Legal Services Regulation Bill 2011

THE RECOMMENDED REFORMS TO THE LEGAL PROFESSION IN IRELAND AS OUTLINED IN REPORTS AND LEGISLATION UP TO AND INCLUDING THE LEGAL SERVICES REGULATION BILL 2011 AND HOW THESE SUGGESTED REFORMS MIGHT AFFECT THE LEGAL PROFESSION

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Explaining The Legal Services Regulation Bill 2011

From an outsider’s perspective the legal profession may seem like a secluded society, guided by tradition and regulated by those that have worked within it. The Legal Services Regulation Bill 2011 took this and other reports of recent years into account and set to make the profession a more transparent and accessible system for consumers. The Bill sets six main objectives, three of which relate to consumers and their ease of access to legal services. The remaining three objectives detail the changes and improvements to the standards of work for both branches of the legal profession. The proposed changes to the legal practitioners follow the amendments that have been made to the profession in the United Kingdom, these changes impacted their Right to Audience, their income and their standard of work. The Legal Services Regulation Bill proposes various changes to the content and details of client’s fees, these proposals reflect the suggestions made in the Competition Authority Report 2006 the proposals also follow the recommendations of the report of the Legal Costs Advisory Group. The Legal Services Regulation Bill 2011 poses many other adjustments to the legal profession such as complaints procedures, education, training and inspection of Solicitors and Barristers’ standard of work. Each of the changes mentioned in the Bill will be considered in relation to the position of the Bar Council and Law Society on the matter.

One of the main changes to the legal profession the Bill sets is establishing an Independent Regulatory Authority. The Independent Regulatory Authority (“The Authority”) will serve as a governing body overseeing different aspects of the legal profession, it will consist of 11 members; 2 representatives from each branch of the legal profession and a majority of lay persons and will also be chaired by a lay person. The Authority will be responsible for performing the functions as laid out in Part 2, section 9 of The Legal Services Regulation Bill 2011 which asserts that The Authority will set a standard of work in which all Barristers and Solicitors must work towards, it will protect and enact a Whistleblowers policy for any member that wishes to complain about a colleague, furthermore it will assist with research and reports involving the profession, conduct and training. The Authority shall review the training procedures for both branches of the legal profession and the ease of transitioning from one profession to the other, monitor the numbers admitted to the Bar and Roll of Solicitors, and where applicable suggest possible additional changes. The main objective of the Authority is to produce business models and strategies to support the present and future of the profession and to also maintain a transparent and accessible system for consumers, making sure that consumers are aware of their rights and remedies in regards to legal services.

The reception of this proposal has been met with ongoing conflict by the Bar Council and Law Society. In the Bar Council Summary on the Legal Services Bill 2011, the Bar Council commented “There will be a level of Government control over the body which will run directly contrary to the core value of independence in the administration of justice,” further mentioning that the Authority “will not be independent of the executive” and remained opposed to the possibility of the Authority. This issue is the main issue of both parties. Should the Authority be established there is a fear that the legal profession will be indirectly regulated by the Government and not an independent body, this issue is caused by the position of the Minister for Justice, Equality and Defence, Alan Shatter, and the Government appointing members to the Authority and the Minister’s power to sign off on many of the Authorities functions. If an Independent Legal Regulatory Authority were established the its cost, functions and powers will greatly affect all practitioners in the legal profession, as this will be the first time the profession will be independently regulated.

In the interest of promoting transparency and accessibility within the profession the Legal Services Regulation Bill 2011 proposes the establishment of an Independent Complaints Procedure and removing the management of complaints from The Bar Council and Law Society. Section 45 of the Bill details theft, fraud, disrepute and excessive charging amongst others as an act or omission which constitutes a complaint of misconduct. The Authority reserves the right to investigate whether or not a practitioner is acting within provisions and regulations of the Solicitors Act 1954 to 2011. The Independent Legal Authority will initially handle the complaint and decide the admissibility of it and should the complaint require further remedy the Authority will forward the matter to the Independent Complaints Committee. The Independent Complaints Committee will contain 16 members; a majority of lay persons and members appointed by both the Bar Council and Law Society. In order to save consumer’s time and money the committee will endeavor to direct consumers to settling issues outside of court in mediation and other alternatives. Should a complaint require further resolution the committee will make an order in relation to the complaint, be it performance, redress of funds, or a caution. The committee can also forward the matter further to the Legal Practitioners Disciplinary Tribunal as established under section 52 of the Bill. The final determination of the tribunal will be published. As stated in the Competition Authority Report, 2006, “complaint procedures in a self-regulated profession may be perceived… as being biased in favor of the profession.” Although similar questions of independence arose with the Complaints Committee, a more transparent and sound management of complaints will enhance the accessibility of the profession for consumers and create a more trustworthy environment. The changes to the complaints procedure will also ensure that legal practitioners are constantly working to the best of their abilities, this will also encourage competition within the profession.

The Legal Services Regulation Bill, 2011 wishes to promote accessibility and adaptability not only for consumers but also for those in training to become a practitioner. The Independent Regulatory Authority will review the training procedures of both Solicitors and Barristers. At present the only institutes offering training in each of the professions is the Law Society for aspiring Solicitors and The Honorable Society of Kings Inns for aspiring Barristers. Section 9 of the Legal Services Regulation Bill endeavours to expand the monopoly both institutes hold and allow other institutes to provide the same training upon approval the respective institutes. In reflection of the Competition Report 2006 the new Bill proposes the creation of “Licensed Conveyancers” in lieu of Solicitors. Whilst speaking at the Legal Services Regulation Bill 2011 Law Society Annual Conference, Alan Shatter Minister for Justice, Equality and Defence said “We have no need to use a model based on multiple regulatory bodies for each branch of the legal profession including legal executives, notaries, legal costs accountants and conveyancers – to name but a few” The Minister reasoned his point by explaining that the number of multi-disciplinary legal professionals in the United Kingdom exceeds the combined number of all Barristers and Solicitors in Ireland and introducing a multi-disciplinary legal structure with such small numbers would be irrelevant to Ireland. In the Modern Law Review Kerridge and Davis observed that with the loss of clients as a result of the new Conveyancers, Solicitors in the United Kingdom urged the Law Society to extend their Right of Audience and thus Solicitors in the United Kingdom were granted an extension of Right of Audience and also could be granted a qualification as a “higher advocate.” Similar to the proposal of the new Bill allowing Solicitors of a certain calibre and standard to work to become Senior Counsel as well as Barristers. The proposed change is said to create competition amongst the profession and also maintain a standard of work as the qualification will also be subject to inspection of The Independent Regulatory Authority and may be revoked should the practitioner fail to meet the standards as set by the Authority.

Section 17 of the Courts Act 1971 stated that a qualified, practising Solicitor had the Right of Audience in all Courts. Very few Solicitors however exorcise this right and it is discretely frowned upon by Judges in superior courts. Kerridge and Davis interviewed Solicitors in the United Kingdom in relation to the prospect of the unification of the professions, one Solicitor said “if I have to do advocacy I need to prepare for it and because I do not do it very often I probably have to prepare for it more fully.” Time and preparation were the main concerns of the Solicitors should it be a requirement to advocate in court, another Solicitor further commented on the subject matter; “On an average day in the office the phone is going, clients are coming in, people are pestering me, whereas Barristers do not have that.” A further issue that arose from the prospect of unification was the effect it would have on fees, Kerridge and Davis remarked that “it costs less to employ Barristers than to employ Solicitors because Barristers’ overheads are lower,” in relation to Barristers in Ireland the overheads will be much lower than those of the United Kingdom as Barristers in Ireland are sole traders and may only employ an Assistant or Secretary.

The Legal Services Regulation Bill, 2011 aims to ease unnecessary restrictions on both Barrister and Solicitors, one of which is the requirement for Barrister to practise as sole traders, the new Bill reinstates the recommendations of the Competition Authority Report, 2006 and provides the Barristers should be permitted to form groups and work together, similar to the Chambers system in the United Kingdom. The Solicitors (Advertising) Regulations, 2002 permits Solicitors to advertise contact details, areas of expertise and basic cost charges (with exception to the “no foal no fee” policy), all advertising must be of good taste and not bring the profession into disrepute and there is also restrictions placed on where a Solicitor can place advertisements such as public transport and anywhere that might cause offence or upset. The Legal Services Regulation Bill proposes to ease the restrictions placed on the advertising of both Solicitors and Barristers and promote competition and economic growth with the professions by doing so. An additional change the Bill proposes is the removal of the prohibition of Barristers representing their employers in proceedings. An action like this would not only benefit the Barrister but without the requirement to seek further legal representation the company will conserve time and money. The new Bill proposes radical changes to the legal profession itself, the Bar Council and Law Society welcomed the proposals to increase of the transparency and accessibility of the profession. Issues arose however, in relation to unification of the two branches and the creation of a “Conveyancer.” Both suggestions impact the income of each branch respectively and further economic growth within the industry is required for the proposals to be implemented and benefit the profession.

Competition and transparency are the main objectives of the Legal Services Regulation Bill, 2001, this applies to the transparency of legal costs and fees. The Competition Authority Report 2006 commented in relation to the matter stating “The lack of transparency in the price of legal services makes it difficult for consumers to shop around for legal services. If consumers cannot compare the prices for legal services, there is little incentive for lawyers to compete on price.” In order to promote and encourage transparency the new Bill for the first time in the history of the profession will provide clear and concise guidelines for legal costs encouraging transparency by allowing the consumer to see what work the lawyer is billing for and how appropriate and reasonable the fee is. In a further effort to promote competition suggestions of the Legal Cost Advisory Group have been incorporated; the Junior Counsel 2/3 rule will be abolished and Solicitors will also be required to notify clients if cost are ongoing during a case. Section 81 of The Legal Services Regulation Bill 2011 proposes the creation of a Legal Costs Adjudicator in lieu of the Taxing Master. The Legal Costs Adjudicator will compose economic strategic business plans based on the current and prospective state of the economy and the legal sector business; the plans will then be presented annually to the Chief Executive Officer for approval. Similar to the Complaints Committee, disputes will be directed towards settlements outside of courts in a bid to save money on the consumer’s behalf. The decisions and adjudications of the Office of the Legal Costs will be recorded and published, again to the benefit of both practitioner and consumer. Opening the billing system will indeed promote the accessibility of the profession as many consumers are not aware of their fee until after their proceedings. The assumption of high fees associated with the legal profession is an element that deters consumers from seeking representation and advice by making the process more comprehensible for consumers this assumption will be eliminated and the action of seeking of legal representation will not seem as daunting for consumers.

“The failure to grasp the nettle of reform is evidenced by the several false-starts to legal sector reform in the past.” The Legal Services Regulation Bill 2011 is a progressive and dynamic move in the direction of modernisation for the legal profession in its entirety. The Bar Council welcomed the public interest and transparency of legal costs as proposed by the Bill and both bodies raised an issue with the actuality of the “independent regulation”. Should the Bill be enacted correctly it will ultimately change the image of the profession as a tradition based society to that of a functioning business structure. The increased support of practitioners will improve the standard of service received by consumers, the frequent inspection of work will maintain this standard. The Bill proposes many business strategies and methods costs that will help the legal survive through the economic downturn and to prosper afterwards. If and when the Bill is enacted it will see the end to many traditions and the beginning of many new business and legal opportunities.

– AUTHOR: Alice Maguire-Spencer, 2015