Fee estimates will have to be given by barristers in advance of taking a case under a new ruling from the Bar Council. Failure to do so may constitute professional misconduct.
The chairman of the Bar Council, Turlough O'Donnell SC, yesterday circulated a memorandum to all members of the Law Library enclosing the new ruling of the Professional Practices Committee.
This states that it is the obligation of every barrister to furnish an estimate of fees in writing to a solicitor or a person having direct professional access. This should set out the nature of the services that will need to be rendered, for example written opinions, drafting, attendance at consultations, preparation for or attendance at trial or other advice.
It should also set out the factors that are taken into account in determining the appropriate level of the estimated fee.
The memorandum includes a sample fee estimate, which lists the kind of services that might be involved, and the factors affecting the fees, like complexity, value or importance of the matter, time, urgency, special skill, seniority or expertise.
If there is urgency about the matter, an oral estimate can be given, with the written estimate sent as soon as practical afterwards.
The estimated fee can be altered subsequently, but only if events occur which justify it.
There are exceptions to this rule, but these usually relate to situations where the likely fees would already be known to the instructing solicitor or agency. These exceptions include where the fee is fixed by a scheme like a legal aid scheme; where a barrister does a lot of similar work for the same solicitor (for example, one acting for an insurance company); or where there is work for a fixed fee which is split between the solicitor and barrister, as happens in the civil legal aid scheme.
Mr O'Donnell told The Irish Timesthat this move followed a commitment given by the Bar Council to the Legal Costs Implementation Advisory Group, under the chairmanship of accountant and businessman Desmond Miller, set up by the former minister for justice, Michael McDowell.
Asked how the change would impact on a client, he said that it imposed an obligation on the solicitor, who was the informed purchaser, to engage in a dialogue with the client about costs.
When an estimate is given, the client can ask the solicitor to seek a reduction or to seek another estimate from another barrister.
Mr O'Donnell said it would have a number of benefits. These included forcing clients and solicitors into a cost-benefit evaluation of the case, which could lead to an examination of alternatives to litigation, like mediation. It would also mean the introduction of rigour into the taxation process.
In pro bono cases, where an estimate would have to be given even if the barrister did not intend pursuing the client for fees if the case was lost, it would not be possible to inflict inflated fees on the other side if they lost.
Mr O'Donnell said that this new system might put pressure on the most vulnerable members of the Bar, those newly qualified who could be constantly undercut, but it was necessary as part of a process of assisting people in obtaining the best advice and the best value.
While the letter has gone to all barristers today, the new rule becomes compulsory on March 1st. A meeting will be held early in February where it can be discussed.