Column Legal reform is a chance to finally do the right thing for consumers

Yesterday TheJournal.ie published a column by Ken Murphy, the director general of the Law Society, in which he argued that reforms to the legal system are necessary but the current proposals must be amended.

Here, Minister for Justice Alan Shatter responds and argues that the Bill is in fact a positive move for consumers – and for the legal profession.

KEN MURPHY’S OBJECTIONS to the Legal Services Regulation Bill – which have also been voiced by others – are more theoretical than real.

The Bill stands on a basic principle that lay people understand: solicitors and barristers exist for their clients, not the other way round.

Reflecting this principle, the Bill gives effect to the Government’s pledge to:

• establish independent regulation of the legal profession
• improve access to a more competitive legal-services market
• make the principles governing legal costs more transparent, and
• ensure adequate independent procedures for dealing with consumers’ complaints.

The Bill creates the Legal Services Regulatory Authority (LSRA) to operate a system of independent regulation of the legal profession. I fully intend to harmonise independent regulation with the independence of the legal profession. The LSRA is expressly conferred with statutory independence. When undertaking its statutory duties it will not be subject to control by any Government or Minister. Nor will the legal profession when advising or representing clients be subject to any such control.

My commitment is that the new regulatory architecture will be independent, both in reality and appearance. So that there can be no suspicion or perception of external control or interference, I am taking positive steps to reinforce the independence of the LSRA and the new disciplinary system from executive control or interference. Specifically, I am considering amendments to:

• create an independent process for appointing the members of the LSRA;
• create an independent process for appointing members to the Disciplinary Tribunal that will adjudicate on issues of professional misconduct; and
• remove the need for Ministerial approval for any code of practice the Legal Services Regulatory Authority proposes to apply to the legal profession.

The first Bill to state the independence of the legal profession

Strikingly, the Bill is the first piece of legislation in the history of the State to articulate the principle of the independence of the legal profession. Retaining the essential marks of independence, every lawyer:

• remains an officer of the court who must obey the rules of our independent courts and who owes a duty of candour to the court
• can provide legal services and represent anyone in legal proceedings free from any executive control or pressure
• can exercise independent judgment in the performance of his or her professional service, and
• is free to champion all fundamental rights under the Constitution and sue the State before the courts without fear of executive disfavour, disadvantage or disapproval.

Importantly, under the Bill one of the criteria for promotion to the status of Senior Counsel – which will be open to solicitors as well as barristers – is a record of professional independence.

The Bill makes several other important consumer-oriented reforms. Thus, lawyers will have to give clients a notice of costs as soon as they are hired. They must keep the costs under review to reflect any changes that may raise the cost. This will help clients to make a more informed choice about whether to take legal proceedings in the first place, and about whether to stop legal proceedings before the costs become too much for them to bear. Moreover, on completing the work, lawyers must give clients an itemised statement of the services and costs involved. They must also inform clients about what steps they can take if they wish to dispute the bill.

An end to anti-competitive practices

The Bill also prohibits several restrictive practices that are anti-competitive and simply do not benefit clients. It prohibits junior counsel from charging fees based on a percentage of the senior counsel’s fees. It prohibits lawyers from charging fees based on a percentage of the compensation awarded to a client. It allows direct access by consumers to barristers for advice.

The Bill allows the creation of new business-structure options for delivering legal services. It endorses the principle of partnerships between barristers or between barristers and solicitors. It allows multi-disciplinary practices involving lawyers and other professionals such as accountants or tax specialist. Lawyers will have new opportunities, and consumers will have the freedom to choose legal services that are tailored to their needs at a reasonable cost.

I encourage the Law Society and the Bar Council to engage, constructively, with me in perfecting this Bill. Clearly, the Law Society is not shutting the door against enlightened reform. On 20 January last it agreed that it would be in the best interests of the public and of the profession to support the new independent complaints structure set out in the Bill. I welcome constructive dialogue with all stakeholders on the key issues. The Bill is an opportunity to make a historically significant structural reform that puts consumers at its very heart.

Column: ‘This is a blueprint for Government control of the legal profession’