Moral Agendas? Pro Bono Publico in Large Law Firms in the United Kingdom
| Author | Andrew Boon,Robert Abbey |
| Published date | 01 September 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00105 |
| Date | 01 September 1997 |
Moral Agendas? Pro Bono Publico in Large Law Firms
in the United Kingdom
Andrew Boon and Robert Abbey*
The tension between the conception of professionalism as a device for
maintaining control over the market for legal services
1
and as an ethical
commitment
2
is a theme pervading analysis of the legal profession. In recent years
the integration of these strands of the professional ideal has been threatened by
encroachment on professional privileges, such as monopoly and self regulation,
and by the economic pressures unleashed by deregulation and competition in the
market for legal services. It has been suggested that the relationship of the legal
profession to society is undergoing a renegotiation,
3
part of which inevitably
concerns the profession’s commitment to public service. This article analyses the
results of a survey of the legal services provided pro bono publico by members of
large firms of solicitors in England and Wales and through the data explores the
relationship between the economic and the normative dimension of
professionalism. We argue that some large firms are attempting to reinvigorate
the ethos of professionalism in the practice of law and are exploring new ways in
which their public service responsibility can be conceived and met. We have not
addressed here the issue of whether or not the legal profession should provide
voluntary legal services, nor do we consider which kinds of provision would be in
the interests of the public, the profession or society generally.
4
Our thesis in this
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.630
*School of Law, University of Westminster
The fieldwork was devised and implemented by Boon and Abbey, and the final drafts were written by Boon.
We are grateful to the Law Society of England & Wales for providing copies of their pro bono survey/
questionnaire, and to Avis Whyte who conducted the telephone survey mentioned in this article, and who,
with Alicia Ash, assisted in recording, analysing and presenting the data. We are also grateful to John Flood,
and the three anonymous referees nominated by the Modern Law Review, for commenting on an earlier draft
of this article, and to Phil Thomas and others who commented on a paper presented at the Socio Legal
Studies Association Conference at Southampton in 1996.
1 See generally A.M. Carr-Saunders and P. Wilson, The Professions (Oxford: Oxford University Press,
1933), T.J. Johnson Professions and Power (London: Macmillan, 1972) and M.S. Larson The Rise of
Professionalism: A Sociological Analysis (Berkley, CA: University of California Press, 1977). In
relation to legal professions see R. Abel The Legal Profession in England and Wales (Oxford:
Blackwell, 1988) 3–31: professions enhance market share by strategies of market and social closure
and other activities eg the encouragement of altruism, are secondary concerns of professions. See
also R. Abel, ‘The Decline of Professionalism’ (1986) 49 MLR 1 particularly at 27, and ‘Between
Market and State: The Legal Profession in Turmoil’ (1989) 52 MLR 285.
2 Professionalism concerns the delegation of ‘social responsibility for the development and application
of certain apolitical and specialised disciplines to practitioners of these disciplines’: W.H. Simon,
‘The Ideology of Advocacy’ (1978) 29 Wisconsin Law Review 38 quoting A.M. Carr-Saunders
(1934) 12 Encyclopedia of the Social Sciences 476; ‘. . . an ideal defining a standard of good
conduct, virtuous character, and a commitment to excellence going beyond the norms of morality
ordinarily governing relations between persons’: A. Flores, ‘What Kind Of Person Should A
Professional Be’ in A. Flores (ed) Professional Ideals (Belmont, California: Wordsworth, 1988) 1.
3 A. Patterson, ‘The Renegotiation of Professionalism’ (1994) 1 International Journal of the Legal
Profession 131.
4 See R. Abbey and A. Boon, ‘The Provision of Free Legal Services by Solicitors: A Review of the
Report of The Law Society’s Pro Bono Working Party’ (1995) 2 International Journal of the Legal
Profession 261, and W.H. Simon, n 2 above. See also D. Luban, Lawyers and Justice: An Ethical
Study (Princeton: Princeton University Press, 1988).
article is that, by redeveloping the culture of pro bono publico and by attempting
to recapture practices strongly identified with the emergence of professionalism,
large firms seek to re-establish or reinforce the integrity of the legal profession in
the public mind.
The empirical focus on large firms is justified by their key role in the legal
profession and by the contradictions they present to the ideal of professionalism,
both as a historic and as an evolving formulation. Their importance is founded on
their wealth and power but is manifest in the influence they exert on professional
relationships and on professional bodies.
5
They affect public perceptions of the
legal profession, and the profession’s image of itself and of its social role. Visions
of lawyering are important to how lawyers work and how they organise
themselves, yet the increasing diversity of legal practice renders the search for a
common culture elusive.
6
The recruitment policies and the specialisation of the
large firms in the USA led them to develop distinctive practice cultures.
7
Similar
patterns of growth seem to have arisen in the UK,
8
creating the possibility of
multiple and competing visions of lawyers and of lawyering. These images are
important because of their impact on public policy, particularly that affecting legal
education and the regulation of legal services.
9
The power of the image of professional elites is illustrated by the impact of the
television programme LA Law which is credited with stimulating demand to enter
the legal profession in both the UK and USA.
10
Among the most powerful images
of LA Law was the conspicuous wealth of the central fictional firm, Mackenzie
Brackman, and the determination of its senior lawyers to provide pro bono publico
legal services. Large firm lawyers share some responsibility for the fact that their
positive media image is contradicted by public cynicism regarding the public
service commitment of solicitors.
11
Large firms are important in determining the
ethos of the profession not only because they represent the leading elite of the
5 According to D. Sugarman, the Law Society grew out of ‘intimate links with elite City firms.’ See
‘Bourgeois Collectivism, Professional Power and the Boundaries of the State: The Private and Public
Life of the Law Society 1825–1914’ (1996) 3 International Journal of the Legal Profession 95. By
the 1930s large law firms in the USA had attracted the profession’s ‘best brains [and] most of its
inevitable leaders’: K. Llewellyn, ‘The Bar Specialises — With What Results?’ (1933) The Annals
of the American Academy 176. An example of large firm domination of professional relationships is
the way in which they have redefined the traditional relationship between solicitors and barristers.
See J. Flood, ‘Megalaw in the UK: Professionalism or Corporatism?: A Preliminary Report’ (1989)
65 Indiana Law Journal 569, 574, 578; A. Boon, ‘The Skills of Litigation Solicitors’ in Skills for
Legal Functions II: Representation and Advice (London: IALS, 1992) and M. Humphries, ‘An
Artificial Divide That’s Had Its Day’ (1995) The Lawyer 21 November, 12.
6 R. Nelson and D. Trubeck, ‘Arenas of Professionalism: The Professional Ideologies of Lawyers in
Context’ in D. Luban (ed), The Ethics of Lawyers (Aldershot: Dartmouth, 1984).
7 M. Galanter and T. Palay, Tournament of Lawyers: The Transformation of the Big Law Firms
(Chicago: University of Chicago Press, 1991) 9–18 and ch 5.
8 R.G. Lee, ‘From Profession to Business: The Rise and Rise of the Large Law Firm’ in P. Thomas
(ed), Tomorrow’s Lawyer (London: Blackwell, 1992).
9 A. Sherr, ‘Of Super Heroes and Slaves: Images and Work of the Legal Profession’ (1995) 48 Current
Legal Problems part II 327.
10 The firm featured in ‘LA Law,’ Mackenzie Brackman, was an archetypal large law firm although the
number of partners and associates was scaled down for dramatic impact.
11 S. Jenkins, E. Skordaki and C.F. Willis, Public Use and Perception of Solicitors (1989) The Law
Society. See generally on the image of lawyers and public perception J. Flood, ‘Shark Tanks, Sweat
Shops, and the Lawyer as Hero? Facts as Fiction’ (1994) 21 Journal of Law and Society 396, and
D.S. Meyer and W. Hoynes, ‘Shannon’s Deal: Competing Images of the Legal System on Prime
Time Television’ (1994) 27 Journal of Popular Culture 31, which contrasts the massive popular
success of ‘LA Law’ with the failure of ‘Shannon’s Deal’ which presented a less glamorised and
more unconventional picture of a lawyer’s role in the legal system.
September 1997] Pro Bono Publico in Large Law Firms
The Modern Law Review Limited 1997 631
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