LAWYERS, THE STATE AND THE MARKET

Transcription

1 LAWYERS, THE STATE AND THE MARKET

2 Also by Gerard Hanlon THE COMMERCIALISATION OF ACCOUNTANCY

3 Lawyers, the State and the Market Professionalism Revisited Gerard Hanlon ~ t \ L \ C ~ 1 1 LL \N Business

4 Gerard Hanlon 1999 Softcover reprint of the hardcover 18t edition 1999 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act First published 1999 by MACMILLAN PRESS LTD Houndmills, Basingstoke, Hampshire RG21 6XS and London Companies and representatives throughout the world ISBN ISBN (ebook) DOI / A catalogue record for this book is available from the British Library. This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources

5 For J en and September 6

6 Contents List of Tables Preface Acknowledgements x xi xiii 1 A Crisis of Social Democracy? Professionalism and Flexible Accumulation 1 The Market or Social Democracy? 2 Emergence of Global Fordism 3 Social Citizenship, Professionalism and the Fordist Regime of Accumulation 5 Professionals and the Delayed Endorsing of Social Citizenship 9 Social Service Professionalism and the Market sector 17 Unbounded Social Citizenship and the Crisis of British Capitalism 19 The New Right's Attempted Destruction of Social Democracy 25 The Consequences of the State's Shift Right for Professionals 30 Capital's Attack and Resurgence 33 Conclusion 37 2 Defenders of the Laissez-Faire Faith and Adherents to Fordist Collectivism: The Changing Relationship Between Lawyers and Society 39 A Suitably Qualified Laissez-Faire Capitalism 40 Inter-professional Rivalry and the Increasing Withdrawal into Land - Monopolising Conveyancing 45 Vll

7 viii Contents The Laissez-Faire State as the Solicitors' Defender 54 The Rise of the Interventionist State - A Case of Threatening Behaviour? 61 The Interventionist State and Solicitors - Towards a New Accommodation 66 Elite Firms - From Laissez-Faire Capitalism to Fordism 73 Conclusion - Lawyers and the Crisis of Social Democracy 79 3 Lawyers, the State and the Market: Between the Devil and the Deep Blue Sea 82 The Strong State and the Professions 82 Lawyers and the Strong State - A Further Facilitation of the Powerful? 93 Professional Services as Commodities - A Capital Idea 108 Buying Individual or Firm Skills? Commercial Knowledge, Networks and the In-House Lawyers 117 Conclusion Flexible Accumulation and the Emergence of the 'Commercialised Professional' 123 Commercial Law Firms - Are They Really That Different? 125 'Restructuring for the Emergence of the Commercialised Professional' 131 Networking and the (Renewed) Cult of the Individual 142 Embeddedness, Trust and Marketing Professional Services 146

8 Contents Networks as Sources of Individual Empowerment Conclusion 5 Professionalism as Enterprise: Service Class Politics and the Redefinition of Professionalism ix The Service Class as a Conservative Force 165 Service Class Divisions 166 Professions, Trust and the Service Class 170 Professionals and the Fissures in the Service Class 174 Social Service Professionalism and a Radical Service Class? 178 Developing These Issues Further 181 Conclusion 182 Conclusion: The Social Structure and the Changing Face of Professional Work 184 Appendix: Research Methodology 190 Notes 193 References 197 Index 209

9 List of Tables 1.1 Expansion of employment in broad professional services sectors Percentage of firms by partner numbers Areas of law practised by firm size Type of client base by law firm size Proportions of law firms with departments How competitive is the market by firm size? Extent and type of marketing plans devised by law firms by firm size 142 x

10 Preface This book examines the changing nature of professional work. It argues that the economic restructuring Britain has experienced in the past twenty years has had a radical impact on professionals and professional work. One of the major consequences of this restructuring is that it led to an alteration in the state's priorities. The state downgraded the issue of citizenship-based access to goods and services in favour of prioritising market-based access and international competitiveness. This had implications for professionals, because they are the providers of many of these goods and services. In order to ensure international competitiveness, the state had to limit the expansion of the welfare state. This meant it had to increase its control of professionals. Unsurprisingly, this led to conflict in a range of sectors from the National Health Service to the universities. However, it has also given some professions increased opportunities. Likewise, restructuring has led to a significant change in the behaviour of corporate capital. Corporate capital has aggressively pursued profitability over the past twenty years. This has entailed a sustained attack on the labour movement. However, it has also led capital to seek tighter control of the professional-client relationship. In short, it has sought to impose its vision of what good service provision means rather than leave this to the professionals themselves. Again, this has led to conflict and change in a variety of professions, providing some with the opportunity to exploit this change. The book highlights many of these changes and examines how some professionals have encouraged them, how others have embraced elements of them, and how still others have resisted them. It suggests that these processes are fragmenting previously homogeneous professions into two groups: a social-service-based group that advocates citizenship-based access to their services and those commercialised professionals who endorse market-based access and international competitiveness. These developments may fragment professions and possibly the service class. They may radicalise some elements of the service class and encourage them to reject the shift to a flexible economy because it will attack their real economic interests. However, these processes may also further wed other professional groups to the emerging flexible economy, as it brings with it large benefits for those professionals xi

11 xii Preface who have successfully commercialised. All of this means that professionals and professional work will be central to the transition Britain is currently undergoing. I would like to thank Robert Dingwall, Simon Roberts, David Sugarman, Joanna Shapland, and James Wickham for reading chapters of the book at different stages. All five provided me with different views and highlighted quite a few factual errors in early drafts. I can now publicly thank them for sparing me many blushes, although I suspect there are still a few to come. I must also thank Peter Armstrong for his support and influence over the past five years; much of what follows springs from interpretations of his work on accountants. Needless to say, all errors are mine and mine alone. GERARD HANLON

12 Acknowledgements Many people have given generously of their time and effort in order to make this book possible, and now is the time to thank at least some of them properly. I would like to start by thanking all those people who agreed to be interviewed and surveyed. It always surprises me how much time people will give to researchers. I am aware of the unevenness of this relationship. I always appear to take their thoughts, experiences and suspicions about what is occurring in a field of activity and to use it in a way that often provides little benefit to these participants. One hopes that somebody, somewhere, besides myself benefits from these encounters. If so, please spare a thought for the information providers. I would particularly like to thank Joanna Shapland at the Institute for the Study of the Legal Profession, of the University of Sheffield, for her support and for persuading the University of Sheffield to fund much of the fieldwork. A large part of this book results from her drive and enthusiasm. I also must thank Hans-J6rg Albrecht at the Max-Planck Institute for Foreign and International Criminal Law in Freiburg for enabling me to spend five months there as a Visiting Research Fellow. The first draft of this book was written during this time, and without this space I feel the work would never have been completed. I would also like to thank my colleagues at King's College London who supported me when this book was being written. Elements of the fieldwork upon which the book is based were gathered while doing some research for the Scottish Office entitled Assessing the Impact of the Introduction of Solicitor-Advocates in Scotland on the Clients of Legal Services. This work was conducted jointly with John Jackson, who provided me with much insight into the legal world as well as many entertaining nights in Scotland. I am deeply indebted to John for helping me gather this information and use it in this book. I am grateful to the Scottish Office for its permission to use the research in this way and to Alison Platts for conducting research in a way which values researchers and their input. I would also like to thank the Modem Law Review for permission to reproduce the tables in Chapter 4 which are taken from my paper published in the MLR in 1997, and also Cambridge University Press for permission to reproduce material in Chapter 5 originally published in Sociology in Sarah Brown and Susan Clegg at Macmillan also need acknowledging. Despite my missing deadlines and being constantly late they were always supportive and encouraging. I have discovered an editor's greatest quality is patience, and they both have much of it. G.H Every effort has been made to trace all the copyright-holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity. xiii

13 xiv 'The most effective way of making people accept the validity of the values they are to serve is to persuade them that they are really the same as those which they, or at least the best among them, have always held, but which were not properly understood or recognised before. The people are made to transfer their allegiance from the old gods to the new under the pretence that the new gods really are what their sound instinct had always told them but what before they had only dimly seen. And the most efficient technique to this end is to use the old words but change their meaning.' (F. A. Hayek, The Road to Serfdom, 1944, p. 117) 'The question is asked - can we afford it? Supposing the answer is "No", what does that mean? It really means that the sum total of the goods produced and the services rendered by the people of this country is not sufficient to provide for all our people at all times, in sickness, in health, in youth and in age, the very modest standard of life that is represented by the sums of money set out to this [National Insurance] Bill. I cannot believe that out national productivity is so slow, that our willingness to work is so feeble or that we can submit to the world that the masses of our people must be condemned to penury. ' (Clement Attlee, 1946, cited in P. Hennessy, Never Again, 1992, p. 119)