IT IS no longer a question of whether reforms of the legal profession are warranted but how radical those measures should be in addressing a system that, in the words of Minister for Justice Alan Shatter, still reflect aspects of the 19th century. Because of a separation of powers under the Constitution, successive governments have been reluctant to interfere in the affairs of the legal profession or risk disturbing the judiciary. Report after report on the need for various kinds of reform gathered dust on ministerial shelves while the Law Society and the Bar Council fought to preserve their traditional controls and income streams. At the same time, members of the judiciary objected to the establishment of a judicial council.
So far, the profession has succeeded in resisting public demands for a more transparent, streamlined and less expensive system. But time has run out and by the end of this month, legislation that provides for the establishment of an independent regulator will be published. Under the terms of the EU-IMF bailout, reforms advocated by the Competition Authority that are intended to address consumer concerns; reduce costs and modernise the system will be progressed.
When reform is mentioned, the focus generally swings to the financial difficulties facing newly qualified solicitors and barristers. There is no doubt that since – and even before – the economic downturn, many new entrants to the profession have found it very difficult to make a living. Frequently, it is who you know, along with political and businesses connections, that make the difference. Those criteria continue to apply in later life.
A genuine complaint exists that too much lucrative work is concentrated in too few hands at the top of the profession. In that regard, the Comptroller and Auditor General John Buckley drew attention to the fact that the Department of Finance paid €33 million for legal and other advice in 2009. Tribunal work came to be regarded by the public as something of a gravy train. A more equitable sharing of State work and easier access by consumers to legal services would be helpful.
Change is always difficult. Proposals for a judicial council, first made in 1999, eventually reached the draft legislative stage last year. Holiday periods and working hours for the judiciary remain, like those for the Oireachtas, stuck in the past. Structural and administrative changes at that level may be as beneficial as increased competition among lawyers and lower legal fees. Apart from the appointment of an independent regulator, the Government is required by the EU-IMF to take action on a range of other reforms, recommended five years ago by the Competition Authority.
Allowing qualified persons, other than solicitors, engage in conveyancing; permitting direct access to barristers for legal advice and basing legal costs on the work done, rather than the size of the award, are among the changes proposed. Any reforms are likely to meet resistance from within the profession and the Government should take note of legitimate concerns. But change is both unavoidable and long overdue.