Summary (1136981), страница 3
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The latter type ofwork is a "blackbox" as researchers often know little about the motives behind freerendering of activity of attorneys services. Attorneys both in developed anddeveloping countries worldwide have been active in defending weaker populationgroups, although in Russia this type of service is still underdeveloped.The main reason why the client is unable to control fully the quality of activityof attorneys’ services is that the client does not have the same knowledge as theprofessional. However, other attorneys are potentially able to perform professionalassessment.
For instance, the interchange of information is an important function ofany professional community, which, on the one hand, encourages attorneys toincrease their social capital, but on the other hand makes it possible to control thequality of activity of attorneys’ services through the reputation-based mechanism. Abreach of professional ethics by the attorney does not always cause directdisciplinary implications, but even without them can imply a dramatic blow to thereputation.
In contrast, best practices, such as pro bono work, can offer no directfinancial benefits but will have a positive impact on the attorney's reputation.Reputation is not the only mechanism which can be used by the professionalcommunity in exercising informal control. The associations of lawyers set up ethicscommissions, hold advanced training courses, and give professional awards. Thepolicy of attorneys qualifying examinations affects the likelihood of opportunism onthe part of new members (a difficult exam, to a certain extent, eases the problem of"adverse selection"). Given that the client is unable to control the attorney's services,the professional community is given the chance to act as an intermediary.
However,unless it is strong enough as an actor, this role can be taken by the state.According to the institutional theory, the state is not a seamless actor but the"organization of organizations" many of which act for their own benefit. On the onehand, the state eliminates "market gaps" (e.g., provides attorney services toindividuals who cannot afford a defender). On the other hand, the state can be usedby the businesses or unfair bureaucrats for personal gain (e.g., this is manifested inthe phenomenon of "telephone law"). It should be further argued that, from a10conceptual standpoint, the powers of the state can vary greatly depending on theexisting institutes (called "extractive" or "inclusive" in the terms of Acemoglu andRobinson; "open-access orders" and "limited-access orders," in the terms of North,Wallis, and Weingast).
Russia is among those countries where institutes give a fertileground for power abuses by unfair public officials, including law enforcementofficers.The law enforcement system in itself is very diverse and consists of numerousactors: the Ministry of the Interior Affairs, the Investigative Committee of theRussian Federation, Prosecutor's office and courts. Although the above-listedagencies share the same role (maintain public order), they often pursue their owninterests (including corruption, the fight for influence on the authorities, etc.). Withthe aim of achieving KPIs, these agencies act as a single coalition in respect of theattorney community. In this case, the attorney profession can use the law to fightagainst unscrupulous law enforcement officers, as well as cooperate withstakeholders (including business associations) in accomplishing this objective.Therefore, the independence of any given attorney is a combination of his/herpersonal qualities (the level of community engagement, experience, a set of therelevant skills or capitals) and the position of the entire professional community,which can choose to protect or not to protect their representatives, to lobby theirinterests through legislative initiatives or to remain passive.The third key concept in this study is the "market of activity of attorney’sservices." Activity of attorneys is part of professional logic, but it is controlled bythe state.
The market is the third important logic as it shapes the space ofopportunities, offering the client a chance to find and choose an attorney; theattorney, a range of economic resources to be leveraged in a particular case; thejuridical field in general, the space of competition.At the beginning of section three of the theoretical chapter, we try to answerthe question of whether legal services can be viewed as part of the market. The extentto which it forms part of the market depends on the area of legal activity: marketorientation is more pronounced in civil cases and arbitration case and less11pronounced in criminal proceedings. However, this latter circumstance derives fromthe level of government intervention rather than the impossibility of building amarket.
Attorney services are merit goods (in the terms of Calabresi), i.e. the valueswhich, if unevenly distributed in the society, can cause the growth of "moral costs."It is with the aim of reducing these moral costs that the state allows public justice tobe accessed by anyone who has no money, and the professional communityencourages pro bono work.Although the market for legal services can hardly be called conventional, twopossible alternatives proposed by economic sociologists can apply. Activity ofattorneys can be treated as "embedded" in social relationships: networks, trust,culture, rules of the game, etc. Alternatively, within the framework of L.
Karpik’stheory, legal services can be viewed as the market for singular goods. The effects ofthese approaches are important to understand what independent activity of attorneysmeans.The concept of embeddedness was put forward by Polanyi in his criticism ofa romanticized model of market-based economy. He made the observation that themarket in its neo-classical form was not natural to people before the Modern Historyalthough exchange relations have almost always been part of the society. Alleconomic behaviors are embedded in social relations, which organize, stabilize,routinize the process of exchange and make it possible as such. Granovetterexpanded the concept of embeddedness by adding the key role of networks in whichpeople are grouped (strong and weak ties). Embeddedness is not a frequently usedterm in analysis of legal services although this concept makes it possible to explainhow the market for professional services works.
Uzzi and Lancaster showed thatembeddedness affects the price of legal services as it adds value (helps differentiatebetween such services, reduces transactions costs, sometimes serves as conspicuousconsumption). Li, using the example of China's agricultural regions, illustrated thatembeddedness is a good explanation of the lawyer-client relationships in villagesand towns where personal ties and mutual obligations are more important thanmarket relations.12The overall conclusion is that the concept of embeddedness of activity ofattorneys services allows the market-driven logic of interactions to be supplementedwith social factors, such as acquaintances, credibility, reputation, etc.
However, theconcept of embeddedness does not treat professional activity as a separate category,neither does it dispute that the market-driven mechanism is involved in allocatingthe same alongside social factors, as did Lucien Karpik in his theory.The key characteristic of the market for singular goods is that goods orservices offered in such market are mutually incommensurable and associated withimmeasurable uncertainty. In the ordinary market, the price of goods is the primaryfactor affecting our choice between alternatives, whereas in the markets for singulargoods the price is a secondary consideration (e.g., we hardly rely on the lowest ticketprice when choosing a movie to see). Attorneys cannot be compared using the priceof their services as a criterion since a good attorney may work for free under certaincircumstances and a bad attorney may want a very high price for their services.
Theoutcome of activity of attorneys is uncertain due to a number of reasons. The clientis unaware of the level of effort made by the attorney, their level of expertise,whether or not the attorney's strategy was correct. In the context of “accusatorybias”, the outcome is almost never an excuse and all interim options (suspendedsentence, shortened real term of sentence, etc.) can be equally explained by theattorney's achievement, an unbiased decision of the judge or an omission of lawenforcement officers. In this regard, the quality of an attorney's work is hard to assessboth during and after litigation.
Karpik suggests that this type of uncertainty betreated as radical, i.e. immeasurable. If it was measurable (like risk), it could also beincluded in the price of services but in reality, the uncertainty of an outcome ofcriminal proceedings is non-assessable in monetary terms (e.g., it is anybody’s guesswhether the client's prison sentence will be a year shorter if extra money is allocatedto defense or these costs make no sense).A choice between services in the markets for singular goods is based onspecial "assessment tools": networks of acquaintances and relatives, knowledge ofthe system functioning, reviews, ranking system, brand, etc. Attorneys thus do not13directly compete.
It is rather the professional community, the state, the civil society,the defendant's family and friends, each of which offers their own attorney selectionsystem, that compete (the element of randomness not excluded). This gives groundto draw an important conclusion that the market for singular goods is supplycontrolled rather than demand-controlled. The clients wishing to receive anysingular goods are forced to use the assessment tools offered by external suppliersand their communities. In the case of attorney services this trend is even morepronounced as the client is not allowed to cope without an attorney and is obliged tohave a defender.It is due to the singular nature of their services that most attorneys find clientsthrough their former clients who give recommendations, via colleagues redirectinga client (due to overload or different specialism), via an activity of attorneysorganization or directly through the system of court appointments and not in the freemarket (by way of advertising).
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