Irish Legal Services Reform: Kenny & Burton hoist the white flag
Five years to the month after the Irish Government made a commitment in the 2010 international bailout agreement to introduce legal services reforms, and 25 years after the Fair Trade Commission recommended the ending of the ban on direct access by the public to barristers, Frances Fitzgerald, justice minister, said Wednesday: "This Government is delivering on long-overdue reforms”— this claim is "an oeconomy of truth" as Edmund Burke wrote of a contemporary issue in 1796 (the usage of oeconomy was later overtaken by the word economy). In the vernacular it is a lie as the minister has produced the feeble excuse for the non-reform that Enda Kenny, taoiseach, desired and which is bizarrely supported by his deputy, Joan Burton, who is also the Labour Party leader.
Fitzgerald on Wednesday published 100 amendments to the Legal Services Regulation Bill 2011 and said: “The Government’s intention is that this Bill will now be enacted before the Dáil rises for the Christmas recess so that the new Legal Services Regulatory Authority will be up and running early in 2016.”
This landmark Bill, providing independent regulation of the legal profession for the first time, will deliver real and lasting reform in the legal services areas, to the benefit of the justice system, the consumer and the economy. These reforms respond to 34 years of reports recommending reforms to the legal profession, going back to the Restrictive Practices Commission report in 1982. This Government is delivering on long-overdue reforms.
1990 Ireland — Fair Trade Commission's Report of Study into the Restrictive Practices in the Legal Profession
It considers that there are many occasions upon which it would be more efficient and less costly if the client could approach and brief the barrister directly. It does not accept that the independence and standards of barristers would be diminished if direct access were allowed...The Commission believes that there should be no rule limiting direct access which is collectively enforced. At the same time, the individual barrister should be permitted to refuse to deal with a client except where a solicitor has been engaged.
1990 England and Wales — Courts and Legal Services Act 1990
The Act provided for the Authorised Conveyancing Practitioners Board to develop competition in the provision of conveyancing services and to regulate the activities of authorised practitioners. While most conveyancing is still done by independent solicitors, the increased competition has significantly cut their margins.
The Act removed the monopoly barristers had over advocacy in the higher courts.
No authorised conveyancers will be allowed;
There will continue to be no direct access by the public to barristers;
The Law Society and Bar Council will retain self-regulation in key areas;
In a 2014 survey of 104 Irish law firms, 78% of firms did not expect any impact on the levels of fees charged, following passing of the Bill, while proposed so-called one-stop shops, or multidisciplinary practices, were opposed by two-thirds of respondent firms.
This is reform Irish style — procrastinate until a crisis is bad enough for a powerful vested interest to be challenged, if at all.
Kenny, Burton and Fitzgerald, who are all heading for superannuated bliss in coming years, sat impotent for decades on the Opposition benches but in government, they lack the will or interest to tackle powerful vested interests.
The State is the biggest customer for legal services and in 2011 the Dáil Committee of Public Accounts outlined how the State maintains a high legal fees culture.
SEE: our October report on how the main areas of reform are being long-fingered by requiring "future consultation" — and opportunities for further delays and lobbying.
On the unification of the solicitors’ profession and the barristers’ profession, the planned new legal services regulatory authority, will be required to produce a report for the minister which "shall contain details of arrangements in operation in other jurisdictions in which the professions have been unified."
Frances Fitzgerald says "These reforms respond to 34 years of reports recommending reforms to the legal profession, going back to the Restrictive Practices Commission report in 1982" — and she wants more reports! Neither the minister herself nor Joan Burton have the courage or maybe the competence to demand something better than this charade from Enda Kenny.
The housing crisis in Dublin and reforming legal services require innovation and more than temporary band-aid measures, but Fine Gael, the majority coalition party, will not support measures that would impact its traditional support bases — farmers and lawyers. Where does that leave the impotent Labour Party and the public interest?
On Wednesday the minister published a long laundry list of the "landmark" reforms.
The National Competitiveness Council
The World Bank's Doing Business 2016 report of Oct 2015 shows that legal costs of enforcing contracts are 27% of the claim in Ireland; 18% in Austria; 18% in Belgium; 23% in Denmark; 16% in Finland; 17% in France; 14% in Germany; 14% in Greece, and 44% in the UK — the process takes an average of 650 days in the Irish courts; 1,580 days in Greece; 395 days in France; 397 days in Austria; 429 days in Germany, and 437 days in the UK.
The verdict of the State's Competition and Consumer Protection Commission on the sham, is damning.
In a submission to the minister, seen by The Irish Times, the CCPC says “the views of the Law Society and the Bar Council have been privileged over those of the consumers of legal services — the clients of the legal profession.”
The scathing submission also said both bodies had been given “a veto over the provisions of the Bill.”
The CCPC's predecessor, the Competition Authority, had done good work over many years highlighting the self-serving system and the CCPC also said in the submission that there had been a “lack of engagement” with it on the Bill and the proposed amendments.
It said this “is in stark contrast to what has clearly been a high level of engagement with the representative bodies of the legal profession, who have a vested interest in retaining the status quo, and with whom there appears to have been ongoing discussion over a number of years.”
Politicians of course do not like to be dismissed as poltroons but here Frances Fitzgerald is the biggest one of all — she is a jellyfish doing the bidding for her political seniors.
This is the seismic change that was promised in the 2011 general election?
Postscript on the public tribunal bonanza and a clerical error
The Committee of Public Accounts outlines in it 2011 report tribunal fees paid to lawyers in 1997-2010 who were investigating allegations of corruption. Two earned more than €9m each, including VAT.
When a clerical officer made a typing error on the daily rate, the Attorney General advised that the incorrect higher rate should be paid — what's another €1m? Would this be tolerated in for example Sweden?
It is not known if any lawyer refused to claim the inadvertent higher rate given the ethics issue involved for the hired contractors of the State, investigating corruption.
The Committee was exercised to learn that at the Moriarty Tribunal, an extra €1m has been paid to counsel because of an error in the Department of the Taoiseach, where counsel have been paid a per diem rate of €2,500 instead of €2,250 and where the matter was allowed continue without rectification. The Committee was informed that after lengthy negotiations, a rate of €2,500 per day was agreed with Moriarty senior counsel and notified to them by letter in June 2002. A few weeks later, in view of the setting of the fee of €2,250 per day for senior counsel at other Tribunals, it was realised that the Moriarty rate had been agreed at a higher figure arising from a misunderstanding between the Department and those setting the fees. The Moriarty fee was reviewed again. It was considered that in view of the particular circumstances of that Tribunal, the higher fee was appropriate and, following advice from the Attorney General this rate was sanctioned by the Department of Finance on a personal basis. Tribunal senior counsel were informed by letter in August 2002 that the notification of the higher rate was an error but that, as an exceptional measure, it had been sanctioned to stand on a strictly personal basis. The Committee was informed that the Department of Finance saw no basis for paying the higher fee of €2,500 per day and having regard to this, is of the view that steps should have been taken to apply the lower fee. The Department of the Taoiseach should have acted with more vigour in refusing the higher rate of payment.