OPINION:Proposals in the Bill to regulate lawyers will reduce the independence of the legal profession
THERE IS much that is good in the Bill to regulate the legal professions recently published by Minister for Justice Alan Shatter, notably the measures to bring transparency to legal costs and to enable clients to challenge costs they consider unjustified through a new office of legal costs adjudicator
Some of the proposals, however, will have the effect of making the legal profession answerable to the government of the day, through the minister for justice, and as such represent an attack on the independence of the legal profession and so the legal system as a whole.
Given that the State is a party in approximately half the cases that come before the courts, any body or individual seeking redress needs to feel that they can be represented by lawyers free from any pressure from the State, and before courts utterly independent of the executive.
The Bill proposes the setting up of a legal services regulatory authority with wide-ranging powers over admission to the profession, legal education and training, and over the drawing up of codes of conduct. It will report to the Minister within two years on a number of other matters, including the merging of the two professions, creation of multidisciplinary partnerships and of a new specialism of professional conveyancer.
It includes a number of regulatory functions at present carried out by the Law Society, especially with regard to the requirements on solicitors to maintain proper accounts and protect clients’ money.
Section 9 (3) of the Bill states: “Subject to this Act, the authority shall be independent in the performance of its function.”
While it will certainly be independent of the legal professions, the terms of the Act mean it will not be independent of the Government.
The proposed authority will have 11 members, four of whom will be nominated by the Bar Council and the Law Society. The remaining seven will be lay people appointed by the Government on the nomination of the Minister for Justice. Although between them they must incorporate several qualities, their appointment is at the Minister’s discretion. And so they are essentially political appointees.
This means that two-thirds of the membership of the authority will be lay people appointed on the nomination of the Minister for Justice – a far higher proportion of lay people than any comparable professional regulatory body, and different from them too in the manner of the appointment (as outlined below).
There is also no mechanism for interested parties to seek appointment to the authority, despite assurances from the Government parties before the election that the boards of public bodies would be filled by open competition.
The authority shall also, at the request of the Minister, prepare codes of practice for both branches of the profession. A draft code of practice must be submitted to the Minister before it can be published. He must consent to it and can order modifications to it. Thus the Minister will have the final say on the codes of conduct for the legal profession. He also appoints the authority’s chief executive and decides on its staffing levels and grades.
The Bill also proposes a disciplinary tribunal for the legal profession, also appointed by the government, on the nomination of the Minister. It will have 16 members, six of whom representing the two branches of the legal profession, and the rest lay people. Thus, again, the Minister directly nominates almost two-thirds of the membership of this committee. It will have extensive powers, including recommending to the High Court the striking off barristers or solicitors
Of 56 operative sections in the Bill as a whole, 21 require ministerial approval. The extensive powers proposed for the Minister are unprecedented in Irish law and in sharp contrast with the law regulating another important profession, itself the subject of a recent extensive overhaul.
The Medical Practitioners Act 2007 utterly changed the regulation of the medical profession, bringing in a lay majority for the first time. But it is in marked contrast to the Legal Services (Regulation) Bill, in that the Minister for Health does not control the newly constituted Medical Council.
The role of the Medical Council parallels in many ways that of the proposed legal services authority – it maintains a register of doctors, specifies and reviews standards, approves programmes of registration and training, and generally protects the public by promoting high standards.
It is the Medical Council itself that establishes committees to inquire into complaints against doctors, not a separate tribunal.
While the Minister can ask for information from the council on how it is performing its functions and give it general policy directions, he can have no hand in the drawing up of professional ethics.
The Medical Council has 25 members, appointed by the Minister, most of whom are nominated by various institutions and medical disciplines, including educational institutions. Twelve are doctors. Of the 13 lay members, eight are non-medical representatives of organisations and institutions in the health area. It appoints its own chief executive.
Only five members are nominated by the Minister, including at least one from an advocacy group and he cannot reject any of the other nominees.
Thus, having a lay majority, it is independent of the profession and of the Government.
The Medical Council is accountable, in that its annual report goes to the Minister for Health and is laid before the Houses of the Oireachtas. The hearings of its complaints committee are public.
Though not uncontroversial within the medical profession at the time, this model has now been working well for four years. It is not clear why such a model, modified to suit the different structure of the legal profession, could not have been used in drawing up the Legal Services Regulation Bill.
Unlike the medical profession, the independence of the legal system is a constitutional imperative. Yet lawyers, who are officers of the court, are to be far less independent of the relevant Minister than are doctors.
When the issue of lawyers’ regulation arose in Canada, whose constitution owes much to ours, its supreme court stated: “The independence of the bar from the state in all its pervasive manifestations is one of he hallmarks of a free society. Consequently, regulation of the members of the legal profession by the state must, in so far as human ingenuity can so design, be free for state interference.”
Carol Coulter is Legal Affairs Editor