Earlier this month, I was invited by the Executive School of Management, Technology and Law at the University of St Gallen in Switzerland to deliver a keynote presentation on the topic of whether ‘client’ or ‘customer’ is a distinction with or without meaning. Although I had mulled this over many times before, this was the first time that I had really given it any sustained thought. I was slightly surprised by my conclusion! I had previously been of the view that it was largely a matter of personal preference (or prejudice), but in the end lawyers sold and – whatever they were called – others bought, and the label didn’t really matter. I’ve now come to the view that it really does matter.
Since the 1980s, there has been a noticeable shift and general decline in the use of the descriptions ‘client’, ‘patient’, ‘passenger’, and so on, to portray the relationship between an individual who has qualified and been authorised to conduct certain activities in the service of others. In their place has been a widespread move to the language of markets, consumerism and customers. In my presentation (and in the follow-up paper, available here), I explore why this shift has happened, what it signifies, and whether or not it matters.
As an over-simplification, and based on a sense of popular conception and usage, the following descriptions might be associated with certain labels:
- ‘clients’ are passive beneficiaries in a dependent (possibly long-term) relationship;
- ‘consumers’ are active designers of their own service choice in a free market; and
- ‘customers’ are (usually short-term) transactional purchasers of a commodity.
These different descriptions not only offer a different label but also suggest a different relationship with different underlying assumptions, a different identity, and a different balance of power. Any shift in label would therefore suggest a shift in one or more of these components.
If labels signify differences, then labels must suggest distinctions in meaning. They signify not different types of people, but different types of relationship. As such, they each privilege some aspects of the relationship over others in their description of function or power and, in doing so, incorporate a preference or predisposition (and possibly even prejudice).
Increasingly, the totality of relationships that lawyers have with those who buy their services will have simultaneous elements of ‘client’, ‘consumer’ and ‘customer’. It will clearly not be helpful to have such a relationship characterised by just one of those labels with its implicit, but very different, assumptions about the nature and foundations of the relationship.
Clinging to traditional notions of the ‘lawyer-client’ relationship will not survive the world of the twenty-first century and its shifts in the balance of power between lawyers and clients. But over-emphasising the position and power of consumerism and transactional customers will not help either: such a shift risks losing the public good benefits of ‘responsible lawyering’ with its commitment to higher duties than merely oneself, one’s profession, or even (dare I say it?) to one’s clients.
I used to think that the label didn’t really matter: whatever was going on was the same, whatever it was called. But I now think that it does matter. We need clarity and mutual understanding about the underlying relationship; but we also need to recognise that the modern conception of that relationship now needs to be more extensive, flexible and responsive than it has been so far.