Friday, October 14, 2011

Reflections on the Legal Services Regulation Bill 2011

The Legal Services Regulation Bill 2011, has been greeted with predictable opposition by those representing the profession. Below are some of my thoughts on their arguments.
1. The Bill erodes the independence of the legal profession
This argument assumes that the legal profession is somehow independent and operates on some lofty claim. The truth is that no jurisdiction that I am aware of has guaranteed absolute independence to the profession and freed it from all regulation. There are a variety of models of regulation across the world but none of them are designed to guarantee absolute independence or to create a position of special privilege for lawyers.

The idea of independence is to ensure that lawyers are able to dispense legal advice to clients free of pressure from the state, to protect the rule of law, to protect against retaliation for pursuing claims against the state, and to support the administration of justice. These objectives are guided by the need for a system that serves the public interest. While different countries have adopted a range of regulatory models for the profession, in no country has the supervisory function been free of state interference. Many jurisdictions have vested this power in the courts - which are also an organ of the state. Judges are appointed by the government in these jurisdictions and vesting supervisory power in their hands has not compromised independence in any meaningful way. Yet some continue to make tall claims - the Independent claims today that "Minister ... will directly appoint seven of the 11 members ...[t]his undermines not just the independence of the legal profession, but undermines access to justice itself. The new regime of direct control of the legal profession is unparalleled anywhere in Western Europe."

The government appoints judges. Does anyone seriously believe that Ireland does not have an independent judiciary or a legal system based on the rule of law? Irish judges are widely applauded for their independence and excellence and to jump to the conclusion that appointment by the Minister "undermines access to justice" is rather silly.

The Bill expressly mandates independence: section 9(3) says that the Authority "shall be independent in the performance of its functions." Further section 9(4)(e) requires it to "encourag[e] an independent, strong and effective legal profession," and 9(5)(a)(1) states that legal professionals shall "act with independence and integrity."  They are also required to "comply with duties rightfully owed to the court." In addition, other provisions contain detailed rules designed to ensure independence. Section 11 - containing bars on serving as a member of the Authority if elected to Parliament, section 14 - disclosure of conflicts of interest, etc are examples.

2. The Bill gives too much power to the Minister
This ultimately depends on practice and it is perfectly possible that the minister will defer to the views of the Authority. It is also misleading to suggest that the profession has been shut out of the appointments process - 4 out of the 11 members of the Authority shall be nominated by them. 6 out of the 16 members of the disciplinary tribunal shall be nominated by them. This is quite a lot of power to the profession. There are however some areas for concern. For e.g. the strategic plans have to be approved by the minister and there might be some pressure on the codes of practice. These could be improved through further clarifications.

3. The disciplinary process is flawed
The Bill provides a detailed set of rules on lawyer discipline. This is not at odds with what is prevalent in other jurisdictions. It is typical to have non-lawyers on disciplinary hearing panels, although the requirement for the majority to be comprised of lay persons poses challenges of expertise. The decision of the Disciplinary Tribunal can be appealed to the High Court.

4. The Bill will make legal services more costly
There is no evidence to support this assertion. Indeed many of the reforms are expressly geared at removing structural barriers to competition and costs ought to come down. It would have been preferable for the Bill to merge the professions now rather than waiting for a report and wasting two years. The justifications offered for the duality of the professions are weak and there is nothing new to be gained from another report. Allowing direct access to barristers, permitting them to take up regular employment and to provide legal advice to their employer, permission to form firms, etc., should all work to drive down costs.
I have some concerns about the requirement for annual statements from accountants; this seems unnecessary and costly. I am also not persuaded about the need for mandatory indemnity insurance. A disclosure based regime would have been a superior alternative because it would facilitate contractual choice and keep costs down. I am also not persuaded about the need to create a new profession of conveyancer.

In conclusion, there is much to like in the Bill and it is a step in the right direction. The profession should see it as an opportunity to improve access to justice, provide better service to clients at lower cost and to regain public trust.