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England and Wales: A Comparison of the Professional Projects of Barristers and Solicitors

RICHARD L. ABEL

This chapter traces the contours of the rise and decline of the English legal profession during the last century and a half. I do not use the word "decline" pejoratively—to signify a lowering of ethical standards. Rather, I view professionalism as a specific historical formation in which the members of an occupation exercise a substantial degree of control over the market for their services, usually through an occupational association. I have chosen this concept of professionalism over others that stress technical expertise, or standards of competence and ethical behavior, or altruism because it seems to me to illuminate a great deal of the history and contemporary experience of English lawyers. There can be little doubt that nineteenth century solicitors consciously and energetically sought market control, and it is painfully clear today that both branches of the profession are deeply upset about threats to their continued exercise of such control. At the same time, English lawyers offer an especially apt context for exploring fluctuations in this concept of professionalism (a cycle that is visible in other countries as well). First, English lawyers professionalized earlier than did lawyers in other common law countries and also may be deprofessionalizing sooner. Second, the divided English legal profession offers a natural laboratory for observing the choice of tactics in the professional project and their relative success or failure.

All occupations under capitalism are compelled to seek control over their markets. The only alternative is to be controlled by the market—a situation that is fraught with uncertainty at best and may lead to economic extinction at worst. Of course, no occupation controls its market totally, and none is wholly without influence; control is a question of degree and constantly changes. The foundation of market control is the regulation of supply. Occupations that produce goods may pursue this goal by seeking to restrict raw materials or technology, but occupations that produce services constrain supply principally by regulating the production of pro-

ducers. Professions are distinguished from other closed occupations by their requirement of demonstrated mastery of a body of formalized knowledge. Although advocates of control invariably portray their object as improving the quality of services, we should not let this claim blind us to the fact that any improvement necessarily also limits entry. At one extreme of the spectrum of control, the profession (often backed by the state) imposes a numerus clausus—illustrated by some nineteenth century continental legal professions, notaries in certain countries today, and elite advocates, such as Queen's Counsel in England and avocats of the Conseil d'Etat and the Cour de Cassation in France. At the other extreme, entry to the occupational category is governed by market forces: demand for professional services on one hand and the distribution of ability, energy, and inclination on the other hand. Examples include gardeners in Los Angeles, drivers of non-medallion cabs in New York, or window cleaners in London. Market control is inextricably related to occupational status, not only symbolizing status but also enhancing it instrumentally, both by restricting numbers (because scarcity is an intrinsic measure of status as well as a means of increasing income) and by controlling the characteristics of entrants. Professions pursue market control and status enhancement through collective action. Having erected barriers to entry, professional associations seek to protect their members from competition, both external and internal. In order to avert external surveillance, they engage in self-regulation. This chapter will examine the contrasting careers followed by barristers and solicitors in pursuit of the professional project.

ENTRY TO THE PROFESSION

In order to trace the dramatic fluctuations in the kind and degree of supply control that English lawyers have exercised during the last century and a half, it is useful to choose as a baseline the entry barriers that prevailed at the beginning of the nineteenth century. Barristers and solicitors differed significantly in the extent to which each branch emphasized ascribed or achieved qualities—the character of the whole person or narrow technical skills—and in whether controls were formal or informal, visible or invisible.

THE PREMODERN HERITAGE

The Bar entered the nineteenth century with stringent constraints on the kind of person who might become a barrister, constraints that had been in place for several hundred years. The benchers (judges and senior barristers)

who governed the four Inns of Court had complete discretion to admit or reject a student; applicants had to state their "condition in life" and provide references from two barristers. The Inns of Court extended a preference to university graduates, shortening the number of years they had to keep terms from five to three and the number of dinners they had to eat each term from six to three, so that the burden on nongraduates was more than three times as onerous. Partly for this reason, half of all barristers were university graduates at a time when this privilege was enjoyed by only a tiny fraction of the population and restricted to upper-class members of the Established Church. Once called to the Bar, the fledgling barrister was expected to serve a pupillage (apprenticeship) of one to two years with an established barrister or other legal professional. Thereafter, fully qualified barristers had to open their own chambers, for in the early nineteenth century most practiced alone.

Two things about this entry process are striking, although perhaps not immediately apparent. First, it was extremely expensive. For the majority who attended university, there was the cost of tuition and three years of maintenance. The Bar student then had to pay a fee of £30 to £40 for admission to his Inn of Court and deposit an additional £100, which was refunded without interest only after call. During his three to five years as a student, while forbidden to work at most trades, he incurred annual expenses of £5 to £10 for hall dinners, £6 to £8 for books, and about £150 for maintenance. Call fees were £70 to £80, to which must be added about 8 guineas for a wig and gown. The premium for pupillage was 200 guineas, and the pupil had to maintain himself for another two years. Once established in his own chambers, the barrister could not expect to earn enough from practice to support himself for several years (if ever), although he might make ends meet by "deviling" (salaried work for an established barrister), tutoring, marking examination papers, law reporting, or editing. A midnineteenth century estimate put the one-time costs at £300 and the annual maintenance at £250 from entering university to reaching economic self-sufficiency, which could be as long as ten years. These financial demands strongly reinforced the ascriptive criteria that influenced the university and the Inn to admit a student, the barrister to accept a pupil, and the client or solicitor to brief a fledgling barrister.

The second noteworthy feature of this lengthy and arduous process of qualifying is that it had relatively little to do with the acquisition of technical skills. Those who attended university did not study English law because it was not taught. The Inns had abandoned any pretense of education two centuries earlier. In addition, although we know little about the content of pupillage, certainly many barristers must have accepted pupils for the substantial premiums the latter paid rather than out of dedication to teaching. The Bar selected those who aspired to be "gentle-

men" (regardless of whether their fathers were landed gentry); colleague-ship at university and within the Inns may have reinforced such gentility; but neither selection nor training ensured technical competence in law.

Because solicitors lacked the lengthy traditions of the Bar, they initially subjected entrants to fewer ascriptive criteria and, consequently, imposed fewer entry barriers of any sort. Nineteenth century solicitors were not expected to attend university; indeed, only 5 percent of enrolled solicitors were graduates as late as the 1870s. But solicitors were required by law to serve a five-year apprenticeship (articles). This was an ascriptive barrier in two senses: the apprentice obtained his place through personal contacts, often with a solicitor who was a relative, family friend, or business acquaintance; and articles were expensive—about £100 for stamp duty and £200 for the premium paid to the solicitor. Yet, unlike the Bar student or pupil, the articled clerk could minimize his expenses by living at home, since articles were available all over England, not only in London (where all barristers had their chambers at the beginning of the nineteenth century). And at the end of his apprenticeship, the qualified solicitor could attain immediate economic self-sufficiency through salaried employment with a firm and could look forward to joining the partnership or setting up his own practice.

Even at the beginning of the nineteenth century, barristers and solicitors thus diverged in their exercise of supply control. The Bar used rigorous ascriptive criteria and demanded substantial economic sacrifices, effectively limiting numbers. Yet, these barriers were both informal (pupillage was not a legal requirement, for instance) and invisible (no person or institution decreed that a newly qualified barrister would fail to obtain sufficient business). Solicitors also employed ascriptive barriers, but these were less elaborate and seem to have been more closely related to the acquisition of legal knowledge. Because articles lasted several times as long as pupillage and because the supervising solicitor generally expected to employ the apprentice thereafter, it seems plausible that the experience conferred at least a modicum of technical skill.

CONSTRUCTING MODERN CRITERIA

These differences between the branches became considerably more pronounced during the next hundred years. The Bar retained and indeed strengthened its ascriptive criteria. In 1829, Inner Temple (one of the four Inns of Court) required all students who had not matriculated at university to pass an examination in history and either Latin or Greek; although this requirement was abandoned briefly when the other Inns failed to adopt it, the examination had become universal by the last quarter of the nineteenth

century. In any case, almost three-quarters of all Bar students were university graduates by this time. However, the Bar moved very slowly to ensure that entrants possessed technical knowledge. It resisted the example of physicians, solicitors, and colonial lawyers, all of whom had adopted formal examinations, for the Bar feared that this might facilitate entry rather than restrain it, thereby admitting the wrong kind of person. The examination finally required in 1872 was ridiculously easy. Graduates sat it a few months after leaving university, and 80 percent to 90 percent were passing at the end of the nineteenth century. The Bar was even less interested in preparing students to practice law than in examining their competence. Although the Inns created the Council of Legal Education in the midnineteenth century, it had a minimal teaching staff and relied heavily on practitioners. It is not surprising that the majority of Bar students preferred private crammers. Thus the barriers to becoming a barrister remained much the same until after World War II: cost and the particularistic decisions of universities, pupilmasters, and (later) heads of chambers.

Solicitors pursued a very different path toward controlling the production of producers. In the absence of substantial ascriptive barriers, the number of solicitors seems to have doubled in the first third of the nineteenth century. Partly in response, one of the early acts of the Incorporated Law Society (a voluntary association formed by solicitors in the 1820s, following the demise of the Society of Gentlemen Practisers) was to impose a professional examination in 1836, nearly four decades before the "senior" branch (barristers) did so. This decision to use achievement rather than ascription as the principal entry barrier seems to have had its desired effect: the issuance of new "practicing certificates" dropped by almost a quarter over the next fifteen years, and the number of solicitors stabilized for four decades (although other factors, such as falling demand, also may have contributed to this decline). Twenty-five years after initiating professional examinations (and ten years before the first Bar Final), the Law Society added a second hurdle: the Intermediate Examination, taken by articled clerks during their apprenticeship. (Although law graduates were exempt, there were very few during this period.) Then, in 1906, the Society required a third examination in trust accounts, accounting, and bookkeeping. Although the pass rates for each examination were very high when it first was introduced, all of them declined fairly steadily and were approaching 50 percent at the beginning of World War II; since all three had to be passed, their cumulative effect was even greater.

The Law Society also was more serious about professional education: it instituted lectures for articled clerks in 1833, three years before the first professional examination, and progressively expanded the offerings at its Chancery Lane headquarters. Nevertheless, attendance was low: articled

clerks, like Bar students, preferred private crammers; and little instruction was available outside London and a few major provincial cities. In response, the Law Society made two major changes in 1922: it required a compulsory year of lectures prior to the Intermediate Examination, and it subsidized such instruction at provincial universities.

By contrast with its concern for technical competence, the Law Society did little to raise ascriptive barriers. Individual exemptions were granted freely from the preliminary liberal arts examination imposed in 1861 (thirty years after Inner Temple had required a similar examination of Bar students), and categorical exemptions rapidly proliferated, not just for university matriculates but also for those who passed a host of other exams. The proportion of solicitors with university degrees remained small: less than a fifth of all entrants in the first decade of the twentieth century (when three-quarters of all new barristers were baccalaureates), less than a third as late as World War II. At the same time, it must be recognized that preparation for the three professional examinations itself was costly and became an important, if indirect, barrier to those who could not afford to study full time or pay the crammers.

FLUCTUATIONS IN ENTRY

How effective were the divergent strategies of barristers and solicitors in controlling the production of producers? In answering this question, it is essential to bear in mind the impact of extraneous events, the most important of which were World Wars I and II. Nearly a quarter of all solicitors served in World War I; 588 were killed and 609 seriously wounded (nearly a tenth of all practitioners). The next generation of solicitors was affected even more seriously: more than half of all articled clerks served, of whom 358 were killed and 458 seriously wounded (perhaps a third of all clerks). Although these losses were inflicted on the profession, it also bears some responsibility for failing to respond to them by admitting more solicitors after the war (even though pass rates on the professional examinations did increase dramatically). In addition to those killed and disabled, there was a shortfall in production of 1,700 solicitors, if the ten years beginning in 1914 are compared to the previous decade. The experience of World War II was similar: more than 500 solicitors and clerks were killed, and there was a shortfall in production of more than 1,500.

Together, professional supply control and extraneous tragedies had a dramatic effect on the number of solicitors (see table 1). The rapid increase in the production of solicitors in the first third of the nineteenth century (an annualized rate of 3.1 percent) halted abruptly in 1835—which happened to be the year before the first professional examination was admin-

istered, although it would be dangerous to infer causality. The profession remained virtually static for the next third of the century. Although there was some growth in the 1870s and 1880s, it slowed to almost nothing in the next twenty-five years. The number of solicitors declined at an annualized rate of 1.7 percent between 1913 and 1920 and remained virtually static between 1939 and 1952. As a result, solicitors entered the postwar period (1948) with almost exactly the same number (15,567) that had been in practice more than half a century earlier (15,090 in 1890). Statistics for the practicing strength of the Bar before the 1950s are sadly inadequate. Nevertheless, available data show the number of barristers doubling between the first and the last quarters of the nineteenth century, declining by a fourth following World War I, and remaining at that depressed level until well after World War II.

THE POSTWAR TRANSFORMATION

The period since World War II, and especially the last two decades, have witnessed a major transformation in both the means and the extent of control over the production of producers. The distinctive characteristics of barristers and solicitors continued to color their different responses, but the overwhelming changes that both branches confronted induced a significant convergence between them. Some ascriptive barriers to the Bar were lowered, and achievements were emphasized. The £100 deposit required before admission to an Inn was eliminated for most students, the £50 stamp duty on call to the Bar was abolished in 1947, and other fixed fees became less burdensome as a result of inflation. Although the Bar formally required a university degree in 1975, the growth of tertiary education and, more importantly, government grants to undergraduates made it easier to obtain this credential (which nearly 90 percent of entrants already held in any case). Nine years later the Bar added the requirement of at least a lower-second-class degree (although few students with an inferior degree had been passing the Bar examination and finding a pupillage and tenancy).

The Bar also began to relate entry barriers more closely to technical competence. Students without a law degree now must spend a year studying law in a polytechnic (often without further government support) and pass an additional examination. Not surprisingly, 84 percent of intending practitioners called to the Bar in 1983 were law graduates. Legal education thus has become the principal barrier to qualifying as a barrister, a point to which I return below. All entrants must take a year of vocational training prior to the final examination, and the number of places available at the Inns at Court School of Law has been limited in recent years (although

students can study elsewhere). Final examination pass rates remain high, however: nearly 90 percent of intending practitioners succeeded on their first try in the early 1980s, although the proportion has fallen significantly in the last few years.

Yet, the Bar certainly has not relinquished all control to the academy. Three major entry barriers remain, which traditionally have been more ascriptive and less subject to external influence. First, the Bar mandated a one-year pupillage in 1959 (previously pupillage had been voluntary though very common); six years later, it prohibited pupils from taking briefs during their first six months. Although the pupillage fee declined in importance after World War II and was abolished in 1975, maintenance during this year remains a serious problem, since no government grants are available, Inn scholarships are few in number and inadequate in amount, and briefs are difficult to obtain even in the second six months. Furthermore, a bottleneck has developed as the number seeking pupillages has multiplied rapidly while the number of barristers willing to act as pupilmasters has remained constant. Although the Bar maintains that every intending practitioner is placed, competition has intensified, and personal contacts and ascriptive characteristics clearly weigh heavily.

Second, and more important, the Bar requires every private practitioner to obtain a tenancy (a place in chambers from which to practice). Like pupillage, this became a problem only recently. In the nineteenth century, fledgling barristers simply opened their own chambers; this would be prohibitively expensive today, and in any case a new barrister practicing alone would attract very little business. In the early twentieth century, natural attrition in a relatively static profession created space for all who wished to enter; however, the rapid growth in the number of Bar students and pupils in the last two decades has disrupted this accommodation. The problem of tenancies is unique to England as well as to the postwar period: advocates in Scotland and barristers in some Australian states practice individually, and office space and assistance by a pool of clerks are available to all new entrants. By contrast, the present shortage of tenancies in London is both severe and chronic. Until recently, all London chambers were located in one of the Inns; even now only five of the more than 200 London sets have moved outside, and several of those also are "outsiders" in terms of political orientation or racial composition. Chambers within the Inns are grossly overcrowded, however, partly because the Inns traditionally have leased much of their space to residential or other commercial tenants. In the six years between 1975 and 1981, when the Bar grew by 28 percent, available space in the Inns expanded only 8 percent. As a result, every year since 1965 there has been a shortfall in the tenancies available to barristers completing their pupillages, sometimes by as much as 50 percent. More than 100 qualified barristers (approximately a third of the

number starting practice annually) have occupied the amorphous status of floaters ever since the Senate (the umbrella association of barristers) began keeping records in 1974. This physical shortage of space (which is largely the Bar's own doing) has greatly intensified competition for entry, increasing the weight that heads of chambers give to ascriptive qualities in accepting tenants and discouraging many students and pupils from entering private practice.

The third barrier confronting the qualified beginner also is peculiar to the Bar: because private practitioners cannot be employed, they must find business on their own. The difficulties of doing so remained acute in the early postwar period: most barristers lost money in their first year and made only a nominal amount in their second. Not surprisingly, almost a third of those who entered practice in 1950/51 had abandoned it five years later. And between 1955 and 1959, the number of barristers with less than ten years of experience who left practice ranged from half to three-quarters of the number entering practice that year. In this respect (and others), barristers resembled small-scale entrepreneurs, most of whose businesses fail, rather than professionals, who make a lifetime commitment to a career (although some barristers who leave private practice continue to use their legal skills as employees in the public or private sectors). Yet, the situation of the novice improved dramatically in the 1960s and 1970s as a result of the growth of legal aid, which ensured at least a minimum level of subsistence. Juniors (barristers who are not Queen's Counsel) with less than nine years of experience, practicing at the family, common law, or criminal Bars in London, or on circuit, obtained between 59 and 72 percent of their incomes from public sources (both legal aid and prosecution briefs) in 1974/75. Consequently, departures from practice of those with less than ten years of experience dropped dramatically after 1959; although absolute numbers have risen slightly since 1976, they still represent only a tenth to a quarter of those starting practice.

Solicitors responded differently to the postwar environment. The principal ascriptive barrier to becoming a solicitor—articles—underwent significant change. Out-of-pocket costs fell when Parliament abolished the stamp duty on articles in 1947 and premiums gradually disappeared about 1960. The length of articles was reduced by a year for both graduates and nongraduates; however, since the former now greatly outnumber the latter, the effective period of apprenticeship has been cut from five years to two. More importantly, clerks began to receive salaries: £200 in the 1950s, £500 in the 1960s, £1,600 in 1976, and £3,000 to £4,000 today, although this still is insufficient for maintenance. However, obtaining articles (like finding a tenancy for a pupil) has become a significant problem for the first time. Because the number of law graduates seeking articles increased rapidly, while the number of solicitors qualified and willing to take on clerks

remained fairly constant, competition for articles intensified. Firms today receive dozens of applications for each position, students write even more letters in order to obtain a place, and those with contacts fare far better than do those who use more universalistic methods, such as the Law Society Register or a university appointments board. The scramble for articles serves both to distribute law graduates across the hierarchy of solicitors' firms and to discourage those with poorer degrees earned at less prestigious institutions from seeking to enter private practice.

Primarily for symbolic reasons, the Law Society has refrained from formalizing the academic barriers to entry. It still is posssible for mature students to become solicitors without obtaining A levels (examinations taken at the end of secondary school), although the proportion of entrants who do so is insignificant. Similarly, a university degree is not required, although more than 90 percent of new solicitors now are university graduates, and almost all of these are law graduates (compared with only a quarter in 1949). The two branches thus have converged in fact, if not in rule. All aspiring solicitors, like all barristers, must complete a vocational year; but almost three-quarters of the students at the Law Society's College of Law in 1980 had received local authority grants (although the proportions have dropped as the Thatcher Government has placed ceilings on local taxes and cut grants to local authorities). The rapid growth in the prevalence of legal education also has reduced the significance of professional examinations in controlling quality and numbers. The nine out of ten entrants with law degrees are exempt from the Common Professional Examination (CPE), which replaced the Intermediate Examination in 1980 and which, despite its name, is taken only by aspiring solicitors. More importantly, the high proportion of examinees with a legal education seems to be correlated with a rise in the pass rate on the Final Examination from an all-time low of 48 percent in 1952 to a high of 74 percent in 1977—a level approaching that of the Bar Final, which historically has been much easier. Yet solicitors still are more serious than barristers about ensuring technical competence. The Law Society has imposed a requirement of forty-eight hours of continuing education in the first three years of practice; the Senate, on the other hand, told the Royal Commission that postqualification education would not be "appropriate" to the circumstances of the Bar.

Both branches of the profession thus have lost to academic legal education much of their control over the production of producers. It would be difficult to overestimate the importance of this transformation. First, it is a transfer of the locus of control: from professionals and their associations to universities and polytechnics and the governmental bodies that determine their enrollments and funding. Second, because public education consis-

tently has been more universalistic than private associations or individuals, this transfer largely eliminated the principal ascriptive barrier to the profession: the exclusion of half the population on the basis of gender (just as the growth of American law schools in the early twentieth century opened that profession to the sons of immigrants). Half a century before Parliament compelled the profession to admit women and long before the academy became the principal mode of professional qualification, University College, London, allowed women to read law. In 1967, when women constituted 5 percent of the Bar and 3 percent of solicitors, they were 17 percent of entering law students at university and 11 percent at polytechnics. They were 45 percent of all domestic undergraduate law students enrolled in universities in 1983/84 and 47 percent of full-time domestic law students admitted to polytechnics for the fall term in 1984. Women thus reached virtual parity with men inside the academy in about two decades.

The third element of this transformation in the institutional structure of control is the growing heterogeneity of the academy. Prior to World War II, academic legal education was concentrated at Oxford, Cambridge, and the three London colleges, which together enrolled three-quarters of all students; the remainder (mostly articled clerks preparing for Law Society examinations) were distributed among the seven older provincial universities. By 1980/81, Oxbridge had fallen to 12 percent, London (even with two more faculties) had 9 percent, the older provincial universities enrolled 24 percent, eleven other universities (both pre- and postwar) had launched law courses with 22 percent of the students, and the twenty-four new polytechnic law programs enrolled a third of all students. Not surprisingly, the convergence of three factors—a government eager to provide social services (of which education was a relatively inexpensive example), universities and polytechnics interested in expanding, and women determined to pursue careers—produced a dramatic increase in law enrollments, perhaps the most dramatic ever experienced in any country (see table 1). In 1938/39 there were 1,515 undergraduate law students; in 1980/81 there were 12,603 full-time students (and another 3,375 part-time, external, or mixed-degree students)—more than an eightfold increase. In the United States, law school enrollment expanded more slowly even during its period of most rapid growth (1890 to 1927) and has increased only threefold since World War II.

Although supply control had been transformed, it still was being exercised—if now by the academy. Law departments received between ten and twenty applications per place in the 1970s; although much of this imbalance is explained by multiple applications, little more than 40 percent of all applicants obtained a place anywhere. Furthermore, admission is not

tantamount to graduation. Although at least nine out of ten university law students graduate (perhaps as many as nineteen out of twenty), only three-quarters of full-time and about a third of part-time polytechnic students complete their courses.

UNPRECEDENTED EXPANSION

Let me summarize these changes in control over the production of producers as a preface to examining their consequences. Out-of-pocket fees, which had been a significant barrier in the nineteenth century, diminished in importance in both branches. The formal educational requirements of the two branches converged in a law degree and a year of professional training, while local government grants became widely available to defray the cost of the former, if not always the latter. The solicitors Final Examination came to resemble the Bar Final as a hurdle that most law graduates could expect to overcome. In addition, the attrition of qualified barristers during the early years of practice because of insufficient business declined with the growth of legal aid. Nevertheless, significant differences still separated the two branches. If it was difficult to obtain apprenticeships in both, it was more difficult to find a pupillage. Articled clerks could expect to live on their salaries; pupils had to rely on other sources of income. More importantly, there were enough jobs for most who wanted to be assistant solicitors but not nearly enough tenancies for beginning barristers.

These changes in the structure of supply control had an extraordinary impact on the rates of entry into the two branches after World War II (see table 1). Although there was some catch-up in starts at the Bar for the first five years, the numbers began to decline by 1950. The efficacy of supply control is visible in the fact that the Bar actually shrank each year from 1955 to 1961, a total decline of 5 percent, and the 1950 rate of entry was not attained again until 1965. Then the transformation described above began to take effect as the number of first law degrees increased from 1,072 in 1965 to 3,564 in 1980, or 232 percent. Starts at the Bar, which averaged 104 a year between 1955 and 1964, rose to 150 between 1965 and 1969, 246 between 1970 and 1974, and 317 between 1975 and 1984—a threefold increase. The total number of barristers in private practice, which declined at an annualized rate of 0.7 percent between 1954 and 1961, increased at 3.5 percent a year between 1961 and 1969 and at a staggering 8.2 percent a year between 1969 and 1978, before slowing to 3.2 percent a year between 1978 and 1984. The number of private practitioners increased from 1,918 in 1961 to 5,203 in 1984, or 171 percent. Yet, the lower rate of growth in the last five years suggests that the Bar did not

entirely lose control over supply, and the decline in the ratio of starts to calls (among barristers domiciled in the United Kingdom) after 1975/76 is consistent with my contention that the Bar's restriction on the number of tenancies remains a significant barrier.

Solicitors display a pattern of growth that is similar in gross but different in detail. The postwar catch-up, during which an average of 900 solicitors were admitted a year, ended in 1950. For the next fourteen years, average annual admissions fell to 701, as a result of which the profession grew at an annualized rate of only I percent during the 1950s. Thereafter admissions increased rapidly: an average of 1,120 a year between 1965 and 1969, 1,777 between 1970 and 1974, 2,391 between 1975 and 1979, and 3,380 for the first two years of this decade, before declining, to 2,522 between 1982 and 1984. As a consequence, the profession grew at an annualized rate of 2.4 percent between 1959 and 1968 and 5.9 percent between 1968 and 1982, although growth has fallen off in the last two years. The total number of solicitors increased 139 percent between 1959 and 1984.

Although barristers and solicitors have shown similar periods of stasis and change in the last four decades, the differential impact of the postwar environment on their strategies of supply control also is apparent. Because the Bar relied so heavily on ascriptive criteria, it could offer less resistance to the increasing dominance of meritocratic ideology; and given its much smaller base, its rate of growth inevitably was much higher. However, control over the number of tenancies by the Inns and by heads of chambers was able to slow the growth of the Bar five years before the growth of solicitors began to decline. The same forces that produced the unparalleled rate of expansion in both branches during the 1960s and 1970s also explain why that expansion has levelled off. Law student enrollments, which have become the principal bottleneck, are relatively flat (see table 1). Whereas university enrollment increased at an annualized rate of 9.9 percent between 1961 and 1976, it increased at only 1.2 percent thereafter; polytechnic enrollment rose at an annualized rate of 65.9 percent between 1970 and 1976 but at only 7.0 percent between 1976 and 1980. Undergraduate enrollment in both university and polytechnic law departments declined slightly between 1982/83 and 1983/84. Furthermore, the entry of women into law departments, which explains much of the growth of these departments, has stabilized at just under half. We can expect both branches to continue to grow for several more decades because the rate of production will outweigh deaths and retirements in the much smaller cohort of older lawyers: over the last ten years an average of 2,540 solicitors have been admitted annually, but only 1,107 have left practice; 314 barristers have started but only 124 have left. The rate of growth will remain con-

stant and gradually decline, however. In a sense, supply control has been reestablished through a new mechanism—formal education—and at a new level.

THE COMPOSITION OF THE PROFESSION

This new mechanism affects not only the size of the profession but also its composition. First, the radically different levels of recruitment before and after the 1960s have produced a small cohort of older lawyers and a much larger cohort of younger practitioners. Whereas only 34 percent of all barristers were within ten years of call in 1966, a decade later 57 percent fell in this category. Similarly, only 47 percent of solicitors were forty or younger in 1969, but a mere seven years later 58 percent had been in practice for less than sixteen years, almost all of whom would be under forty. It is noteworthy that this imbalance in age distribution is considerably more pronounced among barristers, a reflection of the fact that supply control, initially more stringent, was relaxed more profoundly, as well as of the smaller size of the Bar. Although I can only speculate, it seems plausible to suggest that the large cohorts of younger lawyers have been and will be increasingly dissatisfied with restrictive practices that favor older lawyers and with structures of governance that institutionalize gerontocracy.

When the academy displaced the profession as principal gatekeeper, explicit reliance on ascribed characteristics gave way to an ideology of meritocracy. The great achievement of the academy has been to admit women in numbers that now approach those of male entrants. As late as half a century after Parliament ended the profession's formal exclusion of women in 1919, they still were only 3 percent of solicitors and 5.4 percent of barristers. With the growth of law departments and the even more important changes in consciousness wrought by the feminist movement, the Bar began to change in the late 1950s. Although the proportion of women grew steadily, it also grew slowly and seems to have peaked in the mid-1970s at about 15 percent to 20 percent of starts, only half the proportion of women law students. The number of women solicitors, by contrast, did not begin to grow markedly until the 1970s; but by 1980, the proportion of new solicitors who were women equaled the proportion of law graduates who were women. These differences between the branches cannot be explained in terms of the Bar's claim to be more demanding, for women law graduates are, if anything, more capable than men law graduates. Incomplete statistics suggest that the proportion of women applicants admitted to law departments is less than half that of men (although women perform better in secondary school), and women

law students do just as well as their male counterparts in obtaining honors degrees.

Two factors seem responsible for the difference and are difficult to separate. First, barristers still make more particularistic decisions about entrants. Women encounter greater problems than do men in securing pupillages and many more obstacles in obtaining both tenancies and business during the early years of practice. The first two decisions are controlled by heads of chambers, most of whom are elderly men likely to retain prejudices against women barristers. The third is influenced significantly by senior clerks, also mostly men, whose patriarchal views may be reinforced by the belief that women tenants will charge lower fees than men and thus earn the clerk less income. Where, as in Scotland, advocates practice individually rather than in chambers and are served by a common pool of clerks, women have come to represent half of all new advocates.

The second explanation for the low proportion of women barristers turns on structural factors rather than individual prejudices. It is extremely difficult to combine a career at the Bar with family responsibilities, either by working part time or by leaving practice and returning after child-rearing. By contrast, employment in a firm, a company, or a government office may open one or both possibilities to women solicitors. Whether individual or institutional biases are dominant, their effect is visible in the fact that women law students express a stronger preference than men for becoming solicitors and a weaker preference for the Bar.

The experience of black lawyers has been almost the opposite of that of women. Blacks from the colonies have been called to the Bar since at least the early nineteenth century, although few, if any, practiced in England. Indeed, in 1960, three-quarters of all Bar students were from overseas. With the growth of both law faculties and nationalism in the newly independent countries, however, this proportion rapidly declined. At the same time, as the black population of England increased, so did the number of black barristers, which now approximates 5 percent of the Bar. Blacks have responded to discrimination in the allocation of tenancies and briefs by forming all black chambers serving a largely black clientele. By contrast, there is no tradition of black solicitors; indeed, noncitizens were not admitted to this branch until 1974. For this reason, and also because of the greater difficulty of the solicitors' examinations and the larger size of the solicitors' branch, the approximately 200 black solicitors now in practice represent only 0.25 percent of the profession. The Bar, which relies more heavily on ascriptive criteria, paradoxically has been more open to racial minorities. The shift to qualification through the academy also has led to a second paradox. On one hand, the academy has admitted—indeed, actively recruited—an increasing number of overseas law students, whose tuition payments subsidize the cost of educating domestic

students (just as the fees of overseas Bar students subsidized the Inns in the 1950s and 1960s, most of whose benefits were enjoyed by domestic white barristers). On the other hand, heightened competition for places in law departments has made legal education less accessible to domestic black applicants disadvantaged by inadequate primary and secondary schooling. The move from professional ascription to academic meritocracy thus has not greatly eased the path for racial minorities.

Nor has that transformation significantly affected the class composition of the profession. The traditional claim by barristers that they enjoy a superior social status was derived partly from the higher proportion of university graduates among them and the Bar's more exclusive ascriptive barriers. Yet the emergence of common qualifications for the two branches, and particularly the expectation that entrants to both will possess a law degree, seem to have erased these differences. Several independent studies in the late 1970s confirmed that Bar students and articled clerks had very similar class backgrounds. Convergence has been achieved by narrowing class composition, however, not broadening it. One reason is the centrality of the academy, which always has selected disproportionately from the upper social stata and continues to do so even after the creation of the polytechnics. This bias, ironically, was amplified by the elimination of another ascriptive barrier—gender. As the numbers seeking entry to law departments effectively doubled, competition for places intensified. Indeed, because women still must overcome substantial social and cultural barriers, those who succeed tend to come from even more privileged backgrounds than men law students.

The emergence of the academy as the principal gatekeeper to the legal profession thus made a major contribution to eliminating gender as an ascriptive barrier but, simultaneously, magnified the barrier of class and provided a new legitimation for the barrier of race. Furthermore, although we lack the data to test these hypotheses, it seems plausible to expect that class and race influence which academic institution a student attends and the quality of degree the student attains and that these, in turn, determine the nature of the apprenticeship and the first position the student obtains after qualifying. The academy thus not only is more selective but also performs the indispensable function of allocating graduates to positions within the professional hierarchy and justifying that allocation in meritocratic terms.

LIMITING COMPETITION

In order to control the market for its services, a profession must seek to regulate not only the production of producers but also production by

producers. This occurs only at a later stage of the professional project: an occupational category that limited the competitive energies of its own members before they had demarcated themselves from other service providers quickly would succumb to outside competitors who were not similarly restrained. Control of production by producers also can enhance the status of the profession by disclaiming crass economic motives. We can distinguish two types of control over production by producers: the definition and defense of the professional monopoly against external competitors and the elaboration of restrictive practices limiting internal competition. These tend to occur sequentially.

MONOPOLY

The legal profession's attempt to define its monopoly was complicated by the existence of two branches concerned with patrolling the boundaries that divide them as well as those that exclude other occupations. During the course of the nineteenth century barristers and solicitors reached an accommodation (although not without considerable dissension): solicitors ceased to challenge the Bar's exclusive right of audience in the higher courts, and barristers relinquished any claim to perform conveyances (real estate transactions) or to serve clients without the intermediation of solicitors. The Bar has been very successful in defending its turf, perhaps because advocacy occupies the core of the legal profession's identity and is a highly visible activity, whose elaborate ritual and arcane language proclaim the esoteric qualities of law. Furthermore, solicitors share with barristers a common interest in excluding outsiders from the courts.

On the other hand, barristers and solicitors are opposed in their struggle over the right of audience in the higher courts, which traditionally also has conferred eligibility for appointment to the bench—not only a prize for those few who attain it but also an important foundation for the Bar's collective assertion of superior status. The greater difficulty of justifying a monopoly against fellow lawyers may help to explain the vigor with which the Bar opposed nineteenth-century proposals for common training with solicitors. Yet, the recent convergence of the two branches in terms of background, education, and qualifications may weaken the Bar's defenses. At the same time, the erosion of supply control among solicitors may stimulate the latter to press their claims more strongly. The historic compromise between the branches survived the Royal Commission inquiry of the late 1970s, in which the Law Society (unsuccessfully) sought only a modest expansion of solicitors' rights of audience. However, the recent threat of losing the conveyancing monopoly led to an immediate demand for equality with barristers. Although the Government summarily rejected

this claim, its concern to cut costs, together with the fact that it presently pays for half of all barristers' services, renders the Bar's monopoly precarious. Even if it is not abolished, the monopoly still may be eroded through the progressive expansion of lower-court jurisdiction, increased use of employed lawyers (solicitors as well as barristers), and the grant to solicitors of specific, if not general, rights of audience. Nevertheless, barristers may preserve a good deal of the market for higher-court advocacy by means of informal conventions despite the demise of formal rules.

Solicitors always have had greater difficulty defining and defending their monopoly. Much of what they do is less visible and less obviously technical than higher-court advocacy. Unlike lawyers in the United States and some Canadian provinces, English solicitors never claimed a monopoly over legal advice. Furthermore, whereas solicitors have been quite restrained in challenging the Bar, lay competitors have been far more aggressive in invading the domain of solicitors. Banks and trust companies, accountants, real estate agents, companies, and trade unions all perform solicitors' work for their customers, employees, and members. The lay public also seems less tolerant of the solicitors' monopoly than they are of the barristers' exclusive right of audience, perhaps because consumers encounter the former more often and more directly. Public resentment was most visible, of course, in the long-standing critique of the conveyancing monopoly. Recent legislation has forced solicitors to share it with a new paraprofession of licensed conveyancers; however, there is continuing uncertainty about the role of banks and building societies (savings and loan associations). On first impression this incursion, which solicitors vigorously resisted, appears to be an awesome loss, without precedent in the annals of any other profession, for solicitors derive half of their incomes from conveyancing. Yet, the ultimate consequences are unpredictable. The change will be felt more heavily by smaller firms, which typically earn a higher proportion of their income from conveyancing. In order to remain competitive, they will have to expand their volume through advertising, routinize conveyancing through computerization, and transfer work to paraprofessionals, all of which will foster concentration and render solicitors more like their lay competitors—that is, less professional. At the same time, solicitors may find themselves challenged from another direction for the first time in a century. Barristers, pressed by their own loss of supply control, threatened by solicitors, and perhaps concerned with allaying criticism about the wastefulness of the divided profession, may renew their demands to deal directly with other professionals (such as accountants and employed barristers) and possibly even with lay clients.

The monopoly of each branch is threatened not only by the other branch and by outsiders but also from within: by employed barristers and

solicitors, whose numbers are expanding because private practice is able to absorb a declining proportion of the influx of new entrants produced by the erosion of supply control (see table 2). The significance of these emergent categories is threefold. First, the demarcation between employed barristers and employed solicitors is far more tenuous than the line that separates the branches in private practice. Both categories not only share a common training but also may work for the same employer and perform similar tasks. Consistent with this, their monopolies have converged: employed barristers lack a right of audience in the higher courts. Second, employed lawyers are less protected from competition with other occupational categories, such as accountants, civil servants, and city managers. Third, the number of employed lawyers is augmented by reason of heightened demand as well as greater supply: clients (public and private) may prefer to employ lawyers rather than retain private practitioners because the former are less expensive and more easily controlled. Moreover, having put lawyers on their payroll, employers are likely to add their own voices to the call for expanding the rights of audience of employed lawyers and for allowing all employed barristers to perform conveyances and to brief barristers in private practice without the intervention of a solicitor.

INTRAPROFESSIONAL RESTRICTIONS

Private practitioners seek to control their market not only by regulating the production of services by outsiders (laypersons, the other branch, and employed lawyers) but also by limiting competition from fellow professionals. Just as barristers were first to control the production of producers, so they anticipated solicitors in elaborating a set of restrictive practices. Initially informal, these progressively were formalized during the nineteenth century as the Bar grew in size and subgroups declined in importance (such as the circuits—barristers who traveled with high court judges when they sat outside London). Formalization also publicized the rules, rendering them more vulnerable to external criticism. Consequently, the Bar recently has been forced to relax several of its more conspicuous restrictive practices: the two-counsel rule (a Queen's Counsel always must be assisted by a junior barrister), the two-thirds rule (a junior barrister who assists a Queen's Counsel must be paid two-thirds of the latter's fee), and barriers to practice on the circuits (extra fees that must be charged by a barrister who appears in a circuit but is not a member of that circuit).

This sequence illustrates the peculiar situation of the Bar: on one hand, the nature of its market makes the restriction of competition particularly urgent; on the other hand, its internal structure facilitates such restriction

through informal means. The production and sale of barristers' services resembles the ideal of the free market more than do most such exchanges. The performance of barristers in court is highly visible to potential consumers (i.e., solicitors), and the measures of success or failure are superficially clear (if actually ambiguous). More importantly, the solicitor-consumers are themselves professionals and thus unusually well equipped to judge quality. Also, at least some of those consumers—the larger firms—possess considerable economic leverage by virtue of the amount of business they can offer. In the absence of restrictive practices (and without professional control over the production of producers), barristers would be driven to compete vigorously in terms of price and quality.

The Bar has minimized this danger in several ways. First, it has drastically curtailed competition between younger and older age cohorts by means of an artificial barrier between Queen's Counsel and juniors, which grants each a submonopoly (Queen's Counsel over advocacy in "heavier" cases, juniors over the preliminary stages of litigation). The production of Queen's Counsel, unlike the production of barristers, remains tightly controlled by the Lord Chancellor (who himself is a barrister). Second, the Bar has dampened horizontal competition among juniors. Although barristers still cannot form partnerships with each other (much less with solicitors or other professionals), the Bar is not simply an aggregation of 5,000 individual competitors. Rather, it is grouped into about 200 sets in London and another 100 in some two dozen provincial cities; there is little competition between barristers in different cities. London sets are prevented from proliferating by the formal requirement of a clerk, the informal but effective restriction to the Inns, and the limited accommodation available within each Inn. Third, the London market is differentiated further by subject-matter specialization. Fourth, the homogeneity of social background and function among barristers and their geographic concentration within the Inns (and within similar settings in most provincial cities) facilitate informal control. To the extent that the Bar has grown more hetereogeneous, the newer elements—especially black barristers—tend to form distinct markets. Finally, barristers are subject to hierarchic controls that reward conformity to restrictive practices: pupils are subordinate to pupilmasters and to those who allocate tenancies, younger barristers are subordinate to their heads of chambers and clerks, juniors who aspire to become Queen's Counsel are subordinate to judges who advise the Lord Chancellor, and even Queen's Counsel who seek appointment to the bench remain subordinate to the Lord Chancellor and the judges who advise him.

The very characteristics that allowed the Bar to establish control over the production of producers in the first place and to reassert it after the academy introduced more meritocratic entry criteria thus also allow it to preserve control over production by producers through informal means,

even after the demise of formal rules. A Queen's Counsel still insists that a junior be briefed, and the junior still demands two-thirds of the leader's fee. Barrister's clerks establish ongoing relationships with solicitors' firms, which allow the clerk to refer work to other chambers (because no barrister is free or because the set does not handle that speciality) without fear of losing the firm as a future client. A barrister will decline to accept a client who already has briefed another barrister unless the latter consents. Barristers continue to charge and receive the full brief fee even if the case is settled (as most are) and to bill separate fees for multiple clients in a single matter even if their representation does not increase the complexity of the task. Perhaps most importantly, the small number of chambers, and thus of barrister's clerks, and the intimate relations among the latter allow them to reach informal understandings about the level of fees.

The restrictive practices of solicitors are different in several respects. First, the market for solicitors' services is less freely competitive. Although there are many more productive units (because solicitors outnumber barristers by almost ten to one and firms are smaller than chambers on average), the market for individual consumers is highly localized. Furthermore, unlike the solicitor who selects and evaluates barristers' services, the individual consumer of solicitors' services is a layperson who is likely to have little prior experience with law or lawyers. Such a client's relationships with solicitors generally are sporadic rather than continuous, and the lay consumer will encounter extreme difficulty in obtaining accurate information about price or quality. Consequently, not only does the solicitor-consumer have distinct advantages in purchasing barristers' services but the solicitor-producer also has distinct advantages in selling services to individual consumers (although not, of course, to companies or other institutions). It is striking that the relationship of each branch to its market is the obverse of the stereotype: solicitors paradoxically are more "independent" than barristers. Perhaps, then, one function of restrictive practices is to correct this disparity: to make barristers more "independent" of consumers and solicitors less so. Such an interpretation draws support from the fact that one of the most important restrictions on solicitors—the regulation of fees in contentious matters (litigation)—is imposed externally.

Because solicitors, when compared to barristers, are more numerous, geographically dispersed, and heterogeneous in background, organization, and function, restrictive practices also must be more formal. The Law Society promulgated ethical rules long before the Bar felt the need to formalize its own etiquette, therefore, and it regulated subjects, such as advertising and fees in noncontentious matters, that the Bar still leaves to informal controls. These rules and others—the limitation on the number of partners in a firm, the prohibitions on practicing another occupation,

forming a partnership with other professions, or even sharing office space with other occupations, and the restriction on employed solicitors accepting private work from fellow employees—all served to dampen intra-professional competition. Several of these restrictive practices, like those of barristers, have succumbed to attack in recent years, however. The ceiling of twenty partners was lifted in 1967, with the result that forty-six firms now exceed that number; of these, two have at least sixty partners, three have fifty to fifty-nine, five have forty to forty-nine, and thirteen have thirty to thirty-nine. Scale fees (minima) were abolished five years later, although prices stayed level or even rose. And in 1984 the Law Society relaxed its ban on advertising, under pressure from external critics.

It seems unlikely that solicitors can continue to suppress competition by relying on the informal understandings that have worked so well for barristers. First, the same market characteristics that allow solicitors to dominate individual clients also encourage a firm that wishes to increase its market share to establish branch offices, merge with other firms, cut prices, and engage in aggressive advertising. Legal clinics successfully have pursued such strategies in the United States. Second, even if solicitors themselves are averse to such marketing strategies, they may be forced to adopt them by the threat of lay competition, especially now that the conveyancing monopoly has been diluted and perhaps broken. Whereas barristers may continue to control production by producers through informal understandings, solicitors thus seem likely to face increasingly unconstrained competition from outside the profession as well as within.

STIMULATING DEMAND

Historically, lawyers sought to control their market by limiting supply before they turned to the alternative strategy of creating demand. True, lawyers are at least partly responsible for the fact that substantive and procedural laws are so complex that laypersons must hire professionals both to litigate and to perform noncontentious transactions, such as conveyances and the distribution of estates. However, neither the institutional infrastructure nor the legitimating ideology for large-scale demand creation existed before the emergence of the welfare state after World War II. Furthermore, it is the recent erosion of professional control over the production of and by producers that motivated lawyers to seek to stimulate demand. But I do not want to overstate the argument that professions have shifted from supply to demand as the principal locus of market control: lawyers have done so slowly, reluctantly, and ineffectively. Once again, the two branches diverge in their strategies.

BARRISTERS AND THE PUBLIC SECTOR

In many ways, the Bar has encountered greater difficulty in influencing demand. Few people can be persuaded to engage in litigation voluntarily. Indeed, the principal sources of increased demand for barristers' services—criminal and matrimonial cases—are matters over which the profession has no control whatsoever. Barristers may, however, be the passive beneficiaries of solicitors' efforts to stimulate demand for their own services. All that barristers realistically can do to influence demand is seek to ensure that those who must litigate actually do retain counsel (a decision that often is made by the solicitor rather than the lay client). In pursuing this goal, barristers enjoy certain advantages: the state's obligation to provide legal assistance is less problematic in court than outside and less problematic in criminal proceedings than in civil; and there are no functional equivalents to barristers as advocates (as there are for solicitors as advisors, drafters, and negotiators).

The means of guaranteeing representation, of course, has been legal aid. Yet, the impetus for its creation cannot be attributed to the professional project of market control. First, the inspiration for civil legal aid originated with a Labour Government, not with the legal profession. Second, the institution emerged at a time when the supply of barristers actually was declining and traditional restrictive practices were firmly in place. Nevertheless, the growth of the Bar from the early 1960s clearly is inseparable from the expanding legal aid budget generated by rising crime and divorce rates, regardless of whether legal aid is seen as the cause of eroding supply control—encouraging law students to enter the Bar confident that they would be able to survive the early years of practice—or as a response to numbers that were augmented by other causes. Barristers derived more than a quarter of their incomes from legal aid in 1974/75—43 percent from all public funds (which also includes fees for prosecution). For all juniors, the proportions were almost a third and almost a half; indeed, juniors with a London criminal practice derived about two-thirds of their incomes from legal aid in 1976/77—more than 90 percent from all public funds.

The state thus paid for the doubling of the Bar. Furthermore, it did so without much effort on the part of barristers. Although the Bar has advocated greater client eligibility and more generous payments to barristers, much of the growth of the legal aid budget is attributable to the extrinsic social phenomena that generate demand for legal services, such as crime and divorce. Nor has the Bar had to worry about the impact of these new sources of demand on the distribution, and particularly the concentration, of business. Legal aid work is allocated to barristers in much the

same fashion as are briefs from private clients: by solicitors dealing with barrister's clerks. Nevertheless, the dependence of the Bar on legal aid does pose new and significant problems. First, the state is both more powerful than many private clients and less willing to acquiesce in the Bar's restrictive practices: it sets the fees for criminal legally aided work, and legal aid committees decide whether a Queen's Counsel is required and whether the latter needs the assistance of a junior. These externally imposed conditions may become the conventions for private clients as well. Second, a Bar that derives half of its income from the state no longer can make as persuasive an argument for its independence and altruism—and thus for its claim to be a profession. Ironically, the very foundation of the Bar's strength—its monopoly of advocacy—has become a source of dependence.

SOLICITORS AND THE PRIVATE MARKET

In one respect, the situation of solicitors is similar. They also are unable to influence the single most important source of demand. Conveyancing, which has provided half of the income of solicitors for at least a century, rises and falls with the economy. Fortunately, the dramatic growth in the production of solicitors during the last two decades coincided with an equally pronounced (if considerably more erratic) increase in the value of housing, superimposed on a long-term rise in the prevalence of home ownership and the geographic mobility of the population. This may be part of the reason why solicitors have been so passive in the face of incursions by accountants and members of other occupations in the fields of tax advice, government regulation, and general business counseling. As real estate values stabilize or decline and solicitors lose some or all of their conveyancing monopoly, however, they will have to look elsewhere for new demand.

Unlike barristers, solicitors have not relied heavily on legal aid. One reason is that solicitors have earned only a quarter of their incomes from contentious work and only a small proportion of this from cases that are likely to be legally aided, such as criminal defense (4 percent), personal injuries (3 percent), and matrimonial matters (5 percent). Although solicitors render virtually all the legal advice defrayed by public funds, this generates a trivial proportion of their earnings. In 1975/76, legal aid accounted for only 6 percent of gross solicitor income. Solicitors remain less interested than barristers in legal aid because they find such work relatively unprofitable. Since solicitors have rights of audience only in the lower courts, the cases that they can handle are less serious and consequently command smaller fees; and the legal advice scheme also discourages lengthy or elaborate consultations. Legal aid matters can be processed

profitably only when they are mass-produced. Consequently, whereas most barristers do a fair amount of legal aid work, at least in the early stages of their careers, and thus share a collective interest in the institution, only about a third of all solicitors' firms earn even a tenth of their incomes from this source.

Other forms of demand creation also pose serious problems for solicitors. It is not much easier to encourage individuals to use law facilitatively than it is to induce them to litigate. Moreover, whereas the intermediaries who select barristers are solicitors, the potential clients of solicitors are laypeople. Even if the latter may be more impressionable (a dubious assumption), they also are more difficult to reach because they are more numerous, more anonymous, and much less interested in legal services. Solicitors thus face a dilemma. They can engage in advertising directed at their mass market—indeed, the Law Society launched several institutional campaigns in the 1970s and recently allowed individual solicitors to advertise. Such efforts are likely to be expensive and relatively unprofitable, however, at least unless the investment is substantial and continuous over a long period. Alternatively, they can focus their informational activities on populations likely to need and want solicitors' services. This strategy also has substantial drawbacks. Even more than advertising, it smacks of commericalism and thus endangers the claim of solicitors to professional status. And it runs the risk of encouraging dependence on the favor of occupations that channel clients to solicitors—police, for instance, who advise criminal accused, or real estate agents who counsel home buyers. (Barristers, by contrast, fully control the subordinated occupational category that performs a similar function for them—the barrister's clerk.)

But the greatest problem is that successful efforts to create demand inevitably tend to affect its distribution. Cost-effective demand creation thus not only impairs the solicitors' image of noncommercialism but also intensifies intraprofessional competition. Advertising by an individual firm probably is a good deal more productive than the institutional campaigns of the Law Society, but it benefits only that firm. Direct solicitation of clients is even more efficient but has even fewer spill-over effects. The problem becomes more acute when public resources are used to create demand, for then all qualified producers seem to feel an entitlement to share equally in the additional business generated. Such a belief may underlie the Law Society's dissemination of lists of solicitors willing to handle legal aid matters, the rapid proliferation of Duty Solicitor schemes (which provide an initial solicitor contact to all those arrested), the rosters of solicitors who volunteer to work at or take referrals from Citizens Advice Bureaus, and the initial hostility of solicitors to law centers (legal aid offices) thought to concentrate publicly subsidized work among employed lawyers. Whereas the Bar runs the risk of losing its independence

when it tums to publicly created demand, solicitors thus run the risk of intensifying intraprofessional competition when they seek to stimulate demand in the private market.

THE SOCIAL ORGANIZATION OF THE PROFESSION

Both the strategies and the successes of the professional project of market control influence, and are affected by, the social organization of the two branches. We can trace these linkages by examining differentiation within the legal profession, the nature of the productive unit, and the consequences of both for stratification.

INTERNAL DIFFERENTIATION

The nineteenth century was a period of professional consolidation, the end product of which was the present division into two main branches. The separate category of serjeants (from which judges had been drawn) was abolished in 1873. That same year the merger of law and equity reduced the distinctiveness of the Chancery Bar and formally eliminated the demarcation between solicitors and attorneys. Doctors of Law and proctors disappeared with the closure of ecclesiastical and admiralty courts. Special pleaders and conveyancers, who had emerged several hundred years earlier in response to the enormous complexities of pleading and of encumbering and transferring land, had vanished by the end of the nineteenth century. Therefore, the rationalization of courts and the decline in certain legal functions reduced professional differentiation.

The fundamental division of the profession into two branches persisted and even rigidified (although it did not fully survive transplantation to any of the colonial legal systems whose inspiration was English). For the relationship between barristers and solicitors, although often tense, ultimately is symbiotic. Solicitors, for their part, enjoy greater economic leverage. Larger firms wield considerable patronage through the distribution of briefs. Smaller firms derive economic power (if less legitimately) from their ability to delay payments to barristers, although the Bar recently has begun to retaliate. Barristers, however, can decline or return briefs and control the scheduling of work. Furthermore, the greater economic security of solicitors is counterbalanced by the superior social status of barristers—itself a composite of history, ascribed characteristics, functions, conventions of deference, the visibility of a few stars, and an exclusive relationship with the bench.

If the division into two branches seems relatively fixed, there have been

significant changes in differentiation within each. The Bar always has been more centralized. Until recently, the higher courts in which barristers practice sat primarily in London and made only brief forays outside. The principal educational institutions—the Inns of Court (and later their School of Law)—also are located in London. Moreover, barristers' clients were either London solicitors or the London agents of provincial solicitors. Consequently, virtually all barristers practiced in London until the end of the nineteenth century. With the growth of provincial courts and the decline of circuits, however, provincial chambers expanded rapidly, containing a quarter of the Bar by the 1950s and nearly a third today. Solicitors, by contrast, serve clients who are scattered throughout the country (especially given the dominant role of residential conveyancing). They are excluded from the higher London courts. By the end of the nineteenth century they had established a number of provincial training centers for articled clerks, who naturally are found wherever there are solicitors. It is not surprising, therefore, that the distribution of solicitors for the last hundred years has been the inverse of the present distribution of barristers: two-thirds have practiced in the provinces and only a third in London. On this measure, as on others, the Bar enjoys greater social cohesiveness (although less than it had in the past), a fact that may help to explain the different role of professional associations in the two branches.

A second parameter along which differentiation has increased is employment (see table 2). Although we lack adequate data, it seems unlikely that any barristers were employed until the beginning of the twentieth century, at the earliest. Today, approximately half of those called to the Bar are employed by government or private enterprise. Some solicitors always have been employed in private practice; more recently, they have been employed by government (especially local government) and by commerce and industry. Consequently, employed solicitors rose from a quarter of those holding practicing certificates in 1939 to a third in 1957 and a half today. Furthermore, since many employed solicitors do not take out practicing certificates, the proportion must be even larger. Nevertheless, although a larger proportion of solicitors than barristers are employed, employment creates greates divisions within the Bar. Employed barristers need not complete a pupillage, they lack rights of audience, they do not observe Bar etiquette and are not subject to Bar discipline, and few ever enter private practice (although movement in the other direction is possible). Solicitors, by contrast, suffer no disabilities by virtue of employment. Moreover, although there is relatively little mobility between private practice and employment by public or private entities, all private practitioners spend at least three years as assistant solicitors employed by firms, and most spend the bulk of their professional lives as partners employing assistant solicitors. The growth of employment, like the geo-

graphic shifts described above, thus has had a greater effect on the social integration of the Bar than on that of solicitors.

The category of private practitioners is further differentiated in terms of clients served and subject matter handled. Here, again, the Bar has changed more profoundly. Not only is the Bar as a whole more dependent on public funds, but the degree of dependence varies greatly with the barrister's age and specialty, from 1.5 percent of the income of London Chancery and specialist Queen's Counsel to 91.7 percent for London juniors with a criminal practice. Even many "independent" practitioners thus are virtually employed by the state at the beginning of their careers. Most solicitors, by contrast, earn little or none of their incomes from legal aid; but the 5 percent who specialized in such matters earned a third of the £100 million in public funds paid to solicitors for contentious business in 1980/81. Both branches thus are witnessing the emergence of a dual market, one public and the other private, although the lines of division are very different.

Barristers and solicitors also differ in the nature and extent of subject-matter specialization. Barristers' chambers tend to specialize, rejecting briefs that fall outside their expertise. Most solicitors' firms are more generalist, although individual lawyers will specialize within the larger firms. Indeed, almost all smaller firms (which contain the vast majority of private practitioners) perform the same broad range of work, the core of which is conveyancing; in this they resemble the local greengrocer, chemist, or stationer, whose market niche depends on geographic convenience. This difference between the branches presumably reflects the fact that the clients of barristers are solicitors, who can channel work to specialist chambers, whereas the clients of solicitors are laypeople, who must be offered a full range of services in order to attract and retain their business. Therefore, a profession that had only three main divisions at the turn of the century—the bench, the Bar, and solicitors—now has many more—employed barristers and solicitors, private practitioners who rely largely on public funds, and specialist chambers. (In addition, academic lawyers have increased in numbers and prominence as a result of the new role of formal education.)

STRUCTURES OF PRODUCTION

When we turn from the social organization of the profession as a whole to the structure of the units within which private practitioners produce services, we find further changes in both size and composition, as well as significant differences between the branches. As a result of changes in the market for their services (in both supply and demand), solicitors' firms have

grown, and their membership has altered. In 1802 the median solicitors' firm had 1.2 principals. A century and a half later the median firm had only 2.5 principals, three-quarters of all firms had fewer than four principals, and 93 percent had fewer than six. Even in 1979, 58 percent of all firms had only one or two principals, and 82 percent had fewer than five. Thus the bulk of solicitors' services still are produced within relatively small units. To the extent that this situation reflects the comfortable market niche secured by the conveyancing monopoly, it is likely to change as a result of incursions by licensed conveyancers and the competition that this fosters among solicitors (consequences that will be even more pronounced if banks and building societies are allowed to perform conveyances). As the erosion of market control makes it more difficult to extract the customary profits from clients, solicitors will be forced to intensify the extraction of surplus value from subordinates, a development that I discuss further below. Competition also fosters concentration. One likely trend is the expansion of firms through the creation of suburban branch offices; in 1978, for instance, a third of all firms already had at least two offices, and a tenth had three or more.

Furthermore, even if the median productive unit has remained small, a few large firms have emerged since World War II. I found none with more than ten principals prior to the war and only a dozen with as many as five. Yet, five firms had ten or more principals by 1950, twelve had reached this level by 1960, ten had at least twenty principals by 1970, and forty-six are this large today; the largest contains more than 200 solicitors. More than 3,000 solicitors, or 7 percent of those holding practicing certificates, belong to these forty-six large firms. Among the twenty-nine City firms with at least twenty principals, twenty had offices abroad—an average of 2.6 branch offices per firm.

The growth of these larger firms is partly a response to the size of their corporate clients and the need to specialize in order to handle more complex and more varied legal problems. But it also is related to changes in the use of subordinated labor, the explanation for which is both historical and economic. During the 1960s, managing clerks waged a partly successful campaign to professionalize. Legal executives, as they now were called, made somewhat awkward employees, for they were of the same age and gender as their employers and often from a similar social class, some were just as well trained, and they stayed long enough to expect advancement. The tensions within this relationship have been ameliorated in two ways. First, the role of legal executive has been significantly feminized: almost half of the "fellows" admitted by the Institute of Legal Executives (ILEX) in 1983/84 were women. The sexual division of labor and the patriarchal subordination of women both reinforce the male employer's authority. Second, some legal executives have been replaced

by assistant solicitors; although 60 percent of the latter still are male, all are temporary employees, moving either up to partnerships or out to other positions. Their transitory subordination is more easily justified as training. The enormous increase in the production of solicitors, together with the rule requiring all new entrants to work as employees for three years before setting up on their own or in partnership with another, have provided a constant supply of eager recruits. There has been a concomitant decline in the number of new ILEX fellows since the 1960s and in the numbers of new ILEX students and associates since the 1970s. In the ten years during 1966 to 1976, the number of legal executives remained constant, while the number of articled clerks increased by a third, and the number of assistant solicitors grew almost 90 percent, with the result that the ratio of assistant solicitors to principals rose while the ratio of legal executives to principals fell.

These changes in the labor force may have been motivated by considerations of profitability as well as the fact that trainee solicitors were more available and perhaps more docile. The difference between the cost of labor to firms and its price to clients (i.e., the surplus value extracted) is greatest for assistant solicitors and least for legal executives, with articled clerks falling in between. The profitability of using the labor of assistant solicitors also increases with firm size; so does the ratio of assistant solicitors to principals. In 1976 the average firm with ten principals or more had twice as many assistants per principal as the smaller firms (although only a third again as many legal executives); in 1984/85, the average firm with sixty principals or more had two and a half times as many assistants per principal as did the firm with twenty to thirty principals. This more intensive and extensive exploitation of subordinated labor undoubtedly is part of the reason for the higher incomes enjoyed by principals in the larger firms. At the same time, only the larger firms can increase at a rate that holds out to assistants the possibility of a partnership whose rewards outweigh the sacrifices of a prolonged apprenticeship. If I am correct in attributing the growth of solicitors' firms to the relative availability, pliancy, and profitability of assistant solicitors as subordinates, we can expect further divergence between small and large firms in terms of the labor they employ. Solicitors may be fissioning into the two hemispheres whose polarization characterizes the American legal profession.

The structure of practice at the Bar has changed even more radically, but in different directions. Although most nineteenth century barristers (like most solicitors) practiced alone, by the late 1950s the average set contained more than seven barristers in London and five in the provinces. These figures have grown steadily to more than sixteen barristers per set in London today and twelve in the provinces. The emergence of large sets

is a recent phenomenon: only 5 percent of London sets had more than fifteen barristers in 1965, whereas half did so by 1976. Today, nearly three-fourths of London sets contain at least fifteen barristers (excluding those in Lincoln's Inn, where Chancery practices tend to be smaller), and so do more than half of all provincial sets. Furthermore, unlike solicitors, few barristers still practice in small groups: a quarter of all London sets and half of all provincial sets contained fewer than six barristers in 1961, but now only 3 percent of London sets and 9 percent of provincial sets contain fewer than five barristers. Only 2 of the 336 sets have thirty barristers or more, however, and the largest, with forty-five barristers, does not begin to approach the size of the larger solicitors' firms.

Chambers have grown for some of the same reasons that impelled the expansion of solicitors' firms. Size confers its own prestige; together with internal diversity or "balance" among the members of a set (in terms of subject-matter specialization, length of experience, and reputation), it attracts and keeps business. Like firms (if to a lesser degree), chambers can benefit from economies of scale in the use of computerized billing and word processing. But the central dynamic of growth has been different because of the absence of subordinated labor: barristers in private practice cannot be employed (although young barristers may devil for older members of their chambers); and the barristers' clerk is an independent contractor, not an employee. Partners in solicitors' firms have a profound interest in the clerks they accept for articles and the assistant solicitors they hire: both will be performing work for which the partners are responsible and also are candidates for partnership. Barristers who accept pupils and heads of chambers who fill tenancies undoubtedly are concerned with the quality of those they select, but not for these reasons. Young barristers are acutely affected by the prominence of the older barristers in their chambers and the entrepreneurial skills of their clerk, however, for it is these that attract most of the work the new recruit is likely to obtain.

However, the greatest difference between chambers and firms is the role of the barristers' clerk. Whereas the work of legal executives closely resembles that of solicitors, the barristers' clerk performs no legal functions. Furthermore, whereas the legal executive is only minimally differentiated from the solicitor in terms of class and training and even may aspire to become a solicitor, the barristers' clerk generally comes from a working class background, has no education beyond secondary school, and never becomes a barrister. Despite these differences, the clerk is less subordinated than the legal executive or trainee solicitor and is a petty bourgeois rather than an employee. Barristers' clerks wield considerable power over the younger members of chambers: allocating briefs when solicitors have not specified a barrister or when the preferred barrister cannot accept the brief

or has returned it; and influencing the selection of tenants, particularly from among pupils. Barristers' clerks also earn substantial incomes—more than most of the junior barristers in their chambers.

Most importantly, whereas solicitors' firms have grown, in part, because partners seek to enhance their profits through subordinated labor, the expansion of barristers' chambers redounds primarily to the economic benefit of senior clerks. Since most are paid a proportion of the brief fee and each set contains only one senior clerk (although the senior clerk may have to pay the salaries of the junior clerks), the senior clerk's income varies directly with the number of barristers in the set. Consequently, clerks certainly have not been unhappy about the lack of space in the Inns, which has inhibited the fission of sets. Given this space shortage, economies of scale, the self-interest of clerks, the prestige that attaches to growth and size, the commercial advantages of internal differentiation, and the relative absence of economic tensions within chambers because barristers do not share profits, we can expect further expansion. Although the unit of production has grown in both branches, this growth has very different meanings. For solicitors, it signifies the intensification of capitalist relations of production and a widening division between the larger firms that have followed this route and the smaller firms that have not. Although the prohibition of partnerships and employment at the Bar precludes this development, the growth of chambers does signify an intensification of hierarchy as greater power accrues to both the head of chambers (advised by other senior tenants) and the senior clerk.

STRATIFICATION

Inevitably, the forms of differentiation traced above also structure inequality within the profession. It is essential to distinguish stratification that is relatively permanent, and therefore threatens professional cohesion, from situations where assignment to a stratum is temporary, and mobility can strengthen professional integration. Geography affects the power, wealth, and status of practitioners in both branches, but these differences appear to generate more tension among solicitors, perhaps because the majority are located in the provinces while professional advantages are concentrated in London. The principal division among solicitors is firm size, however, which reflects clients served and functions performed and affects solicitor income and status. There appears to be little movement between large and small firms. Furthermore, recruitment to the larger firms seems to be influenced strongly by the academic institution attended and the degree attained, both of which correlate with background variables such as class.

This form of stratification is almost certain to intensify with the proliferation of large firms and their continued growth. Although barristers' chambers also differ by size and specialty, these variables do not appear to define as strongly the status of individual barristers within them, and there is increasing movement between sets. A very significant exception to both generalizations, however, are the so-called ghetto chambers occupied primarily by black barristers—a phenomenon that contradicts the universalistic pretensions of the Bar.

Other professional divisions are characterized by varying degrees of mobility. Although barristers still enjoy higher social status than do solicitors, the entry requirements of the two branches have converged, and transfer between them is far easier than it once was, if few avail themselves of the opportunity. Like all professions, those of the law hold out to their members the hope of attaining higher income, status, and power with age. But whereas most articled clerks become assistant solicitors and end as principals, and any solicitor who wishes can play a role in the local, if not the national, law society, the career ladder at the Bar is unusually long and steep, and progress up it far less certain. Not all pupils obtain tenancies; not all fledgling barristers earn their keep and remain in private practice; not all juniors become Queen's Counsel; not all Queen's Counsel become judges; and not all older barristers become heads of chambers or benchers. These status differences are reflected in income. Whereas the highest decile of solicitors earn only two-thirds more than the median and those forty years or older, only two-thirds more than those under thirty, the highest decile of barristers earn more than twice the median and those forty years or older, almost three times as much as those under thirty.

For solicitors, therefore, the problem posed by stratification is to explain the relatively permanent distribution that occurs at the beginning of legal careers: of law students among apprenticeships and of clerks who have completed their articles among law firms and other forms of employment. For the Bar, by contrast, the problem is to explain cumulative success and failure throughout a lifetime of testing. The early and irrevocable assignment of position within the system of stratification would seem to pose greater problems for the unity of solicitors than the later, more gradual, and apparently more reversible assignment of status to barristers. Stratification among solicitors has not been associated overtly with racism because there are so few blacks (although this is changing), and women have been hired by some of the larger firms in proportion to their representation among law graduates (if few have been given partnerships). At the Bar, however, it is clear that blacks, and to a lesser extent women, are severely disadvantaged. Although stratification at the Bar may be more fluid than it is among solicitors, the pretense that it simply reflects meritocratic

principles—that success rewards ability and effort—thus is more thoroughly undermined by the visible correlation between the stratum attained and the race and gender of the aspirant.

PROFESSIONAL ASSOCIATIONS

In tracing the trajectory of the professional project among barristers and solicitors, I have not yet discussed the instrument through which they pursued their goals—the professional association. I will begin by describing the emergence and consolidation of structures for collective action during the nineteenth and early twentieth centuries before examining their responses to the challenges of the postwar period.

THE INSTITUTIONAL FRAMEWORK

Barristers entered the nineteenth century as a fully mature profession. They controlled entry and enjoyed an unchallenged monopoly over advocacy. Indeed, these privileges had been won so far in the past that they had acquired the unquestionable legitimacy of tradition. At the same time, the Bar's demographic and organizational characteristics facilitated informal social control. The Bar was small (less than a thousand actual practitioners), extremely homogeneous, and concentrated within a few square blocks of London. Because solicitors insulated barristers from direct client contact, the Bar was less subject to the centrifugal pressures of client loyalty. Barristers encountered fewer temptations to engage in financial misconduct, for they did not handle clients' money. Since most of their professional activities occurred in open court, they constantly were subject to the scrutiny of both judges and their fellow barristers.

Consequently, it is not surprising that formal structures for self-governance were relatively weak and highly decentralized. Each of the four Inns admitted its own students, called them to the Bar, and was responsible for discipline; however, there is no evidence that they exercised any real scrutiny over admissions or calls or took their disciplinary functions seriously. There was no official written code of conduct. The Inns had great difficulty in agreeing on common policies and generally acted independently. Each Inn was governed by its benchers—an elderly, self-perpetuating oligarchy. Content with the professional status of the Bar, they sought to contain change rather than foster it. Consequently, although the Inns cooperated in forming the Council of Legal Education in 1852, the Council had hardly any full-time staff until after World War II and attracted few students. And the Inns adopted a Bar examination in

1872 only as a reluctant concession to the example of solicitors and the threat of fusion.

During much of the nineteenth century, the circuits may have exercised more significant social control; however, their authority over entry and behavior was entirely informal and their actions even less coordinated than those of the Inns. Furthermore, their influence declined as the circuits grew in size and ultimately were supplanted by provincial bars. The only centralized professional association was the Bar Council, created at the end of the century at the initiative of younger barristers who feared that solicitors were threatening their market. More than either the Inns or the circuits, it actively sought to promote the economic interests of barristers and may have helped to formalize such restrictive practices as the two-counsel and two-thirds rules. The Bar Council derived all its financial support from the Inns, however, which were extremely parsimonious, and it enrolled only a small proportion of all barristers. Until well after World War II, therefore, barristers were governed by a miscellany of uncoordinated institutions but actually relied on tradition and informal understandings to control their market and regulate professional behavior.

Solicitors present a marked contrast in almost every respect. At the beginning of the nineteenth century they were not a profession. It was not they, but the courts, that regulated entry, established restrictive practices, and exercised discipline. Informal controls were ineffective, for there were too many solicitors (approximately five times the number of barristers), and they were too dispersed (two-thirds were scattered across England) and heterogeneous (in both background and function). Nor did they have a viable institutional structure through which to act collectively. The eighteenth century Society of Gentlemen Practisers was moribund, and the only vital organizations were local law societies in a few provincial cities. It was precisely in order to professionalize that solicitors founded the Incorporated Law Society in the 1820s. Like all professional vanguards, the Society began as an elite organization, composed of a few London practitioners. It retained both characteristics throughout the nineteenth century: London solicitors dominated (although they were a minority of the profession); and fifty years after its inception only 25 percent of practitioners had joined. Provincial solicitors continued to invest primary loyalty in their local law societies, which formed federations that competed with the national organization until well into the twentieth century. The Law Society also was governed by elderly solicitors (the median age of council members in 1899 was sixty) who, once elected, generally served for life.

But even if the institutional structure was flawed, the Law Society energetically mobilized whatever resources it possessed to pursue the professional project. First, as we have seen, it erected the formal entry barrier of professional examinations. Although judges initially adminis-

tered these, the Law Society soon took over. Solicitors were less successful in controlling production by producers, for the courts, rather than the Society, regulated fees and demonstrated their solicitude for the public interest by establishing maxima rather than minima. In response, the Law Society promulgated a practice rule prohibiting fee cutting and encouraged local law societies to set minimum fees at or near the judicial maxima.

Second, solicitors sought to persuade the courts to hand over disciplinary powers. The Society was authorized to present charges of misconduct to the Supreme Court in 1873, to conduct a preliminary hearing in 1888, and finally to constitute the disciplinary tribunal in 1919, although solicitors still could seek judicial review. Unlike barristers, solicitors did not rely on traditional conventions about proper behavior; ethical precepts were imbodied in judicial decisions and, after the Law Society obtained statutory authority in 1933, in its practice rules.

Third, the Law Society responded to a problem that uniquely threatened the collective status of solicitors—financial misconduct. In 1901 alone, fifty-five solicitors declared bankruptcy, betraying the faith of clients whose money they held in trust accounts. In response, the Law Society successfully sought legislation making such conduct criminal; five years later it secured the right to suspend a practicing certificate on the same ground and required newly qualified solicitors to pass an examination in accounting. It also started to make ex gratia payments to clients who had suffered financial loss. In 1935, under legislative compulsion, it required solicitors to keep and report client accounts (although these rules were widely flouted and largely unenforced), and in 1942 it compelled solicitors to contribute to the compensation fund. Whereas barristers preserved their traditional decentralized institutions and relied heavily on informal control, solicitors thus created a new central institution that constantly sought to expand its formal control.

POSTWAR CHALLENGES

The changes the legal profession has experienced since World War II have induced some convergence in the structures and processes of governance in the two branches, but significant differences remain. The Bar, as we saw, has become more heterogeneous in terms of race and gender, more youthful, and more dispersed (more than a fourth of all barristers now practice primarily in provincial cities); however, governance of the Inns hardly has changed in response. There are no black benchers, although blacks constitute at least 5 percent of the Bar. Women constitute only 2 percent of the benchers, although they represent 12 percent of the Bar. In the mid-1970s, juniors constituted only 5 percent of the benchers, although they repre-

sented 90 percent of the practicing Bar. The doubling in the median size of chambers also has altered the structure of governance. On one hand, larger sets may shield their members from external influence, both formal and informal. On the other hand, the sets themselves may have become more important loci of control. Because the vast majority of heads are elderly white males, the hierarchy within chambers reinforces traditional authority. Extensive socializing among the small number of barristers' clerks strengthens this informal control. Yet a few may be able to retain some autonomy from informal influences because they have physically isolated themselves from the Inns or because their members, head, and clerk are predominately black, female, youthful, or politically dissident.

The greatest institutional transformation in the governance of barristers was the creation of the Senate of the Inns of Court and the Bar in 1966. Unlike the Bar Council (which it absorbed eight years later), the Senate enjoys both substantial resources and significant authority. Although membership is voluntary, more than 80 percent of private practitioners subscribe. In order to enhance its legitimacy, it has coopted laypersons onto certain committees, most notably those charged with discipline. Its governance still is not much more representative than that of the Inns (which continue to appoint twenty-four benchers to the Senate), however, for there are only three women and no blacks in the Senate. Furthermore, within that moiety of all barristers who are employed, probably no more than half belong to the Senate, and only 8 serve on its governing body of more than 100. In addition, although the Senate has centralized the disciplinary powers previously exercised by the four Inns, the new structure—like all forms of professional self-regulation—seems intended more to shield barristers from criticism than to change behavior or punish misconduct. Barristers, who are in the best position to observe their peers, file only 8 percent of all complaints. More than half of the complaints are dismissed without a hearing, and another quarter are either withdrawn or handled summarily. Only 3 percent of complaints between 1968 and 1982 led to disbarment, and only I percent led to suspension; the other 96 percent resulted in no significant penalty. In addition to these institutional changes in its structures of governance, the Senate formalized the substantive rules of ethics by promulgating the first Code of Conduct in 1980. Furthermore, dictum in a 1969 case exposing barristers to the threat of malpractice liability for noncontentious activities has led insurers to settle several claims and convinced the Senate to require barristers to carry professional indemnity insurance. Barristers today thus operate under a structure of formal, centralized self-regulation and the specter of increasing external regulation—a situation similar to that of prewar solicitors.

The Law Society also has had to cope with growing diversity in the background of solicitors, the functions that they perform, and the structures

within which they practice. Although almost all private practitioners now belong to the Society, its governing council is not remotely representative of the general membership. Women presently hold more than 10 percent of practicing certificates and constitute more than 40 percent of newly admitted solicitors, but the first woman was appointed to the seventy-person council only in 1977. Most solicitors today are at the beginning of their careers, but most council members are at the end of theirs. London solicitors make up a minority of the profession, but they continue to dominate the council. Nearly one out of every ten solicitors is a sole practitioner, but there are none on the council; two-partner firms contain 16 percent of all principals, but such principals represent only 4 percent of council members. Employed solicitors are underrepresented within the Society and even more so on the council.

This disenfranchisement not only has caused tension and apathy within the Society but also has led to the emergence and growth of rival organizations. Local law societies continue to champion the parochial interests of their members. There are specialized associations representing London litigators, criminal solicitors, local government solicitors, employed solicitors, and now legal aid practitioners. The creation of the British Legal Association in the 1960s and its survival for two decades reflects the persistent dissatisfaction of younger solicitors, provincial solicitors, and solo and small firm practitioners. In addition, two other organizational structures threaten to compete with and perhaps even to supplant the professional association. Large firm principals, although still a minority, are likely to insist on governing their own domain, resisting interference by professional associations. At the other end of the status hierarchy, articled clerks, assistant solicitors, and junior employees in government or industry may prefer trade unionism to professionalism. That hallmark of a profession—the capacity to act collectively through a single organization —which solicitors struggled to attain during the nineteenth century, appears to be fragmenting as the interests of discrete and sometimes antagonistic segments are expressed through forms that may be antithetical to professionalism.

The institutions of self-regulation created by the Law Society in the early twentieth century have been strained by postwar changes. Although complaints per solicitor appear to have increased, many instances of misconduct still are overlooked. Solicitors, who are best situated to detect misconduct, file only 14 percent of the complaints. Clients also are reluctant to make accusations; only a third of those with grievances complained to anyone, and only 6 percent of complainants (or 2 percent of all aggrieved clients) addressed the Law Society. Even so, there are more than five times as many complaints per solicitor as there are for each barrister, probably because solicitors have so much more client contact. Yet Law

Society discipline, like that of the Senate, exculpates far more than it punishes. More than two-thirds of all complaints are found unjustified by the investigative body (the Professional Purposes Committee), and others are terminated with only a reprimand. In those cases sent to the Disciplinary Tribunal, less than half of the solicitors are struck from the roll or suspended. In summary, the Society punished less than I percent of all solicitors who were the object of complaints between 1973 and 1979. Public dissatisfaction with this record, together with periodic scandals, have led the Society to appoint lay members to the Disciplinary Tribunal, establish a Lay Observer to hear complaints about the disciplinary process, and, most recently, add laypersons to the Professional Purposes Committee (in response to the Glanville Davies affair); however, these reforms appear to have achieved neither a significant voice for the laity nor the restoration of public confidence.

Self-regulation has been threatened from other directions as well. First, although the Society hired a staff to investigate solicitor accounts in 1945 and has enlarged it steadily, the compensation fund has had to make increasingly greater payments to the clients of defaulting solicitors, rising from about £100,000 a year in the 1960s to nearly £2,000,000 in 1984—an increase that far outstrips the combined effect of inflation and the growth of the profession. Given the sums involved, it is not clear how long the Law Society can preserve this as an ex gratia scheme rather than a legal liability. Second, more clients are charging solicitors with malpractice. In the 1960s, only about half of all solicitors carried malpractice insurance, and less than 10 percent were sued each year. The Law Society required insurance in 1976, and one index of the greater frequency, magnitude, and success of malpractice claims is the fact that premiums doubled in the next four years. Furthermore, the apportionment of the Law Society's master premium among solicitors recently became a point of bitter contention between the larger City firms and small firms and sole practitioners, leading to an upsurge in support for the position of the British Legal Association. Competence increasingly is evaluated by the courts rather than the Law Society, therefore, and there is a real danger that the latter also will lose some or all of its authority to punish ethical violations and to deal with financial misconduct.

THE TRAJECTORY OF PROFESSIONALISM

BARRISTERS AND SOLICITORS AS ALTERNATIVE MODELS

The history of barristers and solicitors during the last two centuries offers unparalleled insights into the trajectory of professionalism. These two

branches must resolve similar problems because they perform overlapping functions within a common social, economic, and political environment. Yet, they entered the period with different endowments, have pursued different strategies, and confront different futures. At the beginning of the nineteenth century, barristers already were an established profession, legitimated by traditional warrants. Solicitors, by contrast, still had to carve out their place within the division of labor and weld disparate occupations into a unified whole, while trying to legitimate the new entity by reference to utility rather than history. The Bar was a small, homogeneous, geographically centralized collectivity performing a limited repertoire of functions. Solicitors (who lack any similar collective label) were a much larger aggregation of heterogeneous, geographically dispersed individuals performing a wide variety of functions.

These attributes and resources help to explain the divergent strategies adopted by the two branches in pursuing the professional project of market control and collective mobility. As long as possible, barristers sought to evoke an aristocratic ideal, employing ascribed characteristics—qualities of the whole person—as the principal, sometimes the sole, criterion for entry. Solicitors, by contrast, initiated their struggle for supply control by imposing measures of technical competence, which they gradually made more rigorous. Whereas the barriers to becoming a barrister were relatively informal and invisible—most notably pupillage (which was not required until after World War II), tenancy, and the difficulty of obtaining business—the professional examinations that the aspiring solicitor had to pass were highly formal and visible. The restrictive practices by which barristers limited intraprofessional competition—for instance, membership in a circuit, the role of chambers and clerks, or relations between seniors and juniors—were traditional and initially informal, although they were gradually formalized toward the end of the nineteenth century. By contrast, solicitors' scale fees were not only formal but imposed externally. The Bar saw no need to promulgate an ethical code and governed itself through a multiplicity of traditional institutions. Solicitors devoted considerable energy to refining ethical rules, created a single, formally representative, professional association, and publicly sanctioned the most egregious forms of misconduct.

At the beginning of the postwar period, therefore, the Bar had preserved largely intact a premodern profession that sought its warrant in gentility and tradition and controlled its market through relatively informal, invisible mechanisms, whereas solicitors had created a modem profession that derived its legitimacy from claims of meritocracy and utility and controlled its market through highly formal, visible mechanisms. Given these divergent histories, it was inevitable that the two branches would respond differently to the challenges of the last few dec-

ades. Both suffered an erosion in their control over supply, as a result of the growth of higher education and the decline of gender as an entry barrier. We might have expected solicitors to retain greater control through their reliance on more stringent, formal, visible, and meritocratic criteria; however, the reverse seems to be true. Although the increase in the number of barristers was earlier and proportionally greater, the Bar also has been able to reassert control first by continuing to apply its more traditional, informal, invisible, and ascriptive criteria in the selection of pupils, the grant of tenancies, and the allocation of business. Both branches also have responded to the erosion of supply control by diverting entrants away from private practice and into employment in government or industry and commerce, but once again this has done more to relieve the pressure of numbers within the private Bar. Half of all barristers now are employed; and because they lack a right of audience, they cannot compete with those in private practice (although both barristers and solicitors in employment can compete with private solicitors). Employed barristers are less well integrated within the profession, however, as shown by their lower rate of subscription to the Senate.

The erosion of supply control also undermines the professional project by increasing heterogeneity within the profession, thereby endangering both its unity and its collective status. The response of the Bar has been twofold. First, there has been some segregation of blacks, women, and political activists into separate chambers, as a result of both discrimination and self-selection. Although this may help to quarantine potential dissidents, it also publicly reveals internal disunity. Second, the Bar holds out to all entrants the promise of ascending a lengthy career ladder: earning more, handling weightier matters, representing more prestigious clients, taking silk, and becoming a head of chambers, a Senate member, a bencher, or a judge. This simultaneously controls and integrates recent entrants, who are both more diverse and less socialized than their predecessors; it also preserves the status of those at the top from taint by association with those at the bottom. But the legitimacy of this hierarchy depends on preserving an image of equal access to the apex: to the extent that strata become visibly associated with the race, gender, or class origins of their members, the hierarchy may become a source of internal tension and public opprobrium. Solicitors have had to confront the problem of integrating more women, but fewer blacks. Their solution has been an apprenticeship that is both longer—two years of articles and at least three as an assistant—and more intensively supervised. In the course of this, solicitors distribute new entrants fairly permanently to professional strata defined by firm size, specialty, and geographic location. Here, again, the legitimacy of the hierarchy will depend on whether partnerships and firms are perceived as equally open to all—especially to women.

Weakened control over the production of producers also endangers control over production by producers. Here, too, the Bar's restrictive practices have been more resilient. Although some rules had to be repealed when formalization exposed them to hostile public scrutiny, barristers still were able to dampen intraprofessional competition through informal understandings. Because advocacy constitutes the core function of the legal profession and contains a good balance of technicality and indetermination, the Bar's exclusive rights of audience have survived largely intact. But much of solicitors' work occupies the periphery of the lawyer's role; although tasks are technical, many also are determinate and thus can be performed by nonprofessionals. Just as solicitors constantly ceded ground to other occupations, so now they have lost their monopoly over conveyancing and with it their ability to set the fees for those conveyances they continue to perform. Barristers also have been more successful in creating demand because, as mediators between citizens and the most visible forms of state power, they perform a core function that the polity feels obligated to subsidize. Economic survival has been attained at considerable cost, however; when half the income of the Bar is derived from public funds, professional control over the market is problematic, indeed.

Both branches have had to respond to heightened competition and the consequent pressure to rationalize the market for their services. As barristers' chambers have grown in size, they have become increasingly significant as the unit of production, notwithstanding the prohibition against sharing fees. Especially in lesser matters, solicitors often send briefs to chambers rather than to specified barristers, and clerks enjoy considerable discretion in distributing them. By performing much of the dirty work of getting and allocating business, clerks relieve barristers of the need to engage in such patently commercial practices as advertising. Subject-matter specialization by chambers and informal understandings among the small number of senior clerks also suppress competition between chambers. Consequently, despite the increased size and importance of chambers and the growth of hierarchy within them, at least the more senior barristers remain independent professionals.

Solicitors have responded to competition differently. Previously, although most firms produced a similar range of services, they divided the market geographically. The rapid growth in the size of firms, the proliferation of branch offices, and now the possibility of advertising all foster concentration within markets that are becoming increasingly regional, if not yet national. Solicitors no longer can rely on conveyancing to assure themselves a comfortable living, and continuing incursions by lay competitors will compel solicitors to reach out toward new clients, subject matters, and functions, thereby increasing differentiation within the profession. However, the most significant development is likely to be the increasing

employment of both solicitors and paraprofessionals. First as an employee and later as an employer, the solicitor is being transformed from an independent professional into a worker and then a capitalist; in both cases, the solicitor is inextricably enmeshed within capitalist relations of production.

The last problem confronting lawyers is their capacity to engage in the self-regulation that is both the privilege and the responsibility of all professions. Neither barristers nor solicitors satisfactorily have responded to the challenges of the postwar transformation. Their structures of governance remain unrepresentative, driving some lawyers to form alternative institutions while breeding apathy in others. In any case, the official associations have lost significant power over their members—to both the state and the ever-larger and more bureaucratic units of production, such as public and private employers, barristers' chambers, and solicitors' firms. Attempts to restore popular legitimacy by coopting laypersons onto governing bodies and disciplinary boards have produced no measurable increase in public respect. Self-regulation is being circumvented by malpractice claims. It is unclear whether either branch today can govern or discipline itself effectively.

THE FUTURE OF PROFESSIONALISM

In light of the experience of recent decades, what does the future hold for the English legal professions? The dilemma of prediction is that its stimulus typically is some unanticipated change but its technique remains the extrapolation of existing trends. At the risk of falling into just this error, I will refrain from trying to forecast further shifts as abrupt and unprecedented as the expansion of higher education and the entry of women, which initiated the present era of change, and content myself with speculating about the cumulative effect of recent tendencies. Barring a drastic contraction of academic legal education, which seems politically unfeasible even if it might be attractive to the present Government, both branches will continue to grow until the cohorts of older lawyers all have retired. Each branch will expand by about half before the end of the century and then grow at a lesser rate for another ten years. Women will constitute a fifth of the Bar and two-fifths of all solicitors. Because private practice cannot absorb these numbers, government and industry and commerce will employ the excess, with the result that legal education will become less a professional qualification and more a credential for membership in the administrative class (broadly conceived as including all those who exercise managerial functions in either the public or the private sector). Competition will intensify among those who persist in aspiring to be true professionals (as I have used that term)—that is, private practitioners.

Younger barristers will continue to be almost entirely dependent on public funds and, in that way, subject to state control. Younger solicitors will have little choice but to seek employment in increasingly hierarchical and bureaucratic firms, attracted by an ever-receding prospect of partnership. Moreover, all solicitors must resign themselves to losing more business to lay competitors; to the extent that firms respond by increasing their use of paraprofessionals, this will displace even more solicitors. If, as a result, the Law Society tums its attention in the other direction and renews its attack on barristers' exclusive rights of audience, the similarity of academic education and professional training in the two branches will make it increasingly difficult for the Bar to resist. The consequence may be fusion, although some lawyers will continue to specialize in advocacy in response to consumer choice rather than professional rules. Neither the Senate nor the Law Society will be able to represent or govern this increasingly heterogeneous collection of occupations. In any case, such professional associations will be largely irrelevant to employed lawyers (who will constitute a majority of both branches); and collective self-regulation will be supplanted by both direct state control and bureaucratic controls within the units of production.

Professionalism—in the sense in which both champions and critics have used that concept during the last two centuries—will not disappear. It will persist as both a nostalgic ideal and a source of legitimation for increasingly anachronistic practices, although it will lose considerable credibility. It will continue to reflect the experience of a dwindling elite—some profit-sharing partners in solicitors' firms and the handful of more successful barristers—who will remain largely impervious to state control and continue to dominate their markets and govern their professional associations. For the mass of lawyers, however, occupational life will mean either employment by a large bureaucracy, dependence on a public paymaster, or competition within an increasingly free market. Whichever they choose, these lawyers no longer will enjoy the distinctive privileges of professionals—control over the market for their services and high social status. The age of professionalism is ending.

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NOTE

An earlier version of this chapter was presented as the Chorley Lecture in June 1985 and published in 49 Modern Law Review 1 (1986). The data on English lawyers that ground my argument are presented and documented thoroughly in my book The Legal Profession in England and Wales (Basil Blackwell, 1988). Consequently, I have omitted all references here. I have used the adjective "English" throughout as a shorthand reference to England and Wales; my comments do not apply to Northern Ireland or Scotland.

I have been assisted in this research by so many people and institutions that I cannot thank them all individually. The Law Department of the London School of Economics kindly offered me hospitality during the fall of 1982. The Academic Senate, the Law School Dean's Fund, and the Committee on International and Comparative Studies of the University of California, Los Angeles and the Law and Social Science Program of the National Science Foundation (Grant Numbers SES 81-10380, 83-10162, and 84-20295) all provided generous financial support. Aubrey Diamond helpfully arranged for me to present some of these ideas at a seminar at the Institute of Advanced Legal Studies, the participants at which offered invaluable comments and criticism. The Chorley Lecture provided a stimulus and opportunity to develop them more fully. Stuart Anderson, Philip Lewis, Simon Roberts, David Sugarman, and Michael Zander have read drafts and furnished essential information, and Geoffrey Bindman has patiently answered endless questions. My intellectual debt to the sociological writings of Eliot Freidson and Magali Sarfatti Larson will be obvious throughout.