In Dependence: The Paradox of Professional Independence and Taking Seriously the Vulnerabilities of Lawyers in Large Corporate Law Firms
| Author | Steven Vaughan,Emma Oakley |
| DOI | http://doi.org/10.1111/jols.12143 |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 1, MARCH 2019
ISSN: 0263-323X, pp. 83±111
In Dependence: The Paradox of Professional Independence
and Taking Seriously the Vulnerabilities of Lawyers in
Large Corporate Law Firms
Emma Oakley* and Steven Vaughan**
In this article, and drawing on the work of Martha Fineman and
others, we deploy a vulnerability lens as an heuristic device to push
against the concept of professional lawyer independence as enshrined
in statute and promoted by legal services regulators. Using interviews
with 53 senior partners and others from 20 large corporate law firms,
we show how the meaning and practice of independence are
profoundly mediated by the contexts, relationships, and interactions
of corporate lawyers' everyday working lives. Vulnerable to com-
petition from other firms, the demands of clients, the shift over time
from `trusted advisor' to `service provider', regulatory requirements,
pressures to make profit, and so on, these corporate lawyers appeared
prone to developing and normalizing potentially risky and
irresponsible practices. We therefore argue that a debate about
corporate legal regulation is better based upon a richly theorized
concept of interdependence that takes seriously the causes and effects
of practitioner vulnerabilities in particular circumstances.
83
*Law School, University of Birmingham, Birmingham B15 2TT, England
e.l.oakley@bham.ac.uk
** Faculty of Laws, University College London, Bentham House, Endsleigh
Gardens, London WC1H 0EG, England
steven.vaughan@ucl.ac.uk
We are grateful for comments on earlier drafts from the anonymous reviewers, Richard
Abel, Martha Fineman, Joanna Gray, Maria Lee, Robert Lee, Richard Moorhead, Hilary
Sommerlad, Elen Stokes, and Richard Young. We are also grateful for the patience of the
Journal editors. The usual disclaimer applies.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
INTRODUCTION
In this article, we argue that the concept of the independent lawyer, enshrined
in statute and promulgated by regulators, is a convenient myth. It draws
heavily a nd uncrit ically up on indivi dualist ic liber al constr uctions o f
autonomy, and historically contingent constructions of professional practice,
which do not reflect reality. These, in turn, legitimize `light touch' approaches
to legal services regulation that further erode meaningful independence. As
such, current conceptualizations of professional independence (and taken-for-
granted assumptions about its content, operation, and value) may serve to
validate a nd exacerb ate the very p ractices a nd potenti al harms tha t
independence is ostensibly intended to prevent. We draw on empirical data
from interviews with 53 senior partners and others from 20 of the world's
largest law firms to suggest that a more fruitful starting point for thinking
about professional independence is one that better reflects the realities of
individual and collective legal practice in an interconnected, interdependent,
and hyper-competitive world of global legal services. To do this, we utilize
theories that challenge mainstream political and philosophical constructions
of individualistic independence and self-sufficiency as either achievable or
desirable guarantors of human agency. In particular, we draw upon relational
accounts of autonomy, together with Martha Fineman's vulnerability thesis, to
argue that taking seriously the occupational and relational stresses and strains
of corporate lawyering as vulnerabilities can help sensitize us to the
situational and systematic hazards of contemporary corporate legal practice
in more nuanced and effective ways. This may also enhance claims for more
responsive, effective regulation.
We accept that the elision of vulnerability and elite corporate lawyers
may, initially, be difficult to swallow. However, we use vulnerability in a
context typically associated with social advantage rather than disadvantage
precisely because our data, along with much existing research, shows that
neither the social advantage of corporate lawyers nor the current regulatory
framework governing legal practice adequately support the long-term
professional viability of the sector. This is because current regulatory
perspectives fail to take seriously the vulnerabilities of lawyers to clients in a
global corporate marketplace.
1
Lawyers are vulnerable to competition, client
pressure, regulatory obligations, the demands of other stakeholders, desires
for profit making, and so on. Clients are vulnerable to the market, to state
interference, to regulatory action. Legal services regulators are vulnerable to
the individuals and law firms they regulate, to government pressures, to the
profession and professional associations seeking dominance in a globalized
market, and so on. Over time, the relationship between the lawyer and the
state, and between the lawyer and the client, has manifestly changed. The
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1 We are grateful to one of the anonymous reviewers for this useful phrasing.
ß2019 The Author. Journal of Law and Society ß2019 Cardiff University Law School
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