Sociology of the Legal Profession

The proposition to write: entry to the legal profession is formally by achievement and substantially by ascription, because the resources needed to achieve are unequally distributed. This is the point made generally in [Status and Role] and it is nowhere clearer than here.

Socialisation into the profession

Set out in the worked example of [Socialization] and summarised here: anticipatory socialisation before enrolment; formal training in doctrine and in the hidden curriculum of authority-backed argument; and occupational socialisation in chambers, which transmits what no syllabus contains, how to address a registrar, what may be said to an opponent, how much confidence to show a client, and when a matter will actually be heard.

The finding that matters is that the decisive learning occurs in a primary group inside a secondary institution, from [Primary and Secondary Groups]. A junior's competence, standing and opportunities come from their chambers, which is why access to a good chamber is the single most consequential event in a young lawyer's career and why its distribution reproduces the pattern of recruitment described above.

Stratification within the bar

The profession is not one group, and treating it as one is the commonest weakness in an answer. It is sharply stratified, and the strata differ in income, security, status and the kind of work done.

By forum: the Supreme Court, the High Courts, the district judiciary and the tribunals.

By work: corporate and commercial practice; litigation; criminal practice; family and matrimonial practice; conveyancing and documentation; and the very large number practising a mixture in a district court.

By type of practice: the law firm, the individual practitioner, the in-house counsel, and government pleaders and prosecutors.

By status within the bar: senior advocates, designated as such by the courts; established practitioners; juniors; and those who never establish a practice at all and leave.

By income, which varies enormously, and the range within the profession is far wider than in most occupations, which is why average figures for the earnings of lawyers convey almost nothing.

The sociological consequence: the interests of these strata differ, so the profession speaks with several voices, and what a bar association resolves reflects the composition of the association rather than the profession.

Regulation and ethics

Self-regulation through the Bar Council of India and the State Bar Councils under the Advocates Act 1961, with rules on professional conduct and etiquette and disciplinary committees to enforce them.

The sociological questions to ask about any self-regulating profession, and they are questions rather than accusations: how many complaints are made and by whom; what proportion are proceeded with; how long they take; what sanctions result; and whether the body's composition affects the outcome. These are empirical questions answerable by the methods of Module III, and asking them is what distinguishes a sociological treatment from a descriptive one.

The standing tension, from [Primary and Secondary Groups]: the duty to report a colleague's misconduct is a formal obligation of a secondary institution competing with the loyalty of a primary group, and primary loyalty usually wins. This is not a fact about lawyers; it is a fact about groups, and it operates identically in medicine, in the police and in universities.

The profession and access to justice

The point at which this chapter matters most to the society.

Cost, distance, delay and language are the four barriers, and the profession's structure bears on each. Where fees are set by a market and the supply of experienced practitioners is concentrated in cities, the cost of competent representation is beyond most litigants.

The institutional responses are worth naming: legal aid through the legal services authorities established under the Legal Services Authorities Act 1987, with Lok Adalats as a forum for settlement; the constitutional direction that the state secure that the operation of the legal system promotes justice on a basis of equal opportunity and provide free legal aid; public interest litigation, which relaxed standing and so allowed organisations to raise questions on behalf of those who could not come themselves, as [Pressure Groups] describes; and pro bono work.

The sociological question about each is the same: who actually uses it. A scheme's coverage is measured by the methods in [Sampling] and [The Stages of Data Collection], and that measurement is socio-legal research.

The profession and social change

As an obstacle: a profession trained in precedent and paid by the existing system has an interest in its continuance, and reforms reducing procedural steps reduce work.

As an agent: lawyers have been prominent in every Indian reform movement and in the national movement itself, and public interest litigation was made by lawyers.

Both are true, and the honest formulation is that the profession contains strata with different interests, so it appears on both sides of most reforms, which is what [The Conflict Perspective] would predict of any occupational group.

A worked example

Two students graduate from the same college in the same year.

The first has a family practice in the district court, a chamber to enter, briefs from the first month, the language of the local court as their own, and a household that does not need their income. Within ten years they have a practice.

The second is the first graduate in their family, must earn from the start, has no chamber and no introductions, and finds that the work available is documentation at low rates. Within ten years they may have left the profession, and the exits are not recorded anywhere.

The point is not that the first is undeserving. It is that the two faced different structures and that the profession's composition is the aggregate of ten thousand such pairs. The visible profession consists of those who survived the first five years, so any study of the bar that surveys practising advocates has already excluded exactly the people whose experience would explain its composition. That is a sampling problem of the kind [Sampling] describes, and it is why the question of who leaves the profession is harder to research, and more important, than the question of who is in it.

Quick revision

1. Marks of a profession: specialised knowledge, prolonged training and a qualifying examination, self-regulation, a code of ethics, service orientation, autonomy, an association, status and remuneration.
2. In India: the Advocates Act 1961, the Bar Council of India and the State Bar Councils, enrolment, the All India Bar Examination, rules of conduct and disciplinary committees.
3. Two readings of the same features: functionalist, that controlled entry protects a public that cannot judge quality; conflict, that it is a market shelter restricting supply and securing income, with service as its ideology.
4. Recruitment is formally by achievement and substantially by ascription: cost and unpaid early years, English, inherited entry, networks, gender, caste.
5. Socialisation: anticipatory, formal, and above all occupational, learned in a primary group inside a secondary institution, which makes access to a chamber decisive.
6. Stratification by forum, work, type of practice, standing and income; the profession speaks with several voices because its strata have different interests.
7. Access to justice: cost, distance, delay and language; legal aid under the Legal Services Authorities Act 1987, Lok Adalats, public interest litigation. The sociological question is always who actually uses it.
8. A survey of practising advocates has already excluded those who left, which is the sampling problem that hides the profession's real selection.

Test yourself

1. What marks an occupation as a profession, and how does the Indian legal profession satisfy those marks? A body of specialised knowledge acquired by prolonged formal training; a qualifying examination controlling entry; self-regulation of admission, standards and discipline; a code of ethics imposing obligations beyond the client's wishes; a claim to serve a public interest; autonomy of judgment in practice; a representative association; and consequent status and remuneration. In India the Advocates Act 1961 constitutes the Bar Council of India and the State Bar Councils, entry requires a recognised degree, enrolment and the All India Bar Examination, and rules of professional conduct are enforced by disciplinary committees.

2. Give the functionalist and the conflict readings of professional self-regulation. The functionalist reading is that a client cannot judge the quality of legal services and must rely on a guarantee, so controlled entry, examination and discipline protect the public and make trust possible. The conflict reading is that these same devices constitute a market shelter: they restrict the supply of practitioners, exclude competitors and secure income and status for those admitted, while the language of public service functions as the profession's ideology. Both descriptions fit the same arrangements.

3. Why is entry to the legal profession described as formally open and socially patterned? Because no rule restricts entry by birth, yet the resources needed to complete a five-year course and survive years of little income select by household wealth; the language of the higher courts and the better-paid work selects by schooling; family connections supply chambers, briefs and informal knowledge; work is distributed through networks that must be entered before it can be obtained; and women, who form a large share of graduates, form a much smaller share of the senior bar. Achievement is the formal criterion and the capacity to achieve is unequally distributed.

4. Why is it wrong to treat the bar as a single group? Because it is sharply stratified by forum, from the Supreme Court to the district courts and tribunals; by the kind of work, from corporate practice to criminal and matrimonial work and documentation; by the type of practice, whether firm, individual, in-house or government; by standing, from designated seniors to juniors; and by income, whose range within the profession is exceptionally wide. These strata have different interests, so the profession appears on both sides of most reforms and what a bar association resolves reflects its own composition.

5. What sampling problem makes the legal profession hard to study? That any survey of practising advocates has already excluded everyone who left. Those who could not sustain the unpaid early years, who never obtained a chamber or briefs, or who found the available work unviable, leave without being recorded anywhere, so a study of those present measures the survivors and treats the selection as though it were the population. The question of who leaves is therefore harder to research and more revealing about the profession's composition than the question of who remains.