The abolition of the sole trader rule at the Bar would damage rather than improve the public interest and consumer choice, writes PAUL O'HIGGINS
RECENTLY, THERE has been much discussion on the reform of the independent sole trader model under which Irish barristers operate. The arguments presented in favour of reform are that the abolition of the sole trader rule and the formation of partnerships will increase competition and reduce costs for the consumer.
However, while the Bar Council remains fully open to positive and progressive reforms of the legal system, we strongly believe the sole trader rule is fundamentally important to the effective administration of justice in Ireland, and that its abolition would damage rather than improve both the public interest and consumer choice.
The sole trader model acts by granting individual barristers complete independence while simultaneously providing access (via membership of the Law Library) to a collective structure that shares knowledge, experience and administrative resources. There is already huge competition for work at the Bar, and the independent sole trader model of delivery of barristers’ services maximises that level of competition, while minimising overheads.
This structure has proven over the years to be the most efficient and competitive for consumers and the best for ensuring access to justice. The economic benefits of this system include the fact that 2,250 individual barristers directly compete with each other, thereby maximising consumer choice and incentivising high standards and competitive prices.
The Law Library itself operates as a highly efficient shared services centre where legal resources such as administrative services and staff, premises and insurance are pooled across all members. These shared services extend further to the pooling of knowledge and a generous free-flow of knowledge and experience between sole trading barristers for the benefit of the individual client.
In addition, the Law Library model means the costs of entry and set-up to the barrister’s profession are minimal as a result of established barristers subsidising the overheads of newer entrants to the profession by virtue of the structure of Law Library fees.
Of course, and perhaps most importantly from a consumer perspective, under the present system the smallest solicitors’ firms have access to the best barrister for any given brief through the “cab rank rule”, which means a barrister must take a case in his or her area of expertise if available, irrespective of who is briefing him.
The abolition of the present model in favour of a partnership or alternative business model structure, such as in England, where last year only 460 of the 1,852 who were called to the Bar to practise actually gained pupillage in chambers enabling them to do so, will reduce choice for consumers, increase costs and contract the market substantially, contrary to the public interest.
The likely adverse consequences for competition and for the consumer in the event the sole trader model is abolished include the concentration of blocks of barristers into partnerships, thus diminishing competition and consumer choice. This will also lead to conflict of interest difficulties and will undermine the efficacy of the cab rank rule.
New entrants will find it more difficult to gain access to the depth and breadth of knowledge and experience currently available at the Law Library, while there will be extensive and costly replication of overheads.
The present model also maximises access to justice for citizens. A network of collegiate but independent minds is a much more valuable resource than a series of partnerships or other competitive entities which become dominant operators in the various areas of Bar practice.
In the alternative scenario there will be a consequent squeezing out of the role of the individual independent barrister in advancing the public interest through taking unpopular pro bono or financially unrewarding cases.
The vital public good involved in the “no foal, no fee” system provided by the Bar as currently organised stands to be seriously undermined under a partnership model. The current model effectively involves the provision by the Bar of a de facto fully extensive civil legal aid scheme by ensuring there will always be representation for those with statable claims for damages for personal injuries, for damages caused by medical negligence, and for those who have been unlawfully treated by public bodies.
As costs are inevitably driven up and market power concentrates under a partnership model, it will become increasingly difficult for barristers to commit to any kind of long-term practice involving “no foal, no fee” work, with a consequent damage to the public interest.
Any analysis of proposed “structural” reform of the model of delivery of barristers’ services must have full regard to the public duties which are very effectively discharged by each barrister as an independent sole trader under the current model.
Under that model, each barrister as an independent sole trader is individually accountable for the discharge of his or her primary duty to the sound administration of justice, ie his or her duty to keep the client, the opponent and the court “straight” as to the true legal and factual position.
In the event of tension between this public duty of each individual barrister to the sound administration of justice and the private duty of each individual barrister to his or her client, the public duty must prevail.
It has not been suggested, let alone demonstrated, that the present model has not effectively contributed to the maintenance of a corruption-free system of justice. Any dismantling of the model must justify how this vital public interest will nonetheless be maintained.
In his detailed review of the only other jurisdiction where the identical Law Library model for delivery of barristers’ services as an Independent Referral Bar exists (Northern Ireland), Prof George Bain recognised and endorsed the competition benefits of the sole trader system for the delivery of advocacy services.
Furthermore, Prof Bain recommended the retention of that model over the proposal that barristers’ services would be capable of being delivered via alternative models, including partnerships.
The present model very successfully achieves the difficult task of balancing and reconciling the effective discharge of barristers’ public duty with their private market duties.
Proposed “structural” reforms stand to destroy that delicate balance, to the detriment of the public good.
Paul O’Higgins is chairman of the Bar Council