The final chapter

Click to increase image sizeClick to decrease image size Notes Chapter 11 of R.L. Abel, English Lawyers between Market and State: The Politics of Professionalism (Oxford, Oxford University Press, 2003). Magali Larson, The Rise of Professionalism (Berkeley, CA, University of California Press, 1977). At p. 487. At p. xv. In his earliest accounts of his thesis Professor Abel focused almost exclusively on market control as the essence of professionalism. However, he quickly accepted the argument of those critics who accused him of neglecting that part of the Larson thesis which described the professional project as also pursuing collective mobility (enhancing status) and references to status do appear in some of his later work. (The Legal Profession in England and Wales (Oxford, Basil Blackwell, 1988) at p. 17; ‘Revisioning Lawyers’ in R.L. Abel and P.S.C. Lewis (eds) Lawyers in Society (Berkeley, CA, University of California Press, 1995) at p. 8.) At p. 475. See e.g. Abel, The Legal Profession in England and Wales (Oxford, Basil Blackwell, 1988). At p. 114. See A. Paterson, ‘Professionalism and the Legal Services Market', International Journal of the Legal Profession 3 (1996): 137. As he records on p. 476 the pass rates in the professional examinations in Japan, Korea and Taiwan have traditionally been below 5%. The equivalent pass rates in England were always over 50%. Strictly speaking these periods were not as open entry as they are sometimes represented because there were ascriptional barriers which excluded women and ethnic minorities from the profession. Even by Abel, see p. 482. See also e.g. A. Paterson, Professional Competence in Legal Services (London, National Consumer Council, 1990); Moorhead et al., Quality and Cost (London, The Stationery Office, 2001) Abel, op. cit. at p. 476. This is not to deny that all restrictive practices in the profession must be justified as being proportionate and in the public interest. See Case C 309/99 Wouters v. Algemene Raad van de Nederlandse Orde van Advocaten, European Court of Justice (2002). At p. 478. See e.g. A. Paterson, ‘Professionalism and the Legal Services Market', op. cit. At p. 115. At p. 480. At p. xv. See A. Paterson, op. cit. and D. Nelson, D. Trubek and R. Solomon, Lawyers’ Ideals/Lawyers’ Practices (Ithaca, NY, Cornell University Press, 1992). At p. 481. At p. 484. David Podmore, Solicitors and the Wider Community (London, Heinemann, 1980). At p. 486. At p. 487. As indeed has proved to be the case. Few personal injury lawyers now appear keen to return to the lower fees rates that once were paid by legal aid. It would not be unfair to say that Professor Abel has little positive to say about legal aid in England and Wales in this chapter. He posits (at pp. 486–7) a golden age for English legal aid where there was near universal coverage and lawyers were highly remunerated for doing the work. Like most golden ages, this is a myth. The high levels of eligibility were effectively limited to divorce and personal injury actions and remuneration was never particularly generous. Indeed an objective comparison of legal aid in England and Wales and in the USA today would show the former to outstrip the latter by a substantial margin in almost every respect including actual as well as per capita expenditure. He also fails to note that the market rate is not necessarily a fair one as between lawyers and clients—it is simply the rate of fee in the private sector which the profession have been able to pressurise out of the judiciary. See R. Moorhead, A. Sherr and A. Paterson, ‘Contesting Professionalism: Legal Aid and Nonlawyers in England and Wales', Law and Society Review 37 (2003): 765 and Moorhead et al., Quality and Cost, op cit. Eighth edition (London, The Law Society, 1999). It attracts only two mentions and three lines in the book. ‘Top judge fears legal reform will raise ghost of Nazis’, The Times, 7th November 2003, p. 4. At p. 495. Abel is not the first scholar to attack the privilege of confidentiality, Jeremy Bentham did so in a much earlier era and to greater effect. However, it remains a fundamental fiduciary obligation owed by all agents to their principals which retains an importance for clients as well as the profession. At p. 497. In this I am not alone. See, e.g. Deborah Rhode's, In the Interests of Justice: Reforming the Legal Profession (2000). If I have succumbed to the weakness which I have ascribed to Professor Abel of being excessively critical in my presentation, a fuller, more positive, interpretation of the events described by Abel can be found in Paterson, ‘Professionalism and the Legal Services Market', 1996, op. cit. Perhaps because in the UK we have learned to live with an unwritten constitution. Nevertheless, his claim that his use of the term ‘professionalism’ is sociological rather than normative, ignores the fact that the ordinary language meaning of ‘professionalism’ familiar to readers, contains normative elements.