The commercialisation of law and the

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The commercialisation of law andthe enterprising legal practitioner:continuity and changeHilary Sommerlad aa School of Law, University of Leicester, Leicester, UK

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The commercialisation of law and the

enterprising legal practitioner: continuity

and change

HILARY SOMMERLAD

School of Law, University of Leicester, Leicester, UK

ABSTRACT This paper engages with William Twining’s longstanding concern with law as a

‘practical art’ through a discussion of the changes which the corporate law sector is currently

undergoing. These changes will be examined through an analysis of qualitative data on the

recruitment practices of large commercial law firms and a reading of the trade press. The

evidence of these firms’ thoroughgoing commercialisation, and of Human Resource (HR)

strategies designed to produce legal entrepreneurs, is suggestive of a Foucaultian ‘analytics of

government’. The data indicates however that underlying the dramatic changes in

professionalism, there are also significant continuities. As a result a range of competing

rationalities and discourses are today in circulation in the corporate law firm – for instance,

discourses of diversity/meritocracy/social mobility; entrepreneurialism; economic rationality

and managerialism. These various discourses both support and reflect the complex of

‘modernising’ impulses, residual cultural practices and acts of resistance which today

characterises the legal professional field. A primary attraction of contemporary recruitment

practices is their capacity to encompass and manage these contradictions.

Introduction

This paper engages with William Twining’s longstanding concern with law as a ‘prac-

tical art’ (1999) through a discussion of contemporary changes to legal professionalism.

This issue has already been the subject of extensive investigations; for instance, scholar-

ship exists on the impact of globalization,1 the reconfiguration of the state,2 the loss of

market shelters, stock exchange listing of firms and the development of commodities

with embedded expert knowledge (for example, Hanlon, 1997, 1999; Kritzer, 1999;

Twining, 2000; Freidson, 2001; Abel, 2003; Empson, 2007; Faulconbridge &

Muzio, 2008).3 Other studies focus on the legal work force, following the weakening

of the profession’s capacity to control entry into legal training and the (related)

INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION,VOL. 18, NOS. 1–2, MARCH–JULY 2011

Address for correspondence: Hilary Sommerlad, School of Law, University of Leicester, University Road,Leicester LE1 7RH, UK. E-mail: [email protected]

ISSN 0969-5958 print/ISSN 1469-9257 online/11/01–20073-36 # 2011 Taylor & Francis

http://dx.doi.org/10.1080/09695958.2011.619852

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diversification of its supply side (for example Sommerlad & Sanderson, 1998; Shiner,

1999, 2000; Vignaendra, 2001; Duff & Webley, 2004; Nicholson, 2005; Sommerlad,

2006, 2007; Sommerlad et al., 2010; Ashley & Empson, 2011). A neglected dimension

is the connection between these aspects of contemporary professionalism.4 By building

this connection into the analysis we can see how the current state of the profession

remains shaped by its internal power relations as well as by exogenous forces and, as

a result, presents a picture of both dramatic change and also continuity.

The discussion is grounded in content analysis of the trade press and corporate

firms’ websites, and a qualitative study of large firms’ selection processes for vacation

placements.5 The data underlines the extent to which the corporate sector of the pro-

fession is currently being transformed, and indicates that Human Resource

Management (HRM)6 practices (such as performance management techniques) are

pivotal in furthering the process of commercialisation and producing the ‘legal entrepre-

neur’.7 Yet the data is also suggestive of the complex ways in which some aspects of

organisational change are frustrated. Key components of commercialised professional-

ism are competency-based recruitment and selection processes and Diversity

Management (DM).8 Both strategies assume that the objective evaluation of perform-

ance is possible and economically rational since this will produce the best work force. A

wealth of empirical work indicates, however, that organisations are not rational, but

rather sites of power struggles (e.g. Ball, 1987; Cockburn, 1989; Hearn, 1994;

Sommerlad, 2002), exemplified most vividly in the persistent disadvantage female

and BME lawyers face in partnership tournaments. The discussion is therefore situated

in a conceptualisation of the law firm as a marketplace (or network of relations) where

agents contend to achieve and hold different positions: ‘outsiders’9 make claims for

inclusion, which powerful actors resist, in part through ‘micropolitical sabotage’

(Morley, 2008, p. 113)) of progressive managerial strategies.10 The data suggests

that, in addition to this active resistance, managerially driven cultural change remains

shaped by, firstly, the persistence of archaic discourses, devaluing ‘outsiders’ attributes

and skills, and, secondly, a commodification and inflation in the value of traditional

markers of elite status (such as a degree from Oxbridge). The contemporary corporate

law firm is therefore a contested domain, and a primary attraction of contemporary

selection processes is their capacity to encompass and manage its contradictions.

The paper will also argue that these contradictions illuminate the complexity and

ambivalence of modern professionalism, and are embedded in wider social pro-

cesses.11 I therefore begin by outlining some key theoretical debates relating, firstly,

to the nature of ‘late modern’ society, legal education and the profession, and, sec-

ondly, to management and work. Then, following a brief description of our research

methods, I apply insights drawn from some of these theoretical models, and in par-

ticular from Foucaultian accounts, to my discussion of the commercialisation of

legal practice and the production of the enterprising lawyer.

Late modern society: continuity and change

The penetration and colonisation by capitalism, over recent decades, of the last sur-

viving zones of pre-capitalism (Jameson, 1996; Leyshon & Thrift, 2007; Wood, 1997)

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is generally viewed as producing a dramatic erosion of traditional social structures and

practices (Giddens, 1991), leading to the individualisation of society. This transform-

ation has evoked the description of our age as ‘liquid’ (Bauman, 2000). Nevertheless,

interpretations of the nature, extent and effect of social change vary. For instance,

some studies of contemporary professionalism emphasise processes of democratisa-

tion (e.g. Li et al., 2008; Lunt, 2008), the end of deference,12 and a decline in exclu-

sionary strategies (Kuhlmann & Bourgeault, 2008). However Saks and Kuhlmann

(2006) describe the inclusion of ‘outsiders’ in the professions as ‘asymmetrical’ (see

too Ross & Carter, 2004), and others speak of a distortion of the professions’ moral

purpose and responsibility (Walzer, 1984) and the displacement of collectivist con-

ceptions of public values (Yeatman, 1996).13

Accounts of the impact of recent social change on self identity are similarly

polarised. Some authors emphasise its potentially liberatory effects: “biographies

become self-reflexive; socially prescribed biography is transformed into biography

that is self-produced and continues to be produced” (Beck, 1992, p. 135). In

Foucaultian accounts however, the processes of individualisation are not emancipa-

tory, but rather aspects of the shift towards ‘totalizing’ forms of power (Foucault,

1980). Pervasive surveillance (panopticism) is a core feature of this form of ‘govern-

mental rationality’14 which in the employment sphere underpins a web of managerial

techniques designed to produce an autonomous, entrepreneurial worker.

There is also disagreement about the extent to which these developments can

even be conceptualised as changes. Foucault also speaks of the multiplicity of histori-

cal processes and an ensemble of discourses, and Bourdieu understands our disposi-

tions, practices and the social spaces in which we enact these, to be never completed

amalgams of the past and present (see for example Bourdieu, 1984, p. 486). Thus

Bourdieusian empirical studies stress the continuing power of social categories to

determine people’s lives (for example McNay, 1999; Skeggs, 2004). Critical race

scholars similarly contest the notion that we have seen the end of traditional elite

based forms of inequality, viewing as ideological the claim that we now inhabit a

‘post-racial’ society (Miles & Brown, 1989).15 Rather, they argue, social categories

have been re-worked, shifting the focus onto cultural difference, with their power

effects masked through individualisation.16 The limited success of outsiders’ attempts

to break into elite labour markets, and in particular into their higher echelons

(described by Weberians as ‘usurpationary projects’ [Witz, 1992]), is exemplary.17

Resistance by powerful stakeholders to such projects tends to be enacted through

subtle processes and practices (such as ‘jokes’) and the citation of traditional dis-

courses which perpetuate ‘common sense’ understandings of, for instance, ‘appropri-

ate’ gender attributes and roles,18 sustaining neo-conservative ideologies.19 Thus

equal opportunity struggles to participate in a liberal polity and market tend to be

uneven and contradictory processes, leading to what Stuart Hall has termed a

“double taxonomy” (Hall, 1980, p. 14).

Both the academic and legal professional sectors are illustrative of this double

taxonomy. The penetration of Higher Education (HE) by a capitalist logic has

entailed the “mercantilization of knowledge” (Lyotard, 1984, p. 51) and managerialist

challenge to the autonomy and bureaucratic rationality of academia. As a result

COMMERCIALISATION, CONTINUITY AND CHANGE 75

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curricula have been modified to enhance employability/entrepreneurialism (see

Kirby, 2006), privileging the teaching of skills and the development of ‘appropriate’

values.20 Some commentators speak of the ‘corporate university’, and argue that

the ‘ideological’ capture of legal education (Backhouse, 2001) has generated a

narrow, impoverished understanding of law as technical expertise (Thornton, 2001;

2006)21 contributing to the reconfiguration of the profession’s ‘deep’ rationality

and rhetoric. Similarly, from the early 1990s onwards, numerous studies have docu-

mented the penetration by capitalism of its organisational structures and cultures22

and the resulting subordination of its moral claims to economic objectives (see, for

example, Flood, 1996; Cooper et al., 1996; Parker, 2004). More recently, Ackroyd

and Muzio have shown how managerialism and the process of financialization have

produced the structural reconfiguration of corporate law firms (2005, 2007; see too

Faulconbridge & Muzio, 2009, and Lee, 1992; 1999). The legal aid sector of the pro-

fession has also been commercialised (Sommerlad, 1995; 1999), the contract and the

audit reconfiguring the legal aid lawyer as a self-regulating, entrepreneurial subject

(Clarke & Newman, 1997).

Other studies stress the equalising effects of neo-liberalism’s23 erosion of tra-

ditional forms. The transformation of HE from the preserve of a small elite into a

mass system, has facilitated the individual social mobility projects described by

Beck, and forms part of a wider policy drive to open up access to the professions.24

The displacement of “mysterious particularistic decision-making selection pro-

cesses”25 by transparent, meritocratic recruitment and promotion processes (for

example Paik, 2000; http://www.hegesco.org) is a result of the incompatibility of

overt professional closure with the new market rationality. New Managerialism’s

de-mystification of professional practices is described by Muzio and Ackroyd as pro-

ducing a less elitist climate (2005; and see Davies, 1996), and DM assumes that

difference adds to the creativity of an organization. As a result not only has there

been a striking diversification of the demographic profile of the law student body

but the legal profession too can now be described as ‘permeable’.26 These changes

are reflected in a recent study of corporate law firms which narrates a story of

inclusion, as firms have moved “from understandings about recruitment grounded

in ‘family’ and ‘personal networks’ to those associated with certified educational

merit” (Galanter & Roberts, 2008, p. 154).

Management and work – HRM and the enterprising lawyer

As Galanter and Roberts suggest, the deployment of HRM throughout the corporate

legal sector has been central to the development of this commercial, ‘inclusive’ profes-

sionalism. Yet, again exemplifying that this is also a story of continuities, the array of

neo liberal regulatory technologies which are driving cultural change can be traced to

the early and mid twentieth century. The goal of F.W. Taylor’s scientific management

and the discipline of ‘technical-rational’ ‘psychotechnics’ (Giese, 1927), which con-

flated the conceptions of work aptitude and personality and entailed the mapping

and grading of employees, was the production of the ideal worker who could be

trained to conform to highly detailed, pre-structured patterns, thereby removing

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http://www.hegesco.org

the need for surveillance (Taylor, 1939). At the same time, the development of cul-

tural programmes designed to provide non-economic work incentives, such as the

National Socialist Macht durch Freude, or the paternalistic element of classical

Fordism, was aimed at harmonising employee and employer goals and producing

worker self-modification.

The legacy of these early cultural engineering programmes is discernible in the

Employee Resources (ER) movement of the late 1980s, and its successor HRM,

which similarly sought to produce the behaviours required to deliver strategic and cul-

tural change through the assessing, appraising, grading, tracking, sorting, sifting and

placing of individuals (Iles & Salaman, 1994). Commonly termed ‘assessment

centres’ (AC),27 this approach to recruitment refers not to a location but to a struc-

tured combination of assessment techniques based on an analysis of the skills (or com-

petencies) needed for a particular job (Iles, 1992; Carrick & Williams, 1999).

Concurrent with its emergence was the trend towards the ‘Japanisation’ of organis-

ations, characterised by cultures of consensus and co-operation, and associated

with ‘hyper-working’ and a dissolution of distinctions between work and private life

(Pongratz & Voss, 2003), and an increased emphasis on flexibility (Townley, 1989).

All of the above-mentioned features of this new mode of organizational power –

for instance the mapping and grading of employees, the emphasis on competences

and attributes including self-motivation, the ‘Japanisation’ of workplace culture –

pervade the articles and posters in the trade press and interviews with representa-

tives of large firms. Their ubiquity supports Foucaultian insights into how a

bundle of performance management techniques (termed performativity28) is trans-

forming the character of legal professional labour through the technology of assess-

ment, creating and shaping aspiring solicitors and driving cultural change at the

organizational level.

Alternatively, we might equally emphasise the role played by material forces in

producing this change – for instance Faulconbridge and Muzio focus on the role of

Profits per Equity Partner (PEP) league tables in introducing the logics of finance

capitalism into corporate law firms (2009). Or we might consider the part played

by normative isomorphic pressures in leading corporate law firms to mimic (and

term themselves) Professional Service Firms (PSF) (Di Maggio & Powell, 1983).

However, as I argue above, the most immediate source of these pressures is the

penetration of the corporate legal sector by representatives from HRM. Such inco-

mers (in Andrew Abbott’s terms, ‘avatars’) represent a primary means by which

‘ecologies’ become linked. Thus the managerialist discourses, techniques and per-

sonnel29 introduced by HRM are avatars which generate further change in the

character and underpinning logic of the field they have entered. However, as I

have already observed, HRM’s accounts of their practices, the assessment processes

they deploy, their publicity materials must all be contextualised by a recognition of

the micropolitics which structure social relations within firms: as Abbott warns, the

shape of fields and the character of individual actors are not fixed but rather

enacted in the process of social life and, in particular, of relating to other

actors.30 The value of empirical research is that it tends to reveal the resulting

contradictions.


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Methods

Where should we look to identify the impact of these social and occupational trans-

formations on the living culture of firms? The recruitment practices of major firms

provide a fertile ground for exploring the themes identified above, since it is during

processes of selection that firms begin to make the next generation of lawyers.

However, recruitment increasingly is instantiated long before there is the prospect

of paid work, and so the aim of the research project was to examine vacation place-

ments through a mixture of quantitative and qualitative work with both the supply

and demand side of the profession (this paper draws solely on the results of the quali-

tative work). The supply-side sample comprised two cohorts of Legal Practice Course

(LPC) students, drawn from an elite, regional redbrick and a post-1992 university.

The demand-side sample comprised partners and HR personnel drawn from a

random selection of 50 corporate firms with 26+ partners.

The qualitative work was conducted following the administration of question-

naires, and was recorded and then transcribed. Focus groups were held with a

sample of the LPC students (selected as far as possible for variations in terms of

gender, ethnicity and class). Interviews were conducted with 15 representatives

from a range of firms drawn from the original quantitative sample. Two were regional

firms, the rest (10) were all multinationals based in London, drawn from the ‘top

thirty’ (The Lawyer, 2010). The interviewees included training partners, directors

of graduate recruitment/HR and diversity officers. In order to distinguish between

respondents, identifiers are used: LF for law firm; P for partner, HR for HR person-

nel; DO for diversity officer; S for student; M or F for gender and W or BME for eth-

nicity. The quotations are also numbered; those taken from the law firm

representatives are identified by numbering the law firm. Promotional material sup-

plied by participating firms, the websites of a sample of top twenty firms and the

trade press (such as Lawyer2B), including posters to discussion forums are also

drawn upon.

The discussion of the data will focus on the following themes: the tension

between the requirement for high academic qualifications and the focus on compe-

tences, the prioritisation of commerciality, personality and other attributes (above

technical competence); the ethic of customer service; open-ended commitment and

‘passion’; personal transformation; the persistent significance of social categories.

Section 4: research findings and discussion

Assessment centres (ACs) and competencies

All the firms in this qualitative study used ACs and competency frameworks to select

vacation placement students and trainees. The logic of this approach is that it is

viewed as value free, and consequently as a diversity officer claimed, as representing

a transparent and accurate form of measurement (Braithwaite, 2010): “the bias has

been removed by the increasingly formal and structured recruitment . . . systems”

(LF3DOFW). This ‘scientificity’ of competencies and AC technology underpins

firms’ claims to have a “progressive and meritocratic culture . . . not shackled by

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history” (Pinsent Masons brochure, 2010). In this new discourse, discrimination is

not just anachronistic but also economically irrational. The business case further

posits diversity as producing ‘creativity and innovation’, and in the current highly

competitive legal market “anything that can help ensure . . . [firms] identify all possible

sources of talent is strategically important” ( Spokewoman from Freshfields

Bruckhaus Deringer, The Lawyer, 2011b). For the market- or profit-orientated law

firm culture, and the significance of PEP metrics, has resulted in firms requiring

ever higher fee generation by their employees. The need therefore is for lawyers

who are able to function as self-maximising productive units, with “individualized

responsibility for their own careers” (Boltanski & Chiapello, 2005, p. 166), but

whose interests and goals are entirely harmonized with those of the firm. The assess-

ment of candidates is therefore “wide ranging, holistic” (Garavan & Morley, 1997,

p. 160): “We’re looking at the whole person” (LF3HRFW). Sieben and Vinz speak

of the ‘grasp of the total person’ (2009) and this is exemplified by a partner’s

comment that his firm was seeking “people who want it . . . not a job or a career but

part of your life” (LF1PMW). Another said:

It’s the full package which we are looking for . . . communication skills,

motivation and drive, work ethic, ability to organise and plan; ability to

work in teams, to use one’s own initiative, to present coherently and suc-

cinctly, passion for law and for this firm, business savvy/commercial aware-

ness, and attention to detail. (LF1HRMW)

This extensive range of psychological and personal traits (which also includes having

the ‘right’ look (Nickson et al. 2003) can be encapsulated as the ability to give a

convincing performance of professionalism (Goffman, 1957):

We want the bright people but also the ‘x-factor’ because the law is changing

and you want more interest, people who can get on with clients, perform,

respond to the market. . . (LF6HRFW)

ACs encompass a range of forms of assessment, but in the law firms in this study, they

all began with online application forms which are sifted by the HRM graduate recruit-

ment team. The precise composition, timing and duration of subsequent techniques

varied but generally included interviews, simulated role-play exercises and written

tests, and observations by multiple assessors trained in the recording and evaluation

of behaviour (Iles, 1992). For vacation placement students, the placement itself rep-

resents an extended form of assessment during which they are generally set both indi-

vidual tasks and more exercises. During this time the students are subject to extensive

surveillance by both HRM and (sometimes covertly) by other members of the law firm

(Francis & Sommerlad, 2009; 2010): “In the programme itself, that’s when the weak-

nesses or strengths are revealed . . . it serves as a final assessment” (LF1HRMW).

Qualifications and diversity

Despite the stress on diversity and the fact that in management theory, competencies

should now shape selection processes, academic qualifications remain the large firms’


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first filter: “Academics would cause us to throw the application form away – they have to

have strong, consistent academics” (LF8HRMW). The interpretation of ‘strong aca-

demics’ remains grounded in traditional markers of merit. The focus on a small

number of elite universities described by one HRM officer was typical: “We target 10

universities: Oxford and Cambridge, Nottingham, Nottingham Law School, Bristol,

Durham, LSE, Kings, UCL, Manchester” (LF9HRFW). Implicit in the rationale for

this choice that “they are traditionally the better universities” (LF6HRFW) is, firstly,

the “inauthenticity” of post-1992 universities (Archer, 2007, p. 641),31 and, secondly,

the assumption that the results of socio-economic privilege are in fact natural gifts

(Morley, 2007): “They produce the better candidates” (LF9HRFW).

In addition to an upper-second degree from such universities, firms generally also

require the sort of pre-university qualifications which are proxies for attendance at a

public school; the following comments were representative: “Academics are a big

thing for us . . . strong academics and also consistent, so good A levels, in academically

rigorous subjects . . . possibly all A stars at GCSE” (LF13HRFW); “We are looking for

people who’ve scored at least a comfortable 2:1 . . . [and] we’re looking at four or five

As [at A level] in demanding subjects. Ones that we regard as not as testing are any

‘ology’ other than biology” LF11HRFW; and: “We wouldn’t consider them if they

had poor GCSEs and poor A levels . . . because we are looking for intellectuals, aca-

demic intelligence, so they have to have a consistently good academic record from

GCSE onwards” (LF12HRFW).

The logic of examining pre-university qualifications and also targeting such a

narrow range of universities was criticised in a discussion board on The Lawyer

website in April 2011.32 For instance, one lawyer commented:

I went to a state comprehensive, did a year at an ex-poly doing a science degree,

then moved to study law at a Russell group uni. I then had no problem getting a

TC at my 1st choice firm in London, but if I hadn’t made the decision to

change institutions, there is no chance I ever would have been able to get the

same TC. Clearly, if I had remained at the ex-poly I would still be the same

person, with the same ability and potential, but many avenues would have

been closed to me.

Some HRM interviewees displayed an embarrassed awareness of the contradiction

between their academic requirements and DM.33 The way in which the graduate

recruitment officer last cited negotiated this difficulty underlines that education is a

positional good, conferring a set of entitlements. She claimed that any deviation

from the firm’s high requirements (which included all As or Bs at GCSE level) was

impossible:

If I say because you went to a poor school, that’s why you got poor GCSEs . . .

I couldn’t [take them] even if they’d gone on to get a 1st or a 2:1 from say

Leeds Uni’ . . . [because that] would discriminate against kids from rich

schools. (LF12HRFW)

Yet the neo-Weberian interpretation of the profession’s knowledge claims as a market

strategy, designed to maintain boundaries, was supported by partners’ reflections on

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the ratcheting up of qualifications required for entry which meant that their qualifica-

tions would today be considered too low: “Our senior partner tells the world and his

wife that he wouldn’t get through our selection process now” (LF5HRFW).

Interviewees’ subsequent comments also testified to the displacement of the classical

model of professionalism as a domain of practice based on abstract knowledge

acquired through HE.34 For instance, one of the HRM personnel cited above

observed (in a whisper): “The thing is, actually law is more about common sense”

(LF11HRFW). Others, having stressed the over-riding importance of good academic

credentials went on to claim that in practice their significance was eclipsed by the need

for other qualities; the following comments are representative:

They’ll need a minimum of 300 UCAS points at A level . . . but in fact aca-

demic credentials aren’t our over-riding concern – the job isn’t just about

law, it’s also about having commercial sense, good interpersonal skills,

being dynamic. (LF2PMBME)

We want personable geniuses, you do not want a genius necessarily, every-

body has a place, but actually, if you’re going to come up with a bright

idea you’ve then got to sell that bright idea, you’ve got to be able to go to

the clients and communicate. (LF1PFW)

You can be too bright, certainly for what we do, you can be too bright . . .

because at the end of the day it’s a commercial environment where being

bright is not necessarily going to get the deal done. (LF1PMW)

The trade press similarly indicated that in practice academic qualifications are now

less significant than other attributes (Morley et al., 2006, p. 74) and particularly com-

mercial skills; for instance:

Law firms’ attitudes to their potential recruits are changing. It is not just

about getting the grades any more. We need to start living an active univer-

sity life and developing those commercial skills early on. (Alam, 2008, p. 20)

It’s no longer just about being a good legal adviser and having a good under-

standing of the client’s business – now you need to be part business consult-

ant and part legal adviser. (graduate recruitment partner of Simmons &

Simmons cited in Manning, 2010)35

The contradiction between the preference for candidates with elite academic quali-

fications and the actual requirements of entrepreneurial professionalism indicates

how, as the profession has expanded and diversified, closure is effected by differen-

tiating prospective employees through a focus on culture (Granovetter, 1985). On

the one hand this can be explained by the continuing importance of tradition in

closure practices (Rolfe & Anderson, 2003, p. 332). However it also underlines

the commercial function served by elite qualifications. The acquisition of certain

forms of cultural capital reveals the personal suitability and compatibility (similarity)

of the employee to the firm (Collier, 2005, p. 75).36 Thus, while applicants from

lower social class backgrounds represent a risk to a firm’s brand, their class


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viewed by graduate recruitment teams as potentially impeding the building of trust

with the client (Ashley, 2010a), an Oxbridge degree and public school education

represents cultural capital which is a valuable commodity in the battle for image

and reputation management (Empson, 2001, p. 856; Hanlon, 2004; Sommerlad

et al., 2010, pp. 32–3, 43).

Attitudinal, communication and relational skills: individualism

The entrepreneurial, self-regulating worker, termed by Pongratz and Voss (2003) the

‘entreployee’, is evoked in firms’ promotional material and assessment processes

through a focus on personal achievements, choice and individual enterprise. So, in

addition to cognitive competencies and technical-methodical knowledge, individual

coping abilities are also sought: “We’re looking for creative, outgoing, self-motivated

graduates to join our team” (Pinsent Masons brochure).

This approach is integral to HRM which is premised on a view of employees as

resources, components of corporate strategy re-shaped by the logics of finance capital-

ism. Application forms for vacation placements are therefore designed to enable the

applicant to display attributes, values and behaviours37 ‘such as resourcefulness, self

discipline, openness to risk and change’ (Cameron, 2000, p. 7), since “in a professional

services firm, where initiative and self-drive, motivation are really important factors, I

think you make of it what you so choose to make of it”. (LF2PMBME). As a result

HRM “look for people who are willing to use initiative and go out there and do different

things . . . They do have to show that they have dealt with something using a bit of

creativity, bit of initiative, or demonstrate problem-solving skills” (LF13HRFW).

Applicants are therefore asked “about work experience, hobbies and interests”

(LF13HRFW), for, as another HRM interviewee explained, “the demands on

people here are pretty extreme and if you’re not someone who is highly organized or

highly driven . . . you probably won’t last long”(LF11HRFW). Evidence of having

held positions of responsibility are sought too, as these “suggest you’re a dynamic

person who’s going to come in here, win clients and drive the business forward . . .

show you’re not a plodder, who won’t sit and wait for things to come to them”

(LF2PMBME).

The ‘robustness and resilience which an individual needs in order to act as an

autonomous, self-sustaining subject is tested by the following sorts of questions:

“We ask about a time when [the applicant has] had a negative setback and also on a

decision they might with hindsight change, and reasons” (LF12HRFW); and “we

ask them . . . to detail a setback they’ve had in their life and how they’ve dealt with

it” (LF4HRMW); and “we ask them about a challenge they’ve faced and how

they’ve responded to it” (LF13HRFW). These investigations can be read both as fun-

damental to the process of responsibilitizing new lawyers, and also as exemplifications

of the requirement that we render visible aspects of ourselves and our lives which were

once regarded as private, and engage in self evaluation in order that we ultimately

reconfigure ourselves.38 In other words, that we engage in what Giddens terms self

reflexivity (1991) or, to paraphrase Strathern, demonstrate (and exist in) a state of

perpetual self awareness (1997).

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This confessional dimension of HRM techniques (Kirton & Healy, 2009; Rees &

Garnsey, 2003) is underlined by the following advice: “I say to students ‘know your-

self inside out, who you are’; it’s spelling that out on the form” (LF2HRMW).

Narrating these ‘confessions’ therefore requires “skills of presentation and inflation”

(Ball, 2008, p. 56), a fact clearly recognised by one student who said:

With these forms . . . it seems like they can only be wanting to find out how

well you can fill them in . . . so you find that the difference between yourself

and someone else may just be the presentation of your answer – because I’m

pretty standard in terms of grades, but I’ve got the knack of these forms – my

mum works in career guidance. (S1MW)

However, even if a student has learned to ‘display her subjectivity’ (Skeggs, 2005) appro-

priately, the value of her story will also depend on whether it conforms to the underpin-

ning assumptions of the competency frameworks. Clearly, the applicant who is

“typically over achieving, has climbed Mount Kilmanjaro, worked in an orphanage in

Peru and so on” (LF10HRFW) is likely to find this task less problematic than those

whose backgrounds have resulted in more prosaic biographies: “the thing is people

put down things like doing Duke of Edinburgh, being a school prefect, but the fact is

we’re looking for things that really stand out” LF12HRFW. To compensate for this

mundanity, the quality of the narratives produced by ‘outsiders’ must be literally

heroic: “They need to go further and say ‘these are the hurdles I’ve had to overcome’”

(LF2HRFW). As a result, some of the students who had no exciting experiences to

confess stated that “sometimes you just find yourself making things up” (S2MBME).

Team working, involvement and suitability

The confessional aspect of ACs may also be interpreted as evidence that the ideal

employee, in addition to having the capacity to act as an autonomous (responsibi-

litized) worker,39 must demonstrate a willingness to subject herself entirely to the

goals of the organization (Miller & Rose, 1990). For, even whilst the professional

is constructed as an individual entrepreneur, the firm remains, and continues to

represent itself as, an entity, a ‘team’, and its profitability is of course dependent

on individual reputations, client followings, and fees. The re-engineering of corpor-

ate law firms as a result of their capitalisation and the consequent concern with

shareholder value entails the ratcheting up of the level of individual employees’

fees:40

This sounds incredibly harsh, but it’s in the interests of the firms to utilise,

maximise, the hours that are being delivered, because in a professional ser-

vices firm you’re not making widgets, your product is the hours they charge

out.(LF2PMBME)

Firms’ brochures therefore make clear that the capacity for extreme hard work,

entrepreneurialism and resilience must be exemplified through teamwork as well as

individual achievement:41

We’re looking for a blend of solo and team activities. (LF5HRFW)


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Part of our firm’s values is all about team working . . . we therefore ask about

extra-curricular activities. Not just saying they do solitary pursuits.

(LF6HRFW)

Evidently, embedded in this stress on team working is the need for the individual to

show a commitment to the team/ firm:

We’re really looking for people who are happy to get involved – the more

involved they are, the stronger their report will be. (LF4HRMW)

Recognising this, one student said of an invitation to a pro bono exercise (an evening visit

to a law centre): “I was happy to go, but I didn’t think there was really any choice”

(S4FW). Her judgment is supported by the further wordsof the HRMofficer justquoted:

It’s about finding people who want to be part of the firm and who show that

they want to be part of it, and all its activities, including the extra-curricular

ones. (LF4HRMW)

But as the word ‘show’ reveals, mere physical involvement is not enough. For the cul-

tural economy of late capitalism is characterised by the assimilation of work and play

(Wittel, 2001, p. 71); students must therefore be able to give an effective display of

emotional involvement, a demonstration of ‘pleasure in work’ (Donzelot, 1991), as

the subsequent comments of this Graduate Recruitment officer indicate:

We’re looking for people who get excited about what we do. (LF4HRMW;

original emphasis)

This stress on a readiness to be involved, demonstrated through affective displays of

excitement and even passion, pervades interviewees’ accounts:42

We look for people who are passionate about what they do. (LF3HRFW)

We mark for positive behaviours in the test; we want people who are passio-

nate about tax. (LF7HRFW)

Showing a passion for the firm and making your application stand out are

absolutely crucial. (LF11HRFW)

The productive power of HRM practices in constituting the subjectivity of the entre-

preneurial lawyer is bolstered by the re-organisation of space in large law firms, so

that, to paraphrase Foucault, s/he becomes a subject that has to be seen (1979,

p. 187). In the following quotation one firm’s move to open plan offices is attributed

firstly to the need to build a ‘teamwork culture’, but is then configured as pleasurable

while also facilitating surveillance:

Everyone seems to like it. For instance in London we recently moved into a

nice, exciting new office and even the partners’ offices are now part of the

open plan space . . . that culture, that organisation of space means we can

see how they fit in, how they put themselves to work. (LF4HRMW)

I return to this issue of surveillance below.

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Autonomy, commitment, flexibility – corporation man and woman – Goffman’s total

institution

The nexus of ‘compulsory individualism’ (Strathern, 1992) and ‘team work’ tested in

application forms is expressed in the links between autonomy, commitment, flexibility

and enterprise. The responsibility to develop a client base and meet targets is cascaded

down to each employee, and has generally begun by the end of the training contract.

Corporate identity is thereby individualised through a reflective process in which the

needs of the law firm are “emphasised within individual thought as a means for achiev-

ing career success” (Cremin, 2003, p. 118). As a result, the aspiring vacation place-

ment student must demonstrate the ability to engage in competitive self evaluation

that, Du Gay argues, refracts enterprise as a project of personal fulfilment,43 for, as

aspiring lawyers are warned,

a winning mentality . . . depends on playing a role in business development,

both by way of contributing to the financial wellbeing of your firm and build-

ing the sustainability of your own career. (Harvey, 2010, p. 25)

This advice from The Lawyer2B encapsulates the insight that the successful career

now depends on being creative and innovative, nurturing one’s own ‘employability’

through networking and entrepreneurial skills (Boltanski & Chiapello, 2005), but at

the same time “sharing in our business, what our strategy might be, what our priorities

are, the challenges we’re facing” (LF2HRFW).

Thus a key characteristic of flexible capitalism (Harvey, 1989; Sennett, 1999),

which requires the capacity to respond immediately to volatile business environments

(Sieben & Vinz, 2009), is, of course, flexibility and the demand for open-ended com-

mitment. As a result, a recurrent comment was “the need for flexibility”

(LF9HRFW); “we are looking for people who are flexible . . . people who are willing

to jump on a plane at a moment’s notice” (LF1PFW). The assessment process also

makes it clear that the PSF/individual practitioner must always be available to serve

the client, and that the applicant should therefore understand “how your client

might phone you up at 2 o’clock on a Saturday afternoon in the middle of lunch”

(LF1PFW), because, as another said, s/he needs to consider whether it “is (just) a

job or a career . . . part of your life” (LF12HRFW). The capacity of solicitors to work

in this way is made possible by the provision of an extensive range of services (including

gyms and laundrettes) which, together with the all-consuming physical and psychologi-

cal demands of these organisations, evokes Goffman’s description of a ‘total insti-

tution’: “a place of residence and work where a large number of like situated

individuals cut off from wider society for an appreciable period of time together lead

an enclosed formally administered round of life” (1968, p. 11). The willingness of

one vacation placement student to engage in this enclosed way of life was recently

tested when she was asked to work until 5 a.m.44

The customer service ethic and commercial awareness

This subservience to the client (Du Gay, 1996, p. 139), and its key role in determining

the character of professional labour, is both signalled by and accomplished in the


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discursive switch from law practice to PSF. The de-centring of law which has

accompanied the marketisation of the profession and its loss of autonomy, resulting

in an increasing asymmetry of power between lawyers and many of their clients

(Hanlon, 1998), was remarked upon by several partners; for instance:45

When we started as lawyers . . . lawyers were on a pedestal. Now we’re a

service industry and that switch . . . means we’ve had to become an awful

lot more savvy about what our clients do, what our clients think . . . so it’s

the commerciality that we’re looking for. (LF1PFW)

Consequently, the customer-service ethic is also the main lever in the harmonization

of employee interests with those of the employer, rationalising and legitimating a suite

of demands on labour including the sort of open ended commitment discussed above

and exemplified in the following comments:

People here take the work and the client very seriously and absolutely kill

themselves to deliver a good service. (LF11HRFW)

Lawyers have to work through some of the most horrific personal issues, but

they have to because it’s client driven. (LF5HRFW)

It is the customer service ethic too which has generated the requirement that the soli-

citor possess not only technical knowledge and skills, but also, as Nickson et al. have

argued, the capacity to engage in aesthetic labour:

Employers . . . mobilise, develop and commodify these capacities through

processes of recruitment, selection and training, transforming them into

‘competences’ and ‘skills’ which are then geared towards producing a

‘style’ of service encounter deliberately intended to appeal to the senses of

customers . . . ‘looking good’ or ‘sounding right’ are the most overt manifes-

tations of aesthetic labour . . . employers are seeking employees who can

portray the firm’s image through their work. (Nickson et al., 2003,

pp. 185–186; and see Alvesson, 2001).

Hence the explanation that

bearing/ presentation is really important, I cannot stress it enough . . . Before

they get here we send them an email telling them ‘this is our dress code’.

[Wwe] want people to look smart, be clean shaven, wear black suits, not

brown suits. It’s so important. (LF9HRFW)

And a male partner stated that his firm assesses: “even . . . the way they dress, the way

they conduct themselves” (LF2PMBME). Clearly this emphasis on image legitimises

the preference for candidates who resemble the firm type and who can gain client trust

as a result of their embodied cultural capital (Ashley & Empson, 2011).

The absolute prioritisation of client service also requires the worker to be crea-

tive, that is entrepreneurial, in meeting client needs, and the capacity to bring in

clients and generate business for the firms is increasingly replacing seniority and tech-

nical competence as the main avenue for career progression (Hanlon, 1998; Bolton &

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Muzio, 2007, p. 56). Thus, as some of the comments cited earlier indicate, the cus-

tomer-service ethic underpins the need for a candidate to show commerciality;46

interviewees made it clear that this is now the prime selection criterion; for example:

The commercial element is something we look for more and more in our

interviews, and our role as lawyers in the commercial environment has

changed as well. (LF1 PMW)

And this was corroborated by the trade press:

Law firms expect their lawyers to develop business as well as process it and

this has never been more true than before. (Harvey, 2010, p. 25)

As a result, a recent Legal Week Benchmarker Survey found that having commercial

awareness was ranked first by partners and associates,47 and one promotional bro-

chure stated that if you became a lawyer with their firm

you won’t simply be immersing yourself in the intricacies of law. Instead

you’re acting as a business partner to our clients, using your legal expertise,

market knowledge and commercial vision to solve problems and deliver

innovative, insightful and practical solutions. (Pinsent Masons brochure)

The Linklaters law firm profile similarly described their culture as one “of innovation,

teamwork and entrepreneurship”, and their training and development programme as.

“bringing substantial investment, an innovative approach, an entrepreneurial focus . . .

to legal education” (Linklaters Firm Profile, Education & Training section of Lawyers

2B, Winter Issue).

This constitution of the corporate law firm as a business, and the displacement of

professional identity by an entrepreneurial identity (Rose, 1996; Cooper et al., 1996;

Du Gay, 2004) is encapsulated in the following comments by recruitment partners

and HRM personnel:

The key things on the application form are commercial awareness . . . and on

the telephone interviews we then ask further about their commercial aware-

ness. (LF13HRFW)

The partners are looking for people who are more entrepreneurial, they’ll be

the people who can go out there and win the business, particularly in the

current economic environment it’s even more important. (LF9HRFW)

The majority of assessment exercises are designed to reveal the extent to

which an applicant has a business sense and is enterprising. So, most assess-

ment days have a ‘commercial exercise’. (LF6HRFW)

The following account by one HRM officer made the change in identity particularly

explicit:

We look for a certain skills set, but also quite naturally innovative, ambitious,

entrepreneurial people . . . basically it’s a question of, can lawyers be entre-

preneurs? And non-law students, that really peaked their interest and they


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thought ‘I hadn’t thought about law that way, that’s really appealing’. And

initially law students thought ‘no, lawyers can’t be entrepreneurs’, and

there are a lot of law students at the moment who are really enjoying their

time here finding that actually, yes, lawyers are very entrepreneurial.

(LF2HRFW)

Transforming dispositions and surveillance

As the comments quoted above indicate, firms do not expect students to demonstrate

all the desired attributes, but rather the capacity to acquire them. For, as we have dis-

cussed above, HRM is concerned with cultural change. Consequently, one of the

primary purposes of ACs is to identify potential (Iles, 1992):

Our tests are designed to see if they are ‘learning people’. (LF4HRWM)

We’re not looking for the finished article – but for the potential.

(LF1HRWM).

The second objective is to construct a new identity (Du Gay, 1997); the following

comment from a Pinsent Masons’ brochure is illustrative: “Our intention is to turn

you into a business professional as well as a lawyer”.

This transformative aspect of HRM practice finds its corollary in the emphasis on

continual training and assessment,48 and was illustrated by the following description

by a white female partner of her advice to AC candidates:

I say we can take you from academia to being a practical, commercial lawyer,

so don’t worry about that, we’ll take you through that, but what we want you

to be is open minded about moving from academia to delivering. (LF1PWF)

She went on to explain how a student’s willingness to be ‘constituted’ as a practical,

entrepreneurial lawyer was assessed throughout the placement:

Can we take them on that transition? Part of that is their willingness to under-

stand there is a transition. And that will be part of their assessment. (LF1PWF)

As a result respondents frequently underlined the requirement that students “show

enthusiasm – it’s so important” (LF13HRFW).

This articulation of the process of transition as voluntaristic corresponds with the

depiction of the self as reflexive, agentic, able to create her own biography (Beck,

1992, p. 135). Others however have commented on the obligatory aspect of such iden-

tity work,49 emphasising its function and role in creating the work force required by

‘flexible capitalism’ (Sennett, 1999) (which, as we noted above, is thus always

willing to serve the customer). For Goffman, the corollary of ‘making workers’ is

the need for subjects to strip out their previous selves/dispositions, a process which

can entail mortification,50 before the new self may be ‘owned’. The following accounts

by students are illustrative:

The first thing partners do when you’re introduced to them is ask which uni-

versity you went to . . . [I think] they do it to judge you . . . the partner at — he

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asked me and I said — University, and he asked if I was one of the drunken

youths falling asleep on — Street at 2 a.m. the week before . . . I was embar-

rassed. (S2MBME)

Another student narrated how he had been given a pointless task by a trainee:

It was [his] sheer unfriendliness . . . he seemed to not care he was giving me

an awful task . . . and then I must have had a mild look of displeasure because

he then gave me a ticking off and then my own trainee told me off . . . it was a

hierarchy thing, putting me in my place. (S1MW)

The process of transformation is most clearly revealed in the following description by

an HRM officer of her interaction with vacation placement students:

I very clearly say to the group that we consider the first day of our vacation

placement scheme as the first day of their professional development. And I

say ‘in four weeks time when it comes to your last day, I’m going to ask you

the question “do you feel, or how much do you feel, that you’ve changed as a

person in terms of your skills and self awareness and your knowledge about

yourself over four weeks?”’ . . . and certainly from our last scheme this

summer, it was fantastic to see . . . it’s the way we’ve designed our vacation

schemes – there is a very heavy emphasis on professional development . . .

and I’ve seen a real shift in the hunger that students have for development

. . . they’re just, more than ever, sponges . . . people really engaged . . . were

staggered with themselves by the end of the four weeks . . . they said ‘Oh

my God I’ve really changed’. (LF2HRFW)

The student’s potential for change (into an entrepreneur) is then assessed through

regular observation of their everyday behaviour:

They’ve had this opportunity, but have they engaged in the conversations . . .

do they seem to have made an effort? . . . it all gets back to us. We don’t want

to sound ‘Big Brother-ish’ – but they are assessed. (LF13HRFW)

The process of surveillance and assessment also takes place in the sorts of exercises

described below:

We have introduced an all-day business game which is revolutionary . . . it’s a

fantastic thing for us to do. We get, in London for instance, about 90 people in

for the whole day, and they work on a table of about 8 or 9 people with only an

assessor on the table. Although because the game is so fast-moving they

forget all about the assessor within half an hour. And they run a business

for a day. There’s a fantastic company who help us do that. And we introduced

it as a result of, the same people doing a two-day game at one of our HR con-

ferences, and everybody from HR across the globe came to one location . . . I

actually was a roving reporter for the day. I saw traits in people who I’d worked

with for ten years that I’d never seen. And I spoke to the organiser and I said

‘this would be fantastic from a recruitment point of view, because there’s no

hiding place’. Anybody can be somebody for 45 minutes, because you can


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sit there and be incredibly un-you. But a sort of drive and competitive nature

came out, you were against each other, you were trying to win the game. And

people who listened well, but also people who interrupted people, so there

were team-type skills you could see. So we discussed whether or not it

could be adapted for us, and it could be, and so the last three years we’ve

used it, to select our summer students . . . what you do is you spot those

with a competitively driven nature, but too much of that is not conducive to

a team environment. (LF5HRFW)

This surveillance of vacation students’ potential is not confined to trained observers

during official work time, but also undertaken by trainees of the students’ negotiation

of the informal spaces: “They have a buddy in week one and two – a trainee – and we

get feedback from them. We say ‘would you recommend this person to work at — ?’

(LF9HRFW).

Some of this surveillance is clearly covert, as the following two comments

illustrate:

There’s a partners’dinner, which is just for the students and graduate recruit-

ment partners; we try to ensure that there is one partner to every two students.

The aim of this is to give the students a good sense of what the culture of the

firm is like. It is made very clear that the event is not assessed – though the

partners might give us feedback informally. (LF3HRFW)

Sometimes they don’t realise that when they’re out socially with the trainees,

the trainees will have a view on people who are about to possibly enter the

firm, and will pass comment back, to say: ‘I think you should know this’.

So although they believe they’re all in this young person band, they don’t

realise the trainees are actually reporting to the firm. (LF5HRFW)

However, as I have discussed above, the objective of HRM techniques is that the

student should engage in self surveillance, thereby interiorising the new order, and

thus willingly transforming herself. The presentation of this exercise in transformation

into a ‘total person’ (through the sorts of ‘games’ described above) as pleasurable is

reminiscent of The Apprentice. This parallel with television games is conjured up by

the following partner’s comments:

I think [students] are increasingly savvy now in that they know the role of the

week or two’s placement in our recruitment policy, that even from the way

they dress, or the way they conduct themselves, the way they feel they

need to stand out in a group environment. It’s a bit like Big Brother . . . If

nothing, our job is a bit of a game anyway. To some extent, if you can play

the game that’s actually quite good. (LF1HRMW)

The new legal entrepreneurialism: a meritocratic, category neutral market?

As I have observed above, DM is an integral part of ACs both because their objectivity

and consequent capacity to recruit the ‘best’ people is fundamental to their legitimacy,

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and also because difference is seen as serving law firms’ economic goals. In the words

of one legal recruiter: “Diversity. It’s more than just a buzzword. We believe it’s crucial

to business” (Michael Page Legal). Endorsement of DM is thus widespread in the cor-

porate legal sector (see for example The Lawyer Diversity Report, 2010). However its

adoption as a strategy was, as Braithwaite (2008) shows, the result of pressures

both from external sources (such as clients) and also outsider groups (such as the

Black Solicitors’ Network). The statistical representations of the corporate sector

(and the profession generally) reveal the marginal impact DM has had on the

white, middle class male hegemony.51 It is perhaps unsurprising therefore that

posters to a discussion forum on The Lawyer website in response to a Magic Circle

social mobility initiative were overwhelmingly cynical.52 The following comment

echoes the description above of the vacation scheme as a game:

Recruitment is more of a game rather than a ‘merit-based’ process. It is a

simple matter of fact that by attending better schools and universities

you’re exposed to the opportunities to make you better at playing it (CV

writing, debating, support etc.). (Anonymous, 2011a)

Others suggested that the problem is not simply that the presentational skills a privi-

leged education produces are misrecognised as representing merit (Morley, 2007).

Instead their suggestion that there continues to be overt resistance to diversification

calls our attention to the significance of the micropolitics of law firms:

I’m from a working class background and in my final year studying law at a

Russell Group University. I went for an interview at a magic circle firm for a

vac scheme. They knew of my background because I had to justify my GCSE

results (B & C’s) because I went to a rubbish state school. The partner asked

many offensive, prejudiced questions. How can this still be happening?

Another interpreted the persistent gendered, raced and classed segmentation of the

profession as a closure practice:

I don’t understand why people are so surprised by this. At least the Magic

circle firms are clear about their intentions. People from less privileged back-

grounds/ethnic minorities should remain in support roles and the lawyer

roles should be reserved for the white middle classes. (Anonymous, 2011a)

This resistance to DM was also revealed by HRM acknowledgement that social con-

tacts remained highly important within the profession;53 for instance, the HRM

officer of a Magic Circle firm volunteered that they still had

a lot of informally arranged placements. So for example, my daughter came

here for a week. And many of her friends who were interested in becoming

lawyers used their contacts to get work experience in appropriate law firms

or barristers’ chambers. That’s something that I think has increased over

the last ten years or so. Is it useful? I think it’s an indication. The reality

though I think is that although some (whether the parents, child or

school) work quite hard to actually do it properly, there’s a fair degree of


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‘my daddy knows so and so and he can get you in somewhere’. If it’s that

kind of arrangement (in so far as we can pull that out) then it’s probably

not a very good indication that somebody is thinking very carefully about

the profession. The one I should say, is ‘what does your daddy do and

how did you get the placement’, but they usually offer the explanation – ‘I

was at school, the school said I needed experience, my father’s lawyer

helped’. We also find that quite a lot of clients will say ‘my son, my daughter,

my contact is interested in becoming a lawyer can they come and sit with you

Mr Partner’. And that kind of informal arrangement often happens. Does

that lead to jobs? Not necessarily. If they are good enough, they will come

through the assessment process. But I think there are a few of those instances

within all firms. I’m not saying that we would want to stop this

necessarily.(LF8HRMW)

Some HRM officers also reported that some older partners did not ‘necessarily like

DM’, and some respondents recounted examples of ‘politically incorrect’ behaviour:

for instance one student gave the following account:

At — [name of large corporate firm] this month I went to a trainee board

where there was a speech thanking the departing grad manager. His

closing words were ‘very well done on the new intake, a lot of the girls are

looking very nice’. (S2MBME)

Another recounted how he had found the culture of one firm (which has been

described as having one of the worst records of female partner numbers among the

top thirty firms (The Lawyer, 2010) as extremely sexist:

When I was doing my vacation scheme at — [name of large corporate firm] I

spoke to one girl who said she enjoyed it despite the sexist atmosphere. It

sounded like a comic strip with wolf whistles, slaps on the bum and all the

rest of it. It didn’t seem real. (S1MW)

Other experiences suggested that class, and the cultural signs of class, are particularly

likely to evoke contempt. The following accounts from a student focus group are

illustrative of how daily interactions produce and re-produce the classed nature of

legal professionalism:

They wanted to know if our parents were lawyers or worked in the City; my

mother is a single mother, a cleaner. (S2MBME)

Some people set out to make you feel uncomfortable. (S1FW)

When I did my first two-day placement everyone I met were either Oxbridge

of London university. (S1MW)

You can definitely see those sorts of people. Don’t get me wrong I’ve made

some great friends on vacation schemes but there are people that were in a

different category. I remember when I did my two-day everyone I met were

either Oxbridge of a university of London University, and we were sat in

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the canteen on the first day having a discussion about our modules. There

as a guy who I’d seen before and was very popular and he was asking

people about their modules and I was very conscious he was ignoring

me every time he was going round, he was saying ‘you do this at

Oxford, we do this at UCL’ and it was very obvious I was being

ignored. Someone said so afterwards. I think he felt I just went to a

lesser university . . . I always try to talk to people, there was no other

reason. (S2MBME)

The significance of class and also of presentational skills/performance, was endorsed

by the following remarks by an HRM officer:

We look at how you present yourself – for example, we sit the students down

with a group of partners and they have a formal lunch . . . a three-course

meal . . . you can tell that some of the students, obviously they look at all

the cutlery and you can easily see the background. (LF1HRMW)

Other respondents and posters emphasised the role of unconscious bias in frustrating

DM. For instance a poster wrote:

Such schemes will not help diversify the legal profession. It is an unfortunate

truth but most partners at City law firms will subconsciously make judg-

ments about candidates at interview stage. Whilst such schemes are well

intentioned, the inherent views and experiences of such lawyers are probably

the most challenging aspect of social mobility within the legal profession.

This last view was endorsed by another poster who suggested that

[the problem] almost requires an overhaul of interviewer’s personal and

often unconscious assumptions as to what makes a candidate a ‘good fit’.

(Anonymous, 2011b)

These comments are echoed by the account by another poster, again in response to

The Lawyer 2B Social Mobility Moot:

I went to a comprehensive, then to an ex-poly and managed to get a training

contract, but it wasn’t so much the grades that clinched it (obviously that got

me through the door and into the interview), but working out ways for the

interviewers to see that I was ‘one of them’, even though I didn’t have the

‘right’ answers to some of the most innocuous questions. For example,

I can’t ski or ride a horse, my parents didn’t go to university and have

manual jobs, I could never afford to go travelling as no one gave me a

lump sum and I always had summer jobs etc.

It’s difficult to explain as it is such a subtle thing, but I soon learnt that I had

to come up with something (usually by diverting the topic slightly), other-

wise all the perfectly normal, innocuous questions I would be asked by inter-

viewers would result in me saying, no, I don’t ski, no, my dad works in a

factory, no, I haven’t been lucky enough to go travelling . . . which would


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mean the interview grinding to halt without me being able to positively

demonstrate why I should get a training contract.

There was nothing malicious about it, and they were just asking what they

had clearly always asked in interviews, but unconsciously, these questions

would have led a candidate like me to end up on the reject pile, when

I was exactly what they were looking for to improve their diversity statistics.

(Anonymous, 2011c)

The significance of this ‘unconscious bias’ and the fallacy of claims to make value free

assessment is supported by an extensive literature on the socialised character of

judgement (Wolf, 1995). The interpretation of human behaviour cannot therefore

be objective, nor can it be simply reduced to tick box measurement. Most of the beha-

viours tested at assessment days and during the vacation placement itself are context

specific – for instance they depend on knowing how to mobilise the sociality that

anchors legal culture, and, as the above account reveals, how to give a convincing

performance of an aspiring trainee according to the traditions/habitus of the pro-

fession.54 Thus judgement is necessarily normative, made on the basis of the mean-

ingfulness of an individual’s attributes and behaviours within the existing culture of

the law firm, and perceptions of merit read back into other factors such as the univer-

sity attended, according to existing ‘conventions of warrant’ (Gergen, 1989). For this

social construction of skill and its entanglement with attributes and appearance55

entails a pre-conception of the ideal worker. This is illustrated by the comments by

several HR officers (in different firms) that they looked at successful lawyers in

their firms in order both to determine which skills were needed and how they

should be performed; for instance:

It’s a question of what are the skills that we’re trying to replicate in new

recruits that we see in our high performing lawyers here? (LF2HR)

The trainees know what they’re looking for because they are a trainee and

have competed against similar people. (LF9HRFW).

[The trainees] are their employer, the firm’s their employer, and as such they

are keen to make sure that those coming in, the next generation, are the right

people. (LF5HRFW)

The question is ‘can they be part of this, [it’s] the cultural fit piece . . . can we

see them working at – – [name of Magic Circle firm]. (LF10HRFW)

Further, as I have already suggested, the interpretive job of evaluation is also framed

by older discourses of, for instance, gender, race and class. For instance, as Prugl

argues, while the “contemporary apparatus of gender has loosened the link between

women and the imperative of reproduction”, it is not severed (2011, pp. 78–79).

Thus Thornton has argued that merit is masculinised, invalidating women’s capacity

to be ‘authoritative knowers’ (2007). Consequently, the possibility of an applicant

being viewed as meritorious will turn on whether their claim to a professional identity

is capable of being recognised, and research suggests that in practice recruitment

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processes are characterised by heuristic biases in favour of the familiar and the similar

(Devine, 1989; Falkenberg, 1990; Chen & Bargh, 1997) and deeply embedded,

hidden cultural assumptions about what constitutes success and effectiveness. One

respondent had recognised this problem:

I’ve looked back over the last 10 years and there does seem to be an unfor-

tunate proportion of BME candidates who are not kept on . . . you look at the

statistics and you think ‘hmm’. (LF11HRFW)

By contrast, the HR respondent from a regional firm was surprised when a student

pointed out to her that

there aren’t many coloured faces here. And I can understand why she thinks

that because there aren’t many coloured faces here, but we don’t get many

coloured applicants. And that made me question whether it was me [or]

our procedures . . . so that’s an issue. (LF6HRFW)

Conclusion

This paper has discussed the current character of legal professionalism from two per-

spectives. Firstly, it has contributed to work on the new mode of organizational power

and moral discourse of entrepreneurialism which has re-shaped the corporate legal

sector by drawing on research into what the profession now looks for in its new

recruits. The focus has been on how HRM practices are designed to produce a

legal entrepreneur, who is gender, race and class neutral – in theory, the only charac-

teristic of importance being the ability to generate business and meet targets. DM

therefore forms an integral part of the neo-liberal technologies which are producing

this transformation. Secondly, the paper has argued that the data (and of course

other evidence such as statistical surveys of the profession) indicate that in practice,

underpinning the changes which have taken place, there remain significant continu-

ities in terms of the allocation of jobs and rewards.

This argument is rooted in a view of history as a heterogenous process of many

determinations: as Abbott argues, futures, pasts and presents are interwoven; the

present is therefore always composed of several temporalities. In practice therefore

the character of the contemporary corporate legal sector is a complex mix of the

old and the new. The discourses of meritocracy and diversity which underpin HRM

practices have generated claims by outsiders to recognition, thereby threatening

both the symbolic power and material status of existing elites, producing struggles

around authorisation. However the processes of professional social formation have

long been rooted in lawyers’ “consciousness of their prior development” (Lewis,

1989, p. 58). They are also moulded by the resilience of the profession’s ‘clan like

culture’ (Burrage, 1996; Sommerlad & Sanderson, 1998). Both these factors have

built exclusion and homology into the fabric of the profession (Hanlon, 2004). Or

we may argue that, following Bourdieu, the law firm is a competitive arena in which

stakeholders struggle for power and to maintain power, and in which the cultural

capital these players bring to bear is key to victory.


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As a result, the threat posed to traditional authority by outsiders’ claims to rec-

ognition is being countered by acts of active resistance including the by-passing of

formal HRM DM structures. It is also countered by the commodification of

archaic symbols of power (such as attending a public school and Oxbridge, and mani-

fest in styles of dress, accent etc.) as meritocratic artefacts. This middle class mobil-

isation of its material and cultural resources to retain its advantages by denying access

to those from lower social groups (Smith, 2009) is revealed in the concomitant raising

of academic requirements for entry into the profession, even whilst there is acknowl-

edgment that esoteric legal knowledge, central to the old style profession, is now sec-

ondary to commercial sense, and to interpersonal (i.e. good networking) skills.

I have argued that DM is also frustrated because ‘objective’ standards are in fact

social artefacts,56 and the meanings of apparently scientific processes draw upon pre-

modern discourses and also practices. As a result, the assessment processes of large

firms are domain specific; candidates are inevitably judged against both existing pro-

fessional norms and in light of conventional understandings of, for instance, gender.57

Beneath the surface race and gender blindness, essentialised categories are therefore

as significant as ever. Class above all is produced and re-produced in daily interactions

(Frow, 1995), expressed through cultural values, embodied in ‘appropriate’ ways of

being. For all these reasons, while we have now moved to an age of legal entrepre-

neurialism, it continues to be contoured by the profession’s traditional cultural prac-

tices of patrimonial networks based on patron-client relations, where obligation and

affinity do not merely trump merit, but are actually taken as representing it, and

where, as I note above, expressions of archaic privilege (such as leisure activities) con-

tinue to constitute valuable cultural capital.

As the discussion in the earlier sections of the paper sought to indicate, this

picture of continuity and change, is part of a more generalised ambivalence of progress

towards a category free, truly ‘liquid’ time. Not only is the reconfiguration of corpor-

ate law firms an aspect of wider socio-economic change, but its specific character like-

wise echoes the contradictions which pervade late modernity. The neo-liberal move is

premised on discourses of diversity, inclusion, and merit. In practice, however, these

legitimise the ever widening) inequalities (Young, 1990) which also characterise late

capitalism, and which, like diversity, are seen as ‘productive’. The following com-

ments by the most recent appointee to the Court of Appeal exemplifies the normal-

isation of the abandonment of the politics of re-distribution: “I think that an

unequal society is a symptom of the boundless energy, enterprise and variety of

humanity and I think that we should applaud that” (Sumption, 2010).

None of this should be surprising. The ‘modern’ history of Britain has been

marked by the capacity of the old order of privilege and hierarchy to preserve its

power. The legal profession has played a central role in this reproduction of traditional

authority; it is saturated in class, ethnicity and gender, and daily engaged in (re-)pro-

ducing the meaning of these categories. 58 It is therefore ultimately economically

rational that only the claims of the white middle class men to full, meritworthy pro-

fessional status can be recognised: their clients are overwhelmingly drawn from the

same social groups. It also follows that to be able fully to participate in the new entre-

preneurial culture, it is necessary to have access and entitlement to the cultures that

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can resource this self making (Skeggs, 2005). ACs massage these relationships of enti-

tlement and exclusion which continue to structure the profession and which depend

on misrecognition of the merit of outsiders, thereby legitimising their restriction to

support roles.

Notes

[1] Globalization can be defined as the intensification of world-wide relationships, including trade,

culture and technologies, leading to, inter alia, the internationalization of large bodies of law, legal

practice and firms.

[2] Arthurs has commented that the eclipse of the activist state has disrupted the ideal of law and the

profession (2001).

[3] In their discussion of the impact of these changes, Leicht and Lyman (2006, p. 32) speak of a crisis of

professionalism.

[4] But see Faulconbridge and Muzio (2009) whose analysis of the impact of financialisation on the pro-

fession includes discussion of the shift this has produced to a predominantly employed occupation

and pressure on salaried lawyers to generate greater profits; Arthurs and Kreklewich also discuss

how the ‘new economy’ is aggravating the profession’s pre-existing tendencies to stratification and

marginalization (1996).

[5] The qualitative study: Access to Legal Work Experience and its Role in the (Re)Production of Legal

Professional Identity (2010), funded by the UKCLE, was undertaken by Andrew Francis and the

author, available at: http://www.ukcle.ac.uk/research/projects/francis.html. See too Francis and

Sommerlad (2009).

[6] The term Human Resource Management (HRM) was imported from the US in the 1980s, replacing

personnel management. It represents the cultural shift in management philosophy to a ‘strategic,

proactive, corporate-wide approach to managing people involving questions of culture and values’

(Iles & Hicks-Clarke, 1995), which, as I discuss below, has its legacy in the cultural engineering pro-

grammes of the 1930s, and is integral to contemporary neo-liberal performance management

techniques.

[7] Cooper et al. speak of the emergence of the “managed professional business” (1996).

[8] Diversity is a portmanteau term; originating in the US Civil Rights movement, in the 1990s it came

to be connected with the drive for global competitiveness and its political significance eviscerated as

it came to mean valuing everyone as an individual. The underlying logic of Diversity Management

(DM) is twofold: firstly, pluralism is productive, making discrimination economically irrational and

objective evaluation of performance essential; secondly, by treating employees as individuals with

needs rather than as members of a (deficient) social category, DM is believed to get the optimum

performance out of employees. As a result DM, unlike Equal Opportunities, is perceived as confer-

ring business benefits, and generally described in terms of the business case (see for example

Kandola & Fullerton, 1998; Foster Curtis & Dreachslin, 2008). Along with other HRM initiatives

such as ‘talent management’, it may be viewed as, in Foucaultian terms, a prototypical technology of

government – that is a mechanism designed to integrate individuals into the social order.

[9] Finding an appropriate term to describe lawyers who are not white, middle class males which does

not either essentialise or pathologise the lower status group is problematic. The term ‘outsiders’,

deployed by Carbado & Gulati (2000), captures the closure tactics used by ‘insiders’.

[10] The resistance discussed here focuses on that exercised by existing power elites to DM; I deal less

with outsiders’ resistance to HRM strategies (such as the intensification of work). This should not

be interpreted to mean that I see such groups as entirely lacking in agency.

[11] The interpenetration of law and society and the profession’s intimate connection with modernity

requires the situation of changes to professionalism in wider social developments; as Abbott puts

it: “thinking about professions developing independently [is] . . . foolish” (2001, p. 9); Fournier simi-

larly views many of the changes which the legal profession is currently undergoing as expressing and

mimicking the broader conditions of postmodernity (1999).


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[12] For instance Barnett speaks of a change in the “pedagogical balance of the professional–client

relationship” (Barnett, 2008, p. 191) and Donnison suggests that marketisation may be enhancing

the accountability of service provision (2011).

[13] Bourdieu argues that the economisation of fields previously sheltered from the market threatens their

“most precious collective achievements, starting with the critical dispositions which were simul-

taneously the product and the guarantee of their autonomy” (1996, p. 339).

[14] Foucault used the term governmental rationality to refer not so much to the activities of the state or

“legitimately constituted forms of political or economic subjection” (1982, p. 221) but rather to a

wide range of principles and methods designed to “structure the possible field of action of others”

(ibid.) and thereby integrate individuals into the social order; in his analysis of liberalism it entailed

the proliferation of a range of disciplinary techniques deployed by professional experts ultimately to

inculcate self surveillance/self- regulation (1979).

[15] To the extent that progress towards equality has occurred, this may be attributable to ‘interest con-

vergence’ (Bell, 1992), and (to draw again on Foucault) may itself be viewed as a form of

governance.

[16] Similarly, Bourdieu and Wacquant condemn neo-liberalism’s “celebratory reassertion of (individ-

ual) responsibility” (2001, p. 2).

[17] The Law Society annual statistical surveys establish the limited success women and Black and

Minority Ethnic (BME) solicitors have had in becoming partners, especially in elite firms; the sig-

nificance of socio-economic background is revealed by research for the Sutton Trust (2009); see

too the Milburn Report into access to the professions (PFAP, 2009). The position in other pro-

fessions is similar (see, e.g. CABE, 2004; Crompton & Lyonette, 2007).

[18] Dickens (1998); Newman and Itzin (1995, p. 11) argue that it is these more subtle processes which

render an organisation intrinsically gendered and thus defeat even well developed equal opportunity

initiatives. Other scholars refer to ‘everyday racism and sexism’ (e.g. Essed, 1991).

[19] These have also been interpreted by Wendy Brown as a response, in part, to the social emptiness of

neo-liberal rationality (2006); the rise of the religious right and more recently the Tea Party in the

US, and the revival of archaic attitudes towards women exemplify her argument.

[20] For instance the Personal Development Portfolio may be viewed as one of the mechanisms intro-

duced with the objective of producing the student as an “autonomous learner orientated towards

future employment” (Clegg, 2004, p. 287); in respect of the push to develop transferable skills,

see, for instance UKCES (2009) Ambition 2020: World Class Skills and Jobs for the UK and Leitch

Review 2006 Final Report, available at: http://webarchive.nationalarchives.gov.uk/+/http://www.hm-

[21] The ‘restructured’, ‘corporatised’ or entrepreneurial university, in which academics have been

reconstructed as knowledge workers whose commodity is knowledge, a resource to help bolster

UK’s global competitiveness, and in which activities which cannot be shown to be directly income

generating are marginalised, exemplify this process – central to which has been the marketisation

of the public sector (see, e.g. Ball, 2008). See too Arthurs and Kreklewich who, 15 years ago

wrote that “in the current vernacular, the production of law can be described as increasingly

‘lean’ and ‘flexible’, high value added and intensely competitive and functionally and spatially

diffuse” (1996, p. 18); they go on to argue that “law production is characterised by . . . changes in

the mix and relative importance of several pre-existing modes of production”(ibid.).

[22] As a result, the extent to which the profession is now fragmented in terms of project, organisational

type, population/identity, and status/income makes the myth of a cohesive, collegial profession

(fundamental to the professional project) virtually unsustainable. The concomitant accentuation

of the gulf between the two hemispheres of the profession (Heinz & Laumann, 1982) echoes the

increasing divisions between rich and poor which characterise wider society (Joyce et al., 2010).

[23] Like ‘globalization’ the term neo-liberal is problematic, apparently oversimplifying a complex, con-

tingent range of phenomena. However, as Hall argues, there are sufficient common features to give it

conceptual validity. For Hall, one of its primary threads is “possessive individualism” and conse-

quent anti-statism (2011, pp. 10–11).

[24] The objective was to develop a ‘knowledge economy’, capable of meeting the challenges posed by

globalization and hence also to prise open the professions to the masses. However, in practice,

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universities, as a result of the hardening of pre-existing hierarchies, are now the primary means of

reproducing class privilege (see, for example, Reay et al., 2005).

[25] Abel, 1988, p. 289. Up until and well into the 1990s partners even in the large City firms generally

handled the recruitment, and the basis for selection was acknowledged frequently to turn on ‘gut

reaction’ in the interview (Boothroyd, 1990).

[26] Kuhlmann & Bourgeault, 2008. Empirical studies of other traditionally male professions point to

successful career strategies by non-normative professionals (e.g. Riska & Weger, p. 1995).

[27] The use of ACs for development purposes (that is, to change people’s ways of thinking and acting

(Carrick & Williams, 1999) has led to them also being termed Development Centres (DCs).

[28] The term performativity also encompasses the performance management techniques which work on

individuals’ subjectivities once recruited, the work individuals are invited to do on themselves, and

the framework of judgement within which self improvement is measured (Ball, 2008, p. 51).

[29] Recent years have seen a transformation of HR discourses to encompass governance metrics; PSFs

now commonly deploy internal score cards to include diversity, equality and inclusion metrics in

order to comply with the evolving legislation and client demand. These developments have entailed

a drive to transform HRM, redesigning, reengineering and ‘upgrading’ it to ensure HR practices are

designed, integrated and aligned with business requirements.

[30] Similarly Han argues that Foucaultian descriptions of social practices in systemic terms overlook the

lived experience of these practices (2002).

[31] The devaluation of post-1992 universities and stratification of the HE sector is relatively recent; in

1990 The Lawyer cited top law firms as welcoming applications from the polytechnics: “Head of

Personnel at Slaughter & May . . . emphasises their high calibre” (Olive, Student Special The

Lawyer, 25 September 1990, p. 19).

[32] The comments were posted in response to the report in The Lawyer that top firms plan to work

together to widen access to the law (The Lawyer, 2011b).

[33] The stratification of universities is reflected in (and reinforced) by the concentration in ‘new univer-

sities’ of ‘non-traditional’ students; producing the ‘apartheid’ of the HE sector Mirza (1998). Law

firms, especially those in the corporate sector target old universities (Rolfe & Anderson, 2003).

This has been interpreted as a covert way of avoiding living up to a commitment to diversity

(Williams, 2006).

[34] Numerous studies of PSFs indicate that qualifications and knowledge are now taken for granted (e.g.

Kumra & Vinnicombe, 2008); and a review of graduate early career experiences concluded that tra-

ditional academic skills were the least used by recent graduate entrants to the workplace (Purcell

et al., 1999). Further, just as in HE, our data revealed how the meaning of skill and knowledge

has expanded to encompass personal characteristics and psychological traits (Keep & Mayhew,

1999), echoing the findings of a study of accountancy that ‘ways of conducting oneself ’ are more

important (Grey, 1998).

[35] This claim by graduate recruitment partner at Simmons & Simmons was cited in an article on the

firm’s development (in partnership with BPP) of an MBA in Legal Business (Manning, 2010, p. 45).

[36] Collier argues that the corporate legal sector remains “a site already constituted at the point of entry

by reference to the making of certain assumptions about social, economic and cultural capital . . .

assumptions which are mediated in complex ways by ideas about class, gender, race and ethnicity”

(Collier, 2005, p. 75).

[37] These attributes have been summarised as “willingness to learn, team work, problem solving and a

range of personal attributes including commitment, energy, self motivation, self management,

reliability, co-operation, flexibility and adaptability, analytic ability, logical argument and ability to

summarise key issues” (Harvey & Green, 1994, p. 7).

[38] Skeggs calls this the imperative towards extraordinary subjectivity (2005, p. 974), and part of our

therapeutic culture or the move towards what Berlant defines as ‘intimate citizenship’ (2000) – as

exemplified by the Oprah Winfrey Show.

[39] Ehrenberg argues that personal autonomy has come to define social life more broadly. ‘Blind obedi-

ence’ as a form of action has been replaced with a form of action as ‘autonomous responsibility’

(1991).


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[40] Faulconbridge & Muzio, 2009; the trade press and websites reveal a great deal of resentment by

employees about this ongoing intensification of workload; for instance an associate quoted in The

Benchmarker Survey said: “partners should ensure junior staff are being developed through training

and suitable work experience, rather than hogging work for themselves and cutting training budgets

to maintain profits per equity partner (PEP)” (Legal Week, 2010).

[41] “You have to be a team player, but people appreciate what you do as an individual” (Pinsent

Masons brochure, 2010). Thus a recent article in Lawyer 2B attributed the “elitism of law

firms” to state schools’ “lack of focus on soft skills such as leadership and teamwork as well as

extra-curricular activities” (Pugh, 2010, p. 4). Collier has commented on the tension created by

the requirement for both signs of team-playing and conformity, and displays of individualism

(2005).

[42] Collier (2005) also comments on the attempt to configure the firm as a ‘fun’ place to work through

the use of words like sexy.

[43] The parallels revealed by the data between the drive to create an enterprise culture in law firms and

the findings of Du Gay’s research into the retailing industry are striking; Du Gay found firms shifting

away from technical skills traditionally associated with retail towards training staff to become self

motivated and proactive, deploying a discourse of enterprise and autonomy (1996).

[44] The Lawyer reported that the firm’s graduate recruitment partner “admitted that the firm got it

wrong on this occasion, saying in a statement: ‘Last week a student worked through the night on

a document for a big international arbitration. She willingly stayed and worked with a female col-

league and did a great job, but it shouldn’t have happened. In future we’ll stick to our policy so

this doesn’t happen again.’ SJ Berwin was right to admit that this situation should never have

arisen and that the student should have been given the option of saying no. The issue, though, is

the fact that people on such schemes want a job, and in this climate many will go above and

beyond to show their willingness, or feel that to say no may reflect badly on them. Some may there-

fore feel compelled to exceed themselves to impress” (The Lawyer, 2011a).

[45] Ashley argues that the relative status of corporate lawyers in the City’s ‘pecking order’ is relatively

low (2010b, p. 14).

[46] Evidently this focus on the client and requirement of commerciality is the result of the financialisa-

tion of the corporate firm, the ‘obsession with PEP as a financial performance metric’ and the con-

sequent increase in what is required of employees (Faulconbridge & Muzio, 2009).

[47] www.future.lawyers.co.uk, Legal Week, April 2010.

[48] “The culturalization of the workplace combined with technological innovations and the continuing

priorities of capitalist organization has meant that today workers are provided with endless training

opportunities, and subjected to novel surveillance techniques” (Adams, 2007, p. 81; and see

Donzelot, 1991).

[49] See too Sweetman (2003) who argues that a reflexive habitus is now prescriptive; Strathern (1992)

speaks of compulsory individuality. Giddens also suggests that “we have no choice but to choose”

(1991, p. 81), and Bauman similarly argues that individualisation is not a choice but fate (2001,

p. xvi).

[50] An extreme example of such exercises in mortification (or ritual initiations) was offered by a respon-

dent in an earlier research project. She said: “Some of (the trainees) are given jobs they really

shouldn’t be given . . . also it’s the way they are spoken to . . . trainees are treated like the lowest of

the low and sometimes . . . they’d have to clear up sick from the steps (outside the building) and

stuff like that . . . It’s been said that if we can break our trainees then we can build them up again

and then no client can do worse to them . . . so they are made to feel like nothing” (Partner, regional

corporate firm).

[51] In 2009 10.6% of all solicitors with practising certificates were from BME groups, and 45.2% were

female. In all, 25.9% of BME practitioners were partners, but this figure reflects the fact that over

50% work in small firms, and are twice as likely to be sole practitioners as their white counterparts.

Only 21.5% of women were partners compared to 49.1% of men (Law Society, 2009). According to

The Lawyer Diversity Report (2010), the proportion of female partners in the corporate sector is even

lower: in some of the ‘top thirty’ firms women make up only 8% of partners (5% of equity); the

100 HILARY SOMMERLAD

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highest percentage is 28% of equity. The report did not provide figures for BME partnership, but the

percentages for BME members of the firms were generally a great deal lower than in the profession as

a whole (e.g. 4% in one firm) (see too Hoare, 2006).

[52] The Lawyer, 4 April 2011, available at: http://www.thelawyer.com/04-april-2011/1966.issue. These

posters and the evidence of other studies (e.g. Sommerlad et al., 2010) reveals that the corporate law

sector is a contested domain; the preceding discussion of initiatives designed to raise work output

should not therefore be read as suggesting that subordinated groups do not resist these

developments.

[53] Given the emphasis on bringing clients into a firm, this is hardly surprising. The “increasing com-

modification and the increasing perception of social relationships as social capital” is viewed as

characteristic of late capitalism (Wittel, 2001, p. 71); in practice clientelistic relations have always

been a key characteristic of the profession; the difference today is that in HRM discourses construct

this as (in theory) inequitable and inefficient.

[54] See for instance Fowler’s explanation of the instinctive understanding of what is needed within a par-

ticular social field, possessed by those with the appropriate habitus (1997, p. 18). The profession’s

valuation of sporting ability is reminiscent of traditional stereotypes of English public schools – an

educational route which has been a powerful factor shaping participation within the legal profession

(Shiner, 1999; 2000).

[55] The law firm’s transmutation into a PSF has meant that it has come to resemble what is termed a

‘style’ labour market, so that recruitment and selection processes are also concerned with who is

aesthetically acceptable (Nickson et al., 2003, p. 186).

[56] There is an extensive literature on the socially constructed character of competencies. Forms of

assessment are value laden rationing devices, and meritocracy a (powerful) myth (Young, 1990).

[57] Thus a recent article in Lawyer 2B on the elitism of law firms observed that “the overwhelming con-

clusion must be that, if your children aspire to a successful legal career and you’re choosing a school,

it pays to pay” (Pugh, 2010, p. 4).

[58] Reskin (2003); empirical data show that no contemporary Western society has yet broken the link

between ascribed characteristics and educational attainment in schools (OECD, 2000).

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