Should self-regulation for solicitors be scrapped?

 

Head 2 Head: Yes - Declan Purcellsays no one can both represent and regulate a profession and it is time to put consumers first. No - Ken Murphysays the independence of solicitors is vital to democracy and they receive powerful outside scrutiny.

Solicitors in Ireland regulate themselves, with the full authority of the law behind them to do it. Is that how it should be? Is that how other professions are regulated? Or the way it is done elsewhere? The answer to all three questions is no.

Other jurisdictions with similar legal systems - England and Wales, Australia and New Zealand - have all moved away from self-regulation to independent oversight. The trend in Ireland too is towards independent statutory regulation. The medical and pharmacy professions have independent statutory regulators, courtesy of government legislation. So does dentistry. And banking. And private health insurance. The list goes on.

So is the legal profession somehow unique or special, or above all others in insisting on running its own affairs? No - the old paternalistic model of trusting a profession to protect consumers carries too much potential for conflicts of interest. It is time this was recognised, and the power to regulate solicitors' affairs was taken away from them.

The proper role of the Law Society is as a representative body for solicitors, to act in the interest of solicitors. The role of an independent regulator, on the other hand, is to act in the interests of consumers and in the public interest. The representative and regulatory roles regularly collide and, where they do, the consumer is the loser. There is increasing evidence that many solicitors think so too. As one prominent solicitor said recently, "I don't think the Law Society can continue going forward riding both horses".

Let's look at a few examples of this conflict in practice.

1. The Law Society spends huge sums on advertising campaigns to encourage you to engage a solicitor but very little on promoting consumer awareness of your rights when dealing with a solicitor. 2. The Law Society has lobbied to protect its monopoly on conveyancing, despite the clear consumer benefits of opening up this market. 3. The Law Society has also maintained its monopoly on solicitors' training by refusing to publish guidelines by which other schools (eg universities) might provide this. 4. The Law Society has failed to act effectively against known consistent abuses by solicitors, waiting instead until a scandal unfolds - and there have been plenty of them in recent years.

You simply cannot combine regulatory and representative functions in one organisation, in this case the Law Society. It just doesn't work. It doesn't inspire consumer or public confidence.

To resolve these conflicts, we need to establish a fully independent legal services commission, backed by legislation, with these powers: to determine how, and from whom, solicitors should get their training; to lay down proper ethical and conduct standards; to inspect solicitors' activities; and to apply meaningful and proportionate punishment for any wrongdoing.

Such an independent commission would promote the consumer's interest and provide consumer information, much as the Financial Regulator does.

An independent commission might well have representatives on its board of those it is supposed to be regulating, but the important point is that they should not control the system. The reforms planned by the Government in relation to legal complaints and legal costs are very welcome, but they don't go far enough. Independent regulation is needed to restore public confidence.

Solicitors in England and Wales have now agreed to split the roles of regulation and representation, and to the creation of an independent regulator. Their counterparts here should do the same; if they don't, the Government should decide this for them.

As for public accountability, let us not be diverted by claims that solicitors are ultimately regulated by the High Court. While the President of the High Court does have a role in relation to the ultimate disciplining of individual solicitors, the fact is that solicitors hold most of the strings when it comes to regulating the affairs of the profession.

The foundations for self-regulation in the solicitors' profession have been crumbling for years, as problem after problem surfaces, and the litany of complaints becomes ever longer and louder. We should not hold on any longer to a discredited self-regulatory system that has lost the public's confidence. Of all the professions, one would expect solicitors, who claim such an integral role in vindicating citizens' rights, to accept they should be regulated in a manner that inspires public confidence - in other words independently of themselves.

Justice must not only be done, it must be seen to be done.

Declan Purcell is a member of the Competition Authority and director of its advocacy division

Regardless of who regulated the solicitors' profession they would, in the interests of justice, be unable to comment on any individual case under investigation or before the courts.

I agree with Declan Purcell and others that "self-regulation" is not a good thing, whether it is the legal profession or any other. But the term "self-regulation", as a description of the system of regulation of solicitors in this jurisdiction, is completely misleading. It is a misnomer and the sooner everyone stops using the term the better.

Let's look at how things actually operate in the regulation of the legal profession, and the role of the Law Society in that process. Solicitors are ultimately regulated by the President of the High Court on behalf of the State. He appoints and oversees the work of the independent Solicitors' Disciplinary Tribunal. One-third of the tribunal members are non-lawyers, appointed by the Minister for Justice, Equality and Law Reform. It is independent of the Law Society. Consumers who believe their solicitors may be guilty of misconduct can bring their complaint, if they so wish, directly to this tribunal.

Alternatively, they can go to the Law Society to avail of its powers to intervene with the solicitor (to get delayed work completed, say) and resolve the matter to the consumer's satisfaction if possible.

The Law Society decides whether the complaint should be sent to the Solicitors' Disciplinary Tribunal through the society's complaints and client relations committee. The tribunal will soon have a non-lawyer majority, with the enactment of the Civil Law (Miscellaneous Provisions) Bill, 2006.

If a consumer is unhappy with the Law Society's handling of a complaint, he or she can refer the matter to the Independent Adjudicator, another non-lawyer with extensive powers to overturn the society's decision. The Independent Adjudicator is shortly to be replaced by a Legal Services Ombudsman with even greater powers.

The Law Society maintains a compensation fund which currently holds €33 million in contributions by solicitors. Subject to the provisions of the Solicitors Acts, any client of a solicitor who suffers loss through the dishonesty of their solicitor arising from that solicitor's practice will receive a grant from the fund. The society also enforces a regime whereby every client is covered against negligence by their solicitor up to a minimum of €2.5 million for each and every claim.

All of this exists under the close scrutiny of the Minister for Justice who frequently must approve Law Society regulations before they can take effect. The entire system is designed and operates under statutes passed by the Oireachtas and must, by law, operate in the public interest.

The Law Society plays an important part, with the others mentioned, in all of this. But it is misleading to call it "self-regulation". For years, we in the society have used the more accurate term "co-regulation".

In relation to education and admission to the profession, in the last year almost 2,000 students attended the professional practice courses in the Law Society. This was a 100 per cent increase in numbers in five years and has been achieved without any reduction in the quality of professional legal training which is at least on a par with the best in the world. This extraordinary growth in numbers gives the lie to any suggestion that the solicitors' profession in Ireland is a "closed shop". In fact it is wide open.

The Competition Authority last year recommended to Government that the system of regulation of solicitors be radically changed, relying on sheer assertion rather than evidence that their new recommended system would be superior. This was despite the considered views of Indecon, the Competition Authority's own economic consultants, who had previously reported to the authority: "We have examined the complaints, discipline and enforcement procedures in detail and found no evidence that they are in any way used to institute any anti-competitive practices or damage consumer interests".

The Law Society is a human institution like any other. We don't get everything right all of the time. Where we get it wrong, however, other independent and more powerful bodies can redress it.

The right to an independent legal profession, crucial in a democracy, is a right of the citizen, not of the profession. On one thing there is no conflict whatsoever between the interests of the public and of the profession. Both have an interest in solicitors maintaining the highest standards of professional skill, service and conduct.

Ken Murphy is director general of the Law Society of Ireland

Last week: John Hilleryand Marie O'Connordebated the question: Should acute hospital services be centralised? A selection of your comments

The question asked is too simple. Nobody that I know is arguing against regional centres of excellence. What is being argued against is the loss of key vital services such as A&E in local hospitals to the regional hospital, which will be well outside the vital golden hour for a lot of patients. It does not matter how excellent the centre is, if you have a heart attack in Emyvale, Co Monaghan, and the regional hospital is in Ardee, Co Louth, or Virginia, Co Cavan (the two closest proposals), you will never reach there in time. These centres would have to be extremely excellent if they are to bring you back from the dead!!!

Niall, Ireland

Clearly, if that improves outcomes, then the answer must be yes. But this debate is clouded by the fact that a lot of people do not believe Mary Harney is motivated by the best interests of patients. She is concerned with money, cutting costs or providing money-making opportunities by growing privatisation. Any minister who has the best interests of the ill at heart would start by ending the two-tier waiting list system. That would greatly improve outcomes for the average citizen and this could be done very easily. But Harney won't do that because it is contrary to the privatisation agenda.

Jim O'Sullivan , Ireland

Dr Hillery writes about a critical mass of expertise. I am not sure that a centralised hospital in Ireland would be big enough to make much difference in this regard. However, centralisation would deny non-urban communities access to vital services and increase deaths.

Conor, Ireland

Dr Hillery is right and Marie O'Connor severely misguided. She is guilty of assuming all healthcare professionals are equal. What she ignores is that outcomes are best in emergency situations when treated by an experienced clinician, ie one who is specifically trained for the situation, who has done the procedure(s) many times and who has the ability to recognise the abnormal from the normal. A paper in Scotland published in the British Medical Journal indicated that 73 per cent of children who died following trauma were dead and beyond help when the first available medical help arrived. This was for a built-up area with good travel times. Distance to definitive care had no impact on ultimate outcome. Studies from the US, including rural and urban studies, have shown that outcome for children is significantly better when brought to major trauma centres with full treatment capability. Experienced doctors working in high-tech environments get best results for major injury. Minor injury and illness can still be treated locally in urgent care centres, linked to major units in a hub-and-spoke fashion. Even better care will be achieved when staff rotate from the hub to the spoke and vice versa. We need to differentiate the urgent care centre from the emergency department. Both are needed.

Tom, United Kingdom

Ms O'Connor is right, rapid access to good medical care is important. However, what we need is not a poorly resourced facility at every crossroads. What we need are roads.

John Kennedy, Ireland

If we lived in a country where we had a good transport system, maybe. But we don't, so savings created by centralising services will be overrun by the huge cost of subsidising transport for medical card holders dependent on these services.

Laura

online:join the debate @ www.ireland.com/head2head