appearance almost overnight. Dentons offers a good example. Dentons’s growth did not result from a gradual increase, like most traditional large law firms, but instead from mergers and acquisitions involving law firms from different parts of the world. The original participants in what is now Dentons were much smaller firms from Canada (Fraser Milner Casgrain), the US (Sonnenschein Nath & Rosenthal LLP), France (Salans Hertzfeld & Heilbronn), and the UK (Denton Wilde Sapte). The game changing event occurred in 2012 when ‘SNR Denton, Fraser Milner Casgrain and Salans got together to create what at the time was a pretty big firm – roughly 2500 lawyers’ (Patrice 2019). At the time, SNR Denton was barely the 29th largest law firm in the world. Three years later, the firm merged with China’s largest law firm, Dacheng, and ‘created a law firm with 6,600 lawyers’ (Hermann 2015). Soon thereafter, it merged again, this time with Singapore’s Rodyk and Australia’s Gadens, to reach an unprecedented total of 7,300 lawyers (Gómez and Pérez-Perdomo 2017b: 20). In 2019, a few months after announcing its 10,000th lawyer, Dentons declared it would continue growing by combining ‘with five leading law firms in Angola, Morocco, Mozambique, Uganda and Zambia’ in order ‘to become the first Pan-African law firm owned and controlled

2 Dentons, ‘Project Golden Spike – A new US model to connect talent to opportunity, across the country’ www. dentons.com/en/issues-and-opportunities/golden-spike. The reference is to the completion of the first transcontinental railroad in the US in 1869.

The Many Lives of Big Law  381 by Africans’.3 This aggressive expansion throughout the African continent has continued with the addition of Tanzania’s East African Legal Chambers in 2020 (Mizner 2020) and Nigeria’s ACAS-Law in early 2021 (Malpas 2021). The polycentric structure of Dentons is uncommon, since most large law firms are still identified with a single country, if no longer necessarily the US or the UK. For example, the second largest law firm is China’s Yingke (7,572 lawyers), which was established only in 2001 but has since expanded to every continent, albeit not through mergers. Yingke has 80 offices – 51 in China – and a presence in 53 countries through both offices and associations with local law firms.4 In March 2020, Yingke established a business advising arm called YK Consulting, which intends to become an ‘all-around & one-stop cross-border service provider’ for its clients.5 The rise of Chinese international law firms can be tied not only to the expansion of global business but also to changes in the Chinese economy, its legal profession (Liu and Au 2020), and more broadly in a new geopolitical world order, where ‘China’s pivot toward the West [has] overturned the long-term Eurocentric conception of the world and [has] provide[d] renewed significance to Eurasia’ (Tai-Ting Liu 2018: 7). Even though BL has spread to every continent, the highest concentration of practitioners as well as the headquarters and most important offices of the largest law firms are still located in industrialised and financially important cities. This is also where most multinational companies and other BL clients are based. Cities like New York (Nelson 1981; Wald 2008) and London (Galanter and Roberts 2008) are still regarded by many as the ‘two dominant domains’ (Brock et al 2006) or global epicenters of BL. Nevertheless, Shanghai has also become a fierce competitor, especially during the last decade (Li and Liu 2012). In the next stratum of global law firms – Baker McKenzie, DLA Piper, and Norton Rose Fulbright – each has less than half as many lawyers as Dentons. Nevertheless, the pace at which these firms have expanded, both geographically and in size, is also noteworthy. The internationalisation of US law firms began in 1955 when Baker McKenzie established its first foreign office abroad. That decision, which mainly followed clients, became the BL expansion strategy for several decades. To ‘follow the client’ means opening offices in places where the firm’s best clients have established themselves or have a commercial interest that can guarantee sufficient work for the firm. Client demand has also determined which practice areas are staffed, although large law firms tend to emphasise their multiservice capabilities across the board. Whereas one of the differences between global law firms and their much smaller domestic counterparts is that the former can offer to represent clients across the world, advising local clients on domestic matters is what the majority of BL lawyers do most of the time. As legal practice regulations vary by country, so does the relationship between the different offices, among the lawyers and between them and their clients. Global law firms have found ways to navigate the restrictions imposed by local legal professions by establishing different associative structures and collaborative strategies with national firms. In 2004, Baker McKenzie became a pioneer again when it restructured its international operations under the aegis of a Swiss verein, allowing the firm to keep all offices under a single brand name without having to retool the internal arrangements created to comply with

3 Dentons, ‘The world’s largest law firm votes to combine with five leading law firms in Africa’, 30 September 2019 www.dentons.com/en/whats-different-about-dentons/connecting-you-to-talented-lawyers-around-the-globe/news/ 2019/september/the-worlds-largest-law-firm-votes-to-combine-with-five-leading-law-firms-in-africa. 4 See www.yingkeinternational.com/about. 5 See www.yingkeglobal.com/ykdt?_l=en.

382  Manuel A Gómez and Marc Galanter different national regulatory standards. The verein structure has been used by other types of global organisations ranging from the Fédération Internationale de Football Association (FIFA) and the World Wildlife Fund (WWF) to global accounting firms like Deloitte Touche Tohnmatsu. One advantage of the verein is that each entity (eg country office or branch) can retain its legal status, remain subject to the local regulations, be financially independent, and provide direct service to its clients (Vetula 2009). At the same time, all entities benefit collectively from the external image of ‘a unified brand across borders’ (Richmond and Corbin 2014: 918). And by maintaining their individuality, verein member firms ‘can retain their own partner or shareholder compensation systems, as well as their own accounting practices and tax regimes’ (ibid: 919). Despite these advantages, some have pointed to potential ethical tensions regarding ‘the relationships between the verein and its member firms, the imputation of conflicts of interest between members firms, and fee-splitting among member firms’ (ibid: 921). After Baker’s conversion to a verein, several global law firms followed suit, while others preferred to maintain the structure of a Limited Liability Partnership (LLP). In an LLP, all partners remain members of a single law firm that shares profits, revenues, and costs and has a central management. The verein and LLP models are not mutually exclusive. Some global law firms, such as DLA Piper, have adopted the Swiss verein model while some of its members are themselves LLPs.6 The concept of a globalised law firm suggests a physical presence in many parts of the world and the ability to offer legal advice and represent clients across national jurisdictions. At first glance, this seems inconsistent with the longstanding tradition of legal practice as ‘an archetypal national professional occupation’ (Gómez 2021), but not all law-related activities are confined to a single country or depend on domestic legal expertise. In fact, some of the largest and most complex matters handled by BL, and those most likely to generate revenue, are not domestic or are the result of the increased internationalisation of national legal fields, as mentioned earlier (Trubek et al 1994). One example is in the booming field of international arbitration, a phenomenon first highlighted by Dezalay and Garth (1995) in the late twentieth century. Whereas the transactions underlying most legal disputes are governed by a single national law and litigated in domestic courts, international arbitration allows the parties to select the most convenient fora, adopt their own procedural rules, appoint their own decisionmakers, and seek enforcement anywhere in the world. Such flexibility has made international arbitration increasingly attractive to parties involved in complex commercial contracts, infrastructure agreements, and foreign investment. As those parties have moved away from the constraints of national laws, the international legal disputes that arise from their dealings have been effectively ‘delocalized’ (Paulsson 1983). The most common users of international arbitration are large multinational corporations and, more recently, states regarding foreign investments. Since they constitute the bulk of BL’s clientele, it is unsurprising that most – if not all – global law firms have become dominant players in the international dispute resolution arena. International arbitration has become so important that during the last decade or so, most BL litigation departments have been restructured and even renamed to signal the firm’s ability to handle international disputes through arbitration and mediation. Large law firms perform other roles in the international arbitration field, for example sponsoring the myriad professional and academic conferences devoted to international arbitration, law school programmes, student competitions, and the establishment of arbitral institutions (ie centres that administer arbitration proceedings).

6 See,

eg DLA Piper, ‘Legal Notices’ www.dlapiper.com/en/us/legalnoticespage/.

The Many Lives of Big Law  383 BL is also involved in planning and drafting most efforts to reform arbitration procedural rules and treaties through organisations such as the International Bar Association and consultations with UN organs and agencies. Some of the most prominent international arbitrators are partners at the leading global law firms. But such ‘double hatting’ has also led to criticism that the field is dominated by the same traditional elite networks that serve the corporate world. The involvement of BL in rule and policy making is a prime example of practice-based expert engagement ‘in practical and political actions, the effects of which [contribute to] shape transnational rule-setting’ (Quack 2007: 643) while also enhancing their interests (Beckert 1999). III.  DRESSED LIKE CORPORATIONS

A.  Money Matters Size and global presence are the most visible features of BL today but not the only ones. Gross revenue is also an important metric for industry analysts and firms, although some believe that revenue per lawyer is a more accurate indicator of prominence.7 One of the most influential rankings is the Global 100, published annually by The American Lawyer. According to its latest edition (FY 2019), the highest grossing firm in the world is Kirkland & Ellis with US$ 4.1 billion, followed by Latham & Watkins with US$ 3.76 billion. DLA Piper took third place, followed by Baker McKenzie, Dentons, Skadden Arps, Clifford Chance, Morgan Lewis, and Hogan Lovells. Most of the lawyers from these top firms (other than Dentons) are based in the US (Zaretsky 2020), revealing that despite years of internationalisation efforts, BL is still US-centric. In addition to size, gross revenue and average revenue per lawyer, some BL rankings also consider number of equity partners and profit per equity partner. The ability to generate revenue has also become symbolically valuable in the BL sector, signifying prestige and professional success among corporate lawyers and motivating law students to aspire to join the BL ranks upon graduation. The fixation on revenue has led to the perception that large law firms are no different from – and no better than – other corporate service providers and that their lawyers resemble hired guns more than officers of the court. Some have even argued that money ‘is at the root of virtually everything that lawyers don’t like about their profession’ (Schiltz 1999). If making money is the highest value in the BL sector and large law firms set the standards for the lawyers who work in them, then professional values would be replaced by preoccupation with monetary rewards (ibid). Nevertheless, the fact that material gain has become important to BL does not necessarily mean that corporate lawyers are ‘single-mindedly determined to have more cash’ (Galanter and Palay 1999: 967). As Regan and Rohrer (2021) have observed, nonfinancial professional values are still important sources of satisfaction to most law firm partners, and firms that recognise ‘meaning’ in addition to ‘money’ seem to benefit from their partners’ willingness to work harder for a firm that embraces such balance. Money is obviously important to large law firms, but it does not seem to be their raison d’être. As Hanlon (1999) has explained, the shift toward the commercialisation of legal practice occurred not only because of the firms’ increased emphasis on the ‘market values encapsulating control of budgets, the ability to

7 Lateral Link, ‘Breaking Down the 2020 AM Law 100 Rankings’ Above the Law, 1 May 2020 abovethelaw. com/2020/05/breaking-down-the-2020-am-law-100-rankings/.

384  Manuel A Gómez and Marc Galanter generate a profit via entrepreneurial skill, providing the paying client with what he or she wants’ (ibid: 124) but more significantly because their clients ‘altered the relationship they had with their professional advisers’ (ibid). Income is not directly correlated with prestige among lawyers (Heinz and Laumann 1982), which seems to derive mainly ‘from representing “establishment” clients’ (Galanter and Palay 1999: 969), which are the portfolio of most global law firms. A perusal of any major law firm’s website showcases a list of ‘representative clients’ or matters in which its lawyers have recently been involved. Prestigious clients and matters also play a key role in the increasingly popular individual lawyer rankings (eg Who’s Who Legal, Chambers, Best Lawyers, Super Lawyers, AVVO Rating, Martindale-Hubbell Peer Review Ratings) and the periodicals that focus on segments of the legal profession or geographical areas (eg Latin Lawyer, Global Arbitration Review). The first two decades of the twenty-first century have also witnessed an upsurge of industry-wide awards and recognitions bestowed upon lawyers, practice groups, offices, or entire law firms (eg best lawyers surveys, deal of the year award, pro bono firm of the year) (Acello 2015). Professional recognition signals financial success achieved by the lawyers involved, for example, through the successful representation of a client in a major transaction or litigated matter. Despite financial and market pressures, lawyers can ‘enjoy high degrees of autonomy and, in line with the traditions of professionalism, retain substantial amounts of control over their work and service delivery’ (Faulconbridge and Muzio 2008: 20). Legal periodicals such as Latin Lawyer, Law 360, Law.com and similar outlets regularly publish articles about the involvement of BL in multimillion-dollar transactions, international disputes, and other representative matters. Law firms include such information on their websites and the individual lawyer profiles, alongside credentials and other qualifications. Lawyers themselves routinely post self-congratulatory notes on social media when they attain a highly regarded ranking or earn professional awards or other recognitions, though no one brags about how much money they make or how much revenue their firms have generated. The amount of publicly available information about BL is greater than ever before. Ironically, this has also made it very difficult to separate objective assessment from advertisement and self-promotion, especially when much of the analysis is conducted by for-profit publishers whose main clientele is those law firms. Whereas word of mouth and industry listings like Martindale Hubbell still play a role, the dissemination of information about BL has increased exponentially through the law firms’ own webpages, social media accounts, newsletters and other communications to clients and the public. These advertising and communication strategies are no longer led by the managing partner or ‘rainmaker’ but rather by a Communications Director or an entire department (Tarlton and Werthman 1989). The presence of a Marketing or Communications Department is another sign that BL has moved further away from the classical partnership model and closer to an international corporate services organisation. B.  Diversity, Inclusion, and Productivity The symbiotic relationship between large law firms and their business clients is not limited to organisational homologies. Most large law firms have also adopted the strategies of the corporate sector, with the result that BL has begun to face the same pressure as their corporate clients to address issues of diversity, inclusion, and productivity. The exponential growth of BL has coincided with the movement for greater diversity and inclusion. In recent years, legal professions, the business world, and other parts of society

The Many Lives of Big Law  385 have embarked on various efforts to correct inequalities, eradicate discrimination, and equalise the playing field for women, racial and ethnic minorities, and other traditionally excluded groups. Although the values of equality and inclusion are widely shared, their articulation at the national level is nuanced and subject to local context. For example, in countries such as the US and the UK, diversity and inclusion in the legal profession – particularly the BL sector – has received widespread attention for a long time (Auerbach 1976; Gorman and Kay 2010; Payne-Pikus et al; Heinz and Laumann 1982; Kay and Gorman 2012; Payne-Pikus et al 2010; Rhode 2011; Smigel 1969; Sommerlad 2012; Tomlinson et al 2012; Wald 2008; 2009; Wilkins and Gulati 1996; Wilkins 2000; Woodson 2014). The same cannot be said about Africa, Latin America, and Asia, although the last few years have witnessed a growing academic interest in issues of gender in the legal professions of several countries from those regions (Ballakrishnen 2017; 2018; 2019; Vol 1, ch 36 2021; Ballakrishnen and Dezalay 2021; Bergoglio 2018). Many studies in recent decades have documented the numerical feminisation of the legal profession in general (Abel 1989; Menkel-Meadow 1995; Schultz and Shaw 2003; Seron 2013). Yet this is not a universal phenomenon, and even though there appear to be more women at BL today than, say, in 1990; the prevalent culture in the BL sector, the hierarchies of the law firms and other elements have not feminised, thus confirming that this segment of the profession continues to be affected by ‘gendered closure’ (Sommerlad 1994). Furthermore, in countries such as Australia, where the legal profession has experienced significant changes and the BL sector has grown exponentially during the period examined in this chapter; ‘“feminization” applies only to the pyramidal base’ (Thornton 2015: 153). Even though formal equality and meritocracy are central concepts in the globalising discourse of the corporate sector, BL does not seem to have achieved an acceptable level of feminisation. The ‘rational capitalist modernity’ (Sommerlad 2012: 2485) makes it illogical for global law firms to practise any form of discrimination, especially since they increasingly interact with different cultures throughout the world. The realisation that ‘the majority of the world’s population is neither white nor male’ (Wilkins 2000: 416) has prompted global law firms to undertake efforts related to diversity management, gender mainstreaming, and other devices to lower or eradicate barriers of race, gender, and ethnicity in BL. The fact that BL’s main clients are also global economic players makes the adoption of diversity and inclusion strategies an even higher priority. The widespread message is that in an age of globalisation diversity is good for business. Furthermore, since the most prominent large law firms are still headquartered in or have strong connections with the US and the UK, many of the diversity and inclusion programmes and strategies in BL are aligned with practices and policies common in those countries. The problem, however, is that even though diversity programmes have existed in the western epicentres of BL for several years (Sommerlad 2012; Rhode 2011), their effectiveness is questionable, and some might have made things worse (Sommerlad 2012). Although there are more women in large law firms today than three decades ago, they have not reached the top echelons in the same proportions as men, and those who do tend to take longer to achieve that status and have shorter careers (Foster 1995; Epstein 2001; Rhode 2011; Sommerlad 2012). Despite national variations, the glass ceiling still seems to disadvantage women in large law firms, ‘especially as they move up the ranks’ (Law360 2020). At least in the BL segment, most of the attention to gender disparity has focused on the path from associate to partner ‘as the measuring stick against which all other legal positions are valued’ (Arsiniega 2020: 113). Nonetheless, the picture is much more complex and requires considering ‘other intersectional identities like race and class’ (ibid).

386  Manuel A Gómez and Marc Galanter Studies regarding lawyers from different ethnic and racial groups have shown that women are not alone in facing challenges in the BL world. At least in the US, similar experiences have been reported for Black lawyers, Hispanic lawyers, and other minority groups (Dávila 1987; Kay and Gorman 2012; Wilkins 1999; 2000; 2004; 2008; Wilkins and Gulati 1996). Elitism has been a defining feature of large corporate law firms worldwide. In their drive to globalise, multinational law firms have focused on recruiting graduates from favoured law schools wherever they practise. These lawyers must be versed in foreign languages and hold graduate degrees from prominent American or European law schools, which often means that they come from privileged socio-economic strata. In the US until the mid-twentieth century, despite their ostensibly meritocratic character, large law firms were divided along ‘religious and cultural lines’ (Wald 2008: 1804). There were traditional White Anglo-Saxon Protestant (WASP) firms, also known as ‘White Shoe’, and Jewish firms (Wald 2007; Garth and Sterling 2009). Lawyers in both were graduates of the most elite schools in the country (Zaring and Henderson 2007; Garth and Sterling 2009). Although the religious and cultural divides among the largest law firms have disappeared, law school pedigree remains an important element (Rivera 2016) and a proxy for class, if less so than before (Garth and Sterling 2009). In countries such as the UK, a disproportionate number of partners of BL are still drawn from Cambridge and Oxford. Something similar can be seen in the US where ‘law school eliteness continues to be a necessary condition for an equity partnership in a large law firm’ (Dinovitzer and Garth 2020). C.  The Porous Monopoly of Lawyers As large law firms become increasingly intertwined with their corporate clients, the techniques and practices found in the business world have suffused law firms. Business management, pricing strategies, and legal project management are good examples. Responsibility for these and other market-related business capabilities is usually assigned to full-time non-lawyer employees with titles like Chief Services Officer (CSO), Chief Strategy Officer (CStO) or Chief Operating Officer (COO). Whereas some of these activities may not seem directly related to the practice of law, a growing number of lawyers have incorporated them into their daily work and sought training through leadership and management executive education courses. BL has embraced those activities as necessary components of the modern law firm (Empson 2007). As a result, the firm’s non-lawyer personnel have moved from providing administrative support to the more visible and important function of devising strategies to ensure that the organisation remains viable amid fierce global competition. The increased adaptation of large law firms to the corporate sector they serve has provoked different reactions. Susskind (2008), for example, has depicted the evolution of corporate legal services, especially since the arrival of new technologies, as a process whereby most legal work is increasingly packaged and commoditised. This would lead to the end of lawyers, as happened with artisans, craftspeople, and other guild-members during the industrial revolution (ibid). Kirgis (2010: 9) retorts that because lawyers, unlike craftspeople and artisans, produce information rather than tangible goods, ‘we cannot be certain that technological innovation will have the same impact on knowledge-based industries like law that industrial innovation had on the mechanical crafts’. According to this view, the demise of lawyers is unlikely as long as the provision of legal services remains a state-controlled monopoly guaranteed through rules that limit or foreclose outside competition by requiring

The Many Lives of Big Law  387 a licence to practise law in order to protect society from legal malpractice, conflicts of interest, and breach of confidentiality. Technology is not the only threat to the legal profession. As Steinitz (forthcoming) suggests in a recent study of the liberalisation of law practice in the US, a more credible challenge might come from the ownership and control of law firms by nonlawyers. The problem here is the tension between ‘shareholder primacy, on the one hand, and the ethical obligations and public interest commitment of lawyers, on the other’ (ibid). Some of the most important jurisdictions for BL, such as Australia and the UK, have permitted nonlawyer participation in the provision of legal services. Furthermore, the Great Recession of 2007–09 helped develop the litigation finance industry, which increased pressure on large law firms and regulatory authorities to implement changes or just look the other way and allow de facto nonlawyer participation in law firms (ibid). A less substantive but symbolically important issue is the lifting of restrictions on naming law firms. A famous example is the Asian law firm King Wood Mallesons, whose predecessor King & Wood was a fictional name (Mui 2012). Other BL players, such as Central America’s Consortium Legal, have adopted names that resemble those of a business establishment. In many countries, however, law firm ownership remains restricted to those licensed to practise in the jurisdiction, and a firm can only bear the surnames of present or former lawyers. But most firms which bear the names of their founding members have transformed their identity into a corporate brand by shortening their names, adopting visually attractive logos, and launching advertising campaigns that include an active presence in social media and the sponsorship of conferences and other professional events. The corporate image helps catch the attention of law students attracted by the prospect of representing important clients and the professional prestige that it brings. The possibility of earning a high salary is obviously a big incentive, especially for those under pressure to repay the loans that made their legal studies possible. Concurrently, in many parts of the world, legal education has shifted from a predominantly national focus to one that embraces the growing importance of transnational legal practice by offering relevant coursework, oral advocacy, and other skills. In a small subset of countries, such as the US and UK, the globalising efforts of legal education have been directed mostly to foreign lawyers. The number of graduate students enrolled in LLM programmes offered by US and UK law schools has been steadily rising. Aside from being able to hone their English language skills and acquire valuable comparative legal knowledge, foreign lawyers are also able to build their professional networks. As most global firms are either headquartered or have a strong physical presence in the US and the UK, and their connection with local law schools is strong, they also benefit from access to the pool of foreign lawyers keen to join their ranks after obtaining an LLM and sometimes also a licence to practise law in New York, California or another jurisdiction that welcomes foreign-trained lawyers. A global law firm may find those foreign lawyers attractive regardless of whether they stay in New York, Miami or London or return to practise in their home countries. Either way, they can help expand the foreign and transnational law capabilities of the firm, increasing the prospect of financial success given the ever-growing demand of legal work generated by BL’s corporate clients. IV. CONCLUSION

Compared to the world’s population of lawyers, BL is not that big. Nor is the type of law practised by large firm lawyers ‘bigger or more important than the type of law handled by the

388  Manuel A Gómez and Marc Galanter solo practitioners that represent the rest of us mortals’ (Gómez and Pérez-Perdomo 2017b: 6). There are many lawyers in other sectors of the legal profession who serve more important sectors of society (Wald 2012). In a world rife with conflict, injustice, poverty, and other social ills, lawyers are more important than ever, and the BL sector has helped to tackle some of those global harms by spearheading or supporting pro bono and public interest justice initiatives. However, justice and service are not claimed as the defining logics of BL. Because BL is intimately intertwined with the corporate sector, its prominence has mushroomed along with the expansion of powerful global businesses, making it a primay topic for legal scholars, practitioners, law students, industry analysts, and the popular press. BL’s fascination with its own ‘rank and image’ has also contributed to the perception that the legal profession revolves around global law firms (Galanter and Roberts 2009). Nevertheless, given the close relationship between BL and the business world, it is obvious that large law firms will continue to play an important role in the evolution of the legal profession, its regulation, and the relationship between lawyers, the state, the private sector, and society. As this chapter has shown, the practice of law by BL increasingly mirrors or is infused with features typically seen in management and business operations. The firms themselves have morphed into business organisations by focusing on productivity, pricing, and marketing. Most law firms remain classic partnerships (Regan 2008), but that may be more apparent than real. Lawyer-client relationships are still important in the world of BL, but personal linkages are weakening, and the lifelong loyalties that bound lawyer and client for years have dissipated. As law firms expand by merging with other firms instead of hiring junior lawyers through the traditional pipelines, the relationships among the lawyers of the merged organisations are different from those forged through longstanding partnerships. The expectations of young associates are also different, as an increasing number demand a better work-life balance and have no desire to remain at the firm for the rest of their professional careers. Some of these concerns are ameliorated by BL’s embrace of new technologies that help them to rely less on humans while increasing productivity and saving money. Nonetheless, some legal analysists see new technologies like Artificial Intelligence, smart contracts and the blockchain as another potential threat to the monopoly of lawyers and the very existence of BL. Although the death of BL has been prophesied before, large law firms appear to emerge stronger from each major crisis. Even though the future of BL will be determined by developments in the global economy, the experience of this segment reminds us of the old saw about cats having nine lives and always landing on their feet. In the case of BL, however, we do not know how many lives it has left. REFERENCES ABA (2020) ‘Experts Warn Lawyers of Cyber Risks to Remote Work’ ABA News 29 March www. americanbar.org/news/abanews/aba-news-archives/2020/03/cyber-risks-to-working-remote-b/. Abel, RL (1989) ‘Comparative Sociology of the Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 80–153. Acello, R (2015) ‘Are Lawyer Lists Just a Vanity Fair?’ 101 ABA Journal 32–33. Allegretti, J (1991) ‘Have Briefcase Will Travel: An Essay on the Lawyer as Hired Gun’ 24 Creighton Law Review 747–80. ALM Staff (2020) ‘Pay Cuts, Layoffs, and More: How Law Firms Are Managing the Pandemic’ The American Lawyer 31 July www.law.com/americanlawyer/2020/07/31/pay-cuts-layoffs-and-more-howlaw-firms-are-managing-the-pandemic/.

The Many Lives of Big Law  389 Armour, J and Sako, M (2020) ‘AI-enabled business models in legal services: from traditional law firms to next-generation law companies?’ 7 Journal of Professions and Organization 27–46. Arsiniega, Brittany (2020) ‘Beyond Big Law: Toward a More Inclusive Study of Gender in the Legal Profession’ 27 UCLA Women’s Law Journal 113–58. Auerbach, J (1976) Unequal Justice: Lawyers and Social Change in Modern America (New York, Oxford University Press). Ballakrishnen, S (2017) ‘She Gets the Job Done: Entrenched Gender Meanings and New Returns to Essentialism in India’s Elite Law Firms’ 4 Journal of Professions and Organization 324–42. —— (2018) ‘Nevertheless They Persisted: Gendered Frameworks and Socialization Advantages in Indian Professional Service Firms’ 55 Canadian Review of Sociology 343–61. —— (2019) ‘Just Like Global Firms: Unintended Parity and Speculative Isomorphism in India’s Elite Professions’ 53 Law & Society Review 108–40. —— (2021) Accidental Feminism: Gender Parity and Selective Mobility Among India’s New Legal Professionals (Princeton, Princeton University Press). Ballakrishnen, S and Dezalay, S (2021) Invisible Institutionalism: Collective Reflections from the Shadows of Legal Globalization (Oxford, Hart Publishing). Beckert, J (1999) ‘Agency, Entrepreneurs, and Institutional Change. The Role of Strategic Choice and Institutionalized Practices in Organizations’ 20(5) Organization Studies 777–99. Bergoglio, MI (2018) ‘Law Firms in Argentina: Challenges and Responses to a Crisis’ in M Gómez and R Pérez-Perdomo (eds), Big Law in Latin America: Globalization and Adjustments in the Provision of High-end Corporate Legal Services (London, Palgrave Macmillan) 27–63. Brock, D, Yaffe, T and Dembovsky, M (2006) ‘International Diversification and Performance: A Study of Global Law Firms’ 12 Journal of International Management 473–89. Brown, D (2020) ‘Closing the “Digital Divide” Critical in COVID-19 Response’ Human Rights Watch 25 March www.hrw.org/news/2020/03/25/closing-digital-divide-critical-covid-19-response. Chen, V (2020) ‘Are Women Leaving Big Law because of COVID?’ The American Lawyer 21 October www.law.com/americanlawyer/2020/10/21/are-women-leaving-big-law-because-of-covid/. Cipriani, GP (2019) ‘Industrial Evolution: How Big Law Blossomed Over the Past 40 Years’ The American Lawyer 3 September www.law.com/americanlawyer/2019/09/03/industrial-evolution-how-big-lawblossomed-over-the-past-40-years/. Dávila, L (1987) ‘The Underrepresentation of Hispanic Attorneys in Corporate Law Firms’ 43 Stanford Law Review 1403–52. Dezalay, Y and Garth, B (1995) ‘Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes’ 29 Law & Society Review 27–64. Dinovitzer, R and Garth, B (2020) ‘The New Place of Corporate Law Firms in the Structuring of Elite Legal Careers’ 45 Law & Social Inquiry 339–71. Dzienkowski, JS (2014) ‘The Future of Big Law: Alternative Legal Service Providers to Corporate Clients’ 82 Fordham Law Review 2995–3040. Empson, L (2007) Managing the Modern Law Firm: New Challenges, New Perspectives (New York, Oxford University Press). Epstein, CF (2001) ‘Women in the Legal Profession at the Turn of the Twenty-First Century: Assessing Glass Ceilings and Open Doors’ 49 University of Kansas Law Review 733. Faulconbridge, J and Muzio, D (2008) ‘Organizational professionalism in globalizing law firms’ 22 Work, Employment and Society 7–25. Foster, SE (1995) ‘The Glass Ceiling in the Profession: Why Do Law Firms Still Have So Few Female Partners?’ 42 UCLA Law Review 1631–90. Galanter, M (1983) ‘Mega-Law and Mega-Lawyering in the Contemporary United States’ in R Digwall and P Lewis (eds), The Sociology of the Professionals: Lawyers, Doctors, and Others (London, Macmillan) 152–76. Galanter, M and Henderson, W (2008) ‘The Elastic Tournament: The Second Transformation of the Big Law Firm’ 60 Stanford Law Review 1867–1928.

390  Manuel A Gómez and Marc Galanter Galanter, M and Palay, T (1990) ‘Why the Big Get Bigger: The Promotion-to-Partner Tournament and the Growth of Large Law Firms’ 76 Virginia Law Review 747–811. —— (1991) Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago, University of Chicago Press). —— (1996) ‘Large Law Firms and Professional Responsibility’ in R Cranston (ed), Legal Ethics and Professional Responsibility (New York, Oxford University Press). —— (1998) ‘A Little Jousting about the Big Law Firm Tournament’ 84 Virginia Law Review 1683–93. —— (1999) ‘Large Law Firm Misery: It’s the Tournament, Not the Money’ 52 Vanderbilt Law Review 953–68. Galanter, M and Roberts, S (2009) ‘From Kinship to Magic Circle: the London Commercial Law Firm in the Ttwentieth Century’ 15 International Journal of the Legal Profession 143–78. Garth, BG and Sterling, J (2009) ‘Exploring Inequality in the Corporate Law Firm Apprenticeship: Doing the Time, Finding the Love’ 22 Georgetown Journal of Legal Ethics 1361–94. Gilson, RJ and Mnookin, RH (1989) ‘Coming of Age in a Corporate Law Firm: The Economics of Associate Career Patterns’ 41 Stanford Law Review 567–95. Gómez, MA (2021) ‘Beyond Borders and Across Legal Traditions: The Transnationalization of Latin American Lawyers’ in P Zumbansen (ed), Oxford Handbook of Transnational Law (Oxford, Oxford University Press). Gómez, MA and Pérez-Perdomo, R (eds) (2017a) Big Law in Latin America: Globalization and adjustments in the provision of high-end corporate legal services (London, Palgrave Macmillan). —— (2017b) ‘Introduction: Corporate lawyers and multinational corporations in Latin America and Spain: 1990–2015’ in M Gómez and R Pérez-Perdomo (eds), Big Law in Latin America: Globalization and Adjustments in the Provision of High-end Corporate Legal Services (London, Palgrave Macmillan) 20. —— (2017c) ‘Corporate lawyers and multinational corporations in Latin America and Spain: 1990–2015’ in M Gómez and R Pérez-Perdomo (eds), Big Law in Latin America: Globalization and Adjustments in the Provision of High-end Corporate Legal Services (London, Palgrave Macmillan). Gorman, EH and Kay, FM (2010) ‘Racial and Ethnic Minority Representation in Large US Law Firms’ in A Sarat (ed), 52 Studies in Law, Politics, and Society 211–38 (Special Issue: Law Firms, Legal Culture, and Legal Practice). Hanlon, G (1999) ‘Flexible Accumulation and the Emergence of the “Commercialised Professional”’ in G Hanlon, Lawyers, the State and the Market (London, Palgrave Macmillan) ch 4. Heinz, JP and Laumann EO (1982) Chicago Lawyers: The Social Structure of the Bar (New York, Russell Sage Foundation). Henderson, W (2008) ‘Are We Selling Results or Résumés?: The underexplored linkage between human resource strategies and firm-specific capital’ Indiana Legal Studies Research Paper No 105. Hermann, M (2015) ‘Gobsmacked by Dacheng Dentons’ Above the Law 2 February abovethelaw. com/2015/02/gobsmacked-by-dacheng-dentons/. Jeffreys, BS (2020) ‘Legal Professionals Want to Keep Working from Home, but Will That Last? The American Lawyer 11 June www.law.com/americanlawyer/2020/06/11/legal-professionals-want-tokeep-working-from-home-but-will-that-last. Jenoff, P (2018) ‘Big Law Dreams’ 13 Florida A&M University Law Review 183–99. Kay, FM and Gorman, EH (2012) ‘Developmental Practices, Organizational Culture, and Minority Representation in Organizational Leadership: The Case of Partners in Large US Law Firms’ 639(1) The Annals of the American Academy of Political and Social Science 91–113. Kirgis, PF (2010) ‘The Knowledge Guild: The Legal Profession in an Age of Technical Change’ 11 Nevada Law Journal 184. Lambert, JD and Stewart, GS (2021) The Anointed: New York’s White-Shoe Law Firms – How They Started, How They Grew, and How They Ran the Country (Lyons Press). Law 360 (2020) ‘The 2020 Law360 Glass Ceiling Report’ www.law360.com/articles/1320417/the-2020law360-glass-ceiling-report. Li, X and Liu, S (2012) ‘The Learning Process of Globalization: How Chinese Law Survived the Financial Crisis’ 80 Fordham Law Review 2847–66.

The Many Lives of Big Law  391 Liu, S and Au, A (2020) ‘The Gateway to Global China: Hong Kong and the Future of Chinese Law Firms’ 37 Wisconsin International Law Journal 308. Maister, D (2005) ‘Geographic Expansion Strategies’ davidmaister.com/articles/geographic-expansionstrategies/. Maloney, A (2020) ‘Covid-19 is Driving Long-Term Changes in Big Law for Remote Work, Fees, Firing’ The American Lawyer 5 October www.law.com/americanlawyer/2020/10/05/covid-19-is-driving-longterm-changes-in-big-law-for-remote-work-fees-hiring. Malpas, J (2021) ‘Dentons to secure coveted Nigeria presence with ACAS-Law combination’ The Global Legal Post 1 April www.globallegalpost.com/big-stories/dentons-to-secure-coveted-nigeria-presencewith-acas-law-combination-14400605/. McKinsey and Company (2020) ‘COVID-19: Implications for Law Firms’ 4 May. Menkel-Meadow, C (1995) ‘Feminization of the Legal Profession: The Comparative Sociology of Women Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: An Overview (Berkeley, University of California Press) 221–80. Michelson, E (2013) ‘Women in the Legal Profession, 1970–2010: A Study on the Global Supply of Lawyers’ 20 Indiana Journal of Global Legal Studies 1071–1137. Mizner, A (2020) ‘Dentons Continues Regional Growth with Tanzania Move’ African Law & Business, 24 September iclg.com/alb/14616-dentons-continues-regional-growth-with-tanzania-move. Mui, S (2012) ‘China’s King & Wood Never Had Founders By Those Names’ ABA Journal 9 February www.abajournal.com/news/article/chinas_king_wood_never_had_partners_by_those_names. Nelson, RL (1981) ‘Practice and Privilege: Social Change and the Structure of Large Law Firms’ 6 American Bar Foundation Research Journal 95–140. Oller, J (2019) White Shoe: How a New Breed of Wall Stret Lawyers Changed Big Business and the American Century (New York, Penguin Random House). Parnell, DJ (2015) ‘Roger Meltzer of DLA Piper, On Law Firm Legacies, China, And Defining The “Global Elite”’ Forbes 19 October www.forbes.com/sites/davidparnell/2015/10/19/roger-meltzer-dlapiper-law-firm-legacies-china-and-global-elite/#493c8ac19945. Patrice, J (2019) ‘Massive Law Firm to Become Even More Massive’ Above the Law 7 August abovethelaw. com/2019/08/massive-law-firm-to-become-even-more-massiver-dentons/. Paulsson, J (1983) ‘Delocalisation of International Commercial Arbitration: When and Why It Matters’ 32 International and Comparative Law Quarterly 53–61. Payne-Pikus, MR, Hagan, J and Nelson, R (2010) ‘Experiencing Discrimination: Race and Retention in America’s Largest Law Firms’ 44 Law & Society Review 553–84. Quack, S (2007) ‘Legal Professionals and Transnational Law-Making: A Case of Distributed Agency’ 14(5) Organization 643–66. Randazzo, S (2019) ‘Being a Law Firm Partner Was Once a Job for Life. That Culture Is All but Dead’ 9 August Wall Street Journal. —— (2020) ‘Big Law Firms Prosper Despite Covid-Impaired Economy’ Wall Street Journal 5 October www.wsj.com/articles/big-law-firms-prosper-despite-covid-impaired-economy-11601890200. Regan, MC (2008) ‘Lawyers, Symbols, and Money: Outside Investment in Law Firms’ 27 Penn State Law Review 407. Regan, MC and Rohrer, LH (2021) Big Law. Money and Meaning in the Modern Law Firm (Chicago, University of Chicago Press) Rhode, DL (2011) ‘From Platitudes to Priorities: Diversity and Gender Equity in Law Firms’ 24 Georgetown Journal of Legal Ethics 1041–78. Ribstein, L (2010) ‘The Death of Big Law’ 2010 Wisconsin Law Review 749–815. Richmond, DR and Corbin, MK (2014) ‘Professional Responsibility and Liability Aspects of Vereins, the Swiss Army Knife of Global Law Firm Combinations’ 88 St John’s Law Review 917–84. Rivera, LA (2016) Pedigree: How Elite Students Get Elite Jobs (Princeton, Princeton University Press). Ritchie, H, Ortiz-Ospina, E, Beltekian D, Mathieu E, Hassell J, Macdonald B, Giattino C, Appel, C, Rodés-Guirao L and Roser, M (2021) ‘Coronavirus Pandemic (COVID-19)’ OurWorldInData.org ourworldindata.org/coronavirus.

392  Manuel A Gómez and Marc Galanter Roberts, H (2020) ‘Firms Roll Out COVID-19 Mental Health Measures As Crisis Takes Toll’ UK Legal Week 19 May www.law.com/international-edition/2020/05/19/firms-roll-out-covid-19-mental-healthmeasures-as-crisis-takes-toll/. Rubino, K (2021) ‘Despite All Expectations, BigLaw Had a Very Profitable 2020’ Above the Law 23 April abovethelaw.com/2021/04/despite-all-expectations-biglaw-had-a-very-profitable-2020/. Schiltz, PJ (1999) ‘On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy and Unethical Profession’ 52 Vanderbilt Law Review 871. Schultz, U and Shaw, G (eds) (2003) Women in the World’s Legal Professions (Oxford, Hart Publishing). Seal, B (2020) ‘The COVID Pandemic Could Kill the Partner Office’ The American Lawyers 17 September www.law.com/americanlawyer/2020/09/17/the-covid-pandemic-could-kill-the-partner-office. Sechooler, A (2008) ‘Globalization, Inequality, and the Legal Services Industry’ 15 International Journal of the Legal Profession 231–48. Seron, C (2013) ‘Afterword: A Comparative Look at the Status of Women in the Legal Profession’ 20 Indiana Journal of Global Legal Studies 1359–72. Sexton, A (2020) ‘Power Social Media Moves to Take the Market in the COVID Era’ Law.com 15 June www.law.com/njlawjournal/2020/06/15/power-social-media-moves-to-take-the-market-in-the-covidera/. Smigel, E (1969) The Wall Street Lawyer: Professional Organization Man? (Bloomington, Indiana University Press). Smith, P (2021) ‘Why Law Firms Had So Much Success in 2020 as a Pandemic Raged’ Law.com 5 February www.law.com/americanlawyer/2021/02/05/why-law-firms-had-so-much-success-in-2020-asa-pandemic-raged/?slreturn=20210408100441. Sommerlad, H (1994) ‘The Myth of Feminisation: Women and Cultural Change in the Legal Profession’ 1 International Journal of the Legal Profession 31–53. —— (2012) ‘Minorities, Merit, and Misrecognition in the Globalized Profession’ 80 Fordham Law Review 2481–2512. Steinitz, M (forthcoming) ‘The Partnership Mystique: Law Firm Finance and Governance for the 21st Century American Law Firm’ William & Mary Law Review. Susskind, R (2008) The End of Lawyers? Rethinking the Nature of Legal Services (Oxford, Oxford University Press). Swaine, R (1948) The Cravath Firm (New York, Ad Press). Tai-Ting Liu, T (2018) ‘The Rise of China and Its Geopolitical Implications’ 23 Asian Politics 5–8. Tarlton, MA and Werthman, SJ (1989) ‘The Law Firm Marketing Director – What Does the Marketing Director Do – How Do You Find One’ 15(7) Legal Economics 42–47. Thornton, M (2015) ‘Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms’ 17 Legal Ethics 153–76. Tomlinson, J, Muzio, D, Sommerlad, H, Webley, L and Duff, L (2012) ‘Structure, Agency and Career Strategies of White Women and Black and Minority Ethnic Individuals in the Legal Profession’ 66 Human Relations 245–69. Trubek, D, Dezalay, Y, Buchanan, R and Davis, J (1994) ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas’ 44 Case Western Reserve Law Review 407–98. UNODC (2020) ‘Ensuring Access to Justice in the Context of COVID-19’ UNDP Guidance Note May www.unodc.org/documents/Advocacy-Section/Ensuring_Access_to_Justice_in_the_Context_of_ COVID-191.pdf. Vetula, ME (2009) ‘From the Big Four to Big Law: The Swiss Verein and the Global Law Firm’ 22 Georgetown Journal of Legal Ethics 1177–92. Wald, E (2008) ‘The Rise and Fall of the WASP and Jewish Law Firms’ 60 Stanford Law Review 1803–66. —— (2009) ‘Glass Ceilings and Dead Ends: Professional Ideologies: Gender Stereotypes and the Future of Women Lawyers at Large Law Firms’ 78 Fordham Law Review 2245–88. —— (2012) ‘Smart Growth: The Large Law Firm in the Twenty-first Century 80 Fordham Law Review 2867–2916.

The Many Lives of Big Law  393 WHO (2020) ‘WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19- 11 March 2020’ www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarksat-the-media-briefing-on-covid-19---11-march-2020. Wilkins, DB (1999) ‘Partners without Power – A Preliminary Look at Black Partners in Corporate Law Firms’ 2 Journal of the Institute for the Study of Legal Ethics 15–48. —— (2000), ‘Why Global Law Firms Should Care About Diversity: Five Lessons from the American Experience’ 2 European Journal of Law Reform 415–38. —— (2004) ‘From “Separate Is Inherently Unequal” to “Diversity Is Good for Business”: The Rise of Market-Based Diversity Arguments and the Fate of the Black Corporate Bar’ 117 Harvard Law Review 1548–1615. —— (2008) ‘“If You Can’t Join’ Em, Beat’ Em!” The Rise and Fall of the Black Corporate Law Firm’ 60 Stanford Law Review 1733–1802. Wilkins, DB and Esteban MJ (2017) ‘The Integration of Law into Global Business Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global Legal Services Market’ 43 Law & Social Inquiry 981–1026. Wilkins, DB and Gulati, M (1996) ‘Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis’ 84 California Law Review 496–625. Woodson, K (2014) ‘Race and Rapport: Homophily and Racial Disadvantage in Large Law Firms’ 83 Fordham Law Review 2557–76. Zaretsky, S (2020) ‘The Global 100: The Richest Law Firms in the World (2020)’ Above the Law 25 September abovethelaw.com/2020/09/the-global-100-the-richest-law-firms-in-the-world-2020/. Zaring, DT and Henderson, W (2007) ‘Young Associates in Trouble’ 105 Michigan Law Review 1087–1106.

394

17 Globalisation, Lawyers, and Emerging Economies The Rise, Transformation, and Significance of the New Corporate Legal Ecosystem in India, Brazil, and China* DAVID B WILKINS, DAVID M TRUBEK AND BRYON FONG

I. INTRODUCTION

G

lobalisation is transforming virtually every sector of the world’s economy, with rising powers in Asia, Latin America, and Africa playing an increasingly important role (Stiglitz 2003; UN Development Program 2013). The Project on Globalization, Lawyers, and Emerging Economies (GLEE) seeks to understand the impact of this transformation on the market for corporate legal services, which has also been rapidly globalising (Faulconbridge et al 2007; Flood 2007). Launched in 2012, GLEE is a multinational, multidisciplinary, and multi-institutional collaboration to conduct empirical research investigating a key change that globalisation is producing in the legal professions of several emerging economies: the development of a distinct corporate legal ‘hemisphere’ of the bar (Heinz and Laumann 1982; Heinz et al 1995). GLEE maps this development and examines its implications for lawyers and society within these jurisdictions and for the processes of globalisation and the corporate legal services market generally. To date, GLEE has produced national studies on India (Wilkins et al 2017); Brazil (Cunha et al 2018a); and China (Liu and Wilkins forthcoming), and is currently engaged in regional studies in Africa and Southeast Asia. In this chapter, we present evidence from GLEE’s studies of India, Brazil, and China to demonstrate three connected propositions. First, globalisation is indeed producing a new corporate legal sector in each of these important emerging economies which is comprised of three interrelated components: increasingly large and sophisticated ‘law firms’ specialising primarily or exclusively in legal services to corporations; a growing number of foreign and domestic corporate ‘clients’ who hire these new corporate law firms but also compete by

* A

more extensive version of this chapter was published in (2020) 61 Harvard International Law Journal 281.

396  David B Wilkins, David M Trubek and Bryon Fong building in-house legal departments to control costs and satisfy some or all of the company’s legal needs; and a ‘legal education’ system under mounting pressure to supply well-trained lawyers to law firms and legal departments. We refer to these interlocking components as constituting a ‘micro-level corporate legal ecosystem’ to capture how changes in one component produce corresponding changes in the structure and operation of the others – for example, how the development of sophisticated in-house legal departments impacts law firms and legal education. Second, the new corporate legal ecosystems developing in India, Brazil, and China have been shaped by both the diffusion of global models originating in the US and subsequently adopted and exported by the UK and by indigenous social, cultural, political, and economic factors. The result is a hybridised corporate legal ecosystem in each country that differs from both global templates, and each other. Third, a key factor in explaining these differences is what we will refer to as the ‘macro-level’ differences in the relationship between the state, the market, and the organised bar among the three jurisdictions and between all three and the US. We refer to these macro- and micro-level forces as ‘gears’, whose relative strength shapes the structure and operation of the corporate legal ecosystem. Understanding the operation of these gears – and the interaction between these two levels – is critical to explaining why a distinct corporate legal sector has developed in India, Brazil, and China, and the important differences among them, particularly with respect to China. II.  THE GLOBAL SHIFT AND THE PULL OF THE GLOBAL GOLD STANDARD IN CORPORATE LEGAL PRACTICE

Beginning with the fall of the Berlin Wall in 1989 and continuing through China’s accession to the WTO in 2001, the decade of the 1990s saw many countries begin, or significantly advance, a process of transforming from a mostly closed economic model to one increasingly open to the global economy. Following the 1991 balance of payments crisis, India abandoned the policy of ‘Indian socialism’ which had kept its economy largely isolated (particularly from the West) since independence in 1947 and began to liberalise many sectors (Cerra and Saxena 2002; Nayar 1998). Similarly, Brazil, after ending 20 years of military rule in 1985 and adopting a new constitution in 1988, began to further liberalise its economy and open its markets (Cunha et al 2018b). The 1990s was also the decade in which China consolidated the market-oriented economic reforms begun by Deng Xiaoping in the 1970s, while increasing its ties to the West and distancing itself from overt political crackdowns, such as Tiananmen Square in 1989 (Liu et al 2016). This global shift produced three interconnected changes. At the macroeconomic level, each country experienced a significant increase in foreign direct investment (albeit with restrictions) and privatised many state-owned assets and enterprises. As a result, private market forces now play an increasingly important role (Wilkins et al 2017). This, in turn, fuelled a rapidly escalating demand for new laws, regulations, and an administrative apparatus to facilitate this new economic activity and interface with the broader global economic and political environment (Plarre 2007). Finally, this explosion in the novelty, quantity and complexity of laws and regulations governing the economy created growing demand for new (or retooled) lawyers capable of practising law within this new legal and regulatory environment (Papa and Wilkins 2011). Emerging economies had two options to meet this demand: importing qualified corporate lawyers or developing a domestic corporate bar. The path for the first option was more straightforward. By the 1990s, many US law firms had followed their clients to the UK and

Globalisation, Lawyers, and Emerging Economies  397 Western Europe and were eager to continue doing so as these companies took advantage of the opportunities presented in emerging markets (Flood 1996). But precisely because of their strong desire to free themselves from their colonial and dependent pasts and assert their independence on the world stage, policymakers in India, Brazil, and China had little interest in simply surrendering their new corporate legal markets to foreign lawyers – particularly given the intense lobbying by domestic lawyers who wanted to benefit from the new demand. The second option of creating a new domestic corporate bar from the ground up, however, would prove to be more difficult. Only a handful of lawyers in India and Brazil had any experience with sophisticated corporate legal practice prior to the global shift. The situation was even worse in China, which had effectively disbanded its legal profession during the Cultural Revolution. Nor did any of the countries have law schools that were able to train lawyers in the skills and dispositions needed to service the new corporate clientele. Domestic lawyers seeking to take advantage of this new market opportunity, therefore, had to quickly build – or appear to build – that capacity. It is not surprising that the lawyers tackling this daunting task looked to US corporate legal models. By the later decades of the twentieth century, US law firms, and their UK counterparts, which by the 1990s had adopted many similar practices, were widely recognised as the global leaders in providing corporate legal services (Trubek et al 1994). However, even as they sought to emulate US corporate practices, few of these lawyers were aware of the forces that had allowed large corporate law firms to develop and thrive in the first decades of the twentieth century or of the challenge these law firms were facing at the end of that century. Both historical antecedents would have important implications for the development of corporate legal ecosystems in each of these countries. A.  The Cravath System and the Emergence of the Law Firm-Led Corporate Legal Ecosystem (circa 1900–1980) Although large law firms have become the defining symbol of the US corporate legal ecosystem, it is important to remember that they are a relatively recent invention (Galanter and Palay 1991). In the early twentieth century, building on the firm that would become Cravath Swaine & Moore, a handful of lawyers began to develop a structure of practice that differed significantly from the sole proprietorships and small, loosely-organised law firms that typified even the most sophisticated nineteenth century legal practice (Smigel 1964). Specifically, these law firms adopted three attributes that would come to define the image – if not always the reality – of these institutions for the remainder of the twentieth century (ibid). First, the business of these new law firms would be big business, with the goal of providing a full range of legal services to corporate clients. Second, the lawyers working in these firms would be hired exclusively from top law schools, as opposed to laterally from other law firms. These ‘associates’, as they came to be called, would be developed through a process of apprenticeship, after which the ‘best’ would be asked to stay and become permanent members of the firm, or ‘partners’, and the rest required to leave the organisation to find other employment. Third, all partners shared more or less equally in the firm’s profits and losses and were entitled to participate in firm decision-making. Two factors contributed to the rise of the Cravath System. First, beginning in the early twentieth century there was an explosion of public and private law governing corporations (Gordon 1984). Yet these entities had few if any internal legal resources to address these new legal issues (Gilson 1990). The Cravath System responded to this demand by promising a full

398  David B Wilkins, David M Trubek and Bryon Fong suite of legal practices to handle all a company’s legal needs. At the same time, a growing number of new law schools were turning out graduates who had been taught to ‘think like a lawyer’ but who had virtually no training in how to practise (Galanter and Palay 1991). The steady stream of corporate work provided by their regular clients allowed Cravath System law firms to pay these young lawyers a respectable salary and to offer them the kind of real-world training in the practice of law that they were not receiving in law school – with clients absorbing most of the cost (Wilkins and Gulati 1998). As a result, Cravath System law firms had their pick of graduates from the best law schools (Galanter and Palay 1991). By the 1960s, this alignment between Cravath System law firms and their client and labour markets had created a distinct sector of legal practice consisting of law firms, corporate clients, and graduates of top law schools (see Figure 1). Figure 1  Micro-gears of the corporate legal ecosystem

These interlocking gears indicate the dynamic relationship among these elements. By the middle decades of the twentieth century, Cravath System firms were firmly in control of both the demand for their services and the supply of elite law school graduates (Galanter and Palay 1991: 20). We call this the Law Firm-Led period of the American corporate legal ecosystem, with the larger law firm gear playing the leading role (see Figure 2). In the last decades of the twentieth century, this model spread to the UK, where the country’s leading ‘Magic’ and ‘Silver’ Circle law firms embraced many of the Cravath System’s core practice (albeit with important modifications) (Galanter and Roberts 2008). These firms, in turn, helped to spread the Cravath System model to Europe, as they and their US counterparts sought to establish beachheads on the continent, particularly after the creation of the EU (Trubek et al 1994). Although there was more resistance to this new model of law practice in Europe, particularly in Italy and France where traditional small firms often led by leading professors continue to play a dominant role even in the corporate sector, by the end of the millennium there were a number of large law firms modeled on the Cravath System in

Globalisation, Lawyers, and Emerging Economies  399 many European countries, particularly in Germany, Spain, and the Netherlands (Quack 2012). Just as this expansion was occurring, however, the underlying alignment that had produced Cravath System law firms in the US was beginning to unravel. Figure 2  Law firm-led micro-level gearing

B.  The Inside Counsel Revolution and Re-Gearing to a Client-Led Corporate Legal Ecosystem The change started with the client gear. As legal costs soared, companies began to turn to sophisticated general counsels (GCs) to upgrade their internal legal expertise (Daly 1997; Wilkins 2012). Once installed, these GCs began to take more of the company’s legal work in-house, monitor outside firms for wasteful practices, and break up the long-standing relationships between the company and its preferred outside law firm by requiring firms to compete for all new significant business (Heineman 2016). These changes in the client market for corporate legal services helped to fuel – and were accentuated by – a parallel set of changes in the labour market for corporate lawyers. As the number and size of Cravath System firms grew dramatically during the later decades of the twentieth century, the competition to acquire top talent greatly intensified (Henderson 2014). Moreover, law firms were now also competing with GC offices, which had begun to hire mid-level and senior lawyers from law firms to fill their expanding legal departments. Finally, by making clear, in a phrase often employed by GCs, that ‘we hire lawyers not firms’, clients helped break down the long-standing taboo against lateral movement between large firms, which increasingly scrambled to find lawyers with the skills and business savvy that clients were demanding to handle their escalating need for sophisticated corporate legal services produced by deregulation and globalisation, particularly in the financial services sector (Wilkins 2012). The result was a booming labour market for partners and even associates willing to sell their talents to the highest bidder.

400  David B Wilkins, David M Trubek and Bryon Fong These interconnected changes have turned the Law Firm-Led ecosystem upsidedown, with clients now driving developments. Figure 3 shows the larger client gear driving the other two. Figure 3  Client-led micro-level gearing

These changes had become widespread in the US – and increasingly in the UK and in Western European countries such as Germany, Spain, and the Netherlands – by the time India, Brazil, and China were undergoing their global shift (ibid). However, because much of this transformation occurred below the surface, with many firms continuing to claim to follow the central tenets of the Cravath System, it was harder for those outside the US and UK ecosystems to see how the actual practices of law firms, clients, and legal education diverged from the ideal elements of the Law-Firm Led period. It was this confusing, contradictory, and fluid pastiche that lawyers in India, Brazil, and China confronted when they sought to build a new corporate legal ecosystem in their own countries in the years following the global shift. III.  THE RISE OF THE CORPORATE LEGAL SECTOR IN INDIA, BRAZIL, AND CHINA

Our national studies document a dramatic growth in a distinct Law Firm-Led corporate legal sector in India, Brazil, and China in the years immediately following the global shift. But these studies also underscore that this process has been more than simple mimesis and diffusion of US and UK corporate legal models, particularly as each country has begun to transition from a Law Firm-Led to a Client-Led corporate legal ecosystem. A. Diffusion Ironically, the creation of a new corporate legal ecosystem patterned on US models is easiest to see in China, where virtually the entire legal profession was dismantled during the Cultural Revolution (Liu et al 2016). As Deng Xiaoping and his successors slowly began to open the Chinese economy in the 1980s and 1990s, the government decided to encourage the growth

Globalisation, Lawyers, and Emerging Economies  401 of corporate law firms. All of China’s current top 30 law firms were founded after 1984, the overwhelming majority in the early 1990s (see Figure 4). Figure 4  Top 30 Chinese law firms by revenue (2017) 30 28 26 24 2017 Rank by Revenue

22 20 18 16 14 12 10 8 6 4 2

19 8 19 3 8 19 4 8 19 5 8 19 6 8 19 7 8 19 8 8 19 9 9 19 0 9 19 1 9 19 2 9 19 3 9 19 4 9 19 5 9 19 6 9 19 7 9 19 8 9 20 9 0 20 0 0 20 1 0 20 2 0 20 3 0 20 4 0 20 5 0 20 6 0 20 7 0 20 8 0 20 9 1 20 0 1 20 1 1 20 2 1 20 3 1 20 4 15

0

Year Founded

Moreover, these new corporate law firms were expressly designed to mimic the Cravath System – at least on the surface. King & Wood is emblematic. Founded in 1993 by Wang Junfeng, the very name of the firm – which never had a Mr King or Mr Wood – was devised to create international legitimacy in a market dominated by firms with names like Allen & Overy and Davis Polk (Jones 2012). King & Wood has self-consciously emulated the Cravath System in its work, clients, and culture (Liu and Wu forthcoming). Several other major Chinese firms have adopted similar policies (ibid). India and Brazil are similar, although in both jurisdictions there were commercial law firms that predated the global shift. Figure 5 shows the rapid expansion in the number of such firms in India, following its global shift in 1991 (Nanda et al 2017). AZB & Partners, tied for the second highest ranking firm in 2015, is typical of this new breed. Its founder, Zia Mody, studied at both Cambridge University and Harvard Law School before working for the US firm of Baker & McKenzie in New York City, ‘where she learned firsthand about the Cravath Model of the law firm and the corporate transactional work on which it is based’ (Nanda et al 2017: 74). Returning to India, Mody pursued a traditional litigation practice. But after several friends and former colleagues abroad asked whether she could help them with corporate work in India, in 2004 Mody joined two other partners to create a firm patterned on the Cravath System, specialising in corporate work such as mergers and acquisitions and initial public offerings and hiring lawyers straight out of law school with the promise that the best might become partners in the firm. Most of the 65 per cent of India’s current leading law firms which were founded in the years following the country’s global shift followed a similar pattern of self-consciously patterning themselves on Cravath System practices.

402  David B Wilkins, David M Trubek and Bryon Fong Figure 5  Top 40 Indian law firms by founding year 45 40 35 2015 rank

30 25 20 15 10 5 0 1860

1880

1900

1920

1940

1960

1980

2000

2020

2040

Year founded

But it was not just new firms that understood the importance of adopting – or appearing to adopt – Cravath System practices. Two of India’s most successful law firms in 2015 – Amarchand & Mangaldas & Suresh A Shroff & Co (India’s most prestigious firm in 2015) and Khaitan & Co (tied for second) – were founded in 1917 and 1911 respectively, long before India’s global shift. In the 1990s, both firms embraced ‘many of the primary attributes – multiple offices and practice areas, structured recruiting, promotion, compensation, and formal governance structures – traditionally associated with U.S. and UK law firms organized on the Cravath Model’ (ibid 75). ‘[B]y deploy[ing] their “new” model of legal practice to disrupt existing patterns of hierarchy, both internally within their firms and externally on behalf of their corporate clients’, both Amarchand and Khaitan & Co were able to move beyond their historic roots and succeed in India’s new legal market (ibid). Not all of India’s most prestigious commercial law firms were able to successfully make this transition. By the mid-nineteenth century, the British had established commercial law firms in India to serve the growing needs of the imperial economy (Gupta et al 2017: 44–45). However, even after India’s global shift many of these firms refused to accept the new Cravath System, instead choosing to ‘cling to the gentlemanly understanding of law as a noble profession in which a handful of distinguished senior partners dispensed sage advice to their established Indian clients, with the aid of juniors who were seen but not heard, that had been the norm in the imperial era in which they were formed’ (Nanda et al 2017: 69). As a result, ‘these firms left the door open for a new entrepreneurial group of Indian lawyers who were willing to embrace new forms of practice and managerial technologies of the new Cravath Model’ (ibid). Brazil exhibited a similar pattern, although one that again underscores the importance of local factors. Between 1991 and 2000, 92 corporate law firms were founded in Brazil – the same number that were founded between 1900 and 1980 (see Figure 6; Gabbay et al 2018).

Globalisation, Lawyers, and Emerging Economies  403 Figure 6  Number of corporate firms in Brazil by founding decade 120 102

Number of Firms

100

92

80 59

60 40 25

n

rm

at

io

14 20

10

fo in

N

o

20

11

to

20

00 20

01

to

20

90 19

91

to

19

80 19

81

to

19

70 19

71

to

19

60

20

17

15

to 61

19

51

to

19

50 19

40 to 41

19

31

to

19

30 19

20 to

19 19

21

to 11

19

19

00

to

19

10

0

9

7

2

1

19

3

19

20

15

Period Founded

The majority of these new firms abandoned their traditional practice of delivering services linked to the expertise of a particular ‘notable’ lawyer, instead providing a full range of corporate legal services and adopting internal hiring, promotion, and governance structures mimicking the Cravath System (ibid: 43). Unlike in India, however, a significant number of Brazil’s most prominent traditional firms have flourished after liberalisation. Those that did mostly had been founded by expatriates or Brazilians with significant experience in the US or UK (Ibid). When Brazil made the transition from military to civilian rule and further opened its economy, it was relatively easy for these firms to intensify their strategy of adopting Cravath System practices and compete effectively with the new generation of Brazilian firms embracing similar policies. It is not surprising that law firms in all three jurisdictions found the patina of the Cravath System symbolically attractive. As exemplified by King & Wood’s embrace of a mythical western name, the trappings of the Cravath style signalled modernity and global connectedness to potential clients, foreign and domestic. But the Cravath System’s full-service model was also functional. Each country’s global shift produced an explosion in the demand for corporate legal services, but the companies were ill equipped to handle their own legal needs and had little idea how to do that internally while the Cravath-style firms provided a ready-made solution. The situation in India was typical. Prior to the global shift, Indian companies had virtually no internal legal expertise, relying on the company’s CFO for rudimentary legal and compliance services (Wilkins and Khanna 2017: 144). As a result, Indian corporations ‘turned to India’s rapidly developing corporate law firms to provide the necessary legal competence’ (ibid: 120). Nor were foreign multinational companies (FMNCs) anxious to invest time and money to establish significant in-house legal departments in what was still a relatively new untested market, preferring to handle legal work in India and other emerging markets out of

404  David B Wilkins, David M Trubek and Bryon Fong their global headquarters or from a more established regional office in locations such as Hong Kong or Singapore. As a result, most of the legal work that needed to be done in India was given to law firms (ibid: 110). The dynamics of the labour markets in India, Brazil and China further reinforced the tendency of law firms to gravitate towards the traditional Cravath System. In each country, the liberalisation following the global shift produced a sharp increase in the demand for welltrained corporate lawyers. Finding few senior lawyers who could fill this demand, law firms embraced the Cravath System’s practice of recruiting recent law school graduates (Gingerich and Robinson 2017; Cunha and Ghirardi 2018; Wang et al forthcoming). Although the quality of most law schools in these countries was regarded as poor, by the early 1990s each had a few elite law schools reputed to produce high-quality students. These included India’s ‘national’ law schools, traditional prestigious law schools in Brazil such as the University of São Paulo and the Pontifical Catholic University in Rio, and Peking University, Renmin, and Tsinghua in China. These elite schools became a natural recruiting ground for the new corporate law firms. B. Hybridisation Although all three studies document the diffusion of the Cravath System in each country, they also underscore how indigenous forces have played a critical role in shaping the resulting Law Firm-Led ecosystem. In Brazil, the most important local factor is social class, which as Bonelli and Fortes (Vol 1, ch 19) underscore, is closely tied to ethnicity. Well before the 1990s there were elite lawyers in Brazil with international connections, ties to business, and economic resources (de Almeida and Nassar 2018). This elite has been able to transfer their social, economic, and political capital from the older style of law practice, dominated by litigating in the country’s high courts and issuing opinions on technical legal issues, to the new style of transactional and businessfocused lawyering increasingly demanded by foreign and domestic clients (ibid). India’s ‘Big Five’ corporate law firms display similar continuity (Nanda et al 2017). The founders of all five had important roots in India’s traditional legal elite, ties that continued to play an important role in each firm’s development. Deeply embedded caste and communal structures, which have played a key role in the development of the Indian business community for hundreds of years, also remained significant (Gupta et al 2017: 42). It is therefore not surprising that this social structure has been critical in shaping India’s emerging corporate legal sector during the years following the global shift. In China, party affiliation and personal connections to the state have proven central. Many of China’s corporate law firms founded in the early 1990s, including King & Wood and Dacheng, were started as government law offices by important party members before being privatised. To this day most corporate law firms have internal Communist Party committees (Liu and Wu forthcoming). Throughout the 1990s and the first decade of the twentieth century, these committees tended to be small and largely symbolic, exerting ‘limited influence on the firm’s daily operation’ (ibid: 11). Nevertheless, the very existence of an internal party structure underscores the fact that the Chinese law firms that developed in the years following the global shift differed significantly from the traditional Cravath System model, notwithstanding outward appearances (ibid; Kriegler 2015). Although significantly different from global models, the hybridised Cravath System firms in India, Brazil, and China were enormously successful in the decade following each country’s global shift, leading to a significant expansion in the number, size, and complexity of

Globalisation, Lawyers, and Emerging Economies  405 corporate law firms in all three jurisdictions (Gabbay et al 2018; Nanda et al 2017; Liu and Wu forthcoming). As was true in the Law Firm-Led period in the US, this dramatic growth exerted pressure on the client and legal education gears to respond. The client gear was the first to turn. C.  The In-House Counsel Movement By the early 2000s, key elements of the in-house counsel movement began to spread to India, Brazil, and China. The data with respect to India are particularly compelling: Our data provides strong support for the hypothesis that in-house departments in India have increased substantially in both size and importance. In particular, the growth in the budgets of Indian in-house departments from 2009–2015, the growth in outside legal expenditures over the same period, and the increase in the number of people working within in-house departments provides strong support for this hypothesis. The expectation of the GCs responding to our survey that both budgets and internal hiring will continue to grow further substantiates this initial hypothesis, as does the increasingly important role that many GCs are playing within their organization. (Wilkins and Khanna 2017: 155)

There is a similar growth in the size and sophistication of in-house legal departments in Brazil (de Oliveira and Ramos 2018). [T]he expansion and restructuring of corporate legal departments in the recent decades has fundamentally changed the relationship between companies and outside firms. Traditionally, most large Brazilian companies had long-standing relationships with their lead outside law firm, often cemented through personal relationships between founders and other senior company executives and the lawyers they hired. Today, in the words of this informant, the relationship is much more ‘arm’s length and transactional’ with increasingly sophisticated general counsels attempting to break up these long-standing relationships and induce more competition among providers (Gabbay at al 2018: 45).

The China report presents a more complicated story. Chinese private companies and FMNCs have upgraded the status and power of their internal legal departments in ways that are similar to those reported in the India and Brazil studies (Wilkins and Fong forthcoming). The situation with state-owned enterprises (SOEs), however, is more complex. Since 2010, China’s State-owned Assets Supervision and Administrative Commission (SASAC) has taken important steps to upgrade the status and functioning of SOE legal departments, including abolishing the traditional separate qualification for in-house lawyers, requiring that SOE GCs have a ‘legal professional background’, and mandating that GCs lead the legal management of the enterprise, unify and coordinate legal affairs in business management, fully participate in major business decisions, and lead the corporate legal affairs agencies to carry out related work. Nevertheless, the legal functions in these companies remain far less developed than one would find in comparable departments in India and Brazil – and certainly in similarly sized companies in the US (ibid). This gap is not simply due to the failure of SASAC’s policy directives. One of the central claims of the in-house counsel movement in the US is that GCs should be independent from both their clients and the state (Heineman 2016). As the recent SASAC directive makes clear, the Chinese government has no interest in SOE GCs playing this role. Instead, that directive states that the first requirement for all SOE GCs – listed before the requirement that they have full legal qualifications under the law – is that the applicant ‘support [] the constitution of the People’s Republic of China’ (Wilkins and Fong forthcoming). The regulation further declares that the fundamental reason for upgrading the GC function is to create ‘a system of legal counsel, public lawyers and corporate lawyers that are compatible with economic and social development and legal service needs with Chinese characteristics’ (ibid).

406  David B Wilkins, David M Trubek and Bryon Fong This uneven and complex spread of in-house counsel in China is producing a corporate legal ecosystem that, while increasingly Client-Led, nevertheless differs significantly from what we observed in India and Brazil. For example, Yingke, the fastest growing Chinese corporate law firm since 2000, has expressly declined to follow the path of China’s first wave of Cravath System firms, instead adopting a ‘space rental’ model based on professional managers and outside capital (Liu and Wu forthcoming). This model has allowed Yingke to rapidly establish offices throughout China’s second- and third-tier cities, as well as in many foreign jurisdictions (ibid). This growth has been fuelled by business from China’s provincial SOEs, which typically do not have well developed in-house legal departments and therefore view the firm’s size and global reach as a signal of its quality, even as most large Chinese private companies and FMNCs with sophisticated GCs who actually understand Yingke’s business model consider the firm to be of low quality (ibid). All three reports, therefore, establish that law firms in each jurisdiction are under increasing pressure to respond to the partial but nevertheless important shift towards a more Client-Led ecosystem. Their ability to do so, however, has depended in part on the extent to which professional regulation in each market allows for both innovation and foreign competition. D.  Regulating Change: The Burdens and Benefits of Competing in a Regulated Profession The first issue lawyers who sought to build Cravath System law firms confronted was whether this form of practice was permitted by existing regulations. The answer was uncertain, since the relevant regulations were never intended to apply to corporate law practice. In both Brazil and India, there were strict rules against commercial activity, such as advertising, branding, and even fee competition (de Almeida and Nasser 2018: at 181; R Singh 2017: 395). From the outset, Brazil’s and India’s growing corporate legal sectors challenged this regulatory framework. This pressure escalated dramatically as competition for both clients and talent increased with the transition from a Law Firm-Led to a Client-Led corporate legal ecosystem. Although law firms in both jurisdictions were able to gain regulatory concessions and institute workarounds that allowed them to grow, an important gap remains between professional norms and rules and the realities of modern corporate law practice (de Almeida and Nasser 2018; A Singh 2017). This is particularly true in India, where law firms are still prohibited from having websites, considered a form of prohibited advertising (Shroff 2013). China, however, has followed a very different regulatory path. In the years preceding the global shift, China’s regulatory structure was arguably even less hospitable to corporate legal practice than those in Brazil and India. After slowly reopening the law schools closed during the Cultural Revolution, the first Provisional Regulations on the Legal Profession issued by the Standing Committee of the National People’s Congress in 1980 defined lawyers as ‘state legal workers’, making all law firms ‘part of the state apparatus, or socialist style “work units”’ (Ohnesorge forthcoming: 15). By the end of 1980, however, the government had instituted a series of reforms that significantly altered the form – if not necessarily the substance – of this regulatory structure in a way that facilitated the growth of the corporate legal sector. In 1989, Jun He was founded as the country’s first ‘cooperative’ law firm, allowing lawyers to organise outside of formal government work units (Liu and Wu forthcoming). Following Deng Xiaoping’s 1992 southern tour, the government went even further, letting lawyers create ‘partnership firms’ (ibid). Finally, in 1996, the government passed the Lawyer’s Law, which formally abolished any reference to lawyers as ‘state legal workers’ (Ohnesorge forthcoming: 25).

Globalisation, Lawyers, and Emerging Economies  407 As the Chinese legal ecosystem grew and matured at the beginning of the new millennium, the government continued to modify the regulatory environment to facilitate the development of Chinese law firms, even orchestrating the merger of three local Shanghai firms into what is now AllBright to create a large full-service law firm in this important commercial center (Liu and Wu forthcoming). ‘The rise of such firms is completely consistent with the liberalization and integration goals that partly explain China’s approach to lawyer regulation’ (Ohnesorge forthcoming: 2). But this impulse towards creating world-class law firms that can compete in the global economy has always been balanced against the government’s need to ensure that that the legal profession does not ‘grow [] outside of its control’. One set of policy challenges has arisen because China’s regulation of the legal profession has always been related to government policy toward economic development and integration with the global economy, while the other set of policy challenges arises because regulation of the legal profession has also always been closely related to the more general political relationship between the government and civil society, in which lawyers are so often key players …. The government’s responses to these two sets of policy challenges have resulted in two imperatives for legal regulation that are in sometimes substantial tension: an ‘integration’ imperative that pushes China toward liberalization in order that the legal profession can play one of its typical roles of facilitating commerce and exchange with the outside world, and a ‘control’ imperative that reflects a desire to limit the political role of lawyers and the legal profession in the service of political control. (ibid: 2)

The Ministry of Justice’s 2011 decision to allow King & Wood to enter into a long-term relationship with the Australian firm of Mallesons Stephens & Jaques exemplifies this tension (Liu and Wu forthcoming). On one hand, the goal was to create China’s first global powerhouse able to compete for corporate business around the world. On the other, the Ministry expressly prohibited the combined firm from operating as a unified entity in China as a way of controlling the legacy Mallesons partners’ influence in the Chinese market. Although far from the complete merger that both firms tout in their promotional material, King & Wood Mallesons nevertheless represents a significant variation from the situation in India and Brazil, where combinations of this kind between domestic and foreign firms are expressly prohibited (A Singh 2017: 363). This highlights an even more fundamental distinction in the manner which India and Brazil, on one hand, and China, on the other, have regulated the entry of foreign lawyers into their domestic corporate legal ecosystems. India has been the most aggressive in embracing an ‘infant industry’ (Panagarya 2011) approach to protecting its legal profession (A Singh 2017: 364). Nationals of other countries are permitted to apply for admission to the Indian bar only if ‘duly qualified citizens of India are permitted to practise law in that country’ (ibid: 364). India’s elite law firms, operating under the banner of the Society of Indian Law Firms, have vociferously pressed the Bar Council of India and the courts to use these regulations to ban the entry of foreign lawyers (ibid: 367–68). Brazil is less restrictive but still imposes significant limitations on foreign law firms; these may open offices and serve as consultants on foreign law (de Almeida and Nassar 2018: 201) but may not advise on Brazilian law or appear in court. Moreover, while foreign firms can hire Brazilian lawyers, these lawyers are limited to dealing with issues involving foreign law. As in India, Brazilian law firms formed an advocacy organisation, the Centre for Studies on Law Firms in Brazil, which has lobbied hard to limit the penetration of foreign law firms (ibid). Nevertheless, foreign law firms continue to play an important role in the corporate legal ecosystems in both jurisdictions. Even in India major US and UK firms operate through ‘India desks’ – often staffed by lawyers recruited from top Indian law firms and law schools – located outside India and by exploiting a loophole in the regulations that allows foreign lawyers to

408  David B Wilkins, David M Trubek and Bryon Fong ‘fly-in and fly-out’ of India to conduct their business (A Singh 2017: 381–86). Brazilian law firms have been even less successful in excluding foreign law firms (de Almeida and Nassar 2018). Nevertheless, regulations in both countries continue to play an important role in allowing domestic law firms to slow the development of a full Client-Led ecosystem, especially in India. By making it difficult or impossible for companies to switch their business from domestic to foreign law firms, these regulations reduce competition and make law firm relationships stickier. This is particularly true in India, where the Big 5 firms have been largely insulated from foreign competition that might destabilise these cosy relationships (A Singh 2017: 367). As a result, although GCs in both jurisdictions are increasingly embracing the traditional mantra of the in-house counsel movement in the US that ‘we hire lawyers not firms’ (Wilkins and Khanna 2018), companies in neither jurisdiction terminate important law firm relationships as frequently as their US counterparts, particularly those in India (ibid: 150). Once again, China has pursued a radically different path. Although foreign lawyers may not practise Chinese law, they may ‘provide information on the impact of the Chinese legal environment’, a loophole that is ‘hard to distinguish from much of what constitutes the practice of law for business lawyers’ (Ohnesorge forthcoming: 23). Not surprisingly, ‘it is widely acknowledged that foreign law firms are today advising clients on Chinese law’ (A Singh 2017: 377). ‘Of course, local law firms have protested, but the benefits Chinese businesses derive from having relatively free access foreign law firms far outweighs – at least in the eyes of regulators – the costs to domestic lawyers’ (ibid). The results of China’s more open regulatory environment have been dramatic. There are more than 250 foreign law firms operating in China (Stern and Li forthcoming: 8). Although many of these offices are small and barely profitable, the competition between foreign and domestic firms has made the Chinese corporate market one of the most competitive in the world (Li 2018: 249–50). Chinese private companies and FMNCs with in-house legal departments have taken advantage of this competition to drive down costs by spreading their work among a number of domestic and foreign providers (ibid: 236–46). This, in turn, has caused many domestic Chinese firms to modify or abandon their initial reliance on Cravath System practices and embrace aggressive lateral hiring of lawyers from both foreign and domestic firms, enact formalised and increasingly bureaucratic management structures, and adopt compensation systems that can compete with the escalating sums paid to star associates and partners in global law firms (Li and Liu 2012). These changes, in turn, have increased the demand for lawyers with the knowledge and skill to provide high-level corporate legal services to increasingly sophisticated global and Chinese clients. This leads us to the last micro-gear: legal education. E.  Grinding the Gears: The War for Talent and the War to Change Legal Education At the time of each country’s global shift, the overwhelming majority of law schools were of very low quality (Gingerich and Robinson 2017; Cunha and Ghirardi 2018; Wang et al forthcoming). As a result, neither law firms nor in-house legal departments recruited from these institutions. Instead, these new corporate actors turned to a few high-quality law schools to satisfy their growing demand for well-trained corporate lawyers. Although all three countries’ educational systems are largely public, in Brazil and India new private institutions have played a critical role in this process. Brazil was the first to follow this path. In 2002, the Fundaçao Getulio Vargas (FGV), one of Brazil’s most prestigious and respected private institutions, created new law schools

Globalisation, Lawyers, and Emerging Economies  409 in São Paulo and Rio de Janeiro, to fill the ‘urgent need for new global lawyers in Brazil’ (Cunha and Ghirardi 2018: 256). The two schools instituted several policies that distinguished them from even the best public law schools: hiring a core of full-time professors, many with international training; requiring faculty to undertake substantial research and publish in international journals; creating a curriculum with a significant emphasis on corporate law (including a rigorous master’s programme) and other global topics; fostering exchanges and other links with leading law schools in the US and Europe; and requiring all students to take courses in English. Given these policies and commitments, it is not surprising that about half the graduates of FGV Direito SP work for law firms – 95 percent of which are the most prestigious in São Paulo – and another 30 per cent join in-house legal departments, especially in the banking and financial sectors (ibid). A few years after FGV’s founding, a school with a similar mission was created in India. Funded by a grant from Naveen Jindal, the scion of one of India’s most successful business groups, the OP Jindal Global Law School (JGLS) opened its doors just outside of New Delhi in 2009 (Kumar 2017). JGLS also seeks to develop a global curriculum, course structure, and programme framework. Predictably, a significant number of JGLS graduates go to work in India’s most prestigious corporate law firms and in-house legal departments (ibid: 613). Inspired in part by these examples, a small number of other private law schools in India and Brazil have created similar links to the corporate sector with an eye towards preparing their graduates for corporate law practice (Gingerich and Robinson 2017: 536; Cunha and Ghiraridi 2018: 256). Taken as a whole, however, these globally focused private schools produce no more than a few hundred (in Brazil) to a few thousand (in India) graduates each year, not all of whom go into the corporate sector (Cunha and Ghirardi 2018: 256; Gingerich and Robinson 2017: 542–43). Nevertheless, their influence has been great, helping to spur new continuing legal education courses and law firm training programmes for lawyers seeking to upgrade their skills (Cunha and Ghirardi 2018: 258–59; Gingerich and Robinson 2017: 534–37; Legally India 2019). These private sector initiatives have also put pressure on Brazil’s and India’s established public law schools to upgrade the character and quality of their legal education (Gingerich and Robinson 2017: 530–31; Cunha and Ghirardi 2018: 256). These innovations, however, have typically been confined to a small number of elite public law schools. As a result, they have done little to relieve the pressure on the legal education gear to supply India’s and Brazil’s corporate legal sectors with well-trained lawyers. Given these domestic limitations, it is not surprising that a growing number of Brazilian and Indian law firms are recruiting lawyers with foreign legal training (Gabbay et al 2018: 53; Gingerich and Robinson 2017: 541). But obtaining an LLM degree or other relevant educational or practice experience in the US, UK, or Europe is both expensive and difficult. While the number of students doing so is growing, this option will never provide a sufficient supply of globally qualified lawyers. Once again, the situation in China is significantly different. The changes in the Chinese corporate legal market have greatly accelerated the need for lawyers educated to a global standard. But unlike the situation in Brazil and India, ‘[t]he prestige and wealth of corporate law’ have prompted Chinese law schools ‘to develop courses, curricula, and internship opportunities tailored to the careers of international business lawyers’ (Wang et al forthcoming). Moreover, China’s public universities have been the most aggressive in producing globally trained corporate lawyers. The School of Transnational Law (STL) is a case in point (ibid). Founded in 2008 as a division of Peking University, China’s oldest and most prestigious institution of higher learning, STL offers a US-style JD (in English) as well as a Chinese-style Juris Master (in Mandarin). Not surprisingly, over 40 per cent of STL graduates went to work in law firms between 2012

410  David B Wilkins, David M Trubek and Bryon Fong and 2017. Although no other institution has gone as far as STL to prepare students for global legal practice, most leading Chinese law schools have made important efforts to expand and globalise their curricula as part of a broader initiative by the Chinese government to create world-class universities. Top Chinese universities are expected to obtain international recognition and eventually become prominent members of the global community of higher education. Consequently, the ability to produce internationally recognized research and recruit top legal talents who can participate in global legal discourses becomes a key indicator in the evaluation of elite law schools. The successfully internationalized law schools are more likely to gain advantages in the competition for government funding and other institutional supports. (ibid 12)

As a result, the legal education gear has turned faster in China than in Brazil or India. F.  Chinese Exceptionalism The three national reports, therefore, provide clear evidence that a new and distinct corporate sector of legal practice has emerged in India, Brazil, and China, and that US models of corporate legal practice have been influential in shaping the resulting hybridised corporate legal ecosystem in each country. These reports also highlight significant differences among the three countries, especially between China and the other two rising powers. Specifically, China: 1. has produced significantly larger corporate law firms, more differentiated from the Cravath System; 2. has far fewer regulatory restrictions on domestic firms; 3. is more open to allowing foreign firms to enter the Chinese legal market and Chinese lawyers to work for foreign law firms and ‘opine on the Chinese legal environment’, while not formally practising Chinese law; 4. is actively promoting the upgrading of in-house counsel in SOEs; and 5. has done significantly more to internationalise domestic legal education, while taking steps to make it easier for Chinese students to study abroad. These differences do not imply that there has been greater diffusion of global models from the US or UK in China or that its corporate legal sector is more advanced than those in India or Brazil. Although Chinese law firms are clearly more global than their counterparts in India and Brazil, whose most important law firms have little or no presence outside of their home jurisdictions (Nanda et al 2017: 55; Gabbay et al 2018: 48), it is not clear that China’s biggest law firms are more globalised than those in India and Brazil with respect to their internal practices. On the contrary, China’s largest and fastest growing firms, Dacheng and Yingke, do not share basic Cravath System practices still considered the global standard in law firm organisation (Liu and Wu forthcoming). Even King & Wood, which was expressly created to mimic Cravath System practices, has never fully embraced these standards, now operating after its merger with Mallesons as a Swiss verein, a structure that allows separate national partnerships to create a co-branding platform, rather than as a fully integrated firm (ibid). Indeed, Pinheiro Neto and other elite Brazilian law firms, although the smallest and least global in reach, appear to be the most globalised in terms of their transition from a family and founder-based ownership structure to professionalised modes of management and control (Gabbay et al 2018: 60–61). Similarly, Brazil’s in-house legal sector is closer to the US model than its counterparts in China and India (Wilkins and Khanna 2017: 110).

Globalisation, Lawyers, and Emerging Economies  411 These last observations, however, only reinforce the conclusion that China is developing a corporate legal ecosystem that differs significantly from those in the US and in other emerging economies. The size of China’s economy has contributed to some of these differences, particularly with respect to the size and global reach of its law firms (Liu and Wu forthcoming). It does not, however, explain other differences, such as why China has not used its economic power to exclude foreign law firms, or why India and Brazil have not devoted more resources to upgrading legal education. To understand these differences, it is important to look beyond the size of the market and examine the macro-level relationship between these market forces and the state and the bar. IV.  CORPORATE LAWYERS IN THE FIELD OF STATE POWER

The legal profession occupies a critical position between the market and the state (Rueschemeyer 1973; Abel and Lewis 1989; Halliday and Karpik 1997; Dezalay and Garth 2002; 2010). In addition to being shaped by markets and state power, however, scholars have also documented many instances in which lawyers, through formal bar organisations or informally as an interest group, have played an active role in shaping these other two domains (Dezalay and Garth 1998). In this Section we offer some tentative observations about how these macro-level gears – state, market, and profession – have helped to shape the micro-level development of law firms, clients, and legal education in each of our three countries (see Figure 7). Figure 7  Interaction between the macro and micro gears

412  David B Wilkins, David M Trubek and Bryon Fong We start with the US, since the interaction between the macro- and micro-level gears in the oldest and most developed corporate legal market provides important lessons for similar developments in India, Brazil, and China. A.  The United States: Markets Rule It is accepted orthodoxy that a key hallmark of the US legal profession is that it is ‘independent’ from both the state and the market (Wilkins 1992: 853–68). The reality of the American corporate legal ecosystem, however, has always been more complex. Although the organised bar typically proposes the rules of professional conduct, these rules only become law when they are expressly endorsed by state actors such as courts, legislatures, and administrative agencies (Koniak 1992). As a practical matter, however, state actors have largely deferred to bar authorities and only play a limited role in professional regulation (ibid). But this deference does not mean that the bar gear is dominant. Thus, Cravath System law firms were able to prosper and grow during the early years of the twentieth century by responding to the strong market demand by corporate clients for their services notwithstanding the fact that many bar leaders considered these new organisations ‘law factories’ whose commercial practices were ‘undermining the soul of the profession’ (Sander and Williams 1992: 391). These market pressures have only increased as the US corporate legal market transitioned from a Law Firm-Led to a Client-Led ecosystem. Indeed, it is precisely because the market gear has always been dominant at the macro-level in the US that in-house lawyers, whom the profession had shunned as second-class citizens, were able to leverage the market power of their corporate clients to establish themselves as the new dominant actors in the micro-level corporate ecosystem (Wilkins 2012: 260–61). The fact that law firms have responded to the growing market power of GCs by embracing a wide range of market norms in their quest for both clients and talent provides potent proof of the increasing dominance of the market gear in driving the micro-level dynamics of the US corporate legal ecosystem (Gilson 1990: 899–903). Figure 8 provides a simplified graphic depiction of this reality with a larger market gear at the macro-level that is, in turn, producing an enlarged client gear which now drives the micro-level ecosystem, controlling law firms and legal education. Figure 8  US market-driven macro ecosystem (circa 2020)

Globalisation, Lawyers, and Emerging Economies  413 B.  Brazil and India: The Power of the Bar The macro-level gearing in India, Brazil, and China differs significantly from this US market driven model. All three emerging powers have embraced a development model in which the state plays an active role in the economy, which as development studies illustrate is how emerging economies typically seek to ‘catch-up’ (Trubek et al 2013). Although the state gear, therefore, is likely to be more important in these emerging economies than it has been in the US, the extent to which the state has been willing or able to exercise control over the microlevel corporate ecosystem has depended in part on the ability of the bar in each jurisdiction to influence state power. In India and Brazil, the bar is independent of the state and exercises substantial influence on state policy. As a result, the state’s primary role has been to enforce policies promoted by the bar. That has meant protecting domestic law firms from foreign competition and preserving traditional understandings of lawyer professionalism. This emphasis was especially strong during the Law Firm-Led period, when India and Brazil vigorously enforced regulations protecting the fledgling Cravath System law firms emerging in both countries by banning (in India) or severely restricting (in Brazil) the ability of foreign law firms to compete freely with domestic firms. Advocacy groups representing these new domestic corporate law firms played a key role in maintaining these restrictions. At the same time, however, bar organisations in both jurisdictions lobbied for the strict enforcement of rules prohibiting commercial practices that would have facilitated the growth of domestic corporate law firms. Once again, corporate law firm advocacy organisations pushed to loosen these restrictions, but in this arena they have had only limited success. The corporate bar constitutes a small percentage of the legal profession in India and Brazil and therefore has had a hard time taking on traditional bar organisations, the vast majority of whose members see the corporate bar’s commercial practices as a threat to lawyer professionalism (A Singh 2017: 369–70; de Almeida and Nassar 2018: 183–84). As a result, the organised bar in both countries, and the state regulatory agencies that have traditionally deferred to bar leaders in regulating legal practice, have continued to embrace – and at least selectively enforce – rules inhibiting the growth of corporate law firms. Recent events in India underscore the continuing power of the bar at the macro-level to shape the micro-level development of the corporate legal ecosystem. Since 2014, high-level officials in the government of Prime Minister Narendra Modi have consistently favoured removing restrictions on foreign lawyers (Nanda et al 2017: 104). Yet acting on a challenge brought by Indian lawyers and endorsed by the Bar Council of India, the Supreme Court of India reaffirmed these traditional restrictions, limiting foreign entry to lawyers who ‘fly-in and fly-out’ to visit clients and close deals (Zhang 2018). Despite the important role of the state in India and Brazil, it is the bar that has played the pivotal role in shaping the current corporate legal market. Although both countries have partially transitioned from a Law Firm-Led to a Client Led micro-level ecosystem, the dominance of the bar gear has made that transition far less complete than the one produced by the market-driven macro gearing model in the US. Figure 9 depicts this complex interaction by showing a larger and dominant bar gear at the macro-level, producing a modified Client-Led model at the micro-level in which a dominant client gear (smaller than in the US model) is closer to the law firm and legal education gears, which still exert significant control over the structure and functioning of the corporate legal ecosystem.

414  David B Wilkins, David M Trubek and Bryon Fong Figure 9  India’s and Brazil’s bar-driven model (circa 2020)

C.  China: State Power The situation in China, however, is radically different. The state is firmly in control of both the market and the profession – ‘China Inc’, as Mark Wu (2016) has aptly dubbed its approach to the economy and governance. With respect to the corporate legal market, the importance of the state gear has been evident from the outset. It was the state, not the private sector, that created the regulatory conditions and political space for the creation of Cravath System law firms. Since then, the government has consistently eased restrictions on law firm growth and facilitated knowledge transfer by allowing foreign firms to enter the market and permitting Chinese lawyers to work for them. Similarly, the state promoted the upgrading of the legal function in China’s large SOEs, while making clear that the primary allegiance of these newly empowered GCs is to the state and not the market. And the state acted to upgrade the quality and international focus of Chinese law schools. Most recently, China has taken steps to facilitate the expansion of Chinese law firms abroad. Since joining the WTO, China has aggressively encouraged Chinese companies to expand internationally, with the goal of creating ‘national champions’ that compete on a global level (Wu 2016: 271). By authorising the verein affiliation between King & Woods Mallesons and the UK law firm SJ Berwin, the government made clear that this policy would also be applied to law firms, facilitating the combined firm’s growth by directing SOEs investing abroad to give their business to the firm (Liu and Wu forthcoming). In pursuing these initiatives, Chinese state officials have not had to contend with resistance from the organised bar which has stymied similar changes in India and Brazil. The All China Lawyers Association, China’s centralised bar organisation, is part of the Ministry of Justice (Ohnesorge forthcoming). The fact that King & Wood’s founder and chairman, Wang Junfeng, is chair of this organisation underscores the relationship between the state and the legal profession (Financial Times 2016). And though the in-house counsel movement is less developed in China, this is largely the result of state power over the development of this function in SOEs, which continue to play a dominant role in the Chinese economy. At the same time,

Globalisation, Lawyers, and Emerging Economies  415 it is precisely because the state continues to exercise near plenary power over SOEs that the client gear is becoming increasingly powerful in China even in the absence of the sophisticated in-house legal capacity by which clients have asserted their control over the micro dynamics of the corporate legal ecosystem in the US. In the absence of strong resistance from the bar gear, the Chinese state does not need internal lawyers in its SOEs to exercise considerable control over law firms and legal education. All three elements of China’s emerging micro-level corporate legal ecosystem are ultimately mediated by and subservient to state power. Figure 10 depicts the relationship between a large and dominant state gear at the macro-level producing a state-mediated model at the microlevel in which clients, law firms, and legal education work in close harmony to advance state interests. Figure 10  China’s state-driven model (circa 2020)

V.  CONCLUSION: WILL CHINESE EXCEPTIONALISM BECOME THE NORM?

In many ways, the Chinese approach to macro-level gearing appears to be working to produce a globally competitive corporate legal ecosystem. Although still less globalised in their internal structure and operation than their Brazilian counterparts, Chinese law firms have become much more sophisticated at doing high-level corporate legal work (Mulrenan 2018). The ability of Chinese firms to freely hire Chinese (and even some non-Chinese) lawyers who have been trained in global firms has undoubtedly facilitated this development. So too has the Chinese government’s policy of favouring its own national champion law firms over foreign competitors for SOE legal work and in administrative actions before government officials. As a result, many foreign firms have found it increasingly unprofitable to operate in China, leading some like New York’s Fried Frank to leave the market (Stern and Li forthcoming; Rosen 2015). When King & Wood Mallesons essentially acquired SJ Berwin, with rumours it would soon acquire a major US firm as well, it appeared to vindicate China’s strategy of using the state gear at the

416  David B Wilkins, David M Trubek and Bryon Fong macro-level to produce a micro-level corporate ecosystem capable of developing law firms that could win on the global stage (Sullivan 2013). But the collapse of the King & Wood Mallesons SJ Berwin verein also underscores the inherent dangers of China’s state led strategy. In 2016, three years after the merger was announced, King & Wood was forced to disband its European operations and unwind the SJ Berwin deal (Thompson 2017). Although there were many factors that precipitated this dissolution, several sources have reported that a primary cause was the fact that many of SJ Berwin’s European partners – and their clients – felt uncomfortable being a part of a firm where lawyers with close ties to the Chinese government were calling the shots (Orton-Jones 2017). Additionally, the European partners and clients had concerns about confidentiality, trade secrets, and mandates to provide services to Chinese SOEs at deep discounts (ibid). Such reservations are likely to intensify as the government continues to take steps at the macro-level that make clear that all three parts of the micro-level corporate legal ecosystem are subservient to the state. In recent years, the Chinese government has stepped up control over the legal profession by more vigorously enforcing the requirement of functioning Party Committees in all Chinese law firms, increasing the number of ideological questions on the bar exam, and honouring lawyers who actively promote the interest of the state (Stern and Liu 2020; Stern 2016b). Moreover, the government is cracking down on human rights and criminal defence lawyers, including corporate lawyers who seek to defend the rights of human rights lawyers in court (Stern 2016a). These actions are likely to increase pressure from international bar organisations, human rights activists, and academic critics to make both foreign and domestic corporate lawyers operating in China more accountable to international professional norms (Cohen 2011). It remains to be seen whether these pressures, or the failure of China’s top law firms to succeed outside China, will persuade the state to relinquish its near total control over the country’s evolving corporate legal ecosystem. It is now clear, however, that China is not the only country turning to the state gear to drive change in the corporate legal services market. The government of Singapore, for example, recently announced its intent to make that city the primary hub for legal innovation around the world (Cohen 2018). To accomplish this goal, the government is investing tens of millions of dollars to create world class ‘innovation hubs’ for legal startups and partnering with leading global law firms such as Clifford Chance and Allen & Overy to create new technologies that will both facilitate and disrupt corporate legal practice (ibid). Indeed, even in the UK, whose law firms helped to spread the Cravath System around the world, the state has played a key role in driving important changes in the legal profession, including in the corporate legal ecosystem. In a set of reforms culminating in the passage of the Legal Services Act in 2007, the UK government took formal regulatory authority away from barristers’ and solicitors’ organisations, eliminated traditional restrictions against multidisciplinary partnerships between lawyers and other professionals, and expressly authorised new ‘alternative business structures’ that allow organisations partly or completely owned or controlled by non-lawyers to offer legal services – measures that, not surprisingly, were vigorously opposed by the organised bar as threats to professional independence (Flood 2012; TheCityUK 2017). These new regulatory measures were largely intended to improve the quality and reduce the cost of legal services to individuals and small businesses – and to reduce the government’s expenditure on state-run programmes that subsidise these costs (see Sommerlad et al Vol 1, ch 4). But their effects are proving to be much more widespread. Although few lawyers from the corporate legal sector have been subject to discipline by the government’s new regulatory authority, its rules regarding alternative business structures are beginning to have an important impact on the country’s corporate legal ecosystem. Thus, all four of

Globalisation, Lawyers, and Emerging Economies  417 the large accountancy networks have successfully petitioned to operate as full multidisciplinary partnerships – a move that the bar in the US and UK successfully opposed two decades before – and there are now several new ‘alternative’ legal service providers, many fuelled by outside capital, that directly compete with traditional law firms and in-house legal departments (Wilkins and Esteban 2018; 2019). It is too early to tell whether these developments signal a general movement towards increasing the state’s role in shaping the micro-level dynamics of corporate legal ecosystems, or what effects such a shift might have on the overall macro-level balance of power between the state, the market, and the bar. But as our national studies of India, Brazil, and China make clear, socio-legal scholars interested in understanding how globalisation is reshaping the market for legal services in both emerging and established jurisdictions would do well to pay close attention to the evolving interaction between these macro- and micro-level forces. REFERENCES Abel, RL and Lewis, PSC (eds) (1989) Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Cerra, V and Saxena, SC (2002) ‘What Caused the 1991 Currency Crisis in India?’ 49 IMF Staff Papers 395. Cohen, J (2011) ‘Turning a Deaf Ear’ South China Morning Post 7 June. Cohen, MA (2018) ‘What Happens When a Nation State Endorses Legal Innovation’ Forbes 15 October. Cunha, LG and Ghirardi, JG (2018) ‘Legal Education in Brazil: The Challenges and Opportunities of a Changing Context’ in LG Cunha, D Monteiro-Gabbay, JG Ghirardi, DM Trubek and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 8. Cunha, LG, Monteiro-Gabbay, D, Ghirardi, JG, Trubek, DM and Wilkins, DB (eds) (2018a) The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press). —— (2018b) ‘Globalization, Lawyers, and Emerging Economies: The Case of Brazil’ in LG Cunha, D Monteiro-Gabbay, JG Ghirardi, DM Trubek and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 1. Daly, M (1997) ‘The Cultural, Ethical, and Legal Challenges in Lawyering for a Global Organization: The Role of the General Counsel’ 56 Emory Law Journal 157. de Almeida, F and Nassar, PA (2018) ‘The Ordem dos Advogados do Brasil and the Politics of Professional Regulation in Brasil’ in LG Cunha, D Monteiro-Gabbay, JG Ghirardi, DM Trubek and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 6. de Oliveira, FL and Ramos, L (2018) ‘In House Counsels in Brazil: Careers, Professional Profiles, and New Roles’ in LG Cunha, D Monteiro-Gabbay, JG Ghirardi, DM Trubek and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 3. Dezalay, Y and Garth, B (1998) Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago, University of Chicago Press). —— (2002) The Internationalization of Palace Wars: Lawyers, Economists and the Transformation of Latin-American States (Chicago, University of Chicago Press). —— (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). Faulconbridge, JR, Beaverstock, JV, Muzio, D and Taylor, PJ (2008) ‘Global Law Firms: Globalization and Organizational Spaces of Cross-Border Work’ 28 Northwestern Journal of International Law and Business 455.

418  David B Wilkins, David M Trubek and Bryon Fong Financial Times (2016) ‘Winners of the Asia-Pacific Innovative Lawyers Outstanding Individuals Awards 2016’ Financial Times 2 June. Flood, J (1996) ‘Megalawyering in the Global Order: The Cultural, Social, and Economic Transformation of Global Legal Practice’ 3 International Journal of the Legal Profession 169. —— (2007) ‘Lawyers as Sanctifiers: The Role of Elite Law Firms in International Business Transactions’ 14 Indiana Journal of Global Legal Studies 35. —— (2012) ‘Will There Be Fallout from Clementi?’ 2012 Michigan State Law Review 537. Gabbay, D, Ramos, L and Pinto Sica, L (2018) ‘Corporate Law Firms: The Brazilian Case’ in LG Cunha, D Monteiro-Gabbay, JG Ghirardi, DM Trubek and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 2. Galanter, M and Palay, T (1991) Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago, University of Chicago Press). Galanter, M and Roberts, S (2008) ‘From Kinship to Magic Circle: The London Commercial Law Firm in the Twentieth Century’ 15 International Journal of the Legal Profession 143. Gilson, R (1990) ‘The Devolution of the Legal Profession: A Demand Side Perspective’ 49 Maryland Law Review 869. Gingerich, J and Robinson, N (2017) ‘Responding to the Market: The Impact of the Rise of Corporate Law Firms on Elite Legal Education in India’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 16. Gordon, RW (1984) ‘The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870–1910’ in GW Gawalt (ed), The New High Priests: Lawyers In Post-Civil War America (Westport, Greenwood Press) ch 3. Gupta, A, Khanna, VS and Wilkins, DB (2017) ‘Overview of Legal Practice in India and the Indian Legal Profession’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 2. Halliday, TC and Karpik, L (eds) (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford, Clarendon Press). Heineman, Jr, BW (2016) The Inside Counsel Revolution: Resolving the Partner Guardian Dilemma (Chicago, Ankerwycke). Heinz, JP and Laumann, EO (1982) Chicago Lawyers: The Social Structure of the Bar (New York, Russell Sage Foundation and Chicago, American Bar Foundation). Heinz, JP, Nelson, R, Sandeufur, R and Laumann, E (1995) Urban Lawyers: The New Social Structure of the Bar (Chicago, University of Chicago Press). Henderson, WD (2014) ‘From Big Law to Lean Law’ 38 International Review of Law and Economics 5. Jones, L (2012) ‘What’s in a Name? For Chinese Firms Bright is Often Right’ Reuters 8 February. Koniak, SP (1992) ‘The Law Between the Bar and the State’ 70 North Carolina Law Review 1389. Kriegler, Y (2015) ‘Partner Rewards in the New China’ The Law 2 November. Kumar, CR (2017) ‘Experiments in Legal Education in India: Jindal Global Law School and Private Nonprofit Legal Education’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 19. Legally India (2019) ‘Cyril Shroff Explains Ideas, Details Behind CAM’s New 2-3 Day Learning Programs for Fee Earners’ Clients’ Legally India 8 April. Li, J (2018) ‘The Legal Profession in China in a Globalized World: Innovations and New Challenges’ 26 International Journal of the Legal Profession 217. Li, X and Liu, S (2012) ‘The Learning Process of Globalization: How Chinese Law Firms Survived the Financial Crisis’ 80 Fordham Law Review 2847. Liu, S (2011) ‘Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market’ 206 The China Quarterly 276.

Globalisation, Lawyers, and Emerging Economies  419 Liu, S, Trubek, D and Wilkins, DB (2016) ‘Mapping the Ecology of China’s Corporate Legal Sector: Globalization and its Impact on Lawyers and Society’ 3 Asian Journal of Law and Society 273. Liu, S and Wilkins, DB (eds) (forthcoming) The Chinese Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Liu, S and Wu, H (forthcoming) ‘The Ecology of Organizational Growth: Chinese Law Firms in the Age of Globalization’ in S Liu and DB Wilkins (eds), The Chinese Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Mulrenan, S (2018) ‘The Rise and Rise of China’s Legal Profession’ International Bar Association 11 April. Nanda, A, Wilkins, DB and Fong, B (2017) ‘Mapping India’s Corporate Law Firm Sector’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 3. Nayar, BR (1998) ‘Political Structure and India’s Economic Reforms of the 1990s’ 71 Pacific Affairs 335. Ohnesorge, JKM (forthcoming) ‘Regulation of the Legal Profession in China: A Historical Overview’ in S Liu and DB Wilkins (eds), The Chinese Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Orton-Jones, C (2017) ‘Post Mortem: Why KWM Collapsed’ Raconteur 23 March. Panagarya, A (2011) ‘A Re-examination of the Infant Industry Argument for Protection’ 5 Margin: The Journal of Applied Economic Research 7. Papa, M and Wilkins, DB (2011) ‘Globalization, Lawyers, and India: Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession’ 18 International Journal of the Legal Profession 175. Plarre, C (2007) ‘BRICSA: The Evolution of Five Legal Markets in Emerging World Economies’ CrossBorder Quarterly 23 Jan–Mar. Quack, S (2012) ‘Recombining National Variety: Internationalisation Strategies of American and European Law Firms’ 5 Journal of Strategy and Management 154. Rosen, E (2015) ‘Fried Frank is Closing Offices in China: Business of Law’ Bloomberg 21 January. Rueschemeyer, D (1973) Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and in the United States (Cambridge, Harvard University Press). Sander, RH and Williams, ED (1992) ‘A Little Theorizing about the Big Law Firm: Galanter, Palay, and the Economics of Growth’ 17 Law & Social Inquiry 391. Shroff, C (2013) ‘Deregulating India’s Legal Market’ Business Standard 5 February. Singh, A (2017) ‘Globalization and the Legal Profession and Regulation of Law Practice in India: The “Foreign Entry” Debate’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 11. Singh, R (2017) ‘Festina Lente or Disguised Protectionism: Monopoly and Competition in the Indian Legal Profession’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 12. Smigel, EO (1964) The Wall Street Lawyer: Professional Organization Man? (Bloomington, Indiana University Press). Stern, RE (2016a) ‘Activist Lawyers in Post Tiananmen China’ 42 Law & Social Inquiry 234. —— (2016b) ‘Political Reliability and the Chinese Bar Exam’ 42 Law & Social Inquiry 506. Stern, RE and Li, S (forthcoming) ‘The Outpost Office: the International Law Firm’s Approach to the Chinese Legal Market’ in S Liu and DB Wilkins (eds), The Chinese Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Stern, RE and Liu, LJ (2020) ‘The Good Lawyer: State-Led Professional Socialization in Contemporary China’ 45 Law & Social Inquiry 226.

420  David B Wilkins, David M Trubek and Bryon Fong Stiglitz, J (2003) Globalization and Its Discontents (New York, WW Norton & Company). Sullivan, C (2013) ‘Asia’s King and Wood Law Firm, London’s Berwin to Merge’ Reuters 31 July. TheCityUK (2017) Legal Excellence, Internationally Renowned: UK Legal Services 2017 (London, TheCityUK). Thompson, B (2017) ‘KWM Europe and How Not to Run a Law Firm’ Financial Times 4 September. Trubek, DM, Dezalay, Y, Buchanan, R and Davis, JR (1994) ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arena’ 44 Case Western Reserve Law Review 407. Trubek, DM, Coutinho, D, Santos, A and Garcia, HA (eds) (2013) Law and the New Developmental State: the Brazilian Experience in Latin American Context (New York, Cambridge University Press). United Nations Development Programme (2013) Human Development Report 2013 (New York, United Nations Development Programme). Wang, Z, Liu, S and Li, X (forthcoming) ‘Internationalizing Chinese Legal Education in the Early Twenty-First Century’ in S Liu and DB Wilkins (eds), The Chinese Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Wilkins, DB (1992) ‘Who Should Regulate Lawyers?’ 105 Harvard Law Review 801. —— (2012) ‘Is the In-House Counsel Movement Going Global? A Preliminary Assessment of the Role of Internal Counsel in Emerging Economies’ 2012 Wisconsin Law Review 251. Wilkins, DB & Esteban, MJ (2018) ‘The Integration of Law into Global Business Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global Legal Services Market’ 43 Law & Society Inquiry 981. —— (2019), ‘Talking the “Alternative” out of Alternative Legal Service Providers: Remapping the Corporate Legal Ecosystem in the Age of Integrated Solutions, in New Suits: Appetite for Disruption in the Legal World’ in M DeStefano, M and G Dobrauz-Saldapenna (eds), New Suits: Appetite for Disruption in the Legal World (Bern, Stämpfli Verlag) ch 1. Wilkins, DB and Fong, B (forthcoming) ‘Globalization and the Rise of the In-House Counsel Movement in China’ in S Liu and DB Wilkins (eds), The Chinese Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Wilkins, DB and Gulati, M (1998) ‘Reconceiving the Tournament of Lawyers: Tracking, Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms’ 84 Virginia Law Review 1581. Wilkins, DB and Khanna, VS (2017) ‘Globalization and the Rise of the In-House Counsel Movement in India’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 4. —— (2018) ‘South by Southeast: Comparing the Development of In-House Legal Departments in Brazil and India’ in LG Cunha, D Monteiro-Gabbay, JG Ghirardi, DM Trubek and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 4. Wilkins, DB, Khanna, VS and Trubek, DM (eds) (2017a) The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press). —— (2017b) ‘An Introduction to Globalization, Lawyers, and Emerging Economies: The Case of India’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 1. Wu, M (2016) ‘The “China Inc” Challenge to Global Trade Governance’ 57 Harvard International Law Journal 261. Zhang, A (2018) ‘India Rules Against Foreign Firm Bases and “Casual” Criteria for Fly-In, Fly-Out Advice’ Law.Com 16 March.

18 Lawyers and the European Union The Rise of a Regulatory Bar in Brussels (1989–2019) LOLA AVRIL

O

ne issue is strikingly missing from the three volumes of Lawyers in Society (Abel and Lewis 1988/89): European integration and its impact on legal professions. One reason for the lack of a European perspective in those volumes may be that the Europeanisation of the legal profession was still in its early stages. In 1989, there was no institutionalised European Bar (Olgiati 2008), ie a supranational professional regulatory body providing common training and deontology, and there still is none. The Council of Bars and Law Societies of Europe (CCBE), consisting of representatives from Member States’ bars, remains an intergovernmental body and has experienced multiple crises since its founding in 1960, whether in relation to its mandate of representation or its missions. Lawyers benefited from a directive on the freedom to provide services, adopted in 19771 after heated debates that began in 1962, but it had only minimal impact. In 1998, the Establishment Directive finally gave lawyers freedom of establishment in EU Member States.2 This permits lawyers from one Member State to practise in another under their home title, without integrating themselves into the local profession. After practising for three years, these lawyers can also ask to practise under the title of the country to which they have moved (Article 10).3 But the number of lawyers from EU countries seeking admission in another Member State profession is minuscule. A 2018 CCBE report4 found only 223 lawyers practising in another Member State under Article 10. In Germany, lawyers from other Member States practising under the title of Rechtsanwalt represented only 0.4 per cent of the German legal profession in 2018. The test which may be required for this constitutes a real obstacle: in Germany, more than half of the applicants failed between 1991 and 2016. Moreover, most mobility occurred across borders (eg between Benelux countries) without the lawyers 1 Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services [1977] OJ L78/17. 2 Directive 98/5/EC of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained [1998] OJ L77/36. 3 An aptitude test is no longer universally required, though it may be in individual cases. The aptitude test can also be omitted if the European lawyer has compensated for training deficits through professional practice or further ­training measures. 4 See www.ccbe.eu/fileadmin/speciality_distribution/public/documents/Statistics/EN_STAT_-2018_Number-oflawyers-in-European-countries.pdf.

422  Lola Avril establishing themselves in another Member State: ‘Fly in and fly out’ counsel still prevails to a large extent. Although Europeanisation of the professional structures and frameworks for legal practice is a mixed success, the fact remains that a group of lawyers has specialised in European law. Since the beginning of the 1980s, law firms have created departments to advise clients about EU law and policies. Many have opened an office in Brussels, a few steps from the European Parliament and the European Commission. At the beginning of 1988, there were only five UK and six US law firm offices in Brussels. A dramatic expansion occurred in the following years. In 1989–90, an average of one new foreign law firm opened there each month; between 1989 and 1993, more than a hundred foreign law firms set up offices in what was then known as the ‘European capital’. By the end of the 1990s, most of the law offices that British law firms opened across the Channel were in Brussels (Beaverstock et al 1999; Abel 1994). It is too soon to fully grasp the long-term effect of Brexit, but since the end of the transition period on 31 December 2020, three US or UK law firms (Simpson Thatcher, Spencer West and Reed Smith) have opened an office in Brussels to secure a position on the continent. British lawyers tried to keep their EU rights by joining the Irish Law Society or acquiring Belgian nationality. The daily practice of these Brussels lawyers seems very different from the traditional ideals described in Lawyers in Society. They are far more likely to wear suits rather than advocates’ gowns and to act as intermediaries between the European politico-administrative field and companies. A total of 93 law firms are listed in the Transparency Register5 as representing interests and lobbying European institutions. Lawyers belong to expert groups created by the European Commission (Wigger 2015) and answer public consultations on behalf of their clients. Law firms produce reports to help the Commission draft legislation.6 Last but not least, lawyers play a central role in negotiating high-profile competition cases in Brussels. Because of this multitasking role, extending far beyond representation in court, the legal scene in Brussels is often compared to that in Washington, DC (Flood 1999). This chapter aims to understand how these lawyers became such essential intermediaries between companies and the EU administration, a process that has gone hand-in-hand with the evolution of the EU political system, seen as a regulatory state (Majone 1996). The lawyer who emerges in these extra-judicial activities resembles the one presented in Schmidt’s work (2005) on the US administrative state, which describes the fraction of the Bar specialising in regulation (both policy-making and enforcement) and the consolidation of the regulatory state that accompanies the emergence of this new professional figure. That is why this chapter will focus on EU competition policies. Competition is the domain in which the EU established its capacity to regulate the Single Market. Jordana and Levi-Faur (2004) link the genesis of the regulatory state to the development of such policies. Based on articles from professional journals, interviews and 455 lawyer profiles, this chapter shows that a distinctively European legal practice developed in the 1990s. This construction of a professional group (not a profession per se) appears to have been driven more by commercial and business concerns than the interests of the national bars.



5 See 6 eg

ec.europa.eu/transparencyregister/public/homePage.do. Comparative and Economics Reports by Ashurst for the European Commission’s DG Competition (2004).

Lawyers and the European Union  423 The biographical database was created in 2013 and updated in 2016. It contains the academic and professional careers of 455 lawyers specialising in competition law in Brussels. This is a significant portion of the total population.7 The lawyers are from 18 of the biggest law firms and represent the most ‘Europeanised’ part of the legal profession. These firms were selected using the ranking provided by the Legal 500 website,8 which lists the ‘best performing’ firms (according to such criteria as the prestige of the firms’ clients, the number of cases handled, profiles of associates and partners, market share and reputation of the firm); this introduces a significant bias, since smaller firms tend to be under-represented. For each firm selected, all lawyers (partners and associates) specialising in competition law and based in Brussels were included in the database.9 All the firms are of American or British origin. However, this does not mean there are no firms from other Member States in Brussels. Examples include Gide Loyrette & Nouel (French) and Garrigues (Spanish). However, these firms have smaller offices handling cases concluded in the Member States rather than in Brussels. Their branches are sometimes front-offices (for clients from the firm’s home Member State) or transit offices (for lawyers based in the firm’s Member State but visiting Brussels to negotiate a case). The database was drawn from the law firms’ public websites (which provided extensive biographies of their lawyers) and LinkedIn profiles. Hence, it was possible to identify the academic backgrounds and previous positions of the lawyers. These data were supplemented by interviews in Brussels with lawyers and officials. This chapter explores the genesis and consolidation of this group of regulatory lawyers. Part I examines how regulatory lawyers first appeared in Brussels in the context of the expansion of European competition policies, progressively extending the scope of their work to new activities and policy areas and becoming essential intermediaries between companies and the politico-administrative field. In Part II, I look closely at the profiles of the members of the regulatory Bar, which emerged from this process. Regulatory lawyers are boundary entrepreneurs (Bergeron et al 2013) at the crossroads of the international and European legal fields and the public and private sectors. I.  INVENTING A NEW ROLE FOR THE LEGAL PROFESSION: EUROPEAN REGULATORY LAWYERS’ ACTIVITIES IN BRUSSELS

During the 1980s, the political and ideological context favoured the development of competition policies. Because of the consensus on European integration through the creation of a Common Market, the neoliberal ethos in the EU administration (Cini and McGowan 1998), and the popularity of Chicago School economics, competition policies were seen as essential to economic growth. The development of competition policies attracted foreign

7 According to a study of the Brussels Bar undertaken by the University of Liège, there were 4,107 lawyers in 2010. Only 8 per cent (about 328) had multinational clients. These numbers have since increased (the Brussels Bar estimated the number of lawyers at 5,180 in 2020), but the 455 lawyers in the database still represent a large part of the total population of EU competition lawyers. See www.droit.uliege.be/upload/docs/application/pdf/2012-03/presentation_ barometre_2010_heselmans_00340001.pdf; barreaubruxelles.be/images/rapport2018/rapport20_site.pdf. 8 See www.legal500.com. 9 Complete data could not be collected for Clifford Chance, whose profile only includes partners.

424  Lola Avril law firms to Brussels and gave rise to a new kind of EU public policy intermediary: the regulatory lawyer. A. The Rise of the European Regulatory State: An Opportunity for Lawyers The 1980s were a defining moment for European competition policies. The three successive Competition Commissioners in the 1980s were particularly keen on developing and enforcing European competition policies: Frans Andriessen (1981–85) saw competition policy as a response to the recession and a way to regenerate European industry; and his ‘style was much more pro-active than that of his predecessors’ (Buch-Hansen 2009: 159). Peter Sutherland (1985–89) and Leon Brittan (1989–93), both English barristers, continued his work (Cini and McGowan 1998). The formalisation and institutionalisation of the procedure for competition cases conferred more legitimacy on the Directorate General (DG) for Competition. Competition decisions not only gave European officials the competence to settle big cases, such as the IBM case in 1984, but also motivated the European Commission (EC) to draft legislation to further the unification of market regulation policies. Officials were more confident, and the Commission was ‘no longer afraid, as it often seemed to be a few years ago, to hit big targets’.10 This favourable situation provided new opportunities for Brussels law firms. i.  A More Extensive Application of Traditional Competition Policies The development of EU competition policies primarily concerned the traditional areas, in which regulations had been adopted during the 1960s and 1970s. McGowan (2009) describes the period 1985–98 as one of ‘seizing the initiative’ in anti-cartel engagement, following 15 years of ‘forays and stalemate’. The first regulation implementing Articles 85 and 86 of the Treaty, which prohibited certain categories of agreements and concerted practices, was adopted in 1962. But after its adoption, DG Competition was flooded with notifications (36,000 at the beginning of 1963) and experienced difficulties in assessing them, with the result that the regulation was applied very unevenly in the early years, while DG Competition was discredited in national business and administrative circles (Warlouzet 2018). In the 1980s, the implementation of Regulation 17/62, 11 which prohibits a range of agreements, decisions, and concerted practices between undertakings as well as the abuse of a dominant position in the market, started to be more consistent and systematic (McGowan 2009). More fines were imposed, increasing in aggregate value from 12.7 million European Currency Units (ECUs) in 1985 to 60 million in 1986 and 80.85 million in 1988. DG Competition did not hesitate to impose heavy fines, including 48 million ECU in Soda Ash on 19 December 1990 12 and 75 million ECU in Tetra Pak on 24 July 1991. 13



10 ‘Competition

Lawyers Strike a Bonanza in Brussels’ Financial Times 9 May 1998, 4. 17/62/EEC of 6 February 1962 implementing Articles 85 and 86 of the Treaty. 12 Commission Decision Relating to a Proceeding under Article 85 of the EEC Treaty [1990] OJ L152/16. 13 Commission Decision Relating to a Proceeding Pursuant to Article 86 of the EEC Treaty [1991] OJ L072/01. 11 Regulation

Lawyers and the European Union  425 Graph 1  Regulation 17/62: number of Commission decisions 120 101 100 80 60

72 53

40 20 0 Raymond Vouel 1977-1980

Frans Andriessen 1981-1984

Peter Sutherland 1985-1989

Moreover, while Treaty provisions regarding state aid were barely implemented before the mid-1980s, DG Competition started to systematically examine the financial help given to companies by Member States (Warlouzet 2018). The number of new proceedings increased by half between the terms of Commissioners Vouel and Andriessen, and decisions for the defendants, which order reimbursement of the aid already received, increased 12-fold. The total repayments of illegal aid increased from 11 million ECU in 1986 to 747 million in 1988. Towards the end of the 1980s, under Commissioner Brittan, the fight against state aid became a priority. In its Report on Competition Policy for 1988, the Commission indicated that it intended to ‘be more systematic in following up Member States that fail to comply with the notification rules and will ensure that aid which is granted illegally and is incompatible with the common market is repaid whenever the case arises’.14 Graph 2  State aid: number of Commission decisions 60

54

50 41 40 30 20 10

6

0 Raymond Vouel 1977-1980



14 European

Frans Andriessen 1981-1984

Peter Sutherland 1985-1989

Commission (1989) 18th Report on Competition Policy (Brussels Luxembourg) 144.

426  Lola Avril ii.  The Development of New Policy Areas In addition to this activism concerning state aid and cartels, competition policy was extended to new areas: concentration and anti-dumping. The Commission started to work on monopolies and mergers in the 1960s. It published several draft regulations during the 1970s, but the Council blocked their adoption (Ramirez Perez and Van de Scheur 2013). After the Court of Justice of the European Union (CJEU) decision in Philip Morris in November 1987 (which allowed the Commission to prohibit certain mergers and acquisitions on the basis of Article 85 of the Treaty of Rome), the Commission published a new draft. The regulation, adopted in 1989, was an opportunity for law firms to sell new legal services. In March 1990, the Financial Times reported that ‘every law firm in Brussels has spent the last three months picking through the regulation in response to inquiries from clients contemplating European takeover’, while adding that ‘cynics might say that the legal profession is over-estimating the complexity of the regulation with an eye to fees’.15 In 1990, the International Financial Law Review recommended ‘that a notifying party ha[ve], at least, its legal advisers situated there in order to deal with any queries which may be raised by the European Commission’.16 At the international level, the General Agreements on Tariffs and Trade (GATT) framework offered opportunities to discuss anti-dumping policies (dealing with the massive export of cheap products to the European market). The Kennedy round was the sixth session of the GATT negotiations held between 1964 and 1967 in Geneva. It focused on trade barriers. Following the adoption of a final international agreement in Geneva, the first European regulation regarding anti-dumping was adopted in 1968.17 But during the following decade, this regulation was barely implemented (Van Bael 1990). The seventh GATT multilateral trade negotiations held in Tokyo between 1973 and 1979 focused on non-tariff barriers and led to the adoption of a new European regulation,18 amended several times (198419 and 198720) before being replaced in 198821 by a single consolidated text. Several factors contributed to the development of European legislation against dumping. In the context of the 1970s recession, European leaders saw this policy as a way to support European industries (Van Bael 1990). At DG Competition, the service responsible for the fight against dumping was staffed with more officials to ensure more stringent implementation of the regulation. There was also a trade war with Asian countries, which the antidumping policy targeted: in 1987, the Commission initiated 30 new proceedings, mostly against Japanese or Korean firms (Buhart 1988). For law firms, these developments meant new business and clients, who took a sudden interest in European law. Companies from non-EU countries such as Korea or Japan came to 15 ‘Survey of Legal Profession (2). Advantages of the Brussels Connection: Why Firms Have Opened Offices in Europe over the Past Two Years’ Financial Times 19 October 1990. 16 ‘European Takeovers – This Is What You Have to Tell Brussels’ (1990) 9(31) International Financial Law Review 32–33. 17 Regulation 459/68 of 5 April 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Economic Community [1968] OJ L93/1. 18 Regulation 3017/79 of 20 December 1979 on protection against dumped or subsidised imports from countries not members of the European Economic Community [1979] OJ 339/1. 19 Regulation 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community [1984] OJ L201/1. 20 Regulation 1761/87 of 22 June 1987 amending Regulation no 2176/84 on protection against dumped or subsidized imports from countries not members of the European Economic Community [1987] OJ L167/9. 21 Regulation 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the EEC [1988] OJ L209/1.

Lawyers and the European Union  427 Brussels seeking legal advice. A lawyer who worked for Coudert Brothers in the 1980s recalled this period: After a few months that I was there, a Japanese client crossed the door … For this new Japanese client, which was a multinational, we had to do a lot of research and writing. They wanted to know everything, so I learned a lot. … They were really worried about export restraints, there had been a huge fine at that time and everybody got terrified. It was normal for a company to do that and completely counter-intuitive to be fined for these activities.22

The result of this qualitative and quantitative development of European competition policies was a wave of foreign law firm offices opening in Brussels at the end of the 1980s. Other factors contributed to this massive arrival. The Single European Act adopted in 1986, which directed the European Community to establish a single market by 31 December 1992, together with the activism of the Commission in regulating the future common market, made Brussels ‘a key venue for economic operators’ (Laurens 2015). At the beginning of 1988, there were only five UK law firms in the European capital (Simmons & Simmons, Clifford Chance, Lovell White Durrant, Linklaters & Paines, and Allen & Overy) and six from the United States. A spectacular increase occurred in the following years. In 1989–90, new offices opened each month (Rice 1990). By 1991, there were 35 British law firms;23 between 1989 and 1993, more than 100 foreign law firms settled in the city.24 Graph 3  Foreign law firms’ offices in Brussels (1957–92)



22 Interview

with a partner from a Belgian law firm, Brussels, 24 August 2015. Shake-out Fears’ Financial Times 19 October 1991, 38. a Brussels Office Pay’ (1993) 12(8) International Financial Law Review 8–11.

23 ‘Widespread 24 ‘Making

428  Lola Avril With the increasing control of concentration and dumping, new opportunities for EU legal counsel emerged at the end of the 1980s. Lawyers were not solely involved in implementing policies and negotiating with DG Competition when a client was charged with infringement of European law (principally cartels and state aid). With the new regulations, lawyers developed new activities, advising companies on how to comply with European law and avoid legal proceedings. B.  The Regulatory Lawyer: A Multi-Tasking Professional It would be an over-simplification to view the arrival of law firms and the rise of regulatory lawyers as merely consequences of the development of competition policies. Looking only at institutional and legal factors would neglect the active role of lawyers in becoming essential intermediaries of EU policies. It is striking that law firms have preferred to expand in Brussels rather than Luxembourg, where the CJEU is located. This reflects the fact that lawyers interacted more with the political and administrative field (the European Parliament and Commission, located in Brussels) than the CJEU. In fact, in the mid-1980s, lawyers invented and consolidated a new role, focusing on intermediating between companies and the European administration. Gradually, lawyers in Brussels became multi-tasking professionals of the EU regulatory state. i.  From Competition Lawyer to Lobbyist In the early 1990s, there were not enough competition cases for all the Brussels law firms offering legal services in EC matters, and the sector experienced a crisis. A Financial Times journalist wondered in 1991: ‘What [did] every foreign law firm with a Brussels office [have] in common? Each believe[d] that there will soon be a shake-out, but argue[d] – publicly at least – that it will be among the survivors’.25 The article noted that a visitor to Brussels could believe that ‘business is booming’ because of offices with ‘vast entrance halls adorned with fine antique furnishings and plush carpets’. But the visitor would soon be disillusioned by the ‘sense of empty space’. A drawing in a 1993 issue of the International Financial Law Review illustrates the growing number of these offices that preserved a façade to impress clients in the firm’s country of origin but were not actually making money.26 In this context, lawyers in Brussels sought new sources of income and tried to diversify their activities beyond legal advice on the implementation of EU regulations. Law firms started to offer services at all stages of the decision-making process. In doing so, they were acting as power brokers in the European regulatory state (Vauchez 2015), able to ‘leverage client’s resources and advantages vis-à-vis other parties’ (Schmidt 2005: 215). They increasingly resembled lobbyists, whose numbers were also growing (Laurens 2015; Courty and Michel 2012). Regulatory lawyers in Brussels justified their expanding role by presenting it as a logical continuation of their function in European competition policies. For Ivo van Bael, one of the first Belgian lawyers specialising in European law, ‘it is very important, since EC law is based



25 ‘Widespread 26 ‘Making

Shake-out Fears’ Financial Times 19 October 1991, 38. a Brussels Office Pay’ (1993) 12(8) International Financial Law Review 8–11.

Lawyers and the European Union  429 on a vague treaty with an activist court, to know where you want to go, to see the purpose behind the decisions and present your case along policy lines’ (Stoakes 1984: 13). Giving legal advice included dealing with – or lobbying – the Commission on behalf of a client. As Louis van Lennep (head of the Brussels office of the Dutch law firm De Brauw en Helbach in the 1980s) stated: ‘competition law is a combination of law, economics and politics’ (ibid: 12). Hence, these lawyers characterise lobbying as integral to their work as competition practitioners. To represent clients in such cases they needed to ‘keep a finger on the political pulse’; to give ‘the best advice to clients on how to present a problem to the Commission depends on knowing its current attitudes’ (Moore 1980). Lobbying slowly extended to other European policies, such as the Common Agricultural Policy. According to the American Bar Association Journal, ‘practicing attorneys, both European and non-European, have an important role to play in the new Europe. Lawyers must ensure that client interests are fairly represented in legislation currently being drafted’.27 Intermediation activities became a significant part of the day-to-day working practices of lawyers based in Brussels. According to a lawyer of an English law firm interviewed in 1990 in the Financial Times, ‘you could justify a Brussels presence for the sole purpose of lobbying and monitoring’.28 Lobbying covers a variety of activities, from commenting on proposed legislation to negotiating with the Commission in order to obtain an exemption from the ambit of an existing regulation (Stoakes 1984). For lawyers, this new area of work involved following negotiations of new regulations and directives and representing client interests during the preparatory phases. A lawyer explained that his law firm, which specialised in European law in the 1980s, ‘act[ed] as a think tank, giving a legal overview, advising on strategy and the decision-making process in the Commission’ (ibid: 12). This discursive strategy, which made regulatory lawyers European multi-tasking professionals, succeeded because it met the needs of the Commission. EU officials, who lacked both democratic legitimacy (linked to direct elections) and expertise, welcomed these new activities (Robert 2003). A partner from Coudert Brothers said that ‘the Commission asks for nothing more than not to draft in a vacuum, and to have input from as many sides as possible’ (Stoakes 1984: 13). Christofer Norall (from the niche law firm Forrester & Norall), insisted that: lobbying is a function of the institutions here: we’re close to the nerve centre of the EC and new ground is being broken all the time. The person who wants something done or not done has real opportunities to make representations. The institutions can be very receptive.29

For another lawyer, ‘many Commission officials have adopted an open-door policy, and are happy to sit down with you and discuss areas of concern’ (ibid). Brussels regulatory lawyers therefore gradually invented – and naturalised – a new role for themselves. The arrival of American law firms in Brussels helped redefine the lawyer as a multi-tasking specialist in European policies. ‘American law firms active in Europe have played an important role as transmission belts, accelerating the spread of American models of legal practice’ (Kelemen 2011: 10), but the American legal style also served as a repellent, affirming ‘European-style lobbying’.



27 ‘The

New Europe. An Economic Giant is Born’ (1992) ABA Journal 58–61. of the Brussels Connection’ Financial Times 19 October 1990, 34. Lobbying on the Defensive’ (1992) International Financial Law Review 11–4 (November).

28 ‘Advantages 29 ‘Euro

430  Lola Avril ii.  Washington Law Firms’ Influence: Towards ‘Lobbying à l’européenne’ The arrival of Washington law firms, which had been specialising for decades in lobbying political institutions in the US, also prompted the development of lobbying and intermediation activities in the legal profession based in Brussels. Washington law firms started to show an interest in Brussels towards the end of the 1980s. In 1989, Akin Gump, one of the leading Washington law firms, signed a partnership with a Belgian law firm ‘after realising that 1992 [would] demand radical restructuring in the international legal profession and that there [were] clear gains to be made by exploiting the Washington-Brussels nexus’.30 The partner in charge of the alliance said the goal was to ‘bring US law firm methodology and technology into a European context’ (ibid). Akin Gump sent two American lawyers to the Belgian firm to act as liaison. Another important Washington law firm, Wilmer Cutler & Pickering, settled in Brussels in 1990, planning ‘to capitalize on the similarities between legal practice in Washington and Brussels’.31 The New York law firm Winthrop Stimson also sent a partner who had built up their lobbying practice in the Washington office ‘to try the same formula in Brussels’.32 These new activities, combined with the massive arrival of American law firms in Brussels, led to the creation of a distinctive practice of law, which required reciprocal adaptations. Anglo-American lawyers adjusted to the continental system, and European lawyers adopted a more business-oriented practice, focusing on interactions with the political and administrative fields rather than litigation in court. On one hand, European law firms developed a client-oriented practice. Whereas Continental European legal professions had maintained their distance from commercial considerations, this began to change in the 1990s. ‘Working seven-day weeks to impress clients, the American firms are putting pressure on the reluctant Brussels bar to do likewise’ (Greenhouse 1991). William Lee, a partner at Sherman & Sterling, recalled that ‘European lawyers … go home for the weekend. You can call an American lawyer at three in the morning and ask a dumb ­question and he’ll answer it. You wouldn’t dare call a European lawyer at three a.m.’ (Pollock 1989) During the 1980s, European lawyers progressively relinquished their traditional role to ‘offer a more business-oriented service’ (Brown 1984). On the other, the arrival of American law firms contributed to normalising lobbying activities at a time when they were still marginal in European national bars. But one cannot call this an Americanisation, meaning a direct transfer of the practices of American lawyers. The European regulatory bar developed its own logics and rules. Indeed, its ambivalence toward the American model encouraged the autonomisation of a ‘European lawyer’. Some American practices fit poorly in the European context. Walter Oberreit of Cleary Gottlieb said: ‘Some firms with Washington lobbying expertise [were] coming to Brussels in the belief they [could] transplant their successful US practices. That [was] just silly’.33 These attempts to transpose US techniques to Brussels led to failures and tensions within the local legal community and sometimes with European officials. They illuminate the underlying differences between European and American styles: while Americans rely on formal interactions with the administration and official public consultations, European lobbying was more informal.

30 ‘Brussels Breakthrough’ (1989) International Financial Law Review 2 (May). 31 ‘Brussels still filling up’ (1989) International Financial Law Review 2 (August). 32 ‘Making a Brussels Office Pay’ (1993) 12(8) International Financial Law Review 8–11. 33 ‘Survey of Legal Profession (2). Advantages of the Brussels Connection: Why Firm Have Opened Offices in Europe over the Past Two Years’ Financial Times 19 October 1990.

Lawyers and the European Union  431 An indication of these more informal modes of lobbying is the different relationship lawyers have to written documents. European lawyers and officials complained about the huge number of files and documents produced by American lawyers: Newly arrived lawyers find practicing in Brussels quite different from operating in the United States, where proposed federal regulations must go through a formal process of public comment before they can take effect. The EC has no such formal procedure. (Havemann 1990)

Sending too many documents could even be counter-productive: ‘the Americans [were] sometimes the target of ridicule, particularly for the reams of documents in which they [had] buried European Commission officials’ (Greenhouse 1991). And ‘depositing massive filings at the door of the Commission is not always guaranteed to succeed’ (Morton 1989). Instead of interacting with EU officials formally in writing, ‘lobbying à l’européenne’ would rely more on interpersonal relationships. An American lawyer in Brussels said that sending documents and position papers to Commission officials was not enough: ‘You have to know the case handlers personally’ (Moore 1980). Another American lawyer, who worked briefly in the legal service of the European Commission in the beginning of the 1980s, said: ‘in Brussels, politesse and brevity are the rule’ (Greenhouse 1991). The professional newspapers of the early 1990s report many differences between American and European lobbying styles. A European lawyer working for a US law firm said: ‘A lot of people say the Americans are too brash and are dumping too much paper on people’s desks’ (ibid). An American lawyer concurred: [H]ere in Europe, it’s impolite to be direct. If a client has deep concerns with a proposal, you should say something like, ‘We support the desire of the Commission to do this, but we would invite the Commission to make the following small changes’. In Washington you would say, ‘The agency’s action was fundamentally wrongheaded, violates the statutory intent and is wrong for the following 17 reasons’. (Greenhouse 1991)

A Swedish lawyer working for a US law firm also compared an ‘EU style’ and a ‘Washington way’ of lobbying: ‘some US lawyers have earned a reputation in Brussels for hard lobbying, reminiscent of Washington, which in the past … has aggravated the Commission and achieved the opposite result to that intended’ (Stoakes 1984). Hence, a distinct figure of the good European regulatory lawyer slowly evolved. A lawyer from the American firm Cleary Gottlieb said: ‘there is a clear distinction between political lobbying à la Washington and technical lobbying [à la Brussels]’.34 Through the importation of the know-how of American law firms and acculturation to the Brussels context, the mixed figure of the regulatory lawyer was taking shape. At the turn of the 1980s and 1990s, this EU professional appeared to be a multi-tasking professional. The roles of the lawyer at the heart of competition procedures were gradually complemented by those of the diplomat, educator, shepherd and power broker, as identified by Patrick Schmidt (2005) in the American context. II. REGULATORY LAWYERS AS BOUNDARY ENTREPRENEURS

In order to understand who these lawyers are (as opposed to what they do), I created a ­database35 of the academic and professional trajectories (universities, diplomas, and previous 34 ‘Euro Lobbying on the Defensive’ (1992) International Financial Law Review 11–4 (November). 35 I followed the approach of the political sociology of the European Union, developed in France in the beginning of the 2000s (see Georgakakis and de Lassalle 2004; Mégie and Sacriste 2009; Michon 2014; Georgakakis 2012).

432  Lola Avril positions in law firms or public institutions) of 455 European competition lawyers working in Brussels. Regulatory lawyers in Brussels are characterised by a high degree of hybridisation. Professional excellence is based on the accumulation of resources at the European, national and international levels and professional mobility between the politico-administrative field and law firms (Vauchez and France 2021). These regulatory lawyers can be described as ‘boundaryentrepreneurs’, ‘actor[s] at the border of closed universes … acting as both boundary-object[s], and border-guard[s]’ (Bergeron et al 2013). A.  Between the Transnational and the European Legal Fields The trajectories of the regulatory lawyers show the hybridisation of legal practices in the 1980s–90s, typical of what Daniel Kelemen (2011) called ‘Eurolegalism’, located between international logics (dominated by the American legal style) and the rise of a specific European field (Trubek and Dezalay 1994). i.  The International Legal Field To practise in Brussels is, above all, to enjoy all the resources of an international business lawyer (Silver 2006). Regulatory lawyers possess a unique form of international capital: a mix of ‘cultural, linguistic and social capital, partly inherited and strengthened through international education and professional experience in several countries’ (Wagner 1998). This is acquired during university studies: 80 per cent of the lawyers in the database have diplomas from at least two different countries, and almost a third (32 per cent) have them from at least three. This tendency has intensified recently: only 8 per cent of lawyers who obtained their last diploma in the 1980s had diplomas from at least three countries, compared with nearly half (46 per cent) of those who graduated in the 2010s. Table 1  Number of countries in which postgraduate degrees were obtained by regulatory lawyers Number of countries

1

2

3

4

5

6

Individuals

89

210

116

21

3

1

Percentage

20

48

26

5

1

0

This international cultural capital is strengthened and maintained throughout the regulatory lawyer’s career: 59 per cent of lawyers in the database are registered in at least two Bars. The most common, unsurprisingly, is Brussels (76 per cent, 291 lawyers), followed by the UK (22 per cent, 86 solicitors), and New York (15 per cent, 56 lawyers). The rise of the global lawyer has been dominated by Anglo-American law firms, professional associations, and universities (Dezalay 2004). Regulatory lawyers in Brussels are part of this international space of business law. More than a third of the lawyers in the database have a diploma from an American university, and 42 per cent have one from a British university; because some have studied in both countries, 68 per cent have a diploma from either an American or a British university. A significant proportion (36 per cent) belong to an American or British Bar. Another indicator of American domination is the fact that 65 per cent (297) obtained a Master of Laws degree (LLM). The international recognition and diffusion of LLM degrees – created in the United States to attract foreign students and then replicated in many other countries – is a sign of American domination in the training of international business lawyers (Silver 2006).

Lawyers and the European Union  433 A third element of this domination is the fact that 95.6 per cent of Brussels regulatory lawyers practise in Anglo-American firms: 57.8 per cent in American law firms, 32 per cent in British, and 5.7 per cent in Hogan Lovells, created by the merger of American and British firms, with headquarters on both sides of the Atlantic. The British firms are members of the Magic Circle36 (Allen & Overy, Clifford Chance, Freshfields, Linklaters) or their direct competitors in the Silver Circle (Ashurst, Herbert Smith Freehills, Bird & Bird). American firms often appear at the top of rankings based on revenues or size (Baker McKenzie, Cleary Gottlieb Steen & Hamilton, Covington & Burling, Hogan Lovells, Jones Day, Latham & Watkins, Skadden, White & Case, Arnold & Porter, Gibson Dunn). Table 2  Brussels regulatory law firms’ origins Country of origin

Number of firms

Number of lawyers

Percentage of lawyers

United States

9

263

United Kingdom

7

146

32

US/UK

1

26

5.7

Belgium

1

20

4.4

18

455

100

Total

57.8

The accumulation of international cultural capital (educational or professional) shows the inclusion of competition lawyers in the international field of business law. This accumulation is supplemented by the increase in special competences, which attest to the consolidation of a European regulatory bar. ii.  Toward an Autonomisation of a European Legal Field Brussels regulatory lawyers are not only global lawyers but also EU professionals. Hence, they accumulate specific resources linked to the autonomisation of a European legal and politicoadministrative field. First, some have diplomas indicating their specialisation: 42 per cent (191 out of 455) of these lawyers have graduated in European law. Today, many faculties offer Bachelor or Master degrees in European law, often combined with international law, governance studies or comparative law.37 Unsurprisingly, this specialisation is a growing trend: while only 17 per cent of the lawyers who graduated in the 1970s have a degree in European law, that is true of 54 per cent of those who graduated in the 2000s. This trend parallels the professionalisation of the permanent Eurocrats (Georgakakis 2012). Some 22.6 per cent of lawyers in the database studied at the College of Europe (CoE) in Bruges, Belgium, which offers a one-year postgraduate programme in EU law.38 This institution has established a strong reputation in competition law. Some Brussels firms, like Baker Mackenzie, provide a grant to study there, and others recruit associates from it. Beyond the legal education it offers, the CoE represents a site of acculturation to European elite values and a key route to the ‘Brussels social capital’ shared by European elites (Schnabel 1998).

36 This term, which appeared in the late 1990s, is frequently used in the British press to designate the four most important law firms in the City (by revenue). See ‘It’s a Kind of Magic’ (2004) Law Society Gazette 21 May, www. lawgazette.co.uk/news/its-a-kind-of-magic/42082.article. 37 For an overview of degrees in European law, see www.lawstudies.com/LLB/European-Law. 38 See www.coleurope.eu/study/master-european-law-llm.

434  Lola Avril Graph 4  Lawyers with a degree in European law 60% 50% 40% 30%

54%

20% 10%

44%

38% 17%

23%

0% 1970

1980

1990

2000

2010

An internship at the European Commission is another facet of Europeanisation: a first professional experience as well as a ticket to positions in the EU field of power (Michon 2004). A total of 125 of lawyers in the database (27.5 per cent) have done such an internship, an overwhelming majority (82.4 per cent) at the European Commission, and nearly all joined a law firm immediately afterwards (Table 3). Table 3  EU internships Institutions European Commission

Number of lawyers

Percentage

103

82.4

10

8

European Parliament

6

4.8

Other institutions

6

4.8

125

100

CJEU

Total

Many interns have been through the classic procedure, which includes inscription on a register (blue book), from which officials select candidates for interviews. This blue book internship can be regarded as another key moment in the process of socialisation into the EU. During this six months of paid internship, these lawyers are deeply immersed in Brussels sociability through integration days and the activities of many clubs, forging friendships through beer tasting, cycling tours, and parties. Like the internship in the European Parliament, the Commission internship is a ‘particular moment of acquisition of skills’ useful in the EU field of power: knowledge, know-how, vocabulary, practices, and implicit rules (Michon 2004). As such, this first professional experience in the public sector is now widely recognised in the European regulatory bar as an entry ticket to the profession, testifying to a practical knowledge of the specificities of EU policies. For law firms, the goal here is not to recruit an established public figure but rather to hire a beginner who has some basic knowledge of

Lawyers and the European Union  435 how European institutions work. It is now a widely used criteron for recruitment by Brussels law firms. This analysis of EU competition lawyers’ backgrounds in Brussels reveals their dual ­identity. On one hand, they are global lawyers in the internationalised business law space (still largely dominated by Anglo-American legal traditions). On the other, they are also EU professionals, whose diplomas and professional experience are evidence of the specialisation and autonomisation of the European field of power. Another key feature of European regulatory lawyers demonstrates a second type of hybridisation: they are situated at the crossroads not only of two geographic domains but also of the politico-administrative field and the private sector. B.  Regulatory Lawyers at the Crossroads of the Public and Private Sectors Until the late 1980s, professional movement from European institutions to the private sector was relatively rare. Some former civil servants chose to become university teachers or elected politicians after retiring from the administration, but the first departure to the private sector occurred only in 1986. Given the fierce competition between newly established law firms in Brussels, recruiting a former EU official was a way to gain credibility on EU issues, show connections with the European field of power and enhance visibility. i.  The Development of Professional Movement from the Public to the Private Sector Today, movement from the public to the private sector is common among competition lawyers: 17 per cent of the database have served in EU institutions, as permanent or contract staff (public practitioners), sometimes after an internship. Another 26 per cent have done only an internship (interns). The remaining 57 per cent have spent their entire careers in private practice (private practitioners). Therefore, we face a hybrid system where the border between public and private is blurred. Recruitment policies vary across law firms. For some, former officials are a significant proportion of the lawyers in the competition department, eg Allen & Overy (29 per cent), Covington & Burling (30 per cent) and Herbert Smith Freehills (37.5 per cent). Others seem less interested, eg Ashurst (10 per cent), Baker Mckenzie (none) and Linklaters (6.5 per cent). Table 4  Prior positions of lawyers in the database Number

Percentage

78

17

Interns

117

26

Private practitioners

260

57

Total

455

100

Public practitioners

The two key public institutions dealing with competition issues are naturally the prefered recruitment pools for law firms: 47 per cent of those who had been ‘public practitioners’ came from the European Commission and 30 per cent from the CJEU. Other institutions are secondary: the European Parliament, Council of the EU, European Investment Bank and European Ombudsman.

436  Lola Avril Table 5  Prior institutions of former ‘public practitioners’ Institution

Number

Percentage

European Commission

45

47

CJEU

29

30

Council

3

3

European Parliament

9

9

Other

10

11

Total

96

100

The total (96) exceeds the number of ‘public practitioners’ (78) because some have been in several institutions. Unlike the coverage of these movements by the media and NGOs,39 which focuses on high officials (Commissioners or General Directors), the data show less spectacular – if much more common – movement. The majority of former ‘public practitioners’ (68 per cent) had held the rank of administrator or contractor in the EU institutions (grades 5 to 12 of the Staff regulation). They were, for example, case handlers at DG Competition, in charge of implementing EU policies, analysing cases, drafting Commission decisions or preparing negotiations with companies. Former high officials such as unit heads or directors (grades 13 to 16) represent a different tier. Also, although some senior officials leave public service for other sites at the end of their careers, more go to the private sector much earlier, only a few years after entry: 75 per cent stay in a public institution less than five years, and the average duration is just six years. The growth of professional movement has multiple explanations. First, for EU civil servants, it was facilitated by the reform of Article 40 of the Staff Regulations. According to the 1962 Staff Regulations, civil servants could take unpaid leave on personal grounds for one year (which could be extended twice, for a total of three years). But in 2004,40 the total duration was extended to 15 years and then reduced to 12 in 2013,41 following pressure from the European Parliament. As a consequence of these reforms, EU civil servants can temporarily leave public administration confident of being able to return to their previous position (or a similar vacant position). Another explanation is the increasing use of contractors in the EU public administration. The managerialisation (Nosbonne 2013; Bezes and Musselin 2015) of human resources, which the European Commission experienced in the first decade of the millennium, includes the rapid development of contract positions. The reform of the Staff Regulations in 2013 extended the duration of such contracts from three years to six. Moreover, the growing number of temporary staff in the administration reinforces the trivialisation of public-private movement: the typical career of an employee in the European administration no longer occurs entirely

39 The Transparency International report ‘ACCESS ALL AREAS When EU politicians become lobbyists’ published in 2014 focuses on Members of the European Parliament and Commissioners; the Alter-EU report ‘Block the revolving door: why we need EU officials to stop becoming lobbyists’ published in 2011 focuses on Commissioners and ‘high level officials’. In the media, journalists focus on well-known persons such as the former president of the Commission, Barroso, who was hired by the investment bank Goldman Sachs. 40 Regulation 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants of the European Communities [2004] OJ L124/1. 41 Regulation 1023/2013 of the European Parliament and of the Council of 22 October 2013 amending the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union [2013] OJ L287/15.

Lawyers and the European Union  437 inside the administration. Temporary agents now represent 21 per cent of DG Competition (179 agents out of 849), a much higher proportion than the EC average (5.7 per cent).42 The analysis of public-private professional movement reveals that it primarily concerns middle-level officials, most at the beginning of their careers, who were in charge of a case and directly in contact with law firms during the implementation process. These flows were facilitated by the EU administration reforms undertaken since 2004. ii.  Institutional Capital, Commercial Logics How are these professional movements negotiated? How does the transfer from the politicoadministrative field to the private sector occur? An analysis of the practical modalities of the conversion of resources acquired in the public sector may improve our understanding of the relationship between the public and private sectors in the European field of power. The competences acquired in the public sector are highly valued by regulatory law firms in Brussels. In their websites, lawyers’ biographies mention internships or positions held in EU institutions. Most of the ‘public practitioners’ did not have to search for a job in law firms, receiving several offers while in office. DG Competition positions are the most highly valued. Daily work at DG Competition allows lawyers to meet every key actor in the private sector. Hearings, where private lawyers and parties meet case handlers, are occasions for the latter to develop a network of contacts with law firms and big companies (ie future clients). One lawyer reported that as an official he ‘organised 70 hearings’ and ‘saw every [big] law firm in Europe. Every. And Japanese law firms, and American law firms. I knew them all’.43 This is why a position in DG Competition provides resources readily convertible to the private sector. By contrast, work experience in the Legal Service of the Commission is less valued because activity is focused on other Commission services or the CJEU, offering less contact with businesses. One lawyer pointed this out explicitly: In the Legal Service, there is really this problem, it is that we are a little bit … backward … we do not have a lot of contacts with the rest of the Commission, with enterprises, companies … except when we have cases beyond the Court. This is a disadvantage. The most successful people in the profession are those who succeeded to build a network … when they are at DG Competition.44

Hence, not all resources acquired in the administration are equally valuable in the private sector. The transition from the public to the private sector can be challenging for other reasons. The database shows that this transition is not necessarily a career accelerator. A comparison of competition lawyers who had been in the administration (‘public practitioners’) with those who served exclusively in the private sector (‘private practitioners’) reveals that having held a position in the administration does not significantly increase the chance of becoming a law firm partner. Instead, it leads to a set of newly created positions in regulatory law firms in Brussels, such as counsel, of-counsel or consultant. Only 12 per cent of ‘private practitioners’ hold one of these titles or an equivalent, compared to 29 per cent of ‘public practitioners’.

42 See ec.europa.eu/info/about-european-commission/organisational-structure/commission-staff_en (data for January 2021). 43 Interview with a senior counsel in a British law firm, former official at DG Competition, Brussels, 19 May 2014. 44 Interview with a counsel (European law) in an American law firm, former contract lawyer at DG Competition, Brussels, 23 May 2014.

438  Lola Avril Graph 5  Hierarchical status in law firms45

The of-counsel status was introduced in Anglo-American law firms several decades ago (Delaunay 2010) as an honourary status to distinguish a retired partner or as a ‘marketing tool’ used to ‘show that a law firm had powerful friends in high places’ (Wren and Glascock 2005). Today, of-counsel and other similar titles occupy an intermediate position between partner and associate and possess an uncertain status and no share in firm profits. In some firms, this can be a temporary position before promotion to partner; in others it is permanent (Jensen 2011). These intermediary positions reflect the symbolic role of ‘public practitioners’ who provide knowledge of the internal practices of EU institutions but lack sufficient contacts in the private sector to recruit new clients (and to maximise ‘billable hours’). It is thus clear that there is no institutionalised path to becoming a European regulatory lawyer; rather, law firms have been devising a ‘second type’ of career to create a place for these former civil servants. Unable to

45 ‘Interns’ are lawyers in the database who only did an internship in the EU institutions; ‘public practitioners’ are lawyers who served in EU institutions, as permanent or contract staff; ‘private practitioners’ are lawyers who have spent their entire careers in private practice.

Lawyers and the European Union  439 demand a partnership, these lawyers become senior consultants, senior advisors, or senior counsel as they move up the career ladder. Finally, the values and models of professional excellence are not the same in the public and private spheres, which is why some transitions fail. One lawyer talked about ‘catastrophes’ because ‘public practitioners’ did not ‘adapt’ to the law firm mentality: ‘they did not realise that a lawyer is responsible to a company, there is a commercial aspect which is very important. If you had a whole official career, it is sometimes difficult to take off the suit of official to put on the lawyer’s suit’.46 The existence of different logics explains why some lawyers leave the private sphere. Since the creation of the database in 2013, 11 lawyers have done so. Four have taken positions in DG Competition, one joined a European law firm abroad, three have become référendaires (law clerks at the Court of Justice of the European Union), one is a judge, and one now works for the Single Resolution Board and another for the European Ombudsman. Five of these 11 moves to the public sector involve lawyers who had spent their entire careers in the private sector. Five others had done only an internship in the private sector. Just one of these transitions is a genuine return to the European administration: the former official who, having benefited from a leave on personal grounds, chose to return to DG Competition. In the interview conducted with the last of these, just before he returned to DG Competition, the lawyer criticised the ‘arbitrary’ rules of hierarchical promotion in the law firm, the commercial logic, and the pressure to bring in new clients. His complaints emphasised the imperative of profitability, especially in billing practices: ‘What matters most here, and that’s a shame, but this is an American firm, is how many hours we work’.47 This interview reminds us that the links established between the regulatory bar and the European bureaucracy have not obliterated the differences between the public and private spheres. Professional movements are more a sign of ‘collusive transactions’ between these two spheres, which remain distinct if closely interdependent. III. CONCLUSION

Brussels regulatory lawyers have developed new relations with the market and the European politico-administrative field, redefining what a lawyer can be. Because the private practitioners who first took an interest in European law were mainly business lawyers specialising in competition law, they were not involved in the traditional organisations that regulate the legal profession. They invented services designed for the new kind of government developing at the European level – the regulatory state – and positioned themselves at the crossroads of the international and European legal fields, acting as intermediaries between the public and private sectors. The Brussels regulatory bar is not a traditional bar. Even if regulatory lawyers share some values, the blurred boundaries around their jurisdiction, the professional movement from public to private sector, and their dual identities as global lawyers and EU professionals all obstruct the emergence of an authentic, self-regulated profession at the European level. What was at stake with the invention of a new jurisdiction for EU lawyers in the 1980s and

46 Interview with a partner of an American law firm, Brussels, 21 May 2014. 47 Interview with a counsel (European law) in an American law firm, former contract lawyer at DG Competition, Brussels, 23 May 2014.

440  Lola Avril 1990s was not the emergence of a Europeanised profession but rather the consolidation of a group of hybrid professionals who act as intermediaries and auxiliaries of the European regulatory state. REFERENCES Abel, RL (1994) ‘Transnational Law Practice’ 44 Case Western Law Review 737–87. Beaverstock, JV, Taylor, PJ and Smith, RG (1999) ‘The Long Arm of the Law: London’s Law Firms in a Globalising World Economy’ 31 Environment and Planning 1857–76. Bergeron, H, Castel, P and Nouguez, É (2013) ‘Éléments pour une sociologie de l’entrepreneur-frontière’ 54 Revue Française de Sociologie 263–302. Bezes, P and Musselin, C (2015) ‘Le New Public Management: entre rationalisation et marchandisation?’ in L Boussaguet, S Jacquot and P Ravinet (eds), Une French Touch dans l’analyse des politiques publiques? (Paris, Presses de Sciences Po) 128–51. Brown, CR (1984) ‘Europe’s Law Firms: The Next 10 Years’ 3(9) International Financial Law Review 5–9. Buch-Hansen, H (2009) Rethinking the History of European Level Merger Control. A Critical Political Economy Perspective (Frederiksberg, Copenhagen Business School Press). Buhart, J (1988) ‘European Community Anti-Dumping Rules’ 16 Korean Journal of Comparative Law 66–94. Cini, M and McGowan, L (1998) Competition Policy in the European Union (London, Macmillan). Courty, G and Michel, H (2012) ‘Groupes d’intérêt et lobbyistes dans l’espace politique européen: des permanents de l’eurocratie’ in D Georgakakis (ed), Le Champ de l’eurocratie: une sociologie du personnel politique de l’UE (Paris, Economica) 213–40. Delaunay, O (2010) ‘Les Counsels à l’honneur au sein des cabinets d’avocats’ Option droit des affaires 29 September. Dezalay, Y (2004) ‘Les courtiers de l’international. Héritiers cosmopolites, mercenaires de l’impérialisme et missionnaires de l’universel’ 1(151–152) Actes de la recherche en sciences sociales 4–35. Flood, J (1999) ‘Legal Education, Globalization, and the New Imperialism’ in F Cownie (ed), The Law School. Global Issues, Local Questions (Farnham, Ashgate) 127–58. Georgakakis, D (ed) (2012) Le Champ de l’eurocratie: une sociologie du personnel politique de l’UE (Paris, Economica). Georgakakis, D and de Lassalle, M (2004) ‘Les directeurs généraux de la Commission européenne. Premiers éléments d’une enquête prosopographique’ 27/28 Regards sociologiques 6–33. Greenhouse, S (1991) ‘US Lawyers Flock to Brussels’ New York Times 13 May. Havemann, J (1990) ‘Doing Business : US Law Firms Chasing New Clients in Brussels’ Los Angeles Times 4 December. Ivar, DJ and Pfeifer, M (2001) The Internationalization of the Practice of Law (Leiden, Martinus Nijhoff). Jensen, D (2011) ‘À quoi servent les statuts alternatifs à l’association?’ 1004 La Lettre des juristes d’affaires 5. Jordana, J and Levi-Faur, D (2004) The Politics of Regulation. Institutions and Regulatory Reforms for the Age of Governance (Cheltenham, Edward Elgar). Kelemen, D (2011) Eurolegalism. The Transformation of Law and Regulation in the European Union (Cambridge, Harvard University Press). Laurens, S (2015) Les Courtiers du capitalisme. Milieux d’affaires et bureaucrates à Bruxelles (Marseille, Agone). Liu, S (2013) ‘The Legal Profession as a Social Process: A Theory on Lawyers and Globalization’ 38 Law & Social Inquiry 670–93. Majone, G (1996) Regulating Europe (New York, Routledge).

Lawyers and the European Union  441 McGowan, L (2009) ‘Any Nearer to Victory in the Fifty Years War?: Assessing the European Commission’s Leadership, Weapons and Strategies towards Combating Cartels’ 10 Perspectives on European Politics and Society 283–307. Mégie, A and Sacriste, G (2009) ‘Polilexes: champ juridique européen et polity communautaire’ 2(28) Politique européenne 157–62. Michon, S (2004) ‘Devenir stagiaire au Parlement européen: une entrée dans l’espace politique européen’ 2004 Regards sociologiques 85–95. —— (2014) Les Équipes parlementaires des eurodéputés (Bruxelles, Larcier). Moore, A (1980) ‘The Brussels Connection’ Financial Times 11 September, 16. Morton C (1989) ‘Brussels: Goldmine or Bandwagon’ 8 International Financial Law Review 1 (Law Firm Supplement). Nosbonne, C (2013) ‘Le tournant managérial dans le secteur public européen : quelles conséquences sur l’action publique? 2 La nouvelle revue du travail. Olgiati, V (2008) ‘The European Learned Professions and the EU Higher Education Project’ 10 European Societies 545–65. Pollock, EJ (1989) ‘US Law Firms Catching 1992 Fever, Bet They’ll Gain Edge in United Europe’ Wall Street Journal 26 September. Ramírez Pérez, S and van de Scheur, S (2013) ‘The Evolution of the Law on Articles 85 and 86 EEC: Ordoliberalism and its Keynesian Challenge’ in K Patel and H Schweitzer (eds), The Historical Foundations of EU Competition Law (Oxford, Oxford University Press) 1–16. Rice, R (1990) ‘Case for a Presence in Brussels’ Financial Times 11 June, 13. Robert, C (2003) ‘L’expertise comme mode d’administration communautaire: entre logiques technocratiques et stratégies d’alliance’ 3(11) Politique européenne 57–78. Schmidt, P (2005) Lawyers and Regulation. The Politics of the Administrative Process (Cambridge, Cambridge University Press). Schnabel, V (1998) ‘Élites européennes en formation. Les étudiants du “Collège de Bruges” et leurs études’ 11(43) Politix 33–52. Silver, C (2006) ‘Internationalizing U.S. Legal Education: A Report on the Education of Transnational Lawyers’ 14 Cardozo Journal of International and Comparative Law 143. Stoakes, C (1984) ‘Brussels’ Supranational Law Firms’ 3 International Financial Law Review 9. Trubek, D and Dezalay, Y (1994) ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas’ 44 Case Western Reserve Law Review 407–98. Van Bael, I (1990) ‘EEC Antidumping Enforcement: An Overview of Current Problems’ 1(1) European Journal of International Law 118–47. Vauchez, A (2015) Brokering Europe. Euro-Lawyers and the Making of a Transnational Polity (Cambridge, Cambridge University Press). Vauchez, A and France, P (2021) The Neo-Liberal Republic. Corporate Lawyers, Statecraft, and the Making of Public-Private France (Ithaca, Cornell University Press). Wagner, AC (1998) Les nouvelles élites de la mondialisation (Paris, Presses universitaires de France). Warlouzet, L (2018) Governing Europe in a Globalizing World. Neoliberalism and Its Alternatives Following the 1973 Oil Crisis (London, Routledge). Wigger, A (2015) ‘The Political Role of Transnational Experts in Shaping EU Competition Policy: Towards A Pan-European System of Private Enforcement’ 3(3) Legisprudence 251–75. Wren, H and Glascock, B (2005) The Of-counsel Agreement: a Guide for Law-firm and Practitioner (Chicago, American Bar Association).

442

Part VI

Sociology of Professions

444

19 Between Rules and Power Finding a Place for Lawyers in the Sociology of Professions SIDA LIU

Lawyers stand between rules and power. In his classic sociolegal text, Max Weber said: Whether the legal profession would take the side either of authoritarian or the anti-authoritarian powers, once the ‘rule-boundedness’ of the social order had been achieved, depended upon whether the emphasis was more upon mere ‘order,’ or upon ‘liberty,’ in the sense of guaranty and security of the individual. (Weber 1954: 299)

As one of the paradigmatic professions in Western societies and beyond, lawyers are frequently compared to other elite professions such as doctors, engineers, accountants, or the clergy (Dingwall and Lewis 1983; Gorman and Sandefur 2011; Brock et al 2014). These professions seem to share traits in their training, organisation, ethics, and how they work. For decades, sociologists of professions have debated the nature of professionalism based on those similarities (Wilensky 1964; Larson 1977; Abbott 1988; Freidson 2001; Evetts 2003; Olgiati 2010). Yet two things distinguish lawyers from other elite professions: rules and power. Rules are about proceduralism, or how lawyers deal with written law and unwritten norms. Power is about politics, or how lawyers deal with the state and other forms of authority. Few other professions emphasise these as strongly as lawyers do. However, there is an inherent tension between rules and power: power is a river, whereas rules are a toolkit deployed to tame it. It is the peculiar fate of the legal profession to reside between those two great forces in every society. Despite this peculiarity, sociological research on the legal profession has largely ignored both power and rules. Reading through most of the national reports gives the impression that the legal profession evolves like any other: increasing numbers of practitioners, growing division of labour and specialisation, persisting inequalities in gender and race, globalising firms and rising interprofessional competition. Only a few chapters on non-Western contexts take power and politics fully into account (Bernard-Maugiron and Omar Vol 1, ch 28; Böhmer Vol 1, ch 18; Crouch Vol 1, ch 39; Gobe Vol 1, ch 33; Hsu Vol 1, ch 41; Villalonga Vol 1, ch 20). Meanwhile, the discussions of lawyers and rules are mostly limited to regulatory rules and discipline. To a large extent, this is the reality. Like most other professions, lawyers are shaped by major social forces. The rise of the welfare state since the mid-twentieth century led to the expansion of legal rights, as well as those to healthcare and social security, in many societies

446  Sida Liu (Starr 1982; Abel 1988; 1989). The feminisation of the workforce facilitated the increase in the number and status of women in law as well as in accounting and medicine (Kay and Gorman 2008). Globalisation consolidated elite professional services in large law firms as well as the Big Four accounting firms and bulge bracket investment banks (Trubek et al 1994; Flood 2007; Wilkins and Ferrer 2018). This, however, is an incomplete social history of the legal profession. Lawyers pursue income and status, but they also care about rules. Lawyers fight for equality and social justice, but they also cope with power. Only by taking rules and power seriously can the social scientific study of lawyers find its unique place in the sociology of professions. Echoing Abel and Lewis’s (1989) research agenda of ‘putting law back into the study of lawyers’ in concluding their pioneering Lawyers in Society study three decades ago, this chapter seeks to locate rules and power in the study of the legal profession. I.  SEARCHING FOR UNIQUENESS IN THE PROFESSIONS

A traditional orientation in the sociology of professions is the search for commonality. During the twentieth century, this orientation produced many untenable theoretical approaches, such as enumerating traits (Flexner [1915] 2001; Millerson 1964) and essentialising of professionalism and professionalisation (Wilensky 1964; Larson 1977). Even The System of Professions (Abbott 1988), arguably the most influential contribution to this literature, was a theoretical effort to find similarities in the ecological dynamics of professional work and interprofessional competition. However, most of these scholarly efforts to identify commonality ended in disappointment. Finding similar traits among professions is as hard as understanding what makes a good marriage – many professions appear superficially alike, yet deeper examination of their training, work, organisation, and ethics reveals more differences than similarities (Becker 1962; Millerson 1964; Johnson 1972). Even lawyers and doctors, the paradigmatic and beststudied professions, share little beyond their public status and structural characteristics like licensure and association (Dingwall and Lewis 1983), especially if we look outside the AngloAmerican cases (Rueschemeyer 1973; 1989; Krause 1996; Karpik 1999; Alford et al 2007). This is one reason why the sociology of professions has declined since the 1990s, particularly in the United States, and many empirical studies on individual professions were incorporated into related areas such as medical sociology, sociology of law, and sociology of science (Gorman and Sandefur 2011). Taking uniqueness seriously is the necessary first step for reviving the sociology of professions. Every profession has its idiosyncrasies. In terms of epistemology, some are more scientific and others more normative (Halliday 1985). In terms of training, some emphasise formal pedagogy, whereas others prefer apprenticeship (Abel 1989). In terms of jurisdiction, some are more exclusive and others more open to interprofessional competition (Abbott 1988). In terms of client relations, some are more collegial and others more deferential to their patrons (Johnson 1972). In terms of politics, some engage in collective action, whereas others focus on routine work (Liu and Halliday 2016). Although social scientists are trained to do systematic comparisons and develop generalisable theories, studying individual professions can be a more productive approach to understanding the ‘social facts’ (Durkheim 1895) of doctors, lawyers, academics, or other professions than searching for similarities among them. Some exemplary studies on lawyers were conducted by sociolegal scholars who did not engage extensively with the broader literature on other professions. Carlin’s (1962) and Seron’s (1996) books on solo practitioners and small-firm lawyers, Sarat and Felstiner’s (1995) study of

Between Rules and Power  447 divorce lawyers, and Silver’s (2001; 2007) research on legal education and global lawyering are a few good cases in point. Even Heinz and Laumann’s ([1982] 1994) classic Chicago Lawyers study, which explicitly compares lawyers and doctors in its concluding chapter, focuses on their differences rather than similarities. For instance, they argue that lawyers often share the client’s values and speak the client’s language, which is less important for doctors and patients. Yet social homophily with clients is not unique to the legal profession. It is also common among accountants, artists, and many other professions. Searching for lawyers’ uniqueness in the ecological system of professions (Abbott 1988) requires more than simply identifying their differences from doctors or priests. Following the longstanding Chicago school tradition on work and occupations, which prioritises work over social structure (Freidson 1970; Hughes 1994), I argue that the starting point of this inquiry should be the nature of legal work. In other words, what does it mean to ‘practise law’? It means to make and apply rules to solve economic, social, and political problems. It also means to check and facilitate the exercise of power by the state and other social institutions. These two facets of legal work are essential for understanding lawyers’ peculiar position in the professional ecology. II.  RULES: A TECHNICAL AND MORAL TOOLKIT

Lawyers are rule experts. But what do rules mean for the legal profession? Lawyers make rules and apply them, sometimes helping clients break them. At the heart of the craft of law, legal rules include a large variety of texts, such as constitutions, statutes, judicial decisions, administrative regulations and procedures, international norms and conventions. The primary goal of legal education is to master these rules, become an expert on some of them, and learn to ‘think like a lawyer’ (Mertz 2007). Lawyers also develop expertise on unwritten or hidden rules. Navigating the criminal justice system, for example, requires defence lawyers to know the numerous informal rules and behavioural norms of policing, detention, plea bargaining, and cross-examination. Similarly, corporate lawyers must learn the complex business norms and practices of their clients, those clients’ business partners, and the corporate world at large. These formal and informal rules constitute a technical toolkit for lawyers’ everyday work (Raz 1972). Formal rules provide a logical and coherent body of knowledge for professional inference (Abbott 1988). Informal rules, or ‘living law’ (Ehrlich [1913] 2017), are less systematic yet often more effective for solving problems in practice. But legal instruments are not the same as medical equipment or engineering hardware. The focus on reason and procedures, what Weber (1954) famously called ‘formal rationality’, differentiates legal rules from the toolkits of other professions. To be sure, doctors must also follow medical procedures when performing surgery; but for most lawyers, justice is embodied in due process of law. A doctor may deviate from standard surgical procedures to save a patient’s life; but it would be less acceptable for a lawyer to abandon legal procedures in order to win a lawsuit because that would undermine the normative foundation of the legal system. This difference between the medical and legal professions is central to understanding what rules mean for lawyers. Rules are not only technical instruments for conducting professional work but also the foundation of lawyers’ professional identity. When claiming expertise on constitutions, statutes, judicial decisions, or administrative regulations, as well as informal norms, lawyers draw cultural and moral boundaries between themselves and the rest of the social world, including other professions. Although such boundary work (Gieryn 1983; Lamont 1992; 2000) is widely observed across professions (Bechky 2003; Liu 2015; 2018; Blok et al 2019), lawyers, as a normative profession, are unique in exercising moral authority

448  Sida Liu based on their technical expertise concerning legal rules (Halliday 1985; 1987). This blurred boundary between the technical and moral aspects of their work not only gives lawyers advantages in political mobilisation (Halliday and Karpik 1997) but also goes to the heart of their professional identity. As soon as the technical toolkit becomes a moral one, however, it acquires ideological power and imposes normative constraints on lawyers. Legal procedures lead to proceduralism, constitutional norms produce the rule of law, civil and political rights are framed as human rights, anti-discrimination laws become equal justice, and so on. These legal ideologies are not only acclaimed in public discourses but also inscribed in lawyers’ everyday practice. To a large extent, to ‘think like a lawyer’ is to embrace the normative values of equality, human rights, proceduralism, and the rule of law, regardless of how these terms are defined (Merry 2006; Ohnesorge 2007; Cheesman 2014; Krygier 2016). Despite the variations of legal systems and professions across jurisdictions, the striking fact is that lawyers from vastly different social, cultural, and political backgrounds share a broad consensus on values, at least nominally. Consequently, when violations of core legal ideologies such as human rights or the rule of law occur in practice, lawyers feel compelled to take a stand. As Halliday et al (2007; 2012) demonstrate through a large number of comparative and historical studies, the political mobilisation of lawyers, judges, prosecutors, and legal academics is often driven by their commitment to basic legal freedoms, civil society, and the moderate state, all of which are closely associated with the normative values of legal rules. Similarly, the ‘causes’ that mobilise cause lawyers (Sarat and Scheingold 1998; 2001; Marshall and Hale 2014) include a large variety of rights, yet they share ideologies of equality and social justice. Even for routine legal practitioners who do not participate in collective action, resisting or mitigating rule violations by clients or state officials remains an everyday activity, perhaps one of the most important tasks they perform (see examples from national reports, eg Bernard-Maugiron and Omar Vol 1, ch 28; Böhmer Vol 1, ch 18; Crouch Vol 1, ch 39; Liu Vol 1, ch 35; Villalonga Vol 1, ch 20). But lawyers do not blindly acquiesce in rules and the law’s normative values. They are also experts in bending the rules. The myths and ceremonies of rights, equal justice, and proceduralism are often decoupled from the actual practice of law, as documented extensively by sociolegal scholars (eg Scheingold [1974] 2004; Galanter 1974; Silbey 2005). In contrast to ordinary citizens who usually stand ‘before the law’ or ‘against the law’, lawyers are by definition ‘with the law’ (Ewick and Silbey 1998). If law is a complex and inescapable game, lawyers are its masters because they have mastered its rules. They identify the gaps and holes in the legal system and serve their clients’ interests by manipulating those gaps. The best lawyers and judges know that law is not the ‘vending machine’ Weber (1954) once imagined; they know how to navigate the complex system of law, using rules flexibly and creatively to solve problems. Legal expertise lies as much in the practical experience of rule-bending as in the academic knowledge of rules learned from law school textbooks (Parker and Rostain 2012). The moral toolkit of rules, therefore, is a double-edged sword. On one hand, it binds lawyers to the normative values associated with law, such as equality or proceduralism. On the other, lawyers who bend or break the rules for the benefit of clients or themselves are promptly condemned as villains by the public. The proliferation of lawyer jokes in the United States (Galanter 2006) is clear evidence of the negative consequences of lawyers’ moral toolkit on their public image. Characterisations of lawyers as ‘hired guns’ and ‘devil’s advocates’ are persistent themes in the English-speaking world. On the other side of the globe, ever since Imperial China, lawyers have been known as both ‘litigation masters’ and ‘litigation ­hooligans’ (Macauley 1998), another example of this double-edged sword.

Between Rules and Power  449 Do other professions have a moral toolkit? Texts are arguably moral toolkits for the clergy of every religion, but their authority is more traditional or charismatic (Weber 1954). For less normative professions like doctors, engineers, or accountants, however, the moral content of their technical toolkits (eg medical equipment or auditing software) is much less pronounced (Halliday 1985; Hanlon 1994; Bechky 2003). Another interesting case is economists, who have successfully converted the highly rational and technical neoclassical economics into the globally influential moral toolkit of neoliberalism (Fourcade 2009). The question is, do mathematical equations and statistics imbue economists with the kind of ‘inner morality’ (Fuller 1969) that statutes and judicial decisions embody for lawyers? Despite the growing seductive power of quantitative indicators (Merry 2016), it is unlikely that numbers will ever acquire the weight of moral authority enjoyed by legal rules, which mirror a society’s customs and morality (Tamanaha 2001). III.  POWER: AN UNRULY RIVER

If rules are a toolkit for lawyers, then power is an unruly river in which lawyers swim. The practice of law is inherently political, and no lawyer, even the most apolitical, can escape the influence of state power. The only question is where to stand in this river, especially when it is in spate. Some lawyers go with the flow, others try to stand still, and a few swim upstream against it. Although lawyers are often portrayed in the sociolegal literature as vanguards championing basic legal freedoms and other causes against state power (Halliday and Karpik 1997; Halliday et al 2007; 2012; Marshall and Hale 2014), in most places and times, only a small fraction of the legal profession engages in such an upstream struggle (Liu and Halliday 2016). Therefore, a sociological understanding of the relationship between lawyers and power must transcend the one-sided view limited to ‘cause lawyers’ (Sarat and Scheingold 1998; 2001; Marshall and Hale 2014), ‘lawyers and political liberalism’ (Halliday and Karpik 1997), or ‘lawyers as compradors’ (Dezalay and Garth 2002; 2010) and investigate the dynamic and multifaceted interaction. Any theoretical presumption about lawyers’ political orientations is empirically problematic. What does power mean for lawyers? This seemingly basic question has no simple answer. Even before postmodern theorists like Foucault ([1975] 1977) disaggregated power from its monopoly by the state, lawyers had to make complex choices when confronting the powerful and omnipotent Leviathan. Lawyers enjoy ample opportunities to engage the modern state, either by direct participation in its politics and bureaucracy (Crouch Vol 1, ch 39; Villalonga Vol 1, ch 20) or through a ‘political embeddedness’ (Michelson 2007) in which lawyers operate outside the state apparatus while benefiting from proximity to power. The symbolic power of law in legitimising and consecrating the state (Bourdieu 1987) can only be exercised through the work of many notable and grassroots lawyers in legislation, law enforcement, and the judicial process. The symbiotic exchange of power and resources between lawyers and state officials in everyday legal work (Liu 2011) further strengthens the legal profession’s ties to the state. Yet not all lawyers are willing to place their knowledge at the service of power (Halliday 1987) or become parasites of the Leviathan. Arbitrariness, an inherent element of state power, is a natural enemy of the rule of law (Cheesman 2014). Lawyers are among the most sensitive professional groups when the state abuses its power by violating citizens’ civil and political rights, eroding legal institutions and proceduralism, or repressing civil society and the public sphere (Halliday and Karpik 1997). This sensitivity derives not only from their structural

450  Sida Liu proximity to power but also from their faith in rules and the morality they express (Fuller 1969). As a result, activist lawyers are often found in the frontlines of battles against arbitrary state power (Bernard-Maugiron and Omar Vol 1, ch 28; Gobe Vol 1, ch 33; Hsu Vol 1, ch 41). Although only a limited number participate in political mobilisation, they constitute a critical mass that guards some of the most fundamental values of the legal profession and the larger political society, sometimes at the risk of their own careers, liberty, or even lives. For the majority of lawyers, however, it is neither desirable nor possible to be an intimate or adversary of the state. Political embeddedness is a privilege not enjoyed by every member of the legal profession. Although many lawyers hope to forge connections with powerful judges or government officials, only some succeed. It takes not only courage but also resources and political opportunity to become an activist lawyer who devotes much of her practice to challenging the state. For most ordinary practitioners, it is more realistic to focus on their clients and earn a living than to participate in collective action for a political cause. There is nothing ignoble about putting work and clients first, even in turbulent times when politics dominates public life. But how do individual lawyers relate to state power? To a large extent, it is not a matter of choice but a result of their lives, career histories and structural positions in the profession. Lawyers from privileged social backgrounds and elite law schools are far more likely to get close to the state because they share similar habitus and capital with politicians and bureaucrats, with whom they have formal or informal network ties (Dezalay and Garth 2002; Liu 2011). The social elite in many countries pass through the revolving door between lawyers and politicians. By contrast, lawyers from less privileged social and educational backgrounds are more likely either to refrain from politics or to engage in activism against the state. For those cause lawyers (Marshall and Hale 2014) who oppose power and actively mobilise for social change, the causes they champion often are related to their earlier life or work experiences. Growing up in a marginalised ethnic group, participating in a student movement, handling a case of police brutality, or suffering from a public health crisis can all shape lawyers’ political consciousness and make them ‘enemies’ of the state. Even elite lawyers can become activists because of some triggering experience. There are exceptions to those general patterns. Progressive elite lawyers may join or even lead the fight against arbitrary power, and routine practitioners can become parasites of the state. The agency of individual lawyers cannot be neglected when they pursue different paths in the river of power. Furthermore, the state is not a monolithic actor but a large, complex organisation with numerous politicians and bureaucrats occupying various positions in the Leviathan’s body and arms. Some lawyers fight with one branch of the state against another. Others may engage in politics to overthrow the entire regime. Yet others may oscillate strategically between different positions vis-à-vis the state to maximise their advantage or simply survive (Liu and Halliday 2019). There is no magic formula for explaining or predicting a lawyer’s stance towards state power in a specific time and place. What about non-state sources of power? In recent decades, sociological understanding of power has shifted from the state’s monopoly towards more pervasive and symbolic forms of power, such as disciplinary power (Foucault [1975] 1977) or the power of naming and form (Bourdieu 1987). Lawyers are arguably key actors wielding the disciplinary and symbolic power of law, both in legal institutions like courts and legislatures and in more mundane places of law in everyday life. Despite the determination of many contemporary sociolegal scholars to locate ‘commonplace legality’ in non-legal social contexts such as organisations, neighbourhoods, and schools (Ewick and Silbey 1998), it is hard to exclude lawyers from even the most obscure corners of social life. As Heinz and Laumann ([1982] 1994) demonstrate, the

Between Rules and Power  451 social structure of the Chicago bar closely mirrors the environments in which lawyers serve their clients. Lawyers are not only gatekeepers of the legal system (Kritzer 1997; Michelson 2006) but also power brokers in a wide variety of organisational and social contexts, including schools, hospitals, communities, and businesses. There are at least three ways in which lawyers facilitate the exercise of disciplinary and symbolic power. First, they act as a Weberian traditional authority to ‘sanctify’ policies, agreements, and settlements (Flood 2007). This power of ‘consecration’ (Bourdieu 1987) is observed not only in courts and legislative chambers but also in many other corporate and personal transactions. Second, lawyers develop and popularise legal discourses and shape the legal consciousness of ordinary people. This symbolic power of language stems from professional expertise but extends far beyond the courtroom (Fitzpatrick 1992; Conley et al 1998; Mertz 2007; Ng 2009). Third, lawyers help construct and maintain systems of discipline, surveillance, and social control through which power is diffused throughout everyday life (Fournier 1999; Karakatsanis 2014). Although such systems are driven primarily by technological and organisational innovations, the agency of lawyers is critical for legitimising and enforcing them. Furthermore, the role of lawyers in legitimising power transcends law’s symbolic and disciplinary dimensions and its relation to the state. Law is power. It is one of the most profoundly consecrated parts of the state apparatus and, in most societies, an inherent element of the social fabric. The legal system is, in Luhmann’s (2004) words, operationally closed but cognitively open. Law’s power lies in its autonomous ability to define the boundaries of the legal system and what actors and information can attain through them. However, as a systems theorist, Luhmann sees law as ‘a historical machine’ (2004: 91), ignoring the prominent role of actors, especially lawyers, in managing communications between the legal system and its social environment. As power flows in and out of this historical machine, lawyers gain authority and prestige as its key brokers. Therefore, once the sources of power are extended from the state to other spheres of social life, the relationship between lawyers and power becomes more complex and subtle. To elaborate the analogy of the river, power without the state is like a boundless ocean, which lawyers must navigate without a compass. Nevertheless, lawyers can still build lighthouses, amplify or quiet the waves, or even adjust the salt level. They are neither heroes nor villains in this ocean but rather invisible hands who mediate the flow of power through a variety of social entities, such as families, schools, neighbourhoods, markets, non-profits, and international organisations. In this ceaseless flow, even the most ordinary legal practitioners are agents of power, regardless of their political orientations. IV.  BETWEEN RULES AND POWER

If rules are a toolkit and power is a river, how do lawyers navigate? Many legal rules are designed to constrain power but, as an ancient Chinese saying goes, ‘laws do not walk themselves’. It is the task of lawyers to use rules to check the abuse of power by state and non-state actors. As experts on rules, however, lawyers also know how to bend them. The enforcement of laws is often selective and unequal (Galanter 1974; Auerbach 1976). The key question, accordingly, is how lawyers’ proximity to power influences their choices in the application of rules. Oddly, this is almost uncharted territory in the sociology of the legal profession. To tackle this question, let me begin by comparing lawyers with ‘street-level bureaucrats’ such as police officers. Although street-level bureaucrats are less prestigious than higherlevel functionaries, they sometimes have more power and discretion in their daily work

452  Sida Liu (Lipsky [1980] 2010). It is far more common to observe power abuses by grassroots police officers than those by provincial or municipal police chiefs, who work under greater structural constraints and public scrutiny. Similarly, legal ethics studies find that corporate lawyers in large, prestigious firms are more rule-abiding than solo practitioners and small-firm lawyers, who are under greater pressure to make ends meet (Smigel 1969; Levin 2004). In other words, ‘street-level’ lawyers are considered less ethical. This is why bar associations usually leave the ethics of corporate law firms in their own hands while enforcing ethical rules on the rest of the profession (Auerbach 1976; Abel 1989). Yet this argument is based more on belief than empirical evidence. The prestige of corporate law helps elite lawyers secure more autonomy from professional association than other sectors of the bar enjoy, but it does not make them less likely to bend the rules (Nelson 1988; Flood 2013). The transactional nature of corporate law provides ample opportunities for lawyers to take advantage of legal loopholes for the benefit of their clients (Liu 2006; Dinovitzer et al 2014; Moorhead and Hinchly 2015). By contrast, criminal defence lawyers or personal injury lawyers, though less prestigious than lawyers specialising in transactional work, must follow strict and visible procedural rules in the judicial process (Kritzer 1990; Shapiro 2002). No empirical evidence suggests that they are less rule-abiding than corporate lawyers who rarely appear in court. In other words, the type of practice is probably not the most significant factor for explaining lawyers’ conformity to rule. Based on this analysis of lawyers’ relations to rules and power, I present an alternative proposition, that lawyers’ obedience to rules varies with their proximity to state power. Echoing Black’s (1976) classic proposition about law and relational distance, I argue that there is a curvilinear relationship between lawyers’ proximity to state power and the likelihood that they will strictly follow legal rules. Lawyers who are very close or very far from state power tend to be less rule-abiding than lawyers who maintain a moderate social distance from the state. To elaborate on this proposition, it is necessary to take a closer look at how politically embedded lawyers, activist lawyers, and routine legal practitioners deal with rules and power (Liu and Halliday 2011). The extreme case is arguably lawyers employed by the state as public servants, such as legislators, judges, and prosecutors. Their job is to make or enforce rules on behalf of state power. When laws oppose the interests of political leaders, political parties or the state apparatus, these government-employed lawyers are the first gatekeepers against the flood of power. Nevertheless, they are probably not the strongest gatekeepers because their professional interests are aligned with those of the state. Public defenders, for instance, are frequently criticised for not asserting the most rigorous defence for criminal defendants (Mounts 1982; Taylor-Thomson 1995). Prosecutors pride themselves on being servants of justice, yet they assist the government in its campaigns and ‘wars’ against crime (Abel 2018). As a result, rules are sometimes enforced loosely or selectively by these state-employed lawyers. Even lawyers not employed by the state may be influenced in applying legal rules by proximity to power. Favouring the state is a priority, even a necessity, in the practice of politically embedded lawyers whose income and prestige depend on symbiotic exchanges with powerful state actors (Michelson 2007; Liu 2011). For example, corporate lawyers who specialise in cross-border transactions often act as informal agents of state overseas economic expansion, either by representing state-owned enterprises or by facilitating state-led foreign investments (Trubek et al 1994; Dezalay and Garth 2002; Liu and Wu 2016). Although they rarely break rules explicitly, favourable applications of corporate law on behalf of the state are prevalent in the work of these elite professionals (Liu 2006), making them not only agents of globalisation (Flood 2007; Silver et al 2009) but also legal colonialists and ‘lawyer compradors’ (Dezalay and Garth 2002) for nation states.

Between Rules and Power  453 Rule bending or breaking by politically embedded lawyers is commonly observed in more local contexts as well (Kritzer 1990; 2004; Shapiro 2002). The gatekeeping function of lawyers screening clients in and out of ordinary litigation entails the bending of rules because it applies the law selectively. When a potential lawsuit threatens a powerful government agency or a political leader, there are strong incentives for politically embedded lawyers to screen out the case (Michelson 2006). Even when they take such cases, it is less likely that the law will be applied strictly. More often than not, politically embedded lawyers leverage their connections to state officials to gain favourable outcomes for their clients, sometimes by bending or breaking the law. These ‘pragmatic brokers’ (Liu and Halliday 2011) between clients and the state are found throughout the world, but few studies have examined how they use legal rules to facilitate power and exchange between state officials and litigants. It is accepted wisdom that rules are overshadowed by political connections (Michelson 2007). However, rules and political embeddedness are not oil and water. They can be immiscible, but it is also common for pragmatic brokers to use rules or modify them to serve client interests or state demands. Whereas politically embedded lawyers bend rules to get closer to power, activist lawyers break rules to challenge or escape from power. These lawyers may consider laws to be unjust, harmful, or simply unenforceable. Classic examples are human rights activists who resist the violation of basic legal freedoms by state authorities (Halliday and Karpik 1997; Hajjar 1997; Fu and Cullen 2008; Pils 2015; Hsu Vol 1, ch 41). Their work does not end with curbing the abuse of power. Instead, human rights lawyers often advocate reform of rules that are inadequate to protect the civil and political rights of their clients and themselves. For them, rule-breaking is a path to a better legal and political future, even if it turns out to be dangerous and self-destructive. Not all activist lawyers are willing or able to take such risks in flouting the law, nor are they all so extreme in their political agenda (Fu and Cullen 2011). Many lawyers believe not only in their causes but also in the legitimacy of the legal system. Their goal is to change society, not necessarily specific legal rules (Marshall and Hale 2014). In other words, an activist lawyer is not necessarily a rule-breaker or rule-bender. Instead, some lawyers become activists out of fidelity to rules and procedures, which make them particularly sensitive when powerful actors and organisations break the law. Yet when these lawyers mobilise for social or political change, they sometimes find themselves in a paradoxical position: should they stay within legal boundaries or pursue more aggressive strategies at the risk of transgressing them? The spectrum of choices between obeying and defying rules has profound implications for understanding lawyer activism. For the most radical activists, unjust or obsolete laws obstruct social change and must be modified or abolished, even at the risk of undermining judicial authority or public faith in the legal system. For more moderate activists, by contrast, maintaining the power and authority of law is the premise of their actions. That is why some lawyers would argue passionately for a political cause in a legislature or court but would not join street protests, let alone resort to violence to push for change (Lee 2017). The moral toolkit of legal rules is a normative constraint on their political mobilisation. Nevertheless, there are always radical activist lawyers audacious enough to flout the law, out of despair or as a result of harsh state repression (Liu and Halliday 2016; 2019). What about ordinary legal practitioners who focus on routine legal work rather than politics? In comparison to politically embedded or activist lawyers, they have fewer incentives to break the law to serve or challenge state power. Despite the derogatory stereotypes of ‘ambulance chasers’ (Auerbach 1976) or ‘justice brokers’ (Kritzer 1990), routine practitioners usually maintain a moderate social distance from the state and, consequently, are better placed

454  Sida Liu to follow legal rules without too much interference by power and politics. Ethical problems do arise in ordinary litigation, yet they are more likely to reflect economic or social factors (eg lack of cash or resources, see Seron 1996; Levin 2004) rather than capitulation or resistance to state power. It would be wrong to assume, however, that routine practitioners have no relationship to the state. On one hand, state power is pervasive in contemporary societies, and no lawyer can escape it. Even the least political practitioners are influenced by government policies and decisions. On the other, avoiding or deflecting state power is itself a political action. The decision to avoid politics would make the application of rules a more technical matter, but the lack of political ties might reduce the lawyer’s capacity to leverage legal rules to solve problems. After all, the support of state officials is often crucial for the effective implementation of law. To what extent do lawyers’ position between rules and power create unique dilemmas? As the COVID-19 pandemic tragically reminds us, medical practice also can be significantly influenced by power and politics. Nevertheless, it is harder for state power to intrude into a physician’s treatment or a surgeon’s operating room. This workplace autonomy is what Freidson (1970) identifies as the foundation of professionalism. However, it is probably more difficult for lawyers to separate the technical and political dimensions of their practice than for doctors to do so, because the enactment and application of legal rules are inherently more political than medical diagnosis and treatment. By the same token, it is easier for lawyers to take advantage of this blurred boundary between the technical and the political to bend the rules in order to serve or resist power (Halliday 1987). It is also illuminating to compare lawyers and the clergy. Like lawyers, the clergy is a profession whose expertise is normative and based on the interpretation and application of texts. Yet there is a fundamental difference. Laws are made by the state, whereas the Bible and the Quran claim divine inspiration. To perform their professional work, monks, imams, rabbis, ministers or priests do not always rely upon state power. For lawyers, however, the system of rules would collapse if it were not endorsed and enforced by the state. Consequently, lawyers are more sensitive to state power when applying legal rules than the clergy are in interpreting religious scripts. V. CONCLUSION

This chapter began with a quotation from Max Weber (1954: 299) on lawyers, rules, and power. What Weber calls ‘the “rule-boundedness” of the social order’ may be a precursor of the rule-of-law ideal championed by many legal professionals and politicians a century later (Ohnesorge 2007; Krygier 2016). Yet the legal profession’s maintenance of this so-called ‘ruleboundedness’ is not a simple choice between order and liberty or between ‘authoritarian or the anti-authoritarian powers’ as Weber put it. It is rather a complex and everyday balancing act between the toolkit of rules and the river of power. Rules are lawyers’ most potent technical weapon as well as their heaviest moral burden. They enable lawyers to serve or resist state power, but they also constrain lawyers’ political mobilisation by limiting the scope of individual or collective action. Power, by contrast, is both lawyers’ best friend and bitterest foe. It gives lawyers the capacity to use their legal expertise to mobilise the state on behalf of their clients, but it also poses the constant threat of abuse of rules and proceduralism by the state and its officials. This juxtaposition of rules and power makes the practice of law distinctive among the professions, most of which are not as close as lawyers to rules and power. Recognising this

Between Rules and Power  455 uniqueness offers a new starting point for advancing the sociology of professions, which, since the mid-twentieth century, has focused far more on the similarities of professions than their differences. Finding a special place for lawyers in this small and stagnant area of sociology is not to claim any superiority for the legal profession over others but merely to resist sociologists’ temptation to overgeneralise from specific cases. The task of social science, after all, is not to seek universal truth but to understand and appreciate the complexity and messiness of social life, even for its best organised and most rational professions. REFERENCES Abbott, A (1988) The System of Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). Abel, RL (1988) The Legal Profession in England and Wales (Oxford, Blackwell). —— (1989) American Lawyers (New York, Oxford University Press). —— (2018) Law’s Trials: The Performance of Legal Institutions in the US ‘War on Terror’ (New York, Cambridge University Press). Abel, RL and Lewis, PSC (eds) (1989) Lawyers in Society: Vol 3 Comparative Theories (Berkeley, University of California Press). Alford, WP, Chin, C, Cecere, LA and Johnson, E (eds) (2007) Raising the Bar: The Emerging Legal Profession in East Asia (Cambridge, Harvard University Press). Auerbach, JS (1976) Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press). Bechky, BA (2003) ‘Object Lessons: Workplace Artifacts as Representations of Occupational Jurisdiction’ 109 American Journal of Sociology 720–52. Becker, HS (1962) ‘The Nature of a Profession’ in Education for the Professions (Chicago, National Society for the Study of Education) 27–47 (Reprinted in Becker, HS (1970) Sociological Work (Chicago, Aldine) 87–103. Black, D (1976) The Behavior of Law (New York, Academic Press). Blok, A, Lindstrøm, MS, Meilvang, MS, and Pedersen, IK (2019) ‘Ecologies of Boundaries: Modes of Boundary Work in Professional Proto-Jurisdictions’ 42 Symbolic Interaction 588–617. Bourdieu, P (1987) ‘The Force of Law: Toward a Sociology of the Juridical Field’ 38 Hastings Law Journal 805–53. Brock, DM, Leblebici, H, and Muzio, D (2014) ‘Understanding Professionals and their Workplaces: The Mission of the Journal of Professions and Organization’ 1 Journal of Professions and Organization 1–15. Carlin, JE (1962) Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick, NJ, Rutgers University Press). Cheesman, N (2014) ‘Law and Order as Asymmetrical Opposite to the Rule of Law’ 6 Hague Journal on the Rule of Law 96–114. Conley, JM, O’Barr, WM and Riner, RC (1998) Just Words: Law, Language, and Power (Chicago, University of Chicago Press). Dezalay, Y, and Garth, BG (2002) The Internationalization of Palace Wars: Lawyers, Economists and the Transformation of Latin-American States (Chicago, University of Chicago Press). —— (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). Dingwall, R and Lewis, P (eds) (1983) The Sociology of Professions: Lawyers, Doctors and Others (New York, Macmillan). Dinovitzer, R, Gunz and H Gunz, S (2014) ‘Unpacking Client Capture: Evidence from Corporate Law Firms’ 1 Journal of Professions and Organization 99–117. Durkheim, E ([1895] 1982) The Rules of Sociological Method (trans WD Halls) (New York, Free Press).

456  Sida Liu Ehrlich, E ([1913] 2017) Fundamental Principles of the Sociology of Law (trans WL Moll) (New York, Routledge). Ewick, P and Silbey, SS (1998) The Common Place of Law: Stories from Everyday Life (Chicago, University of Chicago Press). Evetts, J (2003) ‘The Sociological Analysis of Professionalism: Occupational Change in the Modern World’ 18 International Sociology 395–415. Fitzpatrick, P (1992) The Mythology of Modern Law (London, Routledge). Flexner, A ([1915] 2001) ‘Is Social Work a Profession?’ 11 Research on Social Work Practice 152–65. Flood, J (2007) ‘Lawyers as Sanctifiers: The Role of Elite Law Firms in Business Transactions’ 14 Indiana Journal of Global Legal Studies 35–66. —— (2013) What Do Lawyers Do? An Ethnography of a Corporate Law Firm (New Orleans, Quid Pro Books). Foucault, M ([1975] 1977) Discipline and Punish: The Birth of the Prison (trans A Sheridan) (New York, Vintage Books). Fourcade, M (2009) Economists and Societies: Discipline and Profession in the United States, Britain, and France, 1890s to 1990s (Princeton, Princeton University Press). Fournier, V (1999) ‘The Appeal to “Professionalism” as a Disciplinary Mechanism’ 47 Sociological Review 280–307. Freidson, E (1970) Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York, Dodd Mead). —— (2001) Professionalism: The Third Logic (Chicago, University of Chicago Press). Fu, H and Cullen, R (2008) ‘Weiquan (rights protection) Lawyering in an Authoritarian State: Building a Culture of Public-Interest Lawyering’ 59 China Journal 111–27. —— (2011) ‘Climbing the Weiquan Ladder: A Radicalizing Process for Rights-Protection Lawyers’ 205 China Quarterly 40–59. Fuller, LL (1969) ‘The Morality that Makes Law Possible’ in The Morality of Law (rev ed) (New Haven, Yale University Press). Galanter, M (1974) ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ 9 Law & Society Review 95–160. —— (2006) Lowering the Bar: Lawyer Jokes and Legal Culture (Madison, University of Wisconsin Press). Gieryn, TF (1983) ‘Boundary Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists’ 48 American Sociological Review 781–95. Gorman, EH and Sandefur, RL (2011) ‘“Golden Age”, Quiescence, and Revival: How the Sociology of Professions Became the Study of Knowledge-Based Work’ 38 Work and Occupations 275–302. Hajjar, L (1997) ‘Cause Lawyering in Transnational Perspective: National Conflict and Human Rights in Israel/Palestine’ 31 Law & Society Review 473–504. Halliday, TC (1985) ‘Knowledge Mandates: Collective Influence by Scientific, Normative, and Syncretic Professions’ 36 British Journal of Sociology 421–47. —— (1987) Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago, University of Chicago Press). Halliday, TC and Karpik, L (eds) (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries (Oxford, Clarendon Press). Halliday, TC, Karpik, L and Feeley, MM (eds) (2007) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). —— (2012) Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press). Hanlon, G (1994) The Commercialisation of Accountancy: Flexible Accumulation and the Transformation of the Service Class (London, MacMillan). Heinz, JP and Laumann, EO ([1982] 1994) Chicago Lawyers: The Social Structure of the Bar (rev ed) (Evanston, IL, Northwestern University Press). Hughes, EC (1994) On Work, Race, and the Sociological Imagination (ed LA Coser) (Chicago, University of Chicago Press).

Between Rules and Power  457 Johnson, TJ (1972) Professions and Power (London, Macmillan). Karakatsanis, A (2014) ‘Policing, Mass Imprisonment, and the Failure of American Lawyers’ 128 Harvard Law Review Forum 253–67. Karpik, L (1999) French Lawyers: A Study in Collective Action, 1274 to 1994 (trans N Scott) (Oxford, Clarendon Press). Kay, F and Gorman, E (2008) ‘Women in the Legal Profession’ 4 Annual Review of Law & Social Science 299–332. Krause, EA (1996) Death of the Guilds: Professions, States, and the Advance of Capitalism, 1930 to the Present (New Haven, Yale University Press). Kritzer, HM (1990) The Justice Broker: Lawyers and Ordinary Litigation (New York, Oxford University Press). —— (1997) ‘Contingency Fee Lawyers as Gatekeepers in the Civil Justice System’ 81 Judicature 22–29. —— (2004) Risks, Reputations, and Rewards: Contingency Fee Legal Practice in the United States (Stanford, Stanford University Press). Krygier, M (2016) ‘The Rule of Law: Pasts, Presents, and Two Possible Futures’ 12 Annual Review of Law and Social Science 199–229. Lamont, M (1992) Money, Morals, and Manners: The Culture of the French and American UpperMiddle Class (Chicago, University of Chicago Press). —— (2000) The Dignity of Working Men: Morality and the Boundaries of Race, Class, and Immigration (New York, Russell Sage Foundation and Cambridge, Harvard University Press). Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Lee, MYK (2017) ‘Lawyers and Hong Kong’s Democracy Movement: From Electoral Politics to Civil Disobedience’ 25 Asian Journal of Political Science 89–108. Levin, LC (2004) ‘The Ethical World of Solo and Small Law Firm Practitioners’ 41 Houston Law Review 309–92. Lipsky, M ([1980] 2010) Street-Level Bureaucracy: Dilemmas of the Individual in Public Service (New York, Russell Sage Foundation). Liu, S (2006) ‘Client Influence and the Contingency of Professionalism: The Work of Elite Corporate Lawyers in China’ 40 Law & Society Review 751–82. —— (2011) ‘Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market’ 206 China Quarterly 276–93. —— (2015) ‘Boundary Work and Exchange: The Formation of a Professional Service Market’ 38 Symbolic Interaction 1–21. —— (2018) ‘Boundaries and Professions: Toward a Processual Theory of Action’ 5 Journal of Professions and Organization 45–57. Liu, S and Halliday, TC (2011) ‘Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers’ 45 Law & Society Review 831–65. —— (2016) Criminal Defense in China: The Politics of Lawyers at Work (New York, Cambridge University Press). —— (2019) ‘The Ecology of Activism: Professional Mobilization as a Spatial Process’ 56 Canadian Review of Sociology 452–71. Liu, S and Wu, H (2016) ‘The Ecology of Organizational Growth: Chinese Law Firms in the Age of Globalization’ 122 American Journal of Sociology 798–837. Luhmann, N (2004) Law as a Social System (trans KA Ziegert) (New York, Oxford University Press). Macauley, M (1998) Social Power and Legal Culture: Litigation Masters in Late Imperial China (Stanford, Stanford University Press). Marshall, A-M and Hale, DC (2014) ‘Cause Lawyering’ 10 Annual Review of Law and Social Science 301–20. Merry, SE (2006) Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago, University of Chicago Press).

458  Sida Liu —— (2016) The Seductions of Quantification: Measuring Human Rights, Gender Violence, and Sex Trafficking (Chicago, University of Chicago Press). Mertz, E (2007) The Language of Law School: Learning to ‘Think like a Lawyer’ (New York, Oxford University Press). Michelson, E (2006) ‘The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work’ 40 Law & Society Review 1–38. —— (2007) ‘Lawyers, Political Embeddedness, and Institutional Continuity in China’s Transition from Socialism’ 113 American Journal of Sociology 352–414. Millerson, G (1964) The Qualifying Associations: A Study in Professionalization (London, Routledge). Moorhead, R and Hinchly, V (2015) ‘Professional Minimalism? The Ethical Consciousness of Commercial Lawyers’ 42 Journal of Law and Society 387–412. Mounts, SE (1982) ‘Public Defender Programs, Professional Responsibility, and Competent Representation’ 1982 Wisconsin Law Review 473–533. Nelson, RL (1988) Partners with Power: The Social Transformation of the Large Law Firm (Berkeley, University of California Press). Ng, KH (2009) The Common Law in Two Voices: Language, Law, and the Postcolonial Dilemma in Hong Kong (Stanford, Stanford University Press). Ohnesorge, JKM (2007) ‘The Rule of Law’ 3 Annual Review of Law and Social Science 99–114. Olgiati, V (2010) ‘The Concept of Profession Today: A Disquieting Misnomer?’ 9 Comparative Sociology 804–42. Parker, C and Rostain, T (2012) ‘Law Firms, Global Capital, and the Sociological Imagination’ 80 Fordham Law Review 2347–81. Pils, E (2015) China’s Human Rights Lawyers: Advocacy and Resistance (New York, Routledge) Raz, J (1972) ‘Legal Principles and the Limits of Law’ 81 Yale Law Journal 823–54. Rueschemeyer, D (1973) Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and in the United States (Cambridge, Harvard University Press). —— (1989) ‘Comparing Legal Professions: A State-Centered Approach’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol 3 Comparative Theories (Berkeley, University of California Press) 289–321. Sarat, A and Felstiner, WLF (1995) Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (New York, Oxford University Press). Sarat, A and Scheingold, S (eds) (1998) Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press). —— (2001) Cause Lawyering and the State in a Global Era (New York, Oxford University Press). Scheingold, SA ([1974] 2004) The Politics of Rights: Lawyers, Public Policy, and Political Change (Ann Arbor, University of Michigan Press). Seron, C (1996) The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia, Temple University Press). Shapiro, SP (2002) Tangled Loyalties: Conflict of Interest in Legal Practice (Ann Arbor, University of Michigan Press). Silbey, SS (2005) ‘After Legal Consciousness’ 1 Annual Review of Law and Social Science 323–68. Silver, C (2001) ‘The Case of the Foreign Lawyer: Internationalizing the US Legal Profession’ 25 Fordham International Law Journal 1039–84. —— (2007) ‘Local Matters: Internationalizing Strategies for US Law Firms’ 14 Indiana Journal of Global Legal Studies 67–93. Silver, C, Phelan, NdeB and Rabinowitz, M (2009) ‘Between Diffusion and Distinctiveness in Globalization: US Law Firms Go Glocal’ 22 Georgetown Journal of Legal Ethics 1431–71. Smigel, EO (1969) The Wall Street Lawyer: Professional Organization Man? (Bloomington, Indiana University Press). Starr, P (1982) The Social Transformation of American Medicine (New York, Basic Books). Tamanaha, BZ (2001) A General Jurisprudence of Law and Society (New York, Oxford University Press). Taylor-Thompson, K (1995) ‘Individual Actor v Institutional Player: Alternating Visions of the Public Defender’ 84 Georgetown Law Journal 2419–71.

Between Rules and Power  459 Trubek, DM, Dezalay, Y, Buchanan, R and Davis, JR (1994) ‘Global Restructuring and the Law: Studies of the Internationalization of the Legal Fields and the Creation of Transnational Arenas’ 44 Case Western Law Review 407–98. Weber, M (1954) Max Weber on Law in Economy and Society (Cambridge, Harvard University Press). Wilensky, HL (1964) ‘The Professionalization of Everyone?’ 70 American Journal of Sociology 137–58. Wilkins, DB and Ferrer, MJE (2018) ‘The Integration of Law into Global Business Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global Legal Services Market’ 43 Law & Social Inquiry 981–1026.

460

20 Accountants versus Lawyers Comparing the Moneymen with the Monied (Gentle)men SUNDEEP AULAKH

I. INTRODUCTION

A

ccounting practices have long been integral to the progress of state and civil society (Walker 2019: 110; Carruthers and Espeland 1991; Free et al 2020), but an accounting profession emerged more recently (Edwards et al 2005). Coinciding with industrialisation and the ascendency of capitalism (Toms 2009; Willmott 1986), accountancy’s genesis is markedly different from the centuries-long evolution of the legal profession (Donahue 2012; Timberlake 1922; Boulton 1957). Law’s historical connections to the aristocracy and the courts in the UK (Elliott 1972) and its ‘considerable self-regulatory autonomy’ (Sugarman 1996: 118) helped position it as ‘the king of the professions’ (Glover and Hughes 2000). Indeed, inspired by the solicitors’ ‘professional mobility project’ (Larson 1977: 66), the chief accounting bodies in the UK modelled their professionalisation strategy on that of the Law Society (Napier and Noke 1992), but – unable to lay claim to an esoteric body of knowledge (Abbott 1988; Greenwood 1957) or undertake work seen as serving the public interest – failed to attain state licensure. They were, however, cajoled into settling for exclusive rights over the use of the ‘chartered accountant’ title (Chua and Poullaos 1993)1 and, via a series of ‘second-order privileges’,1 monopolistic provision of statutory auditing and insolvency services (Walker 2004a). Despite lacking the ‘main instrument of professional advancement’ (Larson 1977: 180), accounting practitioners had, by the millennium, become one of the most economically and politically powerful occupations in the world (Boussebaa and Faulconbridge 2019). This contrast between the professionalisation of accountancy and law forms the backdrop to this chapter, which focuses on comparing the transformation of the UK accountancy profession over the last three decades with solicitors in England and Wales (Abel 1999; 1989; Sommerlad et al Vol 1, ch 4). The chapter explains why elite firms from accountancy and law adopted different strategies despite facing similar exogenous pressures (Malhotra et al 2006; Muzio et al 2020). 1 Accountants secured a monopoly of practice by lobbying legislators to become exclusive providers whenever legislation mandated that an organisation validate its financial statements through an external auditor.

462  Sundeep Aulakh While the experience of accountants and lawyers in the UK is not typical,2 elite accounting firms took advantage of economic globalisation (Djelic and Quack 2018; Martin et al 2018) to introduce far-reaching reforms promoting a transnational market for accounting and auditing services, making them key players in the world economy (for detail, see Quack and Schüßler 2015; Arnold 2005; Suddaby et al 2007). Firms at the forefront of reforms liberalising the market for professional services were Deloitte, Ernst and Young (EY), KPMG, and PricewaterhouseCoopers (PwC). Known colloquially as the ‘Big Four’, their growth has been phenomenal. In little over two decades (1970–90), these modest-sized accounting practices had turned into global, multi-disciplinary entities offering a suite of ‘knowledge’ services (Peterson 2019). Operating across 155 countries (Kanda 2021) and employing close to 1.15 million people (Statista 2021c), these ‘macro actors’ (Ramirez 2009) not only control over a third of the world’s audit and accounting market (Kanda 2021: 8) but also determine the rules and standards by which accounting is practised globally (Ramirez et al 2015). While this chapter has referred to ‘accountancy’ or ‘the accountancy profession’ as though this were a single occupation, the field is bifurcated into two functional domains3 (Roslender 1992), each containing multiple sub-specialisations (eg see Goretzki and Messner 2019; Joyce 2014; Ó hÓgartaigh 2009; Baker 2018). Since each specialisation established its own entry routes (Paisey and Paisey 2014) and, represented by different professional bodies (Willmott 1986), pursued separate mobility projects (Anderson et al 2005; Walker 2004c; O’Regan 2013; Matthews 2017), accountancy possesses neither a collective identity nor a sense of a community among practitioners sharing common norms, values and beliefs (Goode 1957; Birkett and Evans 2005; Tomo 2019). It would therefore be misleading (Garth and Sterling 2018) to analogise ‘the accounting profession’ to the legal profession, which preserves a semblance of unity (Abel 1999; Francis 2005; Sommerlad 2007) despite great internal stratification. Consequently, this chapter focuses upon one practice area: external auditing. Aside from constituting the profession’s most prestigious specialisation,4 external auditing is of interest because it is inextricably tied to the professionalisation of accounting. Constituting the foundation on which accountancy based its claim to social status (Poullaos 2009), auditing elevated a nascent group of accountants into the ‘upper echelons’ of professional services in the UK (cf Maltby 2009: 230). It also became the most lucrative domain of practice during the latter part of the nineteenth century (Walker 2004b) and, over the following decades, facilitated the growth and reputation of progenitors of three of the Big Four firms (Cooper and Robson 2009). In fact, the size and stature of the Big Four are attributable to their audit work, specifically verifying the financial reports of the world’s largest multinational companies (Shore and Wright 2018). Auditing is also of interest because, from the moment they launched their professional projects (Baker 2014), auditor and solicitor firms became entangled in a complex relationship characterised as much by mutual dependency and

2 Take entity restrictions for example: Germany has always permitted lawyers and accountants to work in multidisciplinary partnerships, whereas this was first authorised in England and Wales by the Legal Services Act 2007. 3 They are financial reporting and auditing (Baker 2018; Richardson 2018) and management and cost accounting (Luft 2016; Goretzki et al 2013). Although both are concerned with recording, processing, and presenting quantitative information, the former analyses the financial performance of an organisation for external users, while the latter analyses an organisation’s operational costs and income for internal users, ie its managers (Roslender 1992). 4 The elite professional accounting bodies in the UK established a status dichotomy between themselves and competing accountants by ‘nurturing’ title-based exclusivity rights ‘as a hallmark of the provision of superior professional services’ (Walker 1991: 262).

Accountants versus Lawyers  463 collaboration as by rivalry. Indeed, Sugarman (1995: 169) contends that the fates of the two ‘are so intrinsically bound together that accountancy cannot cut loose the lawyers without cutting off its own head’. Furthermore, auditing constitutes the logical locus for comparison because it is accountancy’s sole domain subject to statutory regulation (Richardson 2018). A.  Structural Composition of Professional Service Fields5 Until the middle of the twentieth century, the structure of the professional accounting field was relatively stable. Insulated from external competition, accounting firms ‘were employed by a solid base’ of long-term clients, mostly public or private-sector organisations but also some individuals with complex financial affairs (Boyd 2004: 379). Most firms provided audit, accounting, and tax services to a local client base, but a few larger firms served a regional clientele (Matthews et al 1998). Still, with rules restricting partnerships to 20 members, ‘a sort of continuum existed between small and bigger firms’ (Ramirez 2009: 385). This changed with the repeal of the cap on the size of partnerships in 1967 (Morse 2002), which, combined with market dynamics and audit firms’ strategic responses (Malsch and Gendron 2013; Wyatt 2003), fundamentally altered the structure of the accountancy and audit professional fields in the UK. The formation of KPMG in 1987 ‘pushed’ the firm so far ahead of what were then the Big Eight that it ‘changed the field’s dynamics irreversibly’ (Fairclough and Fairclough 2012: 602; Wootton et al 2003). Seeing KPMG gain access to new clients and increase its revenues by 44 per cent, the Big Eight raced to announce which two would merge (ibid). Because of the actual and perceived advantages of size, they realised they would continue to merge until there were just five left in the elite group6 – though their identities remained an open question (Windsor and Warming-Rasmussen 2009). Following several more mergers and a bankruptcy, the Big Eight became the Big Four (Brooks 2018). As a result of these developments, the audit and accountancy field has been bifurcated into a small group of large firms and a large number of small and micro enterprises. As illustrated in Figure 1, just over 90 per cent of audit and accountancy practices in England and Wales employed fewer than ten people in 2019 (Office for National Statistics 2020a), and over 80 per cent billed less than £0.5 million in 2020 (Office for National Statistics 2020b). Conversely, less than 1 per cent of firms generated £5 million or more in fees (ibid). Although this elite group comprises only around 20 firms, they differ so much in size and status that they are further divided into the Big Four and the ‘second-tier’ (OECD 2009). While policymakers describe the latter as ‘challenger firms’ (FRC 2020b; BEIS 2019; CMA 2019), they pose a negligible competitive threat to the Big Four (Mor 2019).

5 Figures from the Office of National Statistics (ONS) relate to England and Wales for both the audit and the solicitors’ professions. Figures from the Financial Conduct Authority (FCA) and the Law Society of England and Wales (TLS) cover the UK and England and Wales respectively. This difference is attributable to the organisations collecting and compiling data. The equivalent to the TLS for the audit profession is the Institute of Chartered Accountants in England and Wales (ICAEW). However, the ICAEW does not compile data but rather relies on information collated by the FCA – the oversight regulator for auditing in the UK. Conversely, the oversight regulator for the legal professions in England and Wales – the Legal Services Board – does not collect data but relies on information from each frontline regulator. 6 Competition authorities were likely to prevent further mergers from taking place.

464  Sundeep Aulakh Figure 1  Audit and accounting practices by employment, England & Wales, 2019

7.8%

1%

0.8%

91.3% 0.1%

Micro (0 to 9)

Small (10 to 49)

Medium (50 to 249)

Large (250+)

Source: ONS (2020a).

Like their auditing counterparts, corporate law firms have also used mergers and acquisitions to compete (Galanter and Roberts 2008; Dinovitzer and Garth 2020; Lee 1992) but with less dramatic effect. Thus, whereas statutory audit is split between 20 elite firms and the rest, the solicitors’ profession is divided between an elite 200 and the other 9,000 or so (Flood 2011). Beyond this, however, the structure of the solicitors’ professional field differs from that of auditing in several ways. As depicted in Figure 2, just over 2 per cent of solicitor firms employ 45 per cent of solicitors in private practice (TLS 2020). By comparison, the Big Four employ less than 5 per cent of licensed auditors, ie practitioners approved to sign statutory audit reports by one of the frontline regulators (see Table 1). Firm demography is also different. Figure 3 depicts a 54 per cent decline in licensed audit firms between 2001 and 2019, whereas the solicitor firm population has changed very little. The loss of audit firms is attributable to the introduction of ‘better regulation’ reforms (OECD 2010; BEIS 2020). By exempting small entities from external audit,7 the new rules adversely affected small audit firms, which found it cumbersome to retain their audit registration in a contracting market and either merged with another entity or transferred their work to larger firms (FRC 2011: 24). Although this phenomenon is not unique to the UK (eg see Lander et al 2013; European Commission 2021b),8 it further exacerbates the high concentration of the audit market (see below). Some observers believe the field may become even more unbalanced as a result of recent advances in accounting software, which enable small firms’ traditional client-base to bring accounting functions in-house (Gardner and Bryson 2020; Susskind and Susskind 2017). However, other observers note the ways in which these organisations are adapting to market dynamics by cultivating specific client groups or operating in niche practice specialisations (eg, forensic accounting) (Dinev 2019; UTIC 2017).

7 To ease the regulatory burden on small and medium-sized entities, the audit exemption threshold increased from £350,000 to £1 million in July 2000 and has risen several more times. Under the current threshold, organisations are exempt from auditing if their annual turnover is less than £10.2 million. They must also meet one of two further criteria: possess assets under £5.1 million or employ fewer than 50 people (bit.ly/2K9STpx). 8 Regulatory reform in the Netherlands curtailed the number of small firms authorised to perform statutory audits because smaller firms found the cost of obtaining a new mandatory permit exorbitant (Lander et al 2013; see also Willekens et al 2019).

Accountants versus Lawyers  465 Figure 2  Solicitors employed in private practice by size of firm, 2019 60% 50% 40%

44%

43%

30%

30%

20%

22% 15%

10% 0%

8% Sole Practitioner

9% 2–4

2%10%

15% 1.4%

10–25

26–80

5–9

0… 81+

Number of Partners Solicitor Firms

Solicitors Employed in Private Practice

Source: TLS (2020).

Table 1  Number of Statutory Auditors/Responsible Individuals9 Number

Percent

PwC

324

1.4

KPMG

299

1.3

Deloitte

261

1.1

EY

210

0.9

Second and Third Tier Audit Firms

513

2.2

Other Audit Firms

21,315

93.0

Total

22,922

100.0

www.auditregister.org.uk/Forms/Statistics.aspx Figure 3  Demography of audit firms and solicitor practices, 2001–19 11,172

2001

9,251

7,457

2010

10,413

5,127

2019

9,339 0

2,000

4,000

6,000

Registered Audit Firms

8,000

Solicitor Practices

Sources: (FRC 2020a; 2011; 2002); (TLS 2011; 2020; 2002).

9 Refers

10,000

to individuals approved to sign audit reports (FRC 2020a).

12,000

466  Sundeep Aulakh To summarise, the structural transformation of the audit and accountancy field mirrors that of legal services (Sommerlad et al Vol 1, ch 4; Hanlon 1997; Abel 1999), although its effects have been more pronounced. By comparing a small group of super-elite solicitor practices with the Big Four, the following section reveals further differences. B.  Size Versus Status: The Big Four and the ‘Magic Circle’ The market for legal services is larger than that for accounting and audit services, both globally (UTIC 2017) and in the UK, where legal practices generated almost seven times more revenue in 2019 than audit and accountancy firms (Dinev 2020; Olivieri 2020a) (see Appendix, Table A1.1). Reinforcing law’s reputation as the ‘most lucrative’ profession (Glover and Hughes 2000), the profitability of corporate legal work ranges from high to very high (Williams 2019), with the highest-earning global practices extracting profit margins over 65 per cent (Bruch and Mayer 2017). Even though the inclusion of less profitable specialisations reduced the average profitability of UK law firms to 36 per cent in 2019 (Olivieri 2020b), the comparable figure for audit and accountancy firms in the UK is 55 per cent lower (Dinev 2020). Factoring in the effects of the pandemic increases the profitability gap to 72 per cent (Dinev 2021a; 2021b).10 In light of the disparity between the size and profitability of the legal services and auditing markets, it is surprising that the Big Four became the largest and most sophisticated global professional services firms (GPSFs) (Faulconbridge and Muzio 2017), without ‘parallel in any other profession’ (Boyd 2004: 380). Explaining this apparent paradox is the focus of this sub-section. Table 2  A profile of the Big Four, 2020 Global Revenue US$ billions(a) Deloitte

Audit & Accountancy Market Share (%) Global(b)

UK(c)

Global Headcount(d)

Offices(b)

Countries(b)

47.6

11

14

338,400

650

150

PwC

43.03

9

27

284,258

740

155

EY

37.20

8

13

298,965

700

150

29.22

7

11

226,882

700

155

157.05

35

65

1,148,505

KPMG Total

Sources: (a) Statista (2021a); (b) Kanda (2021); (c) Dinev (2021a); (d) Statista (2021c).

10 Average law firm profitability fell to 30 per cent and average profitability of audit firms to 14 per cent (Dinev 2021a; 2021b).

Accountants versus Lawyers  467 Table 3  A profile of the Magic Circle, 2020 Global Revenue US$ billions**

UK Legal Services Market Global Lawyer Share (%)* Headcount**

Offices**

Countries**

Clifford Chance

2.30

1.6

2,489

32

23

Allen & Overy

2.16

1.8

2,447

40

29

Linklaters

2.09

1.9

2,393

30

20

Freshfields

1.94

1.3

1,812

27

17

Slaughter & May

0.74

1.3

598

4

4

Total

9.23

8.0

9,739

Sources: * Dinev (2021b); ** Law.Com Firm Profiles.

Tables 2 and 3 give an overview of the size and scale of the Big Four accounting and ‘Magic Circle’ law firms in the UK. Constituting a super-elite analogous to Wall Street law firms (Oller 2019; Wald 2012), UK Magic Circle firms ‘look upon themselves as “luxury stores,” providing “top drawer” products for clients who are much more concerned about quality than with the effect of its cost on their pockets’ (Dezalay 1991: 54). Benefiting from the economic and social position of their client base (Heinz and Laumann 1982b), the Magic Circle’s expertise in specialisations crucial to the work of the financial services industry (Augar 2010) further bolsters their prestige (Flood 2015). Unsurprisingly, four of the Magic Circle are among the 20 largest grossing law firms in the world, with Clifford Chance in the top five (see The Global 200). However, despite commanding premium rates, the Magic Circle’s aggregate global fees are derisory compared to those of the Big Four, which in 2020 were 17 times greater.11 Moreover, compared with the Big Four’s 65 per cent control of the UK audit and accounting market, the Magic Circle’s market share is paltry (see Appendix, Figure A1.1). The disparity in size and profitability between elite firms from the two professions is the result of: (i) accountancy’s response to its historical anxiety over the legitimacy of its professional status (West 1996: 79), exacerbated by its depiction as the ‘poor relatives’ of law (Dezalay 1991: 792); (ii) the Big Four’s access to economic opportunities unavailable to other auditing firms (Greenwood and Suddaby 2006); and (iii) the different wealth accumulation strategies the UK state offers to audit and law firms (Windsor and Warming-Rasmussen 2009). Subsequent paragraphs explore each phenomenon in greater detail. Leading accounting firms and representative bodies have helped construct the external image of public accountants as deserving professional status (Cooper and Robson 2009). Internally, however, accounting historians draw attention to the profession’s anxiety about its legitimacy (West 1996: 79). Unlike occupations rooted in trustee professionalism (Brint 1994), accountancy’s shift in social status is due to the social connections and political manoeuvring of the field’s leading actors and not its control over an ‘authoritative body of knowledge’(West 2003: 63). Compounding the anxiety about its epistemological foundation was the profession’s repeated failure to secure licensure (Macdonald 1985) and its characterisation as the ‘poor relative’ of law (Flood 2017; Dezalay 1991; Matthews 2006). This description, originating from the commercial nature of accounting work compared with law’s representation as a ‘learned’ 11 The difference in turnover of individual firms is illustrated by headlines in March 2020 about Kirkland Ellis becoming the first law firm to generate worldwide revenue totalling US$4 billion (Jimenez 2020).

468  Sundeep Aulakh vocation (Dezalay 1995) ostensibly guided by the norms and values of ‘gentlemanly’ professionalism (Brint 1994), had two important consequences: it highlighted the difference in social status of the two professions while enabling accountants to dominate lucrative jurisdictions (for detail see Sugarman 1995). Accountants’ colonisation of work domains that are the province of lawyers in the US was facilitated by solicitors’ anxiety about their own professional project, prompting them to eschew profitable business advisory markets for fear of being viewed as ‘ungentlemanly’ (ibid). Accountancy’s concern about its social status strongly influenced its behaviour. In contrast to the audit and accountancy firms in the first half of the twentieth century, which sought to expand their jurisdiction by displacing solicitors as the principal advisors to the middle classes (ibid), the big audit firms, adopting a power-broker strategy during the later decades of the twentieth century (Dezalay 1991: 798), focused on increasing the number of jurisdictions in which they operate (Malsch and Gendron 2013), both by applying auditing methods and principles to new spaces (Andon et al 2015) and by colonising adjacent work domains (Shore and Wright 2018), the most lucrative of which include tax services (Radcliffe et al 2018; Murphy et al 2019), management consultancy (Armbrüster and Kipping 2003; Donelson et al 2020) and corporate legal services (Wilkins and Ferrer 2019; Willer 2019). The elite accounting practices justified transcending the boundaries by which accountancy legitimised its status as a ‘profession’ (Wyatt 2003; Robson et al 1994) and jettisoning the ethos of the ‘public accountant’ (Zeff 2003; Thornton et al 2005) by framing their ‘supermarket strategy’ (Dezalay 1991: 792) as a response to client need (Suddaby and Greenwood 2005). This afforded the big audit firms extensive opportunities for expansion and wealth accumulation. Accordingly, whereas corporate law firms predominately derive income from work related to legal expertise, as illustrated in Figure 4, the Big Four’s fees now derive predominately from non-accounting services (CMA 2019; Gow and Kellis 2018). Led by the elite firms, accountancy’s power-broker professional project has succeeded – partially. Despite becoming ‘notable’ and wealthy, the profession seems unable to escape its image as the ‘poor relative’ of law (Dezalay 1991) or join the most exclusive group of super-elite firms at the apex of the international professional hierarchy, which, unsurprisingly, remains dominated by London and Wall Street ‘establishment law firms’ (Dezalay and Garth 2004: 633). Globalisation and the consequent rise in multinational corporations’ demand for business advisory services (Rose and Hinings 1999) constitute the second factor behind the expansion and dominance of the Big Four. Notably, the reason they metamorphosised into behemoths is not simply because they began offering a suite of services in response to corporate demand but rather because those opportunities were unavailable to potential competitors. By monopolising the audit market (see below), the then-Big Five ‘enjoyed unique access to the world’s most powerful corporate clients and through them learned of nascent … opportunities not readily apparent to other firms. Even second-tier accounting firms had very limited exposure to these opportunities’ (Greenwood and Suddaby 2006: 37). Due to their prominence, the Big Four were able to exploit new economic opportunities to grow to the point where other audit and accountancy firms could no longer compete while also eclipsing the largest global professional service firms (PSFs) in other organisational fields (Faulconbridge and Muzio 2017). The income disparity between the Big Four and Magic Circle firms is also attributable to the differential wealth accumulation opportunities created by the UK state. In contrast to Thatcher’s ‘onslaught on the lawyers’ (Zander 1990; Brazier et al 1993), a key dimension of the neo-liberal turn meant that successive British governments during the 1980s and 1990s turned to ‘the major accountancy firms’ to support their ‘New Right political project’: privatising public utilities, restructuring public sector management, and redesigning tax collection (Sikka and

Accountants versus Lawyers  469 Willmott 1999: 265).12 The economic opportunities afforded to the Big Four have not abated: in the 12 months before August 2020, Deloitte and PwC were two of the top three recipients of the £8 billion that the central government spent on professional services (tussell 2019), and the Big Four’s combined fees for advising central government between January 2015 and December 2017 totalled £453 million (tussell 2018). This pattern also characterised the UK response to the global pandemic: EY, Deloitte and PwC were among the ten suppliers awarded the most COVID-19 contracts (Thompson 2021), billing a total of £323.4 million in fees (tussell 2021).13 Although the government also issued COVID-19 contracts to law firms, the combined fees of the two with the largest contracts were considerably lower (£1 million) (Armitage 2021). The financial opportunities that the government policy and the Big Four’s diversification (discussed in detail below) created suggest that, over the course of the last few decades, their public sector commissions have been more lucrative than those of Magic Circle law firms. Figure 4  Big Four global revenue by service, 2020 100%

80%

41%

49%

40%

39%

22%

26%

38%

34%

KPMG

EY

34%

60% 23% 18%

40%

20%

0%

25%

36%

32%

Big Four

Deloitte Audit & Assurance

Tax

41%

PwC

Advisory & Consulting

Source: Statista (2021b).

The income derived from work domains other than audit and accounting may seem surprising given that the EU Audit Regulation and Audit Directive was the equivalent of the US Sarbanes-Oxley Act (SOX) (Humphrey et al 2009; Baker et al 2014; Hazgui and Gendron 2015; Alon et al 2019). However, these reforms did not prohibit audit firms from offering non-accounting services (NAS); they just made it more difficult. In 2005 for instance, 35 per cent of the Big Four’s total revenue derived from providing NAS to audit clients; but in 2019 this had dwindled to 7 per cent (FRC 2020a; 2020b). To plug the gap between declining 12 Sikka and Willmott (1999) contend that the UK state was so reliant on large audit firms to support its ‘New Right political project’ that it was prepared to overlook their facilitation of money laundering. 13 This figure excludes a contract awarded to Deloitte without competitive tendering for an undisclosed sum to manage a network of 50 off-site COVID testing centres. Given that over 1,100 Deloitte consultants were working on the test and trace scheme for rates as high as £2,360/day (Conway 2020), Deloitte’s fees were substantial (Blackburn 2020; Ward 2020).

470  Sundeep Aulakh audit fees and new rules prohibiting the sale of NAS to audit clients, the large audit firms redirected their focus to non-audit clients. As illustrated in Figure 5, NAS fees from nonaudit clients totalled over 70 per cent of the Big Four’s UK turnover in 2019 (FRC 2020a). Figure 5  Audit and NAS UK fee income of Big Four, 2001–19 80%

74% 61%

60%

40% 27% 20%

38%

35% 24%

19%

15% 6%

0%

Audit Fees

NAS to Audit Clients 2001

2010

NAS to Non-Audit Clients

2019

Sources: FRC (2020a; 2011: 2005).

The size and status of the Big Four were attributable to their audit work: verifying the financial reports of the world’s largest multinational companies (Shore and Wright 2018). Today, however, the Big Four make their fortunes by replacing external audit with management consulting, tax consultancy, and legal services. Tax services, for example, rarely represented more than 10 per cent of fees until the 1960s (Cooper and Robson 2009) but now constitute nearly a quarter (Statista 2021b). Their contribution is attributable, in part, to high levels of demand for schemes devised by the Big Four to help corporations and wealthy individuals minimise their taxes (Chiapello 2017; Dallyn 2017; Addison et al 2015).14 The Big Four have also become the main suppliers of offshore financial services, an offshoot of their provision of tax-based services in ‘secrecy jurisdictions’ (Murphy et al 2019). C.  The Organisational Context of Professional Work Compared with law, accountancy has a long history of embedding practitioners in organisational settings other than private practice. Beginning in the 1940s when American railroads began hiring ‘in-house’ accountants (Chandler Jr 1977: 110), the number of elite chartered accountants leaving private practice to work in industry and other organisational settings increased steadily throughout the twentieth century. Moreover, disproportionate numbers rose to senior management positions. In 1911, for instance, fewer than 2 per cent of managing 14 One investigation found that the Big Four deliberately sold unlawful schemes because they expected that irregularities would remain undetected and, if exposed, that penalties ‘could be absorbed as a cost of doing business’ (Sikka et al 2018: 53).

Accountants versus Lawyers  471 directors and chairpersons in public companies were qualified accountants; but by 1991 this had grown to 20 per cent. More strikingly, only 8 per cent of listed companies had an ­accountant on the board of directors, but by 1991 80 per cent had at least one (Matthews et al 1997). Figure 6 shows that the proportion of UK chartered accountants employed in industry or government was 75 per cent in 2019, contrasted with just 20 per cent of solicitors. Figure 6  Sectoral employment of accountants and solicitors, 2019, UK15 80%

68%

67%

60% 40% 25% 20%

14%

8%

6%

12%

0% Private Practice

Industry & Commerce Accountancy

Public Sector

Unattached to an organisation

Solicitors

Sources: FRC, 2020a; TLS, 2020.

Several factors help explain this variance, including differences in the status of in-house practitioners (Moorhead et al 2018). Compared with the legal profession’s traditional view of in-house counsel as ‘second class’ lawyers (Rosen 1989: 479 but see also Gorman 2006; Wald 2020), accountancy has embraced such positions as a means of social advancement (eg Ciancanelli et al 1990). Indeed, more than any other profession, accountants claimed that their professional qualifications were those most relevant to command the ‘highest rungs of the managerial hierarchy’ (Matthews 1999: 82).16 Surveys of the educational backgrounds of those occupying top executive positions find that a high proportion are trained as chartered accountants. The intense competition between large accounting firms is another reason for the high proportion of in-house accountants. Just as law firm profitability has been driven by ‘professional leverage’ (Ackroyd and Muzio 2007), so accounting firms’ turnover was contingent upon recruiting a high volume of trainee accountants. As competition intensified beginning in the 1970s, accounting firms, which had adopted Cravath’s ‘elastic tournament’17 (Galanter and 15 Figures for accountancy are based on sectoral employment of members of four approved Recognised Supervisory Bodies (RSBs), which are responsible for maintaining a register individuals and firms authorised to undertake statutory auditing. These figures exclude retired practitioners. The figures refer to solicitors taking time out of work or those that are between jobs (TLS 2020: 21). 16 In 1991, for instance, accountants held 42 per cent of the top executive positions in public companies in Britain, and 80 per cent of these posts were occupied by chartered accountants (Matthews 1999). Likewise, recent figures also show that, in 2019, a fifth of the FTSE 100 CEOs had trained as chartered accountants (Sweet 2019). 17 Traditionally, recruitment and career progression in PSFs assumed the form of an ‘up-or-out’ promotion tournament established in the early 1900s by Paul Cravath, then managing partner of a highly prestigious New York law firm now known as Cravath, Swaine & Moore (Sherer and Lee 2002). Intended as a self-sustaining meritocracy, Cravath’s career progression tournament came to be viewed as symbolising the superior intellectual and analytical expertise of practitioners and the prestige of the organisation employing them, a myth sustained by the wealthy clients able to pay premium fees. In addition to being adopted by virtually all ‘white-shoe’ law firms (Oller 2019), the up-or-out

472  Sundeep Aulakh Roberts 2008), predicated their strategy on helping employees not on the partnership track to find positions in client organisations. This enhanced the firms’ prospects of securing future work, thereby gaining an advantage over their competitors (Boyd 2004; Gow and Kellis 2018).18 D.  Market Concentration The legal services market is more fragmented than the accountancy and audit market, where the majority of fees are earned by the Big Four (Peterson 2019; Löhlein and Müßig 2020). While the level of concentration within the audit market is particularly high (HoL 2011; Harris 2017), this might not have attracted criticism but for the exposure of numerous highprofile audit failures (Coffee 2019), culminating in the collapse of Carillion19 in 2018 – the ‘single most challenging and pivotal’ moment for the Big Four (Bhaskar and Flower 2019b). Policymakers, the media and the public wondered how a company judged financially stable by KPMG in 2017 could crash so spectacularly a few months later, leaving over £5 billion in liabilities and producing ‘job losses in the thousands, a giant pension deficit and hundreds of millions of pounds of unfinished public contracts’ (Bhaskar and Flower 2019a: 3). Years of mounting scepticism about the credibility of financial reporting (Mueller et al 2015; Holm and Zaman 2012; Church et al 2018) climaxed in a ‘palpable crisis’ of public confidence in the audit profession (BEIS 2019: 6, 11; Izza 2018), prompting an overhaul of the powers of the audit regulator (the Kingman Review 2018), an investigation into the supply of statutory audit services in the UK (CMA 2019), a Select Committee inquiry into the future of auditing (BEIS 2019), and an independent review of the quality and effectiveness of audit (Brydon Review 2019). These measures culminated in the publication of a government White Paper setting forth ‘once in a generation’ audit reforms (Lemmon 2021) intended to end Big Four dominance and restore trust and confidence in both external auditing and corporate governance (BEIS 2021b). While these proposals testify to a more interventionist approach to audit failure compared with the US government’s reliance on private litigation (see Coffee 2019), they have disappointed many commentators, leading the Financial Times to dismiss the government’s plans ‘as not worth the wait’ (Ramanna 2021). Yet regardless of whether the proposals are implemented and achieve their goals, the organisation and activities of the Big Four in the UK are liable to change. The next section focuses on the Big Four’s dominance of the audit market, which exceeds ­economists’ 60 per cent ‘oligopoly’ threshold (cf Clacher et al 2019). tournament became widely diffused across professional service firms across the globe (Morris and Pinnington 1998). As shown by the experience of accountancy and then management consulting firms in the UK and US, the ubiquity of the Cravath model is related to its incorporation in the professionalisation strategies of emergent professions. For instance, to help establish a new domain of professional work and endow it with the status and legitimacy of prestigious law firms, Marvin Bower assiduously adopted the Cravath system and corporate lawyers’ other management practices (David et al 2013). In recent decades, the up-or-out tournament has been modified (Muzio et al 2020), rendering it more ‘complex’, ‘elongated’, and ‘elastic’ (Galanter and Henderson 2008: 187). And while ‘partnership’ remains the ‘gold standard’ of career success among a sufficient proportion of associates, especially in corporate firms (Muzio et al 2020), the status and legitimacy of the organisational model of corporate law firms – a managed professional (business) partnership (Cooper et al 1996) – is under pressure. 18 Scholarship on the ‘alumni effect’ (Sikka et al 2018) and the ‘auditor-to-client revolving door’ (Kotb et al 2018) provides evidence of this. 19 Carillion plc, a British multinational construction and facilities management services company, became the largest liquidation of a trading entity in the UK. Capturing the widespread sentiment of scholars and commentators, Bhaskar and Flower (2019c) declared: ‘Never before has there been such a pivotal point affecting reporting and external auditing [in the UK], and the structure of the auditing profession and sector’. According to The Guardian, Carillion’s collapse demonstrated the failure of the entire system (Pratley 2018) in which the Big Four ignored the plc’s ‘catastrophic internal problems’ and, in exchange for approving ‘fantastical’ financial statements authorised by its directors, the Big Four auditors ‘pocketed vast sums of money’ (Jones 2018).

Accountants versus Lawyers  473 II.  COMPARATIVE PROFILE OF AUDIT AND LEGAL PROFESSIONAL SERVICE FIELDS

Heinz and Laumann’s (1982) ‘two hemispheres’ thesis is often deployed as a short-hand heuristic for dividing the legal profession between an elite cadre of highly remunerated lawyers advising prestigious corporate clients and ‘rank and file’ practitioners advising small businesses and individuals on routine matters for much lower fees (see also Dinovitzer and Garth 2020; Sterling and Reichman 2016). Although the authors’ follow-up study (Heinz et al 2005) presented a more nuanced profile of the Chicago Bar (for the UK, see Tomlinson et al 2019), the two-hemisphere imagery continues to capture the gulf between the sizes, clienteles, work, and locations of the top 200 solicitor practices and the other 9,800 or so firms also regulated by the Solicitors’ Regulation Authority (Cook et al 2012; TLS 2012). Focusing on chartered accountants, Hanlon (1994) reached a similar conclusion about the schism between large firms (then the Big Six) and others. Noting the rise of a more flexible accumulation regime, Hanlon argued that, while the multinational accounting firms became rich by acting as agents of capital, practitioners in smaller firms faced the prospect of poor working conditions, automation, and part-time work. The Heinz and Laumann and Hanlon studies highlighted one of the most significant structural changes within the two professional service fields: the transformation of a few modest-sized partnerships into GPSFs (Flood 2015; Brock and Powell 2005; Brock et al 2006; Greenwood et al 2010; Detzen and Loehlein 2018), some of which are now larger than the corporate entities they advise (Greenwood et al 2006). At one level, the structural composition of the two fields is broadly similar: both are dominated by a small number of prestigious and powerful firms yet populated by thousands of micro, small and medium-sized professional practices.20 Moreover, the expansion of the large audit firms, like that of law firms (Sterling and Reichman 2016; Sommerlad 2016; Choroszewicz and Kay 2020), has intensified intra-professional stratification (Bitbol-Saba and Dambrin 2019; Ashley and Empson 2017; Paisey et al 2020). Of course, it would be misleading to understate the substantial differences between the large audit firms ‘located in London’s “Square Mile”’ and the high-street practitioner, which antedated the former’s transformation; but the historical disconnect between them bears ‘little resemblance’ to the contemporary gulf between the Big Four and the rest of the auditor firm population (Ramirez 2009: 385). A.  Measuring Market Concentration This section uses two metrics of market concentration: the number of clients audited and the value of fees derived from auditing (Pakaluk 2019). The ‘illusionary choice’ organisations exercise when selecting an auditor (Marriage and Ford 2018) is further evidence of audit market

20 Illustrative of the Anglo-American experience more broadly, the composition of the UK audit and accountancy field is the product of a recursive relationship in which the actions of field members (organisations and individuals) both shape and are shaped by wider macro-economic and social change. Therefore the structure and composition of the accounting profession may be less bifurcated in Continental European contexts (Loscher et al 2021; Evans and Honold 2007) and emerging economies (eg see Weetman and Tsalavoutas 2020; Alon et al 2019; Macve 2020). With regard to statutory auditing, however, the Big Four dominate the market across the globe (Gow and Kellis 2018; Willekens et al 2019). In Germany, for instance, the Big Four not only control half the market but also are seeking to dilute government proposals to tighten financial regulation following the biggest accounting fraud since World War II (Storbeck 2020).

474  Sundeep Aulakh concentration. The Big Four performed statutory audits of all the top 100 companies listed on the London Stock Exchange (LSE) in 2019 and all but 13 of the FTSE 250 (FRC 2020a). Figure 6 shows that market concentration has changed little over the last fourteen years. Aside from ‘mak[ing] for a faster four-seat merry-go-round’ (Jones 2018) in which companies substitute one Big Four firm for another, the introduction of mandatory auditor rotation has failed to increase the market share of non-Big Four firms (Willekens et al 2019; European Commission 2021a). Measuring market concentration by client numbers gives only a rudimentary indication of the competitiveness of the auditing market and often underestimates how uncompetitive it actually is (Clacher et al 2019). A more effective approach is to analyse audit fees, especially in the UK, whose statutory audit market is one of the largest in the world (FRC 2018). In 2019, the combined income generated from auditing companies listed on the LSE and the Alternative Investment Market (AIM)21 was estimated to be £2.8 billion, 80 per cent of which was earned by the Big Four (FRC 2020a) (see Table 4). Figure 7  Audits of companies listed on the LSE, 2005 and 2019 100%

100%

100%

97% 84%

79%

80%

95% 79%

74%

60% 40% 20% 0%

14% 7%

2%1% FTSE 100

FTSE 250 Other Main Market 2005

11% 5% All Main Market

Big Four

5% 0.4% FTSE 100

Next Five

17% 9%

14% 7%

FTSE 250 Other Main Market 2019

All Main Market

Others

Sources: FRC, 2006; 2020a.

Table 4  Fee income of PIE auditors, 2019

Audit Fees (£m) Big Four Other Firms Total Fees Big Four %

2,266

NAS to Non-Audit Clients (£m)

Total (£m)

737

8,729

11,732

NAS to Audit Clients (£m)

562

279

1,146

1,987

2,828

1,016

9,875

13,719

80

73

88

86

Source: FRC, 2020a.

The number of FTSE 250 companies audited by the mid-tier firms increased marginally between 2015 and 2019. Despite this, the Big Four continued to reap 99 per cent of the total 21 AIM, a sub-market of the London Stock Exchange, supports smaller companies raising capital from a public listing.

Accountants versus Lawyers  475 fees paid by the FTSE 350. This is attributable to the Big Four undertaking audits for companies incurring exceptionally high audit fee costs. The difference in fee levels is extensive even among the small subset of firms for whom statutory auditing fees are considerably higher than average.22 The paucity of firms from which to appoint a new auditor is a further indicator of the highly concentrated nature of the audit market (Leaver et al 2020). For instance, what should have been a fiercely fought competition for a lucrative contract following Barclays’ termination of its century-long relationship with PwC resulted, instead, in the bank appointing KPMG ‘for the want of options’ (Marriage and Ford 2018). With Deloitte and EY precluded from tendering,23 and the financial elite viewing challenger firms as ill-equipped to audit a financial institution of the size and complexity of Barclays, the Bank could not risk damaging its reputation and legitimacy by awarding a contract to a ‘fringe’ auditor (OECD 2009). B.  Explaining Market Concentration The long-standing dominance of the Big Four in the UK statutory audit market is replicated globally (eg see Audit Analytics 2020; Hallas and Plante 2021). An extensive body of literature, comprising a mix of scholarship (Brivot et al 2018; Whittle et al 2016; Bhaskar and Flower 2019a) and official investigations (EC 2021; Harris 2017; HoL 2011; CMA 2014), emerged post-Enron, seeking to understand the causes and effects of market concentration. Studies differ about the importance of the following factors: the reputation and prestige of the Big Four global brands, stakeholders’ perceptions about the advantages of size, the Big Four’s network and market power, and systematic features of the audit market discouraging challenger firms from submitting tenders. Oxera’s detailed study of the audit market highlights the ‘IBM effect’ and ‘quality effect’ of reputation as the ‘key determinant’ of companies’ selection of auditor, particularly among the FTSE 350 (2006: 32). Self-preservation and the presumed competence of the Big Four and lack of comparable expertise in challenger firms explain why, despite the big audit firms’ repeated failures and fines incurred for poor quality audits (Oxera 2018; CMA 2019), they remain the auditor of choice of the world’s largest publicly listed companies. Managerial uncertainty (Ernst and Kieser 2002a; 2000b) and a highly financialised economy (Davis and Kim 2015) point to self-preservation as the principal factor shaping the procurement decisions of audit committee chairs and senior management. To pre-empt criticism in the event of a poor-quality audit, senior management and audit committees select a Big Four firm because ‘no one … get[s] fired for buying IBM’ (Oxera 2006: 32). Bhaskar and Flower’s (2019a) study of a stratified sample of investors, analysts, and banks found that stakeholders were deeply dissatisfied with the Big Four (see Appendix, Table A1.2); but the impression that challenger firms lack the size, skill and experience to assess an organisation’s financial statements is as institutionalised

22 For example, the highest statutory audit fee in the UK in 2019 was paid by HSBC Bank; its £66.7 million payment to PwC was four times greater than that of Glencore – an industrial metals and mining company that paid Deloitte the tenth highest statutory audit fee that year (£16.4 million) (FRC 2020b: 19). 23 This example epitomises the discreetly hidden conflict of interest between auditors and auditees. According to observers, Deloitte’s bid was ‘half-hearted’ because it was ‘locked into’ a far more lucrative consulting contract with Barclays. EY also tendered but had recently been appointed auditor for RBS, one of Barclays’ biggest domestic rivals (Marriage and Ford 2018). In addition to commercial sensitivity, concern was expressed about EY’s capacity to audit two of the UK’s largest banking institutions, thereby rendering this big audit firm also ineligible.

476  Sundeep Aulakh as the belief equating the Big Four with competence. The sheer scale of the Big Four’s global operations (Faulconbridge and Muzio 2017) enables them to tailor accounting and audit advice to each country in which multinational clients are active, thereby addressing the growing complexity of international financial reporting standards (CIMA 2010). The Big Four’s network also contributes to their stranglehold on the audit market (Kotb et al 2018). For instance, the Competition Commission found that two-thirds of the chief financial officers in large companies were alumni of the Big Four (cf BEIS 2018), while another study found that 61 per cent of chairs of audit committees previously worked for at least one of the Big Four firms (Sikka et al 2018). The FRC (2018) acknowledges that the ‘alumni effect’ may influence the assessment of tenders since many Big Four former partners are represented on audit committees, disadvantaging (consciously or otherwise) other firms submitting a tender. Indeed, although it is difficult to draw a causal link between the alumni effect and challenger firms’ minimal success, the time and cost involved in tendering deters them from competing with the Big Four. After tendering for multiple FTSE 350 audits, expending up to £300,000 in costs each time but succeeding only twice since 2016, Grant Thornton, the UK’s fifth largest statutory auditor, declared in 2018 it would no longer seek audit contracts from Britain’s largest listed companies because of the difficulties of competing with the Big Four (Marriage 2018; FRC 2018). The ‘close business relationship’ between the Big Four and financial institutions is another way their network bolsters their market power. Although now unlawful, it was common practice for banks and other major lenders to restrict borrowers’ choice of auditors to one of the Big Four; and Sikka et al (2018: 25) contend that the effects of this practice are still discernible. III.  JURISDICTIONAL EXPANSION VERSUS JURISDICTIONAL CONSOLIDATION

From a neo-Weberian perspective, professional occupations are the result of successful professionalisation projects (Saks and Adams 2019; Saks 2016), acquiring monopolistic control over discrete bodies of knowledge and attendant domains of work (Freidson 1994; Timmermans 2008) or jurisdictions (Abbott 1988: 112). These remain stable for some time, but endogenous or exogenous forces eventually precipitate ‘turf wars’ as professions compete for control over emergent work domains or to colonise adjacent fields (Abbott 1986; Taminiau and Heusinkveld 2020). Although professional bodies’ rules typically prohibit members from contesting jurisdictions controlled by other occupations, such proscriptions are rarely entirely effective. As Flood (2000: 46) explains with respect to corporate professional services: ‘In a world where millions of pounds and dollars are made on international mega-deals, the expense of maintaining strict demarcations between professional spheres of work can be too high’. Because of the institutional and market dynamics affecting professional services (see Muzio et al 2020; Reed 2018; Leicht 2016), jurisdictional disputes in recent decades differ from those of the past (Suddaby and Greenwood 2001). While the earlier confrontations were initiated by professional associations to advance collective mobility projects, contemporary contests are initiated by PSFs to further organisational interests in which the legitimating rhetoric – ‘meeting client needs’ (Suddaby and Greenwood 2005) – displaces that of serving the public interest (Adams et al 2020; Brint 1994). Examples include the formation of multidisciplinary practices in the late 1990s by the then-Big Five (Dezalay 1991; Terry 2001) and the resurgence of the Big Four in the market for corporate legal services (Wilkins and Ferrer 2018; Herda et al 2021). Contrasting

Accountants versus Lawyers  477 historical and contemporary battles for jurisdictional control (Suddaby and Greenwood 2001) also highlights a fundamental difference in how the Big Four and elite law firms have sought to advance their economic interests: the latter focus on consolidating jurisdictional control (Malhotra et al 2006). Of course, some legal practices have diversified into new domains (see Taminiau et al 2019; Foy 2018), but even they predominantly generate much of their revenue from legal expertise. A.  Variation in Audit and Law Firms’ Responses to Client Demands Accountants’ diversification into new work domains is attributable to several market-driven developments, especially client demand for new advisory services (Aharoni 1999) and a decline in the profitability of auditing (Malsch and Gendron 2013). Operating in an increasingly competitive environment and concerned with the speed of service delivery and the c­ omplexity of the issues confronting them, clients demanded that firms deliver a ‘seamless service’ by becoming a one-stop shop for all their professional service requirements (Rose and Hinings 1999). In response, audit firms developed a new suite of business advisory services by diversifying into adjacent professional fields (Brock et al 1999). While this innovation was prompted by audit firms’ corporate clients, diversification also prevented their relegation to the ‘second-tier’ rank (given the downward pressure on auditing fees) and bolstered their dominance within the audit and accountancy field (Greenwood and Suddaby 2006). Law firm clients, ‘expect[ing] more for less’ (Susskind 2017: 3), also began adopting a more transactional relationship with their legal advisors (Alfieri 2008). Although lawyers developed new professional specialisations (eg environmental law) (Morris and Pinnington 1999), they were able to resist clients’ demands to cross professional boundaries because they interacted with clients from a position of greater power than did auditors (Malhotra et al 2006). The legal profession’s normative knowledge base and the high level of information asymmetry between practitioner and client comprise the principal determinants of such power (Freidson 2001). Despite client capture (eg Dinovitzer et al 2014; Moorhead and Hinchly 2015), law firms have been able to resist client pressure to offer non-legal services because of the profession’s jurisdictional power (Malhotra and Morris 2009). B.  Professionalisation Strategies and the Profitability of Professional Work The decline in the profitability of auditing constitutes the second market-driven factor encouraging the large accounting firms to colonise new jurisdictions. The internationalisation of client activities and their demand for standardised audit reports across all portfolio businesses is one reason for this decline (Leaver et al 2020). The computerisation of various aspects of the auditing process (Gardner and Bryson 2020) transformed the core of auditors’ professional expertise into a commodified service (Brock and Powell 2005). Not only did this attenuate differences in firms’ audit offerings (Rose and Hinings 1999), it also altered the client-auditor power dynamic in which the latter, already reconfiguring auditing expertise as a regulatory cost (Faulconbridge and Muzio 2017), pressured audit firms to lower their fees substantially (Koza and Lewin 1999). The contraction in the number of corporations requiring an external audit compounded the downward pressure on audit price. As clients exploited the increased

478  Sundeep Aulakh competition between auditors by ‘price-shopping’ (Boyd 2004), audit firms embarked upon a strategy of ‘lowballing’ (Wyatt 2003; Moore et al 2006) as price became the primary criterion to win business, and professional expertise was commodified (Broberg et al 2018). As these factors compounded each other, auditing prices fell (Hinings et al 1999). Realising they could not sustain growth rates from auditing alone and concerned about losing market share to competitors, the large audit firms began offering non-accounting services to plug the gap in their revenues (Suddaby and Greenwood 2001). Corporate law firms did not experience the same intense pressure to reduce fees. On the contrary, the high profits they extract for corporate legal services are a primary motive behind the Big Four’s colonisation efforts (Bruch and Mayer 2017). C.  Impact of Social Closure on Jurisdictional Strategies As discussed above, the divergent professionalisation strategies chosen by the big audit and corporate law firms are attributable to historical differences, such as the nature of their respective knowledge bases. These differences extend to the institutional context within which the two professions evolved, especially the degree of social closure (Malhotra et al 2006). With its work domains buttressed by state support and institutional structures ‘dedicated to preserving traditional entitlements and characteristics’ (Abel 1989: 131), law firms were able to pursue a jurisdictional strategy of consolidation because, until the liberalisation of professional services (Quack and Schüßler 2015), no other business-advisory profession enjoyed as much state protection from external competition (Sugarman 1996; 1995; Nelson and Trubek 1992). This enabled law firms to use their normative authority to retain high social status, rendered jurisdictional expansion unnecessary, and helped maintain sufficient internal unity to mount a collective defence against colonisation (Abel 1989). By contrast, audit firms adopted an expansionist jurisdictional strategy because, without the protection of social closure and with their principal source of revenue diminishing, only that strategy safeguarded them against organisational obsolescence within their highly competitive environment. Linked to the impact of social closure is the permeability of professional fields (Malhotra et al 2006). As highlighted earlier, unlike solicitors, professional accountants work predominately in industry. Accountancy’s high level of external employment enables practitioners to forge networks and social connections while also comprising the conduit through which ideas and practices from the corporate world become established within the profession. Conversely, the comparatively low level of lawyer employment outside the profession undermined ‘the potential for the transmission of new ideas from clients to law firms’ (ibid: 192). Hence while accountancy has been flexible and open to change, other professions like law were less so. IV.  SUMMARY AND CONCLUSIONS

The accounting/audit and legal professions are often viewed as epitomising the ‘golden age’ of professionalisation (Gorman and Sandefur 2011) spanning the hundred years 1860–1960 (Brint 1994).

Accountants versus Lawyers  479 With notable exceptions (Malhotra et al 2006; Malhotra and Morris 2009; Von Nordenflycht et al 2015), the literature generally stresses their similarities. Focusing on the UK, I noted the overt similarities between elite firms from both professions and proceeded to explore the more substantive differences between the Big Four and both the Magic Circle and London’s other commercial law firms (Galanter and Roberts 2008). These differences reflect the different ways in which the audit and corporate law firms responded to exogenous forces. From one perspective it could be argued that, compared to lawyers, accountancy has experienced four significant disadvantages: (i) no history of strong connections with the aristocracy and the upper classes; (ii) far less state support, as exemplified by the profession’s 75 year battle for licensure; (iii) the absence of a solid knowledge base to justify exclusive claims to control work domains; (iv) competing professional bodies and insufficient cohesion between different members. Yet, despite these drawbacks, the audit and accounting profession emerged as the largest and wealthiest across all business advisory groupings. Perhaps its disadvantages drove the profession to succeed more than it would have had it started on a more equal footing with law. Accounting firms adeptly exploited the conditions and opportunities presented by the institutional and market environment. By contrast, lawyers were much more insular and less able to read the wider environment. Lawyers’ surrender of emergent business advisory markets at the start of the twentieth century and accountants’ encroachment into multiple professional domains are two examples of these differences. However, although the elite firms of both professions differ, particularly in some areas of professional practice, the similarities between them have also grown, including the intensification of intra-professional stratification and inequality (Crawford and Wang 2019). Another similarity, alluded to above, is the role both play in diffusing neoliberal ideology and replicating international political-economic structures that entrench historical inequalities and power asymmetries (Kalaitzake 2019; Boussebaa and Faulconbridge 2019; Christensen et al 2020). These two dimensions – intra-professional stratification and the ‘soft’ economic and political power of GPSFs – mean that, although there is considerable heterogeneity among PSFs (Von Nordenflycht 2010; Malhotra and Morris 2009), the similarities between the Big Four and global law firms are greater than those between either category and its ‘rank-andfile’ members (Anderson-Gough et al 2002; Alvesson et al 2015; Broberg et al 2018). The most obvious similarity is the ascendency of a commercial ethos and its prioritisation over a professional logic, exemplified by concerns about ethical misconduct and wrongdoing. While heightened commercial pressure is encouraging what has been described as ‘ethical apathy’ (Vaughan and Oakley 2016) and ‘ethical minimalism’ (Moorhead and Hinchly 2015) among corporate lawyers, high profile cases of corporate fraud and corruption have (in the UK) been more frequent within the auditing and accountancy field than in law. As noted earlier, the collapse of Carillion has been instrumental in the UK government’s attempt to introduce a ‘once in a generation [package of] audit reform[s]’ (Lemmon 2021; see BEIS 2021) with the stated objective of enhancing trust in corporate governance and undermining the Big Four’s auditing oligopoly. Previous scholarship exploring regulatory reforms introduced in response to high-profile scandals (eg O’Regan and Killian 2014) suggests that maintaining state legitimacy is a primary driver; in the case of the auditing field, this manifests as a fear that loss of confidence in audit practice and the profession undermines the legitimacy of

480  Sundeep Aulakh both the state and capitalism.24 But the extent to which the reforms, if enacted, will achieve their goals remains uncertain given the Big Four’s ‘political and economic clout’ (Bhaskar and Flower 2019a), the lukewarm reaction from the industry (Alberti 2021), the additional cost companies would incur to comply with new mandates (Thomas and Pickard 2021), and the reforms’ ‘ripple’ effects in other jurisdictions (Bhaskar 2019). APPENDIX

Table A1.1  Accounting services and legal activities revenue by segment, 2020 UK Audit & Accounting Allied Services, Total Revenue* £ooo’s

UK Legal Services, Total Revenue

Percent

£ooo’s

Percent

External Audit

3,104,580

59

Business & Commercial Affairs

9,285,900

23

Internal Audit

841,920

16

Private Client

7,500,150

22

Financial Accounting

736,680

14

Other Legal Services

7,143,000

19

Management Accounting

578,820

11

Property Law

5,714,400

16

Admin & Constitutional Law

4,642,950

13

Employment Law

1,428,600

7

£35,715,000

100

TOTAL

£5,262,000*

100

*This excludes fees from non-accounting services. Source: Dinev (2020).

TOTAL Source: Olivieri (2020b).

Figure A1.1  Big Four and the Magic Circle market share, UK, 2020 Big Four

Other Audit/Accountancy Firms

Magic Circle

Other Solicitor Practices 8%

35% 65% 92%



24 This

parallels the potential damage inflicted on the rule of law by lawyers’ transgressions

Accountants versus Lawyers  481 Figure A1.2  Big Four share of accounting and auditing market, UK, 2015–2020 100% 80% 60% 40% 57%

58%

60%

60%

62%

65%

2015

2016

2017

2018

2019

2020

20% 0% Big Four

All Other Firms

Source: Dinev, 2020.

Figure A1.3  Accounting and solicitor practices by employment, E&W, 2019 100% 80%

91% 76%

60% 40% 19%

20%

8% 0% Micro (0 to 9)

Small (10 to 49) Solicitor Practices

Source: ONS 2020.

5%

1% 0.14%

1%

Medium-sized (50 to 249)

Large (250+)

Accounting and Auditing Practices

482  Sundeep Aulakh Figure A1.4  Accounting and solicitor practices by turnover, E&W, (£–000’s) 2019 100%

91%

80%

69%

60% 40%

26%

20%

8% 1%

0% 0–4.9

0.5–4.99

4%

5.0–49.99

0.1% 0.5% 50+

£–000’s Accounting & Auditing

Solicitor Practices

Source: ONS 2020.

Table A1.2  Stakeholder perceptions of the Big Four

Views on Size

Level of Satisfaction with Big Four

Consider Challenger Firm as a feasible external auditor?

Professional investors

Global reach and experience render size important

Extremely unhappy

No

Retail banks

Value the Big Four ‘stamp of approval’

Satisfied – Big Four deliver audit high-quality

No

Augment audited reports with other data

No

Hedge funds and analysts Short-sellers

Do not use audit reports

Management or preparers

Important

N/A Dissatisfied

No

Source: Bhaskar and Flower (2019a).

REFERENCES Abbott, A (1986) ‘Jurisdictional Conflicts: A New Approach to the Development of the Legal Professions’ 11 American Bar Foundation Research Journal 187–224. —— (1988) The System of Professions (Chicago, University of Chicago Press.). Abel, RL (1989) ‘Comparative Sociology of Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 80–153. —— (1999) ‘The Politics of Professionalism: The Transformation of English Lawyers at the End of the Twentieth Century’ 2 Legal Ethics 131–47.

Accountants versus Lawyers  483 Ackroyd, S and Muzio, D (2007) ‘The Reconstructed Professional Firm: Explaining Change in English Legal Practices’ 28 Organization Studies 729–47. Adams, T, Clegg, S, Eyal, G, Reed, M and Saks, M (2020) ‘Connective Professionalism: Towards (yet Another) Ideal Type’ 7 Journal of Professions and Organization 224–33. Addison, S, Carter, C, Crawford, S and Mueller, F (2015) ‘The Dark Side of Professions: The Big Four and Tax Avoidance’ 28 Accounting, Auditing & Accountability Journal 1263–90. Aharoni, Y (1999) ‘Internationalization of Professional Services: Implications for Accounting Firms’ in D Brock, CR Hinings and M Powell (eds), Restructuring the Professional Organisation: Accounting, Healthcare and Law (London, Routledge) 20–40. Alberti, S (2021) ‘Industry Torn over Audit Sector Criticism’ Accountancy Age 6 May bit.ly/3B2Yjrk. Alfieri, A (2008) ‘The Fall of Legal Ethics and the Rise of Risk Management’ 94 Georgetown Law Journal 1909. Alon, A, Mennicken, A and Samsonova-Taddei, A (2019) ‘Dynamics and Limits of Regulatory Privatization: Reorganizing Audit Oversight in Russia’ 40 Organization Studies 1217–39. Alvesson, M, Karreman, D and Sullivan, K (2015) ‘Professional Service Firms and Identity’ in L Empson, D Muzio, J Broschak and B Hinings (eds), The Oxford Handbook of Professional Service Firms (Oxford, Oxford University Press). Anderson, M, Edwards, JR and Chandler, RA (2005) ‘Constructing the “Well Qualified” Chartered Accountant in England and Wales’ 32 The Accounting Historians Journal 5–54. Anderson-Gough, F, Grey, C and Robson, K (2002) ‘Accounting Professionals and the Accounting Profession: Linking Conduct and Context’ 32 Accounting and Business Research 41–56. Andon, P, Carter, C, Crawford, S, Free, C and O’Dwyer, B (2015) ‘Annexing New Audit Spaces: Challenges and Adaptations’ 28 Accounting, Auditing & Accountability Journal 1400–30. Armbrüster, T and Kipping, M (2003) ‘Strategy Consulting at the Crossroads: Technical Change and Shifting Market Conditions for Toplevel Advice’ 32(4) International Studies of Management and Organization 19–42. Armitage, J (2021) ‘Full List of Private Companies Handed £30 Billion of Public Money to Assist in UK Government’s Covid Response’ Evening Standard 4 May. Arnold, PJ (2005) ‘Disciplining Domestic Regulation: The World Trade Organization and the Market for Professional Services’ 30 Accounting, Organizations and Society 299–330. Ashley, L and Empson, L (2017) ‘Understanding Social Exclusion in Elite Professional Service Firms: Field Level Dynamics and the “Professional Project”’ 31 Work, Employment and Society 211–29. Audit Analytics (2020) Monitoring the Audit Marke in Europe (Brussels, Audit Analytics). Augar, P (2010) Reckless: The Rise and Fall of the City, 1997–2008 (London, Random House). Baker, CR (2014) ‘A Comparative Analysis of the Development of the Auditing Profession in the United Kingdom and France’ 19 Accounting History 97–114. Baker, CR, Bédard, J and Prat dit Hauret, C (2014) ‘The Regulation of Statutory Auditing: An Institutional Theory Approach’ 29 Managerial Auditing Journal 371–94. Baker, R (2018) ‘The Audit Profession’ in R Roslender (ed), The Routledge Companion to Critical Accounting (Abingdon, Routledge) 143–63. BEIS (2018) Carillion – Second Joint Report from the Business, Energy and Industrial Strategy and Work and Pensions Committees of Session 2017–19 (London, House of Commons) publications.parliament. uk/pa/cm201719/cmselect/cmworpen/769/769.pdf. —— (2019) The Future of Audit, Nineteenth Report of Business, Energy and Industrial Strategy Select Committee, Session 2017–19 (London, House of Commons) publications.parliament.uk/pa/cm201719/ cmselect/cmbeis/1718/1718.pdf. —— (2020) Better Regulation Framework Interim Guidance (London, Department of Business Energy and Industrial Strategy) assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/916918/better-regulation-guidance.pdf. —— (2021) Restoring Trust in Audit and Corporate Governance Consultation on the Government’s Proposals (London, House of Commons) www.gov.uk/government/publications/restoring-trust-inaudit-and-corporate-governance.

484  Sundeep Aulakh Bhaskar, K (2019) Our Response to the CMA Audit Market Report https://assets.publishing.service.gov. uk/media/5c5b0dfee5274a3164e89463/Professor_Krish_Bhaskar_response_to_update_paper.pdf. Bhaskar, K and Flower, J (2019a) Disruption in the Audit Market: The Future of the Big Four (London, Routledge). —— (2019b) Financial Failures and Scandals: From Enron to Carillion (London, Routledge). —— (2019c) ‘Appendix 2.01.1 Carillion – A Pivotal Event’ in K Bhaskar and J Flower (eds), Disruption in the Audit Market: The Future of the Big Four (London, Routledge) bit.ly/2VFwS7A. Birkett, WP and Evans, E (2005) ‘Theorising Professionalisation: A Model for Organising and Understanding Histories of the Professionalising Activities of Occupational Associations of Accountants’ 10 Accounting History 99–127. Bitbol-Saba, N and Dambrin, C (2019) ‘“It’s Not Often We Get a Visit from a Beautiful Woman!” the Body in Client-Auditor Interactions and the Masculinity of Accountancy’ 64 Critical Perspectives on Accounting 102068. Blackburn, P (2020) ‘Outsourced and Undermined: The Covid-19 Windfall for Private Providers’ (London, British Medical Association) bit.ly/3xKG3B9. Boulton, W (1957) ‘The Legal Profession in England: Its Organization, History and Problems’ 43 American Bar Association Journal 507–10, 566–68. Boussebaa, M and Faulconbridge, JR (2019) ‘Professional Service Firms as Agents of Economic Globalization: A Political Perspective’ 6 Journal of Professions and Organization 72–90. Boyd, C (2004) ‘The Structural Origins of Conflicts of Interest in the Accounting Profession’ 14 Business Ethics Quarterly 377–98. Brazier, M, Lovecy, J, Moran, M and Potton, M (1993) ‘Falling from a Tightrope: Doctors and Lawyers between the Market and the State’ 41 Political Studies 197–213. Brint, SG (1994) In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton, Princeton University Press). Brivot, M, Roussy, M and Mayer, M (2018) ‘Conventions of Audit Quality: The Perspective of Public and Private Company Audit Partners’ 37 Auditing: A Journal of Practice & Theory 51–71. Broberg, P, Umans, T, Skog, P and Theodorsson, E (2018) ‘Auditors’ Professional and Organizational Identities and Commercialization in Audit Firms’ 31 Accounting, Auditing & Accountability Journal 374–99. Brock, DM and Powell, MJ (2005) ‘Radical Strategic Change in the Global Professional Network: The “Big Five” 1999–2001’ 18 Journal of Organizational Change Management 451–68. Brock, DM, Powell, MJ and Hinings, CR (1999) ‘The Restructured Professional Organization: Corporates, Cobwebs and Cowboys’ in DM Brock, MJ Powell and CR Hinings (eds), Restructuring the Professional Organization: Accounting Health Care and Law (London, Routledge). Brock, DM, Yaffe, T and Dembovsky, M (2006) ‘International Diversification and Performance: A Study of Global Law Firms’ 12 Journal of International Management 473–89. Brooks, R (2018) Bean Counters – the Triumph of the Accountants and How They Broke Capitalism (London, Atlantic Books). Bruch, N and Mayer, J (2017) Elephants in the Room: Part I: The Big Four’s Expansion in the Legal Services Market (ALM Intelligence). Brydon, SD (2019) Assess, Assure and Inform: Improving Audit Quality and Effectiveness. Final Report of the Independent Review (London, BEIS) bit.ly/3sne5KT. Carruthers, BG and Espeland, WN (1991) ‘Accounting for Rationality: Double-Entry Bookkeeping and the Rhetoric of Economic Rationality’ 97 American Journal of Sociology 31–69. Chandler Jr, AD (1977) The Visible Hand: The Managerial Revolution in American Business (Cambridge, Harvard University Press). Chiapello, E (2017) ‘Critical Accounting Research and Neoliberalism’ 43 Critical Perspectives on Accounting 47–64. Choroszewicz, M and Kay, F (2020) ‘The Use of Mobile Technologies for Work-to-Family Boundary Permeability: The Case of Finnish and Canadian Male Lawyers’ 73 Human Relations 1388–1414.

Accountants versus Lawyers  485 Christensen, RC, Seabrooke, L and Wigan, D (2020) ‘Professional Action in Global Wealth Chains’ Regulation & Governance doi.org/10.1111/rego.12370. Chua, WF and Poullaos, C (1993) ‘Rethinking the Profession-State Dynamic: The Case of the Victorian Charter Attempt, 1885–1906’ 18 Accounting Organisation and Society 691–728. Church, B, Jenkins, JG and Stanley, JD (2018) ‘Auditor Independence in the United States’ 32 Accounting Horizons 145–68. Ciancanelli, P, Gallhofer, S, Humphrey, C and Kirkham, L (1990) ‘Gender and Accountancy: Some Evidence from the UK’ 1 Critical Perspectives on Accounting 117–244. CIMA (2010) Auditors: Market Concentration and Their Role (London, CIMA). Clacher, I, Duboisée de Ricquebourg, A and May, A (2019) ‘Who Gets All the Pie? Regulation of the Statutory Audit for Private UK Companies’ 32 Accounting, Auditing & Accountability Journal 1297–1324. CMA (2014) Audit Market Investigation: Development of the Statutory Financial Audit (London, Competition Markets Authority). —— (2019) Statutory Audit Services Market Study: Final Report (London, Competition Markets Authority) www.gov.uk/cma-cases/statutory-audit-market-study. Coffee, JC (2019) ‘Why Do Auditors Fail? What Might Work? What Won’t?’ 49 Accounting and Business Research 540–61. Conway, E (2020) ‘Coronavirus: More Than 1,000 Consultants from Deloitte on Test and Trace Programme’ Sky News Online 9 October bit.ly/3b5Jo5b. Cook, ACG, Faulconbridge, JR and Muzio, D (2012) ‘London’s Legal Elite: Recruitment through Cultural Capital and the Reproduction of Social Exclusivity in City Professional Service Fields’ 44 Environment and Planning A: Economy and Space 1744–62. Cooper, DJ, Hinings, B, Greenwood, R and Brown, JL (1996) ‘Sedimentation and Transformation in Organizational Change: The Case of Canadian Law Firms’ 17 Organization Studies 623–47. Cooper, DJ and Robson, K (2009) ‘Practitioners, Work and Firms’ in JR Edwards and SP Walker (eds), The Routledge Companion to Accounting History (Abingdon, Routledge) 274–96. Crawford, I and Wang, Z (2019) ‘Social Mobility Via Elite Placements: Working Class Graduates in Elite Accounting and Banking Firms’ 28 Accounting Education 508–31. Dallyn, S (2017) ‘An Examination of the Political Salience of Corporate Tax Avoidance: A Case Study of the Tax Justice Network’ 41 Accounting Forum 336–52. David, RJ, Sine, WD and Haveman, HA (2013) ‘Seizing Opportunity in Emerging Fields: How Institutional Entrepreneurs Legitimated the Professional Form of Management Consulting’ 24 Organization Science 356–77. Davis, GF and Kim, S (2015) ‘Financialization of the Economy’ 41 Annual Review of Sociology 203–21. Detzen, D and Loehlein, L (2018) ‘Language at Work in the Big Four: Global Aspirations and Local Segmentation’ 31 Accounting, Auditing & Accountability Journal 2031–54. Dezalay, Y (1991) ‘Territorial Battles and Tribal Disputes’ 56 Modern Law Review 792–809. —— (1995) ‘Introduction: Professional Competition and the Social Construction of Transnational Markets’ in D Sugarman and Y Dezalay (eds), Lawyers, Accountants and the Social Construction of Markets (London, Routledge). Dezalay, Y and Garth, B (2004) ‘The Confrontation between the Big Five and Big Law: Turf Battles and Ethical Debates as Contests for Professional Credibility’ 29 Law & Social Inquiry 615–38. Dinev, K (2019) Accounting – Auditing in the UK Industry Report (London, IBISWorld). —— (2020) Accounting – Auditing in the UK Industry Report (London, IBISWorld). —— (2021a) Accounting & Auditing in the UK (London, IBISWorld). —— (2021b) Legal Activities in the UK (London, IBISWorld). Dinovitzer, D and Garth, B (2020) ‘The New Place of Corporate Law Firms in the Structuring of Elite Legal Careers’ 45 Law & Social Inquiry 339–71. Dinovitzer, R, Gunz, H and Gunz, S (2014) ‘Corporate Lawyers and Their Clients: Walking the Line between Law and Business’ 21 International Journal of the Legal Profession 3–21.

486  Sundeep Aulakh Djelic, M and Quack, S (2018) ‘Globalization and Business Regulation’ 44 Annual Review of Sociology 123–43. Donahue, C (2012) ‘The Legal Professions of Fourteenth-Century England: Serjeants of the Common Bench and Advocates of the Court of Arches’ in S Jenks, J Rose and C Whittick (eds), Laws, Lawyers and Texts (Leiden, Brill). Donelson, DC, Ege, M, Imdieke, AJ and Maksymov, E (2020) ‘The Revival of Large Consulting Practices at the Big 4 and Audit Quality’ 87 Accounting, Organizations and Society 106132–52. Edwards, JR, Anderson, M and Chandler, RA (2005) ‘How Not to Mount a Professional Project: The Formation of the ICAEW in 1880’ 35 Accounting and Business Research 229–48. Elliott, P (1972) The Sociology of the Professions (London, Macmillan). Ernst, B and Kieser, A (2002a) ‘Consultants as Agents of Anxiety and Providers of Managerial Control’ 2002 Academy of Management Proceedings journals.aom.org/doi/abs/10.5465/apbpp.2002.7516889. —— (2000b) ‘In Search of Explanations for the Consulting Explosion’ in K Sahlin-Andersson and L Engwall (eds), The Expansion of Management Knowledge: Carriers, Flows, and Sources (Stanford, Stanford University Press) 47–73. European Commission (2021a) Developments in the EU market for statutory audit services to publicinterest entities pursuant to Article 27 of Regulation (EU) No 537/2014 (Brussels, European Commission). —— (2021b) Report from the Commission to the European Parliament, the Council, the European Central Bank and the European Systemic Risk Board Com (2021) 29 Final (Brussels, European Commission). Evans, L and Honold, K (2007) ‘The Division of Expert Labour in the European Audit Market: The Case of Germany’ 18 Critical Perspectives on Accounting 61–88. Fairclough, N and Fairclough, S (2012) ‘Mergers between Professional Service Firms: How the “Big Eight” Became the “Big 4”’ in D Faulkner, S Teerikangas and RJ Joseph (eds), The Handbook of Mergers and Acquisitions (Oxford, Oxford University Press). Faulconbridge, J and Muzio, D (2017) ‘Global Professional Service Firms and Institutionalization’ in L Seabrooke and L Henriksen (eds), Professional Networks in Transnational Governance (Cambridge, Cambridge University Press). Flood, J (2000) ‘The Governance of Law: The Structure and Work of Corporate Lawyers’ in I Glover and M Hughes (eds), Professions at Bay (London, Routledge) 45–66. —— (2011) ‘The Re-Landscaping of the Legal Profession: Large Law Firms and Professional Re-Regulation’ 59 Current Sociology 507–29. —— (2015) ‘Theories of Law Firm Globalization in the Shadow of Colonialism: A Cultural and Institutional Analysis of English and Indian Corporate Law Firms in the 20th and 21st Centuries’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in an Age of Globalization (New York, Cambridge University Press) 335–62. —— (2017) ‘Professions and Professional Service Firms in a Global Context: Reframing Narratives’ SSRN Electronic Journal DOI: 10.2139/SSRN.3043022. —— (2018) ‘Professions and Professional Service Firms in a Global Context: Reframing Narratives’ in M Saks and D Muzio (eds), Professions and Professional Service Firms (London, Routledge). Foy, A (2018) ‘Are Consultancy Services the Way Forward for Law Firms?’ The Global Legal Post 31 October. Francis, A (2005) ‘Legal Ethics, the Marketplace and the Fragmentation of Legal Professionalism’ 12 International Journal of the Legal Profession 173–200. FRC (2002) Key Facts and Trends in the Accountancy Profession (London, Financial Reporting Council). —— (2011) Key Facts and Trends in the Accountancy Profession (London, Financial Reporting Council). —— (2018) Key Developments in Audit 2018 (London, Financial Reporting Council). —— (2020a) Key Facts and Trends in the Accountancy Profession (London, Financial Reporting Council). —— (2020b) Developments in Audit 2020 (London, Financial Reporting Council). Free, C, Radcliffe, VS, Spence, C and Stein, MJ (2020) ‘Auditing and the Development of the Modern State’ 37 Contemporary Accounting Research 485–513.

Accountants versus Lawyers  487 Freidson, E (1994) Professionalism Reborn: Theory, Prophecy, and Policy (Chicago, University of Chicago Press). —— (2001) Professionalism: The Third Logic (Cambridge, Polity Press). Galanter, M and Henderson, W (2008) ‘The Elastic Tournament: A Second Transformation of the Big Law Firm’ 60 Stanford Law Review 1867. Galanter, M and Roberts, S (2008) ‘From Kinship to Magic Circle: The London Commercial Law Firm in the Twentieth Century’ 15 International Journal of the Legal Profession 143–78. Gardner, EC and Bryson, JR (2020) ‘The Dark Side of the Industrialisation of Accountancy: Innovation, Commoditization, Colonization and Competitiveness’ 28 Industry and Innovation 42–57. Garth, B and Sterling, J (2018) ‘Diversity, Hierarchy, and Fit in Legal Careers: Insights from Fifteen Years of Qualitative Interviews’ 31 Georgetown Journal of Legal Ethics 123–74. Glover, I and Hughes, M (2000) ‘The Challenge to Professions’ in I Glover and M Hughes (eds), Professions at Bay: Control and Encouragement of Ingenuity in British Management (London, Routledge) 3–41. Goode, W (1957) ‘Community within a Community: The Professions’ 22 American Sociological Review 194–200. Goretzki, L and Messner, M (2019) ‘Backstage and Frontstage Interactions in Management Accountants’ Identity Work’ 74 Accounting, Organizations and Society 1–20. Goretzki, L, Strauss, E and Weber, J (2013) ‘An Institutional Perspective on the Changes in Management Accountants’ Professional Role’ 24 Management Accounting Research 41–63. Gorman, E (2006) ‘Explaining the Spread of Law Firm in-House Counsel Positions’ 84 North Carolina Law Review 1577–90. Gorman, EH and Sandefur, RL (2011) ‘“Golden Age”, Quiescence, and Revival: How the Sociology of Professions Became the Study of Knowledge-Based Work’ 38 Work and Occupations 275–302. Gow, I and Kellis, S (2018) The Big Four: The Curious Past and Perilous Future of the Global Accounting Monopoly (Carlton, Australia, La Trobe University Press in conjunction with Black Inc). Greenwood, E (1957) ‘Attributes of a Profession’ 2(3) Social Work 45–55. Greenwood, R, Morris, TIM, Fairclough, S and Boussebaa, M (2010) ‘The Organizational Design of Transnational Professional Service Firms’ 39 Organizational Dynamics 173–83. Greenwood, R and Suddaby, R (2006) ‘Institutional Entrepreneurship in Mature Fields: The Big Five Accounting Firms’ 49 Academy of Management Journal 27–48. Greenwood, R, Suddaby, R and McDougald, M (2006) ‘Professional Service Firms’ 24 Professional Service Firms 1–16. Hallas, N and Plante, K (2021) ‘Who Audits Public Companies – 2021 Edition’ (Sutton, MA, Audit Analytics) bit.ly/37WCZri. Hanlon, G (1994) The Commercialisation of Accountancy: Flexible Accumulation and the Transformation of the Service Class (London, Macmillan). —— (1997) ‘A Profession in Transition? Lawyers, the Market and Significant Others’ 60 Modern Law Review 798–822. Harris, SB (2017) Audit Industry Concentration and Potential Implications (Washington, Public Company Accounting Oversight Board). Hazgui, M and Gendron, Y (2015) ‘Blurred Roles and Elusive Boundaries’ 28 Accounting, Auditing & Accountability Journal 1234–62. Heinz, JP and Laumann, EO (1982) Chicago Lawyers: The Social Structure of the Bar (New York, Russell Sage Foundation). Heinz, JP, Nelson, RL, Sandefur, RL and Laumann, EO (2005) Urban Lawyers: The New Social Structure of the Bar (Chicago, University of Chicago Press). Herda, DN, Grenier, JH, Brewster, BE and Marshall, ME (2021) ‘Big 4 Firms as Legal Service Providers: Implications for Audit Practice and Future Research Directions’ 35(3) Accounting Horizons 93–112. Hinings, C, Greenwood, R and Cooper, D (1999) ‘The Dynamics of Change in Large Accounting Firms’ in MJ Powell, DM Brock and CR Hinings (eds), Restructuring the Professional Organization: Accounting Health Care and Law (London, Routledge).

488  Sundeep Aulakh Holm, C and Zaman, M (2012) ‘Regulating Audit Quality: Restoring Trust and Legitimacy’ 36 Accounting Forum 51–61. House of Lords, Select Committee on Economic Affairs (2011) Auditors: Market Concentration and Their Role. Volume I: Report (Second Report of the 2010–2011 Session) (London, House of Lords). Humphrey, C, Loft, A and Woods, M (2009) ‘The Global Audit Profession and the International Financial Architecture: Understanding Regulatory Relationships at a Time of Financial Crisis’ 34 Accounting, Organizations and Society 810–25. Izza, M (2018) Facing the Findings (London, Institute of Charter Accounts in England and Wales) bit. ly/3spqYnI. Jimenez, R (2020) ‘The 2020 Global 200: Ranked by Revenue’ American Lawyer (21 September). Jones, O (2018) ‘Carillion Is No One-Off Scandal. Neoliberalism Will Bring Many More’ The Guardian 16 May. Joyce, Y (2014) ‘Knowledge Mandates in the State – Profession Dynamic: A Study of the British Insolvency Profession’ 39 Accounting, Organizations and Society 590–614. Kalaitzake, M (2019) ‘Accounting for Success: The Big Four as Allies of Finance in Post Crisis Regulatory Reform’ 21 Business and Politics 297–326. Kanda, S (2021) Global Accounting Services (London, IBISWorld). Kingman, J (2018) Independent Review of the Financial Reporting Council (London, Department of Business Energy and Industrial Strategy and Financial Reporting Council) www.gov.uk/government/ publications/financial-reporting-council-review-2018. Kotb, A, Halabi, H and Elbardan, H (2018) ‘The Auditor-to-Client Revolving Door: A Structured Literature Review’ 22 International Journal of Auditing 464–85. Koza, MP and Lewin, AY (1999) ‘The Coevolution of Network Alliances: A Longitudinal Analysis of an International Professional Service Network’ 10 Organization Science 638–53. Lander, MW, Koene, BAS and Linssen, SN (2013) ‘Committed to Professionalism: Organizational Responses of Mid-Tier Accounting Firms to Conflicting Institutional Logics’ 38 Accounting, Organizations and Society 130–48. Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Leaver, A, Seabrooke, L, Stausholm, S and Wigan, D (2020) Auditing with Accountability: Shrinking the Opportunity Spaces for Audit Failure (Sheffield, University of Sheffield and Copenhagen, Copenhagen Business School). Lee, R (1992) ‘From Profession to Business: The Rise and Rise of the City Law Firm’ 19 Journal of Law and Society 31–48. Leicht, KT (2016) ‘Market Fundamentalism, Cultural Fragmentation, Post-Modern Skepticism, and the Future of Professional Work’ 3 Journal of Professions and Organization 103–17. Lemmon, T (2021) ‘“Once in a Generation” Audit Reforms Published’ AccountancyAge 18 March bit. ly/3uAXEKR. Löhlein, L and Müßig, A (2020) ‘At the Boundaries of Institutional Theorizing: Individual Entrepreneurship in Episodes of Regulatory Change’ 83 Accounting, Organizations and Society 101102. Loscher, G, Löhlein, L and Lenz, H (2021) ‘Dual Roles and Blurred Identities: A Framing Contest between Professional Associations in a Local Strategic Action Field’ 30 European Accounting Review 503–29. Luft, J (2016) ‘Management Accounting in the Laboratory and in Social Context: Four Contrasts, 1975–2014’ 49 Accounting, Organizations and Society 9–20. Macdonald, KM (1985) ‘Social Closure and Occupational Registration’ 19 Sociology 541–56. Macve, R (2020) ‘Perspectives from Mainland China, Hong Kong and the UK on the Development of China’s Auditing Firms: Implications and a Research Agenda’ 50 Accounting and Business Research 641–92. Malhotra, N and Morris, T (2009) ‘Heterogeneity in Professional Service Firms’ 46 Journal of Management Studies 895–922.

Accountants versus Lawyers  489 Malhotra, N, Morris, T and Hinings, CR (2006) ‘Variation in Organizational Form among Professional Service Organizations’ 24 Professional Service Firms 171–202. Malsch, B and Gendron, Y (2013) ‘Re-Theorizing Change: Institutional Experimentation and the Struggle for Domination in the Field of Public Accounting’ 50 Journal of Management Studies 870–99. Maltby, J (2009) ‘Auditing’ in JR Edwards and SP Walker (eds), The Routledge Companion to Accounting History (London, Routledge). Marriage, M (2018) ‘Grant Thornton Exits Audit Market for Big UK Companies’ Financial Times 29 March on.ft.com/2U3oj6e. Marriage, M and Ford, J (2018) ‘An Illusion of Choice: The Conflicts That Mire the Audit World’ Financial Times 9 August on.ft.com/3dG77JS. Martin, R, Tyler, P, Storper, M, Evenhuis, E and Glasmeier, A (2018) ‘Globalisation at a Critical Conjuncture?’ 11 Cambridge Journal of Regions, Economy and Society 3–16. Matthews, D (1999) ‘Accountants V Engineers: The Professions in Top Management in Britain since the Second World War’ 13 Contemporary British History 82–104. —— (2006) A History of Auditing: The Changing Audit Process in Britain from the Nineteenth Century to the Present Day (London, Routledge). —— (2017) ‘Accountants and the Professional Project’ 30 Accounting, Auditing & Accountability Journal 306–27. Matthews, D, Malcolm Anderson, M and Edwards, JR (1997) ‘The Rise of the Professional Accountant in British Management’ 50(3) Economic History Review 407–429. —— (1998) The Priesthood of Industry: The Rise of the Professional Accountant in British Management (Oxford, Oxford University Press). Moore, D, Tetlock, P and Tanlu, L (2006) ‘Conflicts of Interest and the Case of Auditor Independence: Moral Seduction and Strategic Issue Cycling’ 31 Academy of Management Review 1–20. Moorhead, R and Hinchly, V (2015) ‘Professional Minimalism? The Ethical Consciousness of Commercial Lawyers’ 42 Journal of Law & Society 387–412. Moorhead, R, Vaughan, S and Godinho, C (2018) In-House Lawyers’ Ethics: Institutional Logics, Legal Risk and the Tournament of Influence (Oxford, Hart Publishing). Mor, F (2019) ‘Company Audits. Problems and Solutions: Briefing Paper No 8385’ (London, House of Commons Library). Morris, T and Pinnington, AH (1998) ‘Promotion to Partner in Professional Service Firms’ 51 Human Relations 3–24. —— (1999) ‘Continuity and Change in Professional Organizations. Evidence from British Law Firms’ in DM Brock, MJ Powell and CR Hinings (eds), Restructuring the Professional Organization: Accounting Health Care and Law (London, Routledge). Morse, G (2002) ‘Partnerships for the 21st Century? Limited Liability Partnerships and Partnership Law Reform in the United Kingdom’ 2002 Singapore Journal of Legal Studies 455–88. Mueller, F, Carter, C and Whittle, A (2015) ‘Can Audit (Still) Be Trusted?’ 36 Organization Studies 1171–1203. Murphy, R, Seabrooke, L and Stausholm, SN (2019) ‘A Tax Map of Global Professional Service Firms: Where Expert Services Are Located and Why’ openaccess.city.ac.uk/id/eprint/21868/7/ D4.6WorkingPaper.pdf. Muzio, D, Aulakh, S and Kirkpatrick, I (2020) Professional Occupations and Organizations (Elements in Organization Theory) (Cambridge, Cambridge University Press). Napier, C and Noke, C (1992) ‘Accounting and Law: An Historical Overview of an Uneasy Relationship’ in M Bromwich and A Hopwood (eds), Accounting and the Law (Hemel Hempstead, Prentice Hall International) 30–54. Nelson, R and Trubek, D (1992) ‘Introduction: New Problems and New Paradigms in Studies of the Legal Profession’ in R Nelson, D Trubek and R Solomon (eds), Lawyers’ Ideals/Lawyers’ Practices: Transformations in the American Legal Profession (Ithaca, NY, Cornell University Press). Office for National Statistics (2020a) ‘UK Business Counts – Enterprises by Industry and Employment Size Band [Data File]’ (Nomis).

490  Sundeep Aulakh —— (2020b) ‘UK Business: Activity, Size and Location [Data File]’(Nomis). Olivieri, B (2020a) Legal Activities in the UK, March 2020 (London, IBISWorld). —— (2020b) Legal Activities in the UK, October 2020 (London, IBISWorld). Oller, J (2019) White Shoe: How a New Breed of Wall Street Lawyers Changed Big Business and the American Century (New York, Penguin). Ó hÓgartaigh, C (2009) Financial Accounting Practice (Abingdon, Routledge). O’Regan, P (2013) ‘Usurpationary Closure and the Professional Project: The Case of the Society of Incorporated Accountants and Auditors in Ireland’ 23 Accounting History Review 253–71. O’Regan, P and Killian, S (2014) ‘Professionals Who Understand’: Expertise, Public Interest and Societal Risk Governance’ 39 Accounting, Organizations and Society 615–31. Organisation for Economic Co-operation and Development (OECD) (2009) Competition and Regulation in Auditing and Related Professions (Paris, OECD Policy Roundtables) www.oecd.org/daf/competition/ sectors/44762253.pdf. — (2010) Better Regulation in Europe: United Kingdom (Paris, OECD). Oxera (2006) Competition and Choice in the UK Audit Market (Oxford, Oxera). — (2018) Four-Ever? Competition Remedies in the Audit Market (Oxford, Oxera). Paisey, C and Paisey, NJ (2014) ‘The State of Professional Accounting Education and Training’ in R Wilson (ed), The Routledge Companion to Accounting Education (London, Routledge). Paisey, C, Paisey, N, Tarbert, H and Wu, B (2020) ‘Deprivation, Social Class and Social Mobility at Big Four and Non-Big Four Firms’ 50 Accounting and Business Research 61–109. Pakaluk, J (2019) ‘Three Ways to Measure Market Concentration: A Comparison Between the UK and Germany’ Audit Analytics https://bit.ly/3lXN7Gq. Peterson, J (2019) DOA – Can Big Audit Survive the UK Regulators? (privately published). Poullaos, C (2009) ‘ Professionalisation’ in JR Edwards and SPE Walker (eds), The Routledge Companion to Accounting History (Abingdon, Routledge) 247–73. Pratley, N (2018) ‘Entire System Failed Carillion, Not Just Directors at the Top’ The Guardian 16 May. Quack, S and Schüßler, E (2015) ‘Dynamics of Regulation of Professional Service Firms: National and Transnational Developments in Law and Accounting’ in DM Laura Empson, Joe Broschak, and Bob Hinings (eds), Oxford Handbook of Professional Service Firms (Oxford, Oxford University Press). Radcliffe, VS, Spence, C, Steina, M and Wilkinson, B (2018) ‘Professional Repositioning During Times of Institutional Change: The Case of Tax Practitioners and Changing Moral Boundaries’ 66 Accounting, Organizations and Society 45–59. Ramanna, K (2021) ‘UK Audit Reforms Fail to Address the Real Problem Behind Scandals’ Financial Times 20 March on.ft.com/3haSm5c. Ramirez, C (2009) ‘Constructing the Governable Small Practitioner: The Changing Nature of Professional Bodies and the Management of Professional Accountants’ Identities in the UK’ 34 Accounting, Organizations and Society 381–408. Ramirez, C, Stringfellow, L and Maclean, M (2015) ‘Beyond Segments in Movement: A “Small” Agenda for Research in the Professions’ 28 Accounting, Auditing & Accountability Journal 1341–72. Reed, MI (2018) ‘Elites, Professions, and the Neoliberal State: Critical Points of Intersection and Contention’ 5 Journal of Professions and Organization 297–312. Richardson (2018) ‘The Accountancy Profession’ in R Roslender (ed), The Routledge Companion to Critical Accounting (Abingdon, Routledge). Robson, K, Willmott, H, Cooper, D and Puxty, T (1994) ‘The Ideology of Professional Regulation and the Markets for Accounting Labour: Three Episodes in the Recent History of the UK’ 19 Accounting, Organizations and Society 527–53. Rose, T and Hinings, CR (1999) ‘Restructuring the Professional Organization: Accounting, Health Care and Law’ in D Brock, CR Hinings and M Powell (eds), Global Client’s Demands Driving Change in Global Business Advisory Firms (London, Routledge) 41–67. Rosen, RE (1989) ‘The Inside Counsel Movement, Professional Judgment and Organizational Representation’ 64 Indiana Law Journal 479–553. Roslender, R (1992) Sociological Perspectives on Modern Accountancy (London, Routledge).

Accountants versus Lawyers  491 Saks, M (2016) ‘A Review of Theories of Professions, Organizations and Society: The Case for Neo-Weberianism, Neo-Institutionalism and Eclecticism’ 3 Journal of Professions and Organization 170–87. Saks, M and Adams, TL (2019) ‘Neo-Weberianism, Professional Formation and the State: Inside the Black Box’ 9 Professions and Professionalism 3190. Shalchi, A and Mor, F (2021) Company Audits: Problems and Solutions (London, House of Commons Library). Sherer, P and Lee, K (2002) ‘Institutional Change in Large Law Firms: A Resource Dependency and Institutional Perspective’ 45 Academy of Management Journal 102–19. Shore, C and Wright, S (2018) ‘How the Big 4 Got Big: Audit Culture and the Metamorphosis of International Accountancy Firms’ 38 Critique of Anthropology 303–24. Sikka, P, Haslam, C, Cooper, C, Haslam, J, Christensen, J, Govindarajan, DD, Hadden, T, Ireland, P, Parker, M, Pearson, G, Pettifor, A, Picciotto, S, Veldman, J and Willmott, H (2018) Reforming the Auditing Industry Report commissioned by the Shadow Chancellor of the Exchequer, John McDonnell MP bit.ly/3m7WNju. Sikka, P and Willmott, H (1999) ‘Regulating Money Laundering a Case Study of the UK Experience’ in G Morgan and L Engwall (eds), Regulation and Organizations: International Perspectives (Abingdon, Routledge) 248–70. Sommerlad, H (2007) ‘Researching and Theorizing the Processes of Professional Identity Formation’ 34 Journal of Law and Society 190–217. —— (2016) ‘“A Pit to Put Women In”: Professionalism, Work Intensification, Sexualisation and Work– Life Balance in the Legal Profession in England and Wales’ 23 International Journal of the Legal Profession 61–82. Statista (2021a) ‘Revenue of the Big Four Accounting and Audit Firms Worldwide in 2020’ Statista Online bit.ly/310IbH4. —— (2021b) ‘Revenue of the Big Four Accounting and Audit Firms Worldwide in 2020 by Function’ Statista Online bit.ly/3lyYmVn. —— (2021c) ‘Number of Employees of the Big Four Accounting and Audit Firms Worldwide in 2020’ Statista Online bit.ly/3r50t4y. Sterling, JS and Reichman, N (2016) ‘Overlooked and Undervalued: Women in Private Law Practice’ 12 Annual Review of Law and Social Science 373–93. Storbeck, O (2020) ‘German Auditors Fight Tighter Regulation after Wirecard Scandal’ Financial Times 15 November. Suddaby, R, Cooper, DJ and Greenwood, R (2007) ‘Transnational Regulation of Professional Services: Governance Dynamics of Field Level Organizational Change’ 32 Accounting, Organizations and Society 333–62. Suddaby, R and Greenwood, R (2001) ‘Colonizing Knowledge: Commodification as a Dynamic of Jurisdictional Expansion in Professional Service Firms’ 57 Human Relations 933–53. —— (2005) ‘Rhetorical Strategies of Legitimacy’ 50 Administrative Science Quarterly 35–67. Sugarman, D (1995) ‘Who Colonized Whom? Historical Reflections on the Intersection between Law, Lawyers and Accountants in England’ in Y Dezalay and D Sugarman (eds), Professional Competition and Professional Power Lawyers, Accountants and the Social Construction of Markets (London, Routledge) 163–70. —— (1996) ‘Bourgeois Collectivism, Professional Power and the Boundaries of the State – the Private and Public Life of the Law Society, 1825 to 1914’ 3 International Journal of the Legal Profession 81–135. Susskind, D (2017) Tomorrow’s Lawyers (Oxford, Oxford University Press). Susskind, D and Susskind, J (2017) The Future of the Professions (Oxford, Oxford University Press). Sweet, P (2019) ‘One in Five FTSE 100 CEOs Is an Accountant’ Accountancy Daily 19 July. Taminiau, Y and Heusinkveld, S (2020) ‘Between Contestation and Collaboration: The Internal Dynamics of Multidisciplinary Accounting Firm Responses to Institutional Pressures’ 7 Journal of Professions and Organization 351–73.

492  Sundeep Aulakh Taminiau, Y, Heusinkveld, S and Cramer, L (2019) ‘Colonization Contests: How Both Accounting and Law Firms Gain Legitimacy in the Market for Forensic Accounting’ 6 Journal of Professions and Organization 49–71. Terry, LS (2001) ‘MDPs: Reflections from the US Perspective’ 8 International Journal of the Legal Profession 151–60. Thomas, D and Pickard, D (2021) ‘UK Audit Reform Set to Cost Businesses More Than £430m a Year’ Financial Times 18 March on.ft.com/2W72t2W. Thompson, H (2021) ‘Latest Updates on UK Government Covid-19 Contracts and Spending’ www. tussell.com/insights/covid. Thornton, P, Jones, C and Kury, K (2005) ‘Institutional Logics and Institutional Change: Transformation in Accounting, Architecture, and Publishing’ in C Jones and PH Thornton (eds), Research in the Sociology of Organizations (London, Jai). Timberlake, E, Jr (1922) ‘Origin and Development of Advocacy as a Profession’ 9 Virginia Law Review 25–40. Timmermans, S (2008) ‘Professions and Their Work: Do Market Shelters Protect Professional Interests?’ 35 Work and Occupations 64–88. The Law Society (TLS) (2002) Trends in the Solicitors’ Profession Annual Statistics Report 2001 (London, Law Society). —— (2011) Trends in the Solicitors’ Profession Annual Statistics Report 2010 (London, Law Society). —— (2012) The Legal Services Industry Part 2 – Main Sectors (London, Law Society). —— (2020) Trends in the Solicitors’ Profession Annual Statistics Report 2019 (London, Law Society) bit. ly/36mWWGv. Tomlinson, J, Valizade, D, Muzio, D, Charlwood, A and Aulakh, S (2019) ‘Privileges and Penalties in the Legal Profession: An Intersectional Analysis of Career Progression’ 80 British Journal of Sociology 1043–66. Tomo, A (2019) Professional Identity Crisis: Balancing the Internal and External Perception of Professional Image (Bingley, Emerald). Toms, S (2009) ‘Capitalism’ in JR Edwards and SP Walker (eds), The Routledge Companion to Accounting History (Abingdon, Routledge). tussell (2018) ‘Analysis of the Big Four Consultancy Firms’ tussell.com. —— (2019) ‘Central Government Procurement of Legal Services since 2015’ tussell.com —— (2021) ‘Public Procurement during a Crisis 2020 Year in Review’ www.tussell.com/insights/2020year-in-review-public-procurement-during-a-crisis. United States International Trade Commission (USITC) (2017) Recent Trends in US Services Trade: 2017 Annual Report (Washington, United States International Trade Commission). Vaughan, S and Oakley, E (2016) ‘“Gorilla Exceptions” and the Ethically Apathetic Corporate Lawyer’ 19 Legal Ethics 50–75. Von Nordenflycht, A (2010) ‘What Is a Professional Service Firm? Toward a Theory and Taxonomy of Knowledge Intensive Firms’ 35 Academy of Management Review 155–74. Von Nordenflycht, A, Malhotra, N and Morris, T (2015) ‘Sources of Homogeneity and Heterogeneity across Professional Services’ in L Empson, D Muzio, J Broschak and B Hinings (eds), The Oxford Handbook of Professional Service Firms (Oxford, Oxford University Press). Wald, E (2012) ‘Smart Growth: The Large Law Firm in the Twenty-First Century’ 80 Fordham Law Review 2867–914. —— (2020) ‘Getting In and Out of the House: The Worlds of in-House Counsel, Big Law, and Emerging Career Trajectories of In-House Lawyers’ 88 Fordham Law Review 1765–1800. Walker, SP (1991) ‘The Defence of Professional Monopoly: Scottish Chartered Accountants and “Satellites in the Accountancy Firmament”’ 16 Accounting, Organizutions and Society 257–83. —— (2004a) ‘The Genesis of Professional Organisation in English Accountancy’ 29 Accounting, Organizations and Society 127–56. —— (2004b) ‘Conflict, Collaboration, Fuzzy Jurisdictions and Partial Settlements Accountants, Lawyers and Insolvency Practice During the Late 19th Century’ 34 Accounting and Business Research 247–65.

Accountants versus Lawyers  493 —— (2004c) Towards the ‘Great Desideratum’ The Unification of the Accountancy Bodies in England 1870–1880 (Edinburgh, Institute of Chartered Accountants of Scotland). —— (2019) ‘From Nobodies to Revolutionaries: Clerks, Accounting and Capitalism’ 78 Accounting, Organizations and Society. Ward, M (2020) ‘Debate Pack: Opposition Day Debate: Covid-19 Contracts and Public Procurement No CDP-2020-01032020’ (London, House of Commons Library) https://bit.ly/37Kp1IK. Weetman, P and Tsalavoutas, I (eds) (2020) The Routledge Companion to Accounting in Emerging Economies (Abingdon, Routledge). West, B (1996) ‘The Professionalization of Accounting A Review of Recent Historical Research and Its Implications’ 1 Accounting History 77–102. West, BP (2003) Professionalism and Accounting Rules (London, Routledge). Whittle, A, Mueller, F and Carter, C (2016) ‘The “Big Four” in the Spotlight: Accountability and Professional Legitimacy in the UK Audit Market’ 3(2) Journal of Professions and Organization 119–141. Wilkins, D and Ferrer, M (2018) ‘The Integration of Law into Global Business Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global Legal Services Market’ 43 Law & Social Inquiry 981–1026. —— (2019) ‘Taking the “Alternative” out of Alternative Legal Service Providers’ in M DeStefano and G Dobrauz-Saldapenna (eds), New Suits: Appetite for Disruption in the Legal World (Bern, Stämpfli Verlag AG). Willekens, M, Dekeyser, S and Simac, I (2019) EU Statutory Audit Reform: Impact on Costs, Concentration and Competition. Study for Committee on Economic and Monetary Affairs (Luxembourg, European Parliament Policy Department for Economic, Scientific and Quality of Life Policies). Willer, J (2019) ‘Innovation & Disruption: The Big Four’s Expanded Services Rock the Global Legal Landscape & What Can Europe Expect’ (New York, ALM Intelligence) www.worldservicesgroup. com/files/presentations/1144/5.28_Big_Four.pdf. Williams, T (2019) ‘The Big 4’s Move into Law’ Modern Legal Practice jomati.com/NewFiles/ Modern%20Legal%20Practice%20Journal%20Ninth%20Ed%20-%20The%20Big%204s%20 move%20into%20law.pdf. Willmott, H (1986) ‘Organising the Profession: A Theoretical and Historical Examination of the Development of the Major Accountancy Bodies in the UK’ 11 Accounting Organizations and Society 555–80. Windsor, CA and Warming-Rasmussen, B (2009) ‘The Rise of Regulatory Capitalism and the Decline of Auditor Independence: A Critical and Experimental Examination of Auditors’ Conflicts of Interest’ 20 Critical Perspective in Accounting 267–88. Wootton, C, Wolk, C and Normand, C (2003) ‘An Historical Perspective on Mergers and Acquisitions by Major US Accounting Firms’ 8 Accounting History 25–60. Wyatt, AR (2003) ‘Accounting Professionalism: They Just Don’t Get It!’ 18 Accounting Horizons 45–53. Zander, M (1990) ‘The Thatcher Government’s Onslaught on the Lawyers: Who Won?’ 24 International Lawyer 753–85. Zeff, SA (2003) ‘How the US Accounting Profession Got Where It Is Today: Part I’ 17 Accounting Horizons 189–205.

494

21 The Mutation of Medical Professionalism MARK EXWORTHY AND SIMON MORALEE*

I. INTRODUCTION

W

hile the genealogy of the medical profession in the UK can be traced back to the medieval guilds, its development formed part of the wider processes of modernisation. Perspectives grounded in science displaced understandings of disease as the ‘consequence of responsible personal choice or of an irrevocable state of sin or genetic inferiority’ (Freidson 1970a: 6), while the development of the modern state led to increasingly organised responses to ill health (Foucault 1976). Medicalisation of illness was underpinned by statutes dealing with doctors’ registration, self-regulation and exclusive rights to practise (eg the Apothecaries Act 1815 and Medical Act 1858). This delineation of a domain separate from that of other occupations (Macdonald 1995) was fundamental to the profession’s claims to a distinctive ethical code, service ethics and autonomy, empowering doctors to determine their remuneration, set standards and control performance (Ferlie et al 1996; Freidson 1970a; 1970b; Harrison 1999; Hoogland and Jochemson 2000; Larson 1977; Mechanic 1998). Medical professionals also came to dominate para-medical professions (Larson 1977) and oversee medical education through the formation of teaching hospitals and examinations (Macdonald 1995).1 By the 1930s the ‘central value governing service provision was medical care quality as determined by professional providers’ (Scott et al 2000: 21; see also Foucault 1976; Freidson 1970a). There was therefore strong resistance to the reconfiguration of the collegiate form of medical professionalism into an organisational form, effected by the National Health Service (NHS) Act (1946); in the words of its architect, Aneurin Bevan, doctors were brought on board only by ‘stuffing their mouths with gold’ (Webster 1991; Timmins 2001: 115). Despite the transformation of their status from independent professionals to employees, doctors retained their clinical autonomy: the NHS Act guaranteed access to care for all and determined the budget but gave doctors ‘responsibility for ensuring clinical standards and delivering care to patients’ (Ham and Alberti 2002: 838). By the mid-1970s, the state-profession compact (Freidson 1970a; 1970b), which supported traditional professions, was being threatened by a complex of forces in the UK and elsewhere. These included consumerist discourses, post-modern scepticism about scientific knowledge and expertise, the erosion of deference for established elites and the development of

* University of Birmingham, UK and University of Manchester, UK, respectively. 1 Western professions influenced each other; for instance, following the US Flexner Report (1910), the US model of medical education was widely adopted.

496  Mark Exworthy and Simon Moralee new technologies. The process of displacing the Keynesian state by a neoliberal, globalised, market state, antithetical to publicly-funded universal provision, instrumentalised these trends, incorporating many of the anti-professional tropes of the 1960s/70s (such as consumer empowerment) into a discourse which challenged professions’ ideological claims and moral authority. The new socio-economic allocative regime re-directed governmental agendas towards deregulation and cost containment, informed by the vocabularies of efficiency, choice and competition (Muzio et al 2007). As a result, the medical profession has, like the publicly-funded sector of the UK legal profession, undergone a dramatic (and ongoing) transformation, encompassing changes in its size, composition, coherence, values, working practices and forms of knowledge. Both professions have experienced a blurring of their boundaries, and loss of market shelters, and the sharp decline in the financing of publicly-funded health services has eroded doctors’ power and remuneration levels. Examining the transformation of the medical profession, therefore, can provide comparable benchmarks for this volume’s description and analysis of the evolution of legal professionalism over the last three to four decades, revealing the extent of institutional isomorphism generated by the reconfiguration of the state and its underpinning political rationality and parallel changes in regulation and organisation. We use the UK profession as our lens because the socialised model of health care established by the NHS Act presents a clear contrast to the neoliberal marketised model now generalised across the world and because the autonomy of its practitioners has been eroded using mechanisms similar to those applied elsewhere. In fact many of the managerial and regulatory procedures deployed by the UK state were developed by US corporations (Domagalski 2007), and medical professions worldwide have undergone a decline in status and face similar challenges, such as technological developments and eroding faith in experts. The chapter is divided into two sections. We begin by describing the key ‘disruptors’ of medical professionalism, dividing them into three intersecting axes (while recognising that social forces tend to occur quasi-simultaneously and intersect with each other, creating complex patterns of continuity and change in the relationship between profession, society and state). This descriptive part is followed by a theoretical section in which we analyse this transformation as a ‘mutation’ of medical professionalism (Adler and Kwon 2012). Finally, the implications of this mutation are elaborated in two case studies: leadership and post-truth politics. II.  AXES OF PROFESSIONAL DISRUPTION

A.  First Axis: Medical Professionalism and Society The macro-axis consists of disruptors that encompass developments in society, culture and technology, changing relationships of trust and the balance of knowledge between the public (citizens, taxpayers and patients) and the medical profession. The most significant of these developments – the displacement of the social state by neoliberal forms of social organisation from the late 1970s onwards – generated New Public Management (NPM) techniques which, together with new technologies (eg AI and genomic sequencing), undermined the profession’s autonomy, normative value system and legitimacy, disrupted dominant modes of organising work and shifted the meaning of professionalism. The avatars of managerialism introduced into the medical field to implement NPM (such as business managers and human resources personnel) have transformed professional working conditions and technologies of practice and

The Mutation of Medical Professionalism  497 contributed to the shift in goals away from health provision towards ‘value for money’ (VFM) and ‘efficiency and transparency’ (Exworthy and Halford 1999). These goals form part of the transformation of citizens into consumers who (rather than professionals) are empowered to make choices, and to whom the profession is (notionally) accountable. This move has been stimulated by the democratisation of expert knowledge and the decline in respect for expertise and professional authority generally. Patient demand and expectations have been raised by ongoing improvements in medical knowledge and its application, and advances in technology (Kirkpatrick et al 2005). This rise in expectations and patients’ capacity to acquire knowledge and use it to assess their own health status and question professional advice, have changed the nature of the doctor-patient relationship (Rosen and Dewar 2004) and fostered increased patient engagement (eg Pomey et al 2015). The challenge to medical/scientific expertise has been amplified by the increasing popularity of alternative epistemologies (eg homeopathy), which are sometimes presented as equally valid and ‘truthful’ perspectives. Concurrently, the cost to the NHS of ageing populations has strengthened both government desire to erode professional autonomy and the justification for so doing. Funding issues and VFM discourse have become even more prominent as a result of the Global Financial Crisis (GFC) and government implementation of austerity policies, which some have described as primarily ideological, driven by the desire to undermine or destroy the welfare state (eg Clarke and Newman 2012; Alston 2018: 2),2 including the NHS (Exworthy et al 2016a; HM Treasury 2018). The exacerbation of social inequalities (Marmot et al 2020) as a result of austerity policies has generated parallel inequalities in health, causing the decline and even reversal of previous rises in life expectancy (Institute and Faculty of Actuaries 2019). The emphasis on VFM has also been utilised to delegate professional decisions on (medical) technologies to independent bodies, such as the English National Institute for Health and Clinical Excellence (NICE): the decline in doctors’ autonomy and splintering of responsibility for health care is exemplified by NICE’s power to set the standards and means by which treatments are evaluated. Concurrently, developments in AI, genomes and ‘big data’ (Raghupathi and Raghupathi 2014) have further constrained medical professionals’ ability to practise autonomously and work ‘at the limits of science – bringing the highest levels of human knowledge and skill to save lives and improve health’ (NHS Constitution 2012). A further dramatic change over recent decades has been in the demography of the medical profession. While women had long comprised the majority of the health care workforce, in recent years have they have also become the majority in the medical profession. Only once in the past 30 years (1995–96) have men outnumbered women in medical school entrants, despite a growing number of overall students (BMJ 2018). But though women are 45 per cent of doctors, they are only 25 per cent of medical directors (Gulland 2017). Indeed, it was only in the mid-2010s that the chairs (or presidents) of the main royal colleges and the chief medical officers of England, Scotland and Wales were women (ibid). There is other evidence of persistent gender discrimination: an independent review reported gender pay gaps of 24.4 per cent for hospital and community health doctors, 35.5 per cent for primary care doctors and 21.4 per cent for clinical academics (compared to a national gender pay gap of 17.3 per cent) (Dacre and Woodhams 2020).

2 Although officially justified as necessary to reduce public sector debt, austerity has been widely condemned (eg by the IMF; and the UN’s rapporteur on extreme poverty and human rights concluded that ‘British compassion for those who are suffering has been replaced by a punitive, mean-spirited, and often callous approach’ (Alston 2018: 2)).

498  Mark Exworthy and Simon Moralee Writing about the US experience, Hafferty and Castellani (2010: 293) conclude that the forces described above have eroded professional homogeneity and unity, leading to a ‘differentiated’ medical professionalism, characterised by multiple versions of knowledge and truth. This interpretation is supported by developments along the second and third axes. B.  Second Axis: Medical Professionalism and Organisations The second ‘axis’ concerns organisational disruption to medical professionalism in terms of modes and models of control through corporatisation and marketisation. The antipathy of the market state to the public sector, expressed through NPM and experienced across many Western countries (Ferlie et al 2005), dates in the UK from the publication of Griffiths’s NHS Management Inquiry (DHSS 1983). Public sector cost containment was fundamental to the neoliberal turn and, therefore, central to Griffiths’s proposals. In contrast to Bevan’s concern to safeguard medical expertise by shielding doctors from administrative concerns, Griffiths sought to achieve tight cost control by making doctors responsible for NHS budgets. This entailed involving doctors in budgeting, subjecting them to cost improvement programmes while also requiring better clinical outcomes and more cost-effective evaluation of new treatments (Timmins 2001). This subjection to (and accountability for) limited budgets was to be achieved through the imposition of audit, benchmarking, performance measurement and performance appraisal (Exworthy and Halford 1999).3 Busfield (2000: 125) characterises the profession not as a victim but rather as ‘part of the process of governmentality’. Citing Navarro (1976) and Foucault (1991), she depicts an intermeshing of the profession and state institutions, arguing that the resulting nexus of power links professional knowledge with managerialism. Support for this interpretation can be found in such developments in UK primary health care as clinical commissioning groups and the more recent integrated care systems. A different interpretation of the reconfigured state-profession relationship is offered by Gruen et al (2006: 94), who argue that as a result of austerity policies, doctors’ responsibilities may transcend a focus on individual patient care to involve ‘advocacy for and participation in improving the aspects of communities that affect the health of individuals’. In this view, the role of the medical professional has increasingly entailed treading a line between activism (speaking out with an independent voice) and mutualism (recognising the socio-economic and political context in which they work). Taken together, these various interpretations of the function and disposition of the contemporary medical professional in England and Wales support the argument that the profession is now highly differentiated. C.  Third Axis: Medical Professionalism and Work Roles The micro axis of change is, of course, intimately linked to both meso- and macro-level developments. Here, however, the focus is on disruption of the individual professional in terms of work role, autonomy, knowledge and evidence base and relationships with other professions. We therefore also consider the mechanism of control implicit within managerialism, pointing towards the complementary rise of a neo-bureaucracy (Farrell and Morris 2003). While some doctors initially opposed managerialism, others saw it as an opportunity to effect and



3 The

US Health Maintenance Organizations (HMOs) represented a similar response.

The Mutation of Medical Professionalism  499 manage change through the incorporation of management into the sphere of medicine (Hunter 1992). As a result, some medical professionals began to move into new terrains, transforming themselves into corporate figures, using their relationships with clinical colleagues to influence and cajole them into contributing to the managerial decision-making process (Iliffe and Manthorpe 2018). The scope of a doctor’s role now extends beyond managing budgets to include quality improvement, public and patient involvement, medical and nursing resource management and service planning (Gillam 2011; Spurgeon et al 2011). Such hybrid professional-­managerial roles have become more prevalent in health care organisations in the past three decades. This can be interpreted as the profession resisting the threat posed to their power by NPM by a re-professionalisation strategy that re-casts the balance of power within the profession. For instance, while marketisation policies have undermined the traditional model of service delivery oriented around the doctor, they have also given the profession greater control over practice and ownership – exemplified by the establishment of social enterprises and virtual/ online consultations with doctors-on-demand. In recent years, GP out-of-hours services have, for example, been particularly adept at using social enterprise as a vehicle for new forms of ownership and control (Sheaff et al 2018). Clarke and Newman (2012) interpret the development of quasi-managerial roles in terms of the drive to create ‘new subjectivities’ imbued with business sense, exemplified by the hybrid professional manager role (Ferlie et al 1996), having been specifically created by Griffiths to induce the internalisation of managerial logics (Miller 2014; see also Kippist and Fitzgerald 2009: 652), while also providing a means for doctors to respond to changing organisational forms. The more general reconfiguration of the public sector has entailed developing new occupational roles (or transforming existing ones), compounding the disruption to the autonomy and jurisdiction of medical professional practice. Physician associates, consultant nurses, advanced nurse practitioners and extended scope paramedics are all examples of extended allied health professional roles that now complement, but therefore also usurp, medical professionals’ traditional work roles (Greener 2009). Yet despite this blurring of the boundary that once protected doctors’ status and power, there has been little shift in the hierarchy of professions within health care (Kitchener 1999). Furthermore, although organisational change in UK hospitals was intended to transform Mintzberg’s professional bureaucratic model into a quasi-market archetype, it has largely failed to produce a business-like model. Instead, doctors’ reserves of symbolic capital have enabled them to preserve established attitudes and values (ibid: 198), resulting in hybrid organisational forms (and interpretive schemes). In summary, the cumulative effect of the disruptors described above suggest that they have produced dramatic changes, such as a reduction in public trust and belief in doctors’ omniscience and, consequently, a decline in the profession’s influence. Nevertheless, the profession’s response to these changes – their re-professionalisation strategy – has the potential to reinforce their power (albeit unevenly within the profession) over the longer term, and there are signs that current disruption of the medical profession might presage more fundamental re-structuring. III.  THEORISING TRANSFORMATIONS OF MEDICAL PROFESSIONALISM

Our theorisation of the transformations described above begins with Freidson’s (1994) re-stratification thesis and then turns to Adler and Kwon’s (2012) work on the ‘mutation’ of professionalism. We conclude with a brief discussion of the professionalisation of medical leadership and ‘post-truth politics’ as illustrations of the emergent mutation.

500  Mark Exworthy and Simon Moralee As discussed above, the socio-political context of the 1970s and 1980s was antithetical to the post-war welfare state (Exworthy and Halford 1999). The neoliberal policies and discourses and broader cultural trends (eg consumerism, higher levels of education, public concern with the role and status of professions, and the Internet) have eroded the profession’s autonomy and status across the world. This decline has formed part of a wider transformation of traditional professions, generating new developments in the sociology of the professions (see Gorman and Sandefur 2011). For instance, following Foucault, social scientists have conceptualised professionalism as a technology of control, illuminated through empirical studies of the impact of NPM techniques on the UK profession (eg Rhodes 1997; Clarke and Newman 1997; Pollitt and Bouckaert 2000; Ferlie et al 2005). This scholarship has revealed how actors introduced into the medical field to implement NPM (such as managers, supervisors, and human resources personnel) have transformed professional working conditions and technologies of practice, and contributed to the shift in goals away from health provision towards ‘value for money’ and ‘efficiency and transparency’. A related theoretical approach has conceptualised the profession’s loss of cultural authority and autonomy as a process of proletarianisation (Haug 1973; Starr 1982). Freidson’s (1994) re-stratification thesis offers an alternative explanatory model, which elaborated the de-professionalisation and proletarianisation theses by addressing the impact of increased bureaucratisation (managerialism), greater specialisation, and changing relations with their clients. This led him to conclude that the profession was fragmenting from within, through its own ‘internal combustion’ (Exworthy and Halford 1999: 15). Freidson foresaw, therefore, a situation in which the profession’s cohesion was becoming strained, as members had less in common with each other (see also Johnson 1972). However, the re-stratification thesis posits that while homogeneity is fundamental to collegial professions, in practice they always comprised (albeit often implicitly) three groups: rank-and-file professionals, the knowledge elite and the administrative elite. These groups differ in size and composition, and the power balance between them constantly changes. First, the rank-and-file represent the broad swathe of membership, whose interests are aligned primarily with the professional logic, epitomised by the presentation of professional labour as neutral. Thus, the quality of such labour is ‘best assured through the twin techniques of professional training … and subsequent reinforcement through involvement with colleagues and professional associations’ (Kitchener and Exworthy 2008: 210–11). Training inculcates professional values and norms, and the ongoing socialisation through day-to-day practice reinforces these and the profession’s reputation. Until the collapse of Keynesianism, Western governments endorsed this (collegiate) logic and protected the autonomy it mandated. Second, the knowledge elite refers to professionals who occupy roles in education and research. This group devises and promulgates the standards and guidelines which, in turn, shape the norms and behaviours of rank-and-file professionals. The knowledge elite always played a pivotal role in professionalisation through training, but in the past 30–40 years their professional status has risen as a result of the rise of evidence-based medicine (Harrison 1999) and the associated regulatory architecture (eg National Institute for Health Care and Excellence, NICE in the UK) (Timmins et al 2016). More recently, knowledge management has evolved to assume various forms, reflecting not just the evidence-based movement but also the influence of managerial logics, exemplified by management consultants (Ferlie et al 2016; Ferlie et al 2018). Third, the administrative elite refers to those who assume (quasi-)formal roles in directing and supervising peers. Given the traditional collegial nature of professions and the character of the professional bureaucracy (Mintzberg 1979), this role had previously been rather nominal.

The Mutation of Medical Professionalism  501 Such professionals acted as guardians of the profession, operating in a loosely-coupled structure within the organisation’s administration (Ackroyd et al 1989) to shield their peers from bureaucratic ‘excesses’ (Flynn 1999). However, managerialism (together with other disruptors) furthered the re-stratification process, re-casting the administrative elite as a managerial elite (Clarke et al 1994). Increasingly, it became oriented towards organisational goals, assuming prominent organisational positions from which they challenged professionally-defined standards (Freidson 1985): the performance paradigm became emblematic of this shift (Exworthy 1998). Central to this shift was an erosion of the notion of equality of competence (aided largely by the growing evidence of variations in professional practice and their outcomes) (see also Moorhead 2010 on the legal profession). Traditionally, a medical qualification conferred social and professional status and hence the legitimacy of medical opinion: (openly) questioning the practice of another professional therefore breached professional etiquette. The erosion of this supposed equality of competence entailed the need to demonstrate competence (Power 1999), providing a further justification for NPM audits and later re-validation (a regulated form of periodic re-certification) (Greenhalgh and Wong 2011). It was implicit in this managerial logic that the knowledge and evidence (generated by the knowledge elite) would form the basis for the administrative elite to ‘manage’ the rank-and-file, thus reinforcing re-stratification. Arguably, the knowledge and administrative elite recently became fused in some respects. Freidson’s re-stratification model is sufficiently flexible to accommodate the professional triumvirate, though it is ill-suited to analyse more fundamental changes, which depart from this classification of rank-and-file, knowledge and administrative/managerial elites. Freidson’s thesis has been applied and developed by others. For example, Waring and Bishop (2013) attest that the medical profession has been compelled into a form of McMedicine, after Ritzer’s (1993) notion of McDonaldization, where the social organisation of professional expertise has been transformed by global bureaucracy and market logics into rationalised and standardised practices and identities, as well as a new form of commercial restratification, in which the profession aligns itself with the new marketised world. Furthermore, Hafferty and Castellani (2010) suggest that professionalism now comprises seven types: nostalgic; entrepreneurial; academic; lifestyle; empirical; unreflective; and activist. Their model is premised upon the notion of a medical professional who is both altruistic and outward-looking and self-interested and introspective. Nonetheless, whether the representation is dualistic or multi-faceted, the last few decades have transformed medical professionalism and, relatedly, reconfigured the administrative elite as hybrids, split between professional and managerial logics. However, Causer and Exworthy (1999) noted that conceptualising professional and managerial domains as dichotomised represents an over-simplification of the articulation between these two (competing) logics. First, the administrative elite may be internally stratified (between professional and managerial practice); second, managerial roles may be conducted alongside professional practice; and third, rank-and-file professional work may also involve (quasi-)managerial functions (in directing or supervising other staff or resources). A key element of (professional) hybridity is the distinction between those who continue to practise (clinically) and those who relinquish their clinical duties (ibid). Hybrids rely on their professional identity to enhance their (professional and managerial) authority and legitimacy. However, the further professionals depart from clinical practice, the less identity and authority they will have as a ‘medical manager’, both of which are relevant to managing medical performance (Exworthy et al 2003). McGivern et al (2015) made an important conceptual distinction between (managerial) hybrids who undertook managerial responsibilities for a limited period or in conjunction with their professional duties and those who did so more permanently. Incidental hybrids were thus temporary post-holders, whose roles did not

502  Mark Exworthy and Simon Moralee threaten their identity as professionals, whereas strategic hybrids had largely relinquished their professional role, potentially losing their professional identity. The distinction between incidental and strategic hybrids is shaped by professional norms, identity, and careers as well as by broader managerial reforms. However, McGivern et al (ibid) identified a crucial difference in terms of those individuals’ formative experience, possibly through a visionary leader, exposure to managerial activities, or dissatisfaction with the professional status quo. The re-stratification thesis describes change not only in medical-managerial terms but also in medical-medical terms. Their competing logics are not mutually exclusive but may include: entrepreneurial, managerial, professional, and public service (Waring and Bishop 2013). At the same time, there is some debate about whether these archetypes remain relevant in explaining contemporary public sector organisations (Kirkpatrick and Ackroyd 2003). Elston (2009) points towards a new articulation of professionalisation founded on new forms of accountability, including new doctor-patient relations. As discussed above, the threat to professional independence from the transformation into an organisational profession, effected by the NHS Act, has been intensified by the encroachment of government (and elsewhere by corporations) through NPM measures. NPM’s performance paradigm challenges medical performance and revalidation, while doctors’ external accountability has been enhanced by the concomitant reconfiguration of patients as consumers who, as a result of the proliferation of information on the Internet (Susskind and Susskind 2015), are increasingly able to hold their doctors accountable.4 IV.  MUTATION OF PROFESSIONALISM

In this section, we build on our description of the confluence of forces and interests, internal and external, which in recent decades have transformed the scope, cohesion and power of the medical profession. In addition to drawing on Freidson’s re-stratification thesis (above), we elaborate Adler and Kwon’s (2013) notion of the ‘mutation of professionalism’ (see also Hafferty and Castellani 2010; Waring and Bishop 2013), with reference to medical leadership (a development internal to the profession) and to post-truth (an external vector of change). Mutation here does not necessarily imply a diminution of medical power or prestige. Rather, we argue that the profession’s flexible response to the changing environment of the late twentieth century may be indicative of its ability to retain power in different forms and settings. The notion that the profession has fractured implies a fundamental fissure in its structure and composition. Freidson’s (1994) re-stratification thesis identified disjunctures between the rank-and-file and two ‘elite’ groups related to knowledge and administration/­management However, these disjunctures arguably did not create a clear fault line. Disjunctures have often been temporary and remediable, sometimes enhancing professional power and prestige. Others have applied this thesis (eg McDonald et al 2007; Waring 2014), identifying disjunctures relating to evidence-based medicine, consumerism or management (for example). These studies tended to examine the bonds between professional strata rather than the re-formation, re-formulation and re-constitution of the medical profession. The notion of mutation therefore seems more appropriate. Our starting point is Adler and Kwon (2012: 930), who saw mutation as a ‘contested diffusion process that spreads new organizing practices among professionals’. Writing within the Anglo-American tradition, they 4 The persistence of inimical doctor-patient relations detracts from the potentially beneficial effects of this new professionalism, as seen in recent medical scandals (McGivern and Fischer 2010).

The Mutation of Medical Professionalism  503 focused on clinical guidelines, organising their study of institutional change at three levels: individual professionals; professional organisations; and the broader institutional field. This has resonance with both Exworthy and Halford (1999) and Scott (2008); the former distinguished between the individual, the collective and discourse in analysing professional-managerial relations, while the latter employed the notions of regulative, normative and cultural-cognitive pillars. Our focus here, however, is broader than Adler and Kwon’s concern with innovation and guidelines. Mutation implies a fundamental transformation or metamorphosis of doctors’ occupational role and identity, which will affect all doctors as they respond to social and cultural forces. We add a fourth level: the transnational (incorporating capital and the Internet). At an individual level, doctors’ roles are likely to be transformed by technology (for example) as online video consultations become more commonplace, not just for the normally healthy, working age population. Such consultations could also generate and be subject to more intense data analysis through private companies (eg Google Deep Mind). More invidiously, traditional doctor-patient consultations may no longer be the primary source of medical advice as new collaborations are developed through Facebook-style networks with other patients or interests (see also the discussion of post-truth politics, below). Moreover, individual doctors will be ‘subject to’ AI and machines (eg robots) taking over traditional professional roles, as well as becoming the ‘subject of’ big data (Susskind and Susskind 2015). While the character of medical careers and professionalism will inevitably be shaped by these developments, it is less clear how doctors themselves will shape them; it is more likely that they will not control such developments. This, however, privileges technological determinism, which often overlooks the socio-technical aspects of health care delivery (Greenhalgh et al 2018). Multiple futures are likely to co-exist but, over time, it is likely that corporate influence (not just in health care provision) will increase, to the detriment of public sector organisations and the state. Doctors will thus become more corporatised (with a further loss of autonomy). While collectively, the collegiality of doctors may be threatened by corporatisation, with consequences for the organisation, regulation and status of the profession, collegial relations may be retained through existing and new professional networks. For example, the chairs of Clinical Commissioning Groups in England (2013–2022) (which ‘purchase’ from health care providers) occupy quasi- or formal superordinate positions vis-à-vis their medical peers in terms of prescribing or other forms of performance. GPs’ technical autonomy has been eroded not only by the managerial imperatives described above but also by the standardisation and systematisation of clinical processes (Mannion and Exworthy 2017; Gore et al 2018). Although the latter are subordinated to the personalisation of care for individual patients, their impact on professional discretion is nevertheless threatening. Roles will shift within and beyond the medical profession, notably in terms of sub-specialisation (eg GPs with special interests) but also, as discussed above, through the delegation to other health care professionals, the creation of new medical occupations (eg physician associates), and new employment arrangements: salaried positions (as opposed to partnerships), locum and other flexible working patterns. This mutation of roles and identities will shift over the course of a doctor’s career. The actual re-organisation of roles may be less important than the process by which this is undertaken (who is in control) and on what basis (whose knowledge/evidence is ascendant). As with the impact of big data above, it cannot be assumed that doctors will control these developments. Individual doctors and the medical profession may still retain high levels of trust (Calnan and Rowe 2006; Ipsos Mori 2019), but the status and position of their professional bodies has been under threat for some time. Membership of traditional professional bodies, such as the voluntary trade union (British Medical Association), grew steadily

504  Mark Exworthy and Simon Moralee (from 110,000 in 1999 to 170,000 in 2015) (Clarke 2019); but as a result of the handling of contract disputes in 2016 it returned to pre-dispute levels. Moreover, new bodies have been created (eg the Faculty of Medical Leadership and Management (FMLM), to represent doctors in leadership roles). While still small (about 2,500 members: FMLM 2021), this represents a significant number given that it was established only in 2011; and it both provides a ‘home’ for doctors who see their careers as something more than a clinical specialism and sets standards and offers guidance about how to engage as leaders and managers within the broader socio-political context (FMLM 2015). Institutionally, professional self-regulation was lost in the early years of the twenty-first century as a result of several high-profile scandals (Dixon-Woods et al 2011). Moreover, the (managerial) discourse has been less adversarial and critical, focused instead on incorporation and assimilation by (parts of the) profession. This has mutated into a discourse of (medical) leadership, which is often presented as a response to a variety of problems in and of the medical profession (O’Reilly and Reed 2010). Medical leaders can and do identify with subordinate clinicians (thereby enhancing overall organisational performance; Goodall 2011), often invoking quality improvement (Baker and Denis 2011). Yet some leadership roles may have malign effects (in the form of bullying and harassment) (Martin and Learmonth 2012). The ensuing self-normalisation of leadership resonates with Miller’s (1992) notion of the ‘calculating self’, a self-normalising process in which the individual doctors become subject to, and the object of, a discourse of leadership (O’Reilly and Reed 2010: 963). The carriers of such a mutation of professionalism are thus not just clinical guidelines (Adler and Kwon 2012) but also a panoply of mechanisms and discourses. These developments interact (at multiple levels), generating the sorts of scenarios which Susskind and Susskind (2015) envisage, ranging from a traditional status quo to more radical impacts. We explore how these developments are playing out in two respects. V.  EXAMPLES OF A MUTATING MEDICAL PROFESSION?

Two contrasting examples illustrate the notion and application of the mutation of medical professionalism. While the first is specific to English health care, the second is more widely applicable. Both address Adler and Kwon’s call for multi-level analysis (2012). A.  Case Study 1: Medical Leadership and Leaderism The emergence of leaderism discourse in the (English) health care system reflects the recent evolution of NPM and the medical profession’s response (Hafferty and Castellani 2010). Leaderism is ‘… a set of emergent discourses about leadership and as a set of framing metaphors encapsulating ideas of the process of “leading change” in the public services’ (O’Reilly and Reed 2010: 960). Waring and Bishop (2013: 147) argue that ‘doctors’ responses to bureaucratic and commercial structures reflect their own structured forms of power’, leading them to seek opportunities for commercial re-stratification. Their views capture varying responses to the leaderism that may emerge in the shape of ‘corporate elites’ (those who hold managerial/ clinical leadership positions), moving long-standing arguments from the traditional notion of hegemony/resistance to one of mutual constitution. Hence, the initial conflictual posture has evolved into partial collaboration (with some doctors engaging with leaderism), resulting in its wider prevalence (Clarke and Newman 2012). This pervasiveness of leaderism as

The Mutation of Medical Professionalism  505 a normative position – the benefits deriving from the traits of medical professionals, which ensure a ‘more trustworthy, client-facing and knowledge-informed management of complex health care organisations’ (Ferlie 2018: 278) – is the focus. In this discourse, doctors need to demonstrate leadership from self, to team, organisation and system. Since the 1960s, initiatives by government, professional regulators and the profession have led to increasing the engagement and involvement of frontline medical practitioners in roles associated with leadership and management, furthering re-stratification and increasing role hybridity. All these changes, notably those emanating endogenously from the profession since the early 2000s, indicate that medical leadership is increasingly prominent on the NHS agenda. Recently, this has been further emphasised in the wake of influential reports (Francis 2013; Keogh 2013; DHSC 2018). In addition, the FMLM leadership and management standards communicate a set of core values and behaviours expected of medical leaders, with plans for a more comprehensive programme to enable organisations to help doctors develop as leaders (FMLM 2015). All these developments contribute to the mutation from managerialism to leadership/leaderism, creating a career path in which doctors assume medical leadership roles directly after qualification. Ferlie (2018), recognising that the notion of medical leadership reflects neoliberal influences, compares the UK experience to that of the USA through Montgomery and Oliver’s (2007) four-stage model: informal networking among like-minded professionals, until the 2000s; outward-facing activity and on-boarding of new members from 2005; the ongoing formation of a new social identity; and a process of institutionalisation and legitimisation not yet fully realised. i.  Colonisation of Leadership as an Acceptable Face of Medical Professionalism It would therefore appear that doctors and ‘leadership’ are now seen as a natural fit (Dickinson et al 2013; Spurgeon et al 2011). Yet this development can also mask subtle and covert resistance among professionals to leadership roles and their associated discourses (Exworthy et al 2019). One possible future for medical professionalism is continued adaptation to the efforts of state and society to engage with them as ‘leaders’. Adopting more managerial and leadership roles is one response. Embracing a ‘co-produced’ model of care delivery, in line with ‘systems thinking’ and understandings of ‘how complex adaptive systems function’ (Hunter 2008: 191) offers a further opportunity for medical leadership. Medical practitioners in Scandinavian countries and the US already play a significant role in shaping service design as medical leaders, although experience elsewhere in Europe and Australasia is more akin to the UK’s historical position (Ham and Dickinson 2008). Moreover, a new wave of texts written for doctors by doctors and medical educators (Gillam 2011; Spurgeon and Klaber 2011; Stanton et al 2009; Swanwick and McKimm 2011) discuss the need for doctors to have a greater awareness of themselves and the contemporary context of managing and leading as part of teams of clinical professionals and others. But though leaderism has thus become a normative doctrine, resistance remains. O’Reilly and Reed (2010: 969) argue that ‘the metaphor of leadership’ implies ‘a social commonality and commitment, and thus a social responsibility’ shared by leaders and followers. For Martin and Learmonth (2012: 287), the term leadership makes it ‘more attractive for doctors to take on particular roles in organizations, and make[s] them more sympathetic to policy changes of the kind traditionally opposed by the medical profession’, an interpretation consistent with Clarke and Newman’s (2012) argument that neoliberal reforms are accomplished through transforming existing subjectivities.

506  Mark Exworthy and Simon Moralee B.  Case Study 2: ‘Post-Truth Politics’ We use post-truth to signal the challenge to doctors’ monopoly of truth, knowledge and trust, thereby questioning health care services as organised and delivered in many countries. i.  What is ‘Post-Truth’? According to Grech (2017: 118), Tesich (1992) coined the phrase ‘post-truth’ to describe: a mostly political setting whereby debate is framed by appeals to emotion, with repeated assertion of half-truths and outright lies whose factual rebuttals are ignored. Actual truth is relegated as being of secondary importance, a totally alien and inconceivable concept in the sciences.

Fuller (2017: 1) criticises such definitions as pejorative, reflecting a dominant view of facts as superior to emotions, and prefers to characterise the conflict as one between ‘the elite experts and the populist demagogues’. The manipulation of evidence for ulterior motives is hardly new. Dossey (2017: 150) recounts Frank Rich’s 2006 concept of ‘truthiness’ – ‘slippery statements that contain enough truth that they cannot be entirely denounced as outright lies, as in instances of post-truth’ – as evidence that facts have always been malleable and used selectively by those who wish to convince others. Thus, the notion of evidence has itself been problematised and, by association, so has the role of the expert. It has become acceptable for governments to present inconsistent ‘facts’ from different sources. In the UK, the Office for National Statistics or the Institute for Fiscal Studies may offer one analysis only for ‘spin’ to emerge from the shadows of government. In addition, the post-truth era has been facilitated by the emergence of the Internet (implying that knowledge is no longer the preserve of experts) and social media (which has empowered the citizen voice as an alternative to established and credible news media). The public is thus faced with competing accounts, and the intersection of the Internet and social media often creates space for the ‘revealed preferences’ making laypeople ‘more confident to decide matters of truth for themselves’ (Fuller 2017: 3). ii.  Post-Truth and the Medical Profession How do medical professionals respond to a post-truth world? Prior experience offers insights. Rowell and Evans-Reeves (2017) discuss how the major tobacco companies waged a war of misinformation through the infamous 1953 public relations campaign to discredit the findings of Doll and Bradford Hill regarding the causal links between smoking and cancer. This shows that the medical profession has always had to be aware of (and ready to counter) misinformation. The subsequent rise of evidence-based medicine (EBM) and increasing adoption of guidelines and protocols (for reasons of standardisation, equity, and cost containment as well) emerged in the context of such challenges to truth claims. Likewise, the now-discredited ‘research’ by Andrew Wakefield (1999) regarding the alleged link between the MMR vaccine and autism continues to encourage a well-organised ‘anti-vaxxer’ campaign in many Western countries, including Italy and the US (Economist 2019; Pavolini et al 2018). The same can perhaps also be said in support for alternative therapies and dietary advice. Michael Marmot (2017: 438) recalls the work of Atul Gawande (2016), who identified five hallmark moves of pseudoscience: argue that consensus emerges from a conspiracy to suppress dissenting views; produce fake experts; cherry-pick the data as a means of challenging an entire field; false analogies and other logical fallacies; set impossible expectations of research.

The Mutation of Medical Professionalism  507 Reflecting on this, Marmot (2017: 497) argues that: Truth is central to the core mission of the medical and scientific literature. What is the worst sin, work-related, a scientist can commit? Lying. Stealing someone else’s ideas is reprehensible but it acknowledges the importance of the ideas in the pursuit of truth. Lying, falsifying evidence, means that we have no basis for communication. The whole enterprise crumbles.

Traditionally, medicine (like other established professions) relied on the ‘cumulative weight’ of expertise and experience to legitimate its position (Fuller 2017). The ‘truth’ of scientific facts is thus valid only in the context of the scientific academy. EBM has been central to this in recent years. Yet EBM has been under assault for the last 30 years (Mykhalovskiy and Weir 2004). The evidence hierarchy, in which randomised controlled trials (RCTs) displaced personal experience (Harrison 1999), is effectively undermined by post-truth politics. EBM is closely allied to evidence-based policy-making (EBPM): ‘what counts is what works’ (Boaz et al 2019). Both presume the presence of largely incontrovertible evidence upon which practice can be grounded or policy formed; however, alternative perspectives, including those of the patient, have come to be deemed as equally valid. Therefore, the politics of the post-truth era present a challenge of responsibility at both the individual level of the physician and the profession as a whole and have consequences for welfare states and the provision of universal health care (Krugman 2017; Pavolini et al 2018). Fuller (2017: 25) equates the post-truth era to a ‘post-fact’ epistemology, ‘a wilful denial of solid, if incontrovertible, pieces of evidence whose independent standing sets limits of what can be justifiably asserted about the world’. These post-truth movements involve the ‘secularisation of knowledge’ and therefore question the maintenance of universal services, favouring private solutions (eg out-of-pocket payments and/or insurance). In turn, this can reduce the role of the state as a funder and provider of services, directly linking them to the NPM logic of marketisation. Post-truth politics also challenge the profession’s monopoly of knowledge (Haug 1973). ‘Truth’ is the ‘mask of legitimacy that is worn by everyone in the pursuit of power’ (Fuller 2017: 4). At the collective level of the profession, there has been an erosion of authority and trust over patients, furthered by the Internet and social media (Haug 1988). At the same time, the medical profession remains one of the most trusted professions (93 per cent), second only to nurses (95 per cent) and better than judges (81 per cent) and totally eclipsing that of politicians (14 per cent, Ipsos Mori 20195). These levels of trust, however, vary greatly across nations (Pavolini et al 2018). And patients are more trusting of individual doctors than they are of the profession as a whole (Ipsos Mori 2019), perhaps because of the latter’s poor record of governance and self-regulation (Dixon-Woods et al 2011). Horton (2017: 1282) argues that ‘scientists need to recognise that they are advocates with vested interests too – in their case, in their own science’. As Dossey (2017: 152) attests, there are ‘science-for-hire’ arrangements between scientists/physicians and big pharmaceutical companies, conflicts of interest in institutions that ostensibly protect public health, cover-ups of risks to public health due to pesticides and climate change, and collusion among Big Pharma to keep prices high and suppress competition. In addition to the individual ethical choices doctors make, the wider profession has a responsibility to ensure that its members adhere to standards of governance and behaviour (Dossey 2017). All these developments may not compel a fundamental reconfiguration of the medical profession but rather a mutation which would imply a realignment of the relationship 5 The question asked was ‘Now I will read you a list of different types of people. For each would you tell me if you generally trust them to tell the truth, or not?’.

508  Mark Exworthy and Simon Moralee between politics, science and judgement (Fuller 2017). As Chan (2017) concludes: ‘In a posttruth, post-fact world, views that appeal to emotions and personal beliefs are more influential than objective evidence-based facts’. In light of this, how might the medical profession respond? Defenders of the public service orientation (and indeed the wider profession) could be seen as resisting the deleterious effects of post-truth politics. Many doctors have provided such safeguards during previous challenges, notably managerialism. That doctors have been able to facilitate, resist, and incorporate exogenous threats demonstrates the mutability of the profession (Speed and Mannion 2017). However, the pervasiveness of the post-truth challenge represents a significant moment in the trajectory of the medical profession in Western countries since it is concerned with the conditions under which (medical) knowledge is legitimately held by (medical) professionals and alternative perspectives are deemed valid (Fuller 2017). The change in conditions (largely enabled by the Internet and social media) is not necessarily detrimental to professional power as long as the democratisation of knowledge is equitable and the mechanisms by which knowledge is generated are transparent. Indeed, Fuller (2017) claims that issues of scientific consensus and peer review – what counts as verifiable evidence and inferences – are likely to face further challenges from such changes. VI. CONCLUSIONS

What broader conclusion can be drawn from this assessment of the UK medical profession? This chapter has charted the ways in which the profession has responded to internal and external imperatives over recent decades. We sought to explain the profession’s responses by developing Freidson’s thesis of ‘restratification’ (1985) into one of mutation (following Adler and Kwon 2012), elaborating that notion through two contrasting case studies: leadership and leaderism, and post-truth politics. The mounting pressures on health care systems seem inevitable and endless and professionalism is also undergoing continual change. Ageing populations, co-morbidities and chronic diseases have become characteristic of many countries. However, it does not necessarily follow that the medical profession (as presently configured) is best placed to respond. Although it retains high levels of public trust, it is being held accountable in more ways than ever before. It has therefore sought to re-affirm its pre-eminent position among other (clinical) occupational groups; but in doing so, it has amplified pre-existing divisions, which have been exacerbated by the many (new public management) reforms relating to marketisation, performance and accountability. It is in this context that we argue that professionalism mutates. Pink’s (2010) view of modern professionalism in terms of autonomy, mastery and purpose is too narrow to capture the multiple and intersecting forms it appears to be adopting. To make sense of them, Adler and Kwon (2012) advance a research agenda based on modularity, uncertainty and power. Modularity might refer to the profession’s actions, reactions and interactions with other occupations (some of which may be competitors). Uncertainty might refer to the ways in which practices and concepts are contested among these and other groups; evidence and knowledge are prime illustrations. Power returns the debate to the conceptualisation of professions, with a focus on the ability of the medical profession to exert power through discursive practices and structures. This agenda transcends health care and will have implications for other industries and professions, including law and its principal actors, lawyers.

The Mutation of Medical Professionalism  509 REFERENCES Ackroyd, S (2016) ‘Sociological and organisational theories of professions and professionalism’, in M Dent, IL Bourgeault, J-L Denis and E Kuhlmann (eds), The Routledge Companion to the Professions and Professionalism (London, Routledge) ch 1. Ackroyd, S, Hughes, J, and Soothill, J (1989) ‘Public Sector Services and their Management’ 26 Journal of Management Studies 603–19. Adler, PS and Kwon, S-W (2012) ‘The Mutation of Professionalism as a Contested Diffusion Process: Clinical Guidelines as Carriers of Institutional Change in Medicine’ 50 Journal of Management Studies 930–62. Alston, P (2018) Statement on Visit to the United Kingdom United Nations Special Rapporteur on extreme poverty and human rights 16 November. Baker, G and, Denis, J-L (2011) ‘Medical Leadership in Health Care Systems: from Professional Authority to Organisational Leadership’ 21 Public Money and Management 355–62. Bevan, A (1948) ‘A Message to the Medical Profession from the Minister of Health’ 2 (4565) 3 July British Medical Journal 1. BMJ (2018) ‘Number of women entering medical rises after a decade of decline’ 27 January 2018 www. bmj.com/bmj/section-pdf/959692?path=/bmj/360/8138/Careers.full.pdf. Boaz, A, Davies, HTO, Nutley, SM and Fraser, A (eds) (2019) What Works Now? Evidence-based Policy and Practice Revisited (Bristol, Policy Press). Bucher, R and Strauss, AL (1961) ‘Professions in Process’ 66 American Journal of Sociology 325–34. Busfield, J (2000) Health and Health Care in Modern Britain (Oxford, Oxford University Press). Calnan, M and Rowe, R (2006) 20 Journal of Health Organisation and Management 349–58. Carr-Saunders, AM and Wilson, PA (1933) The Professions (Oxford, Clarendon Press). Causer, G and Exworthy, M (1999) ‘Professionals as Managers across the Public Sector’ in M Exworthy and S Halford (eds), Professionals and the New Managerialism in the Public Sector (Buckingham, Open University Press) 83–101. Chan, M (2017) Grand Challenges for the Next Decade in Global Health Policy and Programmes Keynote address at a celebration of the 10th anniversary of the University of Washington’s Department of Global Health, Seattle, Washington, USA; 8 February. Checkland, K, Coleman, A, McDermott, I and Peckham, S (2016) ‘Clinically-Led Commissioning: Past, Present and Future?’ in M Exworthy, R Mannion and M Powell (eds), Dismantling the NHS? Evaluating the Impact of Health Reforms (Bristol, Policy Press) 149–70. Clarke, D (2019) British Medical Association (BMA): Membership in the United Kingdom (UK) 1999–2018 Statista 2 October www.statista.com/statistics/286137/british-medical-association-bmamembership-in-the-united-kingdom-uk/. Clarke, J and Newman, J (2012) ‘The Alchemy of Austerity’ 32 Critical Social Policy 299–319. Clarke, J, Newman, J and McLaughlin, E (eds) (1994) Managing Social Policy (London, Sage). Crouch, C (2000) Coping With Post-Democracy (Fabian Society) www.fabians.org.uk/wp-content/ uploads/2012/07/Post-Democracy.pdf. Dacre, J and Woodhams, C (2020) Mind the Gap: the Independent Review into Gender Pay Gaps in Medicine in England (London, DHSC). Department of Health (2010) Equity and Excellence: Liberating the NHS CM 7881 July (Norwich, TSO) assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/213823/ dh_117794.pdf. Department of Health and Social Care (2018) Empowering NHS Leaders to Lead Sir Ron Kerr 26 November assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/759623/Ron_Kerr_report_-_Empowering_NHS_leaders_to_lead.pdf. Department of Health and Social Security (1983) NHS Management Inquiry (Griffiths Report) (London, HMSO). Devlin, H and Boseley, S (2020) ‘Scientists criticise UK government’s “following the science” claim’ Guardian 23 April 2020 www.theguardian.com/world/2020/apr/23/scientists-criticise-uk-governmentover-following-the-science.

510  Mark Exworthy and Simon Moralee Dickinson, H, Ham, C, Snelling, I and Spurgeon, P (2013) Are We There Yet? Models of Medical Leadership and their Effectiveness: An Exploratory Study Final Report (National Institute for Health Research Service Delivery and Organisation programme). Dixon-Woods, M, Yeung, K and Bosk, CL (2011) ‘Why is UK Medicine No Longer a Self-Regulating Profession? The Role of Scandals Involving “Bad Apple” Doctors’ 73 Social Science and Medicine 1452–59. Domagalski, T (2007) ‘Organization and Subjectivity in the US Medical Profession: Physician Responses to Structural Changes within Advanced Capitalism’ in D Muzio, S Ackroyd and JF Chanlat (eds), Redirections in the Study of Expert Labour (Basingstoke, Palgrave) 118–38. Dossey, L (2017) ‘Post-Truth, Truthiness, and Healthcare’ 13 Explore 147–54. Economist (2019) ‘Measles Outbreaks in America Are Getting Harder To Contain’ www.economist.com/ graphic-detail/2019/03/09/measles-outbreaks-in-america-are-getting-harder-to-contain. Elston, M-A (2009) ‘Re-making a Trustworthy Medical Profession in Twenty-first Century Britain’ in J Gabe and M Calnan (eds), The New Sociology of the Health Service (London, Routledge). Exworthy, M (1998) ‘Clinical Audit in the NHS Internal Market: from Peer Review to External Monitoring’ 13(2) Public Policy and Administration 40–53. Exworthy, M, Gabe, J, Jones, IR and Smith, G (2019) ‘Professional Autonomy and Surveillance: the Case of Public Reporting in Cardiac Surgery’ 41(6) Sociology of Health and Illness 1040–55. Exworthy, M and Halford, S (1999) Professionals and the New Managerialism (Buckingham, Open University Press). Exworthy, M, Mannion, R and Powell, M (eds) (2016) Dismantling the NHS? Evaluating the Impact of Health Reforms (Bristol, Policy Press). Exworthy, M, Wilkinson, EK, McColl, A, Roderick, P, Smith, H, Moore, M and Gabbay, J (2003) ‘The Role of Performance Indicators in Changing the Autonomy of the General Practice Profession in the UK’ 56 Social Science and Medicine 1493–1504. Faculty of Medical Leadership and Management (2015) Leadership and Management Standards for Medical Professionals, 2nd edn www.fmlm.ac.uk/sites/default/files/content/page/attachments/ Leadership%20and%20Management%20Standards%20for%20Medical%20Professionals%20 2nd%20Edition%20-%20digital%20format_0.pdf. —— (2020) Join www.fmlm.ac.uk/join. Farrell, C and Morris, J (2003) ‘The “Neo-Bureaucratic” State: Professionals, Managers and Professional Managers in Schools, General Practices and Social Work’ 10(1) Organization 129–56. Ferlie, E (2018) ‘The Professionalization of Medical Management? The Slow and Chequered Case of UK Health Care’ in A Ortenblad (ed), Professionalising Leadership: Debating Education, Certification and Practice (Basingstoke, Palgrave Macmillan) ch 15. Ferlie, E, Ashburner, L, Fitzgerald, L and Pettigrew, A (1996) The New Public Management in Action (Oxford, Oxford University Press). Ferlie, E, Dopson, S, Bennett, C, Fischer, M, Ledger, J and McGivern, G (2018) The Politics of Knowledge Management in Times of Austerity (Oxford, Oxford University Press). Ferlie, E, Ledger, J, Dopson, S, Fischer, MD, Fitzgerald, L, McGivern, G and Bennett, C (2016) ‘The Political Economy of Management Knowledge: Management Texts in English Healthcare Organisations’ 94 Public Administration 185–203. Ferlie, E, Lynn, L and Pollitt, C (eds) (2005) Oxford Handbook of Public Management (Oxford, Oxford University Press). Flexner, A (1910) Medical Education in the United States and Canada (New York, Carnegie Foundation for the Advancement of Teaching). Flynn, R (1999) ‘Managerialism, Professionalism and Quasi-markets’ in M Exworthy and S Halford (eds), Professionals and the New Managerialism in the Public Sector (Buckingham, Open University Press) 19–36. Foucault, M (1976) The Birth of the Clinic: An Archaeology of Medical Perception (trans AM Sheridan) (London, Tavistock).

The Mutation of Medical Professionalism  511 —— (1991) ‘On Governmentality’ in G Burchell, C Gordon, and P Miller (eds), The Foucault Effect: Studies in Governmentality (London, Harvester Wheatsheaf). Francis, R (2013) The Mid Staffordshire NHS Foundation Trust Public Inquiry assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/279124/0947.pdf. Freidson, E (1970a) Professional Dominance: The Social Structure of Medical Care (Chicago, Aldine). —— (1970b) Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York, Harper & Row). —— (1985) ‘The Reorganization of the Medical Profession’ 42 Medical Care Review 11–35. —— (1986) Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago, University of Chicago Press). —— (1994) Professionalism Reborn: Theory, Prophecy, and Policy (Chicago, University of Chicago Press). Fuller, S (2017) Post-Truth: Knowledge as a Power Game (London, Anthem Press). Guardian (2020) ‘Johnson Blocks Scientist from Answering “Political Questions” at Coronavirus Briefing’ 28 May www.theguardian.com/politics/video/2020/may/28/johnson-blocks-scientists-from-answeringpolitical-questions-at-coronavirus-briefing-video. Gawande A (2016) ‘The Mistrust of Science’ The New Yorker 10 June. Gillam, S (2011) Leadership and Management for Doctors in Training: a Practical Guide (London, Radcliffe). Goodall, AH (2011) ‘Physician-leaders and hospital performance: is there an association?’ 73 Social Science & Medicine 535–39. Gore, O, McDermott, I, Checkland, K, Allen, P and Moran, V (2018) ‘Discretion Drift in Primary Care Commissioning in England: Towards a Conceptualisation of Hybrid Accountability Obligations’ 98(2) Public Administration 291–307. Gorman, EH and Sandefur, RL (2011) ‘“Golden Age,” Quiescence, and Revival: How the Sociology of Professions Became the Study of Knowledge-Based Work’ 38(3) Work and Occupations 275–302. Grech, V (2017) ‘Fake News and Post-truth Pronouncements in General and in Early Human Development’ 115 Early Human Development 118–20. Greener, I (2009) Healthcare in the UK: Understanding Continuity and Change (Bristol, Policy Press). Greenhalgh T, Shaw, S, Wherton, J, Vijayaraghavan, S, Morris, J, Bhattacharya, S, Hanson, P, CampbellRichards, D, Ramoutar, S, Collard, A and Hodkinson, I (2018) ‘Real-World Implementation of Video Outpatient Consultations at Macro, Meso, and Micro Levels: Mixed-Method Study’ 20 Journal of Medical Internet Research e150. Greenhalgh, T and Wong, G (2011) ‘Revalidation: A Critical Perspective’ 61 British Journal of General Practice 166–68. Gruen, R, Campbell, EG and Blumenthal, D (2006) ‘Public Roles of US Physicians: Community Participation, Political Involvement, and Collective Advocacy’ 296 Journal of American Medical Association 2467–75. Gulland, A (2017) ‘Medical Leaders Celebrate the Ascent of Women’ 358 BMJ 3250 5 July. Hafferty, FW and Castellani, B (2010) ‘The Increasing Complexities of Professionalism’ 85 Academic Medicine 288–301. Halford, S and Leonard, P (1999) ‘New Identities? Professionalism, Managerialism and the Construction of Self’ in M Exworthy and S Halford (eds), Professionals and the New Managerialism in the Public Sector (Buckingham, Open University Press) 83–101. Ham, C and Alberti, KGMM (2002) ‘The Medical Profession, the Public, and the Government’ 324 British Medical Journal 838–41. Ham, C and Dickinson, H (2008) Engaging Doctors in Leadership: What can we learn from international experience and research evidence? (Coventry, NHS Institute for Innovation and Improvement). Harrison, S (1998) ‘The Politics of Evidence-based Medicine in the UK’ 26 Policy and Politics 15–31. —— (1999) ‘Clinical Autonomy and Health Policy: Past and Futures’ in M Exworthy and S Halford (eds), Professionals and the New Managerialism in the Public Sector (Buckingham, Open University Press) 50–64.

512  Mark Exworthy and Simon Moralee Haug, M (1973) ‘Deprofessionalization: An Alternative Hypothesis for the Future’ 20 Sociological Review Monograph 195–211. —— (1988) ‘A Re-Examination of the Hypothesis of Physician Deprofessionalization’ 66 Milbank Quarterly 48–56. Higgins, K (2016) ‘Post-truth: A Guide for the Perplexed’ 540 Nature 9 1 December. HM Treasury (2018) Public Expenditure Statistical Analyses 19 July www.gov.uk/government/statistics/ public-expenditure-statistical-analyses-2018. Hoogland, J and Jochemson, H (2000) ‘Professional autonomy and the normative structure of medical practice’ 21 Theoretical Medicine and Bioethics 457–75. Horton, R (2017) ‘Offline: difficult truths about a post-truth world’ 389 Lancet 1282 (1 April). Hunter, DJ (1992) ‘Doctors as managers: poachers turned gamekeepers’ 35 Social Science and Medicine 557–66. Hunter, DJ (2008) The Health Debate (Bristol, Policy Press). Illich, I (1974) Medical Nemesis: the Expropriation of Health (New York, Pantheon Books). Iliffe, S and Manthorpe, J (2018) ‘Reshaping Common Sense: Management, Power and the Allure of Medical Leadership in England’s NHS’ 69 Soundings 80–91. Institute and Faculty of Actuaries (2019) Longer Term Influences Driving Lower Life Expectancy Projections www.actuaries.org.uk/news-and-insights/media-centre/media-releases-and-statements/ longer-term-influences-driving-lower-life-expectancy-projections. Ipsos Mori (2019) Veracity Index: Trust in Professions Survey www.ipsos.com/sites/default/files/ct/news/ documents/2019-11/trust-in-professions-veracity-index-2019-slides.pdf. Johnson, T (1972) Professions and Power (London, Macmillan). Keogh, B (2013) ‘Review into the Quality of Care and Treatment Provided by 14 Hospital Trusts in England: overview report’ www.nhs.uk/nhsengland/bruce-keogh-review/documents/outcomes/keoghreview-final-report.pdf. Kippist, L and Fitzgerald, A (2009) ‘Organisational Professional Conflict and Hybrid Clinician Managers: The Effects of Dual Roles in Australian Health Care Organisations’ 23 Journal of Health, Organization and Management 642–55. Kirkpatrick, I and Ackroyd, S (2003) ‘Archetype Theory and the Changing Professional Organization: a Critique and Alternatives’ 10 Organization 731–50. Kirkpatrick, I, Ackroyd, S and Walker, R (2005) The New Managerialism and Public Service Professions: Developments in Health, Social Services and Housing (Basingstoke, Palgrave Macmillan). Kitchener, M (1999) ‘“All Fur Coat and No Knickers”: Contemporary Organizational Change in United Kingdom Hospitals’ in DM Brock, MJ Powell and CR Hinings (eds), Restructuring the Professional Organization: Accounting, Health Care and Law (London, Routledge) 183–99. Kitchener, M and Exworthy, M (2008) ‘Models of Medical Work Control: A Theory Elaboration from English General Practice’ in L McKee, E Ferlie and P Hyde (eds), Organising and Re-organising: Power and Change in Health-care Organisations (Basingstoke, Palgrave Macmillan) 209–23. Klein, R (2006) The New Politics of the NHS: From Creation to Reinvention (Abingdon, Radcliffe Publishing). Krugman, P (2017) ‘Populism and the politics of health’ New York Times 14 March krugman.blogs. nytimes.com/2017/03/14/populism-and-the-politics-of-health/. Larson, MS (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Macdonald, KM (1995) The Sociology of the Professions (London, Sage). McDonald, R, Checkland, K, Campbell, S and Roland, M (2007) ‘Impact of Financial Incentives on Clinical Autonomy and Internal Motivation in Primary Care: Ethnographic Study’ 334 British Medical Journal 1357. Mannion, R and Exworthy, M (2017) ‘(Re) Making the Procrustean Bed? Standardization and Customization as Competing Logics in Healthcare’ 6(6) International Journal of Health Policy and Management 301–304. Marmot, M (2017) ‘Post-Truth and Science’ 389 Lancet 497–98.

The Mutation of Medical Professionalism  513 Marmot, M, Allen, J, Boyce, T, Goldblatt, P and Morrison, J (2020) Health Equity in England: the Marmot Review 10 Years on (London, Health Foundation) www.health.org.uk/publications/reports/ the-marmot-review-10-years-on. Martin, GP and Learmonth, M (2012) ‘A Critical Account of the Rise and Spread of “Leadership”: The Case of UK Healthcare’ 74 Social Science & Medicine 281–88. McGivern, G and Fischer, M (2010) ‘Medical Regulation, Spectacular Transparency and the Blame Business’ 24 Journal of Health Organization and Management 597–610. McGivern, G, Currie, G, Ferlie, E and Fitzgerald, L (2015) ‘Hybrid Manager-professionals’ Identity Work: the Maintenance and Hybridization of Medical Professionalism in Managerial Contexts’ 93 Public Administration 412–32. Mechanic, D (1998) ‘The Functions and Limitations of Trust in the Provision of Medical Care’ 23 Journal of Health Politics, Policy, and Law 661–86. Miller, P (1992) ‘Accounting and Objectivity: The Invention of Calculating Selves and Calculable Spaces’ 9(1/2) Annals of Scholarship 61–85. —— (2014) ‘Accounting for the Calculating Self’ in N Thrift, A Tickell, S Woolgar and WH Rupp (eds), Globalisation in Practice (Oxford, Oxford University Press) 236–41. Mintzberg, H (1979) The Structuring of Organizations (London, Prentice-Hall). Mohdin, A (2020) ‘Pots, Pans, Passion: Britons Clap Their Support for NHS Workers Again’ Guardian 2 April www.theguardian.com/world/2020/apr/02/pots-pans-passion-britons-clap-their-support-fornhs-workers-again. Montgomery, K and Oliver, A (2007) ‘A Fresh Look at How Professions Take Shape: Dual-Directed Networking Dynamics and Social Boundaries’ 28 Organization Studies 661–87. Moorhead, R (2010) ‘Lawyer Specialization – Managing the Professional Paradox’ 32 Law & Policy 226. Muzio, D, Ackroyd, S and Chantlat, JF (2007) Redirections in the Study of Expert Labour: Established Professions and New Expert Occupations (Basingstoke, Palgrave Macmillan). Mykhalovskiy, E and Weir, L (2004) ‘The Problem of Evidence-based Medicine: Direction for Social Science’ 59 Social Science and Medicine 1059–69. Navarro, V (1976) Medicine under Capitalism (New York, Prodist). Newman, J and Clarke, J (1997) The Managerial State: Power, Politics and Ideology in the Remaking of Social Welfare (London, Sage). NHS Constitution for England (2012) [ebook] (Department of Health) www.gov.uk/government/ publications/the-nhs-constitution-for-england. O’Reilly, D and Reed, M (2010) ‘“Leaderism”: an Evolution of Managerialism in UK Public Sector Reform’ 88 Public Administration 960–78. Osborne, D and Gaebler, T (1992) Reinventing Government (Reading, MA, Addison-Wesley). Pavolini, EP, Kuhmann, E, Agartan, TI, Burau, V, Mannion, R and Speed, E (2018) ‘Healthcare Governance, Professions and Populism: Is There a Relationship? An Explorative comparison of Five European Countries’ 122 Health Policy 1140–48. Pink, DH (2010) Drive (Edinburgh, Canongate). Pollitt, C and Bouckaert, G (2000) Public Management Reform (Oxford, Oxford University Press). Pomey, M-P, Ghadiri, DP, Karazivan, P, Fernandez, N and Clavel, N (2015) ‘Patients as Partners: A Qualitative Study of Patients’ Engagement in Their Health Care’ 10(4) PLoS One e0122499. Pope, C (2003) ‘Resisting Evidence: The Study of Evidence-Based Medicine as a Contemporary Social Movement’ 7 Health 267–82. Power, M (1999) The Audit Society: Rituals of Verification (Oxford, Oxford University Press). Raghupathi, W and Raghupathi, V (2014) ‘Big Data Analytics in Healthcare: Promise, and Potential’ 2 Health Information Science and Systems 3. Rhodes, RA (2007) ‘Understanding Governance: Ten Years On’ 28(8) Organization Studies 1243–1264. Rich, F (2006) ‘Truthiness 101: From Frey to Alito’ New York Times 22 January query.nytimes.com/gst/ fullpage.html?res=9501E3D6123FF931A15752C0A9609C8B63&pagewanted=all.

514  Mark Exworthy and Simon Moralee Ritzer, G (1993) The McDonaldization of Society: An Investigation into the Changing Character of Contemporary Social Life (Thousand Oaks, Pine Forge Press). Rosen, R and Dewar, S (2004) On Being a Doctor: Redefining Medical Professionalism for Better Patient Care (London, King’s Fund). Rowell, A and Evans-Reeves, K (2017) ‘It Was Big Tobacco, Not Trump, That Wrote the Post-Truth Rule Book’ The Conversation 7 April theconversation.com/it-was-big-tobacco-not-trump-that-wrote-thepost-truth-rule-book-75782. Saks, M (2016) ‘Professions and Power: A Review of Theories of Professions and Power’ in M Dent, IL Bourgeault and J-L Denis (eds), Routledge Companion to the Professions and Professionalism (London, Routledge). Schinkel, W and Noordegraaf, M (2011) ‘Professionalism as Symbolic Capital: Materials for a Bourdieusian Theory of Professionalism’ 10(1) Comparative Sociology 67–96. Scott, WR (2008) ‘Lords of the Dance: Professionals as Institutional Agents’ 29 Organization Studies 219–38. Scott, WR, Ruef, M, Mendel, P and Caronna, C (2000) Institutional Change and Healthcare Organizations: From Professional Dominance to Managed Care (Chicago, University of Chicago Press). Sheaff, R, Halliday, J, Exworthy, M, Gibson, A, Allen, P, Clarke, J, Asthana, S and Mannion, R (2018) Diverse Healthcare Providers: Behaviour in Response to Commissioners, Patients and Innovations (London, National Institute for Health Research). Speed, E and Mannion, R (2017) ‘The Rise of Post-truth Populism in Pluralist Liberal Democracies: Challenges for Health Policy’ 6 International Journal of Health Policy and Management 249–51. Spurgeon, P, Clark, J and Ham, C (2011) Medical Leadership: From Dark Side to Centre Stage (London, Radcliffe). Spurgeon, P and Klaber, B (2011) Medical Leadership: A Practical Guide for Trainees & Tutors (London, BPP Learning Media Ltd). Stanton, E, Lemer, C and Mountford, J (eds) (2009) Clinical Leadership: Bridging the Divide (London, Quay Books). Starr, P (1982) The Social Transformation of American Medicine (New York, Basic Books). Susskind, R and Susskind, D (2015) The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford, Oxford University Press). Swanwick, T and McKimm, J (eds) (2011) ABC of Clinical Leadership (Chichester, Wiley-Blackwell). Tesich, S (1992) ‘The Watergate Syndrome – A Government of Lies’ 254 The Nation 12–14. Timmins, N (2001) The Five Giants: A Biography of the Welfare State (London, HarperCollins). Timmins, N, Rawlins, M and Appleby, J (2016) A Terrible Beauty: a Short History of NICE www. idsihealth.org/wp-content/uploads/2016/02/A-TERRIBLE-BEAUTY_resize.pdf. Wakefield, A (1999) ‘MMR Vaccination and Autism’ 354 Lancet 949–50 www.thelancet.com/journals/ lancet/article/PIIS0140-6736(05)75696-8/fulltext. Waring, J (2014) ‘Restratification, Hybridity and Professional Elites: Questions of Power, Identity and Relational Contingency at the Points of “Professional-Organisational Intersection”’ 8 Sociology Compass 688–704. Waring, J and Bishop, S (2013) ‘McDonaldization or Commercial Re-stratification: Corporatization and the Multimodal Organisation of English Doctors’ 82 Social Science and Medicine 147–55. Webster, C (ed) (1991) Aneurin Bevan on the National Health Service (Oxford, University of Oxford Wellcome Unit for the History of Medicine). Wilkinson, RG and Pickett, K (2009) The Spirit Level: Why More Equal Societies Almost Always Do Better (London, Allen Lane).

22 Legal Technology: The Great Disruption?1 JULIAN WEBB

T

he impact of digital information and communication technologies (ICTs) on legal services has been a key development in the 30 years since Lawyers in Society. While the effects were certainly starting to be felt by the legal profession by the late 1980s, they had not yet had a profound influence, nor was technology widely perceived as a significant driver of transformation or ‘disruption’2 across the legal industry. Today, by contrast, there is a case for considering technology as an environmental force in the transformation, or even the ‘death’, of the legal profession as we know it (Susskind and Susskind 2017; Webley et al 2019). To this extent debates about technology are part of a larger narrative within studies of the legal profession, pitting those who advance a thesis that the classical professions are undergoing at least a radical restructuring, if not a significant decline (Kritzer 1999; Morgan 2010), against others who suggest that they have displayed surprising resilience (Brock et al 1999; Muzio and Ackroyd 2005). The primary focus of this chapter is on the emergence of specialist legal technology (‘legal tech’ or ‘lawtech’), defined as the use of digital information and communication technologies to automate all or part of the legal work process, offer decision support to legal service producers, and provide legal information and advice directly to clients/end users. This is not to overlook the facts that legal practice has undergone earlier technological transformations (driven by the printing press, typewriter and telephone) or the importance of other, ubiquitous digital technologies such as word processing, email, the Internet, spreadsheets and accounting tools; but it does recognise that the adoption of more specific and sophisticated legal tools is part of a qualitative change in the way legal knowledge and expertise are used and shared in society. Put more conceptually, this chapter focuses on the part legal tech has played in the transformation of both the legal services market and the professional form itself. This is traced through two parallel and interconnected themes. One is the ‘micro-level’ narrative of how legal tech is changing the actual processes of professional work; the other is the ‘macro-level’ account of how these trends are critical to the re-scaling and re-organisation of professional services and their governance under conditions of neoliberal globalisation (Faulconbridge and Muzio

1 My considerable thanks to John Flood for helpful comments on an earlier draft of this chapter. 2 Reflecting Christensen’s (2013) adaptation of Schumpeter’s (2008) theory of creative destruction, which argues that disruptive technologies emerge from competition at the lower end of a market before moving up the value chain and displacing traditional market incumbents. For discussion in the context of the legal services market, see Henderson (2014)

516  Julian Webb 2012; Ramirez 2010). These narratives are fused through an ‘ecosystem’ perspective. The term ‘ecosystem’ describes the overarching structure within which legal services are delivered. Its use reflects its derivation from Moore’s co-evolutionary ‘ecosystem’ approach to business systems and strategy (Moore 1996)3 and (to a lesser extent) a ‘complexity turn’ in both organisational theory and socio-legal work, which has emphasised the emergent and adaptive qualities of the legal services system in operation (Maguire et al 2013; Webb 2004). My analysis has three stages. First, I describe the emergence of legal technology. Then, I explore key consequences of legal tech for the temporal-spatial characteristics of practice, the organisation of the legal sector, and the regulation of legal services. Finally, I address one of the central sociological questions concerning new legal technologies, namely how they are reshaping the landscape of professional knowledge and expertise, drawing together the implications for the future structure and legitimacy of the profession. I.  LEGAL TECH: THE EMERGENCE OF A PARADIGM

The history of legal tech since the 1970s can be divided into three waves. Each reflects the effects of fundamental advances in digital infrastructure (improving hardware and software functionalities, communications technologies, data storage capabilities, and interoperability standards). This is not to treat tech deterministically. Much technological innovation is ‘permissive’ rather than determinate and consequently has diverse effects, depending on concurrent social conditions and social decisions about its use (Kraut 1987: 6). This fundamental contingency of the sociotechnical context needs to be understood, not least because it complicates generalisation and prediction about the effects of new technologies in a context where there is little empirical data.4 A.  The First Wave, c 1970–1990 Legal research and information retrieval (IR) was one of the first activities automated, beginning in the 1960s with attempts across Europe and the US to develop searchable databases of (primary) legal information. Though many of these systems did not evolve beyond the experimental stage, they were significant in advancing legal information search design and sometimes contributed important national datasets (Bing 2010). This university and statecentric approach was challenged at the start of the 1970s when large commercial platforms were launched in the US, by Lexis and Westlaw, geared specifically to the practising profession. By the end of that decade Lexis could claim that all of the largest (100 partner plus) US law firms were its clients (ibid: 10), but the technology was expensive, required dedicated hardware and training, and often had limited market penetration (see eg Wall and Johnstone 1997; Webb 1993).

3 See also Kirkpatrick and Noordegraaf (2015: 93) on the co-evolution of profession and organisational form. 4 The relative absence of substantive discussion of legal tech in most of the national reports in Volume 1 is a case in point. Note exceptionally the references to technology in Thornton and Wood Vol 1, ch 2; Bonelli and Fortes Vol 1, ch 19; Dinovitzer and Dawe Vol 1, ch 3; Sommerlad et al Vol 1, ch 4; Bessy and Bastard Vol 1, ch 9 and Cummings et al Vol 1, ch 6. The analysis in this chapter draws primarily on developments within the larger common law jurisdictions, about which there is the most information.

Legal Technology: The Great Disruption?  517 From the late 1970s and through the 80s there also was an explosion of research into legal expert systems,5 with research programmes flourishing in (eg) the US, UK, Italy, the Netherlands and Norway (see Sergot 1991). By the late 80s/early 90s, however, it was clear that, conceptual groundwork aside, most projects, functionally, were running into the sand. Systems were highly specific, constructed to work within very narrow areas of law, or delivering ‘bureaucratic’ (Stamper 1991) decision-making as opposed to legal expertise. Few achieved significant adoption, and developments in this period were criticised on a variety of grounds, including over-reliance on logic programming tools, simplified ontologies, and an underlying formalist jurisprudence (see eg Moles 1991; Leith 2016; Paliwala 2016). Technology in this early phase also had only limited impacts on legal infrastructure. The first personal computers (PCs) came to market at the end of the 1970s. These were expensive, with limited operational memory and storage functions. Law firms generally were not early adopters; some of the largest firms did begin to computerise in the 1980s, chiefly to support ‘back office’ functions, using mini-computer systems. Towards the end of this period, however, both networked systems and standalone PCs began to enter the legal workplace in increasing numbers, though still primarily as a ‘secretarial’ tool. B.  The Second Wave, c 1991–2012 The 1990s were such a pivotal period that, by mid-decade, commentators like Richard Susskind (1996) and Charles Christian (1998) were characterising digital technology as one of the biggest drivers of change in the legal services market. Developments during this period largely set the scene for much of the subsequent progress and debate. Digital transformation in this period was enabled by four underlying technological changes. First was the growing ubiquity of the PC, supported by significant improvements in both processing power and data storage. Second, software became cheaper, and the range of applications increased as developers moved to faster ‘agile design’ techniques, albeit with quality and stability trade-offs (Clarke and Wigan 2018: 684). Third, the Internet, although first developed in the early 1980s, started to become widely available in the early 90s, unleashing a wave of innovation during the second half of the decade (see eg Goggin 2004). A further Internet innovation phase commenced around the mid-2000s, with the shift away from the static to the dynamic or ‘participatory’ web (so-called Web 2.0). This was accompanied, fourth, by an explosion in mobile devices, enabled by the roll-out of 3G communication networks and the take-off of the ‘smart phone’ post-2007.6 These innovations enabled a range of applications to be developed across lawtech, with much emphasis on legal process automation (ie decision support) and information retrieval. Functionally, six developmental fields can be identified. First: legal document automation and assembly has been feasible since the 1970s, but the sophistication of tools has increased appreciably as logic programming and (later) machine learning applications entered the market. Many leading document assembly solutions, such as HotDocs7 (launched in 1996), emerged in this period. Document assembly has

5 See the glossary at the end of this chapter for the meaning of technical terms highlighted in bold face. 6 By 2012 the global volume of mobile data traffic alone exceeded by 12 times the totality of Internet traffic in 2000 (Gür 2015: 717). 7 See www.hotdocs.com/.

518  Julian Webb been fundamental, reshaping routine work within law firms while also enabling a distinct competitor, the document preparation industry (Mountain 2006). Although this latter kind of non-lawyer assistance to consumers and small businesses can also be traced back to the early 90s, widespread Internet availability enabled new business models like Legal Zoom (launched 1999) and Rocket Lawyer to enter the market from the end of that decade. The development of document assembly tools was also related to the emergence of a large and important market in contract management software. This is used largely by corporate end users to manage the creation, negotiation, review, and (increasingly) data analysis of legal contracts, and hence it also automates a range of relatively routine work that might otherwise be performed in-house or by outside counsel. E-discovery constituted a second key area of process management/decision support innovation. As commercial computerisation took hold in the 1980s, the exponential growth in electronic stored information (ESI) created new problems for litigators, particularly in terms of significantly increased discovery costs. E-discovery tools began to enter the market from the early 1990s, developed by companies like AccessData, Epiq and Kroll Ontrack, though some early adopter law firms developed their own bespoke systems (see eg Plotnikoff and Woolfson 1998: 25). Tools were geared initially to supporting the human review process, by automating data management, rather than actual decision-making. By the mid-2000s, however, technological solutions were becoming more sophisticated, and the competitive market for e-discovery solutions had also grown significantly, reflecting the desire among corporate clients to either in-source or outsource to alternative providers pre-trial work that would otherwise have been conducted by their external law firms (Birkel 2014). Third, the Internet freed legal information retrieval (IR) from the constraints of both the dedicated terminal and CD-ROM, enabling commercial systems to be accessed directly from the desktop. Moreover, the commercial stranglehold over IR was also broken from the mid-1990s, as the Free Access to Law Movement’s network of national and regional legal information institutes has developed to provide public access to primary (and some secondary) legal information sources at zero cost to end-users in over 30 jurisdictions (Greenleaf 2010). The declining costs of technology and greater Internet access also meant that commercial online services began to emerge in developing legal markets in the latter half of this period. For example, important commercial legal research portals were launched in India in 2001,8 Nigeria in 2007,9 and following Thomson Reuter’s acquisition and development of Revista dos Tribunais into an online version, Brazil in 2011.10 Client-focused online legal information also became more prevalent. By the mid-90s law firms were creating their own websites as marketing tools and using these to share some legal resources with potential clients (Christian 1998: 79–80). While there were (and still are) lots of static ‘brochure’ sites, with the development of Web 2.0, these started to become more interactive and have been joined by platforms that provide significant legal marketplace functionality – social and referral networks between lawyers and/or between lawyers and end users, sometimes via infomediary services. Such marketplace platforms have become increasingly ubiquitous in the consumer and small business sectors, particularly via for-profit document production platforms. Focusing on infrastructure, digital technology started to become ubiquitous across the legal ecosystem. By the early 1990s, ‘back office’ functions like typing and accounting were largely



8 Manupatra,

www.manupatrafast.com/Home.aspx. legalpediaonline.com/, and Law Pavilion, lawpavilionplus.com/. 10 See www.legalcurrent.com/brazilian-legal-research-goes-online/. 9 Legalpedia,

Legal Technology: The Great Disruption?  519 digitised, at least in economically developed systems such as the US and the UK. Moreover, by the mid-90s PCs had become standard desktop tools for lawyers themselves – the American Bar Association’s study of small firms and solo practitioners for 1995 reported that 87 per cent of respondents used a PC in their practice compared with 59 per cent in 1990 (Katsh 1996). The growth in networking also encouraged greater use of general communication and collaboration tools, both within firms and with external actors. Bespoke and off-the shelf practice and case management systems were also developed to provide more process automation and oversight of workflow and billing (see eg Thomson et al 2000). Finally, court processes also began to embrace digitisation at scale during this phase. Aside from the installation and/or updating of critical administrative systems,11 most of the endeavour in this period focused on electronic filing and often some associated automation of enforcement, as well as increased introduction of new technologies (eg video conferencing) into the courtroom itself. The US was a relatively early adopter,12 though even here progress across jurisdictions was ‘agonizingly slow’ (Schanker 2010: 1). In England, likewise, a Money Claim Online (MCOL) service began operating in 1992, providing a national portal for the bulk processing of small commercial debt claims and a model for later developments (Hodges 2019: 187, 195). C.  A Third Wave, c 2012–? While legal tech has not attracted the levels of capital investment (particularly private equity finance) found in other sectors of the technology market, such as fintech (Hook 2019), increased investment has driven growth across mature legal markets through the mid-2010s (eg Chin et al 2019; Thomson Reuters 2019). Much of this growth has been in startup activity (see Linna 2016). Australia thus saw its legal tech industry nearly double as 49 new firms entered the market between 2015 and 2018. Interestingly, however, this growth rate may be eclipsed in some of the larger emerging economies. For example, Brazil now has around 150 legal tech startups, representing a threefold increase between 2017 and 2019 (Azevedo e Souza 2020). These developments have been strongly underpinned by the continuing, exponential, improvements in computer processing power, data storage, bandwidth, and mobile technology, and the software innovations that have exploited such advances (Susskind and Susskind 2017: 175–82). Four areas of development stand out. First, there has been a significant resurgence of work in specific AI and expert systems (Flood and Robb 2019; McGinnis and Pearce 2014). AI’s re-emergence in the 2010s seemed sudden but was actually built on long-term research advances during the 1980s and 90s,13 particularly in autonomous machine learning and natural language processing. This has translated to a recent surge in law product development using machine intelligence and data mining to deliver a range of ‘smart’ tools across the domains of legal IR14 and legal analytics15 11 For an insider view, see eg Brooke (2004). 12 In the US, the Delaware Supreme Court implemented electronic docketing and e-filing in 1991; the Federal Court Rules then generalised the practice in 1996. E-filing was introduced in the Federal and Family Courts of Australia by the end of the decade and in Germany and Italy in 2001 (Griese 2002; Carnevali and Resca 2014). 13 Most of these were in underlying mathematics in areas like game theory, stochastic modelling, and optimisation, alongside developments in neural computing and so-called evolutionary and genetic algorithms. 14 Examples include Ailira (www.ailira.com), which provides ‘intelligent’ research support to Australian tax professionals, and Casetext’s CARA AI (casetext.com/cara-ai/), which enables users to upload a brief or case document and generate relevant authorities, based on material similarities of legal issues, facts, jurisdiction, or cited cases. 15 See eg Lexis Nexis’s Lex Machina (lexmachina.com), and Premonition (premonition.ai), a US-based legal analytics company that has expanded into the UK and Australian markets.

520  Julian Webb (see Ashley 2017), data analytics (eg for analysing legal expenditures, workflow), automated document analysis,16 and technology assisted review (e-discovery),17 as well as in consumerfacing automated legal information and advice tools18 (Bennett et al 2018). At the same time, the impact of AI has been prone to hype (Bennett et al 2018; Gartner 2018), and there has so far been little independent research into the nature and performance of the tools being deployed or the extent of their market penetration. Second, blockchain technology is a new but still experimental innovation in the legal services space. It has two main potential uses at present. The first involves the construction of digital title registries to provide secure legal document storage and verification.19 Sweden, Illinois and England and Wales are thus experimenting with real estate transactions on the blockchain (Artificial Lawyer 2019; Webley et al 2019). The second is the (related) design and use of smart contracts. Several large international firms are currently trying out smart contract tools (see Botsford 2019). Third, the focus on work process technologies has continued, with a greater emphasis on integrated platforms, delivering a combination of practice and matter/project management, document automation, workflow and billing functions.20 Another emerging feature of such systems is the introduction of networking tools (like Microsoft Teams or more bespoke apps), and interactive client areas or portals, where clients can upload and view documents, leave secure messages, and view cost updates.21 This marks a shift in product design and business thinking away from deploying single software solutions for parts of business problems, to whole-of-business or ‘enterprise’ solutions, where database management and data analytics are standardised and often capable of real time reporting. There are strong synergies between the development of such platforms and diffused (cloud) computing solutions, which have, since the mid- to late 2000s, enabled organisations to outsource both architecture and storage to external ‘Infrastructure as a Service’ (IaaS) providers. Finally, work on the digitisation of court processes has also accelerated in the 2010s, with parts of Asia emerging as leaders in the field through, eg Singapore’s ‘Courts of the Future Taskforce’ and China’s ‘Smart Courts Initiative’ (Dadwal and Beer 2018). Electronic filing, digital portals, automated enforcement protocols, and networked courtrooms have become increasingly the norm in larger jurisdictions.22 The Singaporean system today provides an example of an advanced approach. In 2013 its existing e-filing infrastructure was updated to the current ‘eLitigation’ toolset, which combines e-filing, using dynamic document formats

16 Platforms like RAVN (imanage.com/product-overview/platform), Kira (kirasystems.com) and Luminance (www. luminance.com) are being used by larger firms internationally to support core tasks such as contract review, financial statement review and other forms of due diligence. 17 See eg Law in Order, www.lawinorder.com.au/our-services/ediscovery-services/assisted-review. 18 Eg DoNotPay (US/UK), www.donotpay.com. Expert system tools are increasingly being deployed in the not-forprofit sector, sometimes as part of a more sophisticated infomediary model of service: See eg JusticeConnect, at https://justiceconnect.org.au/. 19 See eg Eternitas at www.eternitas.io. 20 See eg Actionstep, www.actionstep.com/au; also Ansarada (formerly Docyard), which markets itself as an enterprise deal management platform, www.ansarada.com. 21 See eg HighQ, which has been a market leader in the law field, legal.thomsonreuters.com/en/products/highq. 22 Eg the Australian Federal Court has operated a national electronic case file (ECF) system since 2014, enabling some ex parte applications to proceed by electronic means; the court also has resources within each registry for videoconferencing and digital presentation of evidence. For developments in England following the Jackson and Briggs Reviews, see Hodges (2019: 187–200).

Legal Technology: The Great Disruption?  521 rather than static PDFs, with a more integrated online case management system.23 Progress globally, however, remains uneven. In 2016, the World Bank reported that a viable form of electronic case management system (CMS) was available to judges in only 41 of 189 economies and that lawyers had access to the CMS in only 37 of them. Court technology thus remains a difficult and relatively slow-moving field. Achieving a critical level of take-up has been a recurring issue internationally (see eg Carnevali and Resca 2014; Lupo 2014), and success in court digitisation projects appears to be highly context dependent, turning on the particular mix of funding, administrative and judicial attitudes,24 and dispute system and platform design parameters (ibid; Schanker 2010). Partial or fully Online Dispute Resolution (ODR) is a more radical innovation. There are two basic ODR families: technology-based, where technology plays a central role in conducting the dispute resolution; and technology-assisted ODR, which augments human-delivered resolution processes.25 An example of technology-based ODR is the use of blind-bidding systems, an automated negotiation process which can be used to determine quantum of settlement in cases where liability is not at issue.26 ODR systems have commonly been private, but there has been recent and growing interest in public, court-based, systems. For example, while there were no projects to implement ODR in the US civil court system before 2012, there are now multiple pilots across the states (Rickard and Ivey 2019). A groundbreaking public system is the Civil Resolution Tribunal (CRT)27 established in British Columbia, Canada (Salter 2017). The tribunal uses an expert system to provide litigants with basic legal information and problemsolving tools to facilitate early resolution. If this fails, the parties can commence a claim, after which they may attempt to negotiate their own settlement, via the tribunal’s secure negotiation platform and/or progress to facilitated ADR. If parties are still unable to reach an agreement after facilitation, a formal adjudication will take place. Both ADR and tribunal hearings are generally conducted via telephone or videoconferencing. Similar models are being developed in the US (Utah) and Australia (Victoria) (Tan 2019). D.  Where Are We Now? This history demonstrates the emergence of an increasingly mature and complex tech ecosystem through three strands of innovation: legal information retrieval, automated legal decision support, and legal infrastructure technologies. Taxonomically, these can be represented functionally across three broad domains, as shown in Table 1. This framework enables us to distinguish the role and functional location of any given legal technology within the delivery of legal services. Even within this typology, however, certain technologies cross functional domain lines, reflecting the increasing ubiquity and multi-functionality of applications.

23 See www.supremecourt.gov.sg/services/services-for-the-legal-profession/elitigation. 24 A pilot programme for first instance courts in the Netherlands was recently scrapped because the judges were struggling to adapt (Hodges 2019: 187). 25 Space precludes discussion of ‘robo-judging’ (cf Morison and Harkens 2019; Susskind 2019), though it should be noted that assistive AI is already being used by judges for some purposes, eg in China and the US. 26 CyberSettle (US) (www.cybersettle.com), founded in 1996, one the oldest, has processed over US$2bn in settlements. 27 See civilresolutionbc.ca.

522  Julian Webb Table 1  The functional domains of legal tech Digital architecture

Decision support

(law firm/in-house)

lawyer-focussed

client-focussed

Networked/Cloud computing

Legal IR

Online marketplace

Enterprise/Practice management system (or, minimally, time and billing tools)

Document assembly

Legal ­information and DIY documents

Blockchain (eg smart contracts, document registry)

Document review e-Discovery Legal analytics Case management Legal project management

Legal ­diagnostic/ triage tools ­(chatbots, virtual assistants) Advanced CMSs Legal spend/cost analytics

Autonomous end user Basic legal information Free legal IR Chatbots Automated documents AI or expert systembased advice tools Blockchain (registry)

(Court technology) Networked/cloud computing

Legal IR

e-courtrooms

Case management system

Digital portal (e-filing, automated enforcement)

Basic legal information Online documents or dynamic forms ODR

That said, these technologies are very unevenly distributed, and the truly ubiquitous technologies are still predominantly ‘simple tech’: email and office applications, accounting and billing software. This is not to say that simple tech has been insignificant. Wordprocessing and email, for example have facilitated document standardisation, the growth of national and transnational practices, and new ways of delivering services, such as outsourcing (Remus and Levy 2017: 504). A question, therefore, is how many of these newer technologies are truly disruptive of the profession and the market? The answer, at this stage, is relatively few. Most enable incumbents to do what they do more effectively or cheaply and tend to focus on the more easily automated functions. It is no accident that there are 20 legal tech firms providing document automation tools in Australia but only two working specifically on expert systems (Chin et al 2019). Courtroom legal tech, moreover, does not appear to have been a major driver of digitalisation; indeed, courts have often lagged behind the larger law firms in embracing new technologies. Among established applications, document assembly has been a disrupter (Granat 2019; Mountain 2006) and, with the growth of external providers like Legal Zoom, one area where technology has created a significant ‘wedge in the lawyer’s monopoly over the delivery of legal services’ (Granat 2019). Other technologies have that potential. AI at this stage predominantly provides decision-support, but it has the capability to deprofessionalise much routine and bureaucratic legal work and hence narrow and refine the (specialist) ‘legal’ function. While blockchain is touted as disruptive, its role is uncertain: it is still a technology looking for the right problem. If the promise of blockchain is fulfilled, it is possible that, like Word or the

Legal Technology: The Great Disruption?  523 Web, it will become ubiquitous without being disruptive in the Christensen sense. However, the possibility of combining blockchain with machine learning and/or ODR could point to a more disruptive future, eg supporting end-to-end contract automation. That said, the impact of legal tech is more than the sum of its parts. To consider its effects properly, we need to look at its social and structural impact on the legal services ecosystem as a whole. II.  HOW IS LEGAL TECH CHANGING THE LEGAL SERVICES ECOSYSTEM ?

This section focuses on the meta-question of how technology is combining with other forces to re-shape legal practice qua system and forms of business organisation, rather than the (micro) question of how new technology is changing the work lawyers actually do. This metafocus echoes scholarship that sees technology as one of a number of forces, together with internationalisation, market liberalisation and regulatory disruption, that are transforming the professional services ecosystem (Armour and Sako 2020; Smets et al 2017; Faulconbridge 2008). I explore this process by examining, in turn, how technology has influenced: (i) the temporal-spatial dynamics of legal practice; (ii) the organisational forms and logics of legal practice; and (iii) interactions with legal services regulation. A.  Tech and the Changing Temporalities/Spatialities of Practice Legal services, historically, have been jurisdictionally-based and grounded in both localised legal cultures and governance systems. As in other industries, however, technology has played an important role in changing the spatial and temporal flows of practice, de-localising, reintermediating and relocating (digital) legal work (cf Flecker and Schönauer 2016). This can be seen in a number of headline trends, all of which have been facilitated by digitalised communication and workflow technologies and the use of digital performance management infrastructures (cf Brown et al 2011: 79) to control quality and oversight of legal work. These include the following. (1) the rise since the 1980s of a significant cadre of transnational law firms operating a 24/7 business culture and deploying networked systems of governance that can combine elements of local control and global oversight of business (Flood 1996; Faulconbridge and Muzio 2008); (2) routinisation of consumer legal services in key areas like real estate/conveyancing, personal injury, and mass tort/consumer litigation claims; (3) growth in the use of shared service centres (eg IaaS suppliers) and business and legal process outsourcing or offshoring to achieve economies of scope and scale by relocating and/or sub-contracting legal tasks or functions. Technology has thus contributed to the spatial concentration of legal services as well as casualisation and placelessness in the legal field. In the corporate hemisphere, digitalisation has supported the consolidation of elite transnational law firms in a dense network of

524  Julian Webb global cities (Taylor et al 2002: 93–94; see also Bonelli and Fortes Vol 1, ch 19). Via increased ‘labour arbitrage’ (Susskind and Susskind 2017: 123–24), it has also created thriving new support ecosystems for offshoring and legal process outsourcing, notably in countries like India and the Philippines (see Ballakrishnen Vol 1, ch 36; also Noronha et al 2016). While locally valued, in systemic terms such practices entrench both the epistemic dominance of existing professional elites and the dependent economic location of professions in the global South. Casualisation, para- and de-professionalisation (see eg Thornton and Wood Vol 1, ch 2; Sommerlad et al Vol 1, ch 4; Doornbos and Groot-van Leeuwen Vol 1, ch 12; see also Sommerlad et al ch 12 above) have also been facilitated by the automation of legal work and its supervision. This represents a critical ‘darkside’ of technological innovation, insofar as practices that have the potential to support alternative, flexible, and healthier ways of working may also be deployed to increase surveillance, casualise or ‘Uberise’ the workforce (Thornton 2019) and, through routinisation and de-professionalisation, reproduce existing gender, ethnic and class hierarchies (Sommerlad 2016; also Bonelli and Fortes Vol 1, ch 19). These effects, moreover, are sufficiently fundamental to become embedded in the organisational forms and logics of practice. B.  Tech and Changing Organisational Form/Logics Technology has contributed to the growing hybridity and complexity of actors and ­organisational forms in the legal services ecosystem. This can be observed in four trends. First, we are seeing the emergence of new and potentially disruptive market actors. This includes the (re-)entry of the ‘Big 4’ accounting firms into a number of mature legal markets (eg in Thornton and Wood Vol 1, ch 2; Cummings et al Vol 1, ch 6; Sommerlad et al Vol 1, ch 4; Wilkins and Esteban Ferrer 2018; see also Aulakh ch 20 above), the growth of smaller, specialised, boutique firms (eg Liu Vol 1, ch 35; Kilian and Schultz Vol 1, ch 10; Cummings et al Vol 1, ch 6) as lower cost direct competitors to ‘Big Law’, and the associated rise of ‘NewLaw’ (see Thornton and Wood Vol 1, ch 2; Beaton and Kaschner 2016; Thornton 2019) organisations, many of which compete with the larger corporate firms but may also service more of the small and mid-sized firms. Technology is central to such operations, driving cost reduction through automation, supporting value-based billing and enabling alternative virtual and flexible working (Skjølsvik and Breunig 2018; Thornton 2019). As noted, technology is also enabling competition with law firms (in some markets) from unregulated providers, such as Legal Zoom, and enabling the in-house legal function to retain more of its routine work. Second, alternative legal service suppliers now play a key role in the legal services ecosystem, supporting market incumbents through labour and associated knowledge arbitrage. Actors in this sub-sector include legal process outsourcers, flexible staffing providers (contract lawyers), and managed services, all of which are moving steadily from the ‘periphery’ to the ‘core’ of the legal ecosystem (Wilkins and Esteban Ferrer 2018). Third, we are seeing a greater focus on technology and innovation in larger law firms. This is reflected in a mix of in-house platform development, law firm involvement in (external) tech startups, and the rollout by some firms of ‘skunkworks’ designed to compete directly with NewLaw providers. This is inevitably influencing the human capital, structure and perhaps culture of these firms. Staffing is becoming more interdisciplinary, even at senior levels; there

Legal Technology: The Great Disruption?  525 is greater investment in technological solutions as well innovation strategy, and even a research and design function (eg Waye et al 2018). Fourth, there is evidence that technology is actually enabling some small firms to respond to the pressures of increasing stratification and market concentration. Like their larger counterparts, smaller NewLaw/boutique suppliers and less traditional small firms are leveraging technology to facilitate the connectivity demanded by clients, commoditise some services and create flexibility in work practices (see eg Cummings et al Vol 1, ch 6; Jones and Pearson 2020; Thornton 2019). Some distinctive strategies are also being adopted, including using technology to support networked business models, such as inter-firm resource and knowledge sharing networks (Waye et al 2018, see also Bessy and Bastard Vol 1, ch 9). The effects of these changes are difficult to generalise, not least because they tend to push and pull the profession in different ways: increasing both collaboration and competition between incumbents; disrupting the market while allowing incumbents to provide services and diversify; and enabling positive working practices while increasing casualisation.28 At a deeper level, however, the growth and variety of tech-enabled hybrid business structures (eg Thornton and Wood Vol 1, ch 2; Sommerlad et al Vol 1, ch 4; Bessy and Bastard Vol 1, ch 9; Doornbos and de Groot-van Leeuwen Vol 1, ch 12) suggest a more diverse ethos among lawyers and, perhaps, a self-consciously different set of institutional logics among alternative providers. At a minimum, this highlights the role of technology in the normative fragmentation of legal professions and, as Smets et al (2017) imply, may undermine knowledge intensity as a core logic of the professional service firm. We return to this point in Section III. C.  Governance and Regulation The question of who innovates and how cannot be separated from the issue of how legal services are regulated. Technology and regulation can be seen as co-constituting problems: legal services regulation is a problem for technological innovation, while technology is a problem for the regulation and governance of legal services. Although this can be seen in part as a classic ‘pacing problem’ (Bennett Moses 2011), whereby regulation struggles to keep up with tech innovation, the issues here are also structural and transcend finding the ‘right’ rules to fix discrete problems. Notwithstanding the internationalisation of practice, legal regulation is still largely determined by local jurisdictional rules and national professional cultures. As Boon and Semple (see ch 9 above) observe, there is a distinction internationally between systems of legal profession-centric (self-) regulation and non-professional regulation of legal services markets. This is important because legal profession monopolies and other prohibitions and constraints on alternative legal service providers may serve to restrict who can use specific technologies

28 There is considerable anecdotal evidence that the COVID-19 pandemic has hastened moves to digitalisation and virtual practice, particularly in the corporate hemisphere. However, it is probably still too early to tell if such changes will be sustained, or whether and how much firms will tend to pivot back to more traditional ways of working as conditions allow.

526  Julian Webb and for what purposes. Thus, many jurisdictions (indirectly) control legal technology through three mechanisms: (1) rules that restrict the giving of legal advice by people other than registered lawyers (unauthorised practice rules); (2) restrictions on the size of firms or their ability to seek external investment, which may act as an economic constraint on technological innovation;29 (3) rules or cultural norms that restrict specific market practices, such as referral fees, advertising, or lawyer involvement in businesses that are not regulated law practices. Unauthorised practice rules frequently restrict non-lawyer legal services to the delivery of legal information rather than legal advice – a problematic distinction in relation to technology-enabled services (see Bennett et al 2018). This distinction has been deployed by US state Bar Associations against alternative providers like Legal Zoom and Avvo Legal Services. Indeed, regulatory action against Avvo in 2016–18 forced the company into relaunching purely as a lawyer search and rating service (Barton and Rhode 2019). Similarly, action by the Montpellier Bar Association and the French Conseil National des Barreaux led to the closure of the online legal service provider, www.divorce-discount.com (Hook 2019: 34). In Germany too, a policy paper recently issued by the Federal Ministry of Justice argued that service portals providing digital legal services should be run only by lawyers (Federal Ministry of Justice 2019). Conversely, there has been relatively little discussion of how new technologies like AI may transform the risks to consumers from platform legal services delivered by non-lawyers, thereby challenging the underlying rationale of UPL rules. Constraints on non-lawyer investment in and management of legal businesses also remain widespread and affect organisations’ willingness and capacity to invest in legal tech. Regulation in many jurisdictions clearly constrains law firms’ access to external investment, while ownership and control and ‘related business’ restrictions may also limit the ability of law firms to become more directly involved in product development (Bennett et al 2018; Semple 2015: 158, 179). Regulation may also restrict the ability of law firms to bring technology specialists in-house, especially into partnership. In England and Wales, one of the most liberalised legal markets, providers licensed as ‘alternative business structures’ are 3.3 times more likely to use technological solutions than other firms (Legal Services Board 2018: 35–36). Restrictions on referral fees in some jurisdictions limit30 or prohibit (eg Taiwan (Hook 2019: 34)) the formation of business relationships between law firms and certain kinds of ‘for profit’ technology provider. This restricts the use of online marketplace services by lawyers and could also constrain the use of other third-party platform services if the financial relationship between the lawyer and third party can be construed as fee-sharing. Similarly, norms that restrict or disfavour advertising (eg Murayama Vol 1, ch 38) may also limit the ability of firms to use legal marketplace technologies or develop local/national networks. In addition to these regulatory effects, legal tech also highlights gaps in and challenges for legal services regulation that pose two fundamental questions for the profession. First, they constitute important ‘diagnostic struggles’ (Liu and Halliday 2009) between the profession and

29 See eg the work on regulatory reform currently being conducted by the State Bar of California (nd). 30 See eg Hook (2019: 35–36); also New York State Bar Association Ethics Opinion 1131, which permits the use of online referral services provided that: (1) the online provider selects the lawyer by ‘transparent and mechanical’ means and does not evaluate the client’s legal issue or the qualifications/level of expertise of the lawyer; (2) it does not expressly or impliedly recommend the lawyer; and (3) the service’s communications about the lawyer comply with attorney advertising rules.

Legal Technology: The Great Disruption?  527 its regulators about the profession’s competence and expertise. Second, they problematise the profession’s formal jurisdiction: if, as Abbott (1995) asserts, professions are essentially, ‘things of boundaries’, then regulation is a significant device used to define those boundaries, and technology is its latest battleground. Three major areas of concern can be identified. First, there is the question of how available technologies change our understanding of legal competence. Here technology creates significant challenges for legal practice and education and their regulation. Although this topic exceeds the scope of this chapter, two key points can be noted. There is growing awareness in practice of the need for occupational competence in the use of technology, such as the ability to manage one’s digital footprint in ways that are legally and ethically compliant, to understand the issues concerning (mis)use of data, and the fundamentals of cybersecurity. Regulatory approaches to technological competence, however, arguably lag behind practices. Technological competence is often (at best) deemed implicit in general norms prescribing lawyer competence. Exceptionally, the American Bar Association has gone further by amending its rules to include an obligation to maintain technological competence.31 Such an approach puts the onus on individual lawyers to keep abreast of technological developments and implies that lawyers who choose to use technology or advise on a client’s use must do so competently. However, this stops short of imposing any duty to use technology, even where that would be in the client’s best interests in terms of cost or quality of service. Whether lawyers fail in their supervisory obligations32 over junior or non-admitted staff may also be moot where under-performance may be attributed to poorly used or designed technology. The absence of tech competence standards is particularly apparent in legal education and training. Professional standards governing legal education are often silent about both legal tech and law and technology more generally. Law schools have sought to be responsive: hackathons, law apps and legal design courses have proliferated, particularly in the more advanced economies of the US, Europe, Australasia and South East Asia. This is a start, though it can imply an applied and somewhat uncritical view of technology (cf Goodenough 2013; Law Society of New South Wales 2017). It may leave legal education deficient in developing a proper understanding of legal information and how digitisation affects its qualia (Harvey 2017), or of the deeper ways in which technology is transforming regulatory processes and the form of law itself (Brownsword 2019a; Hildebrandt 2015).33 How law schools find space to do this in a curriculum often overloaded with (prescribed) substantive law is perhaps the first challenge, though the bolder task would be a substantial re-imagining of the law degree’s ‘core’ (Webb 2019; Galloway et al 2019: 39–40). Second, digitalisation creates specific jurisdictional challenges for local regulators. For example, it raises problems of regulatory reach in respect of service providers who are physically and juridically offshore. Digitalisation actively complicates the question of where legal work is done and poses associated issues of quality assurance and professional-regulatory jurisdiction. These problems are commonly ‘resolved’ by deeming the work to be undertaken within the jurisdiction of the supervising lawyers,34 even though there may be little actual

31 American Bar Association, Model Rules of Professional Conduct, Rule 1.1, Comment [8]. 32 Eg, under ABA Model Rules, Rule 5.1. 33 Consider, eg, the resurgent interest in machine readable laws (‘legislation as code’) with projects underway in Denmark, New Zealand and Australia (Froelich and Chapin 2019; McIntyre 2020). 34 Note, eg, how the ABA Model Rules, r 5.3 addresses this obliquely in comment [3] by highlighting factors to be taken into consideration in ensuring that outsourced services are rendered in a manner ‘compatible with the lawyer’s professional obligations’.

528  Julian Webb supervision. In short, although technology may readily enable information flows across different juridical spaces, regulatory norms remain a potential constraint on the shaping of services across national and transnational legal fields (Faulconbridge 2008).35 Lastly, there is significant variation in the ways in which legal services regulators are responding to legal tech. Regulatory approaches range from resistance, through a ‘wait and see’ approach, to a more active enablement of tech solutions, though the majority of regulators seem to be taking a passive approach (Hook 2019: 33–41). In the legal services space, this means that there is relatively little work being done, for example, with regard to the following: (1) reviewing existing regulation to assess its capacity to: (i) deal with new risks created by technology solutions; and (ii) ensure regulation is proportionate and not creating unnecessary barriers to digital innovation; (2) the desirability of different modes of regulation for technology solutions (eg platformrather than adviser-based regulation); (3) the importance of setting information governance and technology standards for law practices – eg in respect to interoperability, data portability, data standards, and ‘FAT’36 standards for AI-based tools; (4) the encouragement of ‘regulatory conversations’ (Black 2002) around innovation, and the creation of safe innovation spaces, eg through so-called ‘safe harbour’ regulation or regulatory sandboxes (Allen 2019; Hook 2019: 43–44). Two key variables seem to be important. First, the extent to which regulation is operated primarily in the public (consumer) interest or, less accountably, in the interests of the profession (Rhode and Ricca 2014). On the supply side, legal tech, while no panacea for access and public interest problems, is important if different kinds of legal services and perhaps new kinds of legal professionals are to emerge. This may be less likely to happen (or happen safely) if existing regulatory barriers to accessing legal services are maintained. New technologies are thus likely to act as a continuing lightning rod for both access to justice concerns and related debates about the social acceptability (Brownsword 2019b: 3.2.2) of specific forms of legal services regulation. Second, few jurisdictions seem to be effective in developing a joined-up approach to wider legal tech policy and regulation across the legal sector. Co-ordination (or its absence) may be key. Australia, though at the forefront of regulatory innovation in the early 2000s, still lacks national co-ordination, and its approach to legal tech regulation and reform remains uneven (Thornton and Wood Vol 1, ch 2). In England, which has been at the forefront of regulatory liberalisation since the Legal Services Act 2007, the push for tech innovation and regulatory reform has been driven largely by the uber-regulator, the Legal Services Board (Sommerlad et al Vol 1, ch 4). Singapore, though less radical in its approach to regulation, appears to have gone significantly further in terms of coordinated action (see Hook 2019: 38). In the context of a governmental drive to develop the digital economy, a national Legal Technology Vision was created in 2017 as a combined project between government, the legal industry and other stakeholders. This has resulted in a range of complementary measures coordinated chiefly through the ‘Future Law Innovation Programme’ (FLIP),37 including regulatory reform, consultancy, professional education, and technology investment.

35 Taylor et al (2002: n 84); Faulconbridge (2008); see also the discussion of regulatory barriers, below. 36 Fairness, accountability and transparency. 37 See www.flip.org.sg. The overall programme is co-ordinated by the Singapore Academy of Law, with some initiatives/work streams (eg regulation, and a technology investment fund) led by the national Law Society.

Legal Technology: The Great Disruption?  529 Overall, however, neither the potential of technology as regulation nor the challenge of technology for regulation is well understood across the legal industry globally. Until recently there has not been much evidence of forward-thinking or development of holistic approaches to governance and regulation that engage the range of stakeholders in legal services, including consumers. This is not unexpected. As Brock (2003: 295) has observed, uncertainty regarding the future effects of technological innovation often combines with resistance to regulatory reform from incumbents to create a culture of ‘conservatively minimal responses to the observed problems’. In market control terms, regulation operates to mark or even blur jurisdictional boundaries in an effort to protect market incumbents and serves to contain disruption within the existing market rather than enable a greater disruption of the market. We should therefore expect profession-centric regulators to be hesitant or defensive in boundary marking and loosening. This may lead to problems, if existing regulatory boundaries become (in effect) hardwired into the legal ecosystem’s digital infrastructure. When or whether we reach a tipping point in regulation may depend on the wave of reforms currently being debated across North America (eg State of California nd). The outcomes are uncertain, but given the significance of the US model globally, change there is likely to have knock-on effects. III.  LEGAL TECH AND THE SOCIOLOGY OF THE PROFESSION: THE PROBLEMS OF KNOWLEDGE AND EXPERTISE

As the foregoing analysis has sought to show, legal tech is contributing, albeit in fragmented and often poorly understood ways, to processes of innovation, organisational change, professional segmentation, and regulatory change across the legal industry. In this section, I focus on a conceptual thread underlying much of the debate about the future impact of technology: its consequences for professional knowledge and expertise. The significance of expert knowledge to the concept of profession is widely recognised (Abbott 1988; Freidson 2001). Specialist expertise is one of the professions’ core characteristics. It is at the heart of the regulatory bargain by which they acquire status and power in exchange for their collective commitment to work in the public interest. It exists in a fundamental and symbiotic relationship with professional licensure, which not only establishes but also legitimises a monopoly in a body of expertise. A synthesis of the sociological literature suggests that knowledge and expertise are important in providing more than market and social monopoly; they shape collective and individual level professional processes. Thus, it has been argued that a profession’s knowledge base informs the extent of its collective ‘epistemological warrant for public influence’ (Halliday 1985: 422); its ontology frames the collective and case-by-case ‘diagnostic struggle’ for meaning by which professional knowledge is institutionalised and classified (Liu 2013: 675–76) and sets at least some parameters for the boundary work that goes into (re-)shaping professional jurisdiction (Abbott 1988; Halliday 1985; Liu 2015). For the individual practitioner, it also operates as a distinctive ‘logic’ (Freidson 2001), which offers the professional an unusual degree of autonomy over both the performance and quality assurance of work. This logic has also come to shape the organisational form: the archetypal, collegial, professional partnership (Greenwood et al 1990). However, there is a marked gap within the classical legal professions’ literature about what is meant by legal knowledge, the social processes by which legal expertise is constituted, and the role of the law firm or organisation in shaping that knowledge base (Faulconbridge 2015; Liu 2013). In that respect, the sociology of the professions seems to lag behind the sociology of

530  Julian Webb knowledge and organisation studies. These gaps are relevant when we consider the role of legal technology. But we need to start by asking why knowledge is a fundamental consideration. Knowledge matters because it goes to the heart of the problem to which professions are supposedly the solution: the inability of laypeople to know all they need to function in society. Professionals fill the gap as specialist intermediaries. However, in a marketised system, they are relatively expensive and inaccessible and the quality of their services hard to judge.38 Digitalisation can be seen as a (partial) solution to these problems, because it liberates ­knowledge from professional control (Susskind and Susskind 2017: 210–11). For the Susskinds, this outcome is achievable by a transition from the ‘craft’ tradition of bespoke professional services through stages of increasing commoditisation to an ‘externalisation’ of expertise through technological intermediation39 and ultimately disintermediation40 (ibid 195–228). This brings us back in sociologically relevant ways to knowledge as an important enabler, mediator and product of technological change. I illustrate its centrality in two ways. First, any technologically-enabled future needs to take seriously the complexity of professional knowledge and its organisational construction. Professional expertise is a thick concept. It cuts across multiple domains, involving explicit legal knowledge, tacit ‘know how’ (Polanyi 1997) and the related ‘interactional expertise’ (Collins 2013) that combine to make up the social practice of lawyering. This complexity of professional expertise, and particularly the heavy reliance on tacit knowledge, is already problematic for professions and technology. The tacit and personal qualities of much professional knowledge are said to make professional firms ‘fragile’ organisations, in the sense that the knowledge can be hard to capture and codify, rendering firms vulnerable to their key knowledge assets ‘leav[ing] via the elevator’ (Faulconbridge 2015: 429). Much professional knowledge is also social or relational (Edwards 2011; Faulconbridge 2007), derived from specific client connections, the working practices of cross-disciplinary teams (Law Society of New South Wales 2017), and the embeddedness of lawyers in their own epistemic communities (Flood and Robb 2019: 458–59; Mather 2011). Technology offers some solutions. How much it can or is allowed to do poses important empirical questions. How realistic is it to expect technology to drive an externalisation process? To what extent will the profession’s cultural preferences, economic incentives and regulatory practices restrict knowledge codification and generalisability of expertise? How much might social needs and preferences for human-mediated services limit commodification and high-level automation in some sectors of work? Technology cannot (yet) exhibit empathy or replicate value-based reasoning,41 which are widely seen as critical ‘human arts’ of lawyering. A focus on codification of existing knowledge may open up questions about how a heavily technology-dependent market will create and value new legal knowledge. Again, sociologicallyinformed models of learning and innovation highlight the social qualities and embeddedness of the learning process. The extent to which this will not soon be replicated by automated agents creates future challenges. Though work in AI does point to the fact that artificial agents may evolve their own versions of creativity and innovation through distinctive methods of reasoning, this will raise issues for firms, and society, about how much innovation can and

38 The well-known problem of information asymmetry between the seller and purchaser of a credence good. 39 Distribution and replication of human expertise via online knowledge sharing, knowledge representation and knowledge engineering (Susskind and Susskind 2017: 221–26). 40 Through AI systems that deliver ‘machine-generated expertise’ (Susskind and Susskind 2017: 226–28). 41 See eg Conitzer et al 2017; Wallach 2010 on developments in AI.

Legal Technology: The Great Disruption?  531 should be left to social versus technological systems, or indeed whether hybrid human-in-theloop systems should be a default norm. Second, automation of routine legal tasks, more online access to legal information, and codification in expert systems do not just increase access to legal knowledge but also may change the locus of control and power over knowledge construction and the nature and use of the knowledge itself. This is not necessarily a bad thing, but the process and outcomes are fluid and unpredictable. We can observe this in the professional context through Liu’s social process model (2013). Knowledge is performative in defining and maintaining professions. Processes of diagnostic struggle and coproduction are central to creating and re-constructing the domain of professional expertise. If we see the profession as a process bound up with knowledge construction and the maintenance of knowledge claims, then we should consider technology as not just a tool but also an actor and mediator in that process (cf Verbeek 2015). The following examples raise some implications. As Liu has argued, diagnostic struggles among competing actors, while common to professions, are particularly salient to law given the normative and symbolic basis of legal expertise. Diagnostic struggle is most apparent in debates around law reform (eg Liu and Halliday 2009); but because the foundational work of lawyers is the ‘translation’ of social facts into the legallyrelevant categories that give clients’ experiences meaning in the legal world (Cain 1983: 112), it is also an everyday feature of the ongoing production of legal expertise. It is therefore apparent in the multiple contexts where legal meaning and interpretation are contested (Liu 2013: 675). Hence, technologically-driven change is relevant in two ways. First, it is a subject of diagnostic struggle in the ongoing internal (reform) debates in the profession around access to justice and professional regulation, eg, with regard to the operation of unauthorised practice rules or the appropriateness of regulatory sandboxes. Second, technology has the potential to shape or mediate the terrain of diagnostic struggle by hard-wiring normative and legal standards into technology and privatising disputing through forms of automated decision-making. More subtly, while democratising access to legal information, substitutive services from unregulated actors like Legal Zoom ‘can also mislead users about their rights and duties, while foreclosing opportunities for compensation for this harm, via restrictive terms of service’ (Pasquale 2019: 6–7). To this extent technology and market players like private tech companies have the capacity to enact both hard and soft constraints on the range of conduct that is legally actionable, thereby narrowing the realm of the profession’s epistemic competence. However, diagnostic struggle is only part of the story; struggle co-exists with equally significant processes of co-production. Liu (2018: 51) defines co-production as a feature of the professional pursuit of monopoly but one in which the profession voluntarily or by default limits its activities (and the reach of its epistemic competence) by ceding tasks and responsibility to other occupations. The foregoing analysis reveals several ways in which digitalisation requires and facilitates moves to coproduction. This will arise where automation changes the knowledge required, eg expertise in platform and algorithm design and operation, and through the deeper normative effects of the digital infrastructure in use. This is especially evident in relation to core areas of legal operations, such as knowledge management, legal project management, and legal knowledge engineering. Again, it is worth noting how the collaborative and relational functionalities of technology may actively mediate this process, making technology an actor and not merely a tool in transformation. Moreover, co-production of expertise may become a new normal, as the complexity of deploying new technologies requires collaboration between entrepreneurs, technologists, and other professionals, including lawyers (Fenwick and Vermeulen 2019). The extent to which these co-productive forces will

532  Julian Webb reflexively transform the cultural and technical substance of legal work will merit ongoing enquiry. IV.  CONCLUSION: THE (NOT QUITE) GREAT DISRUPTION

This chapter has sought to show that while there is a plausible argument that technology has become fundamental to the future transformation of modern legal practice, it has not (yet) been the disruptive force on a global scale that some local proponents have claimed. This is not to deny its impact. Technological innovation has facilitated the decentralisation and increased the flexibility of legal practice and underpins a range of organisational and work process changes, including the relatively rapid globalisation of corporate legal practice, the emergence of NewLaw, and the growth more generally in the use of techniques such as outsourcing and ‘flexible’ working. These technological changes have also enacted new forms of regulation and digital Taylorism. However, much legal tech has been secondary to that process and far from ubiquitous; it is unevenly distributed by sector and geography, and the most popular technologies at this point serve to support and reinforce rather than disrupt existing structural and economic features of the ecosystem. There is little concrete evidence for the death of the profession, though that may be false comfort. Historically, the legal profession has reacted to the threat of its replacement and redundancy with strategies of further specialisation and market differentiation (see Hammerslev 2008; Webb 2004), often underwritten by regulation. Whether these strategies will continue to serve lawyers well is moot. Two alternatives can be envisaged. One sees the profession largely successful in maintaining its jurisdiction, so that the future becomes essentially ‘a more efficient version of what we have today’ (Susskind and Susskind 2017, back cover). The other sees a continuing demise of the profession’s epistemic and jurisdictional authority. Prediction is a dangerous game. However, I would argue that the evidence of this chapter and the national reports in Volume 1 favours the latter outcome. Within the corporate hemisphere, pressures from technology, clients looking increasingly for ‘whole-of-business advice’ and encroachment from competitor professions will continue to dilute the distinctiveness of legal expertise and hasten the transition of most legal professionals into team players in a multi-disciplinary consultancy marketplace. Within consumer legal services, technology may continue to help in reducing costs and building efficiencies for lawyers but in the face of potentially growing competition from paralegal and unregulated (especially digital) services. Moves to marketised consumer-centred regulation and the potential for technology-enabled legal services to reduce or relocate the risk of advice-giving by ‘non-lawyers’ also increase the likelihood of technological redundancy. The critical policy question, however, is what kind of disruption would society prefer and be willing to pay for? Both the Susskinds (2017: 306–309) and their critics recognise that the main barrier to a Rawlsian-inspired system of e-justice has been the very substantial marketisation of legal services. There is, given present structures, a very real risk that technology will simply become another means by which some of the powerful exercise domination over the market (Gowder 2018; Greenleaf 2017).42 Any vaguely utopian future, by contrast, requires

42 See also arguments by Adair Turner (2018) that an increasing volume of human labour is dedicated to competitive work that is zero sum in distributive terms; under such conditions increased use of technology on both sides of the competition does little or nothing to increase total welfare.

Legal Technology: The Great Disruption?  533 innovations radically different from those the commercial market might afford. Gowder (2018), for example, highlights the transformative potential of digital mass collaboration in the consumer legal space and the need for a more – not less – socially and morally engaged professionalism (Delacroix 2018; Flood and Robb 2019; Webley et al 2019). In this context it is difficult to be confident about the sustainability and relevance of much conventional legal practice. The future may not be rapid disruption, but it is likely to see longer-term transformation. GLOSSARY

Agile design: a non-linear, collaborative, software design method developed in the 1990s to replace more conventional (linear) ‘heavyweight’ or ‘waterfall’ methodologies. Agile is intended to be iterative, operating over shorter design phases with much earlier adaptive release of the product to the customer. Artificial Intelligence (AI): an overarching term for three sub-fields of computing: robotics, natural language processing (NLP) (qv) and expert systems (qv). There are three levels of AI: narrow or weak AI (task specific), general or strong AI (human-like or human equivalent), and artificial superintelligence. Current applications deliver narrow AI. Blockchain: a system of digital ledgers containing immutable records of data managed by distributed clusters of computers, using cryptography to secure the recorded transactions. Document assembly: a core function in document automation processes, which replaces the manual completion of routine and repetitive documents through automated templates with user-defined criteria. Expert systems: applications that replicate formalistic human (eg legal) decision-making in electronic form. A legal expert system comprises three features: (i) a user interface connected to (ii) an ‘inference engine’ that uses logic programming to extract and apply domain knowledge from its (iii) knowledge base to a specific legal problem. Susskind (1987) divides legal expert systems into four functional groups: diagnostic tools, procedural guides, intelligent checklists and document drafting. Legal analytics: the computational mining of ‘substantively meaningful insight from some sort of legal [text] data’ (Ashley 2017: 5 citing Katz and Bommarito (unpublished)). Logic programming: a specific programming method used for knowledge representation and decision-making, in which formal (predicate) logic is used to represent knowledge and inference is used to manipulate it. Machine learning is a sub-field of AI (qv) that focuses on the development of computer programmes with the ability to access and use data to learn automatically for themselves and improve with experience (see Mitchell 1997). Natural language processing (NLP): a branch of AI at the interface with linguistics, which uses (predominantly) machine learning (qv) to enable computers to use and derive meaning from ordinary (natural) human language. Smart contracts: automated computer programs that self-execute upon a specific input or set of inputs (Cuccuru 2017). Technology assisted review (TAR): or ‘predictive coding’ involves human reviewers training an algorithm (ie machine learning) to make discovery decisions on a training set of documents and then undertake the final selection of material for production (see eg Ashley 2017: 239–47). Web 2.0: the second phase of web development, characterised by the move from static content to dynamic, user-defined content and social web. Web 2.0 applications include wikis, blogs, social networking and content hosting services.

534  Julian Webb REFERENCES Abbott, A (1988) The System of Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). —— (1995) ‘Things of Boundaries’ 62 Social Research 857. Allen, HJ (2019) ‘Regulatory Sandboxes’ 87 George Washington Law Review 579. Armour, J and Sako, M (2020) ‘AI-Enabled Business Models in Legal Services: From Traditional Law Firms to Next-Generation Law Companies?’ 7 Journal of Professions and Organization 27. Artificial Lawyer (2019) ‘Mishcon Handles UK’s 1st Blockchain Residential Property Deal’ (Artificial Lawyer, 8 May 2019) www.artificiallawyer.com/2019/04/08/mishcon-handles-uks-1st-blockchainproperty-deal/. Ashley, KD (2017) Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age (Cambridge, Cambridge University Press). Azevedo e Souza, B de (2020) ‘Legal Tech around the World: Brazil’ Contractbook.com, 31 August contractbook.com/legaltech/legal-tech-around-the-world-brazil. Barton, BH and Rhode, DL (2019) ‘Access to Justice and Routine Legal Services: New Technologies Meet Bar Regulators’ 70 Hastings Law Journal 955. Beaton, G and Kaschner, I (2016) Remaking Law Firms: Why and How (Chicago, American Bar Association). Bennett, J, Miller, T, Webb, J, Bosua, R, and Chamberlain, S (2018) Current State of Automated Legal Advice Tools. Networked Society Institute Discussion Paper (University of Melbourne). Bennett Moses, L (2011) ‘Agents of Change: How the Law “Copes” with Technological Change’ 20 Griffith Law Review 763. Bing, J (2010) ‘Let There Be LITE: A Brief History of Legal Information Retrieval’ 1 European Journal of Law and Technology ejlt.org/index.php/ejlt/article/view/15. Birkel, CD (2014) ‘The Growth and Importance of Outsourced E-Discovery: Implications for Big Law and Legal Education’ 38 Journal of the Legal Profession 231. Black, J (2002) ‘Regulatory Conversations’ 29 Journal of Law and Society 163. Botsford, P (2019) ‘Blockchain: Technology Making in-Roads but yet to Transform Legal Sector’ (International Bar Association, 18 July 2019) www.ibanet.org/Article/NewDetail. aspx?ArticleUid=D4B4F0F6-E962-4694-8675-1D6C7F67FF18. Brock, D, Powell, MJ, and Hinings, CR (1999) Restructuring the Professional Organization: Accounting, Healthcare, and Law (New York, Routledge). Brock, GW (2003) The Second Information Revolution (Cambridge, Harvard University Press). Brooke, H (2004) ‘The Legal and Policy Implications of Courtroom Technology: The Emerging English Experience’ 12 William and Mary Bill of Rights Journal 699. Brown, P, Lauder, H, and Ashton, D (2011) The Global Auction: The Broken Promises of Education, Jobs, and Incomes (Oxford, Oxford University Press). Brownsword, R (2019a) Law, Technology and Society: Re-Imagining the Regulatory Environment (London, Routledge). —— (2019b) ‘The Regulation of New Technologies in Professional Service Sectors in the United Kingdom: Key Issues and Comparative Lessons’ (Legal Services Board, 4 July 2019) www.legalservicesboard.org. uk/wp-content/uploads/2019/07/Professions-RB-Report-VfP-4-Jul-2019.pdf. Cain, M (1983) ‘The General Practice Lawyer and the Client: Toward a Radical Conception’ in R Dingwall and P Lewis (eds), The Sociology of the Professions: Lawyers, Doctors, and Others (London, Macmillan) 106–30. Carnevali, D and Resca, A (2014) ‘Pushing at the Edge of Maximum Manageable Complexity: The Case of “Trial Online” in Italy’ in F Contini and GF Lanzara (eds), The Circulation of Agency in E-Justice: Interoperability and Infrastructures for European Transborder Judicial Proceedings (Dordrecht, Springer Netherlands) 161–83. Chin, E, Grovum, G, and Grace, M (2019) ‘White Paper: State of Legal Innovation in the Australian Market’ Alpha Creates Pty Ltd alphacreates.com/product/white-paper-state-of-legal-innovation-inaustralia.

Legal Technology: The Great Disruption?  535 Christensen, CM (2013) The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail (Cambridge, Harvard Business Review Press). Christian, C (1998) Legal Practice in the Digital Age: The Quest for the Killer Legal App (London, Bowerdean Publishing). Clarke, R and Wigan, M (2018) ‘The Information Infrastructures of 1985 and 2018: The Sociotechnical Context of Computer Law & Security’ 34 Computer Law & Security Review 677. Collins, H (2013) ‘Three Dimensions of Expertise’ 12 Phenomenology and the Cognitive Sciences 253. Conitzer, V, Sinnott-Armstrong, W, Schaich Borg, J, Deng, Y, and Kramer, M (2017) ‘Moral Decision Making Frameworks for Artificial Intelligence’ (Association for the Advancement of Artificial Intelligence Conference AAAI-17) users.cs.duke.edu/~conitzer/moralAAAI17.pdf. Cuccuru, P (2017) ‘Beyond Bitcoin: An Early Overview on Smart Contracts’ 25 International Journal of Law and Information Technology 179. Dadwal, V and Beer, M (2018) ‘What We Can Learn from Asia’s Courts of the Future’ (World Economic Forum, 2 November 2018) www.weforum.org/agenda/2018/11/what-we-can-learn-from-asia-s-courtsof-the-future. Delacroix, S (2018) ‘Computer Systems Fit for the Legal Profession?’ 21 Legal Ethics 119. Edwards, A (2011) ‘Building Common Knowledge at the Boundaries between Professional Practices: Relational Agency and Relational Expertise in Systems of Distributed Expertise’ 50 International Journal of Educational Research 33. Faulconbridge, J (2007) ‘Relational Networks of Knowledge Production in Transnational Law Firms’ 38 Geoforum 925. —— (2008) ‘Managing the Transnational Law Firm: A Relational Analysis of Professional Systems, Embedded Actors, and Time-Space-Sensitive Governance’ 84 Economic Geography 185. —— (2015) ‘Knowledge and Learning in Professional Service Firms’ in L Empson, D Muzio, JP Broschak, and B Hinings (eds), The Oxford Handbook of Professional Service Firms (Oxford, Oxford University Press) 425–51. Faulconbridge, J and Muzio, D (2008) ‘Organizational Professionalism in Globalizing Law Firms’ 22 Work, Employment and Society 7. —— (2012) ‘Professions in a Globalizing World: Towards a Transnational Sociology of the Professions’ 27 International Sociology 136. Federal Ministry of Justice (2019) ‘Eckpunkte für eine Neuregelung des Berufsrechts der anwaltlichen Berufsausübungsgesellschaften’ [transl: ‘Key points for a new regulation of the professional law of the lawyers’ professional associations’] (Bundesministerium der Justiz und fur Verbraucherschutz) www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/DE/Berufsrecht_anwaltl_Berufsaus%C3%BCbun gsgesellschaften.html. Fenwick, M and Vermeulen EPM (2019) ‘The Lawyer of the Future as “Transaction Engineer”: Digital Technologies and the Disruption of the Legal Profession’ in M Corrales, M Fenwick and H Haapio (eds), Legal Tech, Smart Contracts and Blockchain (Singapore, Springer Singapore) 253–72. Flecker, J and Schönauer, A (2016) ‘The Production of “Placelessness”: Digital Service Work in Global Value Chains’ in J Flecker (ed), Space, Place and Global Digital Work (London, Palgrave Macmillan) 11–30. Flood, J (1996) ‘Megalawyering in the Global Order: The Cultural, Social and Economic Transformation of Global Legal Practice’ 3 International Journal of the Legal Profession 169. Flood, J and Robb, L (2019) ‘Professions and Expertise: How Machine Learning and Blockchain Are Redesigning the Landscape of Professional Knowledge and Organization’ 76 University of Miami Law Review 443. Freidson, E (2001) Professionalism, the Third Logic: On the Practice of Knowledge (Chicago, University of Chicago Press). Froelich, M and Chapin, D (2019) ‘Enabling RegTech Up Front: Unambiguous Machine-Readable Regulation’ in J Barberis, DW Arner, and RP Buckley (eds), The Regtech Book: The Financial Technology Handbook for Investors, Entrepreneurs and Visionaries in Regulation (Chichester, Wiley) 85–88.

536  Julian Webb Galloway, K, Webb, J, Bartlett, F, Flood, J, and Webley, L (2019) ‘The Legal Academy’s Engagements with Lawtech: Technology Narratives and Archetypes as Drivers of Change’ 1 Law, Technology and Humans 27. Gartner (2018) ‘Understanding Gartner’s Hype Cycles’ (Gartner Research 20 August) www.gartner.com/ en/documents/3887767/understanding-gartner-s-hype-cycles. Goggin, G (ed) (2004) Virtual Nation: The Internet in Australia (Sydney, UNSW Press). Goodenough, O (2013) ‘Developing an E-Curriculum: Reflections on the Future of Legal Education and on the Importance of Digital Expertise’ 88 Chicago-Kent Law Review 845. Gowder, P (2018) ‘Transformative Legal Technology and the Rule of Law’ 68 University of Toronto Law Journal (Supplement 1) 82. Granat, R (2019) ‘The Legal Document Preparation Industry’ (Richard S Granat, 12 September 2019) www.richardgranat.com/single-post/2019/09/12/The-Legal-Document-Preparation-Industry. Greenleaf, G (2010) ‘The Global Development of Free Access to Legal Information’ in A Paliwala (ed), A History of Legal Informatics (Zaragoza, Prensas Universitarias de Zaragoza). Greenleaf, G (2017) ‘Review Essay: Technology and the Professions: Utopian and Dystopian Futures’ 40 University of New South Wales Law Journal 302. Greenwood, R, Hinings, CR, and Brown, J (1990) ‘“P2-Form” Strategic Management: Corporate Practices in Professional Partnerships’ 33 Academy of Management Journal 725. Griese, M (2002) ‘Electronic Litigation Filing in the USA, Australia and Germany: A Comparison’ 9(4) Murdoch University Electronic Journal of Law www5.austlii.edu.au/au/journals/MurUEJL/2002/42. html. Gür, G (2015) ‘Multimedia Transmission over Wireless Networks: Fundamentals and Key Challenges’ in MS Obaidat, P Nicopolitidis and F Zarai (eds), Modeling and Simulation of Computer Networks and Systems: Methodologies and Applications (Waltham, Mass, Morgan Kaufmann) 717–50. Halliday, TC (1985) ‘Knowledge Mandates: Collective Influence by Scientific, Normative and Syncretic Professions’ 36 The British Journal of Sociology 421. Hammerslev, O (2008) ‘The Development of the Danish Legal Profession’ 53 Scandinavian Studies in Law 283. Harvey, DJ (2017) Collisions in the Digital Paradigm: Law and Rule Making in the Internet Age (Oxford, Hart Publishing). Henderson, WD (2014) ‘From Big Law to Lean Law’ 38 International Review of Law and Economics 5. Hildebrandt, M (2015) Smart Technologies and the End(s) of Law: Novel Entanglements of Law and Technology (Cheltenham, Edward Elgar). Hodges, CJS (2019) Delivering Dispute Resolution: A Holistic Review of Models in England and Wales (Oxford, Hart Publishing). Hook, A (2019) ‘The Use and Regulation of Technology in the Legal Sector beyond England and Wales: Research Paper for the Legal Services Board’ (Legal Services Board, 4 July 2019) www. legalservicesboard.org.uk/wp-content/uploads/2019/07/International-AH-Report-VfP-4-Jul-2019.pdf. Jones, LJ and Pearson, A (2020) ‘The Use of Technology by Gold Coast Legal Practitioners’ 2 Law, Technology and Humans 57. Katsh, ME (1996) ‘Competing in Cyberspace: The Future of the Legal Profession’ 52 Law and Technology 109. Kirkpatrick, I and Noordegraaf, M (2015) ‘Organizations and Occupations: Towards Hybrid Professionalism in Professional Service Firms?’ in L Empson, D Muzio, JP Broschak, and B Hinings (eds), The Oxford Handbook of Professional Service Firms (Oxford, Oxford University Press) 92–112. Kraut, RE (1987) ‘Social Issues and White-Collar Technology: An Overview’ in RE Kraut (ed), Technology and the Transformation of White-collar Work (Hillsdale, NJ, Lawrence Erlbaum Associates) 1–21. Kritzer, HM (1999) ‘The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World’ 33 Law & Society Review 713. Law Society of New South Wales (2017) Report of the Commission of Inquiry into the Future of Law and Innovation in the Profession (Sydney, Law Society of NSW).

Legal Technology: The Great Disruption?  537 Legal Services Board (2018) ‘Technology and Innovation in Legal Services – Main Report’ (Legal Services Board, November 2018) www.legalservicesboard.org.uk/wp-content/media/Innovation-survey-2018report-FINAL-2.pdf. Leith, P (2016) ‘The Rise and Fall of the Legal Expert System’ 30 International Review of Law, Computers & Technology 94. Linna, DW (2016) ‘What We Know and Need to Know About Legal Startups’ 67 South Carolina Law Review 389. Liu, S (2013) ‘The Legal Profession as a Social Process: A Theory on Lawyers and Globalization’ 38 Law & Social Inquiry 670. —— (2015) ‘Boundary Work and Exchange: The Formation of a Professional Service Market’. 38 Symbolic Interaction 1. —— (2018) ‘Boundaries and Professions: Toward a Processual Theory of Action’ 5 Journal of Professions and Organization 45. Liu, S and Halliday, TC (2009) ‘Recursivity in Legal Change: Lawyers and Reforms of China’s Criminal Procedure Law’ 34 Law & Social Inquiry 911. Lupo, G (2014) ‘Law, Technology and System Architectures: Critical Design Factors for Money Claim and Possession Claim Online in England and Wales’ in F Contini and GF Lanzara (eds), The Circulation of Agency in E-Justice: Interoperability and Infrastructures for European Transborder Judicial Proceedings (Dordrecht, Springer Netherlands) 83–107. Maguire, S, McKelvey, B, Mirabeau, L, and Oztas, N (2013) ‘Complexity Science and Organisational Studies’ in S Clegg, C Hardy, TB Lawrence, and WR Nord (eds), The Sage Handbook of Organization Studies (Thousand Oaks, Calif, Sage Publications) 165–214. Mather, L (2011) ‘How and Why Do Lawyers Misbehave? Lawyers, Discipline and Collegial Control’ in SL Cummings (ed), The Paradox of Professionalism: Lawyers and the Possibility of Justice (New York, Cambridge University Press) 109–31. McGinnis, JO and Pearce, RG (2014) ‘The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services’ 82 Fordham Law Review 3041. McIntyre, J (2020) ‘CSIRO Wants Our Laws Turned into Computer Code. Here’s Why That’s a Bad Idea’ (The Conversation, 19 January 2020) theconversation.com/csiro-wants-our-laws-turned-intocomputer-code-heres-why-thats-a-bad-idea-130131. Mitchell, TM (1997) Machine Learning (New York, McGraw-Hill). Moles, RN (1991) ‘Logic Programming – An Assessment of Its Potential for Artificial Intelligence Applications in Law’ 2 Journal of Law and Information Science 137. Morgan, TD (2010) The Vanishing American Lawyer (New York, Oxford University Press). Morison, J and Harkens, A (2019) ‘Re-Engineering Justice? Robot Judges, Computerised Courts and (Semi) Automated Legal Decision-Making’ 39 Legal Studies 618. Mountain, DR (2006) ‘Disrupting Conventional Law Firm Business Models Using Document Assembly’ 15 International Journal of Law and Information Technology 170. Muzio, D and Ackroyd, S (2005) ‘On the Consequences of Defensive Professionalism: Recent Changes in the Legal Labour Process’ 32 Journal of Law and Society 615. Noronha, E, D’Cruz, P, and Kuruvilla, S (2016) ‘Globalisation of Commodification: Legal Process Outsourcing and Indian Lawyers’ 46 Journal of Contemporary Asia 614. Paliwala, A (2016) ‘Rediscovering Artificial Intelligence and Law: An Inadequate Jurisprudence?’ 30 International Review of Law, Computers & Technology 107. Pasquale, F (2019) ‘A Rule of Persons, Not Machines: The Limits of Legal Automation’ 87 George Washington Law Review 1. Plotnikoff, J and Woolfson, R (1998) Woolf at the Door: A Study of the IT Needs of Litigators (Law Society Research and Policy Planning Unit 20) (London, Law Society). Polanyi, M (1997) Personal Knowledge: Towards a Post-Critical Philosophy (London, Routledge). Ramirez, C (2010) ‘Promoting Transnational Professionalism: Forays of the “Big Firm” Accounting Community into France’ in M-L Djelic and S Quack (eds), Transnational Communities (Cambridge, Cambridge University Press) 174–96.

538  Julian Webb Remus, D and Levy, FS (2017) ‘Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law’ 30 Georgetown Journal of Legal Ethics 501. Rhode, DL and Ricca, LB (2014) ‘Protecting the Profession or the Public? Rethinking UnauthorizedPractice Enforcement’ 82 Fordham Law Review 2587. Rickard, E and Ivey, A (2019) ‘Can Technology Help Modernize the Nation’s Civil Courts?’ (Pew Charitable Trusts, 4 March 2019) www.pewtrusts.org/en/research-and-analysis/articles/2019/03/04/ can-technology-help-modernize-the-nations-civil-courts. Salter, S (2017) ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ 34 Windsor Yearbook of Access to Justice 112. Schanker, D (2010) ‘E-Filing in State Appellate Courts: An Appraisal’ White Paper: National Conference of Appellate Court Clerks (National Center for State Courts, 5 February 2010) ncsc.contentdm.oclc. org/digital/collection/appellate/id/189/. Schumpeter, JA (2008) Capitalism, Socialism, and Democracy (New York, Harper) Semple, N (2015) Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, Edward Elgar). Sergot, M (1991) ‘The Representation of Law in Computer Programs’ in T Bench-Capon (ed), Knowledgebased Systems and Legal Applications (London, Academic Press) 3–68. Skjølsvik, T and Breunig KJ (2018) ‘Virtual Law Firms: An Exploration of the Media Coverage of an Emerging Archetype’ 26 International Journal of Law and Information Technology 64. Smets, M, Morris, T, von Nordenflycht, A, and Brock, DM (2017) ‘25 Years since “P2”: Taking Stock and Charting the Future of Professional Firms’ 4 Journal of Professions and Organization 91. Sommerlad, H (2016) ‘“A Pit to Put Women in”: Professionalism, Work Intensification, Sexualisation and Work-Life Balance in the Legal Profession in England and Wales’ 23 International Journal of the Legal Profession 61. Stamper, R (1991) ‘The Role of Semantics in Legal Expert Systems and Legal Reasoning’ 4 Ratio Juris 219. State Bar of California (nd) ‘Task Force on Access Through Innovation of Legal Services’ www.calbar. ca.gov/About-Us/Who-We-Are/Committees/Task-Force-on-Access-Through-Innovation-of-LegalServices. Susskind, RE (1987) Expert Systems in Law: A Jurisprudential Inquiry (Oxford, Clarendon Press). —— (1996) The Future of Law: Facing the Challenges of Information Technology (Oxford, Oxford University Press). —— (2019) Online Courts and the Future of Justice (Oxford, Oxford University Press). Susskind, RE and Susskind, D (2017) The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford, Oxford University Press). Tan, V (2019) ‘Online Dispute Resolution for Small Claims in Victoria: A New Paradigm of Justice’ 24 Deakin Law Review 101. Taylor, PJ, Walker, DRF, and Beaverstock, JV (2002) ‘Firms and Their Global Service Networks’ in S Sassen (ed), Global Networks, Linked Cities (New York, Routledge) 93–116. Thomson Reuters (2019) Legaltech Startup Report 2019 (Legal Insights Europe, 8 October 2019) blogs. thomsonreuters.com/legal-uk/2019/10/18/a-new-report-legaltech-startup-report-2019-a-maturingmarket/. Thomson, R, Huntley, J, Belton, V, Li, F, and Friel, J (2000) ‘Decision Making at the Firm Level: The Experience of a Criminal Legal Aid Case Management System’ 14 International Review of Law, Computers & Technology 221. Thornton, M (2019) ‘Towards the Uberisation of Legal Practice’ 1 Law, Technology and Humans 46. Turner, A (2018) ‘The Zero-Sum Economy’ (Institute for New Economic Thinking, 20 August 2018) www.ineteconomics.org/perspectives/blog/the-zero-sum-economy. Verbeek, PP (2015) ‘Toward a Theory of Technological Mediation’ in JKB Friis and RP Crease (eds), Technoscience and Postphenomenology: the Manhattan Papers (Lanham, Md, Lexington Books) 189–204.

Legal Technology: The Great Disruption?  539 Wall, DS and Johnstone, J (1997) ‘The Industrialization of Legal Practice and The Rise of the New Electric Lawyer: The Impact of Information Technology upon Legal Practice in the UK’ 25 International Journal of the Sociology of Law 95. Wallach, W (2010) ‘Robot Minds and Human Ethics: The Need for a Comprehensive Model of Moral Decision Making’ 12 Ethics and Information Technology 243. Waye, V, Verreynne, ML, and Knowler, J (2018) ‘Innovation in the Australian Legal Profession’ 25 International Journal of the Legal Profession 213. Webb, J (1993) ‘Legal Research and Information Systems: The Impact of Information Retrieval Systems on Provincial Legal Practice’ 2 Information & Communications Technology Law 203. —— (2004) ‘Turf Wars and Market Control: Competition and Complexity in the Market for Legal Services’ 11 International Journal of the Legal Profession 81. —— (2019) ‘Information Technology and the Future of Legal Education: A Provocation’ 6 Griffith Journal of Law & Human Dignity 72. Webley, L, Flood, J, Webb, J, Bartlett, F, Galloway, K, and Tranter, K (2019) ‘The Profession(s)’ Engagements with LawTech: Narratives and Archetypes of Future Law’ 1 Law, Technology and Humans 6. Wilkins, DB and Esteban Ferrer, MJ (2018) ‘The Integration of Law into Global Business Solutions: The Rise, Transformation, and Potential Future of the Big Four Accountancy Networks in the Global Legal Services Market’ 43 Law & Social Inquiry 981.

540

Part VII

Lawyers and State Production

542

23 State-Centred Comparison of Legal Professions in an Era of Globalisation FRANK W MUNGER*

I. INTRODUCTION

T

his chapter argues that state-centred comparison, far from having been rendered irrelevant by globalisation, remains a useful, indeed compelling, approach to analysing variations in state structure, new paths for law’s influence and the development of legal professions. It reconsiders arguments made by earlier scholars, incorporating new perspectives on the state and new theories about the functions of legal professions.1 The companion volume offers in-depth studies of nearly four dozen legal professions in countries on every continent adapted to a broad range of historical and cultural contexts. Diversity among legal professions, mirroring that in state structures, presents challenges for comparison but also opportunity. Just as powerful forces of economic and political change beginning in the twelfth century shaped Europe’s modern states and their legal professions, so macrosocial changes, including colonisation, decolonisation, the collapse of empires, revolution, geopolitical shifts and economic globalisation have been fundamental to the formation of today’s states and the operation of law throughout the world. Because European legal ideas and practices, including the organisation and function of legal professions, have influenced the development of legal professions globally, it will be useful to consider ‘basic guidelines’ for relationships between state authority structures, the rise of a modern legal tradition, and the emergence of legal professions, which Rueschemeyer (1989: 303–305) derived from European history, before constructing a framework for global

* I would like to thank the participants in the workshop on comparison of legal professions held at Oñati, Spain in September 2018 for helpful comments and especially Carroll Seron, Bryant Garth, David Trubek, Edward Purcell and Karen Sherman for advice and for reading earlier drafts. 1 A seminal essay by Rueschemeyer (1989) examined the ‘mutually constructive’ relationship between a state and its legal profession. Drawing primarily on the history of legal professions in continental Europe, Britain and the United States, Rueschemeyer argued that differences in function, structure, demographics, and role in civil society grew from emerging state institutional structures. Nearly a decade earlier, Luckham (1981: 289–90), in a study of third-world legal professions, concluded that ‘lawyers and the legal profession can be compared because they are the product of forces of history – the accumulation of capital, the expansion of trade imperial conquest, the development of an international system of nation states, the bureaucratization of social relationships – which increasingly operate at a world level. Nowhere more so than the Third World, where … [t]he fact that different legal systems are linked through a process of transnationalization means that history is at the crux of many of the differences between them.’

544  Frank W Munger comparisons. First, European history showed that state formation had a major impact on the development of legal occupations and their place in society. Second, at least in Europe, law became a transcendent ‘reference point’ beyond state authority, endowing legal expertise with power that placed lawyers in a ‘mutually constructive’ relationship with the state. Third, Rueschemeyer argued that the more autonomous a state was from political control (eg states with a strong civil service), the greater its capacity to regulate (and limit) the autonomy of legal work. Fourth, development of states and legal professions has been path-dependent: early patterns have persisted in spite of new forces of political change. Common law and civil law systems retained essential differences notwithstanding convergence between economies and societies. Last, although law and legal professions have always been influenced by cultures, politics and economies outside a state’s borders, the state is an important gatekeeper with capacity to modify external influences on the profession. Global comparisons among legal professions must consider diversity far greater than that found in Europe. Legal professions in numerous non-European states are grounded in histories and cultures quite different from the centuries of political entanglement and shared origins in Roman and canon law, which characterised legal development in Europe. Transitions in state structure and formation of new states accompanying decolonisation, the end of the Cold War and dissolution of the Soviet Union have had consequences for legal systems and professions. Comparisons undertaken before the recent globalisation might pay less attention to the web of international legal relationships that have grown in complexity and influence since World War  II. Law’s globalisation has become increasingly important, and lawyers have become important players in establishing new governance norms embodied in treaties and international norms in broad areas of governance, trade, and human rights. New sources of international law not only challenge traditional forms of state authority but also raise questions about conceptions of law, state and legal profession that are fundamental to meaningful state-centred comparison. Indeed, we might ask whether the ‘state’ remains a useful point of comparison. Contemporary theory suggests that a state is less an agent with distinctive functions than a site of contention for power and construction of state authority (Vu 2010; Dezalay and Garth 2002). Further more, while lawyers may still be experts on state authority, neither law nor lawyers are defined or empowered exclusively by the state; and in some cases may be relatively free of its dominion. Given these new perspectives, it makes sense to consider whether a state-centred approach remains useful. II.  GLOBAL COMPARISON – CONCEPTUAL CHALLENGES

We might begin by asking what justifies special attention to the function and organisation of legal professions? Although the original comparative legal professions project (Abel and Lewis 1988a; 1988b; 1989) employed a sociology of professions framework, focused on the organisation of law work and its demographic, occupational, and economic implications, sociolegal research identified the legal profession’s constructive (or constitutive) power – its power to shape ideas, relationships and actions. The profession’s rise in Europe was based upon law’s mastery of the ‘symbolic terrain’ of conflicts over authority in early modern states (Dezalay and Garth 2010). From its rise to power beginning with the separation of secular and religious authority in eleventh- and twelfth-century Europe (Berman 1983), law carried the pan-­European authority of the church (a political force with its own interests) and Roman origins. The growth of commerce – a resource for rulers and the engine of an emerging civil society – made mastery of law doubly necessary. Law was not only an alternative to potentially

State-Centred Comparison of Legal Professions in an Era of Globalisation  545 endless wars but also a framework for development of commercial relationships that increased the power and resources of the state (Cipolla 1973). Knowledgeable in both law and state administration, lawyers became players in the network of relations that sustained the state in the ‘field of state power’ (Bourdieu and Wacquant 1992: 94). The profession’s ‘special character’ (Rueschemeyer 1989: 314) continues to be its capacity to mediate between the state and private interests, a capacity just as attractive to the rulers of new states, colonial or indigenous, as it was to the powerful in conflict-ridden early modern Europe. While other forms of specialised knowledge became vital in modern European society (eg theology, economics, medicine), legal professions have unique access to the power of the state – licensed to speak with the authority of the state’s own language in the highest forums of judicial administration and, under the right conditions, its politics. For old and new states alike, the European community of nations has set the terms upon which a state could become a modern nation (Tilly 1992), but much of the new research on legal professions concerns new or developing states that lack cultural and political foundations created by European nations’ unique history (see eg Cheesman 2016; Halliday et al 2012; Lev 1993; Massoud 2013; Rajah 2012; Sharafi 2016; Pérez-Perdomo 2016). Among other important differences, the legitimacy of law is limited by conflicting understandings of state legitimacy – post-colonial government versus indigenous institutions, traditional rulers versus new social classes, military versus civilian authority, religious versus secular institutions, state sovereignty versus the authority of transnational regulators and powerful global corporations. Comparing legal professions requires a concept of legal specialist that identifies relevant occupations in different states notwithstanding great variation in political structure and stage of development, a problem Rueschemeyer found challenging even among professions in a relatively small number of developed countries. Furthermore, the concept of a state, to which Rueschemeyer devoted little attention, requires clarification, an analysis that proves to be a key step in creating a framework for comparing variation in function of legal professions within different state authority structures. A.  Legal Professions in Global Context – Conceptual Issues The enormously varied nature of legal work within and between countries poses a serious obstacle to comparison. Even among developed, industrialised countries, numerous occupations employ knowledge of law, not all of which would be considered a legal profession – eg police or social workers. Furthermore, the distribution of legal work among occupations varies greatly across societies. In the United States, for example, licensed private legal practitioners have historically dominated legal work, but this is not typical everywhere (Cummings et al Vol 1, ch 6). Historically, private practitioners constituted far smaller proportions of the profession in Germany, Scandinavia, and non-European countries such as modern Japan and South Korea. (Kilian and Schultz Vol 1, ch 10; Hammerslev Vol 1, ch 8; Murayama Vol 1, ch 38; Kim Vol 1, ch 40) For example, until recent decades, a large proportion of German law graduates entered bureaucratic and political offices, creating a distinctly state-oriented professional culture (Rueschemeyer 1989).2 Some types of specialists in law work exist in some

2 Since the 1970s, rapid expansion of private practice reflects ‘a society increasingly oriented toward individual rights, and the growing importance of consultancy work’ (Kilian and Schultz Vol 1, ch 10: 210; see Section IV below for analysis).

546  Frank W Munger countries but not all (in many civil law legal systems, notaries are a distinct profession, which has no precise counterpart in common law systems). Japan (and recently China – for different reasons) encouraged the growth of many different occupations with legal training, limited to handling special matters. Until recently Japan (but not China) also strictly limited the number of generalists [bengoshi] who are the equivalent of private practitioners in Europe and North America. The editors of this volume adopt the Abel and Lewis (1988a; 1988b; 1989) two-part conceptualisation of legal profession, requiring possession of a state-recognised credential and performance of particular institutional functions. Although underspecified, this conceptualisation is attractive because it resembles the usage of social scientists, historians and ordinary citizens in industrialised democracies where legal professions are well-established.3 Furthermore, a legal profession’s characteristic functions and the relative autonomy required to legitimate the exercise of power were features derived from European history. Yet use of this conceptualisation of legal profession as a reference point risks reducing those of new states to imperfect copies of a Western original, overlooking fundamental differences in the way law is mobilised by unique mediators under very different regimes of state authority. European states and other developed democracies have imposed educational and certification requirements on lawyers, most of which apply to advisory and administrative roles as well as litigation. But this regulatory model is far from universal. In countries as diverse as Mexico, Russia, Thailand, and Egypt, no certification is required for legal advisors (Pérez-Hurtado Vol 1, ch 21; Moiseeva and Bocharov Vol 1, ch 16; Munger Vol 1, ch 42; Bernard-Maugiron and Omar Vol 1, ch 28). In Russia, the vast majority of legal representatives are unlicensed, with important consequences for the status, economic security and influence of the bar. Indeed, exceptions to the two-part provisional definition are as numerous as those that fall within it. Moreover, under the influence of contemporary neoliberal state reform and globalisation, regulation has taken a more varied path, as some states deregulate legal work, while regional regulation has superseded state-controlled regulation in others. Colonial rulers interested in exploitation rather than governance, notably in Africa, turned local elites into collaborators by leaving many local disputes and regulatory matters to existing hierarchies and dispute resolution practices (S Dezalay, ch 3 above; Dias et al 1981; Oguamanam and Pue 2006; Ibhawoh 2008; Comaroff 2006; Kamau Vol 1, ch 24). In Ghana, for example, Ashanti advocates in tribal courts continued to handle many matters that could not be brought in the colonial courts. Beyond such relatively formal roles in traditional, nonEuropean courts, informal advisors and representatives emerged in many colonies to serve as intermediaries between the local population and a poorly understood colonial system based on European jurisprudence They were known as ‘bush lawyers’ in Indonesia and by different names in other colonies (Lev 2000). In Indonesia and other post-colonial states a variety of ‘fixers’ continue to fill the gaps in the administration of justice. Where local needs or perceptions are incompatible with the new legal institutions, pre-existing beliefs about, specialists in, and practices of conflict resolution have sometimes retained the power to influence the utilisation of state-administered justice and perceptions of its legitimacy (Luckham 1981; Engel and

3 Abel and Lewis were influenced by Rueschemeyer’s refusal to adopt a definition based on an activity, such as adjudication, because that omitted many whom the state considered part of the legal profession, such as legal advisors. He also rejected a broad definition that included any occupation that ‘requires knowledge of the “language of the state”’ (1989: 298), which might encompass social workers, tax collectors, and almost any other government official, such as police.

State-Centred Comparison of Legal Professions in an Era of Globalisation  547 Engel 2010). In each instance, non-legal specialists continue to provide access to justice under indigenous interpretations of ‘law’, performing essentially the same mediation function as lawyers certified by the state. Differing conceptions of state legitimacy represent another dimension of diversity among legal occupations. Religion remains an important alternative form of authority in some cultures, in conflict with the rule of modern secular law. Sharia courts exist in many parts of the world, including Europe (Zee 2013). In Iran, judges in the civil court system are required to pass a religious qualification test and may elect training in religious rather than secular law. In Turkey and Egypt (Kalem Vol 1, ch 34; Bernard-Maugiron and Omar Vol 1, ch 28),4 conflicts over the role of Islam in the modern state divided the legal profession. In Pakistan, members of a Young Lawyers Movement recently justified the assassination of a judge who refused to recognise the authority of Islamic law.5 Thus, in many new and developing states, modern law lacks the transcendent authority it enjoys in European legal systems, a difference that may reduce the legal profession’s role as mediator between the state and private interests. Globalisation has had the opposite effect, increasing pressure on states to recognise the transcendent authority of law and making lawyers its principal ‘carriers’ (Dezalay and Garth 1996). An elite group of lawyers has found an expansive international and transnational terrain on which to work, not only by interpretating and enforcing post-World War II international treaties and conventions but also by constructing a network of private international trade and investment. While there may be no ‘stateless’ lawyers, some may operate outside any state’s direct control even though states have the capacity to regulate and redirect their influence in multiple ways.6 Finally, we should note that administration of law in all modern states, including developed, industrialised democracies, depends on other role players, most of whom would not be considered members of a legal profession under our definition. As Galanter (1974) has noted, informal roles and relations are essential elements of any sociolegal understanding of the functions of a legal system, whose formal institutions constitute only the tip of the ‘legal iceberg’. How, then, can we arrive at a theoretical framework for comparing legal professions? A partial answer lies in a better understanding of what is meant by a ‘state’. B.  States as Sites for the Construction of Power Weber’s (1954) classic theory defined the state as the organisation monopolising legitimate exercise of coercion in a given territory, but it is well understood the state’s authority has cultural and social dimensions as well as multiple agencies bound by political, institutional and social relationships with their own dynamics. These complexities affect not only a legal profession’s functions and work practices but also its relative influence within the state. Modern theory conceptualises a state as a site of conflict and contention for power among

4 Egypt’s 2014 constitution declares principles of Sharia law to be the source of legislative authority. 5 In all four countries, the military also plays a role in these conflicts, representing (or opposing) the authority of religion in state affairs while asserting power unmoored from law altogether. 6 These lawyers do not fit comfortably within the two-part conceptualisation of legal profession described earlier. In an era of globalisation, it would be particularly ironic to ignore the transnational power of legal authority, given the origins of the early profession, which employed knowledge legitimated by transnational institutions, the Catholic Church and early universities. Similarly, lawyers with imperial authority played a critical role in colonisation and in post-colonial states (S Dezalay forthcoming).

548  Frank W Munger multiple actors, including state agents who act in part in their own interest (Ertman 2005). Contemporary comparative studies of legal professions have taken a similar turn. Elite lawyers have become players who advance their careers by mobilising state power. At the same time, lawyers are embedded in professional networks that have a significant role in constructing expert knowledge and its uses (Silbey 1985; Levin and Mather 2012). Notwithstanding fundamental differences between states, lawyers have become influence brokers within many types of political structures; and some have furthered their independence and power by advocating for a strong private sector and, derivatively, political liberalisation (Halliday and Karpik 1997). Professions differ in organisation and function depending, in part, on how the state is organised, how influence over the profession is wielded by different actors in the field of state power, and how the profession develops its brokering role between the state and non-state actors. The profession’s special value to a state derives from lawyers’ capacity to construct state authority. But lawyers are, in Dezalay and Garth’s characterisation, ‘double agents’, able not only to legitimise state power but also to invoke law’s authority to limit or oppose the state (2010). This duality depends on autonomy from the state, an important variable in comparing legal professions and a source of tension from which the state itself benefits.7 Viewing the state as the site of negotiations and power struggles among multiple actors not only more accurately describes the legal profession’s emergence from state formation in Europe but also allows us to identify factors influencing state formation, which may be overlooked or underemphasised if we focus exclusively on contemporary Europe as a model for categorising and explaining differences in the function and organisation of legal professions. European history suggests that at least three factors in state development are likely to influence differences among legal professions. Differences persist between professions established under pre-bureaucratic, pre-capitalist states with limited regulatory capacity and professions that were regulated in ways that complemented the policy-making and political capacity of strong bureaucratic states. In the former, courts and lawyers became early policy makers, filling gaps in the state’s limited administrative capacity, thereby securing greater autonomy and political influence. Courts and lawyers incorporated into Europe’s strong bureaucratic, and typically capitalist, states had less independent authority to make policy and less independence from the executive branch or legislature (Rueschemeyer 1989).8 Two broadly defined families of legal professions acquired characteristic structures from these contrasting paths of state development. Common law systems were adapted to states whose bureaucratic capacity and centralised authority developed late, a characteristic found in England, the United States, Australia and other countries of the former British empire. Civil law legal systems prevail in

7 The explanation of a legal profession’s autonomy in terms of its privileged position in mediating between state and private interests adds an important dimension to prior theories of professional autonomy based on expert knowledge and internalisation of collegial norms (see Silbey 1985; Mather and Levin 2012; Freidson 1986). Weber’s so-called ‘England problem’ – the rise of capitalism without the benefit of what Weber called legal-rational reasoning – may be viewed as a consequence of undervaluing the importance of a profession’s political role as well as its mastery of expertise. 8 There is an important difference between ‘bureaucratic’ and ‘capitalist’ states, concepts with different historical implications. Although Weber associated modern legal systems and legal professions with the rise of capitalism, bureaucratic state administration and a class of legal specialists actually originated in the twelfth century (Cippola 1973). Continental states coalesced to manage conflict with other states and reap the benefits of wealth created by early capitalists: merchants, entrepreneurs, and financiers who promoted commerce and flourished in European cities long before the appearance of capitalism as a mode of production (Tilly 1992). The state was transformed again during this second massive shift in economic organisation, increasing the interdependence between state administration of law and the economy (Tilly 1992; Polanyi 1944).

State-Centred Comparison of Legal Professions in an Era of Globalisation  549 the highly bureaucratised states of continental Europe: Prussia (later Germany), Scandinavia, France, the Netherlands, Spain and others (Kilian and Schultz Vol 1, ch 10; Hammerslev Vol 1, ch 8; Bessy and Bastard Vol 1, ch 9; Doornbos and de Groot-van Leeuwen Vol 1, ch 12).9 Although common law and civil law systems have converged over time, characteristic differences remain in matters as fundamental as who speaks with the ‘force of law’ (Bourdieu 1986), identity and structure of the profession, development of an autonomous professional organisation, distribution of legal occupations, and the legal professions’ orientation to the state.10 Two other factors whose influence is less apparent in contemporary Europe were and remain important for comparing differences among legal professions globally – the role of relatively autonomous groups of elites and the emergence of democratic governance. Powerful elites often drew on competing sources of legitimacy, including law, the church and membership in a powerful social class or family.11 Rising to positions of influence because they met the needs of rulers and other power holders in early modern states (twelfth to sixteenth centuries), law-trained specialists were themselves typically members of the hereditary elite or educated bourgeoisie (Rueschemeyer 1989), whose social capital gained them admission to the church or universities and to positions of political and administrative influence. Early forms of regulation of the legal profession by rulers of emerging administrative states were intended, among other objectives, to reduce the power of this increasingly independent class of law-trained statesmen (ibid). The formation of the profession as a class of autonomous regional or municipal elites in some countries left its mark on modern European legal professions – for example in France, Spain, Switzerland, and Italy – in the form of historically decentralised organisational structures (Bessy and Bastard Vol 1, ch 9; Boni-Le Goff et al Vol 1, ch 13; Micelotta and Dorian Vol 1, ch 11). There are vestiges of these contests between elites over the legitimacy of the state’s authority in Europe, but elites relying on competing sources of legitimacy continue to play a significant role in the development of the function and organisation of legal professions in other parts of the world. A third important factor, the long history of conflict during transitions from authoritarian to democratic governance, has likewise left its mark on legal professions across Europe and its developed former colonies, the Canada, United States and Australia (Dinovitzer and Dawe Vol 1, ch 3; Cummings et al Vol 1, ch 6; Thornton and Wood Vol 1, ch 2). This transition to democracy occurred at different times and in different ways across Europe, but collectively, pressures from commercial, and much later industrial, classes for a greater share of power accompanied the development of constitutional government, liberal legal jurisprudence, the concept of a Rechtsstaat and rule of law, becoming the foundation for their legal professions’ identity and an influential model elsewhere. The similar endpoint of these historical struggles

9 A state-centred legal profession and limited political autonomy were critical factors that made executive-­ dominated, civil law legal systems attractive to hereditary elites for modernising nineteenth-century authoritarian states. 10 In England and the US, the profession’s organisation and distribution of legal work mirror the predominance of service to private interests. Lawyers circulate freely between business, politics, and law practice. In Germany, law remains the expression of the enlightenment state and the profession a branch of the state, although this is not true of legal professions in all civil law states (Rueschemeyer 1989). A much larger proportion of German law students enter civil service employment. While Rueschemeyer’s principal examples were England, the US, and Germany, subjects of his own deeply researched scholarship, Germany’s emphasis on a technocratic and rule-centred judiciary and legal profession is not entirely typical of other civil law systems, just as the British and US legal systems have characteristics not shared by other common law systems. 11 For example, elite rule did not coalesce into a unified state until much later in the Netherlands, where coalitions of powerful merchant families presided over the rise and downfall of its dominant commercial empire (Vu 2010: 154).

550  Frank W Munger in developed Western democracies12 masks the importance of different distributions of power and ongoing conflict for the development of legal professions elsewhere. Worldwide, the development of the legal profession’s function and organisation reflects far more varied distributions of power. In sum, at least three factors apparent in European history are likely to be important predictors of variation globally in the relationship between a state and a legal profession’s function and structure – the timing of bureaucratic development, the presence of relatively autonomous elites, and the distribution of power. Each of these dimensions influences not only the work a profession does but also how the profession is organised and its role in the relationship between state and civil society. The influence of all three factors in global perspective is examined in Section III. C.  A Note on ‘Cause Lawyers’ Scholarly interest has created a flourishing subfield devoted to the study of ‘cause lawyers’, defined by Scheingold and Sarat (2004: 3) as those who practise ‘with a vision of the good society’. Earlier studies of lawyers with focused interests noted their potential impact on the development of law (Shamir 1995; Galanter 1974) and linked their influence to the power of clients, resources and opportunities to mobilise law (Marshall and Hale 2014). Some contemporary scholars have suggested that the emergence of lawyers who work on behalf of social movements or human rights in new states follows from globalisation of Western legal ideals and practices (see eg Scheingold and Sarat 2004; Cummings and Trubek 2008). The comparative perspective developed here suggests that there is nothing distinctive about cause lawyers. Without doubt the legal field in most countries has been transformed by globalisation (see Section IV, below), but the emergence of ‘cause lawyers’ cannot be explained by new professional ideals or identities alone. State-centered theory suggests that lawyers for ‘causes’ are making strategic use of new resources to perform functions and pursue goals adapted to the particular state’s political structure (see Dezalay and Garth 2001; 2002; Munger et al 2013). The claim that cause lawyers are necessarily progressive is also misleading (Munger 2010). ‘Causes’ come in many forms, some of which favour wider distribution of benefits and opportunities in a society while employing different interpretations of ‘rule of law’ (Ghias 2010), while others favour conservative (Southworth 2008) or corporate (Freyer 1979; Gordon 1984) causes. Conversely, radical shifts in the strength of rule of law principles may result from ‘quieter forms of change’ that occur when the state permits lawyers, bureaucrats and judges to do their job – enforcing the letter of the law (Stern 2012). Indeed, cause lawyer studies have had the beneficial effect of illustrating precisely this feature of the relationship between state and legal institutions, namely that law gains strength where lawyers find resources to support law and work to mobilise its authority.

12 But consider the differences in the organisation and influence of: (1) legal professions initially dominated by judiciaries established to give effect to the bureaucratic, centralised power of late-stage monarchies (continental Europe); (2) a legal profession established under a pre-bureaucratic state and governed by a relatively autonomous and powerful bar (Sommerlad et al Vol 1, ch 4); and (3) a legal profession whose modern identity as liberal, anti-state and localised grew from a faction supporting a bourgeois revolution (Bessy and Bastard Vol 1, ch 9) (Dezalay and Garth 2014).

State-Centred Comparison of Legal Professions in an Era of Globalisation  551 III.  STATE STRUCTURE AND LEGAL PROFESSION DEVELOPMENT – GLOBAL COMPARISONS

In much of the non-European world, constellations of political culture and institutional structure that determined the legal profession’s development have varied widely. As we observed, in Europe the timing of bureaucratic state formation is just one of several important factors that explain major differences among legal professions. The development of legal professions in similar administrative states was also influenced by conflicts among elites representing competing sources of sovereignty and the distribution of power between state and civil society. A.  Bureaucratic Administration and the Structure of Legal Professions In post-colonial states, the function and organisation of lawyers often retain the character of colonisers’ initial ‘investments’ in law within the colonial state (Dezalay and Garth 2002). Variation in the pattern of ‘investment’ illustrates the importance not only of bureaucratic administration but also of the profession’s autonomy and the continuing role of ethnic and religious divisions in the society. Contemporary research provides instructive examples. The function and organisation of legal professions established during the Spanish conquest of South America reflected the advanced state of the legalisation of the Spanish crown’s authority in administering both European territories and South American colonies (PérezPerdomo 2006). Lawyers served as advisors to the Spanish throne and assumed positions of administrative importance in the colonies, guaranteeing that law would become the skeleton of the emerging states. Colonial rule in South America’s vast and complex terrain impeded the bureaucratisation which was possible in Europe, and Spain’s pre-capitalist colonial economy only required officials capable of satisfying the throne’s need for revenues. Unlike Spain’s empire in Europe, these relatively weak bureaucratic administrations became dependent upon the influence of powerful elites and the military rather than legal-bureaucratic administration to control politics and development. When new states in South America replaced colonial rule, elite structure continued to dominate the organisation of legal professions. Under colonial rule, training in law became a means to socialise successive generations of colonial elites, inheritors of Spain’s authority. Following independence, elites in each state determined the place of law and the structure of the legal profession. In Chile and Brazil, elite families dominated (and continue to dominate) a profession focused primarily on preserving its status in an elite ruling class rather than developing an autonomous profession (Dezalay and Garth 2002). Argentina’s weak state left its legal elite dependent on alternative, mainly international, sources of influence and autonomy. Mexico’s successful popular revolution in the early twentieth century incorporated politically allied lawyers into its ‘revolutionary family’, which has controlled politics for generations, and at the same time closed the avenues of insider power to elite lawyers embedded in what were Mexico’s ruling families. Family-based firms comprised of members of the traditional elite remain influential representatives of Mexico’s economy but relative outsiders in politics (ibid). Colonial powers in India and the Philippines (Britain and the United States respectively) supported replication of the home countries’ strong autonomous legal professions. In the postcolony, the profession remained relatively autonomous and continued to resist attempts to

552  Frank W Munger weaken the rule of law.13 The profession has fared very differently in other British colonies (see Halliday et al 2012). Instability in British colonial Myanmar and Pakistan led to establishment of strong militaries at the expense of judicial and civil administration, leaving post-colonial governments vulnerable to failure and military claims of superior authority to govern. The British post-colonial constitutional settlement in Malaysia divided power among three ethnic groups, creating a relatively autonomous bar dominated by ethnic Indians trained in the common law but relegated to the margins of ethnic politics. In contrast, Dutch colonisers in Indonesia established a bureaucratic state but invested little in law or an autonomous legal profession, leaving behind a profession with limited autonomy and subordinate to a bureaucracy and judiciary controlled by a powerful Javanese elite through long-standing networks of political influence (Crouch 2019). Likewise, bureaucratic state formation and fragmentation among indigenous elites influenced the organisation and status of legal professions in post-colonial Africa. In many African colonial states, colonisers were primarily interested in protecting Europeans and European investments rather than developing a modern state (S Dezalay, ch 3 above). In these states, gaps in local administration were filled by indigenous elites and two-tier institutions of governance and administration of law. Substantial differences in the effects of colonial government on the development of post-colonial legal professions are explained in part by the degree to which administration of justice was part of a unified national system. In Kenya, for example, where Europeans controlled industries producing goods for export, the colonial legal profession consisted largely of European and Asian lawyers serving European settlers who dominated developing enterprises (Kamau Vol 1, ch 34). The post-colonial legal profession replicated features of the colonial bar, comprised of small, politically conservative firms whose leading members sought influence and advancement through connections with government rather than support for an autonomous profession. Ghana represents a different pattern of colonial investment in law. The primary source of new development in the colony consisted of agriculture dominated by indigenous peasants producing for export. Significant legal work accompanying economic development was left to Ghanaian lawyers and traditional tribunals serving indigenous entrepreneurs and local tribal governance; and a vibrant indigenous and politically active post-colonial legal profession grew from colonial roots and Ghana’s export economy (Luckham 1981). In contrast, reproduction of the French legal profession in colonial Tunisia reflected a different level of investment in law. The post-colony was left with a substantial number of lawyers with training in France, liberal political values, and a relatively autonomous, decentralised professional organisation, with important consequences for the profession’s active role in politics after independence in 1957 (Gobe Vol 1, ch 33).14 B.  Competing Elites, Competing Legitimacies European legal professions matured in unified, secular law-states, but in many other parts of the world the concept of law’s transcendent authority has few historical roots and remains contested. Religion, hereditary status, military power, populism, and revolutionary ideologies

13 In India, Parsi lawyers’ unique culture and commercial ties enabled them to advance by achieving status within the Indian legal profession (Sharafi 2014), evidence of the success of British colonial investment in the profession’s autonomy and influence in Indian society and politics. 14 For example, elements of the Tunisian legal profession actively supported the revolutionary movement which overthrew the autocratic Ben Ali regime in 2011.

State-Centred Comparison of Legal Professions in an Era of Globalisation  553 endow rulers and competitors with authority, sometimes at odds with law.15 Where the authority of a law-state is weak, groups of elites claiming competing forms of authority have arisen. Generals who gained power during colonisation, or received support as proxies for global powers, have seized control of post-colonial states left weakened by lack of resources, internal collapse or political turmoil. Populist leaders have undermined constitutionalism and the rule of law, often with public support.16 In many parts of the world, the status of law as the primary or preeminent source of state authority remains unresolved, attenuated by the divided loyalties of competing groups of elites. Religious institutions and powerful military establishments are contenders for state authority in many developing states, especially in the Middle East, where strong military organisations originally created to serve imperial or colonial rulers have intervened repeatedly, sometimes clashing with a resurgent Islam to restore secular government, sometimes serving revolutionary Islamic leaders (Kalem Vol 1, ch 34; Banakar and Ziaee Vol 1, ch 29; Bernard-Maugiron and Omar Vol 1, ch 28). In Iran, an Islamicised judiciary dominates the profession and remains unchallenged in a state where Islamists control both the military and politics.17 After Egyptian independence in 1954, an autonomous legal profession fostered under both British and French rule quickly became an opponent of authoritarian government and its military, supporting the Arab spring and Egypt’s first elected president in 2012.18 Since the military’s return to power in Egypt, the Muslim Brotherhood has become the face of opposition to authoritarian rule and dominates the once secular bar. Similarly, the Turkish legal profession was established at the founding of the First Republic in 1923 as an important element of a secular state. As in Iran and Egypt, the bar’s historical support for secular governance has been challenged as lawyers divide over Prime Minister Erdoğan’s Islamisation campaign (Kalem Vol 1, ch 34; Banakar and Ziaee Vol 1, ch 29; Bernard-Maugiron and Omar Vol 1, ch 28). Southeast Asia is another region where different sources of sovereignty frequently compete (Curley et al 2018), resulting in limited institutionalisation of Western rule of law ideals and a weak legal profession. Thailand, the clearest case of interplay between multiple forms of political legitimacy, has repeatedly failed to establish stable democracy or rule of law, in part because competing sources of sovereignty – monarchy, the military, and the populace – have been exploited by traditional elites to retain power (Dressel 2010). Cambodia under the

15 In Asian and Middle Eastern states in particular, religion remains influential in shaping modern law and limiting the autonomous authority of a law-state (Harding 2001; Feldman 2008). In other states, such as Indonesia and Thailand, an entrenched ruling class remains capable of limiting the autonomy of law (Kouwagam and Bedner Vol 1, ch 37; Munger Vol 1, ch 42). 16 A pattern of military coups in post-colonial South American states is in part a consequence of civilian governments without sufficient resources for effective administration of large territorial expanses and exacerbated by politically unstable elite family rivalries (Vu 2010). Similarly, in the Middle East, military leaders have assumed control of states debilitated by political conflict, a failing economy, or collapse of an empire, sometimes opportunistically but sometimes to restore effective governance and with substantial domestic support. In the latter case, the military may not abrogate law but rather, as in Turkey, subject civilian governments to oversight (Kalem Vol 1, ch 34). 17 Iranian courts, organised on the French system, are judge-dominated. Judges may qualify by training in seminaries as well as secular law faculties, and all must pass a test of religious qualification. Sharia law does not give lawyers exclusive rights of representation, and judges consider lawyers an interference. As a consequence, the bar is dominated by the judiciary, while legal practitioners have little independence or political influence (Bessy and Bastard Vol 1, ch 9; Banakar and Ziaee Vol 1, ch 29). 18 The Egyptian military, with the aid of Middle Eastern oligarchs and tacit US support, quickly overthrew Morsi’s government and restored an authoritarian president, who has intervened to suppress Islamist influence, especially within the bar (Walsh and Kirkpatrick 2019; Filkins 2018). Once preferred by military and civilian leaders, the legal profession currently lacks coherence and influence, and defence of human rights relies on NGOs backed by foreign funding.

554  Frank W Munger Khmer Rouge virtually destroyed its legal profession as well as others considered bourgeois. Reconstruction of its legal profession, along with institutions of civilian government in the post-Khmer Rouge era, has relied on foreign lawyers, while many political leaders from the earlier era struggle to maintain a facade of rule of law and preserve their political control (Curley 2018). Myanmar is sui generis, never truly socialist nor fully democratic. Until recently, its autocratic and unpredictable military junta employed a self-serving socialist ideology to legitimate its brutal regime, replacing Western rule of law with legal proceedings subservient to the junta and virtually abolishing independent legal advocacy (Cheesman 2016). Legal professions in all three countries struggle for autonomy and a significant role in civil society, impeded by both state politics and the disconnect between modern conceptions of rule of law and societies in which these ideas remain alien. C.  State, Civil Society, and Democratisation In Europe, legal institutions developed under pressure to meet the demands of an expanding array of political actors (Tilly 1992; Lev 1993). Bourgeois revolutions eventually established liberal constitutionalism and limits on state power, opening space for an autonomous civil society and mobilisation of law by lawyers acting on behalf of a wide range of private interests.19 Globally, there have been few such revolutions, and most modern legal systems were adopted under very different social conditions. Colonial and traditional rulers employed Western legal ideas and practices to serve their needs, typically exploitation, while investing little in establishing liberal values, civil and political rights, or a politically autonomous legal profession.20 Rulers with little interest in sharing power often take steps to ensure that courts and the legal profession lack support systems necessary for autonomy and enforcement of rights against the state (Moustafa and Ginsburg 2008).21 ‘Authoritarian’ captures little of the variation in legal systems and legal professions in such semi-democratic or non-democratic states. Three clusters of states illustrate the influence of other factors that structure the impact of an authoritarian regime on legal profession function and organisation: socialist, authoritarian bureaucratic, and dictatorial. ‘Socialist legality’ in contemporary China and Vietnam, Soviet Russia, and the newly independent Tanzania represents a legal ideology competing with European rule of law. Mass revolutions in the early twentieth century sought redistribution rather than equal rights and liberal political institutions. In practice, socialist regimes interpret law according to the will of the people through decisions made by the party rather than the courts or legal professionals (Gillespie 2013).22 In the socialist countries just named, legal professions maintained only a

19 Even among industrialised democracies, outside of Europe the legal profession has not always been allowed to play a similar role in mediating between the state and civil society (Upham 1987). Instead, development has relied primarily on non-legal relationships to guarantee economic transactions (Upham 2006; Jayasuriya 1999a). 20 These societies also lacked Europe’s concept of transcendent natural law. 21 Epp (1998) includes an independent rights-oriented judiciary, strong legal profession, independent civil society organisations invested in law, and a broadly accepted culture of rights among the most important elements. Much of the literature on building a rule of law in developing countries takes for granted the possibility of creating support structures (McClymont and Golub 2000; Golub 2003). Where support structures do not exist and rulers invest little in law, legal profession autonomy is limited. International funding for rule of law reform is often diverted to strengthen state enforcement – crime control, bureaucratic efficiency, and judicial reform (Kleinfeld 2006). 22 This varies from more party control of legal institutions after popular revolution, as in Russia, Vietnam or China, to less under socialist governments imposed by military takeover in Eastern Europe, which failed to eliminate the legacy of pre-socialist institutions (Mrowczynski 2012).

State-Centred Comparison of Legal Professions in an Era of Globalisation  555 marginal existence, at least initially (see also Mrowczynski, ch 5; Rwelamira 1981). In general, Luckham (1981: 336) suggests that where the economy is largely socialized … there is seldom a social and economic base from which lawyers may move into politics as independent political actors, meaning either a diminution of their political importance or a shift from political to purely bureaucratic functions and activities.

As economies have internationalised, distributing power to sources outside the state’s control, socialist and post-socialist authoritarian states have had to reconsider an autonomous profession, as law becomes a medium for accessing global markets, domestic economies are internationalised, and a facade of independent professionalism is increasingly necessary to maintain the legitimacy of the state’s means of coercion. Rapidly developing Asian states with authoritarian governments established modern legal systems over the course of the nineteenth and twentieth centuries to support bureaucratic centralisation while limiting the influence of an autonomous private legal profession (Jayasuriya 1999a). Japan (and Korea as a Japanese colony) capped the number of lawyers and limited demands for their services by directing dispute resolution to non-­judicial agencies (Upham 1987). Singapore’s semi-democratic government prides itself on the role of a technically competent judiciary and bar supporting its powerful economy. Like those in other Asian bureaucratic states, Singapore’s political leaders control the judiciary (Jayasuria 1999b). Legal professions have been allowed to expand, but states suppress political interference by both courts and bar (Jayasuria 1999a; Silverstein 2008). Where a sufficiently strong and authoritarian executive branch exists, control of judicial appointments, limited constitutional authority and, in extreme cases, violent reprisal have frequently been employed to limit political interference by courts and lawyers (Moustafa and Ginsburg 2008; see Section V). Efforts by authoritarian regimes to preserve the appearance of routine administration of justice and legal representation while maintaining political control are evidence of tension between competing interpretations of the rule of law in a world where popular embrace of Western ideals of democracy and law is being strengthened by globalisation among groups seeking wider distribution of opportunities and power (see, eg, Massoud 2013; Cummings and Trubek 2008). At the same time, populist countertrends are eroding these ideals in developed democracies and the liberalising potential of globalisation elsewhere (see Section V, below). Closely related to the last are numerous examples of weak or failed states left by imperfect state building during colonisation, the breakup of pre-World War I empires, or the collapse of a developing economy, leaving little capacity to resolve conflict caused by class, ethnic, regional or tribal cleavages. Globally, such conflicts have been exacerbated by post-colonial dictators who seize power without the political will or resources for effective administration (Comaroff and Comaroff 2006). Under such circumstances, promises of constitutionalism or effective administration of justice and adequate legal representation often have limited value. Where colonial powers created a strong, independent judiciary and legal profession, legal institutions are more likely to have survived the crisis and resisted corruption (see eg Widner and Scher 2008). IV.  LEGAL PROFESSIONS AND THE NEW INTERNATIONALISM

Global financial collapse and war in the first half of the twentieth century reshaped nation states, global markets and international law. Post-war victorious nations set new terms not only for international relations but also for membership in the community of nations through

556  Frank W Munger international agreements that presaged a network of agencies, treaties and a web of human rights conventions. During the past 50 years this framework has led to a second powerful transformation, the rise of a global free market. Following the end of the Cold War, the rise of the Washington Consensus – embraced by the US, its allies and the agencies and NGOs it spawned – promoted neo-classical economic policies to strengthen free markets. States were pressured to privatise state-owned businesses, deregulate domestic economies, lower taxes, and adopt a liberal constitutional order establishing the rule of law, protection of property rights and limited government (Cummings et al Vol 1, ch 6). Lawyers have had an expanding role in internationalisation, as both architects and intermediaries, translating global norms for economies and polities into state authority and mediating domestic change in the global era (Halliday 2012). Elite levels of the bar in many countries have been the champions of internationalisation, but lower orders of the profession have also been affected. Internationalisation of markets alters the political as well as the legal environment of ordinary people (Alford 2007). In many countries, globalisation has also affected regulation of the profession, but while, as noted above, states such as Russia have deregulated legal work, others have encouraged lawyers to assume a more expansive role, for example, by establishing new systems of courts (Tate and Vallinder 1995; Hirschl 2007). A common view held that the global rise of capitalism weakened the modern state by limiting state capacity to regulate, yet the effects of globalisation have been varied and complex (cf Block 1981 with Evans 1997 and Mann 2005). States have accommodated free markets by deregulating in some ways while at the same time reinforcing the rights of corporations and other property owners. Some states have deregulated borders but at the same time are pressured by international agencies to protect human rights – global influences with potentially contradictory effects on law work. The Washington Consensus is a source of potentially contradictory policy changes, which complicate the neoliberal narrative. Funds from wealthy countries and agencies have supported policing and border control, judicial reform, and greater regulatory capacity in some areas (antitrust, bankruptcy, securities regulation, and environmental controls) as well as human rights and civil society development (Kleinfeld 2006). Neoliberalism is not hostile to the state; rather it requires a particular kind of state (Grewal and Purdy 2014; Sassen 2006).23 Yet the pressures of globalisation have influenced state regulatory structures and the functions of legal professions within states in very different ways, empowering some interests and enfeebling others while contributing to political change and instability in many developing states. States that differ in administrative-bureaucratic capacity, support for rule of law, and distribution of power between government and civil society responded to globalisation in different ways. With economic globalisation, the number of lawyers has grown in almost every country, sometimes exponentially. Free trade and expansion of private business created new opportunities for some lawyers. In developing countries, the promise of upward mobility made the legal profession attractive, and many governments, recognising lawyers’ ability to facilitate private market growth, subsidised the expansion of legal education. lawyers. The rewards of collaboration with successful Western law firms persuaded elite firms to internationalise their practices and Americanise the organisation of legal work, gaining access to international commerce, finance, investment and alliances with powerful global law firms (Gomez and Galanter ch 17 above).



23 There

is controversy about the characteristics of this state. See Grewal and Purdy 2014.

State-Centred Comparison of Legal Professions in an Era of Globalisation  557 The impact of globalisation on most lawyers has depended on both the state’s regulatory capacity and political control of policy. In many democracies, conservative parties, which ascended to power after the global financial crisis of the 1970s, dismantled welfare programmes. Protected markets for some kinds of legal work have yielded to ideological pressure to deregulate services and market pressure for hybrid structures and lower costs, facilitated by technological innovation and proletarianisation of some legal work. England and Spain eliminated the exclusive audience rights of barristers (or their equivalent) (Sommerlad et al Vol 1, ch 4). The Netherlands raised the ceiling on civil actions handled without a lawyer to €25,000 (Doornbos and de Groot-van Leeuwen Vol 1, ch 12). Regulations adopted by the EC ended the monopoly enjoyed by nationals of each member country. The rapid growth in the number of lawyers and competition from non-lawyers reduced opportunities for upward mobility and increased lawyer unemployment. Deregulation of the legal profession has not been universal. It made little sense in strong bureaucratic states that had limited the legal profession to a marginal role in policy development. Indeed, Asian bureaucratic states as diverse as Japan, China and South Korea have recently permitted expansion of legal professions previously limited in number and function in response to globalisation. Where the legal profession has been historically strong and autonomous, deregulation has been resisted (Murayama Vol 1, ch 38; Liu Vol 1, ch 35; Kim Vol 1, ch 40). Regionally organised legal professions in a few European states, including Switzerland, Spain and France, temporarily delayed the transfer of professional regulation to state agencies more receptive to global market deregulation (Boni-Le Goff et al Vol 1, ch 13; Bessy and Bastard Vol 1, ch 9). Successful resistance to government globalisation policies in Italy and Brazil suggests the importance of a profession’s long-standing independence as well as its influential ties to government civil society (Micelotta and Dorian Vol 1, ch 11; Bonelli and Fortes Vol 1, ch 19). The BRIC nations (Brazil, Russia, India, China), with large globalised economies and strong state administrations, represent a second tier of leadership among industrial states. Under economic pressure from globalisation, BRIC countries are choosing a path resembling that of Asian bureaucratic states rather than European democracies. Strategies reject privatisation and deregulation on economic as well as political grounds, initiating a ‘new developmentalism’ characterised by ‘deep and broad public-private institutional structures’ (Trubek 2013: 13). Elite lawyers have contributed to the development of these partnerships while opposing state regulation of globalised law practice (Wilkins et al 2020). The strength of Brazil’s globalised law firms enabled them to secure regulatory liberalisation within a ‘more localized Brazilian culture, norms and regulations’ (Gabbay et al 2018: 36). India’s elite globalised legal sector has been less successful in liberalising entrenched practice norms, instead developing workarounds that avoid the need for formal changes (Singh 2017). China’s authoritarian state has a different relationship with lawyers. The legal profession dates from the 1960s, when China reestablished state-controlled expertise in law to facilitate relations with international business and foreign governments. Pressured further in the 1980s by its own growing private business sector and need to control an increasingly complex regulatory state, China promoted the growth of a private legal profession, over which it has maintained control in part by creating a multiplicity of state-licensed legal specialties to manage defined areas of consultation and dispute resolution. While China has encouraged the development of a globalised corporate sector, it remains a source of tension (Liu Vol 1, ch 35). Unlike Brazil and India, this is due to state policies favouring economic development while maintaining control of the profession’s potential to mobilise civil society against the state (Bonelli and Fortes Vol 1, ch 19; Ballakrishnen Vol 1, ch 36).

558  Frank W Munger Their ample economic and political resources have enabled the BRIC nations to become global players not only in investment and trade but also in law. The global law firm lies at the centre of this new relationship between states and the profession. Pressures to Americanise legal training, work practices and law firm organisation (Wilkins et al 2020) illustrate how globalisation affects this relationship. Lawyers are constructing the new regulatory regimes and innovative state-private partnerships for international investment employed by BRIC countries and other Asian developmental states. The importance of elite law firms in the state’s project is reflected in emerging competition among states for legal markets, illustrated by China’s insistence that recipients of its Belt and Road development assistance use Chinese law firms. Other countries, such as Japan and Thailand, have also become regional entrepreneurs in law (Murayama Vol 1, ch 38; Munger Vol 1, ch 42). Globalisation has overwhelmingly benefited big law, accelerating a nearly universal divide between global and local law practices. Large international law firms built on multiple legal specialisations and legal expertise from many national systems have become vital links in the supply lines of global investment and, as a consequence, enjoy a unique relationship to the state (Trubek et al 1994; Sassen 2006). Law practices tied primarily to the domestic economy and local legal markets are more dependent on exclusive access to the administration of justice but lack leverage to defend it against the encroachment of competitors without the assistance of a well-regulated state or the political resources available to a strong professional organisation. Finally, internationalisation of law has endowed Western legal ideals and practices with an aura of transcendent authority. Yet, transnational law work serves many different purposes. Freed, to a degree, from its national origins, transnational law work is often structured to suit dominant Western corporate and financial interests (Trubek et al 1994; Dezalay and Garth 1996). Furthermore, the Washington Consensus, while enshrining neo-liberalism and constitutionalism, also embraces human rights (Kleinfeld 2006). Legalised ideals and norms embodied in human rights conventions and incorporated in soft law standards for development represent another source of transcendent legal authority, influenced by the aspirational qualities of Western political ideals and law. Since the 1970s, human rights have been driven by social movements and popular knowledge as well as international support for advocacy (Moyn 2010), bringing new clients, purposes and resources to cause lawyers (Merry and Goodale 2007; Munger et al 2013; Ellmann 1998).24 Viewing the state as a site of networks of power, a cluster of institutional structures, and permeable to external forces permits better understanding of the state’s response to globalisation and its impact on the legal profession. True to Rueschemeyer’s prediction in 1989, the stronger a state’s administrative/bureaucratic capacity, the less freedom a legal profession has to control its own destiny. The choice of policy responses, however, is determined by political control of the state, its authoritarian or democratic relationship to civil society, and state stability. Unlike the states discussed above, failed states lack the capacity for economic or political regulation that would make them attractive targets for market development or partnerships in economic development. But because globalisation has made failed states an increasing source of concern about global security and defence of human rights, Section V turns to these problems. 24 At the same time, human rights as transnational authority, like its chimerical counterpart, the rule of law (see Kleinfeld 2006), has ambiguous political significance (Moyn 2010; Tsutsui et al 2012). Juridification of human rights through international treaties and state laws and cooptation through elite-supported projects for reform can redirect aspirations for change (Merry 2006; see also Scheingold 2004). Furthermore, insertion of lawyers into the interpretation and enforcement of human rights risks channelling broader reforms into procedures controlled by the state (Sarat and Scheingold 2006).

State-Centred Comparison of Legal Professions in an Era of Globalisation  559 V.  GLOBALISATION BACKLASH – POST-9/11 AND POPULIST STATES

Nation states face new challenges from political crisis and backlash accompanying globalisation. Free markets, open borders and political liberalisation promised economic growth, wider distribution of wealth, and protection for basic freedoms and rights. But globalisation has pushed developing economies toward collapse and redistributed wealth from poor to rich, while oligarchs and corporations benefiting from the global wealth gap play increasingly dominant political roles in democracies and authoritarian states alike. Environmental spillovers and climate change, accelerated by globalisation, have fuelled popular pushback in the form of anti-development campaigns in the Global South and concern about climate change in the Global North. In new states, long-suppressed religious, ethnic and nationalist identities as well as hopes for democracy have fuelled violent conflict. Finally, open borders have encouraged migration from countries suffering from poverty and conflict to wealthier and more stable neighbours or distant havens of liberal democracy in Europe and North America, which are no longer welcoming. Two sources of backlash have had important effects on law and legal work: first, a shift in developed state policies, led by the United States, from open borders and political liberalisation toward a post-9/11 security state; and second, the rise of populist leaders in democracies. While the economic effects of the global shift toward free markets and neoliberal policies may have weakened the capacity of many states to enact policies ameliorating the negative effects of globalisation, backlash has strengthened the political will to regulate cross-border influence. In some Western democracies these changes have been made at the expense of the rule of law (Abel 2018). Professional elites remain invested in globalisation, while changes that diversified and deregulated legal work reduced the profession’s capacity to forge a collective response to overreaching executive power. Lawyers are also key players in the rise of powerful executive branches, advancing an interpretation of the rule of law resistant to the influence of globalisation and less liberal. Islamic fundamentalists in the Middle East responded to globalisation with a narrative of their own, which attained global importance in the attack on the World Trade Center. The US response signalled a sea-change in its fidelity to the rule of law, with repercussions for lawyers. This dark side of globalisation’s influence on law and legal work affected other countries targeted by terrorism, especially through the influence of the American security state, whose measures included warrantless surveillance, indefinite detention, harsh interrogation, military tribunals and limitations on judicial review. In the United States, these changes also affect criminal justice by granting prosecutors access to evidence obtained through surveillance data gathered under vastly enlarged government powers that are intended to prevent acts of terrorism but arguably violate established constitutional rights of criminal defendants (Siegler 2006). Furthermore, in the US, laws enacted in the wake of 9/11 to aid investigation and prosecution of terrorism have been employed for a variety of unrelated purposes, such as drug offences and other crimes far removed from terrorism (Balko 2014; Siegler 2006). National security trumps protections for prisoners suspected of terrorism, facilitates interdiction of migrants, and obstructs access to government information. Now it is even used as a pretext for barring Chinese telecom imports and Japanese cars (Swanson and Mozur 2019; Donahue 2011). The US example has encouraged the compromise of the rule of law in other countries, which have been pressured to permit black sites for torture and interrogation and join military actions in pursuit of terrorists in the Middle East, Asia and Africa. New funding for law enforcement in countries harbouring terrorists (such as Indonesia) contributes to state repression abroad without offsetting concern for democratic controls. By waging a ‘War on Terror’

560  Frank W Munger for nearly two decades, the US not only betrayed its tradition of advocacy for liberal democracy and human rights but also opened itself to charges of war crimes (see Hagan et al 2015). In the US, even the most secure elite lawyers have felt the changing climate in law and politics. The outcome of challenges in the federal courts reflected the ideological biases of judges appointed under different Presidential administrations (Abel 2018). Under special legislation, cases were heard by military commissions following rules that fell far short of protections afforded to ordinary criminal defendants. Having disarmed legal defenders, the government has forced suspects – accused on the basis of evidence swept up under national security surveillance programs – to rely on the self-restraint of federal investigators, prosecutors and judges. A second form of backlash has been mobilised by populist leaders in democracies, who have channelled voters’ real or imagined grievances against globalisation. Discontent over rising inequality, narrowing economic opportunities, increasing numbers of immigrants, and growing suspicion of foreign governments and foreign business prepared the ground. Populist politicians have appealed to each of these sources of discontent, using them to support aggressive nationalism.25 Once in office, they have closed borders and promised policies to reverse the economic and political effects of globalisation, often expanding executive power. Characteristically, they have attempted to limit the influence of constitutional checks by manipulating elections, exercising emergency powers, and restructuring judiciaries, with varying degrees of success. Populism’s retreat from liberal democratic values in formally democratic states continues a growing global trend toward illiberal democracy. Virtually all states in Southeast Asia have a recent, and often continuing, history of autocratic governance. Even where they exist, democratic and representative institutions are subordinate to a dominant executive branch (Jayasuriya and Rodan 2007). Autonomous legal professions exercise little political influence and sometimes face violent repression. Nevertheless, the globalisation of liberal legal values and networks of international support (eg in Argentina, Indonesia, Thailand, Palestine, and Venezuela) have encouraged small numbers of lawyers to challenge violations of law and defend constitutional principles in opposition to the actions of authoritarian governments (Munger et al 2013; Cummings and Trubek 2008). Few initiatives by populist leaders in American or European democracies have been directed at the legal profession itself. But judiciaries have become a particular target, and attempts to consolidate executive power have provoked resistance from the legal profession in some states. Just as the US response to 9/11 transferred power from the judicial to the executive branch, so populist leaders have sought to undermine resistance through law. In the United States, Hungary, Poland, Turkey and the Philippines, a populist leader and ruling party control the judicial appointment process, packing courts with judges who support executive power. Hungarian Prime Minister Orban has consolidated his power over administrative courts and established an alternative court system under his own control (Kingsley 2018). Polish President Duda and his party have restructured the country’s Constitutional Court to limit the influence of older, liberal judges. The French judiciary has invoked the Revolution’s concept of fraternité to support resistance to EU principles favouring immigration (Tyulkina 2015). Venezuelan President Maduro has bypassed rule of law altogether, becoming an autocrat after failure of his populist initiatives (Labrador 2019).

25 Populist leaders in Poland, Hungary, Britain and Italy have targeted EU control of domestic social and economic policy, expressing nationalist goals as well as a belief that EU interference has exacerbated domestic economic decline (Morillas 2017).

State-Centred Comparison of Legal Professions in an Era of Globalisation  561 In most of these countries, the legal profession remains a potential source of liberal political values, but only as long as it retains meaningful autonomy from the state. Generally, organisations representing the legal professions have become weaker as a result of decentring through some combination of specialisation, increasing market segmentation and client diversity, deregulation, and competition (Sommerlad et al Vol 1, ch 4; Bessy and Bastard Vol 1, ch 9; Boni-Le Goff et al Vol 1, ch 13, among other European states; see also Murayama Vol 1, ch 38, Kim Vol 1, ch 40). Legal professions with a history of independent organisation have been more resistant to the corrosive influences of globalisation and populism and more consistent defenders of constitutional traditions. Poland’s organised profession, historically strong and antedating the communist era, has attempted to resist evisceration of the country’s judiciary and abuses of Parliamentary process (Mrowczynski forthcoming). In the US, litigation has repeatedly blocked Presidential initiatives to exclude immigrants, militarise borders, disenfranchise voters, and free domestic industry from regulatory constraints. Similarly, Brazil’s prosecutors and well-established judiciary have rebuffed the populist agenda of its president (Branford and Torres 2019; Bezerra and Mayka 2019). In Britain, populist politics supporting Brexit encountered legal challenges, though these were eventually rejected by the courts (BBC News 2019; Bowcott and Brooks 2019). Globalisation contributed to the twenty-first century’s return to an age of oligarchs who, like nineteenth-century robber-barons, command global wealth and manipulate popular majorities (Winter 2011). The growing power of the ultrawealthy raises important questions about whether legal professions will lose autonomy to state control and mass politics and suffer reduced importance as mediators between state and civil society. VI.  STATES, LEGAL PROFESSIONS AND PROSPECTS FOR JUSTICE

Of what relevance are legal professions in the modern world? This chapter has argued that the relationship between legal professions and states remains an important starting point for answers. Although law has become the skeleton of the modern state, the political structure of a state determines much of what law’s authority means and what law may do. Within this structure, a legal profession mediates between the state and private interests. Notwithstanding lawyers’ leverage as double-agents representing both state authority and clients, states may limit lawyers’ use of law in matters deemed political while continuing to grant them autonomy to rationalise and establish law’s power in other areas, such as regulation of the market or government administration. When the state accumulates power at the expense of private actors, law and lawyers lose power to support and expand the expression and development of plural interests within civil society. Sections IV and V of this chapter have described the expansion of modern state authority in two ways: accommodating global markets on one hand and adapting to backlash against the effects of globalisation on the other. As noted, even neoliberalism, while advancing deregulation, requires a strong state in other ways, especially one able to suppress resistance to free market principles (by protecting private property) and punish market misfits and lowperformers (accelerating rise of a carceral state). Neoliberal regimes in some states have been sympathetic to pressures for market pricing and greater competition for legal services, leading to deregulation and increasing differentiation, not only by type of service but also by client. As a result, lawyers with global practices have flourished, while in many countries ever larger numbers of law graduates and domestic practitioners struggle to obtain legal work, and many are unemployed.

562  Frank W Munger Section V described two sources of backlash. First, as a result of neoliberal economic policies, inequality has risen sharply worldwide. Inequality and economic insecurity, together with resistance to waves of migration to more affluent and stable countries in Europe and North America, contributed to political backlash and the rise of elected populist leaders in a number of Western democracies. Although grievances supporting populist rulers vary by country, a common theme has been the perceived injustices of internationalisation. Second, the events of 9/11 provided another resource for anti-internationlist governance – a security state to deal with the threat of terrorism. Security state rhetoric borrowed by the new populism equates migrants with criminality and terrorism and justifies use of extraordinary executive powers. Populist rulers appeal to constituents who seek a strong leader by expanding executive power and engaging in illiberal political interventions. In some countries, populist leaders have sought to limit the independence of the judiciary, an assault on the rule of law with grave implications for lawyers as mediators between state and civil society. Historians and sociologists have long cautioned that an autonomous legal profession’s embrace of rule of law ideals is self-serving (Larson 2017; Halliday and Karpik 2007). As a corollary, the profession makes its services as widely available as possible to those who can afford them. Even under politically repressive oligarchies and authoritarian governments, some lawyers represent ordinary people making choices about their lives, whether or not they can pay. Notwithstanding the rise of authoritarian populism, jihadist movements and post-9/11 expansion of police powers in some states, globalisation has also created opportunities for lawyers to protect the rights of citizens, not only by enlarging law’s transnational reach but also by encouraging resistance to autocratic power and supporting claims for popular political action.26 The genesis of a new international order following World War II and its progeny – the human rights movement and economic internationalisation – have animated a wide range of new legal profession roles within states. Countertrends in some states have had the opposite effect, weakening judiciaries, diminishing the role of rights or empowering rulers who feel fewer constraints under rule of law. EP Thompson (1975) observed in his study of law’s contribution to eighteenth-century British class rule that history places the rule of law and lawyers on a narrow ledge, between two historical threats to independence – dominant autocratic rulers and revolutionary social movements. In a world where both threats are on the rise, legal professions remain at the frontier of change, subject to state authority but also capable of opening space for ordinary citizens to pursue their needs and aspirations. REFERENCES Abel, RL (1989) ‘Comparative Sociology of Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 80–153. —— (2018) Law’s Wars: The Fate of the Rule of Law in the US ‘War on Terror’ (New York, Cambridge University Press). Abel, RL, and Lewis, PSC (eds) (1988a) Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press).

26 The best example may be human rights, which emerged from worldwide social movements in the 1970s (Moyn 2010). By late 2019, popular protests challenged regimes in Baghdad, Hong Kong, Santiago, Barcelona, Cairo and throughout Algeria, provoked by global economic disparity and political exclusion (Taylor 2019), and were joined in summer 2020 by the democracy movement in Belarus (Walker 2020).

State-Centred Comparison of Legal Professions in an Era of Globalisation  563 —— (1988b) Lawyers in Society: Vol I The Common Law World (Berkeley, University of California Press). —— (1989) Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press). Alford, WP (2007) ‘Introduction’ in WP Alford (ed), Raising the Bar: The Emerging Legal Profession in East Asia (Cambridge, Harvard University Press). Balko, R (2014) ‘Surprise! Controversial Patriot Act power now overwhelmingly used in drug investigations’ Washington Post 29 October www.washingtonpost.com/news/the-watch/wp/2014/10/29/surprisecontroversial-patriot-act-power-now-overwhelmingly-used-in-drug-investigations. BBC News (2019) ‘Brexit: Judge rejects parliament shutdown legal challenge’ 4 September www.bbc. com/news/uk-scotland-scotland-politics-49568760. Berman, HJ (1983) Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Harvard University Press). Bezerra, C and Mayka, L (2019) ‘Brazil’s Supreme Court pushed back against an attempt to cancel participatory councils’ Vox 8 July 2019 www.vox.com/mischiefs-of-faction/2019/7/8/20686425/brazilsupreme-court-cancel-participatory-councils. Block, F (1981) ‘The Fiscal Crisis of the Capitalist State’ 7 Annual Review of Sociology 1–27. Bourdieu, P and Wacquant, JD (1992) An Invitation to Reflexive Sociology (Chicago, University of Chicago Press). Bowcott, O and Brooks, L (2019) ‘Liberty fails in legal bid aimed at preventing a no-deal Brexit’ The Guardian 18 October www.theguardian.com/politics/2019/oct/18/pm-boris-johnsons-new-brexitdeal-with-eu-faces-challenge-in-scottish-court. Branford, S and Torres, M (2019) ‘Brasil’s Bolsonaro Government Want to Circumvent the Constitution to Allow Mining on Indigenous Lands’ Pacific Standard 15 March psmag.com/environment/bolsonarogovernment-wants-to-open-indigenous-land-to-mining. Cheesman, N (2016) Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge, Cambridge University Press). Chunha, LG, Gabbay, DM, Ghirardi, JG, Trubek DM, and Wilkins, DB (eds) (2018) The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press). Cipolla, CM (1973) ‘The Professions: The Long View’ 2 Journal of Economic History 37. Comaroff, J (2006) ‘Colonialism, Culture and the Law: A Foreword’ 26 Law & Social Inquiry 305–14. Comaroff, J and Comaroff, JL (2006) Law and Disorder in the Postcolony (Chicago, University of Chicago Press). Crouch, M (2019) ‘The Judicial Reform Landscape in Indonesia: Innovation, Specialisation and the Legacy of Dan S Lev’ in M Crouch (ed), The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (Cambridge, Cambridge University Press). Cummings, SL and Trubek, LG (2008) ‘Globalizing Public Interest Law’ 13 UCLA Journal of International Law & Foreign Affairs 1. Curley, M (2018) ‘Governing civil society in Cambodia: Implications of the Law on Associations and Non-governmental Organizations for the rule of law’ 42 Asian Studies Review 247–67 https://doi:10. 1080/10357823.2018.1457624. Curley, M, Dressel, B and McCarthy, S (2018) ‘Competing Visions of the Rule of Law in Southeast Asia: Power, Rhetoric and Governance’ 42 Asian Studies Review 192–209. Dezalay, Y and Garth, BG (1996) Dealing in Virtue: International Commercial Arbitration and the Construction of a Transitional Legal Order (Chicago, University of Chicago Press). —— (2001) ‘Constructing Law Out of Power: Investing in Human Rights as an Alternative Political Strategy’ in A Sarat and SA Scheingold (eds), Cause Lawyering and the State in a Global Era (New York, Oxford University Press) 354–81. —— (2002) Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States (Chicago, University of Chicago Press). —— (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press).

564  Frank W Munger —— (2014) ‘Lawyers and the Transformations of the Fields of State Power: Osmosis, Hysteresis and Aggiornamento’ in MR Madsen and C Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law (Cambridge, Cambridge University Press). Dias, CJ, Luckham, R, Lynch, DO, and Paul, JCN (eds) (1981) Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law in Development). Donahue, LK (2011) ‘The Limits of National Security’ 48 American Criminal Law Review 1573. Dressel, B (2010) ‘When Notions of Legitimacy Conflict: The Case of Thailand’ 38 Politics & Policy 445–69. Ellmann, SJ (1998) ‘Cause Lawyering in the Third World’ in A Sarat and SA Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) 349–430. Engel, D and Engel, J (2010) Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (Stanford, Stanford University Press). Epp, CR (1998) The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, University of Chicago Press). Ertman, T (2005) ‘State Formation and State Building in Europe’ in T Janoski, RR Alford, AM Hicks, and MA Schwartz (eds), Handbook of Political Sociology (New York, Cambridge University Press). Evans, P (1997) ‘The Eclipse of the State? Reflections on Stateness in an Era of Globalization’ 50 World Politics 62–87. Feldman, N (2008) The Fall and Rise of the Islamic State (Princeton, Princeton University Press). Filkins, D (2018) ‘The Ascent: A Saudi Prince’s Quest to Remake the Middle East’ The New Yorker 9 April. Freidson, E (1986) Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago, University of Chicago Press). Freyer, T (1979) ‘The Federal Courts, Localism, and the National Economy, 1865–1900’ 53 Business History Review 343–64. Gabbay, D, Ramos, L and Sica, LP (2018) ‘Corporate Law Firms: The Brazilian Case’ in LG Cunha, DM Gabbay, JG Ghirardi, DM Trubek, and DB Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) 33–73. Galanter, M (1974) ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ 9 Law & Society Review 95–160. Ghias, S (2010) ‘Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan Under Musharraf’ 35 Law & Social Inquiry 985. Gillespie, J (2013) ‘The Juridification of Case Advocacy in Socialist Asia: Vietnam as a Case Study’ 31 Wisconsin International Law Journal 672–701. Golub, S (2003) ‘Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative’ in T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC, Carnegie International Endowment for Peace). Gordon, RW (1984) ‘The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1880–1910’ in G Gawalt (ed), The New High Priests: Lawyers in Post-Civil War America (Westport, Connecticut, Greenwood Press). Grewal, DS and Purdy, J (2014) ‘Introduction: Law and Neoliberalism’ 77 Law and Contemporary Problems 1. Hagan, J, Kaiser, J, and Hanson, A (2015) Iraq and the Crimes of Aggressive War: The Legal Cynicism of Criminal Militarism (Cambridge, Cambridge University Press). Halliday, TC (2012) ‘Architects of the State: International Organizations and the Reconstruction of States in East Asia’ 37 Law & Social Inquiry 265–96. Halliday, TC and Karpik, L (eds) (1997) Lawyers and the Rise of Western Political Liberalism: Europe and North America form the Eighteenth to Twentieth Centuries (Oxford, Clarendon Press).

State-Centred Comparison of Legal Professions in an Era of Globalisation  565 Halliday, TC, Karpik, L, and Feeley, MM (eds) (2012) Fates of the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press). Harding, A (2001) ‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”’ in D Nelken, J Feest and R Hunter (eds), Adapting Legal Cultures (London, Bloomsbury Academic). Hirsch, R (2007) Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, Harvard University Press). House of Commons Library (2020) ‘Brexit Timeline: Events Leading to the UK’s Exit from the European Union’ 10 June commonslibrary.parliament.uk/research-briefings/cbp-7960/. Ibhawoh, B (2008) Imperialism and Human Rights: Colonial Discourses in Rights and Liberties in African History (Albany, State University of New York Press). Jayasuriya, K (1999a) ‘Introduction: a framework for the analysis of legal institutions in East Asia’ in K Jayasuriya (ed), Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (London, Routledge) 1–27. —— (1999b) ‘Corporatism and Judicial Independence within Statist Legal Institutions in East Asia’ in K Jayasuriya (ed), Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (London, Routledge) 173–204. Jayasuriya, K and Rodan, G (2007) ‘New Trajectories for Political Regimes in Southeast Asia’ 14/5 Democratization 767. Kingsley, P (2018) ‘As West Fears The Rise of Autocrats, Hungary Shows What’s Possible’ New York Times 10 February www.nytimes.com/2018/02/10/world/europe/hungary-orban-democracy-far-right. html?searchResultPosition=39. Kleinfeld, R (2006) ‘Competing Definitions of the Rule of Law’ in T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC, Carnegie International Endowment for Peace) 31–74. Kuhonta, EM (2017) ‘Dictatorship and the State: A comparison of State Building and State Plunder in South Korea, the Philippines and Thailand’ in M Centeno, A Kohli, DJ Yashar, and D Mistree (eds), States in the Developing World (New York, Cambridge University Press) 121–53. Labrador, RC (2019) ‘Venezuela: The Rise and Fall of a Petrostate’ Council on Foreign Relations, Backgrounder 24 January www.cfr.org/backgrounder/venezuela-crisis. Larson, MS (2017) The Rise of Professionalism: Monopolies of Competence and Sheltered Markets (London, Routledge). Lev, DS (1993) ‘Social Movements, Constitutionalism and Human Rights: Comments from the Malaysian and Indonesian Experiences’ in D Greenberg, SN Katz, LB Olivero, and SC Wheatley (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford: Oxford University Press). —— (2000) “Bush-Lawyers in Indonesia: Stratification, Representation, and Brokerage’ in DS Lev (ed), Legal Evolution and Political Authority in Indonesia: Selected Essays (The Hague, Martin Nijhoff Publishers). Levin, L and Mather, L (eds) (2012) Lawyers in Practice: Ethical Decision Making in Context (Chicago, University of Chicago Press). Liebman, BL (2007) ‘Lawyers, Legal Aid, and Legitimacy in China’ in WP Alford (ed), Raising the Bar: The Emerging Legal Profession in East Asia (Cambridge: Harvard University Press). Luckham, R (1981) ‘The Political Economy of Legal Professions: Towards a Framework for Comparison’ in CJ Dias, R Luckham, DO Lynch, and JCN Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law in Development) 287–336. Mann, M (2005) ‘Has Globalisation Ended the Rise and Rise of the Nation-State?’ in P Spencer and J Wollman (eds), Nations and Nationalism: A Reader (New Brunswick, Rutgers) 279–300. Marshall, A and Hale, DC (2014) ‘Cause Lawyering’ 10 Annual Review of Law and Social Science 301–20.

566  Frank W Munger Massoud, MF (2013) Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan (Cambridge, Cambridge University Press). Mather, L and Levin, L (2012) ‘Why Context Matters’ in L Levin and L Mather (eds), Lawyers in Practice: Ethical Decision Making in Context (Chicago, University of Chicago Press) 3–24. McClymont, M and Golub, S (eds) (2000) Many Roads to Justice: The Law-Related Work of the Ford Foundation Grantees Around the World (New York, Ford Foundation). Merry, S (2006) Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago, University of Chicago Press). Merry, S and Goodale, M (eds) (2007) The Practice of Human Rights: Tracking Law Between the Global and the Local (Cambridge: Cambridge University Press). Morillas, P (ed) (2017) Illiberal Democracies in the EU: The Visegrad Group and the Risk of Disintegration (Barcelona Centre for International Affairs). Moustafa, T and Ginsburg, T (2008) ‘Introduction: The Functions of Courts in Authoritarian Politics’ in T Ginsburg and T Moustafa (eds), Rule By Law: The Politics of Courts in Authoritarian Regimes (New York, Cambridge University Press) Moyn, S (2010) The Last Utopia: Human Rights in History (Cambridge, Belknap Press). Mrowczynski, R (2012) ‘Self-Regulation of the Legal Professions in State-Socialism’ 20 Journal of the Max Planck Institute for European Legal History 170–88. Munger, FW (2010) ‘The Cause Lawyer’s Cause’ 29 Law in Context 28. Munger, FW, Cummings, SL, and Trubek, LG (2013) ‘Mobilizing Law for Justice in Asia: A Comparative Approach’ 31 Wisconsin International Law Journal 353–420. Oguamanam, D and Pue, WW (2006) ‘Lawyers’ Professionalism, Colonialism, State Formation and National Life in Nigeria, 1900–1960: “the fighting brigade of the people”’ 13 Social Identities 769–85. Pérez-Perdomo, RR (2006) Latin American Lawyers: A Historical Introduction (Stanford, Stanford University Press). Polanyi, K (1944) The Great Transformation (New York, Farrar & Rinehart). Rajah, J (2012) Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge, Cambridge University Press). Rueschemeyer, D (1989) ‘Comparing Legal Professions: A State-Centered Approach’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) 289–321. Rwelamira, MRK (1981) ‘The Tanzanian Legal Profession’ in CJ Dias, R Luckham, DO Lynch, and JCN Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law in Development) 204–25. Sarat, A and Scheingold, SA (2006) ‘What Cause Lawyers Do For, and To, Social Movements: An Introduction’ in A Sarat and SA Scheingold (eds), Cause Lawyers and Social Movements (Stanford, Stanford University Press) 1–36. Sassen, S (2006) Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, Princeton University Press). Scheingold, S (2004) The Politics of Rights: Lawyers, Public Policy, and Political Change (Ann Arbor, University of Michigan Press). Scheingold, SA and Sarat, A (1998) ‘Cause Lawyering and the Reproduction of Professional Authority: An Introduction’ in A Sarat and SA Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York: Oxford University Press) 3–28. —— (2004) Something to Believe In: Politics, Professionalism, and Cause Lawyering (Stanford, Stanford University Press). Shamir, R (1995) Managing Legal Uncertainty: Elite Lawyers in the New Deal (Durham, NC, Duke University Press). Sharafi, M (2014) Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947 (Madison, University of Wisconsin Press). Siegler, A (2006) ‘The Patriot Act’s Erosion of Constitutional Rights’ 32 Litigation 18–24, 72.

State-Centred Comparison of Legal Professions in an Era of Globalisation  567 Silbey, SS (1985) ‘Ideals and Practices in the Study of Law’ 9 Legal Studies Forum 7–22. Silverstein, G (2008) ‘Singapore: The Exception that Proves the Rule’ in T Ginsburg and T Moustafa (eds), Rule By Law: The Politics of Courts in Authoritarian Regimes (New York, Cambridge University Press) Singh, A (2017) ‘Globalization of the Legal Profession and Regulation of Law Practice in India: The “Foreign Entry” Debate’ in DB Wilkins, SK Vikramaditya and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) 363–94. Southworth, A (2008) Lawyers of the Right: Professionalizing the Conservative Coalition (Chicago: University of Chicago Press). —— (2013) ‘What is Public Interest Law? Empirical Perspectives on an Old Question’ 62 DePaul Law Review 493. Stern, RE (2012) Environmental Litigation in China: A Study in Political Ambivalence (New York, Cambridge University Press). Swanson, A and Mozur P (2019) ‘Trump Mixes Economic and National Security, Plunging the US Into Multiple Fights’ New York Times 8 June www.nytimes.com/2019/06/08/business/trump-economynational-security.html. Tate, N and Vallinder, T (1997) The Global Expansion of Judicial Power (New York, New York University Press). Taylor, A (2019) ‘Global protests share themes of economic anger and political hopelessness’ Washington Post 25 October www.washingtonpost.com/world/2019/10/25/global-wave-protests-share-themeseconomic-anger-political-hopelessness/. Thompson, EP (1975) Whigs and Hunters: The Origins of the Black Act (New York, Pantheon Books). Tilly, C (1992) Coercion, Capital and European States, AD 990–1992 (London, Wiley-Blackwell). Trubek, DM (2013) ‘Law, State and the New Developmentalism: An Introduction’ in DM Trubek, HA Garcia, DR Coutinho, and A Santos (eds), Law and the New Developmental State: The Brazilian Experience in Latin American Context (New York, Cambridge University Press) 3–27. Trubek, DM, Dezalay, Y, Buchanan, R, and David, JR (1994) ‘Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas’ 44 Case Western Law Review 407–98. Tsutsui, K, Whitlinger, C and Lim, A, (2012) ‘International Human Rights Law and Social Movements: State’s Resistance and Civil Society’s Insistence’ 8 Annual Review of Law and Social Science 367–96. Tuong, V (2010) ‘Studying the State through State Formation’ 62/1 World Politics 148–75. Tyulkina, S (2015) Militant Democracy: Undemocratic Political Parties and Beyond (London, Routledge). Upham, F (1987) Law and Social Change in Postwar Japan (Cambridge, Harvard University Press). —— (2006) ‘Mythmaking in the Rule-of-Law Orthodoxy’ in T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC, Carnegie International Endowment for Peace) 75–104. von Benda-Beckmann, K and Turner, B (2019) ‘Legal pluralism, social theory, and the state’ 50 Journal of Legal Pluralism and Unofficial Law 255–74. Vu, T (2010) ‘Studying the State Through State Formation’ 62 World Politics 148–75. Walker, S (2020) ‘Belarus protests: Minsk still in revolt after week of fear, pride and hope’ The Guardian 22 August www.theguardian.com/world/2020/aug/22/belarus-protests-minsk-lukashenko. Walsh, D and Kirkpatrick, D (2019) ‘Mohamed Morsi, Egypt’s first Democratically Elected President, Dies’ New York Times 17 June www.nytimes.com/2019/06/17/world/middleeast/mohamed-morsidead.html. Weber, M (1954) Max Weber on Law in Economy and Society (ed M Rheinstein) (Cambridge, Harvard University Press). Widner, J and Scher, D (2008) ‘Building Judicial Independence in Semi-Democracies: Uganda and Zimbabwe’ in T Ginsburg and T Moustafa (eds), Rule By Law: The Politics of Courts in Authoritarian Regimes (New York, Cambridge University Press).

568  Frank W Munger Wilkins, DB, Khanna, VS and Trubek, DM (2017) ‘An Introduction to Globalization, Lawyers and Emerging Economies: The Case of India’ in DB Wilkins, VS Khanna and DM Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society: The Case of India (New York, Cambridge University Press) 3–39. Wilkins, DB, Trubek, DM, and Fong, B (2020) ‘Globalization, Lawyers, and Emerging Economies: The Rise, Transformation, and Significance of the New Corporate Legal Ecosystem in India, Brazil, and China’ 61 Harvard International Law Journal 281–355. Winter, J (2011) Oligarchy (Cambridge, Cambridge University Press). Zee, M (2013) ‘What Happens at Sharia Councils? Part Three: The Muslim Arbitration Tribunal’ Leidenlawblog University of Leiden leidenlawblog.nl/articles/what-happens-at-sharia-councils-partthree-the-muslim-arbitration-tribunal.

24 Law as Reproduction and Revolution An Interconnected History of the Internationalisation of National Legal Hierarchies YVES DEZALAY AND BRYANT G GARTH

T

he starting point for this essay is the powerful and well-known work by Richard Abel on market control as a central aspect of lawyers’ professional projects (eg Abel and Lewis 1988–89; Abel Vol 1, ch 44). Abel focuses on lawyers’ monopolistic status, barriers to entry, control over the ‘production of the producers’ of legal services, and efforts to take over new markets. New developments, such as the global spread of corporate law firms, well-documented in volume one, reinforce the story of monopoly profits. This new corporate legal plutocracy – led by White Shoe firms, Magic Circles, Red Circles, or Big Fours or Fives – comprises an exclusive legal one per cent (or even tenth of a per cent) in numerous countries today. We argue in this chapter, however, that control of the production of producers applies differently to those at the top of the legal hierarchies. In other words, their key strategy is not so much to ‘restrict internal and external competition’ through monopoly and limited entry into the profession. It is to enforce an internal hierarchy that reserves access to the top positions to a small cosmopolitan elite typically combining inherited legal capital and degrees from very selective schools – including descendants of the French ‘noblesse de robe’, notable ‘jurists’ in Brazil, high court advocates and judges in India, and families with resources to reproduce top achievers on Confucian imperial examinations in China and South Korea. The project of the small group is not to limit access to the legal profession but to keep a legal underclass in its place despite the pretext that all ‘lawyers’ belong to a unitary professional community and have the same access to all positions. To be sure, the positions of those at the top are represented as the result of meritocratic processes, but they depend largely on combinations of family, social and economic capital and related access to exclusive universities and law schools. The mix of meritocratic and social capital varies by place and time, but the dynamics of elite reproduction are general (eg US, Markovits 2019; India, Basheer et al 2017; Hong Kong, Jones 2009; South Korea, Lee 2019; Park 2018; Japan, Riles and Uchida 2009; China, Minzner 2013; and in countries not the focus of this essay, eg Brazil, Bonelli and Fortes Vol 1, ch 19; Chile, Villalonga Vol 1, ch 20; Egypt, Bernard-Maugiron and Omar Vol 1, ch 28; Mexico, Pérez-Hurtado Vol 1, ch 21; and Turkey, Kalem Vol 1, ch 34).

570  Yves Dezalay and Bryant G Garth Even where the ideology of meritocracy seems dominant, as in the United States, the partnerships of elite corporate law firms are mainly open to graduates from a relatively small number of law schools, prepared from birth to compete for such positions (Markovits 2015; 2019; Dinovitzer and Garth 2020). It is a reproduction of the one per cent that requires, as Markovits (2015: 9) noted, ‘massive, sustained, planned, and practiced investment, from birth or even in the womb’ – ‘equivalent, economically, to a traditional inheritance of between 5 and 10 million dollars per child’. The most elite positions reproduce the advantages of social class in other ways. Even if someone from outside privileged families wins the economic lottery against all odds, there is a social glass ceiling. The positions of cultural, economic and political leadership – the trappings of the upper class – are much less open to them than to those who from birth and privileged education accumulate the less obvious forms of [social and cultural] capital. (Jodhka et al 2018: 85)

Abel does not ignore hierarchical processes or inequality of access, mentioning in the concluding essay to Volume 1, for example, the historical presence of a ‘numerus clausus’ for advocacy at top courts (Vol 1, ch 44: 886) (with examples from France, Bessy and Bastard Vol 1, ch 9; Germany, Kilian and Schultz Vol 1, ch 10; and the UK, Sommerlad et al Vol 1, ch 4) or the historic exclusion ‘by class’ in the UK (Vol 1, ch 44: 890; for the situation at present see Sommerlad 2007; 2015). But the focus of Abel’s theory and analysis is on professions as professions. Here we shift the focus to the continuity of small groups at the apex of the legal hierarchy who are highly protective of their position. The dynamics of this process date to the creation of the legal profession in medieval Italy at the University of Bologna. The top rewards of law practice have always accrued to a small group of individuals with strong family connections, access to substantial resources to support lengthy study away from home, and expertise in cosmopolitan legal knowledge – beginning with the Roman Corpus Juris. An enduring feature of the legal profession is the survival of inheritors of this role and the habitus that sustains it over centuries, across national and international boundaries, and under the influence of different imperial powers. These processes, however, are not linear or unidirectional. They are unstable and full of contradictions and detours, in part because those at the top erect barriers to preserve their places and those of their children. Challengers invoking meritocracy or a renewed emphasis on scholarly capital confront the complacent legal establishments at the top of the national hierarchy. Bourdieu’s sociological insights about the tension and complementarity of family and meritocratic capital help explain how and why these challenges proceed (2012; 2015). The dynamic of challenges and subsequent changes can be understood through the concept of ‘legal revolution’ developed by Berman (1983). Although he focused on major revolutions such as the Gregorian and Protestant, his approach can be applied to smaller ‘revolutions’ as well. Legal revolutions typically are characterised by relative newcomers challenging complacent legal elites too close to power and disinvested in legal scholarship. The newcomers combine meritocratic and scholarly achievement to attack the legal establishment; their legal theories at times gain salience through linkage to emerging political groups also contesting the status quo. The scholarly investment and orientation of political groups may relate to shifts in imperial power, which provide opportunities to challenge local legal and political power. Domestic legal transformations in the nineteenth century, for example, took place in relation to a move in imperial policies from pure economic exploitation toward a more moral and missionary approach offering a larger role for legitimacy provided by law and lawyers. The changes in imperial centres provided local opportunities to build on law. The legal challengers ultimately refurbish and revitalise the traditional hierarchies by reaching the top of the profession and

Law as Reproduction and Revolution  571 reconnecting to the new political elite. But as Bourdieu suggested, the upstarts also could become complacent, conservative, and too eager to elevate family capital over scholarly capital. Examples of the complexity of these processes abound. Law and development missionaries in many countries in the 1970s used the prestige of US legal education to challenge traditional legal oligarchies – resistant to scholarship, meritocracy, and quality legal education – such as the prominent Brazilian jurists (professors, politicians, and public intellectuals with wellknown legal names) or the Indian grand advocates who opposed Nehru’s social reforms. The initial ‘failure’ produced a generation who used their expertise and foreign connections to recreate the challenge by importing from the global North not only corporate law firms but also new law schools to serve them. But here, as elsewhere, there were further twists and turns. The aspirational Harvard of India, the National Law School of Bangalore established in 1986, was a legacy of the idealistic law and development movement and internal politics challenging the complacency of the elite bar. But it abandoned its commitment to training public interest advocates to serve NGOs, becoming the first of many National Law Schools focused on preparing corporate lawyers. The US-oriented teaching produced lawyers fitted for the new corporate law firms established after India’s economic liberalisation. Yet many of the graduates are now challenging the traditional bench and bar. Benton and Ford (2016) describe how Britain legalised colonial administration and interaction with trading partners, connecting the power of local elites to cosmopolitan legal expertise and imperial governance. The same process of co-optation into law and imperial power was evident even in countries that, under pressure from western empires, emulated their practices. The long and interconnected history of these practices is apparent today, for example, in the leading law faculties in Beijing, which are distinguished in large part by their cosmopolitanism – in particular, their expertise in western legal theories. This is striking given that China was never a western colony. The processes that Benton and Ford describe suggest also that the position of these cosmopolitan legal elites investing in formal law cannot be taken for granted. Law always exists in relation to underlying social structures and multiple methods of dispute resolution. In the nineteenth century, for example, locally embedded justices of the peace in the colonies competed against the pure law of the British Queen’s Counsel and courts linked to the British empire (ibid). The lesson of legal pluralism is that the place of mafias, tribes, religions, political parties, and customary law may ebb and flow depending on the relative power and embeddedness of formal law and its lawyers and those who seek to challenge them in the name of other authorities. Liu discusses the changing role of Chinese lawyers in relation not only to state bureaucrats, market brokers, and political activists but also to ‘barefoot lawyers’ or ‘basic level legal workers’. Those who challenge formal law and its practitioners may replace it with other legitimating ideologies. We cannot depict all the twists and turns of the descendants of the small group of cosmopolitan elites that built the legal profession in medieval Italy. Our focus is the relationship of legal oligarchies to a relatively powerful legal revolution emanating initially from the US and identified with neoliberalism and financialisation. Our recent book project (Dezalay and Garth 2021) examines the impact of the current legal revolution in the major Asian economic powers: China, Hong Kong, India, Japan, and South Korea. Drawing on that book, we build on Abel’s market control theory but focus on the enduring role of this cosmopolitan elite, the challenges it faces, and how it will react to changing political and economic power. The next three sections address three moments central to understanding the colonial legacies in our Asian case studies. The first period focuses on the origins of the legal profession in medieval Italy and a later division (with many variations we cannot discuss) into a continental

572  Yves Dezalay and Bryant G Garth approach epitomised by Germany and that of Great Britain. These two variants defined what was exported to colonies such as India and Hong Kong and what was imported by countries threatened with imperial domination, including China, Japan, and South Korea. The cosmopolitan legal elites in those countries are not replicas of the West. Rather, the process of local embedding makes them appear as distorted mirror images of western institutions. The second period explores the development of the hybrid that became the US ‘anti-imperial imperialism’, exported through law and development and imported as part of the latest legal revolution. The third period presents Asian case studies of the ascendance, especially in recent decades, of US models associated with the neoliberal legal revolution. The international legitimacy of the US model provides opportunities for local scholars and legal entrepreneurs to challenge entrenched legal oligarchies controlling access to elite legal positions. But here, too, we find a local, distorted variation on the US model. The case studies reveal continuities in the monopolistic strategies of those at the top of local legal hierarchies produced by imperial processes. They connect domestic political power, hegemonic and imperial relationships, and social and family capital. A small core of elite law schools also play central roles in both the reproduction of legal elites and ‘modernist’ challenges associated with legal revolutions. Each case study examines the relative success of the legal revolution. Local impacts differ substantially because of complex variations in local structures of power. I.  THE DEVELOPMENT OF SMALL COSMOPOLITAN LEGAL ELITES IN MEDIEVAL EUROPE: ORIGINS AND THE CREATION OF MODELS EXPORTED TO COLONIAL SETTINGS

The role of relatively small groups of privileged individuals possessing cosmopolitan legal capital is a feature of legal fields from the time of the establishment of legal professions in medieval Italy. The children and relatives of aristocrats, landowners, church officials, and others used a mastery of arcane Roman and canon law taught at the University of Bologna. The group’s small size was not due to numerical limits on access to that elite education or on providing legal advice and representation. But those without substantial resources had little prospect of attending and graduating from the University. Without that degree and expertise, they could only aspire to a kind of lower level pretend-lawyer status. Classic accounts of this period (Brundage 2008; Martines 1968) provide dramatic evidence of what it cost to buy even the basic texts, much less the requisite servants and horses. Family or other sponsorship was required. Travel was expensive, and even with sufficient material resources the course of study remained extremely difficult. The relatively small number of successful graduates prospered greatly. In-fighting between canon and civil law, controversies over feudal privileges, and the multiplicity of jurisdictions opened many possibilities for graduates of the Bologna law faculty (and its imitators). Increasing trade and commerce also stimulated demand for law graduates. The expertise and success of the small group of graduates trained in civil and canon law became central to the reconversion of a landed gentry into modern legal professionals and ultimately agents and leaders of the newly created states and companies. The unstable equilibria at play in a rapidly changing era created an opportunity for lawyer/ brokers armed with prestigious expertise to link old and emerging interests. The success of the scholarly brokers, to be sure, does not change the insight that ‘professors serve the powers that be’ (van Caenegem 1987: 155). The legal theory learned in Bologna and deployed by the

Law as Reproduction and Revolution  573 law graduates favoured those with the most power and wealth. The graduates’ role as power brokers armed with that theory was therefore well-rewarded. But even if (and because) it served economic and social power, the brokering role could also be insecure: advising or otherwise assisting a group that lost favour could backfire on legal professionals. In order to trace the paths to Asia (and elsewhere) it is important to see that before and during the age of imperialism the Bologna model evolved in various directions, including the strengthening of the professorial role on the Continent, the rise of the common law in Great Britain, and the influential hybrid that emerged in the United States. The most dramatic offshoot from medieval universities occurred in Britain, which with the development of the common law practically eliminated the role of scholarly academics in favour of familial and social capital. Roman civil law (and canon law in the Roman Catholic period), however, were important in medieval Oxford and Cambridge, building on the Bologna model. Prior to the common law, in addition, a group of learned judges who produced Bracton’s Treatise in the mid-thirteenth century provides evidence of the influence and prestige of Roman and canon law in Britain. As shown by McSweeney (2019): the authors of Bracton were people who, for reasons specific to the way English judicial careers were developing in the early and middle decades of the thirteenth century, saw canon law and, more particularly, Roman law as attractive models for the work they were doing in the royal courts. They used Roman law to make the case that the common law was a body of knowledge that should only be applied by justices who had mastered it through a long period of study and practice …. In this time before the common law was yet the common law, when its nature was contestable, the justices and clerks wanted to show that it was a constituent part of the universal law of the Latin West.

The effort to build the credibility of the emerging common law on Roman law did not succeed: From 1290, … the king regularly appointed practicing lawyers to the Common Bench and the court coram rege. By the middle of the fourteenth century, the crown was turning primarily to lawyers to fill vacancies on the judicial bench. The community of justices and clerks focused on a particular set of textual practices envisioned by the Bracton authors could not have survived long, if it ever really came into being (ibid).

The rise of the common law, beginning in the latter half of the twelfth century, led to the development of barristers who, from the fifteenth century, were trained at the Inns of Court through a process that mixed study and socialisation. Those who accumulated enough learned capital to complement inherited social capital were ideally suited to serve as agents and intermediaries for the monarchy or defend the independence of the landed aristocracy against royal or religious power. The guild structure that evolved from that time kept the bar tightly closed and small. Family capital became increasingly important for this complacent group and promoted the decline of the intellectual role of the Inns of Court (Prest 1986). The universities, including Oxford and Cambridge, did not fill the gap. Law faculties lost prestige compared to the bench and bar. Until well after World War II, solicitors and barristers were unlikely to obtain an undergraduate law degree before their apprenticeship. Thus, the marginal role of legal scholars in particular and law faculties in general became an enduring feature of the British common law – minimising the value of scholarly capital, which had been a key part of the Bologna model. Continental Europe evolved in another direction (with many local variations). Law professors adapted to the new state powers, increasing their autonomy from lawyers and judges because of the emergence of numerous jurisdictions in the wake of the Holy Roman Empire’s demise. The fragmentation limited opportunities to impose political power on the

574  Yves Dezalay and Bryant G Garth universities. The professors were advantaged by knowing Roman law, which approximated the rules observed in the Holy Roman Empire (Berman 1983). Unlike their counterparts in Great Britain, therefore, Continental law professors were more highly respected than judges and practitioners (Rheinstein 1938). This was especially true of German professors, who could present themselves as both the true heirs of Roman law and the only ones capable of transforming that into a German civil code, a kind of ‘law from below’. The two ideal cases of Britain and Germany differ significantly, but their similarities are more interesting and characterise the Asian countries, where they were imported or imposed during colonialism. Both achieve professional closure by a small elite through either cooptation of those at the top of local social hierarchies or adaptation to foreign models by members of that elite in order to keep the imperialists at bay. The British pattern relies on connections within families and to the Inns of Court. The lack of openness and competition is obvious. But there was also relatively little competition and openness on the Continent, despite the role of meritocratic tests for admission to law faculties. Those without family status, even if top graduates, had limited access to the most elite careers. In France, it was often said that it took four generations for a notary’s family to produce a (more prestigious) avocat. Both models represent ways of constructing a small coherent legal elite. Each reproduces that elite through different institutions, such as the British Inns of Court and the German law faculties (and, as discussed later, the judicially controlled Legal Research and Training Institutes in Japan and South Korea). The number may be controlled through such mechanisms as the numerus clausus in Germany at various times or the limited number of apprenticeships at the Bar in Britain (and, more importantly, of those who could afford to take them and satisfied the informal selection criteria) (Abel 1988; Vol 1, ch 44). Even legal professions without formal or informal numerical restrictions, notably China and India, have a major divide between the rank and file and the elite, the latter occupying the vast majority of the one per cent positions, which today include the corporate law firms and elite corporate counsel offices spawned by the neoliberal revolution. This divide between the mass of lawyers and the small number combining learned expertise, family capital, and cosmopolitan connections at the top is part of the legacy of the pattern established in medieval Europe. We are not saying that the less powerful sectors of the bar are unimportant for studies of the legal profession. In some countries the legitimacy of the legal profession may depend partly on the illusion of relatively equal access to legal careers, which is one reason for the vast expansion of law schools in many parts of the world, including China, India, and (earlier) the US. There are also diversity initiatives, especially in the US and the UK, to recruit minorities into both law schools (including the elite) and law firms. Non-elites may also gain power in various other ways, such as by representing social causes or disadvantaged social groups in the courts or in politics. Some may rise to top positions despite the odds against them, but the structural impediments remain. The divide between the few and the rest is an evolving relationship. Any reification of the categories of elite versus non-elite is misleading. The Bourdieusian framework is concerned with the evolving structure of legal fields that produce particular hierarchical relationships. The habitus and institutions embedded in the field are more important than categories of elite and non-elite. The key point is that legal revolutions (including the neoliberal revolution) moving from place to place – the circulation of texts into different contexts – are shaped by the centres of professional power and influence in the field, which may resist and/or seek to turn imports to their advantage.

Law as Reproduction and Revolution  575 II.  THE US HYBRID MODEL – A DIVIDED PROFESSION DOMINATED BY THE CORPORATE LAW/ELITE LAW SCHOOL RELATIONSHIP

The development of a US hybrid in the nineteenth century put a new model of legal hierarchy and its reproduction into imperial play (for similar approaches to colonialism and imperialism, see Go 2016; Steinmetz 2007). The increasing power of the US in the twentieth century helped to unsettle legal fields in many places – beginning in the era of law and development in the late 1960s and 1970s (Trubek and Galanter 1974) and continuing into the neoliberal era. This growing influence of the US has complicated the stories of German and British models (and variations on them) abroad and at home. The legal revolution that is the subject of this chapter, with its challenge to entrenched and conservative legal oligarchies, is linked to this US model. The revolution challenges existing hierarchies and their modes of reproduction. We therefore explore in more detail the emergence of this hybrid model before seeing how it is used in the Asian case studies. The starting point for the US hybrid model is the fact that, since the colonial era, its legal profession has been more open to new entrants and their advancement than those in British common law or Continental European countries. Those at the top in the US sought to legitimate their power by drawing on imported legal and political science, deemed more prestigious and advanced at the time. The British common law retained its legal authority despite the war for independence. Within domestic palace wars in the US, that strategy worked to preserve the place of elite lawyers until the popular challenge of the Jacksonian era. The Jacksonian revolution in the 1820s and 1830s attacked legally-educated leaders and foreign expertise in the name of the more rural and uneducated group identified with the descendants of squatters and vagrants (Isenberg 2016: 124). Running against John Quincy Adams in 1824, Andrew Jackson was praised by supporters as ‘self-taught’ and ‘less contaminated than the former diplomat Adams by foreign ideas or courtly pomp’ (ibid: 125). Isenberg notes that ‘Adams had been a professor of rhetoric at Harvard’, while Jackson had ‘sprung from a common family’. Elite lawyers of the period – closely identified with England – lost influence in the face of an anti-elite populism. This popular movement around Andrew Jackson, therefore, created a difficult environment for the leading lawyers. The lawyers de Toqueville had seen in 1831 as ‘the natural aristocrat[s] in America’ were on the defensive ‘with attacks on lawyers peaking in the 1830s’ (Katcher 2006: 345; Stevens 1983: 5). Local bar associations declined in importance and basically collapsed during this period (Stevens 1983: 5) as did standards for admission to the bar (Friedman 2005: 237). There was little respect for law and lawyers among either the political leadership or the rank and file. But backlash against the Jacksonian era and its depreciation of the legal profession also created opportunities to re-legitimate the ‘natural aristocracy’, which was still visible before and after the Civil War. Even though the bar had grown when entry restrictions were lifted, by 1860 there were still ‘only a few cracks in its façade of social class’ (Konefsky 2008: 86). Stratification within the legal profession, which already existed, was increasingly associated with clients as corporate wealth grew. Railroad attorneys emerged as part of what Konefsky calls ‘a segmented and stratified profession … reinforced by social kinship and family networks’ (2008: 89). The profession was much larger than those in England or on the Continent, but it retained an elite core that antedated the American Revolution. The leading corporate law firms in the US, which emerged out of the railroad lawyers, emphasised their cosmopolitanism and naturally sought connections with the long established, respected, and globally more prestigious European legal elites.

576  Yves Dezalay and Bryant G Garth The relative openness and market orientation of the US legal field helped lead to the first law schools, which grew out of the British apprenticeship system (Coquillette and Kimball 2015) but also built on classical legal science from the Continent and as cultivated by a few British scholars, such as Blackstone. Children of Southern gentlemen prior to the Civil War naturally were attracted to Harvard and Litchfield, the early leaders in legal education, where they could build their learned and elite credentials, which regained value after the Jacksonian era (ibid). After the Civil War, new law schools opened and provided greater access to legal careers. Harvard Law School then rebuilt its role as the most elite school – clearly distinguished from the others (ibid). Langdell, the dean from 1870 to 1895, transformed US legal education by borrowing from the German model of academic theory. The prestige of law professors at that time was still relatively low compared to judges and top lawyers in the US, but professors and their legal theory gradually gained status at Harvard and other US law schools. Furthermore, Langdell distinguished Harvard from the numerous more open law schools by building a ‘legal science’ out of the case method and linking it closely to the rise of corporate law firms on Wall Street – ready to absorb the graduates of Harvard, Yale, and Columbia (ibid). The division between a few elite law schools and the mass of more accessible schools displayed the greater openness of the US model compared with those in Britain and the Continent. The elite law schools such as Harvard aspired to be meritocratic, even if those admitted were mainly from very limited social groups; and law school grades counted (along with social backgrounds) in access to the most elite corporate jobs (ibid). In addition, the graduates of night and other non-elite schools could still aspire to careers in litigation or the government; and a few gradually found places in corporate firms. That openness accelerated with the great expansion of US corporate law firms in the 1980s and the rise of neoliberal policies and globalisation associated with the end of the Cold War. The position of corporate law partners at the top of the US legal profession is a product of the end of the nineteenth century. That position has been challenged in major periods of social and political change. Even at the beginning of the rise of corporate law firms late in the nineteenth century, critics from inside and outside the bar challenged the role of ‘hired gun’ for the ‘robber barons’. The relatively small group of corporate lawyers resisted those criticisms by linking themselves to Harvard Law School and its few peers. They also involved themselves in public service in the Progressive Era, partly to challenge the urban machines but also to facilitate regulation that would tame their clients and provide legitimacy to client operations at home and abroad (Gordon 1984; 2008). They took major roles in and encouraged the creation of philanthropic foundations, especially those of Andrew Carnegie and John D. Rockefeller. They went in and out of top governmental positions as well, building and legitimating the ‘lawyer-statesperson’ role for top corporate partners. They prospered enormously along with the growth of their clients. By the time of the Great Depression, the top Wall Street law firms were closely identified with the world of their clients. They were relatively complacent and resistant to change. After some pragmatic support for the New Deal, they became identified with the strong opposition. The New Deal leadership saw private lawyers as obstacles to be overcome through administrative powers that minimised the possibility of legal attack. But the relative openness of the US legal profession facilitated the entry of outsiders into the New Deal. In particular, Jewish lawyers and professors both attacked the legal establishment and facilitated its refurbishing. In a story told well by Shamir (1995), the aspiring elites used Legal Realism to challenge the legal status quo, join forces with the new politics, and to retool the legal profession for the more activist state while reinforcing and updating the power of corporate law firms.

Law as Reproduction and Revolution  577 Legal Realists founded law firms such as Arnold, Fortas, and Porter, the Washington, DC counterparts to Wall Street but with new profit centres built on the regulatory state. The process was almost a textbook illustration of what Berman saw in the legal revolutions he studied (1983). The conservative legal elite was challenged by outsiders linked to an emerging political order. Although the elite resisted, the outsiders ultimately became insiders and took advantage of new opportunities to reshape elite legal institutions, including the top law firms and law schools, to serve and thrive in the new political order. Similar challenges occurred in the civil rights era and with the rise of Chicago School economics and neoliberalism. Law firms in the 1960s identified with the activist state and did not initially embrace the new law and economics. But again, reminiscent of the 1930s, outsiders such as Henry Manne and Ed Meese linked academia and the new politics, this time from the right, to equip the legal establishment to play a prominent role in a political movement that initially saw law as only an obstacle to economic and political reform (Southworth 2008; also Teles 2008). These stories of contestation by outsiders leading to adaptation and change fit the model of legal revolution. Aspiring elites used Legal Realism and Law and Economics at different times to challenge the legal status quo, join forces with the new politics, and transform the legal profession while reinforcing and updating the power of corporate law firms. In terms of the market control thesis, the small elite – the legal one per cent – were challenged for their complicity with the status quo and complacency with the rewards they reaped; but the outcome was to allow that very small group to connect to the political and economic upstarts and once again thrive at the top of the legal profession. The US model of legal education, with its symbiotic relationship between prestigious law schools and law firms, became important in imperial competition, especially after World War II. The US ‘anti-imperial imperialism’, which began in the late nineteenth century as a way to build a global ‘Open Door’ system where US corporations could freely trade and invest, gained importance (Dezalay and Garth 2010). The ‘law and development movement’ after World War II, which gained prominence in the 1970s, highlighted the export of the US model of legal education. The US approach encouraged reforms in legal education in the name of universals consistent with US hegemony. Where there already was an established profession, US reformers and local allies sought to challenge the existing and typically quite conservative ‘guardians of the temple’. US foundations and governmental programmes sought to create or ‘modernise’ legal elites who would become moderate (and anti-communist) leaders in development and governance instead of conservative defenders of a propertied class or other privileged groups. Reform projects sought to promote the Langdellian values of more meritocratic access to positions in the legal profession, more scholarly investment in law, and less reliance on family capital embedded in the law (in part through imperial processes favouring local elites). All these potential reforms also looked toward challenging a kind of family based and conservative ‘legal formalism’ in favour of a more strategic US brand of lawyering – test cases, lobbying, and legal-political advocacy requiring more investment in technical legal arguments. Justice William O Douglas accurately captured the idea when he observed that lawyers in developing countries needed to learn the mix of skills identified with ‘a first-rate metropolitan lawyer’ – ie a lawyer in a large corporate law firm (quoted in Gardner 1980: 37). The flexibility we saw within the US legal structure, which both changed and stayed the same through the New Deal and the rise of neoliberalism, contrasts greatly with the ways in which British and Continental models confronted political and legal change. Neither adapted well to the European welfare states, for example (Abel-Smith and Stevens 1968; Bertilsson 1996). Control over the production of producers limited the number of potential outsider lawyers and

578  Yves Dezalay and Bryant G Garth jurists who might have played the role of the Legal Realists. The British and Continental legal fields were much more ossified and protected from the kind of internal competition that helped preserve the intimate connection of law to state power while transforming and thereby reproducing legal hierarchies in the US. These relatively static and closed models were exported to colonies or copied by them in the nineteenth century under pressure from western imperialism – notably, in our study, Japan following Germany and China following Germany in part through Japan. Even if the models assumed very different shapes in the importing countries, this basic conservatism prevailed. The law and development movement beginning in the first decades after World War II is widely seen as a failure in legal education reform. With the benefit of hindsight, however, we can see that it left a legacy that could be used by local reformers once corporate law firms became established and legitimated. This latest stage of legal education reform is closely linked to the spread of corporate law firms, neoliberalism, and financialisation; and the importers are fomenting a legal revolution consistent with those political and economic changes. They use the international credibility of US approaches in education, scholarship, and advocacy to attack local entrenched legal oligarchies structured around ‘old Europe’s’ empires. This pattern of attack on complacent and embattled legal oligarchies is well-illustrated in our case studies. Surprisingly, however, the most dramatic exception to this pattern of resistance is China, to which we turn. III.  ASIAN CASE STUDIES: CHALLENGES AND RESPONSES TO A NEW LEGAL REVOLUTION1

China illustrates a remarkable story of the reconversion of some of the descendants of a Mandarin elite, which scholars suggest might have been rooted in as few as 300 families. They and those who aspired to join or displace them took advantage of opportunities in the nineteenth century to convert themselves into lawyers and legal scholars whose legitimacy depended on foreign expertise. The Confucian bureaucrats from whom this group stems flourished in imperial China through performance on the imperial civil service examinations and domination of powerful administrative positions. The imperial elite in China also was at the top of a ‘tribute system’ that put China at the apex of other Confucian countries, including Japan, Korea, and Vietnam (Kang 2010). In the mid to late nineteenth century, however, the dominance of traditional Confucianism in China and elsewhere was threatened. The military, technological, and economic rise of the western imperial powers and of Japan, which imitated the West in the Meiji era, challenged the traditional elite and their supporting Confucian ideology. Western-imposed concessions, most notably in Shanghai, defeats in foreign wars, and related technological weaknesses made many in China anxious to regain power relative to Japan and the West. In these circumstances, China produced a small cosmopolitan and flexible legal elite that drew heavily from European and Japanese models (Tiffert 2015; Zhang 2018). In this period of self-doubt, aspiring Chinese elites looked abroad for ideas and approaches to governance, and Chinese leaders began to import widely if not prudently. Tiffert (2015) points to a sudden ‘Big Bang’ that radically changed the Confucian model of exams and administrators at the end of the Qing dynasty and the beginning of the Republican era in the early



1 These

case studies are based on our recent book (Dezalay and Garth 2021).

Law as Reproduction and Revolution  579 twentieth century. This entailed the creation of a virtually new judicial system. Numerous transformations in law and governance took place in the context of aggressive importation and loss of faith in traditional approaches. The local value of imported expertise dramatically increased, and those able to acquire it were advantaged in the competition for power and influence (ibid; Zhang 2018). Foreign expertise facilitated attacks on the traditional modes of governance and subsequent adaptations, rebuilding influential positions comparable to those of the traditional elite but under different political regimes (in a variation of the Berman model). This value of foreign expertise, including both the science of the state and legal science (Bourdieu et al 2000), persisted into the Republic of China and the Communist Party and People’s Republic of China. Aspiring elites could offer foreign texts – from German Codes to social science theories – as governance solutions. As is true of every import of approaches and ideas, these were ‘texts without their contexts’ (Bourdieu 2002). What they became in the new setting depended on how they were introduced into changing Chinese structures of power. Without any direct imperial coercion, therefore, foreign expertise became central to the power of the descendants of the Mandarin elite and the place of law. This remains true today. Yet which foreign expertise is ascendant has varied considerably over time. The recurring pluralism is exemplified by the Peking Faculty of Law in the 1920s: even though Japanese influence was greatest, the school was divided into English, French, and German sections taught in the respective languages (Macdonald 1980–81: 316). This flexibility was also evident in the embrace of the Soviet model after the victory of the Communist Party. The quick dominance of Soviet law, in fact, led to a Golden Age of law, assigning strong roles to the few western-educated scholars in the mid-1950s. The more radical faction of the Communist Party, however, exemplified by peasant cadres who constituted Mao’s base, persecuted legal elites, first in the Anti-Rightist Campaign and then in the Cultural Revolution. It was very difficult to survive that attack, and many did not. After the Cultural Revolution, the reestablishment of law faculties in the late 1970s restored the aging elites, who naturally revived the central role of foreign expertise when they regained leadership positions. It was not a radical break with the earlier legacy of western expertise, except that now the dominant model was the US. Exchange programmes and Chinese graduates seeking LLM degrees facilitated the flow of ideas and expertise. Since that period, the power of the legal elites has grown through the era of liberalism around 2000 to the more recent emphasis on rule by law (Zhang and Ginsburg 2019). The Anti-Rightist Campaign and the Cultural Revolution represented a low point for law and lawyers, a devastating period of rejection of the foreign tainted formal law. But the few foreign trained experts who survived (and had not fled to Taiwan) began the process of reconstruction after the Cultural Revolution. They rebuilt the law faculties and the prestige of internationally-oriented scholars. The earlier flexibility returned as well, and this elite has preserved its position and adapted its message to changes in domestic and global politics. Those who excel by the criteria of this model – graduating from leading, highly selective undergraduate faculties of law and obtaining a foreign LLM – have dominated the new sites of legal power, including corporate law firms and major in-house counsel. The power of this group is also manifest in the legalism of the Belt and Road Initiative, which gives a prominent role to leading corporate lawyers in ‘Red Circle’ corporate firms. This relatively small group reaps the major gains, while the mass of rank and file graduates struggle in precarious positions such as criminal defence lawyers (Minzner 2013). There has been surprisingly little competition between German or Japanese approaches and the US or Soviet models – or perhaps with some reinvented ‘indigenous system’. Each has

580  Yves Dezalay and Bryant G Garth been prominent at some time or place, and the shifts between them have been relatively seamless – most notably from a western to a Soviet model and from liberalism to ‘rule by law’. And pluralism in elite expertise persists. Scholarly credibility comes from cosmopolitan investment in some internationalised legal theory or institution. The actual investment may not be deep or transformative, but the play of foreign ideas is vital even when the Chinese context seems to absorb them without change. There is, therefore, an internationalised legal elite linked to traditional Mandarin elites and able to adjust quickly to changes in global and domestic politics. There is ample evidence of adaptation, including the fact that the foreign model of the corporate law firm was built relatively late in China by the state and, quite naturally, staffed with the same kind of legal elites sought by the most attractive state institutions, elites who are now also thriving in the well-compensated corporate and state-owned-enterprise sector. Law faculties have also globalised and facilitated more teaching of the expertise associated with this legal revolution (Wang et al 2017). Law in Communist China is profiting from the new legal revolution ‘with Chinese characteristics’. The discussion of China recalls characteristics of the legal profession as it emerged in medieval Bologna. That formative period is vital because the descendants – who were able to mobilise the habitus they developed of family capital, cosmopolitan scholarly learning (initially Roman civil law and canon law), and proximity to power – are central to understanding continuity amid the constant reinvention of hierarchies, norms, and institutions of different legal fields. This continuity makes that habitus of internalised behaviour relevant and visible today. Despite mild competition among scholarly elites, the foundation of elite legal institutions is internationalised legal education and scholarship located in a few highly theoretical and selective law faculties. The relative failure of the new Chinese JM degree, which mimicked the US JD and was introduced with some fanfare, shows the power of a hierarchy based on highly theoretical cosmopolitan faculties of law serving the students with the best high school test scores (Erie 2009). The other countries we studied display a similar core and periphery relationship. The import and export of law outside of Europe accelerated in the late nineteenth century when battles within colonial societies and imperial competition made law more central to the legitimacy of empire and hegemonic relationships. Empires had to be defended more on the basis of the ‘civilising mission’ than on economic exploitation, which lost favour (Mazower 2012). The pressure to ‘civilise’ became central to European relations with Japan and China. British and German models of law were more aggressively exported and imported. More generally, core and periphery relationships are still quite evident. Activities at the centre, such as the rise of economists, the War on Terror, and nationalistic hostility to legal constraints, all have repercussions on law outside the global capitals. For Japan (Flaherty 2013) and later China, the continental system proved to be the easiest to transfer in a top down fashion, using the German state-oriented model to connect legal legitimacy with the rule by state elites. Importing German approaches helped to demonstrate the ‘civilised’ legal systems that westerners cited as the standard for equal membership in the global community. But the British system exported through colonialism also had advantages, working well as a long-term strategy of co-opting local power by making local elites judges and advocates and more generally co-opting locals with power into various kinds of legal or quasi-legal regimes of governance (Benton and Ford 2016). Whether through co-optation or strategies of legitimacy through law, each model in the countries we studied built a small, cosmopolitan legal elite out of existing local structures of power. This process, however, was never simple. It was distorted and shaped not only by the local context but also by palace wars and evolving structures of power within both the colonised and coloniser.

Law as Reproduction and Revolution  581 Within the narrative of the neoliberal revolution inspired and led by the US, the processes are also changing and complex. The prominence of various features of US models depends on both local circumstances and fashions in the US. These features include a variety of educational alternatives, such as private options where they did not exist, a concomitant increase in the number of law schools and graduates, more US-style teaching, including clinics and smaller classes, more interdisciplinary research, and the creation and expansion of a legal elite located in a relatively small sector of corporate law firms modeled on US firms. The impact of this revolution on existing legal hierarchies, including the enduring role of the cosmopolitan legal elites historically at the professional apex, varies substantially in the countries studied. Each experiences this revolution as a challenge to existing hierarchies. In China, a flexible legal elite quickly adapted to domestic and global changes, building corporate law firms to facilitate integration into the global neoliberal economy. They restricted the rewards of corporate law to the small elite of top law graduates oriented to obtaining foreign degrees. The process was different in countries where the legal oligarchy experienced the US model as an unwelcome challenge. In each case, however, there is a recognisable two-stage process, though its timing varies and may not be linear. It begins with the development of a small group of corporate law firms largely outside the traditional legal hierarchy and typically denigrated or resisted by traditional legal elites. Serving mostly foreign companies, these firms were insulated from domestic economic power. The power structure of the profession generally resisted or sought to confine this development. A core of aspiring or entrepreneurial elites, however, were co-opted into the law firms or transformed the firms, which needed the credibility their prestige conferred. Examples include ex-prosecutors and government officials in South Korea and members of leading legal families in India who did not fit the profile of the elite bar – for example, women. The second stage, perhaps a generation later, occurs when entrepreneurial importers connected to the corporate law firms acquire enough power – typically in alliance with emerging political groups – to challenge the conservatism of the legal establishment. The Indian bar allowed the creation of the first National Law School in 1986 in Bangalore, following a long gestation, as part of an effort to restore the credibility of law and courts after Indira Gandhi’s declaration of emergency in the late 1970s (Krishnan 2004). Later, many of those graduates, who lacked the family connections essential to mainstream success in India, used their US-oriented expertise and credentials from top law schools at home and abroad to challenge the bar more aggressively. Similarly, entrepreneurial outsiders in South Korea and Japan used their imported knowledge to support dramatic law school reform during local palace wars in those countries, challenging the ‘iron triangle’ of party, big business, and the judiciary, which were weakened by the financial crisis of the late 1990s (Saegusa 2009: 367). The outcomes of this second stage are never quite what entrepreneurs expected. In India, the initial idea was to train lawyers to be advocates for NGOs, reconverting and upgrading the legal elite. But after economic liberalisation in 1991, most graduates went to the new corporate law firms serving the more open economy. The impact of educational reform was more limited than the entrepreneurs expected. The senior judges and advocates – who controlled the national law schools because their support was necessary to establish them – ensured the schools would not rock the boat by challenging the legal knowledge and approaches of the senior bench and bar. Nevertheless, over resistance by the conservative bar, some of the new expertise of the graduates of the new schools was infused into the state and parts of the bench and bar. Another problem of the new law schools was that, despite set-asides for scheduled castes, the new national law schools became dominated by the same upper caste cosmopolitan students who excelled on standardised tests and already populated the Indian Institutes of Technology.

582  Yves Dezalay and Bryant G Garth The reactions in India, Japan, and South Korea strongly contrast with the remarkable flexibility of the cosmopolitan descendants of the Mandarin elite in China. Nevertheless, in India, as in the other places we studied, the legal revolution emanating from the US is quite visible in the new corporate law firms established in the wake of liberalisation, which, in contrast to the traditional law firms resembling the British model, quickly embraced globalisation. The new firms gained power and credibility by building on the capital of leading legal families, the meritocratic law graduates who went to work in the corporate firms, the prestige of the US corporate firms, and relationships with foreign clients comfortable with US-style law firms. This revolution is also evident in the relative successes of the National Law Schools, which have proliferated since the first one was established in Bangalore in 1987. The National Law School of Bangalore and its successors also have symbiotic relationships with new private law schools, such as the Jindal Global Law School, and the corporate law firms and leading businesses. That close relationship between leading law schools and corporate law firms is akin to what we have long seen in the US. These schools have opened the profession to new groups able to succeed on the entrance examination to the National Law Schools and new private law schools and to afford their much higher fees. On the basis of these developments and educational reforms, India fits the paradigm of more meritocratic and open legal education, though one that is more expensive and limited to those with the resources and English language skills to succeed on the admission tests. The relatively few graduates from these schools contrast with the much more numerous graduates from non-elite law schools. The graduates from the top schools occupy the relatively small number of entry level positions in the top Indian law firms, joining the new legal one per cent that has developed in the last three decades. This provides strong evidence of the legal revolution emanating from the US. What this story of seeming convergence omits is the resistance of the very senior ‘grand advocates’ and High Court judges at the apex of the profession in prestige and power. They have thrived through the opening of the economy but have not realigned their practices with the new legal revolution. They represent an entrenched legal oligarchy dominated by older men from leading legal families, whose place in the professional hierarchy has its origins in British colonial governance. This group very reluctantly embraced the National Law School initiative and dominates the governance of every National Law School, controlling even the appointment of deans. It resists efforts to upgrade the status of faculty to improve teaching and research and facilitate academic careers. And it recruits apprentices mainly from outside the more meritocratic schools, preferring institutions like the Government Law College in Mumbai, which holds classes only in the mornings to let students concentrate on apprenticing at the Bombay High Court next door. It is telling that, according to interviews, no graduate of the National Law Schools has become a senior advocate or judge. The senior advocates are essential for big cases because of their stature and links to the judiciary, compelling the law firms operating effectively as solicitors to rely on the leaders of the bar to make their legal arguments (Galanter and Robinson 2018). But this means that sophisticated legal arguments associated with global law firms are often ignored by senior advocates, who emphasise forensics and verbosity. By controlling the National Law Schools and major litigation, the senior advocates and the judiciary maintain and profit from their position; but they block initiatives to upgrade their arguments, diversify recruitment to the bar and bench, and enhance the status of academic scholars and the role of globally-recognised legal theory and interdisciplinary scholarship. We cannot say how long this bunker mentality – visible since the 1950s – will succeed in restraining the legal revolution. The pressures are mounting, and there are calls for reform

Law as Reproduction and Revolution  583 from within the bar. But these descendants of a cosmopolitan British-educated elite strongly embedded in the Indian social fabric persist in using their power to take an approach diametrically opposed to that of the Chinese legal elite. To the young graduates of the National Law Schools, many of whom have ties to business families and study abroad, the grand advocates and their judicial allies represent reactionary obstacles to reform. Japan and South Korea, which followed Japan’s legal model during and after Japanese colonialism, also had reactionary legal elites associated with importation from the Continent, especially Germany. But in both countries corporate law firms emerged from foreign-oriented enclaves to become major organisations serving local and global businesses. They occupy a relatively small portion of the legal profession but represent a significant space for a legal one per cent drawn from a relatively few leading law faculties, even after reforms intended to ‘open up’ the profession. Under the influence of the Asian financial collapse of 1997 (and each other), both countries sought to transform legal education from mainly undergraduate programmes into graduate JD programmes modeled on the United States. Japan’s reform effort failed, but the later South Korean effort was more successful (Foote 2013; Lee 2019; Riles and Uchida 2009; Murayama Vol 1, ch 38; Kim Vol 1, ch 40). Prior to the reform, both countries had a Confucian hybrid of the Continental model. Professors embraced the highly theoretical German tradition of scholarship oriented toward codes, though their status was lower than that of their German counterparts. In South Korea, professors were dismissed as those who could not pass the bar exam. The professoriat reproduced by hiring their academic disciples as assistants and promoting them to professorships. Only 3–5 per cent passed the extremely difficult bar examination, just 300 a year in South Korea and 500 in Japan, even after some liberalisation in the 1980s. Passage of the exam led to admission to the Judicial Research and Training Institute (JRTI) in South Korea and the Legal Research and Training Institute (LRTI) in Japan, where students learned practical skills focused on crafting judicial opinions and absorbed the expectations and values that unified the small homogeneous legal profession. They emerged from the Training Institutes imbued with an almost familial solidarity. In South Korea, according to our interviews, members of the bar shared ‘values, methods, goals, and … excellence’ and were ‘most proud of being smart’, as demonstrated by passing the bar exam. Being smart required one to ‘memorise all the textbooks and theories’. ‘The JRTI has been heavily criticized as the cradle of the “legal mafia” in which students of the JRTI bond together more closely than any group of other professionals’ (Park 2018: 180). Training Institute graduates enjoyed power and status as prosecutors and judges and persisted in the learned patterns of behaviour. They challenged neither the government nor the major national economic powers and resisted any change that might endanger their prosperity and status, including admitting more lawyers. The legal apparatus was closely linked to the government and private power through the growth of the chaebols (South Korea, Kim Vol 1, ch 40) and the keiretsu (Japan, Murayama Vol 1, ch 38). In Japan, the government was dominated by the Liberal Democratic Party (LDP), while South Korea had authoritarian regimes until the democratic reform in 1987. In both countries the small entrenched legal profession, linked by family and marriage to business and the state, resisted change. Under pressure from the economic crisis and businesses seeking better training for corporate lawyers, the Japanese legal profession acquiesced in the reform of legal education and the creation of the graduate JD. But the legal establishment exercised control throughout the process, including the number of bar passers. When external pressure subsided, the reforms failed to increase bar passage or shift power from the LRTI to the graduate law schools. The legal revolution in Japan did make corporate law firms

584  Yves Dezalay and Bryant G Garth a more attractive destination for law graduates of the top schools and increased the number of lawyers working for private business and the government, but the entrenched quasi-­familial legal oligarchy retains control over socialisation into legal and judicial practice. Indeed, the increased numbers have made it more difficult for graduates not from the top schools to find positions. Opening up the profession has not challenged the elite schools and the virtual monopoly of prestigious positions their graduates enjoy. In South Korea, by contrast, the role of the JRTI has ended, and the organised bar no longer opposes the reforms that led to its demise. The profession has grown substantially. There are still those who lament the decline in the ‘quality’ of law graduates no longer as schooled in all the details and interpretations of the codes. But the qualifications of the students mirror the shift in the kind of expertise valued within the legal field today. Law firms hire law graduates with experience and degrees in the sciences, accounting, economics, pharmaceuticals, intellectual property, and other areas. Performance on the bar examination is no longer the main criterion. The law school graduates, according to our interviews, better meet the needs of the large corporate law firms than did the products of the old system. They reportedly give ‘different answers’ in their work instead of the answers ‘they were supposed to have’. The reason for the difference in South Korea is that the attack on the role of law in the iron triangle of government, business, and political party was much stronger than it was in Japan. Legal reformers allied with and drew strength from the democracy movement, which sought to challenge the embedded role of prosecutors and judges in supporting the alliance sustaining authoritarianism. The attack on the JRTI, therefore, fit the pattern of a political and legal revolution – one in which US models of legal reform became part of the political rallying cry and legitimating rhetoric for legal and political change. The revolution benefited from the rise of corporate law firms as law schools sought to increase practical education and recruit individuals with linguistic skills and training in non-law disciplines. Law schools increased the prestige of law professors, created a place for more interdisciplinary research, and began hiring individuals with practical experience. The distinguishing feature of the South Korean legal revolution was the politically led assault on what was seen as the cradle of its legal mafia. But the reform was only partly successful. Students are not flocking to the new legal clinics; and the cram schools preparing for the bar examination continue to thrive. Prosecutors and judges still exercise a conservative influence, favouring the chaebols and those who were part of the authoritarian regime. The judges and prosecutors retain considerable power and remain the most prestigious positions in which to start legal careers and open up other options in law and politics. They still share a quasi-familial sense of their place and prestige. But the pivotal role of the JRTI as part of that socialisation is no longer an obstacle to the legal revolution. Law firms are growing, but they still employ a small percentage of the bar passers. Graduates of the traditional elite schools obtain high bar passage rates and the most desirable jobs, and there are even proposals to close schools whose graduates do poorly on the bar exam. The small elite of prosecutors and judges now co-exists with a comparable but more cosmopolitan elite located in the top corporate law firms. And now the relatively privileged, no longer deterred from attending law school by the bar, are gaining prominence in the prosecutor offices and the judiciary. Hong Kong provides an interesting contrast to India (another former British colony), as well as China, Japan, and South Korea (see Hsu Vol 1, ch 41). Located in a port historically open to expatriates and imported ideas and practices, Hong Kong’s legal field responds quickly to changes in global power. Global corporate law firms have had major offices operating relatively freely in Hong Kong for decades, typically in charge of operations throughout Asia. The growing global influence of China (and its assertion of direct control over Hong Kong) strengthens

Law as Reproduction and Revolution  585 Hong Kong’s broker position between China and the West. The courts and private dispute resolution through international commercial arbitration are part of this role. The locally educated legal elite, however, is not the main player in the new legal revolutions. The three Hong Kong law faculties have instituted several reforms to prepare students better for corporate law jobs, but Hong Kong locals improve their chances for those positions by seeking education abroad (Jones 2009). A second group most likely to join the corporate one per cent comprises specialists from abroad, essentially following the path of British expatriates, who were central to the legal system prior to the handoff to China in 1997 and are still prominent in the bench and bar. A third element are expatriates from China working in the western-based global law firms and the growing number of Chinese-led firms. Locally based Hong Kong law firms, by comparison, play a smaller role than in the past, when they could rely on fees from conveyancing and China trade was unimportant. The Hong Kong based lawyers, in short, are relatively weak players in shaping the practice of globalised law in Hong Kong. Leading Hong Kong educated barristers also belong to the elite of the local legal profession. The democracy movement (in which barristers are major actors) and widespread popular dissent represent wild cards in the future of Hong Kong. But the territory’s importance to Chinese companies and transnational dispute resolution and as a key financial centre and repository of Chinese wealth suggests that its economic role will not change in the near term. One concomitant of the local democracy movement is antipathy to the relative ease with which foreign-educated individuals from China and the West can attain leading professional positions. That openness appears unlikely to change. Hong Kong has a long history as a free market for people and approaches, whose influence reflects changing balances of global power – revolutions emanating from China, the West, or a combination of the two. For very different reasons from those of China, therefore, Hong Kong’s cosmopolitan legal elite, led largely by individuals educated elsewhere, adapts quickly to global legal change. The enactment of the new security law appears to be China flexing its stronger global position, paralleling the ‘rule by law’ ascendency within China. IV.  CONCLUDING OBSERVATIONS

The examples reveal major differences but also continuities in the reception of the legal revolution emanating from the US in recent decades. The revolution of financialisation and neoliberal economic policies led to a dramatic growth in corporate law firms and the strong influence of US approaches to law and legal scholarship. The first phase of the legal revolution was manifested in the proliferation of corporate law firms and their local legitimation. The second phase has focused on legal education reform aligned with the rise of corporate law firms and US approaches to teaching and scholarship. Cosmopolitan legal elites in China and Hong Kong, for different reasons, were quick to embrace and adapt to both phases of this legal revolution. International credentials and expertise are essential characteristics of the elite of the professions. The Indian cosmopolitan legal elite created during the Indian Raj, in contrast, remains very resistant to the legal revolution. The grand advocates at the top of the profession have a bunker mentality that limits the impact of the legal revolution on courts, litigation, and legal education despite changes in corporate law firms, National Law Schools, and legal scholarship. The advocates reproduce mainly through family capital and apprenticeship largely unconnected to academic learning. South Korea and Japan, because of Japan’s colonial relationship with Korea, had very similar legal professions, which were extremely difficult to enter and led by prosecutors and judges

586  Yves Dezalay and Bryant G Garth identified with enduring state and economic power structures. Both responded to the legal revolution by reforming legal education with the adoption of the JD degree, but the reform was much more successful in South Korea. There are different mixtures of family capital and meritocratic selection in the countries studied. In each case, however, the variations on the legal one per cent create a huge divide between the top lawyers, including those in the corporate law firms, and a mass of lawyers and law students with very little chance of crossing the divide. There are several variants of the US combination of two modes of producing legal monopolies. One is strict limitation of access to the leading law schools; the other is selective recruitment to the most lucrative and prestigious positions, including corporate law firms and, increasingly, in-house positions. The tension between limited access and expanding global markets increases the already large distance between ordinary law graduates and this one per cent. The case studies exemplify and extend the model Brundage and Martines presented of the legal profession as it emerged in medieval Italy and developed with the rise of the city states. Lawyers served from the beginning as brokers combining arcane cosmopolitan knowledge and family capital, using their position to shape law and states in relation to emerging economic groups, the church, and the huge number of jurisdictions under feudalism. In today’s world, as the case studies show, lawyer brokers continue to promote their place and that of law in the context of shifting global hierarchies, state transformation, religious resurgence, technological change, and other developments. These efforts are associated not only with the neoliberal revolution, which is the focus of this chapter, but also with lawyer relationships with existing and emerging social interests and movements, both domestic and international. Bourdieu’s observation that the class and family capital undergirding the power of cosmopolitan elites is reinforced through meritocratic criteria and links to state power is supported by the case studies. The case studies also fit Berman’s analysis, which we interpret as a theory of permanent revolution – rebooting legal establishments through the challenges of aspiring elites investing in new forms of knowledge and linkages to emerging political powers. The story of the New Deal in the US, including the role of Jewish lawyers and professors, is a classic example. The aspiring elites used Legal Realism to challenge the legal status quo, ally with the new politics, and retool the legal profession to serve a more activist state while reinforcing and updating the power of corporate law firms. The process is also easy to see in the contrast between South Korea and Japan. A sector of the legal profession embraced US approaches, human rights and the democracy movement in law, gaining power through alliance with the South Korean democracy movement (which was suspicious of the US) against the authoritarian governments and those connected to them. Such alliances led to very different outcomes for the legal revolution in each country with respect to legal education and the power of traditional professional hierarchies. We see various forms of political-legal alliances promoting the revolution in India and China and suggestions that aspiring legal elites are key actors within the legal profession. It is important to reemphasise, however, that the narratives are more complex than we can present here. They involve constantly shifting positions and blended categories, such as professor/politician in the US or prosecutor/NGO/entrepreneur in South Korea. Nevertheless, Berman’s theory appears to provide a solid hypothesis about how legal establishments wedded to existing power respond to new social movements. The emerging legal revolution thus leads to more or less significant changes while reconstructing the position of law close to power and revitalising legal hierarchies that had been tied to an earlier status quo. Finally, we have used our Asian case studies to reflect on Richard Abel’s powerful theoretical approach to legal professions. Abel emphasises the importance of control of the supply of

Law as Reproduction and Revolution  587 legal professionals, the protection of legal markets, and potential projects seeking to increase demand. Our essay focuses not on the legal profession as a whole but on the role of descendants of cosmopolitan legal elites inhabiting and reproducing positions at the apex of the legal profession. The habitus of these elites deploys family capital, elite educational credentials, cosmopolitan relationships and expertise, and careers that are available only to this small select group. They are the embodiment of market control, but it derives less from control over entry to the legal profession than from the obstacles ordinary people encounter in acquiring the forms of capital necessary to gain the rewards of the legal one per cent. Part of the success of the US-inspired legal revolution is a greater emphasis on meritocratic achievement as opposed to family connections. But opportunities to enter the most prestigious undergraduate and law schools and obtain positions in the most desirable elite law firms are very limited. Those at the top ally themselves closely to political power, protect themselves and their power, and often reward members of their family or close circle; for these and other reasons they are vulnerable to changing domestic political power, shifting positions in imperial and hegemonic competitions, and threats to international connections and expertise. Their challenge is to maintain the position of law, preserve the domestic legal hierarchy, and maintain (and often rebuild) the close ties to state power essential for their prestige and prosperity. REFERENCES Abel, RL and Lewis, PSC (eds) (1988–89) Lawyers in Society, 3 vols (Berkeley, University of California Press). Abel-Smith, B and Stevens, RB (1968) In Search of Justice: Law, Society and the Legal System (London, The Penguin Press). Basheer, S, Krishnaprasad, KV, Mitra, S and Mohapatra, P (2017) ‘The Making of Legal Elites and the IDIA of Justice’ in D Wilkins, V Khanna and D Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) 578–605. Benton, L and Ford, L (2016) Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, Harvard University Press). Berman, HJ (1983) Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Harvard University Press). Bertilsson, M (1996) ‘The Welfare State, the Professions and Citizens’ in J Holmwood (ed), The Sociology of Stratification (Cheltenham, Edward Elgar Publishing). Bourdieu, P (2002) ‘Les conditions sociales de la circulation des idées’ 145 Actes de la recherche en sciences sociales 3–8. —— (2012) Sur l’État: Cours au Collège de France (1989–1992) (Paris, Seuil). —— (2015) On the State: Lectures at the College de France, 1989–1992 (Stanford, Stanford University Press). Bourdieu, P, Christin, O, and Pierre-Etienne, W (2000) ‘Sur la Science d’État’ 133 Actes de la recherche en sciences sociales 3–11. Brundage, J (2008) The Medieval Origins of the Legal Profession (Chicago, University of Chicago Press). Coquillette, DR and Kimball, BA (2015) On the Battlefield of Merit: Harvard Law School, the First Century (Cambridge, Harvard University Press). Dezalay, Y (1992) Marchands de Droit (Paris, Fayard). Dezalay, Y and Garth, BG (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). Dinovitzer, R and Garth, BG (2020) ‘The New Place of Corporate Law Firms in the Structuring of Elite Legal Careers’ 45 Law & Social Inquiry 339–71.

588  Yves Dezalay and Bryant G Garth Empson, L, Muzio, D, Broschak, J and Hinings, B (eds) (2015) The Oxford Handbook of Professional Service Firms (Oxford, Oxford University Press). Erie, M (2009) ‘Legal Education Reform in China through US-Inspired Transplants’ 59 Journal of Legal Education 60–96. Flaherty, D (2013) Public Law, Private Practice Politics, Profit, and the Legal Profession in NineteenthCentury Japan (Cambridge, Harvard University Press). Flood, J (2014) ‘The Global Contest for Legal Education’ in F Westwood and K Barton (eds), The Calling of Law (Aldershot, Ashgate) 13–34. Foote, DH (2013) ‘The Trials and Tribulations of Japan’s Legal Education Reforms’ 36 Hastings International and Comparative Law Review 369–442. Friedman, LH (2005) A History of American Law, 3d edn (New York, Simon & Schuster). Galanter, M and Robinson, N (2018) ‘Grand Advocates: The Traditional Elite Lawyers’ in D Wilkins, V Khanna, and D Trubek (eds), The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) 455–85. Gane, C and Huang, RH (eds) (2016) Legal Education in the Global Context: Opportunities and Challenges (Aldershot, Ashgate). Gardner, J (1980) Legal Imperialism (Madison, University of Wisconsin Press). Garth, BG and Dezalay, Y (2021) Law as Reproduction and Revolution: An Interconnected History (Oakland, University of California Press). Go, J (2016) Postcolonial Sociologies: A Reader (Bingley, Emerald). Gómez, M, and Pérez-Perdomo, R (eds) (2018) Big Law in Latin America and Spain: Globalization and Adjustments in the Provision of High-End Legal Services (London, Palgrave Macmillan). Gordon, RW (1984) ‘The Ideal and the Actual in the Law: Fantasies and Practices of New York City Lawyers, 1870–1910’ in GW Gawalt (ed), The New High Priests: Lawyers in Post-Civil War America (Westport, CT, Greenwood Press) 51–74. —— (2008) ‘The American Legal Profession, 1870–2000’ in M Grossberg and C Tomlins (eds), The Cambridge History of American Law (New York, Cambridge University Press). Isenberg, N (2016) White Trash: The 400-Year Untold History of Class in America (New York, Penguin). Jodhka, SS, Rehbein, B and Souza, J (2018) Inequality in Capitalist Societies (New York, Routledge). Jones, C (2009) ‘Producing the Producers: Legal Education in Hong Kong’ in S Steele and K Taylor (eds), Legal Education in Asia (New York, Routledge) 107–36. Kang, DC (2010) East Asia before the West: Five Centuries of Trade and Tribute (New York, Columbia University Press). Katcher, S (2006) ‘Legal Training in the United States: A Brief History’ 24 Wisconsin International Law Journal 335–75. Konefsky, AS (2008) ‘The Legal Profession: From the Revolution to the Civil War’ in M Grossberg and C Tomlins (eds), The Cambridge History of Law in America, vol 2, The Long Nineteenth Century (1789–1920) (New York, Cambridge University Press) 68–105. Krishnan, J (2004) ‘Professor Kingsfield Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India’ 46 American Journal of Legal History 447. Lee, JH (2019) ‘The Introduction of the Law School System and the Structure of the Legal Profession in Korea: Status and Prospects’ 68 Journal of Legal Education 460–90. Macdonald, RSJ (1980–81) ‘Legal Education in China Today’ 6 Dalhousie Law Journal 313. Markovits, D (2015) ‘A New Aristocracy’ Yale Law School Commencement Address (May) law.yale.edu/ sites/default/files/area/department/studentaffairs/document/markovitscommencementrev.pdf. —— (2019) The Meritocracy Trap: How America’s Foundational Myth Feeds Inequality, Dismantles the Middle Class, and Devours the Elite (New York, Penguin). Martines, L (1968) Lawyers and Statecraft in Renaissance Florence (Princeton, Princeton University Press). Mazower, M (2012) Governing the World: The History of an Idea, 1815 to the Present (New York, Penguin Books).

Law as Reproduction and Revolution  589 McSweeney, TJ (2019) Priests of the Law: Roman Law and the Making of the Common Law’s First Professionals (New York, Oxford University Press). Minzner, C (2013) ‘The Rise and Fall of Chinese Legal Education’ 36 Fordham International Law Journal 334–95. Park, YC (2018) ‘Legal Education in South Korea: Does Continuance of the Old Judicial Examination Style Ruin the Dream of Ideal Legal Education?’ in A Harding, J Hu and M de Visser (eds), Legal Education in Asia: From Imitation to Innovation (Leiden, Brill Nijhoff) 176–96. Prest, W (1986) The Rise of the Barristers: A Social History of the English Bar 1590–1640 (Oxford, Clarendon Press). Rheinstein, M (1938) ‘Law Faculties and Law Schools – A Comparison of Legal Education in the United States and Germany’ 1938 Wisconsin Law Review 5. Riles, A and Uchida, T (2009) ‘Reforming Knowledge? A Socio-Legal Critique of the Legal Education Reforms in Japan’ 1 Drexel Law Review 13. Saegusa, M (2009) ‘Why the Japanese Law School Was Established: Cooptation as a Defensive Tactic in the Face of Global Pressures’ 34 Law & Social Inquiry 365. Shamir, R (1995) Managing Legal Uncertainty (Durham, NC, Duke University Press). Shapiro, M (1990) ‘Review of Lawyers in Society by Richard L. Abel and Philip S. C. Lewis; The Legal Profession in England and Wales by Richard L. Abel’ 38 American Journal of Comparative Law 683–716. Sommerlad, H (2007) ‘The “Social Magic” Of Merit: Diversity, Equity, and Inclusion in the English and Welsh Legal Profession’ 34 Journal of Law and Society 190. —— (2015) ‘Researching and Theorizing the Processes of Professional Identity Formation’ 83 Fordham Law Review 2325. Southworth, A (2008) Lawyers on the Right: Professionalizing the Conservative Coalition (Chicago, University of Chicago Press). Steinmetz, G (2007) The Devil’s Handwriting: Precoloniality and the German Colonial State in Qingdao, Samoa, and Southwest Africa (Chicago, University of Chicago Press). Stevens, RB (1983) Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill, University of North Carolina Press). Teles, S (2008) The Rise of the Conservative Legal Movement: The Battle for Control Over the Law (Princeton, Princeton University Press). Tiffert, GD (2015) Judging Revolution: Beijing and the Birth of the PRC Judicial System (1906–1958) UC Berkeley Electronic Theses and Dissertations, PhD History (University of California-Berkeley). Trubek, DM and Galanter, M (1974) ‘Scholars in Self Estrangement: Reflections on the. Crisis in Law and Development Studies’ 1974 Wisconsin Law Review 1062. van Caenegem, R (1987) Judges, Legislators and Professors (Cambridge, Cambridge University Press). Vauchez, A and France, P (2017) Sphère publique, intérêts privé, Enquête sur un grand brouillage (Paris, Presses de Sciences Po). Wang, Z, Liu, S and Li, X (2017) ‘Internationalizing Chinese Legal Education in the Early Twenty-First Century’ 66 Journal of Legal Education 238–66. Wilkins, DB, Trubek, DM and Fong, B (2020) ‘Globalization, Lawyers, and Emerging Economies: The Rise, Transformation, and Significance of the New Corporate Legal Ecosystem in India, Brazil, and China’ 61 Harvard International Law Journal 281–355. Zhang, T (2018) ‘The Development of Comparative Law in China’ in M Reimann and R Zimmerman (eds), Oxford Handbook of Comparative Law, 2nd edn (Oxford, Oxford University Press). Zhang, T and Ginsburg, T (2019) ‘Legality in Contemporary Chinese Politics’ 59 Virginia Journal of International Law 307–90.

590

25 Money Laundering, Corruption and the Legal Profession: An Exploration MIKE LEVI

I. INTRODUCTION

T

he introduction to the first volume (Sommerlad and Hammerslev Vol 1, ch 1) enjoins the national reporters to explore how and why the relationship between the international order, state, market, civil society and law and lawyers has changed over the last 30 years. This chapter responds in the context of my research on the development of anti-money laundering (AML) efforts since 1988 (Levi 1991; 2007). (A glossary of acronyms is appended to the text.) Efforts to control ‘global bads’ are both a political rhetoric and an object of empirical study through a range of methodologies: eg textual (including court cases, media stories, autobiographies, and official statements/legislation and regulation), interviews, real world experiments in mystery shopping, and participant/non-participant observation. Because of client confidentiality and legal professional privilege, observation of lawyer-client interactions is seldom possible. I will examine what is known about the role of lawyers in grand and mesolevel corruption and review the impacts – intended and unintended – that controls on money laundering and corruption (domestic and international) have or are claimed to have had on the legal profession and the practice of law. It is important to examine what roles lawyers play in facilitating crimes and how formal and informal regulatory mechanisms as well as criminal justice measures affect this. Grand corruption is a contested concept, without a legal definition. U41 notes that ‘Grand corruption typically takes place at the public sphere’s top tiers, and within the highest levels in private business. It includes actors that make rules, policies and executive decisions. It often involves large sums of money’. The NGO Transparency International (TI) (2016) defines it as occurring when: A public official or other person deprives a particular social group or substantial part of the population of a State of a fundamental right; or causes the State or any of its people a loss greater than 100 times the annual minimum subsistence income of its people; as a result of bribery, embezzlement or other corruption offence. (emphasis added)

1 U4, Anti-Corruption Resource Center is a permanent centre at the non-profit Chr. Michelsen Institute (CMI) in Norway, www.u4.no/topics/anti-corruption-basics/basics.

592  Mike Levi TI seeks to focus upwards on elites rather than on street level bureaucratic corruption, where incidence and conviction data are most readily available and measurable by crime/victim surveys. However, the TI construct would catch many mid-level officials and others whose gains from corruption would not be large enough to require a lawyer to facilitate the laundering (ie the concealment, movement or transformation) of the proceeds of crime. Most people who take bribes do so for friendship, favour trading, subsistence or enhanced consumption rather than major savings and reinvestment. A focus on the role of lawyers inevitably directs us to larger scale profits from crime, including grand corruption. II.  LAWYERS’ INVOLVEMENT WITH GRAND CORRUPTION AND LAUNDERING

External (or sometimes also in-house) lawyers can assist major crimes for economic gain (including grand corruption) in three principal ways: (1) lawyers as primary offenders, commonly as fraudsters on their own or in collaboration with co-offenders for their own benefit, including the avoidance of financial ruin or blackmail by serious criminals; (2) lawyers as facilitators of the crimes of others, providing legal services to corporate and other legal instrument fronts for crime commission and/or money laundering, without initiating the crimes but with consciousness/suspicion of the illegal aims; (3) lawyers as victims or neutral intermediaries who are hacked, either for exposure of their clients’ activities (as in the Panama-hosted Mossack Fonseca law firm) or as a wholly unwitting counterparty, eg in scams which divert funds from clients (such as in property sales) to third parties by the fraudsters impersonating the law firm as fake electronic intermediaries. Some lawyers are ‘ordinary crooks’, exploiting their technical ingenuity, access to funds, and imperfect surveillance by others, even devising national and transnational schemes as principals in frauds (Block and Weaver 2004) or against their clients – for example, over funds in estates or over which they hold power of attorney or are trustees.2 They sometimes use friendly and corruptible ‘offshore’ jurisdictions as the globalised equivalent of the nineteenth century ‘Hole in the Wall Gang’, though law-abiding lawyers and non-lawyers also use offshore jurisdictions (Levi 2012a; Rostain and Regan 2014). Indeed, Rostain and Regan (2014) focus mostly on abusive tax shelters by the global mega-rich, particularly by US-based accountants and lawyers, and the creation of complex financial instruments that made abusive shelters harder to detect. By 2004, the tax shelter boom was over, leaving failed firms, disgraced professionals, and prison sentences in its wake. Their tale remains relevant today, as lawyers and accountants continue to face intense competitive pressure and regulators struggle to keep up with accelerating financial risk and innovation.

2 See, for example, www.smh.com.au/national/nsw/sydney-solicitor-jailed-for-stealing-more-than-6-million-fromclients-20210316-p57b6q.html. Solicitor O’Brien defrauded two clients of A$6 million intended for charities, made small donations to them, used the letterheads from their replies to create false letters thanking him for the larger amounts and created false ledger entries indicating the payments had been made. The crimes were discovered when a law firm partner demanded to know where O’Brien got the money to buy his multimillion-dollar home. O’Brien claimed his wife had been the beneficiary of an estate, but the sceptical partner had an accountant audit the firm’s trust accounts, uncovering the misappropriation, which was reported to the Law Society. O’Brien was jailed for a minimum of six years. Although there was no legal obligation on the partner to do this, he presumably was motivated by fear of reputational risk and the potential financial loss to the firm and/or insurers.

Money Laundering, Corruption and the Legal Profession: An Exploration  593 Many ‘offshore’ jurisdictions – in the Caribbean, South Pacific, and near the UK, for e­ xample – were encouraged by colonial powers such as the UK and the Netherlands to develop their financial sectors, not least to reduce the need for direct economic subsidies. Without some comparative advantage in confidentiality, their financial sectors would be far less profitable, and their dependence on fees and income from them is a rationale for their resistance to lawyer and other regulation, especially when they see AML as being unfairly applied in favour of the powerful countries. Every country is offshore to other countries: the label is generally applied pejoratively to small and politically weak jurisdictions, whose former or current colonisers offer some political protection – though this patronage protection from the UK has declined following Brexit. Law firms like Mossack Fonseca (founded in 1977 and dissolved within two years of the Panama Papers exposés in 2016, closing its 44 offices) and Appleby’s (far from dead despite the Paradise Papers exposés)3 have or had well-embedded practices in a number of such jurisdictions. Lawyers have not generally been the central targets of anti-corruption campaigns, since corporations, kleptocrats and secrecy havens tend to be the ‘folk devils’ on which the NGOs focus. However, they have become the target in more recent critiques (eg Judah and Sibley 2018). In grand corruption (and money laundering generally), lawyers are seen as ‘enablers’, although this label may reflect the cynical view of the legal profession among the general public, law enforcement, media and politicians. Transactional lawyers’ principal task is to execute the requests of their clients and advise them of the implications of contemplated actions and suggest strategies without helping them to commit crimes. Laundering needs to be only as skilful or complex as those who enforce the law, which can vary over time and place. The lawyers who incorporated the Special Purpose Vehicles used by Enron’s leaders to enrich themselves at the expense of shareholders, employees and taxpayers before the gigantic fraud unravelled probably did not know they were assisting insider scams (McClean and Elkind 2013). This patina of integrity is part of the comparative advantage that legitimate or apparently legitimate corporations and executives enjoy when commissioning legal and other services, which presents the problem of monitoring ongoing clients both for the law firm itself and for the external surveillance of how well law firms and bankers are scrutinising clients. An analysis by Ensign and Ng (2016) observed that pooled law firm accounts were used by suspects in a multibillion-dollar scandal involving a Malaysian state investment fund known as 1MDB. They also played a part in a Florida Ponzi scheme, a case related to an official of Equatorial Guinea, and a dozen other US money-laundering cases over the past decade: Law firms lump together client money they are holding for short periods, such as while real estate sales are pending, into pooled bank accounts, and the law firms face no requirement to disclose whose cash is in the accounts. Banks say they generally see only a law firm’s name. Money often stays in the

3 Appleby Global Services’ Cayman Islands website (www.applebyglobal.com/locations/cayman-islands) is truthful but makes no mention of its grey-listing by FATF as a higher risk jurisdiction for money laundering in February 2021 when it states (18 October 2021) ‘The Cayman Islands have branches of 40 of the world’s 50 largest banks. It is the leading offshore jurisdiction for the registration of investment funds and is the second largest captive domicile in the world with more than 700 captives. The jurisdiction is also recognised in providing trusts, structured finance, company and partnership formation and vessel and aircraft registry services. The availability of expert professional advice and the reputation for being a respectable and well-regulated financial centre with a stable and business-friendly government have contributed to the success of Cayman’s financial services industry. Listed on the OECD’s white list, service providers adhere to all relevant international compliance standards and are committed to supporting global efforts to fight financial crime …’

594  Mike Levi accounts for only a few days or weeks. At the request of law firms’ clients, funds can be sent from the accounts to other parties, with scant transparency. While banks and other firms that move money across borders face heavy pressure to alert regulators to suspicious activity, US law firms protect the confidentiality of their pooled accounts in the name of attorney-client privilege.

However, ‘playing a part’ does not mean lawyers had guilty knowledge of the primary offenders’ goals. A contested area of contemporary regulation – and one actively promoted by the Financial Action Task Force (FATF) since it was created in 1989 – is the requirement that all regulated sectors who handle money (including lawyers): (a) identify persons doing business; and (b) assess the sources of their wealth and the funds involved in particular transactions. This includes identifying the beneficial ownership of businesses and other sources of funds, in particular in the case of politically exposed persons (PEPs) who hold high public office (and their families), though variation between countries in which roles are and are not PEPs imposes additional costs and time in scrutiny. Although purchasing some corporate vehicles may be uncomplicated, lawyers are especially skilled at minimising transparency (see eg Sharman 2017). If a PEP can significantly influence a country’s Treasury, there is no need to bribe its staff: in addition to the custom of obedience, threats – including loss of employment or homicide or harm to relatives – can induce compliance. And however independent the Financial Intelligence Unit (FIU) – to which suspicious activity reports are sent – is or appears to be (a requirement for it to be a member of the Egmont Group of 166 national FIUs), prosecutors might not be independent of government, so a corrupt PEP may not fear being prosecuted locally, though in principle they might be prosecuted elsewhere for money laundering, eg in Switzerland, the US or the UK. Furthermore, Mutual Legal Assistance is often severely delayed or denied to countries seeking to act against the PEP and their assets held overseas. A World Bank analysis of 213 ‘grand’ corruption cases between 1980 and 2010 found that over 70 per cent (150) involved the use of at least one corporate vehicle (a total of 817), which partly or wholly concealed beneficial ownership. The UK and its Crown dependencies and overseas territories had the second highest number of registered corporate vehicles, behind the US (van der Does de Willebois et al 2011) (though UK regulators and politicians have no direct control over ‘their’ offshores). The study gave multiple examples, including: (1) In 2002, Kenya invited bids to replace its passport printing system, rejecting a €6 million bid from a French firm and signing a contract for five times that amount (€31.89 million) with Anglo-Leasing and Finance Ltd, an unknown UK shell company with a post office box in Liverpool which proposed to subcontract the actual work to the French company. (2) In March 2010, DaimlerChrysler Automotive Russia SAO (DCAR) pleaded guilty to conspiracy to bribe foreign officials and bribery of foreign officials. There were 25 sets of improper payments to bank accounts in Latvia, Switzerland, the United States and unnamed jurisdictions in the name of some of the 27 involved companies registered or having addresses in the Bahamas, Costa Rica Cyprus, Ireland, Seychelles, United Kingdom, and the US (California, Delaware and Florida). The grand corruption investigations show the regular use of professional surrogates, often Trust and Company Service Providers (TCSP) offering nominees and trustee services; lawyers also fulfilled such roles (van der Does de Willebois et al 2011: 94–95), usually involving some personal interaction with the client. Chaikin and Sharman (2009: 170–71) note that Marcos’s confederates owned several Filipino banks during his Presidency, allowing much of the laundering of his looted wealth

Money Laundering, Corruption and the Legal Profession: An Exploration  595 to be done domestically, at least initially. Millions of dollars in cash were sent to Hong Kong, deposited in local bank accounts, and then wired to accounts in Switzerland and the US. Lawyers and financial advisors for the ruling family made extensive efforts to obscure the money trail. Bank accounts and other assets were held in the names of companies from Panama, Switzerland and the Netherlands Antilles, as well as trusts in Hong Kong and the Cook Islands and Liechtenstein foundations. Swiss bank accounts that were first held in the name of Ferdinand and Imelda Marcos were transferred to a series of 16 Liechtenstein foundations with signatory powers vested in a Swiss lawyer. The foundations were periodically dissolved and the accounts transferred to a newly-created company and then back to a new foundation to further disguise the money trail. Because the Swiss lawyers intermediated between the Marcos family and the banks, financial records were further covered by legal professional privilege, in addition to the strict bank secrecy then permitted in Liechtenstein and Switzerland (though these arrangements were not disclosed by the Swiss). Sharman (2017) reported that the bankers and lawyers in Switzerland and elsewhere who received and hid the Duvaliers’ wealth prior to 1986 were almost certainly deliberately aiding and abetting grand corruption yet not violating the prevailing laws. In the much earlier looting of Nigerian funds by then-President Abacha, UK law firm Matthew Arnold & Baldwin acted for the alleged front-man for the Abacha family as well as a member of the Abacha family who used a different name, who bought three leases of London properties in 1997–98. A partner at the firm said: ‘It is possible we were handling some of this money that the Nigerian government alleges was stolen and salted away all over the world’ but claimed there was no cause for suspicion at the time. In February 2001, however, when the firm received a payment into its client account from Standard Chartered Bank, it could think of no reason why this money had been deposited and immediately submitted a Suspicious Activity Report to the UK’s Financial Intelligence Unit. The partner commented: ‘The firm has nothing to be embarrassed about – we have procedures in place and we implemented them’.4 Global North law firms involved in grand corruption cases are not always the elite. Sometimes, perhaps especially in Nigerian cases, small firms of lawyers and intermediaries are selected and ‘groomed’ for their roles. The most prominent example was when a Halliburton subsidiary paid bribes to secure a £4bn contract to build a natural gas plant on Bonny Island in Nigeria. Jeffrey Tesler, a 63-year-old solicitor who operated from run-down offices in Tottenham, north London, admitted acting as middleman for the consortium, routing payments through bank accounts in Monaco and Switzerland between 1994 and 2004. In one case, he arranged for $1m in $100 notes to be loaded into a pilot’s briefcase and delivered to a politician’s hotel room to finance a political party in Nigeria, which won the election. Following a failed contested extradition to the US, Tesler agreed to forfeit $148,964,568.67 – the largest Foreign Corrupt Practices Act forfeiture by an individual to date – from accounts in 12 Swiss and four Israeli banks. On 23 February 2012 he was sentenced to 21 months in prison followed by two years of supervised release and a $25,000 fine and was later struck off by the Solicitors Disciplinary Tribunal. He described the grooming process in his sentencing hearing: I wish I could turn the clock back to 1993 and undo the grief and suffering I have caused this court, society, my community, my friends and especially my family. In the late ’70s and’ 80s I was a simple lawyer with a mostly British client base. In due course I met and advised Nigerian clients in their property transactions in the United Kingdom. Eventually, I became an advisor and liaison between



4 See

www.lawgazette.co.uk/news/firm-reveals-link-to-abacha-case/35338.article, 26 October 2001.

596  Mike Levi the Nigerian elite and the TSK joint venture and the project at issue in this case. I relished the opportunity to talk with prominent government officials and leaders of multinational corporations on the world’s largest civil construction project in 1993.

Investigative journalists added: The files obtained by Le Monde and ICIJ show that nine people, including members of the Tesler family and Nigerian nationals, held a variety of roles with accounts at HSBC Private Bank (Suisse) between 1990 and 2003 – months before the completion of the gas plant. Nine of the 12 accounts instructed HSBC to keep all correspondence under lock and key in a bank safe. Despite Tesler being under investigation since 2003, HSBC continued to offer advice, services and cash withdrawals to Tesler and his family, whose accounts with the bank totalled tens of millions of dollars at one point in 2006/2007. HSBC advised the family even though its individual files for Tesler and those close to him include references to ‘criminal cases’ and ‘the Tesler affair’.5

In other cases, lengthy connections – for example during liberation struggles – are turned into conduits for embezzled funds. (No data are available on how many attempts are rejected by law firms.) Mr Meer, a partner in Meer Care & Desai, a boutique London law firm that acted for Nelson Mandela and in other high-profile African and Indian cases, was accused of dishonestly facilitating the transfer of millions of pounds of corruptly obtained funds out of Zambia on behalf of former President Chiluba. In a civil case heard at the High Court in London on behalf of the Zambian Government, Mr Meer stated that he had been asked by Mr Kabwe, an accountant he had long known and trusted, to provide services for the Zambian Security Services. In 1995 Mr Kabwe told Mr Meer that he was setting up a new company, Access Financial Services Ltd (AFSL), to provide financial services to businesses in Zambia and wanted Meer’s firm to be AFSL’s London solicitors. In 1995–96, there were 18 payments identified as ‘FM Kabwe Commercial’. Mr Meer said in his Witness Statement that he probably ought to have identified these as relating to AFSL, not Mr Kabwe. Mr Meer implemented Mr Kabwe’s instructions without question, letting him use the firm’s accounts as a quasi-bank. Mr Meer said he trusted Mr Kabwe who, he believed, was trusted by the Zambian Security Services (ZSIS). Because those two had agreed about what Mr Kabwe was to do on behalf of ZSIS and what payments were to be made to whom, it was not his job to enquire about the payments, which he continued to make from 1996 to 2002. The High Court ruled that Mr Meer had behaved dishonestly, disregarding Law Society advice not to allow client accounts to be used as bank accounts. Overturning the High Court judgment, the Court of Appeal held that allegations as serious as fraud had to be proved by a balance of probabilities. The more probable explanation for Mr Meer’s conduct was that he was honest if foolish (sometimes very foolish) and far from competent in his understanding and observance of relevant professional duties, including money laundering compliance. While Mr Meer should have acted differently, his failure to do so did not show he knew or suspected what was happening, choosing not to ask questions in order not to be told the truth.6 So the lawyers were ‘let off’, and a Zambian court refused to enforce the English High Court ruling that Mr Chiluba return the $46m he allegedly stole during his 1991–2001 presidency. Zambia also acquitted Chiluba of criminal charges for siphoning off nearly $500,000 of public funds; and his wife’s conviction for receiving stolen funds was quashed by the Zambian High Court. The Law Society of England and Wales and



5 See www.icij.org/investigations/swiss-leaks/files-open-new-window-182-million-halliburton-bribery-scandal-nigeria/.

6 Attorney

General of Zambia v Meer Care and Desai (A Firm) [2008] EWCA Civ 1007.

Money Laundering, Corruption and the Legal Profession: An Exploration  597 the Solicitors Regulation Authority now make it abundantly clear to solicitors that they must not allow their client accounts to be used as a banking service on their clients’ behalf, so similar facts probably would lead the Court of Appeal to rule differently today. A UK solicitor, Bhadresh Gohil, was convicted in 2010 for helping James Ibori, governor of Delta State in southern Nigeria 1999–2007, channel stolen funds through shell companies and offshore accounts and purchase assets such as an English country house and a $20 million private jet (although police intervened before its delivery). He also masterminded a fraud in which $37 million in fake consultancy fees was stolen from two Nigerian states in connection with the sale of their stakes in a telecoms company. Sentencing him to seven years’ imprisonment, the judge observed: ‘it is said the real villains are in Nigeria, but this fraud required special expertise and you lent yourself to it’.7 While he was in prison, the UK government paid him £20,000 to settle an action against the Crown Prosecution Service for unlawfully detaining him in prison for 33 days. He also alleged that the Metropolitan Police International Corruption Unit had been corrupt, though this was rejected after an extensive internal investigation. The Court of Appeal rejected his claim that the prosecution had improperly withheld information, finding he had no right to reopen the case.8 A decade later, the attempt to confiscate up to $39 million from Gohil had not been resolved, though the UK agreed in 2021 to give Nigeria £4.2 million of Ibori’s confiscated money. Lord et al (2019) comment that bigger firms claim to have excellent due diligence procedures, but they often collaborate with other parties. For example, a notary mentioned to the researchers that if a client is referred from a trusted source, their due diligence is not very extensive. A Dutch notary mentioned in the Panama Papers was disciplined for enabling the creation of a corporate vehicle used to launder money. The client (based in Panama) had been referred by a Dutch Trust provider with whom they had worked frequently. Given time constraints and the extremely competitive environment, the notary failed to do proper due diligence. Because not all UK corporate vehicles require human persons to be directors or partners or to hold UK bank accounts, foreign actors can set up UK corporate vehicles (on behalf of UK actors too) for which bank accounts in other jurisdictions can be created and through which illicit funds can be siphoned. In addition, loopholes allowed account-filing obligations to be circumvented, for instance by creating a limited company with a Limited Liability Partnership as the sole or second general partner, though now, all accounts are supposed to identify beneficial owners. The abuse by organised criminals and kleptocrats of Scottish limited partnerships to launder money and the slow response of the government and regulators is legendary, though their use began to drop as controls were threatened.9 Other cases have involved law firms in the United States. Global Witness (2018) has highlighted the ways in which Jho Low, a defendant in the now notorious multi-billion-dollar 1MDB fraud case, used the (lawful) lack of due diligence by US lawyers to shift approximately $368 million from his Good Star account in Switzerland into the US, through law firm Shearman & Sterling’s client account. He held funds in the client account for over a year, using them to purchase luxury properties and his private jet, pay gambling expenses, and rent private yachts and jets, transferring $25 million to accounts at Caesars Palace and the Venetian Casino in Las Vegas and spending over $4 million on private jet rental. Low used a client account with the law firm DLA Piper to buy a $200 million stake in the Park Lane Hotel in New York.



7 See 8 R

guardian.ng/news/uk-to-seize-39-million-from-lawyer-who-helped-james-ibori/. v Gohil and Preko [2018] EWCA Crim 140. www.bellingcat.com/app/uploads/2019/09/Smash-and-Grab-The-UKs-Money-Laundering-Machine.pdf.

9 See

598  Mike Levi The  law firms behaved legally, claiming they had no reason to suspect that the funds were proceeds of crime.10 Though IGOs and NGOs have focused mainly on global laundering, these are not the only contexts in which lawyers serve the interests of grand or meso corruption; indeed, paradoxically, lawyers within the Global South have been relatively neglected. Manji (2012: 477; 2020) discusses five ways in which Kenyan lawyers assisted in illegal local and national land grabs for their own enrichment and those of other elites, via manipulation of letters of allotment: First, their detailed knowledge of, and extensive networks within, the infamously chaotic Ministry of Lands and Settlement enabled them to identify suitable plots of public land to be targeted for illegal allocation. Second, with the help of lawyers familiar with Kenyan company law, those involved in land corruption were able to ensure that their identities were carefully concealed. The two annexes to the Ndung’u report are filled with the names of companies clearly set up in order to shield the names of those involved in land grabbing from public scrutiny. Third, lawyers oversaw and encouraged a thriving market in letters of allotment which came to be treated as tradable land documents, although lawyers knew they did not have this status in law. Fourth, members of the legal profession used their networks in the Ministry of Lands and Settlement improperly to acquire changes of use that allowed land that had been reserved for public purposes such as schools and medical clinics, and most commonly for roads, to be sold for residential or commercial use. Finally, lawyers often advised clients how to regularise land scams after the event.

Despite the recommendations of a Commission, no action was taken by the professional bodies or the courts. Kouwagam and Bedner (Vol 1, ch 37) refer to those who act for wealthy Indonesian businesspeople and elites as ‘family lawyers’ because they represent the entire family and have a higher status than ‘fixers’ of economic disputes, who pay off judges to secure favourable rulings. In grand corruption cases, however, the lawyers targeted seem to be mainly international firms, perhaps because the locals are not sufficiently well connected to do international work. This may understate the use of local lawyers since, as Levi (2012b) has argued, most kleptocrats need to keep significant funds and assets locally to stay in power. Thus in-country commercial and private real estate and corporate deals may be handled by local firms, without forming part of international criminal or asset recovery cases or receiving the publicity generated by Global Witness, Transparency International or Sherpa.11 III.  THE ANTI-MONEY LAUNDERING MOVEMENT: THE CONTEXT OF LAWYER REGULATION

Concern about lawyer participation in crime antedated the AML movement, which accelerated after the creation of the Financial Action Task Force in 1989. It was implicit in the OECD Anti-Bribery Convention 1997, which focused on criminalisation of transnational bribery and its enforcement (Pieth et al 2013), though its primary targets were countries and transnational businesses rather than law firms. In various arenas there has been official concern about lawyers ‘going native’ (voluntarily or under pressure). Work involving global crime comes to

10 Mere suspicion would not have been enough to render their behaviour unlawful. According to 18 US Code §§ 1956–57, criminal liability for money laundering requires knowledge of the criminal origins of assets, so (unlike in the UK) suspicion is not enough. Having a suspicion and yet transacting without adequate CDD would usually be a violation of compliance duties in other jurisdictions. 11 The French anti-corruption NGO: see www.asso-sherpa.org/en.

Money Laundering, Corruption and the Legal Profession: An Exploration  599 law enforcement and mutual assistance authorities in two ways: from cases begun at home or abroad, and from a variety of sources, including Suspicious Activity or Transaction Reports (SARs/STRs), organised crime investigations, and journalistic exposés. Lawyers are involved as: (a) legitimators of schemes; (b) the sole persons licensed to transfer property;12 (c) persons able to establish corporations, trusts and other vehicles to conceal ownership and funds transfer; and (d) laundering assistants who introduce criminals to financial institutions as their clients and lend criminals their accounts for cash deposits that would generate suspicion (or are over the reporting threshold). In some jurisdictions (such as Sweden) anyone can transfer real property, but most substantial transactions still use lawyers. Lawyers have never been the primary targets of these attacks on the ‘dark side of globalisation’, which focus on banks and other money transfer agents. However, lawyers are useful to some components of corruption where the amounts involved are large enough to justify their ability to construct corporate and other legal entities that obscure ownership and control of assets. Lawyers’ offices and files also may often shield clients from surveillance because of the sacred quality of lawyer-client interactions, which can be exposed in democratic countries only where lawyers are ‘reasonably’ suspected of assisting their clients or others in ongoing or future crimes.13 Nevertheless, because of this potential ‘crime-enabling’ role, controls over the legal profession constitute part of the ‘responsibilisation’ process in which the policing of legal obligations has been largely outsourced to the private sector, with consequences for elite corporations and professionals. This outsourcing is paralleled by the use of other sources of intelligence, eg news media reports, wiretaps, Covert Human Intelligence Sources, interviews with people who may give information in an attempt to evade or reduce penalties, whistleblowers and serendipitous stops and searches. The FATF, OECD (under its anti-bribery convention) and the UN (under the Convention against Corruption) are important inter-governmental organisations whose ‘soft law’ monitoring mechanisms aim to reduce serious crimes for gain and terrorism (Levi and Gilmore 2002; Halliday et al 2020). The extension of money laundering predicate offences from drug trafficking and (conventionally defined) ‘organised crime’ to include transnational bribery and foreign tax evasion and to give special attention (Enhanced Due Diligence) to PEPs brings lawyers and other elite professionals and financiers within the ambit of criminal and regulatory penalties. The rest of this chapter will examine the history of these control attempts, their success or failure (and the reasons for those outcomes), and their ultimate impact. I seek to illuminate the types of criminal activity (from drug trafficking and social welfare frauds to kleptocratic national and international property purchases and business deals) that may involve lawyers. I then show how they have been affected by evolving national regulation and criminal law, discussing the interaction between political pressures, law-making and legal professional cultures in the Global North and their implications for the Global South.

12 In continental European jurisdictions, this may have to be done by a notary, who has a special constitutional role and fewer client confidentiality restrictions, as well as more supervision. 13 The seizure of documents from lawyers is becoming less uncommon. For example, in Germany, strong limits on the seizure of documents by virtue of lawyer-client privilege apply only in criminal, not in civil, cases. In England and Wales, privilege may also be more limited if the documents originate from a third party. There is a trend to distinguish between client communication and documents produced by third parties, even if kept on behalf of the client. See eg www.allenovery.com/en-gb/global/news-and-insights/publications/internal-investigations-documentsseised-in-lawful-law-firm-raid; ul.qucosa.de/api/qucosa%3A33904/attachment/ATT-0/; www.dlapiperintelligence. com/legalprivilege.

600  Mike Levi In 1986, when the legal regulation of money-laundering began in the Global North, British banking representatives had to take a newly devised US course to learn what money-laundering was (or what American bankers believed it to be).14 Over three decades later, there are (at least) monthly conferences and many more online presentations around the world updating bankers, regulators, legally required corporate Money-Laundering Reporting Officers and, increasingly, independent lawyers and accountants on changes in regulation and ‘money laundering typologies’, whose viewing is considered essential to comply with national legal regulations on staff training. It would be a mistake to see the international enforcement regime as solely a product of AML organisations. France, Germany, Japan and the UK (and smaller governments) have been very publicly told by the Chair of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997 that they must amend proposed or extant legislation and improve implementation to comply with the Convention.15 In addition to regular reviews by the FATF, OECD, Council of Europe, European Commission, Organisation of American States and UNCAC using self-assessment and mutual/expert evaluation methodologies, there are a host of anti-corruption consultants and experts touting their national or intergovernmental organisation (eg World Bank, UNODC) approved ‘solutions’. The latter usually take the form of legislation and infrastructural bodies such as Independent Commissions against Corruption – now numbering between 84 and well over 100 – that are internationally acceptable and therefore emulated by jurisdictions seeking respectability and conformity with the UN Convention against Corruption 2005 (with 140 signatories and 188 parties as of August 2021), even though not mandated by it.16 Measures against corruption and to enhance financial integrity, including increased pressure on the legal profession not to enable grand corruption, are now entrenched parts of the sustainability agenda (FACTI 2021). Prior to 2000, few in the mainstream anti-corruption and international development movements connected grand corruption with AML, or at least promoted policies reflecting such awareness: it was only during the Nigerian Abacha scandal in the 1990s that the awareness percolated through NGOs that AML could prevent crime or recover the proceeds (see Commission for Africa 2005; Heimann and Pieth 2017). Because money laundering commonly features in all crimes for significant gain, AML has been integrated into all these regulatory mechanisms. Some countries that score high on AML score lower on anti-corruption measures (though not vice versa); but one difference with many other social policy domains is that the ‘problems’ of corruption, transnational organised crime and money laundering are actively constructed by elites in the ‘threat assessment industry’, who have an interest in amplifying or (when accused by others) sometimes denying them.17 One example of this amplification is the estimated global figure or range for money-laundering, presented in speeches and papers by official bodies and endlessly regurgitated as ‘facts by repetition’ by the media because of the authority of their sources and because they fit the imagery of global evil shared by left leaning NGOs. In wonderfully circular logic, the ‘data’ are then used to justify the measures proposed to deal with this problem. I accept that the figure is very large, but we have no defensible

14 Author interview with the former Secretary of the British Bankers’ Association, 1989. 15 See OECD corruption website (www.oecd.org/corruption/oecdantibriberyconvention.htm) for country reports. 16 See www.acauthorities.org; https://rm.coe.int/ncpa-analysis-report-global-mapping-acas/16809e790b. Anticorruption efforts bring not only respectability but also foreign funding and technical assistance from the UK, US and World Bank. 17 The OECD used the absence of prosecutions for transnational corruption to claim that the UK was not compliant, rather than accepting there was no corruption.

Money Laundering, Corruption and the Legal Profession: An Exploration  601 metric, even in the best-researched countries such as the US (Reuter 2013; for a sceptical review of corruption statistics, see Wathne and Stephenson 2021). The political ‘success’ of the AML regime (Nance 2018) seems impervious to the lack of evidence of its impact in serious crime reduction or asset recoveries. IV.  REGULATING THE LEGAL PROFESSION FOR ANTI-MONEY LAUNDERING AND CORRUPTION

Whereas regulation of global banking (if not of banking behaviour) has been homogenised under pressure from the FATF, EU, and national governments, the regulation of legal professions varies by nation. Legal professional privilege (or ‘professional secrecy’ in continental Europe) is jealously defended as one of the most closely guarded areas (though the British accept that lawyers in many contexts function as commercial enablers to whom no professional privilege should attach). The evidence about how frequently or rarely (rotten barrel or apple) the legal profession is consciously engaged in money laundering is inconclusive: the electronic surveillance that has become ubiquitous in some jurisdictions (but is very seldom applied inside banks, especially not in initial meetings between clients and bankers) cannot extend to lawyer-client meetings, and strong evidence is needed to justify seizing privileged material on the ground that the ‘crime/fraud exception’ negates privilege.18 Having implemented measures to control banks and other regulated financial services businesses, FATF turned to Designated Non-Financial Businesses and Professions (DNFBPs), who were identified as gatekeepers to domestic and international financial systems and could be unwitting (or intentional) participants in money laundering and terrorist financing. Lawyers engaged in virtually all trust and estate, business, real estate and other transactions were a significant component of this gatekeeper initiative, which began in 2004 with FATF’s publication of its Report on Money Laundering Typologies 2003–2004 (2004). In the ensuing ten years, FATF met with representatives of the legal profession to discuss, develop, and implement similar guidance for lawyers. Recommendations 22 and 23 urge FATF member nations to adopt laws, rules, and regulations that impose due diligence and suspicious transaction reporting obligations on lawyers performing trusts and estates work, among other services. Representatives of the legal profession (including notaries in civil law jurisdictions) collaborated with FATF to prepare a document setting forth a ‘Risk Based Approach’ (RBA) to address this concern. The ‘RBA for Legal Professionals’, adopted by FATF in 2008 and updated in 2019, aims to preserve the traditional confidentiality between lawyers and clients while recognising that lawyers may unwittingly assist clients in money laundering or terrorist financing. (Knowing assistance is simply criminal and not covered by regulatory requirements, presumably because lawyers are unlikely to self-report their own criminality.) FATF urged legal professionals to file suspicious transaction reports (STRs) without informing a client or prospective client (‘no tipping-off’), a practice generally adopted in Europe (Vogel and Maillart 2020).19

18 For a good example, see Super Worth International Ltd v Commissioner of the Independent Commission Against Corruption, HCMP1320/2012, 3 July 2015. 19 But extensive exceptions to the reporting obligation apply under EU and most national laws; see Art 34(2) of the Fourth Anti-Money Laundering Directive: ‘Member States shall not apply the obligations laid down in Article 33(1) to notaries, other independent legal professionals, auditors, external accountants and tax advisors only to the strict extent that such exemption relates to information that they receive from, or obtain on, one of their clients, in the

602  Mike Levi The American Bar Association (ABA) initially focused on educating lawyers regarding unwitting involvement in the hope that criminals would be less able to find lawyers willing to assist unlawful schemes. The International Bar Association (IBA) reported (2014: 47):20 In a recent empirical study regarding terrorist financing, US law firms performed among the best among surveyed entities in refusing requests for help in suspicious circumstances. This is a good illustration of approaches that are ‘different’ to those in the 40 Recommendations and are working effectively in practice.

The notion of ‘effectiveness’ is left wholly implicit in the statement above, and compliance with respect to terror financing may not generalise to other offences (or even to far right/ white supremacist terror financing, which was not on the FBI’s radar until the end of the last decade). This ‘professional exceptionalism’ may be connected with professionals’ conviction of their own virtue. A survey presented at the International Bar Association conference in 2010 found that, when asked whether corruption was a major problem facing their legal profession, no Canadian lawyer answered yes, compared with just under 40 per cent in the UK and in the US and over 70 per cent in CIS, Africa, Latin America, the Baltic States and Eastern Europe.21 More than a fifth of all respondents said they had been or might have been approached to act as an agent or middleman in a transaction that could reasonably be suspected to involve international corruption. Nearly a third said a legal professional they knew had been involved in international corruption offences. Some 43 per cent knew that their bar associations provided anticorruption guidance for legal practitioners, but only a third of these said such guidance specifically addressed international corruption. More than two-thirds said that foreign clients had not subjected their firms to anticorruption or anti-money laundering due diligence. A global report by the IBA, ABA and CCBE (representing European Bar Associations) expressed its serious commitment to integrity (IBA 2014: 7). The IBA Public and Professional Interest Division has an Anti-Money Laundering Legislation Implementation Working Group focused on compliance with AML legislation. The ABA’s Task Force on Gatekeeper Regulation and the Profession was created in 2002 to analyse and coordinate the response to AML enforcement initiatives by the federal government and other organisations that could adversely affect the lawyer-client relationship. It has actively lobbied against tougher AML regulation of the US legal profession, assisted by the fact that each state regulates its own profession. The CCBE (2018) has had many discussions with FATF and the European Commission about AML regulations and directives. It has worked alongside other European organisations and the European Commission to document the implementation of the Recommendations within the EU and answer questions on related issues, such as tipping-off, the jurisdiction of national bar associations over reporting obligations, and the circumstances under which a lawyer should report to authorities. In addition, the Law Society of England and Wales created its Money Laundering Task Force (MLTF) in 2000, following discussions with government, law enforcement, other regulatory bodies and the profession. That year it issued official guidance for solicitors, periodically revised and extended. Resistance to lawyer obligations towards the state is not motivated solely by economic self-interest: experience with authoritarian course of ascertaining the legal position of their client, or performing their task of defending or representing that client in, or concerning, judicial proceedings, including providing advice on instituting or avoiding such proceedings, whether such information is received or obtained before, during or after such proceedings.’ 20 There is no reference given for the study, but this could be a rather selective reading of Findley et al (2014) since, on other measures related to ‘ordinary’ and ‘grand corruption’ money laundering, US financial services firms and lawyers performed poorly when approached by the researchers experimentally. 21 Risks and threats of corruption and the legal profession: Survey 2010, www.anticorruptionstrategy.org.

Money Laundering, Corruption and the Legal Profession: An Exploration  603 regimes demonstrates the value of professional privilege/professional secrecy. However, most transactional lawyers are engaged not in defending human rights but in commercial activities, where (perhaps especially in the US and larger international law firms) maximising profit is the primary concern of them and their clients. When taxation (or seizure of proceeds of crime enforcement) becomes a violation of property rights is a normative question: governments and those they seek to tax (and their lawyers) may have very different views about the appropriate boundary. A.  Regulation in Different Countries This chapter will focus on six jurisdictions: three common law (Australia, England and Wales and the United States) and three civil law (France, the Netherlands and Switzerland). For reasons of practicality, it excludes the Caribbean region, which handles many ‘offshore’ transactions. Summarising the regulation of the legal profession in a range of European jurisdictions, Vogel and Maillart (2020: 809) stated: Legal professionals, in particular lawyers and notaries, and tax advisors fall within the scope of the FATF Recommendations and the [Fourth Anti-Money Laundering Directive] and are subject to AML/ CTF regulations in all the jurisdictions analysed. It should be noted, however, that at the moment tax advisors and legal professionals in Switzerland fall within the scope of the AML law only insofar as they act as financial intermediaries, i.e. when they qualify as “persons who on a professional basis accept or hold on deposit assets belonging to others or who assist in the investment or transfer of such assets”. Such professionals are therefore not subject to the AML law when their work is limited to preparing or executing non-financial aspects of the transactions concerned. In particular, this means that acts related to setting up companies, legal persons and legal arrangements, in which lawyers, notaries or fiduciaries may be involved without being involved in transactions such as transfers, are outside the scope of the AML law. In contrast, under the [Fourth Anti-Money Laundering Directive] as well as under German, Italian, Spanish and UK laws, legal professionals are deemed obliged entities when they participate, whether by acting on behalf of and for their client in any financial or real estate transaction, or when they assist their clients in the carrying out or the planning of transactions concerning: (i) the buying and selling of real property or business entities; (ii) the management of client money, securities or other assets; (iii) the opening or management of bank, savings or securities accounts; (iv) the organisation of contributions necessary for the creation, operation or management of companies; or (v) the creation, operation or management of trusts, companies, foundations or similar structures.

B.  European Jurisdictions i. France Much of the French legal profession has focused on its CDD obligations. All STR communications must be sent to the elected head (bâtonnier) of one of the 163 regional bars, who alone is authorised to contact the FIU, Tracfin. The bâtonnier is not obligated to communicate all STRs to the FIU but should rather ‘assist colleagues, verify reports and ensure that no rules on professional secrecy are infringed’ (CNB 2020: 28). The bâtonnier may engage in a confidential dialogue with the reporting advocate, which is not disclosed to the FIU. Whatever the bâtonnier and FIU do, the reporting lawyer must immediately terminate representation. ‘[F]or the French bar authorities, the very expression by a lawyer of her suspicions in writing means that

604  Mike Levi she is no longer able to carry out her duties objectively and independently, and must therefore cease to act’ (Nougayrede 2019: 357). At least until recent changes responding to EU Article 3(1)(3)(b) of the Fourth Anti-Money Laundering Directive (quoted above), the reporting obligation existed mainly when the advocate was acting in real estate or corporate transactions or assisting in their planning. The ‘legal advice’ safe harbour for other work does not apply when lawyers know they are being used for the purpose of money laundering or financing terrorism – in which case the lawyer must file a report. The third guidance of the Conseil National des Barreaux (CNB 2020) emphasises that ‘knowledge’ must result from ‘concrete and objective’ facts and circumstances. A lawyer who only has doubts or a ‘presumption’ must refuse the engagement but need not report. The role of the regional bar councils in AML/CFT has been elaborated by the 2020 ordinance and decrees. Responding to EU requirements, they now have to produce annual reports detailing what disciplinary measures they have undertaken concerning AML and how many reports were received from individual law firms and sent to the FIU, generating formal transparency and perhaps greater accountability. One comparative study of how French and German lawyers manage the tensions between confidentiality and AML obligations observes (Svenonius and Mörth 2020): Lawyers use several strategies to avoid becoming responsible for crimes on behalf of their clients. First, they carry out extensive KYC controls. Second, they relay clients to banks and rely on them to carry out necessary controls (in France, every transaction is decided and controlled by Carpa).22 Third, they reject clients rather than entering a risky relationship. Finally, they are involved in peer-to-peer counselling. In the French case, this is mainly a dialogue between the individual lawyer and the bâtonnier. The one thing that no lawyer does is to report a client. In fact, a former bâtonnier in Paris interprets the obligation to report to the police as “treason”.

Lawyers rely on banks to verify the ‘source of funds’ for existing and new clients. Rejecting clients is viewed as preferable to accepting and then reporting them. In France, notaries made 1,474 reports to Tracfin (the FIU) and lawyers just one in 2018, the numbers rising to 1,816 and 12 in 2019.23 Nougayrede (2019: 357) noted that just 23 STRs were made by the French Bar in 2007–18. She attributes this to the emphasis on upstream CDD to reduce the flow of AML-exposed activity. When in doubt on Know Your Client, many practitioners prefer to forgo work opportunities in order to avoid the extensive CDD investigations they know would be required to proceed. In the French system, client monies held by advocates are controlled by regional organisations (CARPAs supervised by the bar councils), which have responsibility for AML and communicate freely with advocates under rules of professional secrecy. CARPAs also have the function of ensuring payment of state monies such as legal aid to lawyers. Until 2020, CARPAs were not required to report suspicions (ibid: 358–59). This has changed following statutory instruments implementing the Fifth Anti-Money Laundering Directive; however, CARPAs will report to the regional bâtonnier, not the FIU.24 In 2019, there were nine STRs from advocates 22 No income lawyers receive from clients or adversaries, when acting as representatives or assistants in professional, judicial, or legal acts on behalf of their clients, devolves to them; it should be deposited in a special independent bank account, regulated and managed by the Caisses des Règlements Pécuniaires des Avocats (CARPA): www.cnb.avocat. fr/en/professional-regulations-obligations. 23 Rapport annuel d’activité Tracfin 2019. 24 Ordinance n° 2020-115 and decrees n° 2020-118 and n° 2020-119 of 12 February 2020. These instruments have expanded CDD obligations to litigation and advisory activities, including those concerning taxation. I am grateful to Delphine Nougayrede for these details. When filing an STR to the bâtonnier, the CARPA may inform the advocate or law firm holding the account. See Information Letter by the Paris Bar Council of 5 March 2020.

Money Laundering, Corruption and the Legal Profession: An Exploration  605 and three supplementary filings on them, an increase from previous years but still a small number. In 2020, the bar authorities (under CNB leadership) embarked on a campaign including training programmes and IT tools on the regional bar websites to help practitioners implement these obligations. There will be on-site verification, and the regional bars are obligated to produce a publicly accessible annual report detailing what they have done, how many verifications, any sanctions issued and STRs received and transmitted to the FIU. Any attempt to block transmission of STRs to the FIU will be visible and must be justified. In short, except for real estate, where notaries are making many reports, the profession has largely ‘internalised’ its AML procedures. ii.  The Netherlands There has been intermittent research into the role of lawyers and notaries in money laundering and organised crime in the Netherlands (Lankhorst and Nelen 2005; Nelen 2008). In the earliest empirical study, van de Bunt (1996) found nothing like the image of lawyers acting as Mafia-type consiglieri but concluded that, unlike accountants, tax advisors and notaries, lawyers were more than incidentally involved in organised crime activities, describing 29 cases of lawyers and 12 of notaries. van de Bunt and van Wingerde (2015) discuss lawyer conduct in a huge fraud on Phillips Pension Fund, suggesting that behaviour might not have changed greatly. Criminal law enforcement will occur only if the lawyer is suspected of money laundering or predicate crimes. In the revised Dutch Lawyers Act (33TUAdvocatenwet) – in force since 2015 – local Bar presidents are responsible for supervising compliance with anti-money ­laundering regulations (WWFT).25 Lawyers who have reported an SAR in which they render advice or assist in a transaction might be wise to abstain from further services to the client. The Dutch Financial Intelligence Unit gives examples without disclosing outcomes.26 iii. Switzerland Switzerland, an important country for international finance and legal constructions, has a constitutional structure that makes it resistant but far from immune to increasing anti-­ laundering and anti-tax evasion international and national centralising pressures (Boni-Le Goff et al Vol 1, ch 13). Swiss banking and professional cultures expect significant internal development before something is reported as an SAR, not least because accounts are frozen while the prosecutor reviews the case. In 2019, attorneys and public notaries made only five SARs to the FIU, out of the 7,705 made to its FIU (MROS) that year. The highest number was 31 in 2011, and just 99 reports were made in the past decade. By way of context, the Panama Papers show that 1,339 Swiss lawyers, financial advisors and other intermediaries had created more than 38,000 offshore entities over the previous 40 years, with 4,595 officers or administrators connected to Switzerland.27 Other criticisms have been voiced about Swiss lawyers’ and prosecutors’ independence from oligarchs.28 25 See www.anti-moneylaundering.org/europe/Netherlands.aspx. 26 See www.fiu-nederland.nl/en/an-alert-civil-law-notary; see also Disciplinary Court, ‘s-Hertogenbosch, 19 March 2018, case no ECLI:NL:TNORSHE:2018:1. 27 ‘Switzerland overhauls anti-money laundering laws’, 28 June 2019, www.internationalinvestment.net/ news/4002880/switzerland-overhauls-anti-money-laundering-laws. 28 See www.economist.com/finance-and-economics/2021/01/23/a-swiss-money-laundering-probe-raises-disturbingquestions.

606  Mike Levi Legal professionals, such as lawyers, notaries and tax advisors, fall within the scope of the Anti-Money Laundering Act (AMLA) only when they perform financial intermediation in the sense of Article 2(3) as ‘persons who on a professional basis accept or hold on deposit assets belonging to others or who assist in the investment or transfer of such assets’. As underlined by the FATF (2016: 29) in its Mutual Evaluation Report, ‘[t]his means in particular that acts related to setting up companies, legal persons and legal arrangements, in which lawyers, notaries or fiduciaries may be involved without being parties to transactions such as transfers, are outside the scope of the [AMLA]’. Controversial legislative proposals seeking to comply with the FATF Recommendation and respond to criticisms of lawyer regulation in the Swiss MER were rejected by the Swiss legislature in 2019–21. The debate (Villard 2020) concerned: (1) the inclusion within the Loi de Blanchiment de l’Argent (LBA) of ‘advisors’, including notaries and lawyers, who practise certain activities relating to the constitution and management of domiciliary companies or trusts; (2) lowering the threshold from CHF 100,000 to CHF 15,000 for subjecting dealers in precious metals and stones to the LBA; (3) defining in the LBA or its implementing ordinance the concept of ‘founded suspicions’ triggering the duty of notification under Article 9 AMLA. The Federal Council considers that ‘it is up to the lawyers and notaries themselves to distinguish, in the context of their practice and in each individual case, whether it is a case related to their main or accessory activity’;29 and they are bound by professional secrecy when the relevant activity is typical for the profession (a condition which is interpreted broadly), so a reporting obligation only arises when it is not. There is currently no centralised Beneficial Ownership Register in Switzerland, and though companies must maintain such a list, Swiss law does not require them or their lawyers to verify the accuracy of information disclosed to them, making the list pointless unless people are honest. Articles 697l(1) and 790a(5) CO only require companies to keep a list of the beneficial owners disclosed to them. iv. UK In England and Wales, solicitors must report to their Money Laundering Reporting Officer (MLRO) – who can be themselves in a small firm – if: (1) they know, suspect or have reasonable grounds for knowing or suspecting that another person is engaged in money laundering; and (2) the information on which the suspicion is based emerges in the course of business in the regulated sector. MLROs must make an SAR if they know, suspect or have reasonable grounds for suspecting that a person is engaged in money laundering. A suspicion is reportable if the solicitor thinks

29 FF 1996 III 1057, 1089. During the consultation process preceding the Federal Council’s decision on the AMLA, the Swiss Bar Association and Swiss Association of Notaries proposed a regulation under which lawyers and notaries would submit their reports not to MROS but to their self-regulatory body, which would be responsible for deciding whether the report concerned facts covered by professional secrecy or could be transmitted to MROS.

Money Laundering, Corruption and the Legal Profession: An Exploration  607 there is a more than fanciful possibility that the relevant facts exist. Case law notes that ‘a vague feeling of unease would not suffice’.30 The structure of lawyer supervision of AML in England and Wales is quite elaborate (Scotland and Northern Ireland have their own regulatory provisions). The Legal Services Act 2007 declared eight regulatory objectives with a clear focus on the public interest.31 It established the Solicitors Regulation Authority (SRA) independent of the Law Society to regulate professional conduct of solicitors, taking enforcement cases to the Solicitors Disciplinary Tribunal (SDT) or sometimes, in collaboration with the police, the criminal courts. The SRA conducts thematic reviews of AML issues with increasing rigour and expertise and takes over management of firms where it finds sufficient wrongdoing (AML failings, fraud or other breaches). Containing collateral damage is not always easy in sprawling merged franchises. In the five years before 2020, the SRA referred to the SDT more than 60 cases linked to potential improper money movements, with the result that more than 40 solicitors were struck off the Roll, voluntarily retired, or suspended from practising. (The SDT also strikes off solicitors following criminal convictions.) At the beginning of May 2019, the SRA had more than 160 live investigations linked to money laundering issues. In 2018, the SDT struck off 80 people, fined 85, indefinitely suspended one and suspended 20, but did not mention money laundering among the reasons for striking off.32 In 2019–20, the number of SARs from independent legal professionals was 3,006 (up from 2,774 the previous year), plus 31 from trust and company service providers; in 2020, there were 149,621 practising solicitors with current certificates. This compared with 164 SARs in 2000 – when the Law Society’s Money Laundering Task Force was created – and 176 in 2001. All firms must ensure they have a full money laundering risk assessment in place.33 However, the SRA’s 2019 review found that more than a third of firms surveyed had not done so and, ‘without this, firms might have vulnerabilities that they do not know about’.34 A recent review of a sample of firms (SRA 2021: 34) noted that in the preceding 24 months, 16 MLROs received no (internal) SARs, 32 received 1–10, 19 received 11–49, and seven received more than 50 (the highest being 412). During the same period, 25 firms sampled had submitted no SARs to the FIU; 43 submitted 1–10; six submitted 11–50 (50 being the highest number); and none submitted more. These data are influenced by firm size and tell us nothing about the quality of the internal filtering process; and almost nothing is known about what the FIU or law enforcement agencies do with the reports. C.  Non-European Jurisdictions i. Australia Though changes have long been promised (perhaps delayed by postponement of the FATF on-site visit to conduct the Australian Mutual Evaluation Report in 2019–20),35 the legal 30 See www.lawsociety.org.uk/en/topics/anti-money-laundering/suspicious-activity-reports. See R v Da Silva [2006] EWCA Crim 1654. 31 See www.legalservicesboard.org.uk/our-work/regulatory-performance. 32 Annual Report 2018, Solicitors Disciplinary Tribunal. 33 Regulation 30(a) requires solicitors to check trust and company beneficial ownership registers before establishing a business relationship and report any discrepancies to Companies House (see LSAG 2021). 34 See www.sra.org.uk/risk/outlook/priority-risks/anti-money-laundering. 35 See www.afr.com/property/residential/international-body-suspends-anti-money-laundering-law-evaluations-20191118p53bid.

608  Mike Levi profession is not obliged to report any suspicions to AUSTRAC or any other body, though the Law Council views professional standards as adequate and notes that (at the time of revision of guidelines in 2016) no legal practitioners had been prosecuted for or convicted of money laundering.36 Lawyers are obligated by section 15A of the Financial Transaction Reports Act 1988 (FTR Act) to report transactions involving physical cash of AUD10,000 or more. Solicitors do not have to report electronic funds transfers. However, lawyers and other professional ‘gatekeepers’ (such as accountants and real estate agents) are generally not subject to regulation under Australia’s Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) unless they provide a designated service under the Act (which is rare). Significant cash transaction reporting from solicitors shows the volume of money moving through their trust accounts (Chaikin 2018). This reporting comes in two categories: threshold transaction reports (TTRs) under the AML/CTF Act and significant cash transaction reports by solicitors (SOLTRs) under the FTR Act. For 2012–16, approximately AUD148 million was reported in TTRs based on analysis of a sample of legal property and/or trust related entities. This compares with almost AUD33 million in SOLTRs. In 2014, there was almost AUD36 million reported in incoming TTRs (ie deposits into Australian legal entity accounts) and over AUD10 million in SOLTRs, perhaps an indication of underreporting of SOLTRs. The unclassified section of a classified AUSTRAC report concludes:37 Legal professionals have significant cash transaction reporting (SCTR) requirements under s 15A of the FTR Act for cash amounts of AUD10,000 or more, but these can be easily avoided through the use of structured payments to law firms. Given the limited reporting requirements applied to solicitors, legal trust accounts are increasingly at risk of being a vehicle to move illicit funds. Although legal trust accounts are subject to auditing from legal practice bodies, law enforcement authorities require a search warrant to view trust accounting records. This has been identified as a ‘catch 22’ for law enforcement. Without a warrant they cannot obtain sufficient intelligence to link the legal professional to ML operations. Without sufficient intelligence to link the legal professional to ML activity, obtaining a warrant is challenging.

In a markedly different tone, the Law Council’s policy document of 2016 concludes:38 The Law Council has been actively engaged with the Government in representing the interests of the legal profession in relation to Tranche 1 and Tranche 2 of the AML/CTF legislation and will continue to do so vigorously. The Law Council will also continue working with its Constituent Bodies to provide up-to-date information to legal practitioners in relation to AML/CTF issues. The Law Council will keep this Guide and other guidance materials updated to ensure continuing education of the legal profession on AML/CTF risk management.

Since 2016, there have been major scandals involving Australian banks, casinos, and real estate money laundering, as well as alleged political corruption, though the role of lawyers has not been a central issue. As things stand, Australian lawyers have successfully resisted the widening of reporting duties, but this remains a contested issue and may change.

36 See www.lawcouncil.asn.au/docs/94749cb5-3c56-e711-93fb-005056be13b5/1601-Policy-Guideline-Anti-MoneyLaundering-Guide-for-Legal-Practitioners.pdf, p 11. 37 Exploitation of Legal Professionals, AUSTRAC Strategic Intelligence Report 2016, para 48. 38 See www.lawcouncil.asn.au/docs/94749cb5-3c56-e711-93fb-005056be13b5/1601-Policy-Guideline-Anti-MoneyLaundering-Guide-for-Legal-Practitioners.pdf, at p 21.

Money Laundering, Corruption and the Legal Profession: An Exploration  609 ii. US Even after recent reforms, American lawyers are not subject to the general AML responsibilities, including compliance with those gatekeeper requirements concerning suspicious activity reporting, CDD or record-keeping. US lawyers must not retain a fee received from illicit funds, receive currency of $10,000 or more unless they file currency transaction reports, or transact, facilitate or advise with respect to a transaction with specially designated or ‘blocked persons’: drug traffickers, terrorists, former foreign leaders of nations like North Korea, or any other person subject to US economic sanctions, without a prior licence from the Treasury Department. The US legal profession is organised into 50 separate state bars (plus Washington, DC) and represented at the national level by the (voluntary) American Bar Association (ABA), which produces benchmark national standards of professional conduct, though state Supreme Courts have authority over legal professions, which they often delegate to state bar associations. Hence, the uneven implementation of the professional guidelines, which otherwise mirror the KYC and CDD provisions of other countries, combined with a preference for modestly enforced ethical rules (Sahl 2015). There has been a shift, however. When the ABA adopted the Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing (the Guidance), and subsequently affirmed its validity in Formal Opinion 463, it advised practitioners that an ‘appropriate assessment of the client and the client’s objectives, and the means for obtaining those objectives, are essential prerequisites for accepting a new matter or for continuing a representation as new facts unfold’. It encouraged state bar associations to educate members about their role as gatekeepers and obligation not to serve as conduits of financial crime by their clients. The Guidance advised lawyers to adopt the system of assessing the riskiness of clients before taking them on and the management policies used by banks, but there was little effort to educate, train and audit lawyers or to test and check the implementation of the Guidance, which is not tested on any bar exam, incorporated into any law school’s mandatory curriculum or covered in Continuing Legal Education classes (at least not in New York) (Petterchak 2020). In a ‘mystery shopping’ exercise, Global Witness (2018) found all but one of 13 law firms willing to accept the apparent agent of a corrupt African mining minister as a client and assist in financial transactions, some going so far as to offer ‘helpful’ advice in the initial interaction. Two of these lawyers were publicly censured. Other quasiexperimental methods have involved fabricated requests for legal representation by fictitious individuals showing suspicious behavioural signs of being corrupt foreign public officials, drugs-connected persons, or terrorist financiers: American lawyers were particularly reluctant to turn down business, even compared with those practising in stigmatised secrecy havens (Findley et al 2017). Similar methods have now been used with corporate fronts, but the data are not yet available. On 29 April 2020, the ABA issued Opinion 49139 declaring that lawyers are responsible for conducting an adequate inquiry into the facts and circumstances of a matter a client or prospective client asks them to undertake if there is a ‘high probability’ the client is seeking to use the lawyer’s services to commit a crime. [W]here facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity … Even if information learned in the course of a preliminary interview or



39 See www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-491.pdf.

610  Mike Levi during a representation is insufficient to establish ‘knowledge’ under [Model] Rule 1.2 (d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interest … If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under [Model] Rule 1.16 … A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.

Failure to inquire is ‘willful blindness’.40 Lawyers must ‘remonstrate’ with clients refusing to respond adequately to such inquiries and either withdraw or decline to represent them if satisfactory information is not obtained.41 There is a duty, if necessary, to inquire beyond the client, as long as privilege is preserved or consent obtained, and to remediate as appropriate. This guidance applies only to transactional representation, not litigation.42 How compliance will be monitored, and by whom, remain open questions. V. CONCLUSIONS

People in trouble may need lawyers, but lawyers are not a well-respected profession in many parts of the world: Al Capone referred to them (and others) as ‘the legitimate rackets’, and lawyering is under attack in many authoritarian and democratic jurisdictions, though perhaps less so in places like the US, which had 1.3 million registered lawyers in 2020. A recent IPSOSMORI survey found that 61 per cent of the UK public trusted lawyers generally to tell the truth, compared with 83 per cent of professors, 71 per cent of the police, 44 per cent of bankers and 16 per cent of government ministers.43 Asked how they ‘would rate the honesty and ethical standards of people in these different fields – very high, high, average, low or very low’, 21 per cent of US respondents rated lawyers high or very high in 2020, compared with 42 per cent of accountants and 51 per cent of police (but 13 per cent of senators).44 There are many approaches to the regulation of misconduct by lawyers and their obligations to report clients whose transactions raise suspicions, reflecting different cultural traditions about interference with the legal profession (Nougayrede 2019) and levels of bargaining power and social prestige of lawyers. This emphasis on internal culture raises problems for analytical assessment. The UK (as in other spheres of fraud and AML control) is an outlier in its cooperative public-private ‘partnership’ approach – though in this case, it is closer to a refined self-regulation model; the US lies at the other extreme of self-regulation. The various legal constructions for protecting privacy have been criticised by academics, NGOs, investigative journalists and law enforcement (eg Belton 2020; Burgis 2020; Sharman 2017). Lawyers may believe they have a moral obligation to protect client wealth from unfair or oppressive regimes: Hitler, Stalin, Mao, military dictatorships, and oppression (real or perceived) elsewhere of wealthy minorities. Accusations of ‘unfair’ tax rates and controls on fund transfers provide a flexible moral construct for ‘techniques of neutralisation’ of



40 ibid,

p 5. p 10. 42 ibid, p 1. 43 Veracity Index 2020 – all professions, November 2020. 44 See news.gallup.com/poll/1654/honesty-ethics-professions.aspx. 41 ibid,

Money Laundering, Corruption and the Legal Profession: An Exploration  611 legal obligations. And such transactions generate large fees for lawyers. Much of the money highlighted in the international corruption cases is spent on conspicuous consumption or mega-rich displays of wealth such as private jets, large villas and fleets of luxury cars. This is far from the sober integration of criminal wealth into the licit economy. It does not fit the placement-layering-integration ‘crime script’ that has become the conventional wisdom of countless official money laundering catechisms. This chapter has teased out differences of legislative and practical organisation of AML obligations, which are in a state of flux due to pressures from the FATF and EU in their general prescriptions and national Mutual Evaluation Reports. Some metrics of efficiency and effectiveness are more visible, but none of the jurisdictions (or the FATF and EU themselves) has seriously grappled with – let alone resolved – the problem of how to assess lawyer performance in anti-money laundering and AML effects on crime reduction. It is arguable that the conflict between lawyer-client privilege and AML is so complex that it demands much more tailored solutions than other professions. By allowing Member States to require lawyers to report to their bar association or similar body (and not directly to the FIU), EU law shows some awareness of this tension. Those jurisdictions that do not follow this path implicitly declare that lawyers are off limits. A very small number of reports may be regarded as a sign of low compliance; but in the absence of other evidence, the obsession of the FATF and many countries with raising the number of suspicious transaction reports from every regulated sector is misplaced, especially in light of the fact that many countries make very little use of the reports (as demonstrated by the 2020 FinCEN files scandal) (Levi 2021). The kind of behaviour lawyers might be expected to report varies from the modest income ordinary divorcing couples may fail to disclose to tax or social security officials, through the purchase of homes and small businesses in poor areas, to multi-million pound business deals and luxury home purchases for the beneficial ownership of overseas public officials, businesspeople and those engaged in organised or white-collar crime. Obligating lawyers to consider the legality of sources of funds and the rationale for legal constructions seems reasonable.45 If the client is still able to effect the transaction, an individual lawyer’s refusal to act achieves little. Though prosecutions may be rare, the extension of overseas tax evasion and bribery/ corruption as predicate offences for money laundering is a potential game changer in the volume of crimes that touch upon the work of the transactional lawyer. The US Anti-Money Laundering Act of 2020 introduced measures reducing corporate secrecy and requiring beneficial ownership disclosure, perhaps increasing the legitimacy of the FATF as more than an instrument of Great Power politics. Formal FATF black-listing (rare, currently only Iran and North Korea) and grey-listing (far more common) for reporting on improvements processes have not included the US, despite its non-compliance with rules (including weak lawyer regulation), behaviour that has led to strong criticisms and grey-listing elsewhere. Is there more crime in the US than in Canada or Mexico because of US reluctance to regulate? Is there more crime in Australia than New Zealand because Australian lawyers remain outside the FATF recommended system? If greater scrutiny were applied to clients and American lawyers reported more of them to FinCEN as STRs, would fraud or other crimes

45 But how are lawyers (or indeed, bankers) to make these judgements in relatively opaque economies, such as China and Russia? And because the origins of wealth are so hard to verify, should we truly expect bankers and lawyers not to deal with any such money?

612  Mike Levi decline in the US? Are UK lawyers cleaner than those in continental Europe even though the former make about 90 per cent of European SARs and some EU Member States have elaborate self-regulation but no formal state supervision? If Switzerland’s proposed reforms were only symbolic, why did its lawyers fight so hard against them (ultimately winning)? Did they fear for their incomes? Were they sceptical about the effect on crime? Or did they simply not care about crime? Does anyone care about the impact of their actions on other countries, especially those in the Global South? Experimental mystery shopping methods (Findley et al 2017) and regulators’ systematic reviews of case files for compliance with process (FSA 2011; SRA 2021) can provide a better picture. We could examine prosecuted and settled criminal and regulatory cases to analyse the role lawyers played and what could have deterred their participation (with and without simple displacement to other fee-earners). This is an important arena for understanding the political and cultural power of national legal professions, their vulnerability to international sanctions, and the effects of different models of self- and governmental regulation on levels of compliance. There are difficult issues in devising the socially optimal method for getting lawyers to pay greater attention to the sources and beneficial owners of client money. In the case of grand corruption, accountability – in civil and criminal courts and the media – may take years, if it ever happens. GLOSSARY

AML  Anti-Money Laundering CARPA  Caisses des Règlements Pécuniaires des Avocats CCBE  Council of Bars and Law Societies of Europe CDD  Customer Due Diligence CFT  Countering the Financing of Terrorism EDD  Enhanced Due Diligence FATF  Financial Action Task Force FIU  Financial Intelligence Unit IGO  Inter-Governmental Organisation KYC  Know Your Customer MLRO  Money Laundering Reporting Officer NGO  Non-Governmental Organisation PEP  Politically Exposed Person RBA  Risk Based Approach SARs  Suspicious Activity Reports STRs  Suspicious Transaction Reports TI  Transparency International

Money Laundering, Corruption and the Legal Profession: An Exploration  613 REFERENCES Belton, C (2020) Putin’s People: How the KGB Took Back Russia and Then Took on the West (London, William Collins). Block, A and Weaver, C (2004) All is Clouded by Desire: Global Banking, Money Laundering, and International Organized Crime (Westport, CT, Greenwood Publishing Group). Burgis, T (2020) Kleptopia: How Dirty Money Is Conquering the World (London, William Collins). Chaikin, D (2018) ‘Effectiveness of anti-money laundering obligations in combating organised crime with particular reference to the professions’ (Research Report No. 10) (Canberra, Australian Institute of Criminology). Chaikin, D and Hook, G (2018) Corporate and Trust Structures: Legal and Illegal Dimensions (Melbourne, Australian Scholarly Publications). Chaikin, D and Sharman, J (2009) Corruption and Money Laundering: A Symbiotic Relationship (London, Palgrave). Commission for Africa (2005) Our Common Interest: Report of The Commission for Africa reliefweb. int/report/world/our-common-interest-report-commission-africa. Conseil National des Barreaux (CNB) (2020) Guide Pratique: Lutte contre le blanchiment de capitaux et le financement du terrorisme. Inclus mesures de gel des avoirs (Paris, CNB). Council of Bars and Law Societies of Europe (CCBE) (2018) Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers (Brussels, CCBE). Ensign, R and Ng, S (2016) ‘Law Firms’ Accounts Pose Money-Laundering Risk’ Wall Street Journal 26 December www.wsj.com/articles/law-firms-accounts-pose-money-laundering-risk-1482765003. FACTI (2021) Financial Integrity for Sustainable Development: Report of the High Level Panel on International Financial Accountability, Transparency and Integrity for Achieving the 2030 Agenda (UN) uploads-ssl.webflow.com/5e0bd9edab846816e263d633/602e91032a209d0601ed4a2c_FACTI_ Panel_Report.pdf. FATF (2016) Anti-money laundering and counter-terrorist financing measures. Switzerland. Mutual Evaluation Report www.fatf-gafi.org/media/fatf/content/images/mer-switzerland-2016.pdf. Findley, MG, Laney, B, Nielson, DL and Sharman, JC (2017) ‘External Validity in Parallel Global Field and Survey Experiments on Anonymous Incorporation’ 79 Journal of Politics 856–72. Findley MG, Nielson, DL, and Sharman, JC (2014) Global Shell Games: Experiments in Transnational Relations, Crime, and Terrorism (Cambridge, Cambridge University Press). FSA (2011) Banks’ Management of High Money-Laundering Risk Situations www.fca.org.uk/ publication/corporate/fsa-aml-final-report.pdf. Global Witness (2018) The Real Wolves of Wall Street (London, Global Witness). Halliday, T, Levi, M and Reuter, P (2020) ‘Why Do Transnational Legal Orders Persist? The Curious Case of Anti-Money Laundering’ in G Shaffer and E Aaronson (eds), Transnational Legal Ordering of Criminal Justice (Cambridge, Cambridge University Press) 51–83. Heimann, F and Pieth, M (2017) Confronting Corruption: Past Concerns, Present Challenges, and Future Strategies (Oxford, Oxford University Press). International Bar Association (IBA) (2014) A Lawyer’s Guide to Detecting and Preventing Money Laundering: A collaborative publication of the International Bar Association, the American Bar Association and the Council of Bars and Law Societies of Europe (London, IBA). Judah, B and Sibley, N (2018) The Enablers: How Western Professionals Import Corruption and Strengthen Authoritarianism (Washington, DC, Hudson Institute). Lankhorst, F and Nelen, H (2005) ‘Professional Services and Organised Crime in the Netherlands’ 42 Crime, Law and Social Change 163–88. Levi, M (1991) ‘Pecunia non olet: Cleansing the Money Launderers from the Temple’ 16 Crime, Law, and Social Change 217–302. —— (2007) ‘Pecunia non olet? The Control of Money-Laundering Revisited’ in F Bovenkerk and M Levi (eds), The Organised Crime Community (New York, Springer) 161–82.

614  Mike Levi —— (2012a) ‘States, Frauds, and the Threat of Transnational Organized Crime’ 66 Journal of International Affairs 37–48. —— (2012b) ‘How Well Do Anti-Money Laundering Controls Work in Developing Countries?’ in P Reuter (ed), Draining Development? Controlling Illicit Flows from Developing Countries (Washington, DC, World Bank Press) 373–414. —— (2021) ‘Making Sense of Professional Enablers’ Involvement in Laundering Organized Crime Proceeds and of their Regulation’ 24 Trends in Organized Crime 96–110. Levi, M and Gilmore, W (2002) ‘Terrorist Finance, Money Laundering and the Rise and Rise of Mutual Evaluation: A New Paradigm for Crime Control?’ in M Pieth (ed), Financing Terrorism (Dordrecht, Springer) 87–114. Lord, NJ, Campbell, LJ and van Wingerde, K (2019) ‘Other People’s Dirty Money: Professional Intermediaries, Market Dynamics and the Finances of White-Collar, Corporate and Organized Crimes’ 59 British Journal of Criminology 1217–36. Lord, NJ, van Wingerde, K and Campbell, LJ (2018) ‘Organising the Monies of Corporate Financial Crimes via Organisational Structures: Ostensible Legitimacy, Effective Anonymity, and Third-Party Facilitation’ 8 Administrative Sciences 17. LSAG (2021) Legal Sector Affinity Group Anti-Money Laundering Guidance for the Legal Sector 2021 www.sra.org.uk/globalassets/documents/solicitors/firm-based-authorisation/lsag-aml-guidance. pdf?version=4903b4. Manji, A (2012) ‘The Grabbed State: Lawyers, Politics and Public Land in Kenya’ 50 Journal of Modern African Studies 467–92. —— (2020) ‘Land Rights and the Rule of Law’ in N Cheeseman, K Kanyinga and G Lynch (eds), The Oxford Handbook of Kenyan Politics (Oxford, Oxford University Press). McClean, B and Elkind, P (2013) The Smartest Guys in the Room, 2nd edn (New York, Penguin Random House). Nance, MT (2018) ‘The Regime that FATF Built: An Introduction to the Financial Action Task Force’ 69(2) Crime, Law and Social Change 109–29. Nelen, H (2008) ‘Real Estate and Serious Forms of Crime’ 35 International Journal of Social Economics 751–62. Nougayrede, D (2019) ‘Anti-Money Laundering and Lawyer Regulation: the Response of the Professions’ 43 Fordham International Law Journal 321–62. Petterchak, J (2020) An Inch of Progress: New Ethics Opinion Gets Real About Assistance to Fraud and Crime www.academia.edu/43153735/An_Inch_of_Progress_New_Ethics_Opinion_Gets_Real_ About_Assistance_to_Fraud_and_Crime. Pieth, M, Low, L and Bonucci, N (2013) The OECD Convention on Bribery: A Commentary, 2nd edn (Cambridge, Cambridge University Press). Reuter, P (2013) ‘Are Estimates of the Volume of Money Laundering Either Feasible or Useful?’ in B Unger and D van der Linde (eds), Research Handbook on Money Laundering (Cheltenham, Edward Elgar Publishing). Rostain, T and Regan, M (2014) Confidence Games: Lawyers, Accountants, and the Tax Shelter Industry (Cambridge, MIT Press). Sahl, J (2015) ‘Lawyer Ethics and the Financial Action Task Force: A Call to Action’ 59 New York Law School Law Review 457–46. Sharman, J (2017) The Despot’s Guide to Wealth Management: On the International Campaign against Grand Corruption (Ithaca, NY, Cornell University Press). Solicitors Regulation Authority (SRA) (2019) Risk Outlook 2019/20 (SRA). —— (2021) Anti-Money Laundering (AML) Visits 2019–2020 (SRA). Svenonius, O and Mörth, U (2020) ‘Avocat, Rechtsanwalt or Agent of the State? Anti-Money Laundering Compliance Strategies of French and German Lawyers’ 23 Journal of Money Laundering Control 849–62. Transparency International (2016) ‘What Is Grand Corruption and How Can We Stop It?’ www. transparency.org/news/feature/what_is_grand_corruption_and_how_can_we_stop_it.

Money Laundering, Corruption and the Legal Profession: An Exploration  615 van de Bunt, HG (1996) Inzake Opsporing Bijlage X. Deel III onderzoeksgroep Fijnaut. Beroepsgroepen en fraude, 1996 (‘s-Gravenhage, Sdu uitgevers) www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/ vi3ag2g6swzj. van de Bunt, HB and van Wingerde, K (2015) ‘“We Are Going to be Rich”: A Case Study of the Dutch Real Estate Fraud Case’ in J van Erp, W Huisman and G Vande Walle (eds), The Routledge Handbook of White-Collar and Corporate Crime in Europe (London, Routledge) 304–35. van der Does de Willebois, EM, Halter, E, Harrison, RA, Park, JW and Sharman, JC (2011) The Puppet Masters: How the Corrupt Use Legal Structures to Hide Stolen Assets and What to Do About It (Washington DC, World Bank Publications) openknowledge.worldbank.org/handle/10986/2363. Villard, K (2020) La révision LBA joue (en vain ?) les prolongations https://cdbf.ch/1170/. Vogel, B and Maillart, J B (2020) National and International Anti-Money Laundering Law: Developing the Architecture of Criminal Justice, Regulation and Data Protection (Cambridge, Intersentia). Wathne, C and Stephenson, MC (2021) The Credibility of Corruption Statistics: A Critical Review of Ten Global Estimates (Bergen, U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute).

616

26 Conclusion Comparative Sociology of Lawyers, 1988–2018 Governance, Regulation, Access to Justice, Political Engagement, Regime Change and the Rule of Law RICHARD L ABEL

I

n the conclusion to Volume 1 I analysed the 46 national reports using neo-Weberian theories about the relationship between lawyers and markets, which had informed my contributions (1988a; 1988b; 1988c; 1989a) to the 1988/89 books (Abel and Lewis 1988/89) and influenced other contributors to those volumes. That framework offered powerful insights into the professions I knew best (US and England and Wales), which shared many central traits: dominance by private practitioners; control of entry (numbers and ­demographics) through apprenticeship, formal education, and examinations; restrictions on external and internal competition; and modes of production, ie the structures within which lawyers practise. My review (1979) of Larson (1977) and analysis (1981; 1982) of the Report of the Royal Commission on Legal Services (1979) led me to join Philip Lewis in co-directing the Working Group for Comparative Study of Legal Professions, which produced the 1988/89 books. But the experience of learning about civil law professions in the course of that project exposed the parochialism of market theories. Rueschemeyer (1973), who pioneered comparison between common law (US) and civil law (German) professions, demonstrated the state’s central role in shaping the latter. Freidson built on his sociology of US doctors (1970) to argue (2001) that professions represent a third form of social organisation, different from both markets and states (ie bureaucracies). For that reason, my second book on English lawyers (2003) located them as poised ‘between market and state’. In this chapter I want to focus on lawyers’ pivotal relationships with the state. (Elsewhere I have explored the politics of legal aid (1985) and lawyers’ roles in the struggle against apartheid (1995) and the defence of the rule of law in the US ‘war on terror’ (2018a; 2018b).) Markets and states are interdependent: states construct the laws and legal institutions necessary for markets to function; and markets generate the wealth that funds state taxation. Professions also have a symbiotic (if fraught) relationship with states. All professions rely on states to

618  Richard L Abel define and police their jurisdictional boundaries (Abbott 1988) by promulgating and enforcing rules about entry and competition. States support legal education, which was exclusively public in many countries until recently. States employ lawyers: most of them during the early phases of state creation, as much as a third in some civil law jurisdictions until recently (Abel 1989a). State legal aid schemes employ lawyers in staffed offices and create demand for private practitioners, whom they reimburse. States traditionally delegated disciplinary authority to professions and enforce their decisions. States construct the environments in which lawyers work: both the framework (laws) and the institutions (legislatures, courts, and agencies). And lawyers are significant, often dominant, players in those institutions: elected to the executive, legislative and (some) judicial branches and appointed to courts and agencies. I will explore this relationship by examining how lawyers govern and regulate themselves, influence access to justice, and engage in politics. Then I will turn to the ways in which legal professions are shaped by regime transitions and state ruptures and how they contribute to creating or preserving the rule of law. In each section I draw on existing theory and data to frame questions illuminated by the 46 national reports and use those reports to propose an agenda for further research. I. SELF-GOVERNANCE

All professions seek to govern themselves. Durkheim (1933; 1957) believed that professions had to be independent in order to perform their essential role as intermediaries between individuals and the state. Legal professions in the US (ABA 1981: 1–2) and England and Wales (Royal Commission 1979 Vol 1: 28, 30) have claimed self-governance as an essential attribute. But the reality is more complicated. Bar associations confront the central paradox that they seek independence while relying on the state, sometimes to create them, always to endow them with regulatory power. In most civil law countries, the one out of three lawyers employed by the state (judges, prosecutors, and civil servants) did not and could not organise themselves. The fact that they often enjoyed greater prestige and higher incomes than private practitioners reduced their motivation to do so (Rueschemeyer 1989: 307–308; 1997; Nettl 1968: 584). (Unions of judges and prosecutors in France, Italy and Spain are a recent phenomenon, see Hilbink 2007.) Lawyers employed by business (sometimes another third of civil law professions) also have less incentive and ability to organise since they depend not on the market but their employer, who may discourage them from acting in the public arena. In civil law regimes, even some private practitioners were state employees (eg nineteenth-century Germany and Sweden, see Rueschemeyer 1989: 308; Serbia, see Vukovič et al Vol 1, ch 17). As large law firms grow larger (a global trend), they replace professional associations as their members’ most significant social, political, and economic environment.1 All this renders collective action less urgent and more difficult and, therefore, less likely and/or influential. Private practitioners, who historically were the first to organise, are riven by multiple divisions: elite and base, old and young, urban and rural, advocacy and transactional work, firm size, and legal education. In common law regimes, associations often emerge first in cities, discouraging the formation of national organisations (Halliday et al 1987). In civil law countries, compulsory local associations (typically connected to the local court) also antedate national bodies and may jealously guard their prerogatives from subordination to the latter

1 In Brazil, large corporate firms created their own association, Centro de Estudos das Sociedades de Advogados, which took positions different from those of the national Ordem dos Advogados do Brasil (Almeida and Nassar 2018).

Conclusion: Comparative Sociology of Lawyers, 1988–2018  619 (Abel 1989a: 130). (In England and Wales, the much older Circuits and Inns of Court resented the arriviste General Council of the Bar, see Abel 1988d: ch 9.) As associations become more inclusive (in order to claim they are representative) while professions grow more diverse, differences of class, gender, race, and politics make it increasingly difficult for those bodies to speak with one voice (see Mather and Levin, ch 10 above).2 As practitioners specialise, they form their own organisations, which become more salient to members than the umbrella grouping but have divergent, even conflicting, interests (Halliday 1987; Abel 2003: ch 10). Associations typically begin as elite projects motivated by collegiality and prestige (both of which require exclusivity), as well as the desire to control the number and identity of entrants, define and protect the boundaries of their monopoly, and discipline those at the base for competitive activities (advertising, soliciting, price cutting) – a ‘professional project’ with both economic and status dimensions (Halliday 1987: 68; Powell 1988; Abel 2011: ch 1). That makes it difficult for voluntary associations to enrol the entire profession. There are numerous examples of these multiple challenges (whose divergent solutions require further analysis). Before independence and for decades thereafter, the Kenya Law Society was dominated by Europeans (Odenyo 1981). The American Bar Association has never enrolled even half of US lawyers and contained just 14 per cent in 2017 (Coe 2018); the same has been true of bar associations in New York City, Chicago, Boston, Philadelphia, Los Angeles, and San Francisco (Abel 1989b: 45, 90, 208). The (voluntary) German Advocates Association enrolls 39 per cent of Anwälte (Kilian and Schultz Vol 1, ch 10). Only 6 per cent of Mexican lawyers belong to the few elite bar associations (Pérez-Hurtado Vol 1, ch 21). The estimated one million unlicensed practitioners in Russia, who may do everything but criminal defence, have resisted joining the legal profession because they do not want to pay fees or submit to regulations (Moiseeva and Bocharov Vol 1, ch 16). The collective action problem (ie free riders) may prompt professional associations to ask the state to require membership as a condition of practice (Halliday 1987: 79–82). But even mandatory associations may have difficulty collecting dues, as in Ghana (Dawuni 2017) and Nigeria (Uzebu-Imarhiagbe Vol 1, ch 25). And the problem of compelled speech (advanced first in the US because of its First Amendment) may limit what such an association may do or say (Schneyer 1983). When the European Court of Human Rights ruled that compulsory membership in the Danish Bar and Law Society violated freedom of association, the latter became a purely regulatory body, devolving representation to the new, voluntary Association of Danish Law Firms (Hammerslev Vol 1, ch 8). In accord with Pinochet’s neoliberal ideology, Chile took the unusual step in 1980 of ending mandatory membership in the Chilean Bar Association, with the result that the proportion of newly qualified lawyers enrolling fell from 86 per cent the following year to 20 per cent 30 years later (Villalonga Vol 1, ch 20). Furthermore, all such groupings are subject to the ‘iron law of oligarchy’ (Michels 1915), whose effect is especially pronounced among lawyers because time is money and voluntary activity is unlikely to produce immediate material rewards. Less than 20 per cent of Iran Bar Association members participate in elections of officers or policy debates (Banakar and Ziaee Vol 1, ch 29). Under Mubarak, the Dean of the Egyptian Bar Association wielded absolute authority (Bernard-Maugiron and Omar Vol 1, ch 28). Professional associations that enjoy independence from the state may still be exposed to supranational pressures: Ireland, Greece and Portugal were subordinated to the Troika (European Central Bank, European Commission, and International Monetary Fund) during the 2008 financial crisis (Hosier 2014); other countries seeking development aid may have to accept foreign influence (Hammerslev 2011). 2 In 1966, the Sudanese Bar Association split between nationalists and socialists rather than along the predictable lines of Sharia and common law, north and south (Salman 1981).

620  Richard L Abel The treatment of bar associations by states may depend on whether the latter are autocratic or democratic, one- or multi-party, stable or unstable. Mohammad Mossadegh, Iran’s democratically elected Prime Minister (and a lawyer) made the Iran Bar Association autonomous in 1953, only to be overthrown that year by a CIA-engineered coup, leading to a theocratic regime, which has sought to suppress lawyer independence (Banakar and Ziaee Vol 1, ch 29). Authoritarian states tend to be suspicious of or hostile to lawyers. Tsarist Russia prohibited the creation of additional councils of advocates, refused to let advocates hold national meetings, and sought to dilute their influence by introducing competitors: private attorneys lacking legal training and subordinated to district courts (Moiseeva and Bocharov Vol 1, ch 16). During Perestroika, the Ministry of Justice created a compliant Guild of Russian Advocates (ibid). Authoritarian states may subordinate lawyers’ associations to courts (eg Tunisia, see Gobe Vol 1, ch 33), the Attorney General (eg Myanmar, see Crouch Vol 1, ch 39; colonial Kenya, see Ghai 1981), or the Ministry of Justice (eg Zimbabwe, see Karekwaivanane Vol 1, ch 27). If the political opposition gains control over the official body, the state may encourage members to form a competitor (eg Indonesia, see Kouwagam and Bedner Vol 1, ch 37) or dissolve the governing body (eg Tunisia, see Gobe Vol 1, ch 33); it may ensure one-party dominance or require that members or officers belong to the dominant party (eg Vietnam, see Nicholson and Do Vol 1, ch 43) or simply appoint its own Dean (eg Egypt, see Bernard-Maugiron and Omar Vol 1, ch 28). Venezuelan courts suspended bar association elections after Maduro’s opponents won (Gómez and Pérez-Perdomo Vol 1, ch 22). The Kenyan Independent Electoral and Boundaries Commission supervised Law Society elections in response to vote-rigging charges (Kamau Vol 1, ch 24). State employees may dominate the profession and thus the bar association (eg Thailand, see Munger Vol 1, ch 42). Even when the association is limited to private practitioners, the state may encourage judges and prosecutors to retire (on generous pensions) and qualify as private practitioners, creating a sympathetic constituency (eg Tunisia, see Gobe Vol 1, ch 33; Libya, see Carlisle Vol 1, ch 31). But lawyers may resist state interference by demanding direct election of officers (eg the Beijing Lawyers Association, see Liu Vol 1, ch 35). The structure of a bar association affects its activities and influence (see Mather and Levin, ch 10 above). Local associations tend to emphasise socialising and function through informal norms but play little role in national issues. Peak associations may participate in policy-making; but because they are more formal and bureaucratic, relatively few lawyers are actively involved. Recent decades have seen a trend towards centralisation, eg in Belgium (Gibens et al Vol 1, ch 7) and the Czech Republic (Kober Vol 1, ch 14); the French Conseil National des Barreaux was established only in 1990 (Bessy and Bastard Vol 1, ch 9). The creation of the State of Israel led to the incorporation of separate voluntary Jewish and Arab bar associations into a single compulsory Israel Bar Association (Katvan et al Vol 1, ch 30). Associations must deal with the divergent interests of lawyers in the capital and the provinces (eg England and Wales, see Abel 1988: ch 16; Kenya, see Kamau Vol 1, ch 24; France, see Bessy and Bastard Vol 1, ch 9) and between regions (eg Nigeria, see Uzebu-Imarhiagbe Vol 1, ch 25; Burundi, see Dezalay Vol 1, ch 23). Some countries (like the US) have a single ‘fused’ legal profession, while others have long-standing divisions between advocates (especially in the higher courts) and lawyers who handle the preliminaries of litigation and transactional work, each with its own associations (eg the Law Society and the Bar Council in England and Wales, see Abel 2003: ch 10), although these divisions are blurring. As firms grow, some professions see the emergence of what Heinz and Laumann (1982; see also Heinz et al 2005) called the two hemispheres of practice – ­serving either large corporations or smaller businesses and individuals – each of which may have their own associations. Differences of specialisation (eg labour and family lawyers in Chile, see Villalonga Vol 1, ch 20), gender (Schultz and Shaw 2003), race (eg US, where African American

Conclusion: Comparative Sociology of Lawyers, 1988–2018  621 lawyers formed the National Bar Association in 1925 in response to their exclusion from the American Bar Association, see Abel 1989b: 208; South Africa, see Klaaren Vol 1, ch 26), age (eg l’Union des Jeunes Avocats in France, see Bessy and Bastard Vol 1, ch 9) and politics (eg Turkey, see Kalem Vol 1, ch 34) all may spawn separate associations. American Bar Association attacks on the New Deal led to the formation of the National Lawyers Guild in 1937.3 Progressive lawyers, alienated by the conservatism of the compulsory Korean Bar Association leadership, formed the Lawyers’ Association for a Democratic Society in 1988; although it failed to end that compulsion, it did enact an annual requirement of 30 hours of pro bono activity (Kim Vol 1, ch 40). Efforts to mandate a single bar association in Indonesia provoked repeated splits, multiplying the number of competing groups (Kouwagam and Bedner Vol 1, ch 37). As the number, prestige and income of lawyers employed in commerce increases, they may form their own organisations (eg French Avocats Conseils d’Entreprises, see Bessy and Bastard Vol 1, ch 9; Indonesian Association of Legal Counsellors and its competitors, see Kouwagam and Bedner Vol 1, ch 37; Italian Association of In-House Counsel in 1976 and Associazione Studi Legali Associati of corporate lawyers more recently, see Micelotta and Dorian Vol 1, ch 11). Some countries also have distinct professions of notaries and bailiffs with their own associations. History shapes professional associations. Many begin as projects of elites, whose dominance is challenged only gradually. The American Bar Association, founded by 100 white men in 1878, enrolled just 3 per cent of lawyers a quarter century later (Abel 1989b: 45). The Society of Gentlemen Practisers in the Courts of Law and Equity was established in England in 1739 but never attracted more than 200 members and had ceased to function by the early 1800s (Abel 1988d: 242). When former colonies gain independence, colonial elites are displaced by indigenous lawyers, more or less quickly (compare Nigeria, see Uzebu-Imarhiagbe Vol 1, ch 25, and Zimbabwe, see Karekwaivanane Vol 1, ch 27, with Kenya, see Kamau Vol 1, ch 24, and South Africa, see Klaaren Vol 1, ch 26). It took decades for local Taiwanese lawyers to displace Mainlanders in the Taipei Bar (Hsu Vol 1, ch 41). Professional associations also may have to deal with issues arising from either unification (eg Vietnam, see Nicholson and Do Vol 1, ch 43; Germany, see Kilian and Schultz Vol 1, ch 10) or fission (eg Palestine, see Qafisheh Vol 1, ch 32; Serbia and Bosnia and Herzegovina, see Vuković et al Vol 1, ch 17). Professional associations engage in a wide variety of activities. Some are patently selfinterested, such as controlling their numbers, restricting competition, and negotiating fees and taxes with the government (eg Serbia and Bosnia and Herzegovina, see Vukovič et al Vol 1, ch 17). Some exist primarily to provide members with social services, such as health care and pensions (eg Egypt, see Bernard-Maugiron and Omar Vol 1, ch 28). Some address domestic legal issues, such as rationalisation of substantive and procedural law and reform of legal institutions (eg the Law Council of Australia, see Thornton and Wood Vol 1, ch 2; the German Federal Chamber of Advocates and the Advocates Association, see Kilian and Schultz Vol 1, ch 10). Some defend courts from executive or legislative interference (eg England and Wales, see Sommerlad et al Vol 1, ch 4). Some seek to protect members from state abuses, such as contempt citations by judges and jail sentences for criminal defence lawyers (eg China, see Michelson 2011; Liu Vol 1, ch 35; Egypt, see Bernard-Maugiron and Omar Vol 1, ch 28), sometimes even going on strike.4 Palestinian lawyers boycotted the bar association that the Israeli military occupation had established on the West Bank (Qafisheh Vol 1, ch 32). (I deal below with other functions, such as discipline and legal aid.)



3 See

www.nlg.org/about/history/. lawyers strike over arrest of colleagues in assault’ AP (13 December 2019).

4 ‘Pakistan

622  Richard L Abel Globalisation exposes professional associations to the influence of supranational authorities, such as the EU and IMF, as well as US and EU efforts to export their legal institutions (Hammerslev 2011). Changes in German lawyers’ restrictive practices resulted from rulings by both German courts and the European Community, not the profession itself (Kilian and Schultz Vol 1, ch 10); in Italy, they were a product of decisions by the Italian Authority for Competition and the Market and an EU directive (Micelotta and Dorian Vol 1, ch 11). The IMF required Indonesia to create a single bar association with regulatory power, although the new organisation promptly spawned dissident groups (Kouwagam and Bedner Vol 1, ch 37). US pressure to allow its lawyers to practise in Japan prompted the latter to reform its legal education and entry barriers (Murayama Vol 1, ch 38). In pursuit of EU membership, Turkey made the Union of Turkish Bar Associations independent of the Ministry of Justice (Kalem Vol 1, ch 34). II. SELF-REGULATION

When professions seek to govern themselves, self-regulation often is at the top of their agenda (Semple 2015) since they base their claim to autonomy in part on the assertion that only they possess the expertise necessary to define rules of conduct, determine whether these have been broken, and choose the appropriate response (Parsons 1964; 1968; Abbott 1988). (The rare exceptions, therefore, pose fundamental questions about what it means to be a profession. Indonesia promulgated a legal ethics code and created an enforcement procedure only in 2003, under IMF pressure, see Kouwagam and Bedner Vol 1, ch 37. Russia adopted its first Code of Professional Ethics of Advocates the same year, see Moiseeva and Bocharov Vol 1, ch 16. Mexico has neither: lawyers are regulated only by the general criminal law, see Pérez-Hurtado Vol 1, ch 21.) But all self-regulation confronts doubts about ‘quis custodiet ipsos custodes’, setting foxes to guard henhouses. The record in other domains – police, military, medical doctors, schools and universities, churches – offers ample grounds for cynicism. That is one reason why professional associations have felt increasing pressure to separate their representational and regulatory functions (eg England and Wales, see Sommerlad et al Vol 1, ch 4; Germany, see Kilian and Schultz Vol 1, ch 10). Even if the basic premise of self-regulation is granted, however, many questions remain (see Boon and Semple, ch 9 above). Should it be entrusted to local communities (as Goode 1957 characterised professions) or the national association? Local associations possess superior knowledge about lawyers and their working environment and can mobilise professional opinion and other informal sanctions against deviance, but they are constrained from acting by their focus on socialising, networking, and mutual referrals (eg California, see Abel 2011: ch 1). National associations can be more objective but may be seen as intruders or elitist oppressors (eg Mexico, see Pérez-Hurtado Vol 1, ch 21). Australian states and territories have resisted national regulation (Thornton and Wood Vol 1, ch 2); Switzerland embraced it only recently (Boni-Le Goff et al Vol 1, ch 13). Voluntary bar associations typically can discipline only their members (eg Chile, see Villalonga Vol 1, ch 20; but cf New York City, see Powell 1988: 16–17). Divisions within the profession – between large firms and small firms, especially solo practitioners (eg US, see Abel 1989b: 144–45; Denmark, see Blomquist 2000: 119; Switzerland, see Boni-Le Goff et al Vol 1, ch 13), ethnic groups (eg Kenya, see Odenyo 1981: Table 7; Nigeria, see Uzebu-Imarhiagbe Vol 1, ch 24), and among substantive specialisations (Levin and Mather 2012) – prompt questions about whether regulation is fair and even-handed. Some legal professions that once regulated themselves may subsequently suffer subordination to courts (eg Russia, see Moiseeva and Bocharov Vol 1, ch 16). Conversely, those that had

Conclusion: Comparative Sociology of Lawyers, 1988–2018  623 been regulated by courts may become self-regulating. Regulation was transferred from the Ministry of Justice to the Korean Bar Association in 2000 (although the Ministry still reviews disciplinary decisions) (Kim Vol 1, ch 40). Authority may be shared between the profession and other entities. German Rechtsanwaltskammern (bar associations) conducted disciplinary hearings, but these were prosecuted by state prosecutors, and appeals went to a mixed bench of lawyers and judges (Rueschemeyer 1973: 59). After supervision of Dutch lawyers was transferred to an independent Supervisory Committee, the local bar associations’ deans retained disciplinary authority (Doornbos and de Groot-van Leeuwen Vol 1, ch 12). Even selfregulating professions may be subjected to external control. Courts (eg Israel, see Katvan et al Vol 1, ch 30; Germany, see Kilian and Schultz Vol 1, ch 10) and regulatory agencies (eg Danish Monopolies and Mergers Commission, see Hammerslev Vol 1, ch 8; Italian Authority for Competition and the Market, see Micelotta and Dorian Vol 1, ch 11; Australian Competition and Consumer Commission, see Thornton and Wood Vol 1, ch 2) have invalidated some of the profession’s ethical rules. Echoing George Bernard Shaw’s quip that ‘all professions are conspiracies against the laity’ (1909), neoliberalism views self-regulation as a pretext for extracting monopoly rents. Canada may be the sole remaining ‘unfettered self-regulator’ in the common law world (Dinovitzer and Dawe Vol 1, ch 3). Lawyers tend to elevate loyalty to clients over other ethical obligations (while simultaneously disclaiming moral responsibility for their clients’ actions, see Schwartz 1978; Luban 1983). External bodies (legislators, courts, agencies), by contrast, may impose obligations to third parties (including adversaries, especially those unrepresented) and society (eg to expose money laundering, prevent tax evasion, or build socialism) (eg Israel, see Katvan et al Vol 1, ch 30; Switzerland, see Boni-LeGoff et al Vol 1, ch 13; Belgium, see Gibens et al Vol 1, ch 7; see also Levi, ch 25 above). In most countries, lawyers owe clients a duty of confidentiality, although they must disclose a client’s plans to commit future crimes; lawyers in Vietnam, however, must also disclose clients’ past offences (Nicholson and Do Vol 1, ch 43). The recent codification of ethical rules in the Netherlands included the values of independence, partisanship, expertise, integrity, and confidentiality but bowed to lawyers by not imposing a duty of public responsibility (Doornbos and de Groot-van Leeuwen Vol 1, ch 12). Self-regulation tends to focus on the concerns of lawyers, such as intra-professional competition (ambulance chasing, price cutting, conflicts of interest), rather than those of clients, namely unresponsiveness, delay, and excessive fees (although disciplinary tribunals in England and Wales, Australia, the Netherlands and Germany can order lawyers to compensate clients for poor service, see Kritzer and Vidmar 2018). Just as legal scholarship tends to ignore social scientific findings about the actions that law purports to regulate, so legal ethics generally disregards evidence about lawyers’ behaviour (but see Sarat and Felstiner 1995; Mather et al 2001; Shapiro 2002; Regan 2004; Abel 2008; 2011; 2012; see generally Abel and Lewis 1995). Self-regulation rarely addresses issues of competence, although voluntary quality standards, like LEXCEL promulgated by the Law Society of England and Wales, can motivate lawyers to improve their performance (Sommerlad et al Vol 1, ch 4). Malpractice claims are an inadequate alternative (Kritzer and Vidmar 2018). In France, the Conseils de l’Ordre have responsibility to prevent malpractice, but complaints are heard by appellate court magistrates (Bessy and Bastard Vol 1, ch 9). Many professions resist requiring malpractice insurance (only one of the 50 US states does so, see Abel 2008: 63) or disagree about how to set premium levels (eg England and Wales, see Abel 2003: 356, 381). Disciplinary proceedings display the attrition common in criminal and civil matters, symbolised by the litigation pyramid: most complaints are dismissed (because the behaviour falls outside ethical proscriptions or the forum lacks jurisdiction); and non-lawyers view the rare penalties as a proverbial slap on the wrist (eg US, see Abel 1988d: chs 9, 16; UK, see

624  Richard L Abel Abel 1989b: ch 7). There may be demands for greater transparency (since grievances, hearings, outcomes, and even punishments tend to be secret) and lay participation (eg Ireland, see Hosier 2014: chs 4–5; South Africa, see Klaaren Vol 1, ch 26). Professions tend to blame unethical behaviour on inexperience, even though older lawyers are overrepresented in disciplinary proceedings (eg Ghana, see Dawuni 2017; Japan, see Murayama Vol 1, ch 38; Zimbabwe, see Karekwaivanane Vol 1, ch 27). States may use regulation to suppress political opposition (eg US, see Harvard Civil Rights-Civil Liberties Law Review 1970; China, see Liu and Halliday 2016). Under Ataturk, the Ministry of Justice could disqualify lawyers who represented dissidents by accusing the lawyers of ‘betrayal of the nation’ (Kalem Vol 1, ch 34). In Vietnam, ethical rules require the legal profession to contribute to ‘the construction of a socialist law-based state’ and prohibit lawyers from ‘exploiting their practice of law … to cause a negative impact on national security [or] public order and safety, [or] infringe upon the interests of the state’ (Nicholson and Do Vol 1, ch 43). III.  LEGAL AID AND PRO BONO

Although some socialist economies nationalise the legal profession, making its services freely available (eg Libya, see Carlisle Vol 1, ch 31), all capitalist economies distribute legal services through the market, enabling those who can pay the most to obtain the greatest amount and best quality (thereby creating the profession’s two increasingly unequal hemispheres, see Heinz and Laumann 1982; Heinz et al 2005). But since all legal professions purport to serve justice – often equal justice (the promise carved on the pediment of the US Supreme Court) – most feel some obligation to correct this imbalance (see Hunter et al ch 13 above). Although many professions publicly declare their responsibility to provide legal aid and may even require associations and lawyers to participate, that often is mere lip service (eg Argentina, see Böhmer Vol 1, ch 18; India, see Ballakrishnen Vol 1, ch 36; Egypt, see Bernard-Maugiron and Omar Vol 1, ch 28; Russia, see Moiseeva and Bocharov Vol 1, ch 16). In the 1970s, only 11 per cent of Kenyan lawyers volunteered for the legal aid programme (Odenyo 1981). A few countries pioneered legal aid programmes: Denmark in the nineteenth century (Hammerslev Vol 1, ch 8), US charities and cities at the turn of that century (Abel 1985), Chilean law students paid to provide services as part of their compulsory training in the early twentieth century (Le Saux 2016; Villalonga Vol 1, ch 20). But most countries established legal aid during the welfare state expansion after World War II. Some legal professions initially were suspicious or hostile: American Bar Association leaders denounced the English legal aid scheme as ‘creeping socialism’ (Abel 1985; 1989b: 132; Grosberg 1997), one reason why only the US has relied primarily on staffed offices rather than a ‘judicare’ model in which the state reimburses private practitioners. A few countries recently supplemented or replaced judicare with staffed offices (eg South Africa, see Klaaren Vol 1, ch 26; Sweden, see Schoultz 2018; Hammerslev Vol 1, ch 8). Most private practitioners welcomed this source of additional demand, which allowed barristers in England and Wales to survive the early years of practice (Abel 1988d: 61–62). Over the last three decades, recessions, the fiscal crisis of the state, and the rise of neoliberal ideologies have led to cuts, often drastic, in legal aid budgets (eg England and Wales, see Sommerlad and Wall 1999; Sommerlad 2001; Sommerlad and Sanderson 2013; Sommerlad et al Vol 1, ch 4; Sweden, see Schoultz 2018; Iceland, see Antonsdóttir 2018; Nordic countries, see Hammerslev Vol 1, ch 8; Hammerslev and Rønning 2018; Netherlands, see Doornbos and de

Conclusion: Comparative Sociology of Lawyers, 1988–2018  625 Groot-van Leeuwen Vol 1, ch 12). This has two consequences: on the demand side, a smaller proportion of the population is eligible – just 8 per cent in Australia (Thornton and Wood Vol 1, ch 2); on the supply side, lawyer reluctance to handle legal aid cases at the lower reimbursement levels concentrates such work in a dwindling number of specialist firms (which must mass process such cases) and erodes support for the programmes among the profession as a whole. Some states have restricted legal aid lawyers for political reasons: prohibiting representation on issues of welfare, abortion, immigration, and class actions in the US (Abel 1985), persecuting criminal defence lawyers in China (Liu and Halliday 2016; Liu Vol 1, ch 35). However, these trends are far from uniform. The proportion of Swiss lawyers relying on legal aid for 20 per cent of their caseloads increased between 2003 and 2010 (Boni-Le Goff et al Vol 1, ch 13); 79 per cent of French lawyers took at least one legal aid case in 2000 (Bessy and Bastard Vol 1, ch 9); 44 per cent of Dutch Bar Association members participated in legal aid (Doornbos and de Groot-van Leeuwen Vol 1, ch 12); and the proportion of Japanese lawyers willing to do legal aid increased from 37 to 56 per cent for civil cases and from 47 to 71 per cent for criminal cases in the ten years 2006–16 (Murayama Vol 1, ch 38). Some countries have seen legal aid budgets increase, eg Belgium (Gibens et al Vol 1, ch 7), Canada (more than tenfold in constant dollars between 1973 and 2014) (Dinovitzer and Dawe Vol 1, ch 3), France (Bessy and Bastard Vol 1, ch 9), Italy (Micelotta and Dorian Vol 1, ch 11); Japan (sevenfold from between 2000 and 2010) (Murayama Vol 1, ch 38), Taiwan (Hsu Vol 1, ch 41), South Korea (Kim Vol 1, ch 40), Israel (Katvan et al Vol 1, ch 30), Denmark (Kristiansen 2018) and Norway (Rønning 2018). In some civil law countries, public lawyers also represent individuals (eg Chile, see Villalonga Vol 1, ch 20; Brazil, see Bonelli and Fortes Vol 1, ch 19). Lawyers and law students have offered advice in storefront offices and even buses, especially in the Nordic countries (Hammerslev Vol 1, ch 8). Professional associations have generally championed legal aid programmes (eg Iceland, see Antonsdóttir 2018). Lawyers in Norway (Rønning 2018) and France (Bessy and Bastard Vol 1, ch 9) have called strikes to protest low legal aid fees, which discourage all but the least successful lawyers from taking these cases (eg Vietnam, see Nicholson and Do Vol 1, ch 43). Budget cuts may force legal aid programmes to prioritise advice over litigation (eg Belgium, see Gibens et al Vol 1, ch 7). Systems of tendering create perverse incentives to minimise the amount of time invested in each case. Reduced state expenditures have prompted a variety of alternatives. Legal professions that mocked American ‘cowboys’ for taking personal injury cases on contingent fees have adopted conditional fees, shifting the cost of litigation to the losing party (thereby creating disincentives for lawyers to accept plaintiffs with uncertain claims) (eg England and Wales, see Abel 2002; Sommerlad et al Vol 1, ch 4). Legal expenses insurance is widespread, almost universal, in Germany (where its budget was more than seven times larger than legal aid, see Kilian and Schultz Vol 1, ch 10) and Denmark (Kristiansen 2018); and clients recently were required to use it before resorting to legal aid in Sweden (Schoultz 2018) and Finland (Rissanen 2018). Litigants have been helped – and expected – to represent themselves or rely on unqualified representatives, such as ‘McKenzie Friends’ in England and Wales (Sommerlad et al Vol 1, ch 4). In Russia, an estimated one million unlicensed practitioners do everything but criminal defence (Moiseeva and Bocharov Vol 1, ch 16); in China, township legal workers substituted for the absence of lawyers (Liu Vol 1, ch 35); but when Germany relaxed the rules against unauthorised practice, few non-lawyers offered legal advice because they lack liability insurance (Kilian and Schultz Vol 1, ch 10). An increasing number of law faculties have established student clinics (eg Palestine, see Qafisheh Vol 1, ch 32), which have pedagogic value but may leave clients dependent on inexperienced student lawyers. Legal aid cuts have been accompanied by (and may have contributed to) increasing involvement by

626  Richard L Abel non-governmental organisations (eg Argentina, see Böhmer Vol 1, ch 18), shifting the financial burden from the state to private philanthropy. Other innovations have evoked mixed responses. In a few countries, private practitioners offer mass processing of routinised claims at cut rates, often relying heavily on paralegals, unqualified practitioners, and law graduates not admitted to practice (eg Japan, see Murayama Vol 1, ch 38; Brazil, see Bonelli and Fortes Vol 1, ch 19; US, see Van Hoy 1997; England and Wales, see Sommerlad et al Vol 1, ch 4). But firms have been disciplined for this in other ­countries (eg France, see Bessy and Bastard Vol 1, ch 9; Italy, see Micelotta and Dorian Vol 1, ch 11; Chile, see Villalonga Vol 1, ch 20). And the Israel Bar Association aggressively opposed competition from non-lawyers in disability and medical entitlement claims, debt collection, land registration, and family disputes (Katvan et al Vol 1, ch 30). Some countries have begun offering law degrees that do not qualify holders to appear in court (eg Belgium, see Gibens et al Vol 1, ch 7; Germany, see Kilian and Schultz Vol 1, ch 10). Similarly, law graduates who have failed the bar exam may seek such work (eg Brazil, see Bonelli and Fortes Vol 1, ch 19). The high cost of lawyers has led Indian litigants to use informal courts (Ballakrishnen Vol 1, ch 36); and other countries have turned to alternative dispute resolution to reduce the cost of litigation (eg Belgium, see Gibens et al Vol 1, ch 7; Kenya, see Kamau Vol 1, ch 24). At the other end of the professional hierarchy, large firms, which have been growing in number and size in many countries, have been offering and expanding pro bono services (see Hunter et al ch 13 above). Efforts to make this mandatory have been largely unsuccessful and were even declared unconstitutional in Chile (Villalonga Vol 1, ch 20); and mere exhortation is ineffective (eg Nigeria, see Uzebu-Imarhiagbe Vol 1, ch 25). Laws requiring professional associations to offer pro bono services are unenforced (eg Vietnam, see Nicholson and Do Vol 1, ch 43). In Israel, just 10 per cent of lawyers offered pro bono services in 2014, although there is a proposal to make this mandatory (Katvan et al Vol 1, ch 30). Cause lawyers, responding to the rights revolution and the creation of constitutional courts, have sought structural change (eg South Africa, see Klaaren Vol 1, ch 26; Venezuela, see Gómez and Pérez-Perdomo Vol 1, ch 22; Bryson et al ch 13 above). All these initiatives have provoked resentment from solo and small firm lawyers, who fear the competition (eg Brazil, see Almeida and Nassar 2018; Sa e Silva 2018; India, see Gupta 2017). The Israel Bar Association prohibited cause lawyers from charging fees or collecting court-ordered fees and brought unauthorised practice of law claims against them and law student clinics (Katvan et al Vol 1, ch 30). IV.  LAWYERS IN POLITICS

The most obvious way lawyers engage with the state is not only through their monopoly in the judiciary but also by serving in the executive and legislature. Historically, lawyers have been prominent in both branches, both because law often was the largest faculty in universities (especially in the civil law world) and because lawyers play a central role in state formation by drafting constitutions and laws. This was true in India, the US, Canada, Australia, France, Norway, Brazil, Venezuela, and Egypt (Abel 1989a: 105; for Egypt, see Moustafa 2007; BernardMaugiron and Omar Vol 1, ch 28). That dominance began to decline in the twentieth century in France, Italy, Norway, England and Wales, and Scotland (Abel 1989a: 105; Lewis 1989: 38), and this has continued. The proportion of members of the Indian Lok Sabha (Parliament) who were lawyers fell from 36 per cent in 1952 to just 7 today, although more than a third of Cabinet members in 2017 were lawyers (Ballakrishnen Vol 1, ch 36). In Chile, lawyers were 60 per cent of the legislature in the 1970s but just 37 per cent of the Senate and 28 per cent of the

Conclusion: Comparative Sociology of Lawyers, 1988–2018  627 Chamber of Deputies in 2017; all the presidents in the first half of the twentieth century but just two out of seven between 1990 and 2018 (Villalonga Vol 1, ch 20). Lawyers were 43 per cent of the Italian Chamber of Deputies in 1914, but the proportion declined under fascism to 24 per cent in 1945 and then to just 11.5 per cent in 1987 (Malatesta 2011). But there are almost as many counterexamples: since 1983, all but one Argentine president has been a lawyer, and lawyers are now about 30 per cent of Representatives and 40 per cent of Senators (Böhmer Vol 1, ch 18); all three Ghanaian presidents since 2000 have been lawyers, and the proportion in the legislature may be returning to the 30 per cent it was in 1969–72 (Dawuni 2017). V.  REGIME CHANGE

Much of the research and theory concerning legal professions deals with those in relatively stable regimes (but see Burrage 1989; 2006). But most legal professions, perhaps all, have experienced ruptures: colonisation and independence (eg Britain and China in Hong Kong, Japan and Mainlander Chinese in Taiwan, see Hsu Vol 1, ch 41; Japan in Korea, see Kim Vol 1, ch 40; Britain in Myanmar, see Crouch Vol 1, ch 39; Britain in Ghana, see Dawuni 2017; Britain in Zimbabwe, see Karekwaivanane Vol 1, ch 27; Belgium in Burundi, see Dezalay Vol 1, ch 23); the importation of foreign legal systems (eg Prussian in Japan, see Rokumoto 1988; Swiss and French in Turkey, see Kalem Vol 1, ch 34); the displacement of civil law by common law (eg the shift from inquisitorial to accusatorial criminal procedure in Argentina, see Langer 2004; 2007; Böhmer, Vol 1, ch 18); transitions between capitalism and socialism (eg Vietnam, see Nicholson and Do Vol 1, ch 43; Myanmar, see Crouch Vol 1, ch 39; Russia, see Moiseeva and Bocharov Vol 1, ch 16; Czech Republic, see Kober Vol 1, ch 14; Poland, see Gadowska Vol 1, ch 15; East Germany, see Kilian and Schultz Vol 1, ch 10), secular and religious law (eg Egypt, see Bernard-Maugiron and Omar Vol 1, ch 28; Libya, see Carlisle Vol 1, ch 31; Iran, see Banakar and Ziaee Vol 1, ch 29; Turkey, see Kalem Vol 1, ch 34), military and civilian rule (eg Argentina, see Böhmer Vol 1, ch 18; Chile, see Villalonga Vol 1, ch 20; South Korea, see Kim Vol 1, ch 40), democracy and autocracy, social democracy and neoliberalism; and both national unification (eg Italy, see Malatesta 2011; Vietnam, see Nicholson and Do Vol 1, ch 43) and fission (eg Yugoslavia, see Vukovič et al Vol 1, ch 17). Some countries had to cope with multiple transitions between Islamic and secular law, colonialism and independence, autocracy and liberalism. Egypt historically followed Sharia law, under which the qadi performed the roles of both judge and lawyer. It then underwent French and British colonialism (which imposed a dual legal system), Nasser’s military coup and subsequent nationalist and socialist regime (which subjected lawyers and professional associations to state control), opposition by the Islamist Muslim Brotherhood (which sought to restore Sharia), and autocratic rule by Mubarak and his successors (which suppressed the Brotherhood) (Moustafa 2007; Bernard-Maugiron and Omar Vol 1, ch 28). Libya, created by amalgamating three distinct regions, was ruled by the Ottoman Empire, Italy, France and Britain before gaining independence under a monarchy (Carlisle Vol 1, ch 31). This was overthrown by Gaddafi, who created a parallel system of revolutionary courts operating without lawyers and then nationalised the legal profession, before letting lawyers resume private practice in 1990. After Khomeini’s Islamic revolution, Iran suppressed the Iran Bar Association, and many courts barred lawyers (Banakar and Ziaee Vol 1, ch 29). When courts were required to admit them, some judges treated lawyers with contempt, and the regime created a new category of ‘legal advisors of the judiciary’, over which it exercised greater control. In Turkey, Ataturk’s one-party westernisation and secularisation was followed by multiparty democracy,

628  Richard L Abel interrupted by repeated military coups and now Erdoğan’s one-party rule and movement to re-Islamicise the country (Kalem Vol 1, ch 28). French colonial rule in Tunisia created a dual legal system: French-trained lawyers in French courts and ouakils administering Sharia in the local judiciary (Gobe Vol 1, ch 33). Independence saw the departure of most French lawyers (because they were Jewish), one-party rule, and a military coup, before the return to democracy (since largely suspended). Other countries also experienced transitions from colonialism. Colombia imported European liberal ideals after the Bolivarian anti-colonial revolution but then suffered decades of civil war, endemic violence, military dictatorship, and the ravages of the drug trade (Lynch 1981). Palestine was subjected to colonial rule by the Ottoman Empire, Britain, Jordan, Egypt, and Israel (Qafisheh Vol 1, ch 32). After the 1967 war, Israel imposed military rule on the Occupied Territories, banned and deported some Palestinian lawyers, and restored government control over the profession, which had been exercised by Britain under the Mandate before 1947 and Egypt (in Gaza) after that date. Serbia and Bosnia and Herzegovina were ruled by the Ottoman Empire (which applied Sharia), the Austro-Hungarian Empire (with its civil codes), the canon law of both the Roman Catholic and Eastern Orthodox churches, and Nazi occupation, before attaining independence, followed by communism, the break-up of Yugoslavia, the end of communism, and civil war (Vukovič et al Vol 1, ch 17). Thailand experienced transitions from absolute monarchy to military dictatorship to democracy (Munger Vol 1, ch 42). Many African countries created an indigenous legal profession only after winning independence.5 English lawyers dominated the colonial civil service in Tanganyika and Kenya, both of which excluded lawyers from the Native Tribunals serving Africans. European lawyers helped draft emergency legislation abridging rights in the effort to suppress the Mau Mau uprising in Kenya. At independence, Tanzania had just two African lawyers and Kenya five (Ghai 1981; Rwelamira 1981; Odenyo 1981; Kamau Vol 1, ch 24). Under Nyerere’s African Socialism, Tanzania created the Tanzania Legal Corporation, whose lawyers served the parastatals that dominated the economy, leaving little scope for private practice. Nigeria, by contrast, had 540 indigenous lawyers at independence; and the approximately 400 expatriates left soon thereafter (Uzebu-Imarhiagbe Vol 1, ch 25). But because the military ruled Nigeria for 28 of its first 33 years of independence, the legal profession regained its autonomy only after the transition to democracy in 2000. Ghanaian lawyers played major roles in the restoration of civilian rule following the military regimes that had succeeded Nkrumah’s one-party state; lawyers both served in and criticised later military regimes, striking in support of student protesters (Luckham 1981). In South Africa, white lawyers helped to construct apartheid, which excluded virtually all blacks from the legal profession, discrimination the country is only gradually correcting (Klaaren Vol 1, ch 26). (But white and black lawyers also played central roles in the ultimately successful struggle against apartheid, see Abel 1995.) Lawyers in Sudan had to deal with Egyptian domination, repeated military coups, a one-party state, tensions between nationalists and socialists, Sharia and common law, Arabic and English speakers, and the 2011 secession of South Sudan (Salman 1981; Massoud 2012). In Burundi, Belgian colonialism created a Belgian legal system for Europeans and separate courts for Africans, staffed by Belgian magistrates who invented ‘customary’ law, while replacing traditional elders with elected mayors (Dezalay Vol 1, ch 23). There were no African lawyers at independence. The colonial regime fostered ethnic (Hutu/Tutsi) and regional divisions, which intensified after independence, eventuating in genocidal killing. Efforts to administer post-conflict justice, the growth of extractive industries, and increasing integration of the East African Community created unprecedented demand for lawyers.

5 On

the impact of colonialism, see Dezalay, ch 3 above; Sommerlad et al, ch 8 above.

Conclusion: Comparative Sociology of Lawyers, 1988–2018  629 After Russia’s 1917 revolution, the legal profession was collectivised and subordinated to courts, although lawyers’ core function (and sole monopoly) remained criminal defence (Moiseeva and Bocharov Vol 1, ch 16). After its communist revolution, China abolished the legal profession in 1957, only to revive it in 1980 (Liu Vol 1, ch 35). In both countries, the emergence of a market economy and the influence of globalisation created a new professional sector catering to domestic and foreign capital. Under a ‘pacted democracy’, Venezuela’s two major parties took turns ruling between 1958 and 1998, as the exploitation of oil resources created a boom for elite lawyers (Gómez and Pérez-Perdomo Vol 1, ch 22; Gómez 2011). But expropriation of foreign capital and economic collapse under the socialist regimes of Chávez and Maduro have had devastating consequences for the legal profession. VI.  RULE OF LAW

Legal professions and the rule of law are mutually constitutive. In countries without the rule of law, lawyers have little advantage over other actors in opposing state power, which is governed by corruption, cronyism, and caprice. The rule of law, in turn, depends on lawyers, who alone possess the technical expertise to promote adherence to its essential elements: predictability, impartiality, and generality. But lawyers have a mixed record of supporting the rule of law (Dezalay and Garth 2010), which the US has sought to export to other countries (Dezalay and Garth 2002; Hammerslev 2011). In Ghana, lawyers supported the transition to civilian rule in 1969 but then participated in the military regime that seized power three years later (Luckham 1981). In Kenya’s one-party state, most domestic lawyers were afraid to represent those charged with political crimes (who had to rely on lawyers flying in from Britain) (Ghai 1981). Only towards the end of Argentina’s military dictatorship did young labour and criminal defence lawyers risk opposing the regime (Vecchioli 2011). Sarat and Sheingold (1998) found that cause lawyering was more likely to emerge in liberal than authoritarian regimes and was defensive in the latter. Menkel-Meadow (1998) sought to identify the motivations of individual cause lawyers; I examined the structural features of the legal system that tended to encourage cause lawyering (Abel 1998a). Halliday, Karpik and Feeley have made an indispensable contribution to exploring this relationship. In their first edited collection, Halliday and Karpik (1997a; 1997b; see also Karpik 2007) argued that the legal complex (which includes the legal profession, judiciary and legal academy) is predisposed to construct and defend political liberalism. However, the case studies in their volume revealed a more nuanced relationship (see Abel 1998b). In France, lawyers defended civil society against the ancien régime, but during the Revolution they supported the efforts of the increasingly authoritarian state to subordinate civil society (Bell 1997). Karpik (1997) also emphasises lawyers’ political engagement in eighteenth- and nineteenth-century France but acknowledges their failure to defend Dreyfus or participate in the increasingly important working-class struggles. Burrage (1997) describes the resistance of the English legal profession (especially the Bar) to Thatcher’s neoliberal reforms but ignores the fact that this expressed economic self-interest cloaked in rule of law rhetoric (see Abel 2003: chs 2–3, 5–6). Fearing competition from legal aid, US lawyers prohibited it from handling cases involving bankruptcy, divorce, and personal injuries (Abel 1982; Grosberg 1997). Pue (1997) notes that some English lawyers championed political liberalism during the eighteenthcentury persecution of the Wilkites, but many others, especially the elite, defended privilege. In nineteenth-century Prussia, justizkommisäre were effectively civil servants controlled by the state (Rueschemeyer 1997). German lawyers failed to oppose Nazism, and many supported the

630  Richard L Abel expulsion of Jews from the profession to relieve the ‘overcrowding’ caused by the Depression (Müller 1991; Ledford 1997). Under Mussolini, local bar association councils were appointed by the state rather than elected by their members (Guarneri 2007). Their project’s second book (Halliday et al 2007a) acknowledged ‘exceptions to the association’. In South Korea and Taiwan (Ginsburg 2007), Hong Kong (Jones 2007), Japan (Upham 1987; Feeley and Miyazawa 2007), Egypt (Moustafa 2007), and Israel (Barzilai 2007), it was the small minority of progressive lawyers and groups that promoted political liberalism, while national associations were silent or complicit in abuses. In China, only a handful of beleaguered lawyers represented criminal defendants in political cases (Halliday and Liu 2007; Liu and Halliday 2016; Peerenboom 2011). In Turkey, lawyers involved in NGOs advocated for political liberalism, while professional associations tended to support the state (Arslan 2007). In Latin America, it was NGOs, not lawyers, who opposed police violence (Brinks 2007). In Chile, a tiny fraction of lawyers led by the Catholic Church resisted Pinochet, while the Colegio de Abogados (in which membership was mandatory) supported the regime and did not participate in the restoration of democracy (Couso 2007). In Venezuela, neither individual Colegios de Abogados nor the national federation opposed the Chávez regime; only a few lawyers took cases against the state, just a fraction of those for political reasons (Pérez Perdomo 2006). In the US after 9/11, Bush administration lawyers constructed the legal framework authorising abuses (torture, extraordinary rendition, detention without trial, and electronic surveillance), while a wide range of lawyers and legal academics, as well as the ABA and New York City Bar, defended the rule of law (Abel 2007; 2018a; 2018b). Toward the end of Franco’s regime, a few dissident Spanish judges and prosecutors began to organise for a democratic transition (Hilbink 2007). Noting that ‘in certain countries and during certain periods lawyers have become illiberal’, the project’s third book posited three possible outcomes – liberal legalism, despotism, and volatility (Halliday et al 2012: 7, 15) – illustrated by case studies of India (De 2012; Epp 2012; Mate 2012), Singapore (Rajah 2012), Sudan (Massoud 2012), Sri Lanka (Udagama 2012), Malaysia (Harding and Whiting 2012), Pakistan (Aziz 2012; Ghias 2012; Munir 2012), and Zambia, Malawi and Namibia (Gould 2012; VonDoepp 2012). Our 46 national reports confirm the complex, contextually specific relationship between the legal profession and the rule of law. Authoritarian regimes use a variety of strategies to discourage opposition by lawyers. Iranian judges – selected for religious orthodoxy and ideological loyalty and then trained in a special school – exhibit hostility toward defence lawyers, sometimes urging parties to fire them (Banaker and Ziaee Vol 1, ch 29). Egyptian judges also are suspicious of lawyers, whom they regard as their assistants; the Bar Association responded to this disrespect by forbidding lawyers to appear in some courts, organising conferences on human rights, and demanding guarantees of lawyer immunity (Bernard-Maugiron and Omar Vol 1, ch 28). In Libya, Gaddafi effectively silenced lawyers by nationalising the legal profession, replacing the independent Bar Association with the General Professions Conference (which was subordinate to the government) while allowing court clerks and other state employees to qualify as lawyers and judges and prosecutors to transfer to private practice, thereby ensuring a constituency favourable to the regime (Carlisle Vol 1, ch 31). Habib Bourgiba, who led Tunisia during its first 30 years of independence, exhorted lawyers to assist judges rather than act independently (Gobe Vol 1, ch 33). Under his successor, Ben Ali (who ruled for another 25 years), a small fraction of lawyers belonging to the single party (about 7 per cent) monopolised the lucrative practice of litigation on behalf of the state, which they uncritically supported. In Zimbabwe, the government of Robert Mugabe and his ZANU PF declared repeated emergencies, imprisoned, tortured and killed opponents, re-detained those released by courts, and condemned the Chief Justice for opining on the constitutionality of laws not before his court (Karekwaivanane Vol 1, ch 27).

Conclusion: Comparative Sociology of Lawyers, 1988–2018  631 Criminal defence lawyers in China (Liu Vol 1, ch 35; Liu and Halliday 2016), Myanmar (Crouch Vol 1, ch 39), and Vietnam (Nicholson and Do Vol 1, ch 43) have been disbarred, jailed, tortured and even killed, while their professional associations have not defended them. In countries where it is too risky for domestic lawyers to represent those accused of political crimes, foreign lawyers may fly in to do so (eg Burundi, see Dezalay Vol 1, ch 23; see also Kenya and Hong Kong). Because the extreme polarisation in Burundi between Tutsi and Hutu extends to NGOs and courts, INGOs like the Belgian Avocats Sans Frontières and traditional institutions like the bashingantahe have assumed some legal roles (Dezalay Vol 1, ch 23). In Chile, the Vicariate of the Solidarity and the Catholic Church played a larger role than the legal profession in opposing Pinochet (Villalonga Vol 1, ch 20). In countries where corruption is pervasive, lawyers are unavoidably involved (Levi, ch 25 above), eg China (Liu Vol 1, ch 35), Egypt (Bernard-Maugiron and Omar Vol 1, ch 28), Indonesia (Kouwagam and Bedner Vol 1, ch 37), Kenya (Kamau Vol 1, ch 24), and Venezuela (Gómez and Pérez-Perdomo Vol 1, ch 22). Lawyers in countries that had experienced or aspired to liberal values were more likely to defend or advocate for them. In both France (Bessy and Bastard Vol 1, ch 9) and Tsarist Russia (Moiseeva and Bocharov Vol 1, ch 16), lawyers who defended those accused of political crimes acquired cultural capital, while also burnishing the profession’s image. In Taiwan, the Kuomintang government allowed former prosecutors and civilian and military judges to become private practitioners because most were Mainlanders who supported the regime (Hsu Vol 1, ch 41). But once civilian Taiwanese lawyers won electoral control of the Taipei Bar Association, it began advocating for human rights, democratisation, and reforms of criminal and civil procedure and administrative law. After the transfer of Hong Kong to China in 1997, lawyers actively defended judicial autonomy, organising four major demonstrations (ibid; cf Dezalay and Garth 2010: ch 12). Although barristers initially were more aggressive than solicitors, the Law Society forced out a president who had sided with China. In South Korea, Lawyers for a Democratic Society began organising in the 1980s; and lawyers played a pivotal role in the ‘candlelight revolution’ leading to impeachment of President Park and brought many challenges to the Constitutional Court (ibid: chs 7–8, 13; Kim Vol 1, ch 40). After the end of military dictatorship in Argentina in 1983, lawyers joined efforts to punish the crimes committed by government during the dirty war (Böhmer Vol 1, ch 18; Vecchioli 2011). The Israel Bar Association has supported judicial activism by the Supreme Court, urged reform of civil procedure and debt collection, and advocated for employee and minority rights (Katvan et al Vol 1, ch 30). The Ghana Bar Association opposed human rights abuses under the military regimes of the 1970s and 1980s and prohibited members from appearing before the People’s Courts; some of its leaders and members suffered jail or even torture (Dawuni 2017). The Jordanian Bar Association forbade West Bank lawyers to appear before Israeli military courts, although not all complied (Qafisheh Vol 1, ch 32). In Kenya, the Law Society and religious leaders led opposition to the ruling party (Kamau Vol 1, ch 24). Lawyers played a leading role in the constitutional revision of the 2000s and held a week-long protest against the 2016 killing of Willy Kimani, a prominent human rights lawyer, and his client and driver. Lawyers in Serbia and Bosnia and Herzegovina (Vukovič et al Vol 1, ch 17), Venezuela (Gómez and PérezPerdomo Vol 1, ch 22), Poland and Hungary have defended the independence of the judiciary. In Thailand, human rights lawyers, feminist lawyers, university law school clinics, and NGOs have defended human rights (although some lawyers supported military coups) (Munger Vol 1, ch 42). In Tunisia, younger lawyers played a major role in the overthrow of Ben Ali, gaining a revolutionary legitimacy that let them lead the construction of the new regime, which redefined the role of the profession to include the ‘defence of human rights and freedoms’, granted them immunity from punishment by judges, and facilitated the elevation of private practitioners to

632  Richard L Abel the bench (Gobe Vol 1, ch 33). In Zimbabwe, human rights NGOs as well as the Law Faculty have challenged and criticised government abuses (Karekwaivanane Vol 1, ch 27). VII.  A RESEARCH AGENDA

Because the legal profession’s relationship to the state has been less studied and theorised than its relationship to the market (cf Abel Vol 1, ch 44), the sections that follow propose discrete questions rather than overarching theories. A. Self-Governance Do legal professions seek to govern themselves in order to advance a professional project (material well-being, including social services, and status enhancement) or to play the role Durkheim envisaged as an intermediary between the state and civil society (including defence of the rule of law and law reform)? How does this vary between countries and over time? How are divisions within the profession reflected in participation in peak associations or the creation of separate associations: civil servants (judges, prosecutors, bailiffs), employees of business, and private practitioners; divisions among practitioners (barristers and solicitors, notaries) and differences by firm size and specialisation; identities (gender, race, and class); location (metropole and periphery), political orientation? What is the relationship between local, regional and national bodies? How do associations relate to each other and to the peak association? How does the configuration of associations affect their influence, within the profession and externally? What proportion of the profession enrolls in voluntary associations? How representative are those associations of the larger profession? When do professions compel membership and with what consequences (eg the ability to advocate for or speak on behalf of the profession)? What proportion of enrolled members participate in the association and its governance? How representative are they? Is governance democratic, oligarchic, or autocratic? How do associations relate to the state (and its constituents: courts, Attorney General, Ministry of Justice)? Does this vary between autocratic and democratic states? When do states or supranational bodies intervene in the governance or actions of associations? With what consequences? B. Self-Regulation When do associations begin to regulate themselves? At what level (local or national)? Do ethical rules disproportionately address the behaviour of different professional sectors (eg conflict of interest in large firms or solicitation of criminal defence or personal injury cases by solo practitioners)? Are some sectors disproportionately disciplined? If either of these is true (especially if the disciplined sector has distinctive identity traits, such as race or age), how does that affect the legitimacy of self-regulation? Do ethical rules suppress competition? When do neoliberal interventions abrogate such rules? How effective is self-regulation? How large is the dark figure (of undisciplined violations)? How severe are the penalties? Are there repeat offenders? Does self-regulation address the most

Conclusion: Comparative Sociology of Lawyers, 1988–2018  633 common client complaints (eg price, delay, responsiveness) or issues of competence? How does the profession balance loyalty to client (eg confidentiality) with obligations to others (eg third parties directly affected by clients or societal concerns about money laundering and tax evasion)? How does self-regulation relate to malpractice liability (frequency of lawsuits and outcomes) and liability insurance (voluntary or compulsory, how prevalent if voluntary, and are premiums experience rated)? How is self-regulation perceived outside the profession? Is it transparent (public records of complaints, outcomes, and penalties)? Does it co-opt lay participation (and what do they do)? When does the state (or a supranational body) intervene to reform regulation or assume responsibility? When does the state use regulation to suppress political dissent? C.  Legal Aid and Pro Bono Services What is the relationship (if any) between official commitments by legal professions to equalise access to justice through legal aid and pro bono services and actual programmes? How do professions choose between salaried staffed offices and reimbursement of private practitioners? In the latter (as well as pro bono services), what proportion of the profession participates, what proportion of their time do they devote to that work, and how representative are the participants of the larger profession in terms of: firm size, subject matter specialisation, age, gender, and race? What populations do such programmes serve in terms of: substantive area, function (advice, litigation, drafting, negotiation), and client demographics (especially as affected by means tests)? How do the characteristics of both constituencies – providers and consumers – affect support for (or opposition to) legal aid and pro bono? Why do states establish, expand, and contract such programmes? Are their motivations neoliberal (ie budget cuts) or political (suppressing opponents)? When do states encourage or discourage alternatives, including: conditional fees, legal expenses insurances, self-representation, law student clinics, mass processing firms, and NGOs? How do professions respond? D.  Lawyers in Politics How do the proportions of lawyers in the executive and legislature differ between countries, and how have they changed over time? Is there a secular decline? What explains these variations? How (if at all) have they affected the performance of the political branches? E.  Regime Change How have the variety of political ruptures and transitions affected legal professions: colonisation and independence; importation of foreign legal systems and shifts between civil and common law; capitalism and socialism; secular and religious law; military and civilian rule; democracy and autocracy; social democracy and neoliberalism; and national unification and division? How do professions differ in terms of the frequency, disruption, and dates of these transitions? How do dual legal systems affect legal professions: indigenous and colonial, religious and secular, civilian and military, revolutionary and legalist?

634  Richard L Abel How do states and legal professions respond to the residue of racism inherited from former regimes? Even without regime change, how are legal professions affected by globalisation? F.  Rule of Law Because there is no invariant relationship between the ‘legal complex’ and political liberalism, we must ask which sectors of the legal complex (judges, prosecutors, civil servants, private practitioners, house counsel, legal academics, law students) support or suppress the rule of law (including judicial independence, civil liberties, democracy)? How does this differ between repressive autocratic regimes and relatively liberal democratic regimes and in terms of regime stability? Do the small minority of lawyers who actively support the rule of law share other characteristics: political ideology; gender, race, or age; law firm size; substantive specialisation? G.  Exo-Professional Questions My research and that of the Working Group for Comparative Study of Legal Professions generally embraced an internal perspective, combining a functionalist focus on self-regulation and governance with a Weberian approach to lawyers’ relations to the market and critical perspectives on the profession’s demography and access to justice. But the world confronts several existential crises, which pose fundamental challenges to the legal profession. I want to conclude this chapter by discussing three: climate change, inequality, and the assault on liberal democracy. Reports by scientists and governments throughout the world unanimously agree that climate change constitutes an imminent threat to the future of humanity. Lawyers are deeply implicated, representing fossil fuel companies, propagating lies about global warming, and opposing essential government regulation. Inequalities of wealth and income continue to grow, aided by the efforts of lawyers to protect and augment the economic resources and power of corporations and wealthy individuals, resisting all efforts to reform taxes, curb monopolies, redistribute wealth and provide social services. Liberal democracy is under attack from autocrats who manipulate elections, muzzle independent media, and pack or disempower courts. Legal ethics confines itself to the means lawyers use, eg condoning client perjury or concealing evidence. We need to ask the more fundamental question: are there ends lawyers should not pursue? Should they help clients exacerbate climate change, defend gross inequalities of wealth and power, or subvert liberal democracy? If not, how should we reshape the ethical boundaries and enforce them? There are no easy answers; but that does not make the questions any less urgent. VIII.  THE FUTURE

The original ‘Lawyers in Society’ project began with a theoretical perspective shaped by the historical experience of the common law world. The contributions on civil law professions helped to broaden that framework. The current project, involving a much larger sample of national professions, has followed a similar iterative process, in which theory informs the

Conclusion: Comparative Sociology of Lawyers, 1988–2018  635 collection of data, which in turn reshapes theory. I am confident that future scholars who address the questions posed above will not only propose answers to them but also enlarge the rich repertoire of theoretical issues in the comparative sociology of legal professions. REFERENCES ABA (American Bar Association) Commission on Evaluation of Professional Standards (1981) Model Rules of Professional Conduct (Proposed Final Draft) (Chicago, ABA). Abbott, A (1988) The System of Professions: An Essay on the Division of Expert Labor (Chicago, University of Chicago Press). Abel, R (1979) ‘Review Essay on M.S. Larson, The Rise of Professionalism: A Sociological Analysis’ 6 British Journal of Law and Society 82–98. —— (1981) ‘Toward a Political Economy of Lawyers’ [1981] Wisconsin Law Review 1117–87. —— (1982) ‘The Politics of the Market for Legal Services’ in P Thomas (ed), Law in the Balance: Legal Services in the Eighties (Oxford, Martin Robertson) ch 1. —— (1985) ‘Law Without Politics: Legal Aid under Advanced Capitalism’ 32 UCLA Law Review 474–642. —— (1988a) ‘England and Wales: A Comparison of the Projects of Barristers and Solicitors’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol I The Common Law World (Berkeley, University of California Press) ch 2. —— (1988b) ‘United States: The Contradictions of Professionalism’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol I The Common Law World (Berkeley, University of California Press) ch 5. —— (1988c) ‘Lawyers in the Civil Law World’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press) ch 1 —— (1988d) The Legal Profession in England and Wales (Oxford, Basil Blackwell). —— (1989a) ‘Comparative Sociology of Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) ch 3. —— (1989b) American Lawyers (New York, Oxford University Press). —— (1995) Politics by Other Means: Law in the Struggle against Apartheid, 1980–1994 (New York, Routledge). —— (1998a) ‘Speaking Law to Power: Occasions for Cause Lawyering’ in A Sarat and SA Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) ch 3. —— (1998b) ‘Lawyers for Liberalism: Axiom, Oxymoron, or Accident?’ 1(8) Books-on-Law 9 (November). —— (2002) ‘An American Hamburger Stand in St Paul’s Cathedral: Replacing Legal Aid with Conditional Fees in English Personal Injury Litigation’ 51 DePaul Law Review 253–313. —— (2003) English Lawyers between Market and State: The Politics of Professionalism (Oxford, Oxford University Press). —— (2007) ‘Contesting Legality in the United States after September 11’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 12. —— (2008) Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (New York, Oxford University Press). —— (2011) Lawyers on Trial: Understanding Ethical Misconduct (New York, Oxford University Press). —— (ed) (2012) ‘Comparative Studies of Lawyer Deviance and Discipline’ 15(2) Legal Ethics (Special Issue). —— (2018a) Law’s Wars: The Fate of the Rule of Law in the US ‘War on Terror’ (New York, Cambridge University Press). —— (2018b) Law’s Trials: The Performance of Legal Institutions in the US ‘War on Terror’ (New York, Cambridge University Press). Abel, RL and Lewis, PSC (eds) (1988/89) Lawyers in Society (3 vols) (Berkeley, University of California Press).

636  Richard L Abel —— (1995) ‘Putting Law Back into the Sociology of Lawyers’ in RL Abel and PSC Lewis (eds), Lawyers in Society: An Overview (Berkeley, University of California Press) ch 8. Almeida, F and Nassar, P (2018) ‘The Ordem dos Advogados do Brasil and the Politics of Professional Regulation in Brazil’ in L Cunha, D Gabbay, J Ghirardi, D Trubek and D Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 6. Antonsdóttir, H (2018) ‘Legal Aid in Iceland’ in O Rønning and O Hammerslev (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave Macmillan) ch 6. Arslan, Z (2007) ‘Reluctantly Sailing towards Political Liberalism: The Political Role of the Judiciary in Turkey’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 7. Aziz, S (2012) ‘Liberal Protagonists? The Lawyers’ Movement in Pakistan’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 9. Barzilai, G (2007) ‘The Ambivalent Language of Lawyers in Israel: Liberal Politics, Economic Liberalism, Silence and Dissent’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 8. Bell, D (1997) ‘Barristers, Politics and the Failure of Civil Society in Old Regime France’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 2. Blomquist, H (2000) Lawyers’ Ethics: The Social Construction of Lawyers’ Professionalism, Danish Practicing Lawyers, and Some Pre-conditions for their Ethics (Copenhagen, DJØF). Brinks, D (2007) ‘The Legal Complex and the Response to Police Violence in South America’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 9. Burrage, M (1989) ‘Revolution as a Starting Point for the Comparative Analysis of the French, American, and English Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) ch 8. —— (1993) ‘Russian Advocates: Before, during and after Perestroika’ 18 Law & Social Inquiry 573. —— (1997) ‘Mrs Thatcher against the “Little Republics”: Ideology, Precedents, and Reactions’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 4. —— (2006) Revolution and the Making of the Contemporary Legal Profession: England, France, and the United States (Oxford, Oxford University Press). Coe, A (2018) ‘ABA Decline: Why Are Fewer Lawyers Joining The Club?” www.legalmosaic.com/ wp-content/uploads/2018/07/ABA-Story.pdf. Couso, J (2007) ‘When the “Political Complex” Takes the Lead: The Configuration of a Moderate State in Chile’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 10. Dawuni, J (2017) ‘Lawyers in Ghana’, presented at the International Meeting on Law and Society, Mexico City. De, R (2012) ‘Emasculating the Executive: The Federal Court and Civil Liberties in Late Colonial India: 1942–1944’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 2. Dezalay, Y and Garth, B (2002) The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago, University of Chicago Press). —— (2010) Asian Legal Revivals: Lawyers in the Shadow of Empire (Chicago, University of Chicago Press). —— (eds) (2011) Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge). Dias, C, Luckham, R, Lynch, D and Paul, J (eds) (1981) Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development). Durkheim, E (1933) The Division of Labor in Society (New York, Free Press).

Conclusion: Comparative Sociology of Lawyers, 1988–2018  637 —— (1957) Professional Ethics and Civic Responsibility (London, Routledge & Kegan Paul). Epp, C (2012) ‘The Legal Complex in the Struggle to Control Police Brutality in India’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 2. Feeley, M and Miyazawa, S (2007) ‘The State, Civil Society, and the Legal Complex in Modern Japan: Continuity and Change’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford: Hart Publishing) ch 5. Freidson, E (1970) Profession of Medicine: A Study of the Sociology of Applied Knowledge (New York, Harper & Row). —— (2001) Professionalism: The Third Logic (Chicago, University of Chicago Press). Ghai, Y (1981) ‘Law and Lawyers in Kenya and Tanzania: Some Political Economy Considerations’ in C Dias, R Luckham, D Lynch, and J Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development) ch 6. Ghias, S (2012) ‘Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 9. Ginsburg, T (2007) ‘Law and the Liberal Transformatiion of the Northeast Asian Legal Complex in Korea and Taiwan’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 2. Gómez, M (2011) ‘Greasing the Squeaky Wheel of Justice: Networks of Venezuelan Lawyers from the Pacted Democracy to the Bolivarian Revolution’ in Y Dezalay and B Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) ch 2. Goode, W (1957) ‘Community Within a Community: The Professions’ 22 American Sociological Review 194. Gould, J (2012) ‘Postcolonial Liberalism and the Legal Complex in Zambia: Elegy or Triumph?’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 11. Grosberg, M (1997) ‘The Politics of Professionalism: The Creation of Legal Aid and the Strains of Political Liberalism in America, 1900–1930’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 9. Guarneri, C (2007) ‘Lawyers and Statist Liberalism in Italy’ in T Halliday, L Karpik and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 14. Gupta, A (2017) ‘Pro Bono and the Corporate Legal Sector in India’ in D Wilkins, V Khanna and D Trubek (eds), The Indian Legal Profession in an Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (New York, Cambridge University Press) ch 8. Halliday, TC (1987) Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago, University of Chicago Press). Halliday, T and Karpik, L (eds) (1997a) Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press). —— (1997b) ‘Politics Matter: A Comparative Theory of Lawyers in the Making of Political Liberalism’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 1. Halliday, T, Karpik, L and Feeley, M (eds) (2007a) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing). —— (2007b) ‘The Legal Complex in Struggles for Political Liberalism’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 1. —— (2012) ‘Introduction: Political Liberalism in the British Post-Colony: A Theme with Three Variations’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 1.

638  Richard L Abel Halliday, T and Liu, S (2007) ‘Birth of a Liberal Moment? Looking Through a One-Way Mirror at Lawyers’ Defence of Criminal Defendants in China’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 3. Halliday, T, Powell, M and Granfors, M (1987) ‘Minimalist Organizations: Vital Events in State Bar Associations, 1870–1930’ 52 American Sociological Review 456. Hammerslev, O (2011) ‘The European Union and the United States in Eastern Europe: Two Ways of Exporting Law, Expertise, and State Power’ in Y Dezalay and B Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) ch 7. Hammerslev, O and Rønning, O (2018) ‘Outsourcing Legal Aid in the Nordic Welfare States’ in O Rønning and O Hammerslev (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave Macmillan) ch 13. Harding, A and Whiting, A (2012) ‘“Custodian of Civil Liberties and Justice in Malaysia”, The Malaysian Bar and the Moderate State’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 7. Harvard Civil Rights-Civil Liberties Law Review (1970) ‘Comment: Controlling Lawyers by Bar Associations and Courts’ 35 Harvard Civil Rights-Civil Liberties Law Review 301. Heinz, J and Laumann, E (1982) Chicago Lawyers: The Social Structure of the Bar (New York, Russell Sage Foundation and Chicago, American Bar Foundation). Heinz, J, Nelson, R, Sandefur, R and Laumann, E (2005) Urban Lawyers: The New Social Structure of the Bar (Chicago, University of Chicago Press). Hilbink, L (2007) ‘Politicizing Law to Liberalise Politics: Anti-Francoist Judges and Prosecutors in Spain’s Democratic Transition’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 13 Hosier, M (2014) The Regulation of the Legal Profession in Ireland (New Orleans, Quid Pro Quo Books). Jones, C (2007) ‘“Dissolving the People”: Capitalism, Law and Democracy in Hong Kong’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 4. Karpik, L (1997) ‘Builders of Liberal Society: French Lawyers and Politics’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 3. —— (2007) ‘Political Lawyers’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 15. Kristiansen, B (2018) ‘Legal Aid in Denmark’ in O Rønning and O Hammerslev (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave Macmillan) ch 5. Kritzer, H and Vidmar, N (2018) When Lawyers Screw Up: Improving Access to Justice for Legal Malpractice Victims (Lawrence, University of Kansas Press). Langer, M (2004) ‘From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ 45 Harvard International Law Journal 1. —— (2007) ‘Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery’ 55 American Journal of Comparative Law 617. Larson, M (1977) The Rise of Professionalism: A Sociological Analysis (Berkeley, University of California Press). Ledford, K (1997) ‘Lawyers and the Limits of Liberalism: The German Bar in the Weimar Republic’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 7. Le Saux, MG (2016) ‘Legal Aid, Social Workers, and the Redefinition of the Legal Profession in Chile, 1925–1960’ 42 Law & Social Inquiry 347. Levin, L and Mather, L (eds) (2012) Lawyers in Practice: Ethical Decision Making in Context (Chicago, University of Chicago Press). Lewis, PSC (1989) ‘Comparison and Change in the Study of Legal Professions’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) ch 2.

Conclusion: Comparative Sociology of Lawyers, 1988–2018  639 Liu, S and Halliday, T (2016) Criminal Defense in China: The Politics of Lawyers at Work (New York, Cambridge University Press). Luban, D (1983) ‘The Adversary System Excuse’ in D Luban (ed), The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Totowa, New Jersey, Rowman & Allanheld) ch 4. Luckham, R (1981) ‘Imperialism, Law and Structural Dependence: The Ghana Legal Profession’ in C Dias, R Luckham, D Lynch, and J Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development) ch 4. Lynch, D (1981) ‘Legal Roles in Colombia: Some Social, Economic and Political Perspectives’ in C Dias, R Luckham, D Lynch, and J Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development) ch 2. Malatesta, M (2011) ‘Italian Legal Elites: The Classical Model and Its Transformation’ in Y Dezalay and B Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) ch 4. Massoud, M (2012) ‘Lawyers and the Disintegration of the Legal Complex in Sudan’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 5. Mate, M (2012) ‘Priests in the Temple of Justice: The Indian Legal Complex and the Basic Structure Doctrine’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 3. Mather, L, McEwen, C and Maiman, R (2001) Divorce Lawyers at Work: Varieties of Professionalism in Legal Practice (New York, Oxford University Press). Menkel-Meadow, C (1998) ‘The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Social Justice Lawyers’ in A Sarat and S Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) ch 2. Michels, R (1915) (published in German in 1911) Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy (New York, Hearst’s International Library). Michelson, E (2011) ‘Lawyers, Political Embeddedness, and Institutional Continuity in China’s Transition from Socialism’ in Y Dezalay and B Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) ch 3. Moustafa, T (2007) ‘Mobilizing the Law in an Authoritarian State: The Legal Complex in Contemporary Egypt’ in T Halliday, L Karpik, and M Feeley (eds), Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford, Hart Publishing) ch 6. Müller, I (1991) Hitler’s Justice: The Courts of the Third Reich (trans D Schneider) (Cambridge, Harvard University Press). Munir, D (2012) ‘From Judicial Autonomy to Regime Transformation: The Role of the Lawyers’ Movement in Pakistan’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 10. Nettl, J (1968) ‘The State as a Conceptual Variable’ 20 World Politics 559. Odenyo, A (1981) ‘Professionalism and Change: The Emergent Kenyan Lawyer’ in C Dias, R Luckham, D Lynch, and J Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development) ch 7. Parsons, T (1964) ‘The Professions and Social Structure’ in Essays in Sociological Theory (New York, Free Press). —— (1968) ‘Professions’ 12 International Encyclopedia of the Social Sciences 436 (New York, Macmillan). Peerenboom, R (2011) ‘Searching for Political Liberalism in All the Wrong Places: The Legal Profession in China as the Leading Edge of Political Reform?’ in Y Dezalay and B Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) ch 11. Pérez-Perdomo, R (2006) ‘Rule of Law and Lawyers in Latin America’ 603 Annals of the American Academy of Political and Social Science 179–91.

640  Richard L Abel Powell, M (1988) From Patrician to Professional Elite: The Transformation of the New York City Bar Association (New York, Russell Sage Foundation). Pue, W (1997) ‘Lawyers and Political Liberalism in Eighteenth- and Nineteenth-Century England’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 5. Rajah, J (2012) ‘Lawyers, Politics, and Publics: State Management of Lawyers and Legitimacy in Singapore’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 4. Regan, M (2004) Eat What You Kill: The Fall of a Wall Street Lawyer (Ann Arbor, University of Michigan Press). Rissanen, A (2018) ‘Legal Aid in Finland’ in O Rønning and O Hammerslev (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave Macmillan) ch 4. Rokumoto, K (1988) ‘The Present State of Japanese Practicing Attorneys: On the Way to Full Professionalization?’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol II The Civil Law World (Berkeley, University of California Press) ch 4. Rønning, O (2018) ‘Legal Aid in Norway’ in O Rønning and O Hammerslev (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave Macmillan) ch 2. Royal Commission on Legal Services (1979) Final Report (2 vols) (London, HMSO) (Cmnd 7648). Rueschemeyer, D (1973) Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and the United States (Cambridge, Harvard University Press). —— (1989) ‘Comparing Legal Professions: A State-Centered Approach’ in RL Abel and PSC Lewis (eds), Lawyers in Society: Vol III Comparative Theories (Berkeley, University of California Press) ch 7. —— (1997) ‘State, Capitalism, and the Organization of Legal Counsel: Examining an Extreme Case – The Prussian Bar, 1700–1914’ in T Halliday and L Karpik (eds), Lawyers and the Rise of Western Political Liberalism (Oxford, Clarendon Press) ch 6. Rwelamira, M (1981) ‘The Tanzanian Legal Profession’ in C Dias, R Luckham, D Lynch and J Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development) ch 8. Sa e Silva, F de (2018) ‘Doing Well and Doing Good in an Emerging Economy: The Social Organization of Pro Bono among Corporate Lawyers and Law Firms in São Paulo, Brazil’ in L Cunha, D Gabbay, J Ghirardi, D Trubek and D Wilkins (eds), The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and Its Impact on Lawyers and Society (New York, Cambridge University Press) ch 7. Salman, M (1981) ‘Legal Profession in the Sudan: A Study of Legal and Professional Pluralism’ in C Dias, R Luckham, D Lynch, and J Paul (eds), Lawyers in the Third World: Comparative and Developmental Perspectives (Uppsala, Scandinavian Institute of African Studies and New York, International Center for Law and Development) ch 9. Sarat, A and Felstiner, W (1995) Divorce Lawyers and Their Clients: Power and Meaning in the Legal Process (New York, Oxford University Press). Sarat, A and Scheingold, S (eds) (1998a) Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press). —— (1998b) ‘Cause Lawyering and the Reproduction of Professional Autonomy’ in A Sarat and S Scheingold (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (New York, Oxford University Press) ch 1. Schneyer, T (1983) ‘The Incoherence of the Unified Bar Concept’ [1983] American Bar Foundation Research Journal 1. Schoultz, I (2018) ‘Legal Aid in Sweden’ in O Rønning and O Hammerslev (eds), Outsourcing Legal Aid in the Nordic Welfare States (London, Palgrave Macmillan) ch 3. Schultz, U and Shaw, G (eds) (2003) Women in the World’s Legal Professions (Oxford, Hart Publishing). Schwartz, M (1978) ‘The Professionalism and Accountability of Lawyers’ 66 California Law Review 673. Semple, N (2015) Legal Services at the Crossroads: Justitia’s Legions (Cheltenham, Edward Elgar).

Conclusion: Comparative Sociology of Lawyers, 1988–2018  641 Shapiro, S (2002) Tangled Loyalties: Conflict of Interest in Legal Practice (Ann Arbor, University of Michigan Press). Shaw, G (1909) The Doctor’s Dilemma (New York, Brentano’s). Sommerlad, H (2001) ‘“I’ve Lost the Plot”: An Everyday Story of the “Political” Legal Aid Lawyer’ 28 Journal of Law and Society 335. Sommerlad, H and Sanderson, P (2013) ‘Social Justice on the Margins: The Future of the Not for Profit Sector as Providers of Legal Advice in England and Wales’ 35 Journal of Social Welfare and Family Law 305. Sommerlad, H and Wall, D (1999) Legally Aided Clients and Their Solicitors: Qualitative Perspectives on Quality and Legal Aid (London, Law Society). Udagama, D (2012) ‘The Sri Lankan Legal Complex and the Liberal Project: Only Thus Far and No More’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 6. Upham, F (1987) Law and Social Change in Postwar Japan (Cambridge, Harvard University Press). Van Hoy, J (1997) Franchise Law Firms and the Transformation of Personal Legal Services (Westport, Connecticut, Quorum Books). Vecchioli, V (2011) ‘Transnational Advocacy Networks and the Transformation of the Legal Field’ in Y Dezalay and B Garth (eds), Lawyers and the Rule of Law in an Era of Globalization (New York, Routledge) ch 6. VonDoepp, P (2012) ‘Legal Complexes and the Fight for Political Liberalism in New African Democracies: Comparative Insights from Malawi, Zambia, and Namibia’ in T Halliday, L Karpik and M Feeley (eds), The Fates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex (New York, Cambridge University Press) ch 12.

642

Index ABA ROLI (American Bar Association Rule of Law Initiative)  228 ABS (Alternative Business Structures)  215, 239 access to justice  236–7, 274, 303–20 accountancy profession  461–82 client demands  477 jurisdictional control  476–8 market concentration  472, 473–6 market share  480 organisational context  470–2 practices by employment  481 practices by turnover  482 profitability  477–8 revenue  480 size of market for  466–70 social closure  478 structure of the profession  463–6 ACLA (All-China Lawyers Association)  231, 234, 236 Adams, John Quincy  575 ADR (Alternative Dispute Resolution)  274, 521 Afghanistan  75 Afiuni, María Lourdes  363–4 Africa  51–69 see also Algeria; Burundi; Côte d’Ivoire; Egypt; Ghana; Kenya; Libya; Mali; Nigeria; Senegal; South Africa; Togo; Tunisia; Zimbabwe colonial empires  55–7 colonialism  51 customary law  58–9 lawyer organisations  241–2 lawyers as gatekeepers  57–9 as intermediary elite  59–62 as leaders  52 legal education  60 legal monopolies  59 legal professions  53–4 minerals  51 post-colonial order  54–5 segmentation of the legal profession  53 social capital  62–6 state transformations  57–9 women in the legal profession  130 women judges  134–5 Agboyibor, Pascal  52, 64, 65, 66–7 agile design techniques  517, 533 AI (artificial intelligence)  533 Albarracín, Waldo  362–3

Algeria  55 Aliyev, Ali  357–8 All-China Lawyers Association (ACLA)  231, 234, 236 Alternative Business Structures (ABS)  215, 239 Alternative Dispute Resolution (ADR)  274, 521 American Bar Association Rule of Law Initiative (ABA ROLI)  228 American Trial Lawyers Association (ATLA)  234–5 AML (anti-money laundering) movement  598–601 anti-feminism  161 anti-money laundering (AML) movement  598–601 apprentice programmes  113 arbitration  382–3 Argentina  241, 551, 629, 631 see also Latin America artificial intelligence (AI)  533 Asafo & Co  52, 64, 65, 67 ATLA (American Trial Lawyers Association)  234–5 audit profession client demands  477 jurisdictional control  476–8 and legal professions  473–6 market concentration  472, 473–6 market share  480 organisational context  470–2 practices by employment  481 practices by turnover  482 profitability  477–8 revenue  480 size of market for  466–70 social closure  478 structure of  462–6 Australia corporate law firms  376 indigenous lawyers  178–82 insulating rules in legal services  207 lawyer organisations  238, 239 money laundering  607–8 women in legal professions  129, 135 authoritarian populism  161 authoritarian rulers  86–7 Avvo Legal Services  210–11 Azerbaijan  89, 353–4, 356–9 Bagirov, Khalid  358–9 Bahrain  88, 89, 90 Baker McKenzie  381–2 Baltic republics  101, 129 Bangladesh  75, 82, 90

644  Index bar associations  80–5, 135, 229 see also lawyer organisations Belgium  261 Big Four accounting firms  466–70, 472, 474–8, 480–1, 482 Big Law (BL)  45, 373–88 Black Lives Matter (BLM) movement  173 blockchain technology  520, 533 Bolivia  361–2 see also Latin America Bologna, legal elites in  572–4 Bologna Declaration (1999)  256 Bosnia and Herzegovina  108–9, 134, 240, 628, 631 Brazil see also BRICS countries access to justice  237 civil society  237 corporate legal practice  397 corporate legal sector  402–3, 404, 406–8 corruption  35 foreign lawyers  45 human rights  237 in-house counsel movement  405 lawyer organisations  230 legal education  37–8, 256, 258, 261, 408–9 legal elite  551 legal professions diversity in  39, 178 entry to  37, 209 legal services markets  233 populism  561 state power  413 women in legal professions  130, 134, 135 BRICS countries  258, 557–8 see also Brazil; China; India; Russia; South Africa British Columbia  206 see also Canada Brunei  75 Brussels see European Union Bulgaria  129 bureaucracies  5, 551–2 Burkina Faso  77, 80 Burma see Myanmar Burundi  53n5, 60–1, 242, 262, 628, 631 Bustamante y Sirvén, Antonio Sánchez de  41 Calvo, Carlos  41 Cambodia  553–4 Canada  129, 132–3, 178–82, 218, 238–9, 274 see also British Columbia; Ontario; Québec care  155–6 case management systems (CMS)  519, 521 casualisation of legal services  275 category construction  10–12 cause lawyers  327–44, 550 in authoritarian societies  329–33 in conflicted societies  329–33 and gender  336–43 in settled democracies  327–9 in transitional societies  333–6

CCBE (Council of Bars and Law Societies of Europe)  421 CEDAW (UN Convention on the Elimination of All Forms of Discrimination Against Women)  92 Central and Eastern Europe (CEE)  99, 101, 111, 114, 116, 240 childcare  155–6 Chile bar association  135 lawyer organisations  240–1 legal clinics  266 legal education  39, 178, 262 legal elite  551 paralegals  276–9 racial segregation  178 rule of law  630, 631 women in legal professions  135 China see also BRICS countries; Hong Kong client benefits  234 corporate legal practice  397 corporate legal sector  400–1, 404, 406–8, 410–11, 557, 558 Cultural Revolution  579 in-house counsel movement  405–6 lawyer organisations  231, 243 and judicial system  236 legal clinics  265–6 legal education  259, 409–10 legal elites  578–80 legal profession globalisation of  115 growth of  106, 107 regulation  113–14, 557 paralegals  275 political regime  101, 103 regime change  629 rule of law  630, 631 self-regulation  232–3 state power and legal professions  414–15 state regulation of legal services  212 State-owned Assets Supervision and Administrative Commission (SASAC)  405 unqualified practitioners  210 women lawyers  128, 130 civil rights movements  265 client-led corporate legal sector  399–400 clinical education  40, 264–6 CMS (case management systems)  519, 521 CoE (College of Europe)  433 coercion  5 cognitive biases  136 collaborative enquiry  10–12 College of Europe (CoE)  433 Colombia  32, 628 colonial empires  55–7 colonialism  7–8, 51, 174–6

Index  645 comparative methodology of legal profession  8–10 comparative sociology  4–8 corporate lawyers  411–15, 576 see also lawyers corporate legal globalisation  67, 376, 395–417 see also legal globalisation corporate legal practice  396–400 corporate legal sector client-led  399–400 law firm-led  397–9 and legal education  408–10 regulation  406–8 rise of  400–11 corruption  591–612 grand corruption  591–8 Latin America  33, 35 regulation  601–10 Côte d’Ivoire  63 Council of Bars and Law Societies of Europe (CCBE)  421 court processes, digitisation of  520–1 courtroom advocacy  205 courts, politicisation of  353 COVID-19 pandemic  35, 377–9 Cravath System  374–5, 397–405 CRC (UN Convention on the Rights of the Child)  92 critical study of men and masculinities (CSMM)  153, 160–1 Cuba  44 cultural capital  139 customary law  58–9 Czech Republic  107–8, 109, 111, 112, 134, 240, 260 data collection indices  1 decolonisation  52–3 Democratic Republic of Congo (DRC)  67 Denmark  310–11, 312, 313–15 see also Scandinavia Dentons  376, 379–81 deregulation  2, 557 DG (Directorate General) for Competition (EU)  424–5, 437 Diallo, Salimatou  67–8 Diarra, Fatoumata  64, 65 digitisation of court processes  520–1 Directorate General (DG) for Competition (EU)  424–5, 437 discrimination  135–6 diversity of law firms  384–6 DLA Piper  376 document assembly  517–18, 533 DRC (Democratic Republic of Congo)  67 East Germany see German Democratic Republic (GDR) EBM (evidence-based medicine)  506–7 Ecuador  360–1, 362, 364 see also Latin America e-discovery  518, 520 education  253 see also legal education

Egypt bar association  82 lawyer organisations  242, 243 legal education  77–8 legal legacy  74 legal profession entry to  83–4 growth of 53n5 and the state  553 unification of  86–7 regime change  627 rule of law  75, 79 women lawyers  88 electronic filing  519 empires  55–7 England and Wales see also United Kingdom access to justice  315–19 alternative legal services  210 insulating rules in legal services  207 lawyer organisations  238, 239 legal aid  315–19 legal clinics  265 legal education  256, 261, 263 legal services monopoly  205 occupational unity in legal services  206 paralegals  285–9 self-regulation in legal services  208 state regulation of legal services  212 Establishment Directive (EU)  421 ethical codes  218 ethnicity  174–6 EU see European Union European exceptionalism  6 European Union autonomisation of legal field  433–5 Competition Commissioners  424 competition policies  422–8 Directorate General (DG) for Competition  424–5, 437 Establishment Directive  421 internships  434 law firms  422–3 and lawyers  421–40 legal education  256, 433 regulatory lawyers  423–40 regulatory state  424–8 evidence-based medicine (EBM)  506–7 expert systems  517, 533 external auditing see audit profession family law reform  92 FATF (Financial Action Task Force)  594, 601, 611 fatherhood  155–6 Federal Republic of Germany see Germany feminisation of legal professions  89–90, 128–31, 385 see also women field theory  4, 54, 55–6

646  Index Financial Action Task Force (FATF)  594, 601, 611 for-profit law schools  38 Forster, Isaac  63–4, 65 Françafrique  55, 66–7 France colonial empire  55–6, 58 immigration  560 lawyer organisations  239 money laundering  603–5 ‘public-private’ state  68 rule of law  629, 631 women in the legal professions  131 France-Afrique strategy  55 see also Françafrique French Civil Code of 1804  42 functionalist approach to comparative sociology  7 Gambia  80 gatekeeper state  57–9 GATT (General Agreement on Tariffs and Trade)  426 GCs (general counsels)  399 GDR (German Democratic Republic)  101, 107, 108–9 see also Germany Gécamines  67 gender see also masculinity; women and cause lawyering  336–43 and legal professions  115–16, 157–9 gender discrimination  135–6 gender inequality  135–42 gender stereotypes  136 General Agreement on Tariffs and Trade (GATT)  426 general counsels (GCs)  399 Georgia  106 German Democratic Republic (GDR)  101, 107, 108–9 see also Germany Germany see also German Democratic Republic (GDR) lawyer organisations  239 lawyers from other EU States  421 legal clinics  266 legal elites  574, 575–8 legal profession Gastarbeiter  177 growth of  108–9 legal services markets  215 paralegals  275–6 reunification  101 rule of law  629–30 unregulated practice of law  210 women as legal academics  135 Gertler, Dan  67 Ghana  56, 61–2, 130, 133, 552, 628, 629, 631 GLEE (Project on Globalization, Lawyers, and Emerging Economies)  395 globalisation  2, 7–8, 33–4, 67, 253–67, 395–417, 556–7, 559–61 governance legal professions  618–22 of legal services  525–9

grand corruption  591–8 Graterol, Amalio  363–4 Gutiérrez, Juan Carlos  363 Harvard Law School  576 Hasanov, Rashad  358 hegemonic masculinity  154–5, 159 hetero-patriarchy  161 Hong Kong  244, 584–5, 631 see also China Houphouët-Boigny, Félix  63 human capital  138 human rights  237–8 human rights lawyers  329, 353–65 Hungary  101, 107, 108, 109, 111, 112, 113, 560, 631 Huseyn, Panah  358 hybrid model of legal hierarchy  575–8 IaaS (Infrastructure as a Service) providers  520 India see also BRICS countries corporate legal practice  397 corporate legal sector  401–2, 403–4, 406–8 gender discrimination  133 in-house counsel movement  405 law schools  582 lawyer organisations  244 legal education  57, 256, 258–9, 409 legal elites  582–3 legal professions and state power  413 structure of  551–2 legal revolution  582–3 occupational unity in legal services  205–6 state power  413 women judges  89 women lawyers  88, 128, 130–1 indigenous lawyers  178–82 Indonesia bar associations  81, 84, 86 Islamic Law  91 lawyers  176 legal education  261 legal profession entry to  83 growth of  77 segmentation of  75 structure of  552 rule of law  80 women and Islamic Law  91 as judges  88–9 information retrieval (IR)  516, 518 Infrastructure as a Service (IaaS) providers  520 in-house counsel movement  405–6 Insanov, Ali  359 insulating rules in legal services  206–7 international arbitration  382–3 International Criminal Court  52, 64–5

Index  647 international cultural capital  432–3 international dispute settlement  52, 64 inter-professional mobility  107 IR (information retrieval)  516, 518 Iran bar associations  81, 82, 84, 85, 213 lawyer organisations  242, 243 legal profession growth  77 splitting  86 structure of  553 regime change  627 regulation of legal services  219–20 rule of law  92–3, 630 women lawyers  88 Iraq  88 Islamic fundamentalism  559 Islamic law  74–5, 91 Israel access to justice  237 client benefits  234–5 human rights  238 lawyer organisations  231 and judicial system  236 legal education  261–2 legal services markets  233 online providers of legal information  210 self-regulation  232 women judges  92, 134 women lawyers  129–30, 132, 134 Italy  208, 239, 282–5, 572–4 Jackson, Andrew  575 Jafarov, Rasul  353–4, 358 Japan access to justice  236 civil society  237 client benefits  235 human rights  237 lawyer organisations  230 legal education  258, 583 legal elites  583 legal professions entry to  209–10 self-regulation  208, 232 structure  555 Legal Research and Training Institute (LRTI)  583 legal revolution  583–4 legal services markets  233 women lawyers  131 Jordan  75, 80, 631 JRTI (Judicial Research and Training Institute)  583–4 judges and lawyers  84–5 politicisation of  353 and rule of law  354–5 women as  88–9, 92, 134–5

judicial regulation of legal services  212–13 Judicial Research and Training Institute (JRTI)  583–4 judicial systems  235–6, 356–7, 360–2 jurisdiction  103 jurisdictional volatility  107 Kazakhstan  80, 90 Kenya corruption  594, 598 lawyer organisations  242 legal education  59, 130, 262 legal profession  552 post-independence period  61 racial hierarchy  175 regime change  628 rule of law  629, 631 women lawyers  130 Khodorkovskiy and Lebedev v Russia (No 2)  359–60 KPMG  463 Kuwait  88, 89, 90, 91–2 Kyrgyzstan  76n4, 231, 234, 235, 238, 240 Latin America  31–46 see also Argentina; Bolivia; Brazil; Chile; Colombia; Cuba; Ecuador; Mexico; Venezuela bar exams  37 Big Law sector  45 codification period  42 comparative understanding of law  36–7 corruption  33, 35 COVID-19 pandemic  35 economies  32 elitism in the legal profession  39–40 émigré lawyers  44–5 foreign law  42 interdisciplinary practice  45–6 judicial systems  360–2 law curricula  36 law schools  37–9 law students  37–41 lawyer organisations  240–1 lawyers  42–6, 362–4 lawyer-state relationship  31–3 legal clinics  40 legal education in United States  42–5 legal scholars  40–1 legal systems  31 monopoly in legal practice  45–6 parochialism  33–7 racial minorities in the legal profession  39 rule of law  360–4 universities  37, 39, 40–1 women in the legal profession  39, 128, 130–1 Latvia  129 laundering money  591–8 law and development movement  253–4, 577, 578 law firm-led corporate legal sector  397–9

648  Index law firms in Brussels  422–3 corporate  374–88 diversity of  384–6 global  376, 379–82 inclusion in  384–6 Jewish  375 naming of  387 revenue of  383–4 law reform  82–3 law schools see also legal education global  256 India  571, 582 Latin America  37–9 United States  575 Law Schools Global League (LSGL)  34 lawyer organisations see also bar associations; lawyers and access to justice  236–7 and civil society  237–8 client benefits  234–5 and human rights  237–8 influence on law  227–48 and judicial systems  235–6 law-making  229–38 and legal professions  232–4 and legal services markets  233–4 lawyers see also lawyer organisations and access to justice  303–20 and accountants  461–82 cause lawyering  327–44 corporate lawyers  411–15 and European Union  421–40 foreign-trained  44–5, 387 as gatekeepers  57–9 globalisation of  33–4 and grand corruption  591–8 income of  383–4 independence of  216–19 indigenous  178–82 as intermediary elite  59–62, 60 and judges  84–5 Latin America  42–6 lobbying  428–31 and mobilisation  91–3 movements  93 partnerships  374–5 in politics  626–7 regulatory lawyers  423–40 roles of  9 and rule of law  355–6, 357–60, 362–4 and sociology of professions  445–55 women as  88, 127–8 Lebanon  80, 88, 90, 91, 92 legal aid  274, 303–8, 310–11, 315–19, 624–6 legal analytics  519–20, 533 legal clinics  40, 264–6

legal education and corporate legal sector  408–10 diversification  260–1 expansion of  256–60 form and content  262–4 and globalisation  253–67, 387 Japan  583 law students in Latin America  37–41 legal clinics  264–6 location of  255–6 regulatory lawyers  433 South Korea  583 stratification  261–2 tuition fees  257–8 United States model of  577 legal globalisation  67, 376, 395–417 see also globalisation legal hierarchies  569–87 legal information retrieval (IR)  516, 518 legal marketplaces  518 legal professionalism  204–11, 272–6 legal professions see also judges; lawyers; legal services; paralegals; prosecutors anti-money laundering regulation  601–10 and audit profession  473–6 and bureaucratic administrations  551–2 categorisation of  7–8 client demands  477 comparative methodology  8–10 and corruption  591–612 density and growth of  76–80 deregulation  557 diversity  384–6 elitism in  39–40, 552–4 engagement with the polity  5 entry to  209–10 Europeanisation of  421–3 feminisation  89–90, 128–31, 385 fusing  86–7 and gender  115–16, 157–9 gender inequality  135–42 global comparisons  544–50 governance  618–22 growth of  105–10, 123, 209–10 inclusion  384–6 jurisdictional control  476–8 and justice  561–2 and lawyer organisations  232–4 market concentration  473–6 market share  480 and masculinity  151–63 and new internationalism  555–9 para-professions  210–11 political liberalism  229 and post-socialist transformations  100–1 and power  445, 449–54

Index  649 practices by employment  481 practices by turnover  482 profitability  477–8 racial minorities  39, 182–92 and regime change  627–9 revenue  480 and rule of law  629–32 and rules  445, 447–9, 451–4 segmented  75–6 self-governance  618–22 self-regulation  232–3, 622–4 social closure  478 social mechanisms of changes  124 sociology of  52–4, 445–55 splitting  86–7 and state power  411–15 and state structure  551–5 state-centred comparison of  543–62 and states  561–2 threats to  386–7 transformations of  53 unified  75–6 women in  39, 87–91, 128–31 Legal Realism  576–7 legal research  516 Legal Research and Training Institute (LRTI)  583 legal revolutions  570–1, 575, 577–8, 581–5 legal services see also legal professions casualisation  275 co-regulatory arrangements  213 corporate  386–7 and corporate bureaucracy  215 governance  525–9 insulating rules  206–7 intermediaries  210–11 judicial regulation  212–13 and market competition  213–14, 215 markets  204–8, 208–11, 233–4 monopolies  205 nonlawyer participation  387 occupational unity  205–6 organisational form/logics  524–5 regulation of  203–21, 525–9 private interest motivation  219–20 professional  208–11, 215–16 public interest motivation  216 regulatory institutions  211–13 regulatory logics  213–16 self-regulation  207–8 spatial flows of practice  523–4 state regulation  211–12 and technology  515–33 temporal flows of practice  523–4 Legal Services Corporation (LSC)  305–6 legal technology  515–33 LegalZoom  210, 233, 518

Libya bar association  81–3, 85, 231 human rights  238 Islamic law  75 judicial system  235 lawyer organisations  235, 242 legal professions entry to  84 growth  76, 77 self-regulation  81, 232–3 splitting  86 legal services markets  234 regime change  627 rule of law  630 Limited Liability Partnerships (LLPs)  382 Limited License Legal Technicians (LLLTs)  292, 309 LLM (masters in law) programmes  42–3, 77–8, 387 LLPs (Limited Liability Partnerships)  382 lobbying  428–31 logic programming  517, 533 López, Leopoldo  363 LRTI (Legal Research and Training Institute)  583 LSC (Legal Services Corporation)  305–6 LSGL (Law Schools Global League)  34 machine learning  517, 533 macro-gears  411 Maekelt, Tatiana B de  41 Magic Circle law firms  375, 398, 467, 480 Malaysia bar association  81, 82 corruption  593 ethnic groups  552 Islamic law  91 legal professions growth  77 independence  75 women judges  89, 91 women lawyers  88, 90 Maldives  75, 90 Maldonado, Henderson  363 Mali  55, 58, 64–5, 90 Marcos, Ferdinand  594–5 masculinity critical study of men and masculinities (CSMM)  153, 160–1 and legal professions  151–63 political context  161 social context  160 masters in law (LLM) programmes  42–3, 77–8, 387 medical profession  495–509 disruptors  496–9 leaderism  504–5 mutation of professionalism  502–8 and organisations  498 and post-truth  506–8

650  Index and society  496–8 transformations  499–502 and work roles  498–9 Medieval Europe, legal elites in  572–4 methodology  3–4 Mexico  32, 39, 130, 134, 241, 259, 551 money laundering  591–8 anti-money laundering (AML) movement  598–601 regulation  601–10 monopolies of legal services  205 moral toolkits  447–9 Morocco  80, 81, 83, 87, 88, 89, 90, 91–2 Moskalenko, Karinna  360 multi-level analytical frame  140–1 Muslim countries  73–95 see also Afghanistan; Azerbaijan; Bahrain; Burkina Faso; Egypt; Gambia; Indonesia; Iraq; Jordan; Kazakhstan; Kuwait; Kyrgyzstan; Lebanon; Libya; Malaysia; Maldives; Morocco; Niger; Oman; Pakistan; Palestine; Qatar; Saudi Arabia; Senegal; Somalia; Sudan; Syria; Tunisia; Turkey; Turkmenistan; United Arab Emirates (UAE); Uzbekistan authoritarian rulers  86–7 bar associations  80–5 family law reform  92 Islamic law  74–5, 91 law reform  82–3 lawyers and judges  84–5 and mobilisation  91–3 movements  93 legal legacies  74–6 legal professions density and growth of  76–80 feminisation  89–90 fusing  86–7 segmented  75–6 splitting  86–7 unified  75–6 women in  87–91 legal systems  73–6 masters in law (LLM) degrees  77–8 political repression  85 rule of law  75, 76, 92–3 women and Islamic law  91 in the judiciary  92 lawyers’ movements  91–2 in legal profession  87–91 Mwangi, Paul  52 Myanmar  131, 175, 176 lawyer organisations  243–4 legal profession  554 military  552

Napoleonic Code  42 natural language processing (NLP)  519, 533 Netherlands  185–8, 279–81, 605 networking tools  520 New Deal  576 new internationalism  555–9 New Public Management (NPM) techniques  496–7 New Zealand  178–82, 205 Niger  77 Nigeria  58–9, 77, 175, 242, 262, 595–6, 597, 628 NLP (natural language processing)  519, 533 Norway  265, 310–11, 312, 313–15 see also Scandinavia notaries  116, 134 NPM (New Public Management) techniques  496–7 occupational unity in legal services  205–6 Odebrecht affair  35 ODR (Online Dispute Resolution)  521 Oman  89, 90 1MDB fraud case  593, 597 Online Dispute Resolution (ODR)  521 online legal information  518 online providers of legal information  210 Ontario  210 see also Canada organisational inequality regimes  132–4 Pakistan bar association  81, 82 lawyers’ movement  93 legal profession, growth  77 military  552 regulation of legal services  220 rule of law  75, 79–80 women judges  89 women lawyers  88, 90 Palestine bar association  81, 82, 208 lawyer organisations  242, 243 legal clinics  266 legal legacy  74 legal profession entry to  83 growth  77 regime change  628 women judges  89 women lawyers  88 paralegals  210–11, 271–94 parenting  155–6 Paris  66–7 partners  377 partnerships of lawyers  374–5 PCs (personal computers)  517 PEPs (politically exposed persons)  594 personal computers (PCs)  517 Philippines  551–2, 594–5

Index  651 Poland bar association  135 lawyer organisations  240 legal profession growth  108, 109, 110 market reforms  104–6 self-regulation  112–13 notaries  134 rule of law  560, 561, 631 unqualified practitioners  210 women lawyers  129 political liberalism  229 political repression  85 politically exposed persons (PEPs)  594 politics, lawyers in  626–7 populism  161, 559, 560, 561 post-colonialism  176–8 post-socialist countries  103–15 see also Bosnia and Herzegovina; Bulgaria; China; Czech Republic; East Germany; Georgia; Hungary; Latvia; Poland; Romania; Russia; Serbia; Slovakia; Vietnam apprentice programmes  113 comparative approach  103–4 inter-professional mobility  107 jurisdictional volatility  107 legal education  260 legal professions and gender  115–16 numerical growth  105–10, 123 social mechanisms of changes  124 women in  129 market reforms  104–5 notaries  116, 134 political transformations  110–13 regulation  110–15 women in legal professions  129 post-socialist transformations  100–1 post-truth  506–8 power  445, 449–54 private interest motivation for regulation of legal services  219–20 Privy Council  56 pro bono services  306–7, 313–14, 624–6 processual sociology  4 professional diversification  176–8 professional monopoly  102n5 professional regulation of legal services  208–11, 215–16 professionalism  204–11, 272–6 professions see also legal professions; sociology of professions concept of  3–4 uniqueness in  446–7 Project on Globalization, Lawyers, and Emerging Economies (GLEE)  395

prosecutors  134, 355 public interest motivation for regulation of legal services  216 public international law  36 Qatar  89, 90 Québec  207 see also Canada race  173n1, 174–6 racial/ethnic groups in the legal professions  188–92 regime change  627–9 regulation see also self-regulation corporate legal sector  406–8 corruption  601–10 of legal services  203–21, 525–9 private interest motivation  219–20 public interest motivation  216 money laundering  601–10 and political transformations  110–15 regulatory institutions for legal services  211–13 regulatory lawyers  423–40 and autonomisation of European legal field  433–5 as boundary entrepreneurs  431–9 and EU competition policies  422–8 international cultural capital  432–3 internships  434 legal education  433 lobbying  428–31 and private sector  435–9 regulatory logics for legal services  213–16 relational inequality theory  139–40 remote work environments  378–9 research agenda  632–4 research strategy  54 revenue of law firms  383–4 Rocket Lawyer  210, 518 Roman law  36 Romania  107, 109, 111, 112, 113 rule of law  75, 79–80, 92–3, 216–19, 228, 354–6, 559–60, 629–32 rules  445, 447–9, 451–4 Russia see also BRICS countries corruption  594 foreign lawyers  115 judicial system  356–7 jurisdictional volatility  107 lawyer organisations  240 lawyers  359–60 legal education  258 legal profession growth  104–6, 109 regulation  110–11, 117 paralegals  275 regime change  629 regulation of legal services  219 rule of law  631

652  Index unqualified practitioners  210 women lawyers  129 SASAC (State-owned Assets Supervision and Administrative Commission)  405 Saudi Arabia  84, 88, 89, 90 Scandinavia  309–15 see also Denmark; Norway; Sweden Scotland  215, 239 see also United Kingdom scriveners  275 security states  559 segmental inequality regimes  134–5 self-governance  618–22 see also governance self-regulation  207–8, 232–3, 622–4 see also regulation Senegal  58, 64, 75, 80, 88, 90 Serbia  108, 111, 134, 240, 260, 628, 631 sexual discrimination  135–6 Singapore  555 Slovakia  107, 108, 109, 111, 112, 113, 129 smart contracts  520, 533 social capital  62–6, 138–9 social closure  478 social division of labour  101–2 sociology of legal profession  52–4, 445–55, 529–32 sociology of professions  445–55 Somalia  88, 90 South Africa  53n6, 57, 178, 241–2, 266, 628 see also BRICS countries South Korea  244, 259, 583–4, 631 Southern Rhodesia see Zimbabwe Soviet Union see USSR Spain  630 state power  411–15 state regulation of legal services  211–12 state socialism  99–100, 101, 102–3, 116 state structure and legal professions  551–5 state-centred comparison of legal professions  543–62 State-owned Assets Supervision and Administrative Commission (SASAC)  405 states and legal professions  561–2 states as sites for the construction of power  547–50 Sudan  77, 81, 83, 85, 88, 91, 628 Sweden  261, 310–11, 313 see also Scandinavia Switzerland  129, 131, 133, 605–6 Syria  88 Taiwan  244, 631 Tanzania  628 technology assisted review (TAR)  520, 533 technology for legal services  515–33 Thailand  205–6, 244, 553, 628, 631 Togo  65, 66 transnational business masculinities  157–8 transnationalisation of law  8 Trinidad and Tobago  178 Tunisia bar association  80, 81, 82, 87

judges and lawyers  84–5 lawyer organisations  242, 243 lawyers and judges  84–5 legal education  260 legal profession entry to  83 growth  77 segmentation  53 structure  552 unification  86–7 rule of law  80, 630, 631–2 women judges  89 women lawyers  88, 90 Turkey bar associations  81–2, 86, 135 judges and lawyers  85 lawyer organisations  242, 243 lawyers and judges  85 legal education  259 legal legacy  74 legal profession entry to  83 growth  77 splitting  86 structure  553 regime change  627–8 regulation of legal services  220 rule of law  80, 630 women lawyers  88, 90, 135 Turkmenistan  90 UAE (United Arab Emirates)  80, 89 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)  92 UN Convention on the Rights of the Child (CRC)  92 uniqueness in the professions  446–7 United Arab Emirates (UAE)  80, 89 United Kingdom see also England and Wales; Scotland colonial empire  56–7 corporate law firms  375–6 diversity in legal professions  385 foreign-trained lawyers  387 inclusion in legal professions  385 law firms in Brussels  422, 432–3 legal elites  574, 575–8 money laundering  606–7 populism  561 racial/ethnic groups in the legal professions  188–92 rule of law  629 United States access to justice  236–7, 305–9 bar associations  229 corporate law firms  375, 376, 383 corporate lawyers  576 foreign-trained lawyers  387 hybrid model of legal hierarchy  575–8 judicial regulation of legal services  212

Index  653 judicial system  235 Latin American lawyers  42–5 law and development movement  253–4, 577, 578 law firms in Brussels  422, 430–1, 432–3 law schools  575 lawyer organisations  230–1, 235 legal aid  305–8 legal clinics  265 legal education  577 legal elites  575–8 legal professions diversity and inclusion  385, 386 growth of  209 Legal Realism  576–7 legal services intermediaries  210–11 legal services markets  233 Limited License Legal Technicians (LLLTs)  292 market demand for legal services  412 money laundering  593–4, 609–10 New Deal  576 online providers of legal information  210 organisational gender inequality  132–3 paralegals  289–93 political liberalism  229 pro bono services  306–7 racial/ethnic groups in the legal professions  182–5 rule of law  559–60, 561, 629, 630 self-regulation  207, 232 state power and legal professions  412 women lawyers  127–8 USSR  99, 101 see also Russia Uzbekistan  85, 90 Venezuela economy  32, 44 human rights lawyers  362 humanitarian crisis  32 judicial system  361 lawyer associations  241 lawyers criticism of government  362 emigration of  44 oppression of  363–4

regime change  629 rule of law  363–4, 560, 630 verein structure  381–2 Vietnam  101, 103, 107, 109, 114, 243, 259 virtual law platforms  377 Web 2.0  517, 533 West Bank  90, 91 Western European lawyer organisations  239 White Shoe law firms  375 WJP (World Justice Project)  76, 78–80 women in academia  135 agency  140–1 in bar associations  135 career choices  140–1 cause lawyers  336–43 cognitive biases  136 cultural capital  139 discrimination  135–6 family responsibilities  136–8 human capital  138 and Islamic law  91 as judges  92, 134–5 as lawyers  88, 89–92, 127–31 lawyers movements  91–2 multi-level analytical frame  140–1 organisational inequality regimes  132–4 as prosecutors  134 relational inequality theory  139–40 segmental inequality regimes  134–5 social capital  138–9 work-life conflict  136–8 work process technologies  520 working from home  378 work-life conflict  136–8 World Justice Project (WJP)  76, 78–80 Yingke  381, 406 Zambia  596–7 Zimbabwe  53n5, 58, 130, 262, 630

654