BARBARIANS AT THE GATE: the attack on professionalism
Chairman of the Bar, Chantal-Aimée Doerries QC, spoke to the IBA this week in Washington DC.
The Bar is a profession. It is not simply a job. Indeed in many areas of publicly funded work there is no certainty of economic security and for many the rewards are relatively modest.
Back in 1917 Sidney and Beatrice Webb in a New Statesman article described a profession as “a vocation founded upon specialised educational training, the purpose of which is to supply disinterested counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain.” It seems to me that this is as good a definition today as it was almost 100 years ago.
But there are undoubtedly plenty of challenges to this sense of professionalism in the 21st century. They vary from jurisdiction to jurisdiction, but they include political pressures, societal changes, regulators, financial pressures, press coverage, perception and technology, by way of example.
Many of the challenges my profession, the Bar faces, and lawyers more broadly face, and how we respond to them, are about preserving what is valuable in our professions. The more we act, or are encouraged by society to act, as purely businesses, or, are treated simply as part of a market of legal services and are encouraged to leave everything to market forces, the more we attenuate the idea of being a professional lawyer, and ultimately undermine the special and fundamental role of the lawyer. Our societies, and our economies, depend upon the rule of law, which in turn depends on independent judges and a strong, independent legal profession that can speak truth to power.
Lawyers who value professionalism and who carry out their duties in a professional manner are at the heart of this. It has been said that the best guarantee of professionalism and conduct on the part of a lawyer may well not be his or her regulator, but the strength, commitment and cohesion of his or her profession. I am reminded in this connection of the observation by the 19th century moral philosopher, T. H. Green, he described government it as the disinterested performance of a self-imposed obligation. I see this applying to performance as a professional as well.
In the context of legal practice – the following question is posed by this session: is professionalism being undermined by contemporary society? This is a far reaching question which could occupy an entire conference, so I will focus on a two aspects only, technology and commercialization.
Contemporary society is a world in which technological innovation, or the tech revolution, is undoubtedly changing rapidly the way we live our lives and how we do things in every day life, including how we work. This is the case across the world. It has been said that the next 18 months we will experience change at a pace equivalent to that of the last 20 years.
As lawyers, and as barristers, we must be prepared for these changes. It is not a matter of choice. Whether as individuals we like these changes or not, we cannot afford to ignore them. During the summer, as part of the Canadian Bar’s Legal Conference, I had the opportunity to see pitches from a number of new legal start ups in Canada, ranging from sophisticated legal research tools to prediction software based on basic case details to software aimed at alerting clients to risky clauses in contracts during the bidding phase.
Across the pond, in the UK, almost on a weekly basis, technology of some kind is making the news in the legal press. Last week we heard about a technology investment fund’s investment in a company looking to transform the legal due diligence process with the use of artificial intelligence. A major law firm has been involved in testing and piloting the software, which apparently uses artificial intelligence automatically to read and understand hundreds of pages of detailed and complex legal documentation every minute.
The CEO was quoted in the press as saying that this software
"… has been trained to think like a lawyer… we are designing the system to understand how lawyers think, and to draw out key findings without the need to be told what to look for. This will transform document analysis and enhance the entire transaction process for law firms and their clients. Highly-trained lawyers who would otherwise be scanning through thousands of pages of repetitive documents can spend more of their time analysing the findings and negotiating the terms of the deal."
Future technology will inevitably change the legal market, and how we as legal professionals practise. In some cases such companies will assist us and in others they may well compete with traditional lawyers, and indeed in some areas they may well replace lawyers. This will give rise to a number of questions – in the context of today’s session, perhaps the most pertinent is: can machines act professionally? Can they exercise judgment? And if they can, how finely calibrated will a ‘machined judgment’ be? Or is this a peculiarly human capacity? Equally important, assuming that in some areas, including advocacy, lawyers will continue to exist, what impact will machines or artificial intelligence have on the way we lawyers act, and on our professionalism?
In an age where people are increasingly facing the possibility of being replaced by machines, we will need to grapple with important the philosophical questions arising as to the effect which these changes may have on our societies.
In England and Wales our Government, with the support of the Judiciary, has just announced a commitment to investment £1 billion in modernizing our courts and tribunals including through the increased use of digitisation and online facilities. Our courts do need to move forward into the 21st century and these plans are ambitious, if challenging. One challenge will be seeing how, while innovating, we can ensure that while embracing innovation and change we do not inadvertently undermine the fundamentals of what we value in our justice system.21st century and these plans are ambitious, if challenging. One challenge will be seeing how, while innovating, we can ensure that while embracing innovation and change we do not inadvertently undermine the fundamentals of what we value in our justice system.
And this brings me back to today’s topic – we value the professional conduct of our lawyers: the hallmarks of this include independence, dedication to putting the client’s interests first, arguing a difficult and unpopular case, a belief in the serving the public interest, in improving the law and in fostering a profession. This is the disinterested performance of professionalism. I struggle to see how technology will be able to satisfy these tenants, or how it will foster professionalism in lawyers.
In short as lawyers we will need to re-double our efforts to encourage professional standards and professional conduct in an age when more of us will work away from chambers, or the office, and we engage with each other and our clients virtually, and rely upon artificial intelligence for research.
In many countries, and the UK is not alone in this, there are big challenges to ensuring access to justice and to our courts particularly for some of the most vulnerable and needy in society. Technology undoubtedly promises much in this field. Indeed the stated aims of the recent joint statement in England and Wales from our Senior Judiciary and the Ministry for Justice on the £1 billion investment is to provide a system that is just, proportionate and accessible and that provides ‘justice for everyone’. These are aims that as lawyers we support, these are the stated aims of Transforming our Justice System. I doubt any of us would disagree with these aims. But it is a matter concern that there appears to be little recognition in government, that access to courts and tribunals has actually been eroded in recent years by ‘enhanced’ and ‘increased’ court fees, and by radical cuts to legal aid in civil, family and social welfare cases.
Governments value the economic benefits successful lawyers in some practice areas generate. But we need to ensure that they also value, and appreciate, the professional lawyer’s role within our society. An increasing focus in society on economic success and on taking a commercial approach, I believe, threatens professionalism. The performance of professionalism creates an individual response to that self-imposed obligation of duty to one’s profession and its values. Commercial pressures, for example, to accumulate billable hours, must never matter more than the outcome, or the quality of one’s work as a professional.
But we as lawyers need to promote a better understanding within society of the law, and the role of lawyers.
I recall when, in 2001, our Office of Fair Trading (as it was known then) issued a report on Competition in Professions. The report concluded that competition law should apply to the professions without potential exclusion. This was stated to be a specific expression of a more general view that the professions should be subject to competition law in the same way as other economic actors. Perhaps indicative of the approach of the report more widely, I also noted the following words in the report “[w]hile bookselling and the supply of legal services by barristers have rather different economic characteristics, the same general economic principles should apply.” This report, and others that followed, ultimately led to radical shift in our regulatory framework. I mention that because 15 years on we are debating what challenges there are to lawyers’ professionalism. We have become economic actors, but we are also much more than that. Our challenge today is to ensure that others in society continue to understand that and that they can put a value on what we do which extends beyond a purely monetary value that is recognized in a market place.
What can we do about this? Three words: public legal education. It was John F. Kennedy who said "Liberty without learning is always in peril and learning without liberty is always in vain."
We must all encourage more public legal education so that society, including the public and users of legal services (consumers), have a better, more informed understanding of the capacity of law and legal processes to provide solutions and thereby enable the public better to understand the role of professional lawyers.
Finally, in addition to public legal education, we as lawyers, and bar leaders, need to ensure that professionalism continues to be valued, and understood, not only by society at large, but also by lawyers and the regulators of lawyers alike.
Last week our oversight regulator in England and Wales for legal services, the Legal Services Board (LSB), issued its ‘vision’ for legislative reform of the regulatory framework for legal services in England and Wales. It is worth reading, carefully. For today’s purposes I will touch on only two proposals relevant to our discussion this afternoon.
Within the report the LSB makes wide-ranging proposals for regulatory reform – one of the current regulatory objectives under our Legal Services Act 2007 is encouraging an independent strong diverse and effective legal profession. This should in my view be an essential element of regulation – implicitly it recognises the importance of a strong and thriving legal profession to the health of our society more broadly.
The LSB’s report, surprisingly in my view, does not agree. It describes this objective as problematic – suggesting that it does not stem from the fundamental justification for sector-specific regulation, namely the public interest and consumer protection. The words of The Hon Michael Kirby AC CMG come to mind: “Where there is no independent legal profession there can be no independent judiciary, no Rule of Law, no Justice, no Democracy and no Freedom.”
The LSB further opines that it is highly unusual for a regulator to have such an objective. Footnote 14 of the Report (and you make think it significant that the point is relegated to a footnote) notes that the LSB has undertaken a survey of the regulatory objectives of some of the UK’s largest regulators and found that there are no other regulators with objectives relating to the strength of their regulated sector – they note that Ofwat (water and sewers) and Ofgem (gas and electricity) have objectives relating to licence holders being able to finance their operations which relates to infrastructure operators which need to make large investments while ensuring that they also continue to deliver key utility services, which they note is a situation that does not arise in the legal sector. It is, to my mind, evidence of the challenges legal professionals face in the 21st century that the regulation of their profession is compared to the task of sewage regulation. Of course if the sewage providers, privatised as they are, fail, Government can step in. It is so obvious as to go without saying, and yet apparently not: if there is no longer a strong independent legal profession, there will be no one to step in to uphold the Rule of Law.
The second aspect of the LSB’s report I wanted to touch upon is the proposal that regulation should not be based on professional title - “the main foundation on which regulatory requirements are built should be the activity undertaken for those activities where the risk assessment process justifies the imposition of regulation”. While the report does recognise the strong brand power for consumers of some titles (such as solicitor and barrister), it comments that title acts as a barrier to sustainable entry to many parts of the legal market for legal services because a prospective market entrant without the title in question may find it difficult to gain market share.
Perhaps it is putting it a little high to describe this as an attack on professionalism and professionals, but that is what it feels like.
Several months ago I was speaking to a lawyer who regularly represents people in a country where the Rule of Law and democracy are in crisis. He said to me, frankly, that instability had reached such levels that even government officials were worried about being prosecuted, and that they had begun to understand the importance of an independent and fearless advocate.
Our challenge, not just in the UK but beyond those shores, is to remind society and politicians why a strong independent bar, who act primarily as professionals, and not as businesses, or as suppliers in a market, is essential to our well-being. It is the hallmark, or the USP if you will, of a civilised society.
The young barristers I meet understand professionalism and they come to the Bar to be professionals and for the challenge of demonstrating what it means to be a professional worthy of the name and the title they are proud to hold.
Excellence, independence, advocacy and challenge – these were the four reasons cited to me by one young barrister recently. They give me a clear sense that the next generation understands and values professionalism. But they will not be immune from the challenges to which I have referred. We must give them the tools they need to survive and thrive in today’s very demanding environment.
