The distinction between lawyers and non-lawyers is becoming blurred – but we still have one thing to hold on to.
I was at the International Bar Association’s annual conference in Tokyo last week. Among other activities, I attended three meetings in succession, with different committees and different participants from around the world. Yet at each the same anxious question was raised: what is a lawyer? At last, globalisation and technology, simultaneous saints and sinners, have penetrated to the heart of our professional identity.
Anxiety about their consequences is widespread.
Being a lawyer is based on various notions - the possession of a lawyer’s title, the educational route to qualification, compliance with a particular code of ethics, the fact of being regulated - but each of these is losing its universal application or former meaning.
In the old days, a lawyer was someone with a particular professional title. The EU lawyers’ directives use this method by considering as a lawyer anyone who possesses one of the titles listed in them, regardless of substantive differences in training or scope of work.
But when others are offering legal services for payment without having such a title, and taking work away from lawyers (think of online legal services, think of eBay’s online dispute resolution service); when computer programs are able to achieve what a lawyer previously did – then what exactly is a lawyer, and does the possession of a lawyer’s title add anything to the resolution of a client’s legal problems?
Another definition relates to similar routes to licensing. Yet foreign lawyers cross borders from jurisdictions with very different routes to qualification (our own UK providing one of the eccentricities, since a lawyer does not need a law degree); and a lawyer may come from a country where the licence is granted by a government which will not countenance an independent bar. Then what is a lawyer?
Maybe the definition relates to areas of work. But there are different areas of work reserved to the legal profession (court work in most places, although not everywhere - there are some countries where nothing is reserved to a lawyer - and sometimes only criminal court work; and there are all kinds of fancy add-ons, such as conveyancing or succession).
Aha! But only lawyers are subject to ethical codes. Yes, true, though lawyers are subject to different ethical codes (‘A lawyer can go on strike in my jurisdiction’ – ‘What? Are you crazy? Never!’). In some, professional indemnity insurance is mandatory, while not in others. In some, in-house counsel can be members of the bar, but not in others.
Alright, alright, but it is only the core values which matter – independence, avoidance of conflicts of interest, and confidentiality. What about them?
As I have often reported, the core values bump ever more regularly into other values which are external to the legal profession. Is a lawyer someone who complies with lawyer’s obligations regardless of the consequences – and so will not file a suspicious transaction report or tip-off a client that such a report is being made (money laundering)?
Well, no, that is a single exception demanded by law, and can be argued not to undermine the general rule. But the exceptions are growing. The lawyer might be expected not to act for a client because their human rights record is so appalling (business and human rights), or might be spied on by governments to gain access to client secrets (mass governmental surveillance).
When the exceptions grow to be so numerous that the lawyer is complying with a series of legal and moral instructions on how to behave which conflict with the lawyer’s code, or being knowingly spied on, does that person cease being a lawyer?
The value of a legal qualification is dropping (there is a serious drop-off in student enrolment in the US, where potential lawyers fear that they will not find employment afterwards). The meaning of a legal qualification is changing as legal services are provided by other entities. So what do we have to hold on to? And is it worth holding on to?
The principal area which distinguishes us from others is that we are regulated. We can use the lawyer’s title only if we pass strict training criteria. If we misbehave in accordance with strict codes, we can be removed from the list. This provides client guarantees.
If the trend I have described continues, though, we will have moved in a short time from possessing a monopoly (or near-monopoly) in legal services to being one brand among many, one which has recognition and trust attached. We will have moved from being part of the necessary infrastructure to something disposable, to be used only if you want to spend money for additional security.
That would be a momentous change in status in such a short time. No wonder the delegates in Tokyo were so anxious.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs