BEYOND THE GUILD: LAWYER ORGANIZATIONS AND LAW MAKING.

Author:Levin, Leslie C.
 
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INTRODUCTION 589 I. THEORIES OF ORGANIZATIONS, THE LEGAL PROFESSION, AND LAWMAKING 594 A. Organization Theories 595 1. Internal Aspects of Organizations 595 2. Organizations and the State 596 3. Globalization of Law and Organizations 601 B. Theories of Legal Professions 602 1. Functionalism 602 2. Market Interests 603 3. Client Interests 604 4. Political Liberalism 605 II. OVERVIEW OF SEVEN COUNTRIES 606 A. Democracies 609 1. United States 609 2. Bazil 612 3. Japan 614 4. Israel 617 B. Transitional Government 619 1. Kyrgyzstan 619 2. Libya 621 C. Authoritarian Government - China 622 III. FROM OCCUPATIONAL CONCERNS TO HUMAN RIGHTS: CTIVITIES BY 624 ALAWYER ORGANIZATIONS A. Working for Issues Affecting the Legal Profession as an Occupation 624 1. Self-regulation 625 2. Controlling Size and Quality of the Profession 627 3. Defining, Expanding and Defending the Market 629 4. Self Defense 633 B. Acting on Issues to Benefit Clients (but also Sometimes 635 Benefitting Lawyers) C. Issues Directly Affecting Courts and the Administration of 639 Justice 1. Improving and Protecting the Judicial System 639 2. Access to Justice 643 D. Acting to Advance Human Rights or to Address Other Issues 650 Affecting Civil Society IV. WHEN AND WHY DO LAWYER ORGANIZATIONS ACT TO 654 INFLUENCE LAW? CONCLUSION 662 INTRODUCTION

Lawyers throughout the world seek to influence law, not only through their individual actions, but also through lawyer organizations. As interest groups, these organizations often work to affect not only law, but also the justice system and the workings of government. It is no secret that these organizations sometimes try to block legal change or create new legal rules to promote lawyers' own interests. (1) Lawyer organizations also work to influence law in ways that will benefit their clients. Yet sometimes lawyers' collective actions reflect broader political concerns rather than their clients' or their own self-interest, such as when thousands of Pakistani lawyers took to the streets in 2007 to protest General Pervez Musharraf's attempt to remove the Supreme Court Chief Justice for political reasons. (2) In contrast, the German Bar Association did little to oppose Nazi efforts in 1933 to take over the bar association and to remove Jewish judges from the judiciary. (3) What explains attempts by lawyer organizations to affect law? In what situations and for what reasons do they do so?

Lawyer guilds began to appear around 1100, and like other guilds, engaged in activities to promote their members' status and to secure a monopoly on the work they performed. (4) In Florence, a guild of judge-lawyers and notaries (Arte del Giudici e Notai) was a "vigorous organization" by 1212. (5) In England, lawyer societies formed in the Inns of Court and the Inns of Chancery in the fourteenth century. (6) The French Order of Advocates was first constituted in the mid-fourteenth century. (7) In the early seventeenth century, French barristers acted collectively to oppose the Crown's and high courts' efforts to tax honoraria paid to barristers by their clients. (8) By the early eighteenth century, the Order was actively engaged in political action in opposition to both the Church and the state. (9)

Today, lawyer organizations exist in nearly every country. (10) Comparative analysis of "lawyer" organizations is challenging, however, because countries organize legal work quite differently." The term "lawyer" is used in this Article to mean legally trained individuals who are licensed to represent clients in the country's criminal courts and in most civil court matters. (12) So, for example, in the United States this would refer to lawyers, in Japan to bengoshi, and in France to avocats (and not notaires). (13) Most nations have mandatory organizations to which all lawyers must belong. Governments typically enact legislation establishing these mandatory organizations, but then afford them some autonomy. (14) This includes the right to elect leaders and to exercise some responsibility for the regulation of lawyer conduct. (15) In some countries, however, the organization's leadership is essentially chosen by the state and lawyers are constrained in their efforts to pursue collective goals through the organization.

Many countries also have voluntary lawyer organizations to which lawyers may choose to belong. Voluntary lawyer organizations are typically composed of lawyers who work in the same geographic area (e.g., the Los Angeles County Bar Association), practice setting (e.g., the Association of Corporate Counsel), or specialty (e.g., the National Association of Criminal Defense Lawyers). There are also voluntary lawyer organizations composed of lawyers who share an affinity based, inter alia, on gender, sexual preference, ethnicity, or religion. (16) Voluntary lawyer organizations are also formed so that like-minded lawyers can pursue common political goals or human rights issues. (17)

International and transnational lawyer organizations, such as the International Bar Association, the Council of Bars and Law Societies of Europe, and the International Commission of Jurists also play a significant role in influencing the law. (18) These organizations work to preserve lawyer independence, to advance their economic interests, and to support national and local lawyer organizations. Some of these international organizations affect law by facilitating the creation of consistent commercial practices. (19) They often also work to devise standards concerning lawyer conduct and consistent cross-border rules of practice. (20) These organizations further seek to influence the law in post-conflict countries and emerging democracies by providing technical assistance to lawyer organizations and governments that produces new constitutions and new laws, including the laws governing lawyers. (21)

This Article examines when and why lawyer organizations seek to influence law, either by promoting change or opposing it. The Article compares the activities of lawyer organizations in specific countries, noting at times how they work in conjunction with international or regional lawyer organizations. It seeks to identify the factors that enable the organizations to act and the conditions that may prevent them from acting, focusing not on outcomes, but on attempts to affect law. These efforts include, for example, proposing, drafting or responding to rules or legislation, lobbying, filing lawsuits or amicus briefs, and engaging in strikes or other public protest. Examining the full range of lawyers' efforts, we also include "pre-law making" activities such as problem definition, agenda setting, and mobilization for change, as well as implementation activities focused on enforcement or resistance. Because of governmental impediments to action by lawyer organizations in some jurisdictions, we also consider informal efforts by lawyers to engage in collective actions.

Part I of this Article describes organizational theories and theories of the legal profession that might explain why lawyer organizations attempt to influence law. In Part II, the Article provides an overview of lawyers and their organizations in seven countries with very different political and legal systems. As an initial study of this issue, the small number of countries provides an opportunity to explore the question in some depth. (22) Part II briefly describes the history of lawyers and their associations in these countries, their relationship to the courts and the state, and their view of their role in society. Part III then examines some situations in which lawyer organizations acted to influence law and other situations in which they stayed silent. Using examples from the seven countries, this Part identifies four somewhat overlapping categories in which lawyer organizations attempted to affect the law. Part IV revisits the theoretical perspectives to suggest when lawyer organizations will act, and when they will not. The Article concludes by identifying questions for further research.

  1. THEORIES OF ORGANIZATIONS, THE LEGAL PROFESSION, AND LAWMAKING

    Why might lawyer associations seek to influence law? At least two general bodies of theory suggest some possible answers. (23) First, lawyer associations are organizations, social groups designed to achieve a common goal, and thus organizational analysis offers useful concepts and hypotheses for explaining advocacy by organized groups. Second, theories of the legal profession should also be considered, since lawyer organizations--unlike other organizations such as unions or producers--have their own special connection to law and the state. The general theories of organizations are echoed in the legal profession theories.

    1. Organization Theories

      Some of the older theories of organizations provide frameworks for understanding them at the micro level, focusing on internal characteristics such as formal structure, management, or culture. These theories, designed for industrial organizations, help explain why organizations making widgets succeed or fail, but they are far less useful for explaining the relation between organizations and the state. Moreover, their focus on internal concerns tends to ignore how organizations operate in society as they compete for "limited resources such as membership, capital, and legitimacy." (24) By contrast, macro-level theories shed more light on organization-state relations since they focus on environmental forces influencing and constituting organizations, including their relations with political elites and other groups. (25) These theories call attention to the role of organizations in society, the impact of the state and transnational orders on organizations, and the benefits that organizations can obtain through advocacy.

      1. Internal Aspects of Organizations

        Despite the limits of micro-level organization theories for understanding lawyer organizations and lawmaking, two internal aspects of...

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