ACLEC ~ RESEARCH PROPOSAL RESEARCH PROPOSAL FOR THE LORD CHANCELLOR'S ADVISORY COMMITTEE ON LEGAL EDUCATION AND CONDUCT

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1 ACLEC ~ RESEARCH PROPOSAL RESEARCH PROPOSAL FOR THE LORD CHANCELLOR'S ADVISORY COMMITTEE ON LEGAL EDUCATION AND CONDUCT HIGHER COURT RIGHTS OF AUDIENCE FOR SOLICITORS IN PRIVATE PRACTICE: THE SUPPLY OF ADVOCATES TENDER FOR THE IN-DEPTH RESEARCH Perceptions of the Market: Lawyers SUBMITTED BY John Flood Andy Boon Robert Abbey School of Law University of Westminster 4 Red Lion Square London WC1R 4SR Tel: , ext 2557 Fax: FLOODJ@WESTMINSTER.AC.UK

2 PERCEPTIONS OF THE MARKETS: LAWYERS Aims The proposed study focuses on lawyers' perceptions of the market for advocacy services and aims to throw light on the following key issues: 1) the provision of advocacy services including existing patterns of provision, actual experience at the higher courts 2) the development of advocacy services including plans for undertaking advocates' work in the future and perceived advantages/reasons for doing so, as well as methods of doing it 3) changes in the advocacy market, including perceptions of how clients' will be affected by the expansion of advocacy work by solicitors. The project aims to provide an overall analysis of lawyers' perceptions of the market for solicitor advocates within a theoretical context which takes into account the socially constructed nature of professional divisions over areas of work, and the fundamental differences in experience and practice found within the solicitors' profession. The theoretical background to this study is explained below, followed by a description of the different stages involved. Background and Theory The ACLEC background paper on the new rights of audience in the higher courts for solicitors in private practice indicates the wave of liberalisation that has been moving through the professions, eg, accounting, law, medicine, in the last decade or so. While the professions have traditionally been protected from some of the exigencies of the market, they have not been entirely insulated from its effects (Carr-Saunders & Wilson 1933). Some theorists have argued that professions enter a bargain with the wider community which grants them a degree of self-regulation in exchange for an ethos of practice that does not rely wholly on commercialism (cf. Johnson 1972). Recent analysis suggests that professions are part of a complex relationship composed of professions, market and the state (Bourdieu 1987; Abbott 1988).

3 Another way of looking at professions is to see them in a constant state of competition with each other over jurisdiction (Abbott 1988). For example, solicitors and accountants have had longstanding disagreements over which group is best qualified to offer tax advice; more recent jurisdictional developments have included the opening up of insolvency work by creating a "new" professional, namely, the insolvency practitioner, who can be either an accountant or a solicitor (Skordaki & Flood 1995). Advocacy, then, becomes another area of jurisdictional conflict. Before the Courts and Legal Services Act solicitors and barristers had an uneasy alliance over which group should undertake which categories of work. Barristers gave up conveyancing, but maintained a monopoly right on audience in the higher courts; solicitors made some claims for audience--notably for being heard in the County Courts--but kept a monopoly on the commencing of litigation. Several forces have conjoined to blur the boundaries (Abel 1988; Glasser 1990; Stanley 1991). In addition to government policy on the professions, the economy, especially the boom and recessionary periods of the 1980s and the 1990s, have forced lawyers to seek new markets. The move towards globalization has engendered a more entrepreneurial approach to the practice of law and business advising (Flood 1995). For example, barristers have established chambers in such places as Brussels and Paris where, unbound by domestic codes of conduct, they offer a range of legal services dealing with, amongst others, the European Commission and the International Chamber of Commerce. Solicitors' firms are also located throughout the world. And with the growth in private forms of dispute resolution, eg, arbitration, mediation, both solicitors and barristers have adopted the roles of advocate and adjudicator as called on. (It is worth noting here that even accounting firms have begun to offer dispute resolution services to clients.) Part of these changes are a result of the competition now existing between lawyers from different countries. Two of the most competitive are the legal professions of the UK and the US. The legal profession in the US is not divided as in the UK, but there is a high degree of specialisation among attorneys. Litigation is one such specialism and a number of professional associations exist to encourage good practice in litigation (eg, American Trial Lawyers' Association). But separate training is not undertaken to become a litigator: an attorney-at-law can practise in any field of law. Most medium-sized and large American law firms would have a litigation department and there are also a number of "niche" practices that offer specialised litigation services.

4 The key study of the US legal profession is Heinz and Laumann's Chicago Lawyers (1982). Its central finding is that lawyers belonged to two hemispheres according to their practice. In the corporate hemisphere were those who practised corporate law, eg, business litigation, antitrust, banking. In the personal plight hemisphere were the practitioners of, eg, plaintiffs personal injury work, divorce, criminal defence. Heinz and Laumann argue that although the lawyers in their study came through the same style of education, by the time they entered practice they rarely had contact with each other and had adopted different values, including ethical values. The research on the UK legal profession would suggest a similar configuration (eg, Abel 1988; Flood 1995). Another potential for change must be considered. According to some commentators the concept of partnership itself is causing strain to professional service firms (Economist 1994). In part this arises from the mounting liability claims corporate professional firms are facing. The larger accounting firms and some of the larger law firms are actively considering a move from partnership with its unlimited liability to a more corporate structure with limited liability. Moreover, since the late 1980s professional firms have raised the topic of multidisciplinary practices (Flood 1994). Again accounting and law have been likely bedfellows. Some earlier research has indicated that solicitors and barristers might combine in law firms if the rules were changed (Flood 1995). So we must also consider the impact of possible organizational changes. The Higher Courts Qualification Regulations (1992) came into effect in December 1993 to together with Practice Rules 16A and 16B and the Law Society's Code for Advocacy. It is presently unclear what impact the granting of higher court rights of audience will have. It is reported, for example, that applications for higher rights under Regulation 4 were initially strong but these are from solicitor advocates who already have a strong foothold and experience. Applications under Regulation 5 (suitable experience, tests and course) have been "disappointing" according to the Law Society. It therefore seems that solicitors' aspirations to advocacy may not be as strong as is the Law Society's aspirations to expand the market of services for its members. However, it is unclear whether the level of demand reflects economic or cultural factors. The Law Society's commitment to inculcating an "advocacy culture" through compulsory training in the Legal Practice Course and the Professional Skills Course could produce a generation of solicitors much more orientated towards advocacy in the higher courts. However, for this to happen law firms may also need to make a commitment to developing the culture and, in addition to supporting students through the Professional Skills Course and offering the support demanded by the new training contract, a commitment to developing to the provision of in-house advocacy courses. The impact of such changes on the Bar,

5 whether by drawing experienced barristers into solicitors' firms or by starving the practising Bar of advocacy opportunities, would be considered, as would the possible impact of a weakened Bar or firms unable or unwilling to provide an in-house advocacy service (Hall-Jones 1992). This in turn raises questions about the education of lawyers in higher education (Neave 1989) and in continuing education (Houle 1980). The concept of professionalism could also be threatened by a failure to offer comprehensive services and by public perceptions of greed and self-interest (Houle 1980; Abel 1986). For purposes of this research project we would embed our study in two theoretical frameworks. Firstly, we consider the divisions within the legal profession and between professions to be socially constructed and not prescribed by the law. Thus these divisions give rise to "contested domains" of work; the boundaries can never be completely rigid and clear. Secondly, the research must take account of the hemispherical mapping of the profession. The two hemispheres have differing aims and objectives with radically different constituencies. As a result we argue that a study of solicitor advocates cannot treat them as a homogeneous group. For example, a useful way of investigating the factors influencing firms' willingness to encourage advocacy training and practice is in relation to the different kinds of firm within both the hemispheres we have mapped. One instance we know of is one or two City firms that have been sending solicitors to Sidley & Austin, a large Chicago law firm, for advocacy training. The Proposed Study The proposed study would focus on London. Such a geographical focus would encompass both the corporate and personal plight hemispheres. The City of London contains the country's major financial institutions and the largest professional firms in the UK. The remainder of London contains the full range of socio-economic groups and a full mix of ethnic communities. The range of law firms extends from the large to sole practitioner. Another recent development in legal London is worth noting: a number of large, provincial law firms are opening London offices. We choose London, then, because we believe it to be a microcosm of the country as a whole. Furthermore, a community-wide study produces rich data: in this respect we follow Heinz and Laumann in their study of Chicago lawyers. But the question, "Is London typical?", must be raised. In many ways it is easy to point out its atypicality, with the presence of the City, government, etc. Nevertheless, London is not merely these things, it embraces a diverse population that is most likely representative, yet we cannot confirm its typicality (cf. Heinz & Laumann 1982, Carlin 1962, Handler 1967). Therefore, as we propose concentrating on London, we would hope to

6 collaborate and cooperate with other teams of researchers studying other parts of Great Britain. From within these areas we would select a number of solicitors and firms for study. We propose a bifurcated research plan that would combine a set of case studies with a wider, more general survey. 1 Case Studies We propose selecting four fields of practice for our case studies, namely, corporate and commercial, criminal defence, plaintiffs' personal injury, and immigration. Firstly, they map onto the hemispheres of practice outlined above. Secondly, they represent established and developing areas of practice. Thirdly, they employ a variety of arenas for dispute resolution, from tribunals through arbitration to all levels of courts. Fourthly, all are subject to external influences such as developments in European law and lex mercatoria. Fifthly, two members of the research team have extensive research experience in two of the fields, namely, Boon in personal injury law (eg, Boon 1994) and Flood in corporate law (eg, Flood 1994, 1995; Flood & Caiger 1993). And Abbey remains a consultant with a firm well-known for criminal defence and plaintiffs' personal injury work. We have a consultant, Dr Satvinder Juss, to advise us on immigration law (see Juss 1993). Sixthly, the case studies will inform the structure of the general survey. We propose three steps, based on semi-structured extensive interviews (see McCracken 1988), so as not to preclude anything that might be of interest and use: (i) We will select a sample of three firms within these four fields and undertake intensive interviews with key individuals, those acting as advocates, those planning to be advocates, managing partners, and junior members of the firm who might be influenced to consider advocacy for themselves or their associates. A number of resources are available to assist in selecting firms and solicitors, eg, the Solicitors' Directory, The Legal 500, Chambers & Partners' Directory, and our own extensive networks, eg, Flood in the City, Boon in personal injury firms, and Abbey, who as a London solicitor, has worked extensively with trades unions and the Police Federation. Our sample will also be distributed across London. The initial interviews will bear on the development of solicitor advocates across all tribunals, private and public, including the higher courts. New courts are being established, eg, the Business List within the Central London Civil Trial Centre (Edwards 1994a), which might prove attractive to solicitor

7 2 Survey advocates (eg, Edwards 1994b). Solicitors are involved in representing clients before arbitral tribunals and might wish to appear more regularly in such courts as the Official Referees' Court. It is necessary, therefore, to capture the range of activities and perceptions of those activities. We would follow our sample as extended rights of audience become more established and interview them again in the latter third of the research programme. (ii) In addition to solicitors we would interview barristers working in the same fields. The perception of increased competition for scarce resources would, we suggest, markedly affect the relationship of the two sectors of the legal profession. One could hypothesize that as solicitors move more towards advocacy, barristers would take on more "full-service" activities, such as negotiations and dealmaking, or that fusion could occur. We would use the professional directories to identify appropriate barristers. (iii) We would take a sample of tribunals across our four fields in order to interview personnel, judicial and administrative to explore their perceptions of this new market. These could include the House of Lords, the Court of Appeal (civil and criminal), the High Court (including the Commercial Court and the Official Referees' Court), the Circuit Courts (County Courts and Crown Courts), magistrates' courts. We would also include administrative tribunals such as the Immigration Tribunal. On the private side we would include tribunals such as those set up under the provisions of the JCT, the London Court of International Arbitration, the International Chamber of Commerce. And as there are increasing moves towards forms of alternative dispute resolution (ADR), we would include institutions such as the Centre for Dispute Resolution (CEDR). When the first round of case-study interviews has been carried out, the general survey would be conducted. This would be a questionnaire-based survey administered to a random sample of London solicitors and barristers, which would take into account, amongst other things, the issues raised at page 3 of the ACLEC indepth research tender document. It would not be restricted to the four categories of practice as in the case studies; instead we intend to capture the full range of legal practice. We would derive our fields of practice from the work already carried out by the Research and Policy Planning Unit of the Law Society (eg, Chambers & Harwood 1990). We would select a sample of 300 lawyers, divided into groups of 150 solicitors and 150 barristers, again employing the resources noted above. The survey would be based on the findings of the first wave of interviews in the case

8 studies. We propose two waves of questionnaires. The first would be a postal/telephone survey followed by one telephone survey. We believe telephone surveys have a high rate of response, are cost-effective and deliver good data. Data Collection and Analysis All interviews will be tape-recorded unless interviewees object. Confidentiality will be maintained. The tapes will be transcribed and the transcripts held in AskSam, a powerful, free-form text-retrieval program. The analysis will be conducted during the research and will therefore influence the direction of the research as it progresses. We will address the principal concerns as outlined in the ACLEC Background Paper at pages 3-4. Schedule The project would run for a period of 12 months. We propose researching the 1995/96 period, as mentioned in the ACLEC documents, in order to capture a greater awareness of the developing market for advocacy services. Our proposed schedule is as follows: Month 1: select samples; arrange contacts; devise topics for interviews Month 2: conduct interviews Month 3: conduct interviews; preliminary analysis; begin construction of general survey questionnaire Month 4: transcribe interview tapes; pilot survey questionnaire; start telephone interviews; analysis; administer questionnaire Month 5: administer questionnaire; analysis Month 6: follow-up on case study; analysis; prepare and submit progress report to the ACLEC Month 7: analysis Month 8: analysis Month 9: follow-up on case study; analysis Month 10: follow-up on survey questionnaire; writing report Month 11: writing report Month 12: writing report; submit final report to the ACLEC

9 The final report would consist of a research monograph detailing the findings, methodology and theory with technical appendices containing copies of the questionnaires. REFERENCES Abbott, A (1988) The System of Professions: An Essay in the Division of Expert Labor (Chicago: University of Chicago Press). Abel, R (1986) The decline of professionalism, 1 Modern Law Review 49. Abel, R (1988) The Legal Profession in England and Wales (Oxford: Blackwell). Boon, A (1993) Advocacy (London: Cavendish). Boon, A (1994) Co-operation and competition in negotiation: the handling of civil disputes and transactions, 1 International Journal of the Legal Profession 109. Bourdieu, P (1987) The force of law: toward a sociology of the juridical field, 38 Hastings Law Journal 814. Carlin, J (1962) Lawyers on Their Own: A Study of Individual Practitioners in Chicago (New Brunswick: Rutgers University Press). Carr-Saunders, A & Wilson, P (1933) The Professions (London: Frank Cass). Chambers, G & Harwood, S (1990) Solicitors in England and Wales (London: Law Society). Economist (1994) Partners in pain, Economist, 9 July: 73. Edwards, J (1994a) Court in the middle, Legal Business July/August: 42. Edwards, J (1994b) David and Goliath: David Mayhew is blazing a trail for solicitor advocates in the UK's largest firm, Legal Business September: 48. Flood, J (1994) The Cultures of Globalization: Professional Restructuring for the International Market, in Professional Competition and Professional Power:

10 Lawyers, Accountants and the Emergence of a Transnational State, (eds) Y Dezalay & D Sugarman (London: Routledge). Flood, J (1995) Conquering the world: multinational practice and the production of law, in Social Change and the Solicitors' Profession, (ed) E. Skordaki (Oxford: Oxford University Press). Flood, J & Caiger, A (1993) Lawyers and arbitration: the juridification of construction disputes, 56 Modern Law Review 412. Glasser, C (1990) The legal profession in the 1990s--images of change, 10 Legal Studies. Handler, J (1967) The Lawyer and His Community: The Practicing Bar in a Middlesized City (Madison: University of Wisconsin Press). Heinz, J & Laumann, E (1982) Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation). Houle, C (1980) Continuing Learning in the Professions (New York: Josey Bass). Johnson, T (1972) Professions and Power (London: Macmillan). Juss, S (1993) Immigration, Nationality and Citizenship (London: Mansell). McCracken, G (1988) The Long Interview (Beverley Hills: Sage). Neave G (1989) Lawyers and higher education policy: from the other end of the telescope in Lawyers in Society, vol. 3, (eds) R Abel & P Lewis (Berkeley: University of California Press). Skordaki, E & Flood, J (1995) The rise of the corporate adviser: accountants versus solicitors?, in Social Change and the Solicitors' Profession, (ed) E Skordaki (Oxford: Oxford University Press). Stanley, C (1991) Enterprise lawyers: changes in the market for legal services, 25 Law Teacher 1.