LEGAL OPINION:A RECENT ARTICLE in this paper (Shelley Horan, February 13th) outlined several arguments against allowing barristers to practise in any business model other than as sole traders. The arguments put forward ignore the realities of the commercial side of running a legal practice. Ms Horan relies on a number of criticisms of the English model of chambers of barristers and ignores the barrister partnership model for Ireland recommended by the Competition Authority.
We recommended that barrister partnerships be allowed, that is, firms that can share their income and liabilities as well as their expenses, with the proviso that barristers in the same partnership cannot act for both sides of a case. This is a significantly different model to the chambers system in the UK, where barristers in chambers are sole traders, share only premises and clerical support, and can oppose one another.
Ms Horan is concerned that allowing barristers to form chambers/partnerships will lead to monopolies of specialist areas of law, less pro bono work being done, and a new barrier to entry into the profession. I will address each of these arguments in turn.
Barristers can be divided according to their area of specialisation and are not seen as “homogenous” or completely interchangeable. Each area of law tends to have its top earners, some well-established barristers and a fringe of junior barristers eking out a living.
Ms Horan is concerned that all of the top barristers in an area of specialisation will unite in a single barrister partnership. This is very unlikely to happen because, in the context of what the Competition Authority actually recommended, it would be commercially unsound. Through such an action, the barristers would be cutting the partnership off from a whole swathe of business that they would not be allowed to accept.
The impact on pro bono work of allowing barrister partnerships should be neutral overall. In terms of the pro bono work barristers undertake with organisations such as the Free Legal Advice Centre (Flac) and the Irish Council for Civil Liberties, many solicitors, who work in partnerships, already volunteer for Flac and the Irish Council for Civil Liberties. There is no reason why it should be any different for barristers in partnerships.
In terms of individual pro bono cases, a barrister can make their name on a successful high profile pro bono case. Such a case would be of equal value to the reputation of a barrister partnership. While barristers may have to take into account the views of their partners before taking on a pro bono case, the financial risk of taking on such a case is far lower if it is shared across a partnership rather than faced entirely by a sole trader.
The chambers system is often criticised by the Bar Council of Ireland for being a barrier to entry to the English bar, as graduates are not guaranteed the “pupillage” apprenticeship in chambers that is needed to fully qualify as a barrister. However, graduates of the Kings’ Inns in Ireland can also find it difficult to find a “master” barrister with whom they can complete their “devilling” apprenticeship in order to qualify as a barrister here.
Furthermore, even after a barrister has qualified, they face several years of a low and intermittent income before they can earn a living as a barrister full-time. This is just as high a barrier to entry, only of a different nature. Under our proposals, a newly qualified barrister could start his career in the same way as anybody else – by finding a job.
Allowing barristers the choice of forming partnerships or working as sole traders will provide opportunities for barristers to explore new ways of delivering barrister services. Finally, I would draw attention to the fact that consideration of consumers has been almost entirely absent from the debate. Consumers are not organised into lobby groups. The vested interests have received most of the coverage in this debate. Minister for Justice Alan Shatter, has said that “the consumer is central to how the Government will proceed”, and rightly so. Consumers have a right to a modern, independently regulated legal service which offers transparency of costs and value for money.
Isolde Goggin is chairperson of the Competition Authority