Proposed reforms of the legal profession are unlikely to be implemented, writes Carol Coulter.
When the Competition Authority published its report on the legal professions last February, its chairman, John Fingleton, wrote in The Irish Times that a clear statement from the Government of a commitment to bring forward legislation to ensure full and open competition in legal services "would encourage the process of self-reform".
Such a statement was not forthcoming from the Government, which has maintained a deafening silence on the authority's proposals. And there is little evidence, from the response of the Law Society, that it is warmly embracing the proposals for "self-reform".
The Law Society does not accept that there is any objective basis for most of the proposed changes. It delivered its response yesterday and made it public last night. The Bar Council, which also delivered its response yesterday, will make it public today.
The central proposal from the authority was the creation of an independent regulating body for the legal professions, covering both solicitors and barristers, thus replacing the regulatory role of the Law Society and the Bar Council.
This would also set standards for professional education, opening the door for the provision of professional training to other bodies, thereby removing the monopoly of the Law Society and King's Inns, respectively.
The report also made a number of proposals concerning business structures and fees. These included the abolition of the "sole trader" rule for barristers, who must operate out of the Law Library as individual service-providers, briefed by solicitors.
There should be direct access to barristers by the public, according to the authority, and they should be permitted to form partnerships with solicitors and with other professionals, like accountants, in multi-business partnerships.
The Law Society has come out fighting, with a total rejection of any proposal for an independent legal services commission. This proposal, and most of the others in the report, are "based more on ideology than on evidence", according to its director general, Ken Murphy.
Dr Fingleton, shortly to leave the authority for the Office of Fair Trading in Britain, feels that there is a conflict of interest in having regulation and representation carried out by the same body. He has stated that this is out of line with other professional bodies in Ireland, like doctors and dentists, where there are separate bodies involved in representation and regulation.
The Law Society trenchantly defends its system of regulation, quoting for the umpteenth time a remark from the Minister for Justice that it is "exemplary". It also points out that the committee within the Law Society that deals with disciplinary matters and regulation is distinct from those that deal with representation, it has lay representation on it and, ultimately, oversight by the High Court. It says there is no case made for such a sweeping change to the existing regulatory regime as a legal services commission.
It goes on to list the stimuli that already exist to competition among solicitors, stressing the absence of evidence of any restrictions on entry into the profession or collusion on fees charged. "Solicitors' fees are determined by market forces in a competitive market," it states.
The authority also made proposals for the opening up of legal training to institutions other than the Law Society and the King's Inns. These are the only professions which retain total control over professional training which, in other professions, is provided by universities in co-operation with professional bodies and institutions like hospitals.
The Law Society's answer is to challenge anyone else to meet its standards of training, pointing out that this is practical training provided by hundreds of practising solicitors in the Dublin area. It also states that the authority's own economic consultants did not find that it restricted entry. Mr Murphy did tell The Irish Times that the society is considering ways of providing legal training outside Dublin.
The Bar Council is not the King's Inns and has no stake in the legal training issue. In February it also indicated a willingness to meet the Competition Authority's concerns on a number of issues.
These include transparency in the promotion of barristers to senior counsel, the relationship between the fees of senior and junior counsel and direct access by the public to barristers in certain areas of law, especially via voluntary and community groups - though not where it would involve litigation and barristers having to deal with clients' money.
However, chairman of the Bar Council Hugh Mohan SC has expressed grave reservations about any change in the "sole trader" rule.
This was on the basis, he said, that this would undermine the principle that every member of the bar, however eminent, is theoretically available to any citizen on a first-come, first-served basis.
The Bar Council is likely to say that working in partnerships with solicitors, or with other professionals, would undermine the independence of the Bar. It too is likely to reject some of the central proposals of the authority concerning reform of the Bar, though it is likely to offer alternatives.
Both the Bar Council and the Law Society have pointed out that competition is not the only virtue of a democratic society, and that the pursuit of competition should not be allowed to compromise the independence of the justice system.
Ultimately, therefore, these proposals will land at the door of the Government, which includes a number of lawyers in its ranks. There is little evidence that it will force through reforms resisted by the legal professions.