The importance of a discipline of professional practice

Back in September 2006 in Towards a Discipline of Practice I began a discussion on the importance of the development of a discipline of practice that spanned disciplines. Here I said in part:

On the surface, the application of each profession in practice may not seem connected. What do, say, law and medicine have in common? At least this:

1. Common techniques can be used to analyse the processes followed by professionals in their work.
2. A least some of the elements in those processes are common. For example, both lawyers and doctors have to begin each engagement (matter in the case of the lawyer, consultation in the case of the doctor) with a diagnostic. Comparison of the different application of common process elements between professions can yield fruitful insights.

The commonalities between management of practices across professions are better understood. However, there is in fact a gap here.

If you look at the literature you will find a range of general advice and principles drawn from management. You will also find a volume of nitty gritty material classified under the general head of practice management. This is often encapsulated in specific practice management courses and qualifications.

The gap as I see it between the two, and I think that this holds even though David Maister among others has written on the topic, is the gap that Prem points to, the absence of a fully articulated philosophy of practice that takes into account the unique features of professional practice.

The link to Prem's comment is included in the original post.

Back in June in Reflections on professional experience, I said: 

I have been off-line for a little while simply because I have been thinking! Part of those thoughts relate to my own directions, part relate to the core focus of this blog.

Over the last few years, I have changed my mind on some issues. For example, I am a stronger supporter of partnership models than I was so long as the partners accept the limitations involved.

On some other issues such as the the profit per equity partnership concept, I think that they are just as dangerous as before unless very carefully defined.

Then, on some issues such as time based charging, I have formed the view that a lot of the discussion simply misses the point. Time based charging has its problems, but it still is the best approach in some circumstances.

I have also become frustrated about my inability to get advice across about the need for change.

Part of this relates to a purely professional question that I have discussed before. What do you do when your client wants advice that you know won't work or must be just plain wrong? Part of this relates to my own professional skills, my inability to get a story across. However, part also relates to current management structures and attitudes within professional services. Some of this is just plain wrong.

Over the next week or so I thought that I might record my conclusions from all my thought. It's hard for a professional to accept his/her failures. Yet if we don't, how can we improve? 

As so often happens, events intervened. However, experiences over recent weeks have reinforced the need to write something. Bluntly, we professionals are letting down our clients. Worse, we are sometimes doing it through our narrow definition of what constitutes professionalism.

I have no truck with approaches that guarantee clients higher costs and worse results, even accepting that clients are their own worst enemy!

So, given this, over the next few posts I want to continue my discussion on a discipline of professional practice.  

Keddies, Slater & Gordon & the law

This cartoon is taken from the Sydney Morning Herald.

In Corporatisation, Keddies and professional ethics, a post written back in July 2008, I reported on the problems faced by Australian law firm Keddies as a consequence of its billing practices. I gave a brief update in October 2008 in Keddies case threatens legal billing practices.

Although I really didn't say so at the time, I did wonder whether or not Keddies could survive. In fact, they did and have been purchased by listed Australian law firm Slater & Gordon for a reported $A35 million.

Russell Keddie, Keddie's founder, has admitted to the NSW Legal Services Commissioner that he was responsible for the gross overcharging of a client and plans to retire from practice.

All this has led to some scathing criticisms from regular legal commentator, the SMH's Richard Ackland.

I did wonder and still wonder about the wisdom of the Keddies' purchase. Time will tell.

Decline of the professions in Australia

Over on my personal blog I have been reviewing Professor Don Aitkin's What was it all for? The Reshaping of Australia. (Allen & Unwin, Crows Nest, 2005). The first post is here, the second will come up tomorrow.

The book itself examines social change in Australia over the last fifty years in part through a prism set by the Armidale High School leaving certificate class of 1953. 

I don't think that anyone of us would not accept that the professions have declined in status and not just in Australia over the period covered by Don.  I mention this because he has some interesting material on what he perceives to be the causes of the decline in the professions in Australia.

The first thing he points to is the sheer increase in the scale of the professions. They grew and grew. Further, the growth was associated with the emergence of mini-professions, constant subdivision into smaller areas of knowledge, each with their own societies, journals and specialist knowledge.

As the numbers in the professions increased, as the number of professions also increased, so the general respect in which professionals were held declined.

The growth in the professions was linked not just to the growth of knowledge, but also to a broader process, the "professionalisation" of work. Here I want to quote Don:

Name and fame went with specialised knowledge, and the generalist became seen as someone who knew very little.

The problem is that this professionalisation process and the consequent rejection of the value of broader knowledge has aided the process of locking the professions into narrower silos that have, of themselves, reduced the effectiveness and power of the professions.

Here we get into somewhat slippery territory.

Central to the concept of a "profession" is the idea of professional independence. Without this, a profession becomes simply another occupation. I accept that the concept of independence is a difficult one. In practice, no profession has ever been completely independent, yet the ideal is still central to the professional ethics that lie at the heart of any real profession.

The killer today, as Professor Aitkin notes, is the rise of the concept of "compliance", a concept that has come to replace the old idea of professional independence,

In simple English, to comply means to obey. That is exactly the way the term is now used.

When people speak of compliance, they mean that the profession in question must comply with rules. Of course professions have always had rules, more precisely sets of ethics. However, now we are talking about externally, especially government imposed, rules.

One can mount a case for Government regulation. However, the modern use of compliance is in fact far broader than simple regulation. In a practical sense, it increasingly substitutes rules for ethics and professional standards.

To my mind, this lies at the heart of the decline of professions as professions.       

Keddies case threatens legal billing practices

Back in July 2008 in Corporatisation, Keddies and professional ethics I reported on the problems facing Sydney law firm Keddies centred on allegations of overcharging. Since then the firm has been forced to retrench staff, while the whole legal billing system in Australia is now under review.

Those interested can find out further details here.

Corporatisation, Keddies and professional ethics

I have been reworking some of my material on corporatisation in professional services for a conference paper I am delivering later this month.

One of the concerns associated with corporatisation is the risk that it might create new ethical conflicts. I dealt with this one briefly in a post in May 2007, Corporatisation and Professional Ethics.

One difficulty faced by those who would oppose new corporate forms on ethics grounds is the reality that ethical conflicts can already arise in a billable hours environment. In this context, the troubles that have beset the Australian compensation law firm Keddies Lawyers are instructive.

Those who are interested can find some coverage of the Keddies' issue here:

• 13 June 2008, 2UE: Keddies case - how it started
• 13 June 2008, Brisbane Times: Top law firm under fire in compo dispute
• 14 June 2008, The Land: Angry clients accuse barristers over fees
• 16 June 2008, Sydney Morning Herald: Blank spaces left in legal papers, says Keddies client
• 19 June 2008, Sydney Morning Herald: Keddies ordered to repay $85,000
• 25 June 2008, Business Spectator: Keddies boss fined for misconduct
• 1 July 2008, Brisbane Times: Keddies client charged for saying thanks
• 1 July 2008, Rab Experience, The Keddies Bill

I am not in a position to comment on the detail of the Keddies case. However, if you stand back from the detail, you can see how existing billing practices can create ethical problems independent of the nature of firm structures.

Corporatisation and Professional Ethics

In my last post, Corporatisation, Corporate Structures and the Law, I outlined some of the reasons why corporate structures including listed entities might make sense for law firms as compared to the traditional partnership model.

In this post I want to look briefly at some of the professional ethics issues raised since this is the area that many commentators have focused on. The critical issue to my mind is the extent to which adoption of corporate forms per se creates new ethical challenges.

At one level, a simple move from a partnership to an incorporated body changes nothing. Partnerships already face a variety of challenges, including the need to make sufficient profit to pay partners and fund development in a competitive marketplace. Wrapping a corporate envelope around the partnership does not change this.

The position changes, however, if the firm actually lists in the way Slater and Gordon did because two new factors come into play.

The first is the need to formally consider the needs of shareholders as owners. In theory at least, a partnership may decide to sacrifice profits in the interests of its clients. Again in theory, this is more difficult in a listed corporation because of the direct pressures to provide shareholder returns.

I say in theory in both cases because I am not sure how much difference there is in practice. Indeed, in partnerships the need to maximise partner cash flow creates pressures that may be just as, if not more, detrimental to clients than the shareholder return requirement. Here a feature of the ethical discussion has been a comparison between corporate operations and the independent professional model, whereas the comparison should be with the partnership model.

The second linked factor is more complicated, the temptation to play corporate games in an attempt to maximise the the share price and to please the market . In my view this is a real danger that can, as we have seen in other areas, threaten the very existence of the firm itself.

None of this to my mind detracts from the advantages that can be offered by corporatisation, but it does point to risks that need to be managed.