The Minister for Justice, Frances Fitzgerald, completed the passage of the Legal Services Regulation Bill on April 23rd, and the Seanad Second Stage is now under way.
The Bill, introduced in 2011 by the previous minister, Alan Shatter, will bring major changes when it is enacted: more access to barristers – on a limited range of issues – and, for clients, a more onerous fee disclosure process on solicitors and barristers. The intention is that the Bill will be completed so the new Legal Services Regulatory Authority will come into operation this year.
But the starting point for most of us in need of legal help remains the same: you’ll need to hire a solicitor. This guide is the outcome of anonymous interviews with 20 experienced members of the legal profession about taking that first step.
We know what to do when we need to find a doctor, electrician or plumber: ask around for a good recommendation. We are familiar, however vaguely, with what these practitioners do. We can judge their work, and, as it’s a safe bet that we’ll need their services again, we can decide whether or not to return to them in the future.
Choosing a solicitor is not quite the same. We hope we’ll never need one, but statistically a fair number of us will buy and/or sell a house, make a will or have an accident or injury. These three situations are the solicitors’ staples.
If our first experience is satisfactory, many of us automatically return to the same solicitor if another issue arises. According to several sources, that’s where the risk lies. “The day comes when you have a problem, and you go back to that nice young woman who was so efficient dealing with your house purchase. But she isn’t going to tell you she knows almost nothing about unfair dismissal, personal injury, probate complaints . . . What’s worse, she might be reluctant to look for advice from a colleague who does.”
So what is the best approach when that day comes?
Ads, friends, neighbours
Solicitors are allowed to advertise under the strict limitations of the Solicitors (Advertising) Regulations 2002. None of those interviewed suggested hiring a solicitor solely on the basis of an advertisement, no matter how enticing the billboard or half-page spread.
Another piece of advice is clearly stated in Talking to Your Solicitor (1992), one of the few books about the Irish legal world written for the laity. The author, former District Court judge Mary Kotsonouris, says: "Perhaps you have a friend who practises as a solicitor, but we are all conscious of the dangers that lurk in a business relationship with friends."
The same dangers apply to hiring solicitors who are relatives of friends, or neighbours, or acquaintances you regularly meet in the park when you walk the dog. As one source said, “You wouldn’t choose your hairdresser because you knew her casually, let alone a solicitor. The law is serious stuff and you need serious information before you hire a solicitor.”
The general agreement is that the first step towards finding that information is indeed to ask around until you get a recommendation from a satisfied client. But most of the 20 interviewed qualified this by firmly stressing that the crucial point is specialisation.
- "There's nothing better than a personal recommendation, but you have to be specific about what issue the solicitor is to deal with."
- "You have to ask around, that's the only way, but the point is to ask for the lawyer who has experience in the area of your particular problem."
- "Choosing a solicitor? Do your homework. Ask and keep asking until you find a solicitor suited to your problem. Yes, solicitors are now specialists, and they should be. In fact they should get into specialisation at the training stage."
The emphasis on specialisation is largely due to the expansion of legislation over the past few decades. This is especially evident in areas such as employment rights and family law.
“Up until the late 1970s, employers had all the rights; they could hire people and sack them as they liked,” says one source. “Now workers have protections from start to finish: equality rights, you name it. You’d have to be an expert in the field to take an employment case.”
Another referred to family law as “a whole new world. It used to be almost non-existent; we had deserted wives with no rights, forced to show they were trying to find their absent spouses before they could get social welfare. Josie Airey had to go to Europe to get the government to set up the Legal Aid Board.” (In 1979, Airey took the Irish government to the Court of Human Rights in Strasbourg, having failed to get legal aid to obtain a legal separation from her husband. Supported by the Free Legal Advice Centres, or Flac, and represented by Mary Robinson, she won her case.)
Law firms and sole practitioners
Four of the 20 lawyers interviewed recommended a middle-sized law firm as the safest choice.
- "The big firms are too expensive and don't really want individual clients. They'll sell a house for an important client, but that's about it. A middle-sized law firm will have at least four solicitors, each with different specialisations. You'll get the lawyer you need for your problem. If the case is complicated, you can get expertise from one of the others – at a price, of course."
- "The best option is probably a middle-sized firm. Chances are different solicitors in the firm will have different track records. But you have to remember: if you get the boss, you'll pay more."
- But several felt that experienced sole practitioners were unfairly sidelined by the concentration on specialisation.
- "Specialisation, well yes, you have to have a solicitor who knows what area of law you need, but in fact most solicitors can act as a GP does, handling the basic items – selling houses, making wills – if they're not too complicated."
- "Family law and employment law may need a specialist, but for an existing client, a sole practitioner might consult counsel or refer it to a colleague – it does happen. There's more co-operation among us than we get credit for."
- "It's true that an experienced sole practitioner might be well able to deal with a range of issues. That's often the case in rural areas."
- "Specialisation is the reality, but in rural areas, sole practitioners would be the norm, and they are less competitive, more likely to have a spirit of co-operation."
- "A sole practitioner who's been at it for years is likely to be able for almost anything. In any case, more are working with other sole practitioners now. But be sure you have a pertinent report from a client."
Age and experience
Several said they would personally always opt for older, more experienced solicitors, but there was substantial agreement that many young lawyers are very able.
- "Young lawyers versus older lawyers: well, it depends. Obviously experience is an asset in dealing with many issues, but a young lawyer may be more up-to-date on, for instance, tax, setting up a business, anything to do with technology."
- "You have to be careful with a young solicitor. In a firm you may get a junior who's out of his or her depth, and it's not your remit to have to deal with young ones."
- "It isn't the age of the lawyers that clients should worry about. It's the pub. That's where a lot of people decide to get their advice."
It is also advisable, before any decision, to check the website of the Law Society of Ireland (lawsociety.ie). This provides such basic facts as whether a solicitor has a current practising certificate, the date of the solicitor's qualification, and information about his or her professional indemnity insurance. The website also has a search facility to show if there have been any findings of professional misconduct, and provides a separate listing of solicitors who are willing to act against another solicitor.
Final advice
- "Ask questions, and keep asking. Ask the solicitor, and if a barrister is involved, ask the barrister. Going home wondering what's going on is no help to anyone."
- "A good solicitor should be honest and courteous, return your calls within a reasonable period of time, and keep you informed."
- "The main issue is trust. You should trust your solicitor, feel that he or she is working on your behalf. If you don't, get out and get someone else. The solicitor should be taking care of the client."
- "What makes a good experience with your solicitor? The client who knows what he/she wants. The extent to which your solicitor will define that depends on your directions. If you're having problems with your neighbour's tree, you have to decide whether you want victory over your neighbour or a compromise for the sake of peaceful resolution." Mary Maher is a former staff journalist at The Irish Times, and has served as a member of the Legal Aid Board and as a member of the Law Society complaints and client relations committee. She is a member of the Employment Appeals Tribunal
THE COST: HOW MUCH IS THIS SOLICITOR GOING TO CHARGE ME?
Mr Justice Nicholas Kearns, president of the High Court, recently stated that the assumption that legal fees should continue as before, “without the slightest regard for privations experienced by citizens”, did not serve the interests of justice.
Commenting on a medical negligence case, Kearns said that the best interests of the legal profession are served by sharing in the same way as other professionals, with “some realistic and proportionate readjustment” of expectations that might have been the norm before financial difficulties began.
A timely comment, given that Part 10 of the Bill now in the Seanad makes extensive provision for a new legal costs regime, intended to bring greater transparency to how legal costs are charged. Both solicitors and barristers will be obliged to give clients detailed information, in clear language, from the start. When it happens, this will indeed be a welcome change.
In the meantime, the first hurdle a new client will face is the notoriously unhelpful document that has undoubtedly forced the new rules.
As of now, when you become a client your solicitor is required under Section 68 of the Solicitors (Amendment) Act to write you a letter “as soon as is practicable” to inform you on “the actual charges, or where the provision of particulars of actual charges is not in the circumstances possible or practicable, an estimate (as near as may be) of the charges, or where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made.”
Understandably, the “Section 68 letter” is a topic of much humour and derision in the legal profession. The most common comments of those interviewed for this article were that the letter was “useless” and “ridiculous”. Several said it was both useless and confusing: “Some solicitors send out letters that are more like essays, mentioning all the possible things that might happen, leaving the client bewildered.”
So how can you estimate your costs? Ask and keep asking. “A lawyer who charges by the hour should be able to give an account of all work done as it goes along, and that’s it.”
Many solicitors don’t charge by the hour, but clients can ask to be informed on a regular basis as the bill mounts, and/or ask to be informed when the bill reaches a certain amount. “There’s no reason why solicitors can’t keep a running tab for the client.”
Some solicitors give a final estimate from the start, if the case doesn’t look difficult. “Anything that’s complicated is going to cost, but in most straightforward cases you have a rough idea of what the costs will be . . . Take the sale or purchase of a house; once I’ve looked at the title to see if there are any red flags, I know how much the process is going to take within 20 per cent one way or another.”
A minority believe that estimates only create anxiety, and prefer not to mention costs unless and until they are asked: “People with problems aren’t thinking about money; they want solutions. You want the client to concentrate on winning the case. The money can wait until the case is over. In the end, people do pay.”
It's up to you, then: keep asking, or hold back and leave your worries unspoken until the end. Or you could delay your case until the new rules are in place. Mary Maher
ANOTHER WAY: THE SMALL CLAIMS COURT AND HOW IT WORKS
An alternative legal route many consumers can take is the Small Claims Court. It is cheap and easy, and can be a very effective remedy to a dispute once it falls within certain parameters.
Is the small claims court for me?
It is if you feel you have a grievance against a retailer or service provider and believe your complaints have fallen on deaf ears – as long as the claim is for €2,000 or less.
Will it cost me anything?
Yes, there is an application fee of €25, payable to your local District Court office, which looks after the process.
Does it apply to every dispute over money?
No. You can make a claim for goods or services bought from someone selling them as part of their normal business. If you bought a carpet from a man you met on the street, that will most likely not be covered. You can also make a claim for minor damage to property.
What kinds of case can’t be taken?
Anything relating to hire purchase, loans or credit cards. And most claims about rental properties – except holiday home rentals or when a person is renting a room from someone who also lives in the property – are out.
What is the success rate for consumers?
On average, more than half of the those who see their complaints go before a hearing of the court win. Many other cases are settled outside the court with the intercession of court officials.
Where do I start?
By lodging a claim at Courts.ie or downloading an application form from the site. You give details of the claimant (you), the respondent (the business), the amount claimed and the details of your claim. If the respondent is a company rather than a person, you should try to get the correct title of the company from the Companies Registration Office. Complete the application and pay the €25 fee. You must take the case to the District Court of the district in which the contract was made.
Then what happens?
The claim is processed by a District Court clerk. They inform the business of your claim, after which the business has 15 days to respond. If the business doesn’t, it automatically loses the case and the District Court will then make an order in your favour for the amount claimed, and direct that it be paid within a short, specified period of time.
And if a business does reply?
It can accept your argument and pay you immediately, or it can make payment conditional on you returning faulty goods. It can also dispute the claim or make a counter-claim.
And what if the business disputes the claim?
The court registrar negotiates with both parties to try to reach an agreement without the need for a court hearing. The setting tends to be informal and private, and you don't need a solicitor. The registrar asks for both parties to outline the facts and tries to reach a deal. If this isn't possible, a hearing before a District Court judge is arranged. Conor Pope
