Filling gaps in the literature on coproduction in the legal services

One central issue in socio-legal scholarship and the legal practice literature since the 1960s has been the extent to which lawyers control their clients and their clients’ cases. The functionalist sociology of professions portrays lawyers as dominating their clients with their professional skills and the authority of their function (Heinz Reference Heinz1983; Parsons Reference Parsons1939; Rosenthal Reference Rosenthal1974). Since the 1980s, a subsequent body of socio-legal scholarship, inspired by a Foucauldian view of power as relational and dynamic develops a more interactive, two-sided conception of the lawyer–client relationship. It emphasizes client agency and focuses on uncertainty, tensions, and negotiations, especially in family law representation work (Griffiths Reference Griffiths1986; Ingleby Reference Ingleby1992; Mather et al. Reference Mather, McEwen and Maiman1995, Reference Mather, McEwen and Maiman2001; Sarat and Festiner Reference Sarat and Festiner1995). More recently, a relational approach in sociology conceptualizes the lawyer–client relationship as a set of repeated interactions between a client and a professional that is constrained by institutional rules and procedures (Clair Reference Clair2021; Emirbayer Reference Emirbayer1997). Clients and lawyers’ objectives, strategies, and tactics are transformed over the course of their interactions. All of these studies enable us to consider the relationship between lawyers and clients as a coproduction of legal services, wherein clients play an active and indispensable role in the delivery of legal services (Robertson Reference Robertson2002), even though it is often difficult to ascertain “whose input is represented by the outcome” (Ingleby Reference Ingleby1992: 135).

However, this scholarship does not delve into the nature of work performed by lawyers and clients. The legal practice literature generally uses a limited definition of work, based on legal paid work. It describes how, in order to reduce costs and to allow clients to feel more in control, some family lawyers offer their clients to take on some of the tasks usually carried out by themselves in a full-service package, and contract with them accordingly (Mosten Reference Mosten1994; Hunter et al. Reference Hunter2000: 202). Paying attention to the plural dimensions of work, socio-legal scholarship has addressed the emotional labor performed by lawyers, who must welcome and guide their clients’ emotions (Harris Reference Harris2002). However, emotion work performed by the clients remains in the dark – according to the distinction made by Arlie Hochschild between the display of certain emotions to meet the requirements of a job in a paid work setting (emotional labor) and within the private sphere for personal purposes (emotion work) (Hochschild Reference Hochschild1979). The legal practice literature is thus primarily concerned with the work that the lawyer transfers to the client (such as gathering facts, researching the law, document drafting, etc.) and pays less attention to other types of work carried out by clients, such as work on themselves, on their material situation or on their demands.

Second, most studies examining family lawyer–client interactions from a relational perspective disregard the social attributes of both parties and the influence of power dynamics on coproduction. This inadequacy is apparent in works by Sarat and Festiner (Reference Sarat and Festiner1995) and Griffiths (Reference Griffiths1986) as noted by Seron and Munger (Reference Seron and Munger1996: 197) who advocate for a more structural approach. This structural approach relies on two consequent bodies of literature.

The first one deals with the social characteristics of clients and how they affect the legal services provided. This scholarship shows that working-class and poor litigants, people of color, and women are less likely to take their legal problems to a lawyer for lack of money or information, but also because they may not feel entitled to it or may feel powerless due to past encounters with the civil justice system (Sandefur Reference Sandefur, Pleasance, Buck and Balmer2007). Focusing on economic inequality, it examines how clients’ financial means shape the quality and quantity of legal services received (Mather Reference Mather2003), reveals that lawyers may screen out nonprofitable cases (Blumberg Reference Blumberg1967; Katz Reference Katz1982; Michelson Reference Michelson2006), studies the effect of legal fee practices (such as hourly rates, flat fees, contingent fees) on access to representation for the middle and lower classes (Kritzer Reference Kritzer1987) or the effect of legal aid on how divorces and dissolutions are handled (Hunter Reference Hunter, Dewar and Parker2003). Feminist scholarship demonstrates that the rise of undisputed divorce exacerbates gender inequality due to the economic resource gap between male and female partners (Smart 2012 [Reference Smart1984]; Weitzman Reference Weitzman1985; Fineman Reference Fineman1991; Li Reference Li2022; Michelson Reference Michelson2022). In line with other fields such as education (Calarco Reference Calarco2018) or healthcare experience (Gage-Bouchard Reference Gage-Bouchard2017), socio-legal studies show that privileged educated clients are more likely to enhance their own expertise and feel entitled to question professionals’ strategies, which results in rewards for them (Berrey et al. Reference Berrey, Nelson and Nielsen2017). Less educated clients are more deferential to professional authority, yet Clair (Reference Clair2021) shows that socioeconomically disadvantaged and racially marginalized defendants are not passive: they cultivate their own legal skills and resist the authority of their court-appointed lawyers, whom they distrust, often to their detriment.

Another body of literature concentrates on lawyers and the structure of the bar (Heinz et al. Reference Heinz2005; Heinz and Laumann Reference Heinz and Laumann1982; Karpik Reference Karpik2000). The legal market as a whole can be described as a field (Bourdieu Reference Bourdieu1987). This is true also for each specialized segment (as shown by Parikh and Garth Reference Parikh and Garth2005 about the personal injury bar), which functions as a semiautonomous social space with a specific hierarchy and power structure depending on a particular set of resources, according to the lawyers’ social characteristics such as gender, education, ethno-religious and socioeconomic background, social networks, seniority, location, firm size, clientele, and type of fees. Despite the feminization of bars that has occurred in many countries since the 1990s (Heinz et al. Reference Heinz2005; Kay Reference Kay2009; Raggio Reference Raggio1999), female lawyers still fall behind their male colleagues in terms of income, partnership attainment, and career advancement (among many studies, Li Reference Li2022 about China; Hull and Nelson Reference Hull and Nelson2000 about the US; Bajos et al. Reference Bajos, Cavalin, Clément and Brocvielle2018 about France). In family law, the feminization of the profession has altered divorce law practices by introducing new legal techniques and modes of pleading. Female family lawyers are more mediation-oriented (Menkel-Meadow Reference Menkel-Meadow1985), and they value “sensitive listening to clients” (Mather et al. Reference Mather, McEwen and Maiman2001: 82–83) even though sociologists also note more adversarial advocacy from experienced female family lawyers with a focus on feminist defense of female clients, particularly on topics such as the financial hardships experienced by women post-separation (ibid.). Some studies underline the considerable discrimination people of color face in law schools and law firms (Dias Reference Dias2021) and how race affects lawyers’ careers (Hale Reference Hale1952). Situations of proximity between White judges and lawyers can play against racially marginalized defendants (Clair Reference Clair2020; Van Cleve Reference Van Cleve2016).

However, these two bodies of literature typically concentrate on either clients or legal professionals, rather than encompassing both (for an exception, Bogoch Reference Bogoch1997). A coproduction analysis should take into account social characteristics such as (and not limited to) social class, gender, and race on both sides of the desk.

A relational, materialist, structural, and intersectional approach

In this article, we build on the achievements of the relational approach of the lawyer–client relationship. However, instead of focusing on the meanings shaped in the lawyer–client interaction (like Sarat and Felstiner’s approach anchored in symbolic interactionism), we describe instead the coproduction of family legal services from a materialist perspective which focuses on the actual work performed by lawyers and clients.

To do so, we use a broad definition of work rooted in feminist studies. Reproductive labor, primarily performed by women in a family setting, is the archetype of unpaid work that never gets recognized as such (Federici Reference Federici2012). Work performed by clients is like reproductive labor: unpaid, unseen, and unrecognized. Like reproductive labor, it is gendered, since we know that women initiate divorce and dissolution procedures more often than men and are more involved in the administrative work generated by legal procedures (Collectif Onze 2013; Bessière and Gollac Reference Bessière and Gollac2023 about France; Biland Reference Biland2023 about Quebec). We argue that clients must perform emotion work to build their legal case and, sometimes, to present it effectively in court, all of this during a challenging and exceptional period of their lives such as a divorce or a dissolution. While emotional labor performed by lawyers can be part of their professional routine and sometimes financially recognized (for instance, through extensive hours spent on a case), clients’ emotion work is never paid.

Furthermore, the family lawyer–client relationship can be considered as a service relationship, i.e. a dynamic interaction that transforms both parties: doing something “for” the client is also doing something “to” the client, and conversely the service provider rarely emerges unscathed from the relationship (Hughes Reference Hughes1956: 3). There are few possibilities for increasing productivity in activities whose relational dimensions are difficult to standardize or automate such as services. One solution adopted by companies in many sectors is putting their customers to work, for example by getting them to scan their own items at the supermarket or manage their accounts online (Andrews Reference Andrews2019; Ritzer Reference Ritzer2015). The latter scholarship asks, from a Marxist perspective: are companies extracting productive work from consumers? Or do these changes contribute to consumer empowerment in certain circumstances, such as ethical consumption practices (Dubuisson-Quellier Reference Dubuisson-Quellier2010)? Transposed to the family lawyer–client relationship, the question becomes: do lawyers exploit their clients, or do they achieve the ideal of private ordering by making their clients the main actors of their divorce or dissolution? We argue that there is no univocal answer to this question: it depends on the power dynamics at play in the specific family lawyer–client relationship.

Our approach is thus a structural one, to capture how lawyers’ and clients’ combined social characteristics along class, race, gender, and age lines come into play at different times and in different ways, easing or limiting clients’ access to quality legal advice, lawyers’ ability to advance professionally, and their mutual ability to understand each other and develop a common goal. This topic is all the more interesting to study in the field of family law, given the greater social diversity of litigants compared to other fields of law (especially criminal law).

Data permitting the study of lawyer–client relationships must also strive toward intersectionality. Since the pioneering work of Crenshaw (Reference Crenshaw1989), intersectionality scholarship has showed how advantages and disadvantages do not always add up for those who find themselves at the intersection of several lines of discrimination; (dis)advantages are context-dependent and should be analyzed as specific, situated configurations (Collins and Bilge Reference Collins and Bilge2020). A large body of socio-legal scholarship in matters of civil rights has endeavored to consider together the effects of multiple disadvantages on recourse to justice (Sandefur Reference Sandefur, Pleasance, Buck and Balmer2007) and on the plaintiffs’ outcomes in courts (Best Rachel et al. Reference Best Rachel, Edelman, Krieger and Eliason2011). Yet, in the French context, social scientists and legal scholars have long considered legal inequalities mainly in terms of social class, in a Marxist and Bourdieusian tradition (Herlin-Giret and Lejeune Reference Herlin-Giret and Lejeune2022): the incorporation of gender into analyses began in the 2010s (Cardi and Devreux Reference Cardi and Devreux2014; Hennette-Vauchez et al. Reference Hennette-Vauchez2014), the attention to race is even more recent (Vuattoux Reference Vuattoux2018on juvenile courts; Bessière et al. Reference Bessière, Biland, Bourguignon, Gollac, Mille and Steinmetz2018 on family courts; Jobard and Slaouti Reference Jobard, Slaouti, Slaouti and Grandmaison2020 on criminal courts). Given the legacy of the “colorblind” republican model (Bleich Reference Bleich, Chapman and Frader2004), racial categories are not institutional categories in France, meaning that people are never asked to self-identify in official settings, neither in surveys nor in court or in legal records. Studies that systematically articulate race, gender, and social class have only recently developed, in a highly charged political context (Lepinard and Mazouz Reference Lepinard and Mazouz2021).

The French case

In France, marriage is losing ground. According to the French national census, only 72% of couples were married in 2019, in contrast with 90% 20 years earlier. In 2022, 64% of children were born outside of marriage (according to the French National Institute for Statistics and Economic Studies – INSEE). As a result, family court handles two situations in comparable proportions: divorces make up about one half of the caseload, and dissolutions of marriage-like relationships involving children the other half.

Uncontested divorce (called “divorce by mutual consent”), first introduced in the French Civil Code in 1975, allows couples who agree on divorce to end their marriage without giving a reason, and to make their own arrangements for its dissolution. Since the 2010s, more than half of all divorcing couples have chosen this procedure, which has been simplified over time. Since 2017, couples can divorce by mutual consent without going to court, as long as both parties are represented by a lawyer and the agreement is registered in a notary’s office. Divorce by mutual consent is a socially selective procedure, common amongst middle- and upper-class couples who have dual incomes (Biland et al. Reference Biland2020: 553). Conversely, socioeconomically disadvantaged litigants are more likely to go to court, either in contested divorce proceedings, but more importantly as unmarried parents, or parents who have already divorced, for the purpose of settling or modifying child support and/or custody (ibid.). A large proportion of the French family court caseload is initiated by the custodial parent (often a mother), who is required by law to have the court recognize the noncustodial parent (often a father) as being impecunious, in order to receive a child support allowance (allocation de soutien familial) from the public Family Benefits Office (Caisse d’allocations familiales): this requirement accounts for around a third of family court decisions on child support (Collectif Onze 2013: 213-219). Unlike the United States or Canada (Biland Reference Biland2023), none of these procedures at court involve long adversarial hearings with examination and cross-examination of witnesses. Hearings are rather short: according to our observations, they range from three minutes to an hour and 20 minutes, with an average of 18 minutes (Collectif Onze 2013:15).

Not all litigants are represented by a lawyer in French family courts. Hiring a lawyer is mandatory for divorces, but not for procedures involving unmarried or already-divorced couples. In 2013, in non-divorce proceedings, 55% of women were represented versus 41% of men (source: 3,000 Family Cases Database). This gender gap is due to the greater involvement of women in legal proceedings because of greater economic consequences for them at the moment of dissolution – which can also be seen in the fact that, compared to men, women are more often plaintiffs and present in court (Collectif Onze 2013; Bessière and Gollac Reference Bessière and Gollac2023: 191). Legal representation mostly depends on the financial means of the litigant. In non-divorce proceedings, 80% of litigants who earn more than 5,000 euros per month are represented, whereas it is the case for only 53% of litigants earning less than 1,200 euros per month. There is no specialized legal aid office or lawyers in France, but legal aid is available for low-income clients to hire any lawyer at a set rate (at the time of research, 685 euros for an uncontested divorce, and 776 euros for a contested divorce). Lawyers have the right to refuse to work for these low fees and are more or less willing to accept legal aid clients.

How I met my lawyer: Segmentation of the family law market in mainland France

The family law market is highly segmented in Paris and its suburbs. A small number of firms in the posh neighborhoods and wealthy suburbs of Paris, specialized in estate or private international law, offer their expert counsel to wealthy and mostly White clients. They cater to clients from the economic, political, or intellectual French and international elite. Most of these lawyers are White women from the upper-class, socially close to their clients. These firms offer personalized service to their clients, dealing with all aspects of their family disputes, trying their best to protect their business from the inquisitive gaze of the courts. They often promote alternative dispute resolution as an elitist practice to attract a wealthy clientele. Their fees are high, between 250 and 550 euros per hour and they will not take any legal aid cases.

At the bottom of the ladder in greater Paris, relative to remuneration and client wealth, are the junior lawyers on the legal aid list. They are forced to work a heavy caseload to earn a living and build a clientele. They are more often racially marginalized with parents coming from West and North Africa or Southern Europe, and they often share ethnic or national origin – and consequently a language – with their clients. Aissa Sissoko, for instance, is a 35-year-old Black lawyer born in Mali, her parents were illiterate when they came to France and her father works as a bus driver. Her practice is in the poor Paris suburb of Naverty, and most of her clients (85% according to her) receive legal aid and come from her former and relatively underprivileged neighborhood (Aïssa Sissoko Interview, October 2019, with Céline Bessière and Gabrielle Schütz).

Observations in western France, revealed a much less segmented legal market. Lawyers practicing family law see each other frequently in court and work with roughly the same clientele, overwhelmingly working- and middle-class, and White. As Yves Le Floch, a lawyer with over 30 years’ experience, explained, “we aren’t in Paris, here. In Paris you can be selective, you have the clientele and the litigation […] In bars like ours, we can’t” (Yves Le Floch Interview, February 2014, with Camille Bertin and Gabrielle Schütz). Thus, all the lawyers in Besson accept legal aid, although to varying degrees. The fees they charge are much lower than in Paris. An uncontested divorce with one lawyer for both parties is billed at 1,400–2,100 euros, and the base rate for a contested divorce is 2,000–2,500. In Besson, the most profitable clientele is made of self-employed professionals, business people, and corporate executives who are socially similar to their lawyers who come from White middle-class backgrounds. As in Naverty, most firms in Besson rely on a heavy caseload for economic viability, although a few specialized lawyers target a middle- and upper-class clientele (albeit less wealthy than in Paris) which they meet at social and professional circles.

Clients and lawyers are not randomly matched. Female lawyers are more numerous regardless of location – of the 1847 lawyers in the 3,000 Family Cases Database, two-thirds are women – and female clients are more likely than men to be represented by a female lawyer, 71% compared to 63%. In Besson, all lawyers and most clients are White, whereas in Paris and its suburbs, lawyers and clients belong more often to racial minorities. A proxy to measure it with the 3,000 Family Cases Database is through the country of origin: 90% of litigants in Besson are born in France, whereas it is the case of only 51% in Naverty (36% are born in North and sub-Saharan Africa) and 59% in Paris (25% from North and sub-Saharan Africa).

Also, couples of lesser means do not have access to the same lawyers as wealthier couples. This has an impact on the time and energy lawyers devote to cases and on clients’ experience of the legal process. Some lawyers sell budget packages for quick divorces or can’t afford to spend much time on their numerous clients’ cases, in contrast to elite specialized family lawyers hired for the (billable) full availability they offer.

Therefore, the circumstances and lengths of the meetings vary significantly depending on the clients’ social class. Of the 40 observed meetings where we know the client’s occupation, those involving working-class clients averaged 41 minutes (n = 16) versus 55 minutes for middle-class clients (n = 11) and 61 minutes for upper-class clients (n = 13). The average appointment with low-income clients lasted 31 minutes (n = 12). Lengths of the meetings vary depending on gender too: appointments were on average longer with male clients (n = 20), 55 minutes versus 44 minutes with women (n = 24).

There are discrepancies in the size of legal files as well. The length of lawyers’ legal submissions varies with their clients’ social class and income (there is no difference in mean or median submission size by gender). It is significantly shorter for legal aid recipients: 6 pages on average versus 10 pages for the other litigants. It averages nearly 12 pages for executives, and higher intellectual professions, and only 7 or 8 pages for laborers and basic employees. The higher the litigants’ income, the longer the submissions: up to 15 pages for litigants earning over 5000 euros per month versus 7 pages for those under 2000 euros (source: 3,000 Family Cases Database).

The quantity of documents included in the file (typically, pay slips, bills, and testimonies from relatives) also varies depending on the client’s social class and gender. In the contested divorces proceedings (N = 1950 litigants with information on file composition in the 3,000 Family Cases database), the files of executives and higher intellectual professions include on average 26 documents, whereas laborers’ files only contain an average of 13, and basic employees’ files 17. Regardless of social background, women go to court with a thicker file than men.

More than the quantity, lawyers say the quality of this documentation is crucial. Michèle Abitbol, an experienced lawyer of the Besson bar summed it up with a baking analogy: “A file and its documentation is like a cake, if you bring me good ingredients it makes a good cake, and if not, it makes one that isn’t great” (Michèle Abitbol Interview, February 2014, with Marie Hautval and Muriel Mille). Clients are unequally positioned to provide the “good ingredients” and the quality of these depends in part on the power dynamics with their lawyer.

When coproduction runs smoothly

In a first scenario, lawyers demand a lot from their clients, and clients meet their expectations. Coproduction then runs smoothly. This easy cooperation mainly involves female clients and is widespread across all socioeconomic and racial backgrounds, although it takes different forms depending on the structure of the legal market. It is found in three configurations.

The first one is that of working-class women (racially marginalized or not) who provide ample neatly sorted documentation to their lawyer, frequently junior and sometimes racially marginalized too, who also do a great deal of work for them. For instance, Mélanie Touraine N’Diaye, 42, a mixed-race lawyer, coming from a middle-class background (her mother is a nurse from Normandy and her father an engineer from Guinea), runs a small office in the poor Paris suburb of Naverty. She gives a glowing description of her racially marginalized, lesser-educated female clientele:

Lawyers’ moral judgments of their clients are inextricably linked to how actively each client works on his or her case, which they refer to as client “involvement.” Working-class women – including racially marginalized migrants who are well connected to welfare institutions (the family benefits office, literacy organizations) – are more likely than their male partners to comply with lawyers’ expectations, confirming a classic pattern in the division of domestic work relating to papers, money and administrations in working-class families (Zelizer Reference Zelizer1994). They initiate legal proceedings more often than men (in 65% of cases when there is no joint request, source: 3,000 Family Cases Database) and some may have already prepared them with case workers. Legal advisors in welfare centers may also regularly follow up with a lawyer (who is often poorly paid with legal aid) when a case is stagnating, nudging her back into action.

A second configuration when coproduction runs smoothly occurs in a completely different situation, that of low-cost mutual consent divorce requiring little legal work. In France, mutual consent divorce is a rather selective proceeding, more often chosen by middle- and upper-class couples than by working-class couples (Biland et al. Reference Biland2020: 553). Some lawyers only accept cases of divorce by mutual consent, which they expedite as “quick and easy” divorces, dealing mostly online with their clients. Significantly, mutual consent files in our database were more likely to be represented by male lawyers (39%) than other contentious proceedings (27%). For instance, Arthur Ndongo is a Black lawyer in his thirties, born in Republic of Congo, with a clientele of small business owners from North and sub-Saharan Africa. His practice is focused on commercial and immigration law, and only 10% of his cases are in family law: he turns down cases that would be costly or time-consuming and only accepts simple divorces by mutual consent, with a flat rate adapted to his clients’ income (between 1,500 and 3,000 euros). Like many of these non-specialized lawyers, he relies on the material and emotion work of the clients to expediate these amicable proceedings, expecting his clients to come to an agreement and to provide all necessary documents:

A last configuration of smooth coproduction is linked to the development since the 2000s of “collaborative law” in France, offered by lawyers who are generally White women who cater only to middle- and upper-class clients. Derived from the Anglo-American legal tradition, collaborative law seeks the amicable settlement of an uncontested divorce through a series of formal meetings between the divorcing parties and their respective lawyers, which lead to a written agreement outlining the arrangements for the divorce. This practice was developing in the area of western France that we studied, where it was billed at a flat rate of 2,500 euros; however, overrun charges, billed at 200 euros an hour, were common. “It’s actually quite appealing, financially, for us,” the lawyer Grâce Dupont-Bernard concluded at an informational session on collaborative law for fellow members of the bar, though several lawyers responded by decrying the fact that legal aid recipients were ineligible for it, regretting a form of “two-tier justice” (Observation by Camille Bertin, Sibylle Gollac and Gabrielle Schütz, February 2014). Beyond money, lawyers practicing collaborative law stress that the divorcing couple must have the adequate cultural skills. Grâce Dupont-Bernard repeatedly stressed that the appointments of separating parties and their respective lawyers averaged two and a half hours, and only those clients “with a certain level of culture” were able to “be sufficiently focused” and “knew how to make an effort.” Consequently, only the local elite of businesspeople, members of the professions, managers, and teachers (almost always White) with enough economic and cultural resources actually take advantage of collaborative law. It allows lawyers to draw at least part of their clientele from the more affluent social groups closest to their own and foster in-group complicity, favoring satisfactory arrangements out of court. The three collaborative law appointments that we observed in the Besson region stood out for their durations (from an hour and a quarter to two hours) and the variety of topics, from assets and taxes to intimate lives (each case included lengthy stories of adultery). By laying out their private lives and asset arrangements in the confidentiality of the law office, the clients avoid having to air them publicly in court.

In all three configurations, beyond a request for evidence to support their case, lawyers’ have several kinds of expectations toward their clients.

First, they expect them to have a certain state of mind in the coproduction, noticeably trusting them and not hiding anything. Clients are generally required to tell lawyers their whole personal stories. In interviews, lawyers explained this was the purpose of the first meeting, dedicated to unpacking their clients’ emotional baggage. This is particularly the case of collaborative law, but it is also true of other practices. For instance, an experienced female lawyer in Besson, Michèle Abitbol, encouraged a White commercial sales representative (late thirties, married to a nurse’s aide) to tell all, saying: “I’m your lawyer. I need to know everything. I won’t use it, but at least I’ll know.” The client told her about his affair and his wife’s suicide attempt, and Michele Abitbol peppered him with questions about his feelings and emotions as well as his professional and economic situation. To the researchers, she made a parallel between the hour-and-a-half meeting and a “confessional” (Observation by Marie Hautval and Muriel Mille, April 2014). Even when appointments are shorter, lawyers insist that clients reveal their intimacy, asking them to defer to their expertise and rely on them to avoid unpleasant surprises. This disclosure is all the easier when there is a social proximity with their clientele, which can help establish a certain connivance. For instance, when Grâce Dupont-Bernard received in her Besson office a female 50-year-old university teacher divorcing an architect, their meeting began by listening to a voice message from the husband, followed by a lengthy discussion on its interpretation and various considerations on his personality. This moment revealed the excellent understanding between the two women, who are roughly the same age and belong to the same social class (Grâce Dupont Bernard is married to a medical doctor). “You’ve seen the complicity I have with her,” commented the lawyer afterwards (Observation by Céline Bessière and Camille Phé, February 2014).

Second, lawyers expect their clients to work: on their material situation, on their demands and, in the case of contested proceedings, on their presentation in court. At the beginning of a divorce or a dissolution, clients must reorganize their lives meaning that they have to arrange their material and personal situations to be able to support their legal demands. They face a variety of challenges: a parent leaving the marital home needs a new place to live where he or she can accommodate the children; a partner staying in the marital home need to have it assessed to compensate the departing partner; debts have to be accounted for to know how much alimony can be paid. These issues are structured by social class – some have assets in need of evaluation, others have debts to settle –, but also by gender – women are less likely to keep the marital home because they cannot afford to maintain it or pay the bills alone (Bessière and Gollac Reference Bessière and Gollac2023: 128) –, or by migration history since settling the material situation can be particularly complicated if there are foreign assets. Some issues are urgent, some are not. They weigh more or less heavily on personal life and living conditions, depending on the available financial resources and family support, but also on the duration of the procedure.

Additionally, clients work to transform themselves into litigants and to align their claims with the expectations and norms of legal institutions. This “legal” normalization of clients, as previously described by Sarat and Festiner (Reference Sarat and Festiner1995), can also be considered as a “moral” normalization (Bessière et al. Reference Bessière, Mille and Schütz2020). Clients are expected to work on their claims, their self-presentation, their behaviors, and their emotions in order to conform to the expectations of legal professionals (in matters of parenthood for instance), or to the polished attitude expected in court.

The “legal” normalization work can take different forms, from online divorce by mutual consent (where standardized options minimize the lawyer’s work) to custom alternative dispute resolution methods. For instance, collaborative law develops tailor-made solutions for affluent couples, but it must also help clients to work deeply on their affects in order to ensure a truly sustainable outcome. As lawyer Grâce Dupont-Bernard put it:

The last type of work required of clients is the preparation for the hearing, in particular in contested proceedings. This part of the work implies a moral normalization of the clients’ behaviors. The hearing can be described as a stage where litigants incarnate their demands and must strive to present themselves in the most favorable light before the judge. To achieve this, they must work on themselves beforehand, with the guidance of their lawyers in order to navigate stereotypes in the most favorable way for their cases. We examine here two cases that are related to gender stereotypes faced by working- and middle-class mothers, which their female lawyers try to work around, since it is the most frequent situation observed in the smooth coproduction configuration.

Preparation for the hearing implies self-presentation and emotion work (Hochschild Reference Hochschild1979) from the client, as we can see in the observation of a lawyer–client meeting that took place in a small office located in a suburban house basement in the Parisian suburb of Naverty. A French-Portuguese lawyer, aged 30, Mylène Després, met with her White female client who was around the same age and worked as an emergency room nurse. The client was afraid that her husband would ask for sole custody, as she wanted to keep her three young children living with her. Mylène Després lamented the fact that her client had sent several aggressive text messages to her ex, which might be used against her at the hearing, so she coached her client:

In this case, self-presentation and emotion work are obviously gendered, as this lawyer wants her client to work on her emotional state. The latter should suppress certain emotions, especially the aggressive ones, which would not fit into the lawyer’s strategy of presenting her client as a reasonable and responsible mother. This advice is based on a stereotypical image of women who must be gentle and master their anger, as anger is considered a more masculine emotion to display (Hochschild Reference Hochschild1983:163).

Some lawyers prepare talking points with their clients, also playing on parental and gender stereotypes. In one case, Michèle Abitbol of the Besson bar has a meeting with a recently separated White woman in her thirties, employed in a beauty salon, who had effective custody of her four-year-old daughter. In the lawyer’s office, she expressed her fear that the father would demand “extended” visiting rights or even joint custody in court. She explained that her ex only notified her at the last minute when he wanted to see their daughter, she found him manipulative and thought he might have a bad influence on her daughter, so she wished he would see her less. Michèle Abitbol, writing a request for the woman as she spoke, constantly rephrased her words to soften their tone. To communicate accusations of the father’s inconstancy, she wrote: “Madam wishes to schedule her time,” commenting to her client, “we must especially insist on the fact that it disrupts your schedule, but you want your daughter to see her daddy for the child’s best interest!” She emphasized the importance “of not limiting the father’s rights,” a sentence that she repeated as a mantra during the 35 minutes meeting, to ensure that her client had the best chance of success in the upcoming hearing (Observation by Céline Bessière and Gabrielle Schütz, February 2016). Thus, the lawyer tried to prevent her client from being stereotyped as an “overbearing” mother, a classic cliché used to undermine the legitimacy of women’s claims in family law (Biland and Schütz Reference Biland and Schütz2014). Lawyers strategically play on the judge’s presumed gender stereotypes about proper motherhood and fatherhood in order to win their clients’ cases. In the smooth coproduction configurations involving mainly female clients, the latter are willing, albeit reluctantly, to follow the advice of their lawyers, even if it pushes them to do things they don’t want to do. We will see later on that lawyers give completely different advice to their male clients regarding fatherhood, and that the latter are less eager to follow their lawyers’ strategy.

When the client is the boss: Coproduction at the initiative of the client

In a different configuration, the clients have the upper hand on coproduction. This concerns mostly White and male upper-class clients who can afford to hire expensive and highly specialized lawyers who take the “dirty work” off their hands thanks to an efficient division of labor inside law firms. These clients are more likely to take charge of the direction of their cases, but are not expected to engage in extensive work on their claims, behaviors, or personal situations. Coproduction can occur, but usually at the initiative of the client, not the lawyer.

In Paris, some specialized family firms form an elite inside the bar, with an exclusive service and very high fees. Unlike other segments of the family legal market, where lawyers typically work alone, these firms are led by experienced White female lawyers who are assisted by a legal team. The team is mostly composed of junior lawyers (who are also often female) who can help clients collect and organize personal documents to build their legal files.

Despite this delegation of menial work, clients exert strong control over their case and its legal direction, in particular by limiting the intervention of the legal institution in their personal affairs. For example, the wealthiest clients do not engage in time-costly procedures such as collaborative law: appreciated by regional elites outside of Paris, it is a poor fit for the very rich in the capital. Specialized in private international law for the very wealthy (her hourly fee is 450 euros), Paris-based lawyer Clotilde Reymbaut-Dawkins is a strong advocate of collaborative law, but only practices it with French clients who have no assets abroad: “The four cases I have are in French family law.” However, most of her clientele is international and involves “financially complex cases”: there is a competition between ex-spouses to be the one to initiate proceedings in the country where the law is most favorable to them, which creates “a rush to court” that is completely contrary to the principle of collaborative law, which takes time. She tells us: “This rush to court means that lawyers dealing with international matters, in reality, they cannot make their clients take the risk of … negotiating” (Clotilde Reymbaut-Dawkins Interview, December 2014, with Muriel Mille). Such cases require lawyers to negotiate in other ways, often with the intervention of other professions (mediators, psychologists, certified accountants, tax specialists, wealth managers), and can be settled without the physical presence of clients or full exposure of their personal lives, which occurs in collaborative-law meetings.

We encountered these configurations mostly in the elite law firms of Paris. In Besson, upper-class clients are not offered the same level of exclusive service as the ultra-rich in Paris, but they can be discharged of some of the tasks, while trying to exert control over their case and over their lawyer. This is made possible by the fact that clients from the professions or with business backgrounds are often familiar with legal terms and the law.

In the following case, there is legal coproduction, but it is initiated by the client rather than by the lawyer. In one meeting with his lawyer Clémence Bourgoin in Besson, a White lieutenant-colonel of the French army (married to a secondary school teacher) takes extensive notes and precisely details his personal budget. In a sort of role reversal, the client is the one conducting the meeting, presenting his lawyer with various strategies to minimize the compensatory allowance he would have to pay his wife and to hide some of his assets. Well informed, he even corrects her when, exhausted from her afternoon (it is her fifth meeting), she confuses two kinds of taxes on assets. During the meeting, she seems happy to use his typed response to his wife’s writ of divorce: “It’s great that you’ve prepared everything for me! You’ve made my work easier!,” and she patiently points out the limits of his various strategies. While she keeps her composure and patience during the meeting, she lashes out with us afterward: “He killed me, he finished me off! He’s really the psycho-rigid military type, he’s stingy, he doesn’t want to give anything away! Not one cent!” (Observation by Hélène Oehmichen and Gabrielle Schütz, February 2016).

Only an intersectional perspective considering the characteristics of both the lawyer and the client can make sense of this scene. Clémence Bourgoin is a 40-year-old White female lawyer from a family of pharmacists, one of the junior partners in a firm with 15 senior partners. Despite their social and racial proximity (as a lieutenant colonel, he belongs like her to the upper-class, used to being in charge), the 50-year-old client can exert domination over his lawyer mainly based on gender, and second age, questioning her professional skills. Just like many junior female family lawyers dealing with older, upper-class men accustomed to being in charge in their professional lives, the lawyer struggles to assert her expertise and professional autonomy with her client. This requires extra emotional labor on the part of lawyers, as they must listen to their clients, appear professional and competent, and assert their counsel, all at the same time.

In a well-known and exclusive Parisian law firm specialized in family and estate law for a wealthy clientele, three White senior partners receive clients (mostly White men and women, executives, and business owners), decide on legal strategies, and plead in court, while eight junior lawyers (exclusively White women in their twenties) compile case documents, draft legal arguments, and manage day-to-day communication with clients. Among the latter, Amélie Schwartz, 27, told us that business owners could have the upper hand with her, but it was harder for them to challenge the strategy of the senior partner she worked for – a highly regarded 50-year-old family law attorney:

Upper-class litigants may want to decide the direction of their case, yet they frequently lack the requisite expertise to navigate the intricacies of their dissolution procedures. Business owners and senior executives commonly use unsuitable terms from corporate and labor law when discussing the termination of their domestic relationship, and their lawyers tactfully correct them when it occurs.

The failures of coproduction

The lawyer–client relationship may face obstacles that hinder legal coproduction. These obstacles arise from various factors, such as clients lacking the necessary resources to perform the expected work or being hesitant to follow their lawyer’s advice. Furthermore, some clients may struggle to avoid gender, class, or race stereotypes, which can prove particularly problematic during hearings. Failures in coproduction often occur when lawyers represent clients who are economically disadvantaged and/or racially marginalized.

Clients are put to work unequally. First, to limit the cost of the procedure, lawyers will ask more of those clients who cannot afford to pay them as much as others. Second, what is asked of clients doesn’t take the same toll depending on their personal situation and resources. Poor and working-class men – mostly of color in Naverty or White in Besson – are usually little acquainted with legal professionals as well as with administrations and legal institutions in general. In court, some of them show up empty-handed or flaunting a “couldn’t care less attitude” (Hoggart Reference Hoggart1957: 224; Collectif Onze 2013: 108), which proves detrimental to their case. In their attorney’s office, faced with the task of providing the necessary documents for their files or articulating their legal claims, many of these clients fail to live up to their lawyers’ expectations. A lawyer in Besson with over 20 years of family law experience in a firm with a significant proportion of legal aid cases, Brigitte Lafon complains about the work, or lack of work, done by poor and working-class clients with limited economic and cultural resources:

This interview displays the role of cultural capital in meeting lawyers’ expectations, as clients can struggle to write proper affidavits. When the ingredients are not “good” enough, lawyer and client risk failure in court to the detriment of client’s outcome and potentially compromising the lawyer’s reputation. Therefore, lawyers are careful of when to put their clients to work, depending on the clients’ resources.

Brigitte Lafon’s choice of action, as one who sometimes refuses to sort through her clients’ documents, was related to her position as an experienced lawyer in a small firm with a socially diverse (and mostly White) clientele in a small town. Economically, she had to accept low-income clientele with legal aid but could be irritated by the workload they represent, displaying a form of classism in her judgment about these clients (“intellectual problem”). Lawyers sometimes interpret the attitude of economically disadvantaged or racially subordinated clients as passivity and lack of involvement in their cases, but it can also reveal the clients’ distrust of institutions and even of their own lawyers (Clair Reference Clair2021).

We encountered similar configurations with young female (and not always White) lawyers working with low-income male clients of color in Naverty. They accept this clientele but can be particularly judgmental with them. Lawyers are often very directive with these clients, and ask them to work not only on providing documentation on their material situation, but also on rephrasing their demands.

Adan Yilmaz is a 40-year-old family lawyer from a Kurdish background, based in Naverty, who mainly assists Kurdish men (90% of her cases). She explained how she reformulates the demands of her migrant clients and, more profoundly, their way of being a father, to make them conform to the expectations of family justice in France:

Adan Yilmaz’s work on her male Kurdish clients’ demands has two goals: promoting their compliance with the expectations of the court throughout the procedure and, more broadly, changing their mindsets as fathers. This commitment does not go as far as trying to transform Kurdish mothers, who, she claims, have an unfortunate tendency to allege nonexistent domestic violence in order to justify their divorce and escape stigma in a community where it is still frowned upon. While Adan Yilmaz said that she willingly “pressures” men who refuse to listen to reason (on the payment of alimony, for example), she explained that “it is easier to assist men and make them understand things” compare to women that she found “difficult” and “stubborn.” The lawyer’s categorization of clients based on gender stereotypes should be understood in the context of her firm’s economic model and the stage of her own career: in the beginning, she took on mostly legal aid cases, but later she stopped, which led to a decrease in the number of female clients. This change allowed her to concentrate on persuading male clients to work on themselves.

As stated previously, the legal normalization of clients is also accompanied by a moral normalization, in which the social distance between lawyer and client comes into play, framed by gendered and cultural stereotypes. Male and female working-class and racialized clients are asked to work (here by racialized lawyers) on their demands and presentation to conform to the parental and educative norms of law professionals and especially judges, often White and female in France (Bessière and Mille Reference Bessière and Mille2014). During the process, clients may be subjected to gender and racial essentialization by legal professionals.

Economically, culturally, or racially disadvantaged clients may feel overwhelmed by their lawyer’s demands, as they may not fully understand their lawyer’s strategy to fulfill or escape stereotypes that could be helpful to their case. In court, for instance, a common expectation among legal professionals – both lawyers and judges – is that a good father must work and provide for his children as evidence of good parenting (Collectif Onze 2013: 218). This is what lawyer Brigitte Lafon has in mind when she meets her client, a White man in his early thirties. A laborer in the metallurgy industry, he has been employed for the past 2 years in a factory that is about to close. He has two children in custody of their mother, and he asks to have the alimony recalculated according to his newly unemployed situation. Upset and at loss, he is accompanied in the lawyer office by his mother. Brigitte Lafon urges him to file for over-indebtedness (repeating eight times that “the over-indebtedness file must be urgently submitted”) in order to prove that he cannot pay the child support any longer. Not listening to her, he goes on about his ex’s behavior, accusing her of smoking weed in front of the children, and spending her social benefits on clothes and dog food. The client does not fully understand what is asked of him. His mother is not of great help. Both of them seem to have difficulties focusing on the judicial case at stake, they keep commenting on Facebook pictures of his ex and cry a lot when he says: “I’m afraid I will disappear from my children’s lives (…) I want to see my children live and grow up.” At one point, the client mentions that he has turned down four job offers in order to look after his children, which strongly irritates his attorney: “Do you want to be perceived as a welfare recipient?” His answer is obviously not what Brigitte Lafon was expecting: “Without working, Madam [his ex] makes more money from social benefits than I do!” Now openly upset, the lawyer concludes: “We live in a society of welfare recipients.” She cuts the conversation short, urging him to find a new job: “I’ll see you in August. You have to work! You’ll be moping around if you don’t work” (Observation by Marie Hautval, April 2014). Inextricably, class, age and gender lines come into play in this difficult interaction between a female lawyer with over 20 years’ experience and her young male working-class client. Only because the client is a young man from the working class, can the experienced lawyer in her mid-forties adopt such a patronizing tone. This interaction is also highly gendered. While the client pleads that having time to care of his children is a sign of good parenting – an argument that would be more effective for a working-class mother raising alone her children – his lawyer pushes him to prioritize getting a job rather than relying on social services so that he can spend more time with his children. Through this type of interaction, lawyers are not just playing on gendered stereotypes to win their clients’ cases at court. Rather they are actively contributing to the reproduction of gender stereotypes – available mothers versus providing fathers – as well as gendered hierarchies and inequalities.

The failures in the cooperation between lawyers and clients are particularly visible in court hearings. Indeed, an important part of the work of family lawyers consists of filtering out client requests and disclosures that do not fall within the scope of the procedure. At court, we observed that White middle- and upper-class litigants have better control over what they reveal of their private lives, due to their better mastery of the formal interactional framework of the hearing (Collectif Onze 2013: 116). Observations of lawyer–client meetings prior to hearings enhance this analysis: middle- and upper-class litigants probably have an easier time before judges because they can cooperate better with their lawyers and have a better grasp of their cases. On the other end, some litigants, often from the working-class, can challenge their lawyers’ patience. In lawyer interviews, the theme of the client being the lawyer’s “primary enemy” is commonplace. Sometimes, client testimony undermines laboriously crafted pleas.

At a hearing at the Besson Superior Court, Yves le Floch represents an assistant manager of a garage against his ex-wife, a medical secretary, who was contesting the joint custody of their two daughters to which they had agreed in their uncontested divorce 6 years earlier. The daughters did not get along with the father’s new partner and her two children. A social services investigation described the great sadness of the two daughters, who felt neglected by their father, and mentioned that they had recently started seeing a psychologist. At the hearing, Yves le Floch depicts his client as a man who loves his daughters and takes good care of them, a man who “wants peace.” He implies that the mother is manipulating her daughters. After Yves le Floch’s pleadings, the judge questions directly the father who explains that he is “disturbed” by his daughters’ attitude and their “lies.” He addresses his ex-wife to ask her why she lied about the toothpaste – in the case file, the mother related that the father and stepmother had refused to buy the toothpaste recommended by the children’s dentist. The judge interrupts him and interjects, “You can’t act as if this [unhappiness of the daughters] doesn’t exist and as if Madam X [the mother] is to blame for everything – otherwise, in three or four years, your daughters won’t want to see you anymore” (Observation by Camille Bertin and Hélène Steinmetz, February 2014).

Reflecting back on this hearing during an interview, Yves le Floch doesn’t hide his irritation: “The main issue of the case was the distress of the eldest child. […] And the only thing he could come up with was the toothpaste story! This is serious business!” (Yves le Floch Interview, February 2014, with Camille Bertin and Gabrielle Schütz).

The literature on service professions has long documented how difficult cooperation between service providers and clients can be, and the antagonism that can result (Hughes Reference Hughes1956). Lawyers face the professional challenge of controlling clients’ interactions throughout proceedings (particularly those with judges and the opposing party) to prevent them from undermining their client normalization work. This can lead lawyers to judge their clients harshly, especially when their professional reputation is at stake. Aïssa Sissoko, for instance, a 35-year-old Black lawyer in Naverty, does not work actively on her clients’ demands when she judges them unreasonable. She mentions a working-class father asking for shared custody of his son despite never having lived with him. “I am the voice of my client. It doesn’t matter what he says, even if it strongly contradicts the objective elements of the case, it’s up to me to carry his voice” (Aïssa Sissoko Interview, October 2019, with Céline Bessière and Gabrielle Schütz). To resolve the contradiction, she formulates a subsidiary claim that she considers as a more reasonable request. This is a strategy to keep her credibility in front of the judge and to “cool the mark out” (Goffman Reference Goffman1952, Reference Goffman1961). She plays on two scenes in order to uphold her professional authority, earning her client’s trust by indulging to his unreasonable request while keeping her credibility in court.