The Competition Authority has let the cat out of the bag by concluding that there is no very clear relationship between high earnings and high skills among barristers, argues Fintan O'Toole
Your boiler has broken down. You call the plumber. He tells you, however, that he does not deal directly with clients and that you must first engage a plumbing services co-ordinator. So you talk to the plumbing services co-ordinator and she has a look at your boiler. She is an expert in boilers, having been trained at the State's only plumbing college, and being a member of the Incorporated Plumbing Society. She knows how boilers work and she could, in principle, fix yours. But she will instead hire a plumber for you. How much will it all cost? Well, that's tricky. She will give you an estimate of her own fees, but who knows what the plumber will charge? It depends on the the job and how the plumber feels about it.
Eventually, the plumber and his mate arrive, and get to work. You notice that the mate does most of the work. The plumber confines himself to the odd flourish, though you have to admit he does handle a wrench with great finesse. After the job is done, you ask for the bill, but the plumber looks at you with an expression that combines horror and contempt. He does not discuss money with clients. It is beneath his professional dignity. You have to go back to the plumbing services co-ordinator.
She hands you a bill. It's €1,000 for her "professional services", plus €600 for the plumber and €400 for the plumber's mate. There's no break-down of parts and labour, no hourly rate. Why, you wonder, does the mate who did most of the work get the smallest whack? Because custom and practice dictate that, regardless of who does the work, the mate's fee is two-thirds of the plumber's.
This is, of course, an absurd scenario. But it is, as this week's Competition Authority (CA) report on the legal profession reminds us, the way Irish lawyers operate. In general, a person who wants to buy a service from a barrister has to hire a solicitor first, regardless, as the CA report puts it, "of whether this is necessary for the case or desired by the client". The convenient option from the client's point of view, that one person would be both a solicitor and barrister, is not allowed by either profession, even though a solicitor can represent a client in court.
It is often impossible for clients to know how much the work they are commissioning will cost. Solicitors are legally required to provide clients with either fee estimates or indications of the basis upon which the charges will be made, but barristers are under no obligation to provide similar information. The report notes: "As solicitors generally engage barristers on behalf of clients, barristers issue fee notes to solicitors rather than directly to clients. There is no legal requirement for barristers to indicate their fees in advance. If a barrister's fee is agreed in advance, in some instances a solicitor will agree the fee on behalf of the client, without the client being consulted. Consequently, clients sometimes have uncertainty about how much a barrister is likely to charge."
Even when the bill arrives, it is often impossible for the client to tell how the final sum has been calculated. The CA found that many solicitors send out sketchy invoices: "Solicitors generally invoice clients at the end of a case. In some cases invoices may be extremely detailed, but most are sparse, with most of the total amount falling under the heading of 'professional fee'. It is often difficult for clients to judge the quality of services received, and whether fees are appropriate."
As for the barristers' fees, the system virtually guarantees that they bear no clear relation to the work done by senior and junior counsel. The fees are decided by a bizarre convention: "The practice operates as follows: senior counsel charges the fee that he considers appropriate for the work he has done in a particular case. Junior counsel, instead of also calculating a fee in a similar manner, charges a fee two-thirds that of the senior . . . Where the senior has conducted most of the case, the junior will receive an unwarrantedly high fee; or, where the junior has conducted most of the case and the senior in consequence marks a relatively low fee for himself, the junior will not be adequately recompensed."
THE REPORT IS a classic endorsement of George Bernard Shaw's famous dictum that all professions are a conspiracy against the laity. It points to a set of restrictions that are justified by reference to important public values: high professional standards, the independence of lawyers from outside pressures and conflicts of interest, the ability of the ordinary man and woman on the street to be represented by the cream of the profession, the capacity of lawyers to undertake work for the public good without worrying about personal profit. And it gently peels each of them away to reveal what most sceptical observers have long suspected - that the restrictions exist largely to serve the interests of those who are already doing well in the legal world. With the laconic touch that characterises its measured prose, it notes there is "a strong incentive for those who have succeeded within the existing structure to maintain that structure". This is true of all professions (including journalism) but lawyers have been unusually successful in presenting self-interest as the public interest.
Why, for example, does the Law Society of Ireland have a monopoly on the education of solicitors and the Honorable Society of King's Inns a monopoly on the education of barristers? Both the Law Society and the Bar Council answer that their monopolies allow them to maintain a uniform standard. By that logic, however, there should be only one medical school in Ireland, one school of engineering, one architectural college.
The real answer, surely, is that being trained in grand institutions separate from most third-level education adds to the mystique of the profession, making it a kind of secular priesthood. And mystique translates into money. It is not accidental that lawyers earn more than other professionals (see panel).
Mystique is also the reason for rules that require barristers to work full-time from the Law Library. Barristers, regardless of their skills, are not allowed to have other jobs. The elitism of this rule, though, is inadvertently revealed in the exceptions the Bar Council makes to this rule. It is okay, apparently, to be "a member of the Oireachtas or the European Parliament" while practising as a barrister, since, of course, lawyers have a duty to govern the State and politics is evidently a part-time hobby. It is okay to "engage in occasional journalism" since a chap may have to intervene from time to time to put the world to rights. But it's not okay to be a carpenter or a taxi driver or a primary-school teacher.
Apart from its elitism, however, this restriction has serious consequences for the public purse. Since barristers cannot be employed outside the Law Library, the State, which is the biggest single user of their services, can't hire barristers on a fixed salary. This affects, for example, the cost of tribunals. (The Taoiseach told the Dáil this week that the legal fees in the tribunals and inquiries held so far amount to €138.92 million.) The prohibition on barristers having outside jobs results, as the report puts it, "in the State having to outsource, at considerable additional cost, barristers' services, when it could instead employ barristers to represent the State in court or before tribunals".
ULTIMATELY, HOWEVER, ALL the restrictions are justified by the belief that they create excellence. This, though, is where the report is most devastating. Though its authors often seem to lose their nerve and pull their punches, it is clear they believe that much of the pomposity that surrounds the Bar is a cloak for mediocrity.
While no one questions that there are superbly skilled advocates, the secretthat the CA lets out of the bag is that there is no very clear relationship between high earnings and high skills. The formal training of barristers has not been up to scratch: "The Authority received submissions that sub-standard training has in the past been provided." The CA whispers that "the fees charged for services do not relate to the level of service provided". Senior counsel command high fees, but the CA dares to suggest that the SC title is "not a reliable mark of quality". The SC title is neither "objectively awarded" nor "properly monitored". Clients are fooled into believing "without adequate justification that in engaging senior counsel, they are engaging a lawyer who excels in his field. It is the practice for barristers who become senior counsel to charge higher fees than they did as junior counsel. This creates the impression that their work is more valuable than that of a junior counsel, which may not always be the case."
This conclusion, buried in the small print of the report, is the Wizard of Oz moment when the vastly impressive front is drawn aside and the simple truth that a lot of mediocre professionals earn vast amounts of money is revealed.
If there is no direct relationship between ability and earnings, what then makes the big difference between success and failure? Here the CA again whispers a devastating answer: the old pals' network: "Barristers have stated that the ability to obtain work may be more dependent upon contacts within the Bar and the solicitors' profession than on a barrister's ability . . . Barristers who have such contacts have a ready-made source of business. The barrister who has none needs to make these connections. He may have a good master who will introduce him to solicitors; on the other hand, he may not, and he is prohibited from taking steps to remedy this imbalance by advertising the fact that he has commenced practice."
Better regulation might have some small effect on this system of networks, but a real challenge would require a lot more thought about the way Irish society decides which cats get at the cream.