The Legal Services Bill is likely to lead to increased costs and reduced access to legal representation by the marginalised, writes SHELLEY HORAN
THE LEGAL Services Regulation Bill presumes the creation of (a) “chambers” which involve barristers setting up in practice with other barristers, (b) legal partnerships (LPs) which involve barristers and solicitors setting up in practice together and (c) multidisciplinary partnerships (MDPs) which involve barristers setting up with other professionals like solicitors, auditors, accountants, tax specialists, insurance experts or scientists.
The introduction of chambers, LPs and MDPs would cause extensive changes to be made to the existing system, where in excess of 2,300 Irish barristers operate as sole traders and compete against each other for work. Barristers are available to all small solicitor practices throughout the country, thereby assuring their access to every class of client.
Many high-profile cases show that the existing system works and ensures access to justice for all. Take just one example, the successful challenge by Caroline McCann against her confinement to jail arising from her inability to pay a debt: she was represented by Donal O’Donnell SC not long before he was directly appointed to the Supreme Court. There are many more.
In addition there is a huge number of judicial review applications taken pro bono(for the public good) in immigration, asylum and other matters and the representation by barristers in family law matters – all of which cases deal with the rights, freedom and quality of life of the most vulnerable and marginalised in society.
Lawyers also work voluntarily to ensure access to justice through various schemes and organisations, such as the Bar Councils Voluntary Assistance Scheme, the Free Legal Advice Centre, the Northside Community Law Centre, the Irish Council for Civil Liberties, the Public Interest Law Alliance and New Beginnings.
Chambers, LPs and MDPs would impede access to barristers for the consumer. For example, in the context of chambers, a huge number of specialised barristers would set up in practice together, reducing the availability of expert advocates, inhibiting access to justice and creating a more elitist and closed legal system.
Chambers, LPs and MDPs were not recommended for Northern Ireland, which has a more comparable legal system and population to the Republic of Ireland than does England and Wales.
It was stated by the Legal Services Review Group there that “the market for advocacy services in Northern Ireland is ‘competitive’ in the economists’ sense of that term: a large number of sellers (barristers) offer, without any collusion between them, a relatively homogenous product (advocacy services) to a large number of buyers (solicitors)”.
The group also warned that allowing barristers to form associations would, by bringing them together in larger units, be a move away from the existing competitive model. The group was concerned that barristers specialising in certain aspects of law, in which there are a limited number of suppliers in Northern Ireland (and in the Republic of Ireland), could group together to form a local monopoly leading to increased prices or even denying supply of services to certain customers.
In the Republic the Competition Authority noted that LPs raised issues about access to justice, observing that the best advocates would be enticed to work for larger city-based firms and that they would not set up with small rural or local legal firms, with the result that their clients would no longer be able to access these advocates. It also concluded that MDPs, being largely untested as a model across the world, should not be introduced without careful review.
Even the United States, which is one of the most open and transparent economies in the world, has rolled back from the introduction of MDPs, particularly in light of the spectre of Enron, where questionable legal, accountancy and tax advice was supplied to Enron by Arthur Andersen.
MDPs will be difficult to regulate. What authority can regulate a firm that provides taxation, accounting, legal and other services? It is difficult to understand why it is considered desirable, in the context of MDPs, that Ireland would allow a variety of professionals to club together under one roof, thereby concentrating power among a few and creating conflicts of interest.
This is particularly surprising in the aftermath of the ongoing financial crisis, where we should have learned from the problems associated with concentrations of power in small numbers of firms and regulatory failures.
A 2011 report by Banco Espirito Santo prepared following the commencement of the Legal Services Act 2007 in England, predicts that the effect of the recent introduction of MDPs will be to shrink the number of competitors in the market to between five and 10 commercial firms with a turnover of more than £1 billion (€1.2 billion) per annum, along with a similar number of general service law firms.
When the chambers system took over in the UK, almost three quarters of those who qualified as barristers ended up unable to practice because they could not get a traineeship in chambers. Chambers would pose a barrier to entry to the legal services market for newly qualified barristers. Results set out in the English Bar Council’s 2006 report found that even today a mere 17.5 per cent of all graduates were likely to secure a position within chambers.
There is also a serious risk that a chambers system would institutionalise nepotism in the legal profession and give rise to oligopolies of barristers, the antithesis of competition.
In this debate we must not lose sight of the advantages of the current system in allowing the most remote and poorest client the chance to be represented by the finest lawyers. And we must remember that wider competition law and free market ideologies do not apply neatly to the market for the provision of legal services.
Shelley Horan BL is author of Corporate Crime(Bloomsbury Professional, 2011) and Adjunct Lecturer in Law in Trinity College Dublin.