A mother takes her family problems to court and receives an estimate of the legal costs which make them look affordable. As she proceeds with the case the legal fees escalate far above the initial estimate to the point where she can no longer afford professional representation, and she now has to go down into the unforgiving pit of a courtroom and defend herself with no legal training. In another case, the bills mount up so high that the plaintiff is at risk of losing her family home if she does not find a way to drum up tens of thousands of Euros.
Legal fees in Ireland are said to be unusually high by international standards according to the World Bank. Solicitors can charge €450 per hour for their services, with senior counsel charging as much as €5,000 per day for court appearances. The sky high cost of legal services has led to calls for reform over the years from various sources including the OECD in 2001 and the Competition Authority in 2006. Acting on the CA’s recommendations has now been abruptly shunted to the top of the political priority list. The government has introduced the Legal Services Regulation Bill that will end the legal profession’s status as a self-regulated industry.
Some people might scoff at America’s culture of litigation, but vulnerable communities and individuals must be able to keep powerful forces in check via an impartial legal system wherever big business or government exceeds its authority. If a council is skirting planning laws to put a landfill site in the middle of your community, you need to be able to challenge it. When a company poisons the river where your children go fishing, you need to be able to stop them. Public access to an efficient justice system and the ability to state your case before an independent judiciary is an essential component of any civilized society. Exorbitant legal costs undermine this, and this is inexcusable if costs are being kept artificially high by uncompetitive practices and a small number of people having a monopoly on the knowledge and expertise needed to navigate the courts.
Third level educational institutions in Ireland cannot provide professional legal training. Only the Law Society of Ireland can train solicitors, and the Honorable Society of King’s Inns is the only institution that can train barristers. A government report in 1990 found numerous criticisms of King’s Inns and the quality of the training being provided there, which is unsurprising given its monopoly position. The Legal Services Regulation Bill would break that monopoly and allow third level colleges to provide that sort of education.
The bill also contains provisions that will make it easier for people to challenge legal fees, will clarify legal costs (which are currently almost impossible to get at even using Freedom of Information requests), and will simplify the complaints procedure.
However the main reform proposed in the bill is the structures through which the legal profession is regulated. Up to now solicitors have been regulated by the Solicitors Disciplinary Tribunal, an independent body, and the President of the High Court. Barristers have been self-regulated by the Bar Council with no government oversight. The bill proposes that these functions come under the wing of a government appointed regulator, a move which was criticized by the legal profession before the bill was actually published. The Council of Bars and Law Societies of Europe (CCBE) expressed concern that the profession’s regulation by the government would be going further than any other EU member state and would undermine the independence of the profession, particularly in cases where the state is one of the parties being represented. The new regulatory authority will have the power to write the rules of professional misconduct, which is not what the CA recommended and not what exists in other jurisdictions where the judiciary has regulatory oversight and maintains a separation between the government and the legal profession to ensure that the regulator is independent.
It may be tempting to dismiss the legal profession’s concerns as being resistance to change from a privileged industry that has gotten away with gouging its customers since time. Indeed much of the defense mounted by their representative against allegations of uncompetitive behavior highlighted in a recent RTE Primetime documentary sounded like creative interpretation of statistics and focusing on technicalities. However the point about independence is a valid one. Any legislation has to ensure that any regulator is far enough removed from government that its independence is guaranteed.
In any case, why has this reform suddenly become such a high priority for the government? Has the coalition had an epiphany, taken the bull by the horns and, of its own volition, seen the importance of an efficient and accessible legal system? Nope. Enacting such reforms are a condition of the IMF/EU bailout. It has been imposed on us by our financial masters. Anyone who believes in the sovereignty of the Irish people and our right to govern our own affairs might bristle at such an intervention in the fundamental core of our society. But the more cynical among us would say that it was sorely needed, and if it took the international community to whip our inept politicians into line then so be it and so much the better. And what is disappointing from an Irish nationalist perspective is that the cynics might actually be right.
Either way, if a stronger and more affordable legal system emerges from this bill then we can say that the current economic crisis has had some positive impact on making the country stronger and in a better position to emerge from this mess with a stronger business environment in place.
Published in Irish Herald newspaper, November 2011