There are circumstances in which people need legal representation. They are not freely exercising a consumer choice
THE DEBATE AROUND the Legal Services Regulation Bill has its origins in the report of the Competition Authority on the legal professions and the EU/IMF Memorandum of Understanding that endorsed it.
However, the language surrounding the proposals for reform has tended to conflate two very distinct concepts: that of the consumer of legal services and the client of a legal practitioner. In this discourse, the interests of the citizen in the sound administration of justice are reduced to the interests of an imaginary consumer of a service not fundamentally different from hairdressing.
But legal services are not like hairdressing, or indeed like accountancy or auctioneering or banking, or a host of other services which have been subject to competition rules, though some legal services may resemble them in certain circumstances.
Legal services are fundamentally different to other services for two main reasons: the law protects the rights of the individual and of vulnerable groups against the State and against those who might abuse positions of power; and there are circumstances in which people need legal representation. They are not freely exercising a consumer choice.
Can it be seriously argued that a person, who is the victim of a medical mishap and needs compensation in order to obtain ongoing essential care, is a “consumer” of legal services when he or she seeks legal advice about how to proceed?
What about the young man who was involved in a row outside a pub where one of the other participants dies, and who finds himself charged with murder? His liberty is at stake. Is he exercising a choice in deciding whether or not to “consume” legal services?
What about those cases, all too frequent recently, where a family is threatened with the repossession of their home by a financial institution due to the bread-winner losing his or her job and therefore being unable to keep up mortgage repayments? Are they really voluntary “consumers” of legal services when they seek legal help to save their home?
Such examples of the kind of people who are not freely exercising a consumer choice when they seek to access legal services are legion, and have received little attention in the debate surrounding the Bill (with some honourable exceptions, such as FLAC, which has expressed concern about its impact on access to justice for all).
In very many cases when individuals seek a legal service, they are either vulnerable, or at a crisis point in their lives through accidental injury, family breakdown or bereavement, or they find themselves confronting an agency of the State. Most individuals seek legal services only a handful of times in their lives. The choice of an appropriate lawyer in such circumstances is of the greatest importance, and a mistake could be catastrophic.
On the other hand, businesses, especially big corporations, need legal services all the time to draw up contracts, to assist in employment disputes, to negotiate mergers, to acquire or rent property, to secure payment for services, to deal with banking and taxation matters . . . the list goes on.
These companies know exactly what they need and have a very good idea of where to find it. They are in a position to strike a hard bargain in obtaining a legal service, and lawyers in the big legal firms attest that obtaining this work is now very competitive.
Some of the measures in the new Bill will be of benefit to these firms. Solicitor/barrister partnerships or combined practices could help ensure that highly sought-after specialist barristers are always available to the clients of these firms.
Multi-disciplinary practices could allow for a seamless service, from accountants’ tax advice to fighting off any challenges to that advice in court – and perhaps, as is being argued in the Supreme Court in London at the moment, extending the benefit of legal professional privilege to accountants’ advice. It is arguable that such a combination of disciplines would not be in the public interest, especially if it allows a dilution of a lawyer’s primary obligation to the law and the court.
But it is less obvious that these measures will be of any benefit to the vast majority of ordinary citizens, both those who require legal services at crisis points in their lives and those who have an interest, as citizens, in the fair, independent and impartial administration of justice and in the availability of legal services to all sections of society.