Case for law change that would curb `fat-cat' lawyers fixing their own fees

Of all the cubs being suckled by the Celtic Tiger, by far the fattest, sleekest and best nurtured are the lawyers. As they frolic and gambol in the Law Library, they betray bemusement that others are in awe of their bounty.

Only after it became a matter of public controversy was the issue of legal fees resolved so that the Flood tribunal inquiring into allegations of abuse in the planning system could proceed. To most taxpayers the agreement to allow £1,450 a day for the first 30 days, £1,400 for the next 20 days and £1,350 a day thereafter, together with an initial "brief fee" of £25,000 to each senior counsel doesn't seem much of "a compromise". The chasm in mutual understanding between lawyers and citizens is so wide that they may as well inhabit different planets.

The Law Library appears utterly dismissive of the proposition that bartering over legal fees has delayed the Flood tribunal. The delay is "political", the lawyers say. The Government was determined that its prospects in two critical by-elections would not be undermined by the fallout from a planning tribunal centred on one of the constituencies going to the polls. Hence the necessity to slow it down. Fees for legal representation are, according to the lawyers, perfectly "normal".

This writer is persuaded of the "political" argument for delay, but that does not make the level of fees agreed appear "normal". The funny thing is that lawyers don't overly mind what the public or politicians think. The fixing of fees is an in-house matter to be settled with appropriate decorum with the leader of the Bar, the Attorney General. Mention of average industrial earnings in the company of the top lawyers may be akin to offering free Rehab lottery tickets. Each one of them can effortlessly command up to double these "normal" fees in the marketplace of the Law Library. Even within the legal/judicial system itself the recent decision of the Supreme Court to cut a barrister's brief fee in half for his appearance on behalf of a State organisation before An Bord Pleanala would seem to suggest certain concerns as to what has become "normal" within the profession. The public has been further alarmed by, and regards as simply unconscionable, the prospect of a third of a putative £1 billion-plus in Army deafness claims going in legal fees.

What, if anything, can be done? If the 1995 survey of earnings showing that a quarter of all barristers earn less than £4,000 a year is accurate, the earnings pyramid in the legal profession is a somewhat unusual one. Carried to its logical conclusion, a recent High Court decision to "let the market dictate" would mean that only the State, corporate entities and wealthy individuals would have access to justice. Of course, lawyers will argue that - and certainly in the case of many of those at the top of the profession with validity - they take on work pro bono for precisely the kind of litigant who would otherwise be disqualified for reasons of financial capacity. There seems to be an unwritten understanding that the otherwise very high fees of leading barristers include an element to compensate for this kind of work.

The 1990 Report of the Fair Trade Commission attempted to grapple with this issue as it relates to both branches of the profession. It notes that in Denmark the state fixes fees in legal aid cases, and lawyers' associations fix scale fees for property transfers and court appearances and "for most other work". While recommended, and capable of being adjusted up or down, "these appear almost to be mandatory". In Sweden, lawyers' fees are not recommended by the lawyers' associations. There is government and court involvement in fees.

The citizen is left wondering what conclusion ought to be drawn from the commission's logical observation that "If fee competition is allowed between the providers of a particular professional service, it is likely that fees actually charged will be lower, possibly considerably lower, than if such competition did not exist as a result of fees being recommended or made mandatory by a group of persons within that profession or by a professional body."

In its analysis of whether any restrictions on competition on fees are unfair or contrary to the common good, the commission concluded that in respect of own-client costs "fees for own-client services should be determined by free negotiation between lawyer and client in each individual case, since each case differs from all others to some extent at least".

And it went on to recommend one derogation from that general principle, that in the case of State briefs "the representative bodies might be allowed to engage in collective bargaining on behalf of their members with State officials to agree on fees".

It seems timely to ask the Competition Authority to re-examine this issue, having due regard to recent judgments of the Taxing Master, and specifically whether it would be feasible to give expression in legislation to certain of the criteria set out in those judgments.

Pat Rabbitte is a Democratic Left TD for Dublin South West