Alan Shatter: Barristers’ anti-competitive practices remain an issue

Up to 85% of intended reforms can result from the Legal Services Regulation Bill

“It is unfortunate that on this issue the Bar Council’s motto “Nolumus Mutari” (We Shall Not Be Changed) has triumphed.” Photograph: Frank Miller

“It is unfortunate that on this issue the Bar Council’s motto “Nolumus Mutari” (We Shall Not Be Changed) has triumphed.” Photograph: Frank Miller

 

During December the Legal Services Regulation Bill should complete its passage through both Houses of the Oireachtas. Unfortunately, because of the delay in its enactment, it is likely to fall to the next government to bring it into force.

When in force the Bill will deliver major public interest reform in the legal services area. An independent Legal Services Regulatory Authority will be established to ensure the maintenance and improvement of standards in the provision of legal services in the State. For the first time there will be independent regulatory oversight of both solicitors and barristers and an independent complaints and disciplinary process.

While providing oversight, the legislation also recognises the importance of protecting the professional independence of lawyers. The Legal Services Regulatory Authority is specifically required to encourage an independent, strong and effective legal profession and promote and maintain adherence to key “professional principles” which require legal practitioners to: (i) act with independence and integrity; (ii) act in the best interests of their clients and (iii) maintain proper standards of work.

These professional principles, included in the legislation from day one, are designed to ensure that the creation of the authority in no way entitles the State or any State agency to interfere with or undermine lawyers independently advising and representing their clients.

Allegations of misconduct

The legislation focuses heavily on consumer interest, promoting competition in the provision of legal services and ensuring greater transparency in legal costs. The investigation and determination of complaints will no longer be the preserve of the Law Society and the Bar Council. The authority will handle all complaints and allegations of misconduct made against legal practitioners. A new independent Legal Practitioners Disciplinary Tribunal will be established. The legislation facilitates the speedy consideration and resolution of less serious complaints, such as poor communications, delay or misunderstandings by a system of “informal resolution“ that should benefit both clients and lawyers whilst not precluding disciplinary action should serious misconduct be disclosed.

A central feature of the Bill is the creation of the new Office of Legal Costs Adjudicator. It will replace the Taxing Master of the High Court and be responsible for determining legal cost disputes and for assessing the legal costs payable by an unsuccessful litigant against whom an order of costs is made. The Bill details a set of principles applicable by legal costs adjudicators in assessing bills of costs and, in doing so, seeks to ensure that fees charged reasonably relate to the legal work undertaken for a client.

Various provisions in the Bill end anti-competitive practices. Solicitors, since 1971, have been entitled to act as advocates before all of our courts. However, while one or more senior and junior counsel can together act as advocates in court on behalf of one client, the Bar Council regarded it as an anathema for a solicitor and barrister, known colloquially as a “mixed double” to jointly act together as advocates before any court. In an age of complex litigation and lawyers having expertise and specialist knowledge in discrete areas, there is a public interest in ending such a restrictive practice.

Senior counsel

Under the Bill solicitors and barristers can jointly act as advocates and cannot be restricted from doing so. The Bill allows direct consumer access to barristers for legal advice and enables a barrister in paid employment to represent his or her employer in a court or tribunal or in arbitration. It also extends to experienced solicitors the possibility of becoming senior counsel, a title that is presently exclusively the preserve of barristers.

The Legal Services Regulation Bill is a child of the Programme for Government and of the agreement originally entered into with the Troika in 2010 to address anti-competitive practices in the legal profession.

Upon my becoming Minister for Justice in March 2011, it was urgent to publish it by early Autumn 2011 to comply with the State’s Troika obligations and to ensure receipt of essential Troika funding supports. It was intended that, following its publication, a public consultative process would be undertaken together with substantial additional work to perfect the Bill. Unfortunately, its publication generated outright opposition from the Bar Council and more nuanced criticism from the Law Society.

During my time in office, valuable engagement with both bodies contributed positively to the development of the Bill. However, I also considered it necessary to stand firm against pressure to remove or row back on some of what I regarded as crucial reforms.

The consultative engagement had substantially ended by early 2014 and we were on course to ensure the Bill’s enactment by September 2014 at the very latest. I believed it vital that vested interest did not usurp the public interest, that competition increase and legal costs be reduced by the availability of new business models providing legal services.

Watered down

Many of the recent amendments made to the Bill by Frances Fitzgerald, my successor as Minister for Justice, are beneficial and address areas I had directed be addressed prior to the Bill’s enactment. Essentially, 80-85 per cent of the reform I set out to achieve can result from the Bill as now amended. Unfortunately, one particular area has been substantially watered down and the Bar Council permitted to preserve anti-competitive measures within its code of practice. These changes to the Bill have been rightly criticised by the Competition and Consumer Protection Authority.

Presently, solicitors provide legal services through sole practitioner practices or through partnerships. Barristers provide advice and represent clients as sole traders. While not preventing any solicitor or barrister operating as they do now, the Bill, as published, outlawed any codes of practice which prevented barristers and solicitors jointly forming legal partnerships; barristers together forming legal partnerships; and both barristers and solicitors participating in multidisciplinary practices.

This reflected the modernised approach of some other countries. The Bill also envisaged the possibility of solicitors’ firms employing barristers, a provision of substantial benefit to newly qualified barristers who find it very difficult in their early years to make a living wage.

Seanad amendments

The Bar trenchantly opposed these reforms. Regrettably, Seanad amendments to the Bill permit the Bar Council to continue to prohibit its members from providing legal services through partnerships or multi-disciplinary practices and essentially permit it to excommunicate from the Bar Library those who do. Ironically, the Bill expressly enables Bar Library members to receive work from them. The Bill originally prescribed that, within 12 months of enactment, the new business models provisions would become operative. This gave ample time to establish related codes of practice. Unfortunately, amendments now being made to the Bill, whilst preserving the possibility of barrister/solicitor and barrister legal partnerships and multidisciplinary practices, prescribe no timeframe for their commencement and require the Legal Services Regulatory Authority to re-examine whether multidisciplinary practices should be permitted.

In addition, the obligation imposed on the Authority to engage in a consultative process and to report within two years on whether it is desirable, in the public interest, that we have a unified legal profession has been extended to four years.

In summary, I am delighted that the Bill is about to finally complete its passage through both Houses of the Oireachtas. I am, however, disappointed that it is unlikely we are going to see any time soon legal services delivered through new business models which would reduce legal costs and increase competitiveness. It is unfortunate that on this issue the Bar Council’s motto “Nolumus Mutari” (We Shall Not Be Changed) has triumphed.

Alan Shatter is a Fine Gael TD for Dublin South

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