Lawyers are often stuck in a predicament, on one hand we rely on them to ensure that justice is served upon wrongdoers, on the other we despise the way in which they are able to use the law against us.
“…we praise them for effectively following our whishes and using the law to articulate our perspectives, but condemn then for using the legal system to satisfy the desires of other clients…by purveying legality, lawyers regularly both implement and destroy people’s notions of justice and community values” (Parker, 1999).
It is from this in which we often lose sight of the fact that lawyers are present to facilitate and preserve justice in modern society, but not all criticisms are without base. In reference to the above functionalist view of the legal profession, it should be noted that self regulation is an integral part of being a profession. This is form of self regulation is a double edge sword. It helps to govern the legal community by protecting clients who may not understand legal procedure thus looking after the client’s best interest. Nevertheless, self regulation can also be a barrier to clients when it wishes to address dissatisfaction with the legal community, this especially more so when the issues expressed are not a high priority within in the legal community. Criticisms of self regulation is that rather than creating homogeneity in the services offered, self regulation works more to shield incompetent legal practitioners rather than to eliminate them (Sutton 2001). Clients of lawyers usually complain when lawyers fail to treat clients with respect; do not consider the nature of interpersonal relations with clients to be an important part of law practice; appear to be motivated more by financial gains than professional values; are inaccessible and unresponsive; are poor communicators and show indifference to clients’ feelings (Felstiner 1997 in Parker 1999). The main concern of the public however, is not the number of complains against lawyers but the apparent lack of concern by the disciplinary bodies within the legal framework. Solicitors were usually punished by self regulatory bodies and tribunals for violations of accounts regulation, misappropriation of client funds, false statements in applying for a practicing certificate, criminal convictions, acting as a solicitor without holding a current practicing certificate and failing to account for monies (Abel 1998a in Parker 1999) this is in contrast to what clients complain about. An example of this is in the area of trust account fraud, whereby almost all of the eighty-two solicitors struck off between 1968 and 1982 in New South Wales were in relation to trust account breeches, which only accounted for 2 percent of complaints to the Law Society (Weisbrot 1990 in Parker 1999). It is evident that self regulation rarely works to protect the consumer compounded by the fact the consumer lack the knowledge to realize that they have been mistreated; rather self regulation serves more to ensure as a body to protect the legal profession from rouge legal practitioners who seek to impose on professional obligation towards colleagues that may give then a professional (especially an economic) advantage (Maley 1974 in Parker 1999). In response to these allegations and with increased public scrutiny of the legal profession, many states now appoint an ombudsman to regulate the legal community (Parker 1999).
The legal profession has also tried to monopolize large areas relating to law. By doing so, legal practitioners ensure that their member are somewhat immune to market pressures that tend to erode wages and working conditions. In addition, by monopolizing their work, legal practitioners are able to eliminate competition form non-legal sectors of society and at the same time raise the status of its members (Sutton 2001). According to Abel 1989 pp 20-24 in Sutton 2001, professional monopolies are created in two ways. One of which is “social closure” whereby new entrants to a certain profession is bases on certain ascriptive criteria such as kinship, ethnicity excreta, the entrants may also be subjected to long and expensive ordeals that may discourage some form advancing. The other strategy in creating a professional monopoly according to Able is to defend a stable and exclusive “jurisdiction” over a given service and where possible, to extend that jurisdiction. The legal profession has tried to create a monopoly by exercising control in almost all aspects of becoming a lawyer and the practicing of law. The legal profession controls entry into the profession by setting high standards of legal training and rising academic standards for admission into law schools (Sutton 2001). The legal profession also limits its numbers by administering a bar examination to those who have successfully completed their law degree. Although this form of control may not seem unusual today, it is surprising to note that these controls can be adjusted in response to changes in demand for lawyers. During the 1920 there were about 20,000 students enrolled in various law schools and in its peak during the 1930s with about 45,000 students in the USA with a steady increase right until the First World War, however bar admissions have remained relatively constant around the 10,000 mark (Sutton 2001), it can be safe to presuppose that with the higher number of law students, admission to the bar would increase in proportion to the number of students but in fact the inverse occurs. Jurisdictional claims by the legal community assert a monopoly can also be made in other arenas (Abbot 1988 in Roach Anelu 2002) the first being the legal system which can confer formal control of legal work through acts of Parliament (Roach Anelu 2002).
“…they claimed exclusive authority not only to represent clients in court but also give legal advise, draft wills, transfer property titles, draw up deeds, file appeals before administrative agencies…this was risky because it threatened a broad range of occupational groups…but the payoff was potentially hug and in the end the risk was justified” (Sutton 1999)
Public opinion can also help the legal profession protect its monopoly. In the cases whereby non-legal sectors pressure the legal profession, lawyers and their advocates usually incite legal change by issuing press statement, addressing public meetings claiming that their interest are aligned with public interest and the needs of potential clients (Roach Anelu 2002). This can be seen in the example when plans by the Victorian state government to allow non-lawyers to represent people in court. The plan met strong opposition of the Law Institutes claim that the proposal ‘represents the most significant threat to the rights of clients to quality legal representation and advocacy in many years’ (Coffey 1995 in Roach Anelu 2002) The author also notes that when successful claims that blur or distort the official lines that challenge the legality of jurisdictions, lawyers employed by government departments and business corporations will seek to demarcate their work from that of non-lawyers.
The legal community has in recent times made changes to the legal framework to increase competition both among lawyers and between lawyers and other sectors of the community (Roach Anelu 2002). The Trade Practices Commission has opened up the market in legal services which allow more flexible structures in the legal framework which includes the permitting of partnerships and profit sharing with non-lawyers, abolishing fee scales and the removal of existing advertising restrictions. In New South Wales, the setting up of the Office of the Legal Services Commissioner (OLSC) which is an independent statutory office now presides over all complaints about solicitors and barristers (Parker 1999). The OLSC can either investigate cases by itself or pass them on to other self-regulatory bodies. In the most serious of complaints the OLSC can refer the case to an independent Legal Services Tribunal which has powers to discipline lawyers and grant compensation (Mark 1995 in Parker 1999). There have also been changes in the demographic structure of law school graduate and new legislation which creates new kinds of legal service demands such as the entry of woman into the legal profession. The average lawyer id now younger and tend often to be from females and/or members of minority groups and less often practice law in small law firms. They are now more likely to be employed in federal or state government agencies, private associations, legal aid and larger private firms (Abel 1989 in Sutton 2001).
In conclusion, it can be seen that there are many aspects to the lawyer. Their work are not only restricted in the courtroom providing litigation. They also offer advice to regarding citizens’ responsibilities, entitlements and rights; settle disputes outside courts; represent clients in negotiations and draft contracts and other legal documents. The legal profession had tried to in essence provide the highest level of service in which they can provide by remaining autonomous form governments and other political factions. The extent in which they regulate themselves has been a hallmark of the legal profession yet pitfalls to for such a system and its potential abuse can cause consumers and clients to lose confidence in the legal profession being able effectively govern itself. It is evident that the legal profession did not actively pursue cases in which there were some ethical breaches of conduct by lawyers, rather the legal community were more concerned with breaches that imposed only upon other members within the community itself. The legal community also sets up barriers to entrance to the legal community by imposing strict guidelines in which they can choose who is eligible to be part of the community. The legal profession can then manipulate these barriers such as the bar entrance examinations. The monopoly of the legality of jurisdiction in certain areas of law such as the rights to litigate in courts also serves tool to protect members from market pressures. However, in recent times, all this has changed due to the different influences. The advancement of technology and the change in the demographics of the legal community has rendered some legal practices obsolete or redundant. Increasingly lawyers are being recruited into larger corporations and certain skills that were once only in the lawyers domain has been classified as routine such as the drafting of a will. The lawyer also faces stiff competition with the deregulation laws that used to protect their monopoly. Progressively, more non-lawyer occupations now have a legal right to perform legal work that was once reserved by lawyers. The role of lawyers today can be seen in two lights; one view is that there is a gradual decline in the quality of legal services due to the erosion of fundamental concepts that has shaped the legal profession. On the other hand, the integration of lawyers and other non-lawyer occupations within the legal context can be viewed as a natural progression in which society advances itself when each profession is not restricted to being in a specialized field but encompasses a range of multi-disciplinary skills (2423 words)
References
Parker, C., (1999), Just Lawyers: Regulation and Access to Justice, Oxford, Oxford University Press.
Roach Anleu, S., (2000), Law and Social Change, London, New Delhi, Thousand Oaks: Sage Publications.
Sutton, J., (2001) Law and Society: Origins, Interaction and Change, London, New Delhi: Pine Forge Press.
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