The peculiarly Irish love-hate relationship the public has with the legal profession reflects the inevitable conflict between the rights of individuals and the collective good, writes Fintan O'Toole
In the Republic of Ireland, there is one GP for every 2,000 people. There is one solicitor for every 712 people. In terms of raw numbers, we have 2,500 family doctors and 6,000 solicitors. Adding in the 1,300 or so practising barristers, that gives almost three times more lawyers than GPs.
While we have a bit more than half the number of GPs we should have in a developed society, lawyers are everywhere. In Dublin, about one person in every 400 is a professional lawyer. Anyone looking objectively at these figures would have to conclude that we Irish love litigation more than life itself.
Yet, it is a love-hate relationship. It was a Dubliner, Jonathan Swift (himself the son of an attorney), who had Lemuel Gulliver explain to one of the baffled people he met on his exotic travels that, back home, "there was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves."
This breed, he explained, were "biased all their lives against truth and equity". Their maxim was: "Whatever has been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, and the general reason of mankind." In court, "they studiously avoid entering into the merits of the cause; but are loud, violent, and tedious, in dwelling upon all circumstances which are not to the purpose". Outside it, "they were usually the most ignorant and stupid generation among us, the most despicable in common conversation, avowed enemies to all knowledge and learning, and equally disposed to pervert the general reason of mankind in every other subject of discourse as in that of their own profession."
Swift's fierce denunciation can be heard, albeit expressed with rather less eloquence, in every taxi in Ireland. Even the President, Mrs McAleese, herself a lawyer, has described the profession as "a closed shop and an often pedantic and precious institution", with a "gravitational tendency towards vanity".
There's a perception that lawyers are venal, cynical, parasitic and self-serving, and the recent RTÉ television documentary series, Legal Eagles, re-inforced the stereotype. Yet, at the same time, our learned friends have never been so influential. Not only are the current President and her predecessor - both popular figures - lawyers, but so is almost half the Cabinet.
Brian Cowen, Dermot Ahern, Willie O'Dea and John O'Donoghue have all been professional solicitors; Michael McDowell is a barrister; and Mary Hanafin studied law. The tribunals of inquiry have given lawyers a new hold on the political process, as well as a new source of wealth. The consequences of the most intimate tragedies - the break-up of marriages - are now largely determined by lawyers. Almost every subject that requires investigation (from medical scandals to clerical sex abuse) is automatically handed over to a lawyer. No State board is complete without at least one member of the profession. We have managed, simultaneously, to characterise lawyers as a plague and a salve, a problem and a solution, a pestilential crew and a trusted profession.
ONE OBVIOUS REALITY is that the market for legal services has been growing at an astonishing pace. During the 1990s, the number of solicitors practising in Ireland grew at a cumulative rate of 62 per cent - nearly six times the rate of increase in the general population. Such a level of growth would normally mean that the average earnings of solicitors should have fallen rapidly, as more of them chased the available business. Yet a study commissioned from Indecon Consulting by the Competition Authority showed the opposite had happened. The vast majority (93.4 per cent) of respondents to Indecon's survey of solicitors stated they experienced an increase in their average annual fee income during the period 1999-2001. Of these, 11 per cent reported a doubling or more of fee income and 60 per cent indicated an increase of between 10 and 49 per cent.
The obvious conclusion is that more and more of us have been using the services of solicitors. Even taking into account the property boom - conveyancing accounts for around 30 per cent of solicitors' income - it seems the growth in the legal profession is largely driven by public demand.
The unabashed glee with which the Law Society of Ireland greeted this week's court victory over the Personal Injuries Assessment Board (PIAB) reflects, however, the extent to which this growth relied on the insurance claims business. Before the establishment of the PIAB, personal injuries claims were the largest cash cow for solicitors, accounting for a whopping 33 per cent of their income. The sudden disappearance of most of that work was bound to be disastrous for the lawyers, leaving a bloated profession to feed itself on a dwindling supply of fresh meat. This in turn has left the Law Society in the rather awkward position of having to fight on perhaps its weakest ground. The PIAB is patently popular, and the drop in insurance costs has put the public firmly on its side. Yet, from the Law Society's point-of-view, the PIAB is the enemy it has to destroy.
This week's judgment was undoubtedly a boost for the solicitors, not just because they won but because they won with a patently reasonable case. It is hard to argue, as the PIAB would have it, that someone making a claim should be discouraged from using a solicitor when the insurance company has the benefit of its own in-house lawyers. Since the issue was one of allowing the claimant a free choice at his or her own expense, there was a very strong case for saying, in the words of Mr Justice McMenamin, that what was at stake was "the maintenance of fairness between the strong and the weak".
On the other hand, everyone involved knows there is something much larger at stake: the future of the PIAB and, beyond that, the whole notion that any arena in which different interests are in play in the State can ever be a lawyer-free zone. The Law Society itself allowed the thrill of victory go to its head and let the cat out the bag, rather injudiciously revealing its larger agenda - the destruction of the PIAB.
Its director general and highly astute spokesman Ken Murphy hailed the court judgment as "a serious blow to PIAB with its anti-claimant culture. Whether PIAB has been holed above or below the waterline only time will tell." The obvious implication was that if the judgment proves not to have sunk the PIAB yet, the Law Society will be aiming another torpedo in its direction soon.
This row raises some of the fundamental questions that need to be answered if we are to understand the strange ambivalence of a society that flocks to lawyers on the one hand and despises them on the other. Few objective observers would dispute the general perception that insurance claims had become a racket in which claimants and lawyers combined to make money out of the general public, which paid the price in crazily inflated premiums. There was a clear collective public interest in ending this racket by cutting the lawyers out of the process to the greatest extent possible.
WHAT'S LESS OBVIOUS, however, is that this collective interest can come into conflict with the legitimate interests of individuals. To put it simply, if you haven't been injured in an accident, you will be on the side of the collective interest: lower insurance premiums. If you have been crippled for life, you will be on the side of your personal right to the largest possible compensation payment. There is a genuine conflict, and it can't simply be dismissed as a lawyers' conspiracy.
One of the reasons, moreover, for the huge growth in the legal profession over the last 15 years has been the decline of trust in public institutions. Ordinary people have good reason to feel they can't simply rely on the good faith and wisdom of bodies that make decisions about their lives. They don't see official bodies as impartial dispensers of justice. They believe they can't go unarmed, and they are often right.
We have often seen, for example in cases of gross medical malpractice or negligence, that victims who trust the authorities then find those same authorities have managed to "lose" all records of what was done to them. The lawyers they turn to can be just as corrupt and self-interested as the institutions that wronged them in the first place. But many of them are in fact diligent, able, committed people who retain more than a residual belief in the notion of justice. In this sense, the love-hate relationship of Irish society with the legal profession may be less of a bizarre neurosis and more of an accurate reflection of a complex reality.
Aside from dealing with the broader context of public trust in institutions, there are ways of making the relationship healthier. Some sections of the public could be weaned off their self-destructive addiction to litigation. (Libel actions, for example, could be massively reduced by establishing a press council with teeth.)
The legal professions can be reformed and demystified. (The forthcoming report on the subject from the Competition Authority should make interesting reading.) The legal monopoly on inquiries and tribunals can be broken at least in part by allowing Oireachtas committees to again conduct investigations such as the DIRT inquiry.
Above all, it would make both fiscal and social sense to invest massively in public services that can provide ordinary citizens with impartial and objective advice on their rights and options.
It is ridiculous, for example, that the Legal Aid Board, whose lawyers have no self-interest to advance, has been consistently and deliberately starved of funds. While the private legal business boomed, waiting lists to see a solicitor at many public law centres grew by a factor of three or four between the end of 2001 and the early part of last year.
In the Pope's Quay centre in Cork, for example, the waiting time went from two months to 14 months, and in the Brunswick Street centre in Dublin from five months to 16 months.
The only option open to the people left waiting would have been to see a lawyer and sue the State for the right to see a lawyer.