The head of the Competition Authority believes it is time to remove the Law Society's regulatory role, and to bring all barristers and solicitors into a single profession of lawyers.
Dr John Fingleton said yesterday that the Competition Authority was also examining whether the Taxing Master should be accountable to the Oireachtas for how decisions on legal fees are reached.
The authority intends to have a consultation paper on these issues, including recommendations, ready by the summer, and to allow eight weeks for final observations. The final report will be ready by the end of the year, he said.
This will follow an interim report on eight professions - doctors, dentists, optometrists, vets, architects, engineers, solicitors and barristers - carried out in 2002 by economic consultants Indecon and published almost a year ago. The authority has been examining the material collected for this report, and has concluded that its inquiry must go further, said Dr Fingleton.
Referring to the distinction between solicitors and barristers, he said solicitors can do everything barristers can do legally, including be appointed as High Court judges. "To what extent are they already legally fused?" he asked. "If that is the case, the convention and culture don't reflect the formal legal situation.
"But there are anomalies there. For example, employed barristers cannot appear in court, but employed solicitors can. The obligation on barristers to be sole traders does not apply to solicitors. Is the regulatory system the same for them both? If not, is it invidious for barristers in the long run?"
The authority will also examine the situation where the Law Society both represents solicitors and regulates the profession. "The Medical Council is not the IMU or the IHCA," he said. "We are looking at the possibility of a separate Law Council for the entire legal profession, looking after standards for education, continuing education, professional conduct and misconduct. This would require a statute spelling out what the body should do.
"Given the range of people using legal services, there is potential to have a Law Council that is very broadly based. We can't rely only on self-regulation.
"In relation to legal education, the existing monopolies are not justifiable. If you can train doctors in a variety of institutions to carry out operations which are a matter of life and death, I can't understand why you can't train people in different institutions to represent people in court."
Dr Fingleton also questions the continuing distinction between senior and junior counsel, especially when access to barristers is controlled by solicitors. "The SC title is a quality stamp. That can be useful where you have expert sellers and uninformed buyers. But solicitors are the buyers, and they are very knowledgeable. So either you allow direct access to barristers and have a quality stamp, or you have indirect access and have no quality stamp.
"You have no distinction between senior and junior solicitor-advocates. So is the level of consumer protection too high for barristers or too low for solicitors? There is also a question of transparency and consistency in the selection process."
The role of the Taxing Master, who adjudicates on disputed legal fees, will also be examined. "It is an opaque form of price regulation. We not only don't see the prices, we don't see the principles on which the prices are regulated. In other areas there are principles of regulation and there is accountability, including to the Oireachtas.
"Should the Taxing Master be an officer of the court, or should he be independent? What principles should govern that?"
The authority will also look closely at the issue of multi-disciplinary practices, and associated concerns about pro bono work.
He said the authority had no illusions that its report would solve all the problems in the legal system. But it wanted to make sure that competition was not the bottleneck preventing progress.