More demanding clients, less work and possible external regulation are all now on the agenda for lawyers, writes Carol Coulter, Legal Affairs Editor
LAWYERS FREELY acknowledge that the past year has been a difficult one, with the scandals involving Lynn, Byrne, Carroll and Colley casting a long shadow, particularly over the solicitors' profession. While barristers have escaped this particular fallout, their image has already been tarnished by the perception that hundreds have grown rich on taxpayers' money through tribunals.
Clients will approach them more cautiously, and be more concerned with what they are getting for their money. This is welcomed by outgoing Law Society president James McGuill, who acknowledges that clients did not always get good value for money in the past.
"When I started it was routine to charge 3.5 per cent of [the value of] a case for probate," he said. "It was scandalous. If it was a complex case it was all very well, but if it was a family house and there were four nieces and nephews it was very simple. The public twigged that, and now they get a grant of probate themselves."
He says solicitors should put a lot more work into the initial engagement letter, and charge for it. "Have a half-day discussion with the client, set out what the client hopes to achieve, what the chances are, what the stakes are, what the time and costs will be." That would include discouraging litigation where it had little prospect of success.
New rules from the Bar Council mean that barristers must now set out in writing to a solicitor what they expect a case to cost. In theory, this should mean that a solicitor can shop around. There is provision for the estimate to change if the case takes an unexpected turn. Nonetheless, it should mean that a client can ask his or her solicitor what the barrister will cost, and whether a different, perhaps younger, barrister could be got for less.
This is welcomed by Michael Collins, newly elected chairman of the Bar Council, but he is not happy about the proposal from the Government-appointed implementation group on legal costs that the main basis for calculating costs should be time-recording. He points out that this rewards inexperience and inefficiency and could lead to inflated fees and unethical billing practices.
Still, spurred by an active engagement with the Competition Authority over recent years, both branches of the legal profession now accept that fees should be transparent and, as far as possible, set out in advance. Clients can now demand this.
James McGuill is less concerned than some of his colleagues about Ireland's declining economic fortunes. "We have an opportunity to play a hugely constructive role in helping people get through this difficult period," he told The Irish Times. "We have a duty of civic leadership not to panic."
There would be a need to protect clients from the unscrupulous who sought to take advantage of the economic downturn to renege on commitments, he said.
In addition, there was work in areas such as taxation now done by non-lawyers which could replace the loss of work in areas such as conveyancing.
And he, like his colleague Michael Collins in the Bar Council, stressed the importance of developing the area of alternative dispute resolution, to ensure people kept away from court as far as was possible.
There will also still be work for those who see law as a public service rather than a business. The State provides legal aid to those accused of serious crimes who cannot afford representation, and to some who need representation in civil cases.
Last year, total payments to solicitors and barristers under the criminal legal aid scheme were €44.8 million, while funding for the much less comprehensive civil legal aid scheme, managed by the Legal Aid Board, was €24.288 million.
Legal aid is also available under the Attorney General's scheme for bail, extradition and certain other categories of cases, but lawyers regard the level of aid under that scheme as minuscule.
The demand for legal advice and legal representation from the Legal Aid Board is so heavy that potential litigants wishing to see a solicitor wait an average of four months. The community law service Flac, funded mainly by a voluntary levy on lawyers, offers free legal advice through a network of 67 centres to ever-increasing numbers. Other lawyers work with agencies such as the Irish Council for Civil Liberties.
The majority of lawyers, however, are in private practice, and nowhere is this more competitive than at the Bar. Here the concern is that the work is concentrated in too few hands. Michael Collins acknowledges that the Bar is now a "pear-shaped" profession, with a large bulge at the bottom.
Responding to the Competition Authority, the Bar has also changed its rules to allow a barrister to employ another for research, but there has been some criticism of the fact that there is no requirement on the employing barrister to acknowledge this work. Mr Collins says some young barristers may not wish to be typecast as researchers, and the employing barrister may not wish to draw attention to his need to employ help. Anyway, very few are affected, he said.
He shares the concern of many that some very promising young lawyers without external financial support may not be able to survive the first few years, while the less talented, with parental support, would. This would have negative consequences for the Bar, which needed people from all backgrounds, he said.
Among his proposals to help the younger barristers is more training in setting up a practice and getting work, and additional qualifications in areas such as mediation.
Declan Purcell of the Competition Authority welcomes the changes in the legal profession so far, but feels they have not gone far enough. While the two representative bodies implemented most of the authority's recommendations, the Government has done nothing about its main one - an independent regulatory body, like a legal services commission.
This is what now exists in the UK, he pointed out, and in most other states of the EU. This would break the link between the representative and regulatory roles of the Law Society and the Bar Council, which is the case with other regulated professions in Ireland.
Asked in the Dáil a year ago what plans there were for a Legal Services Commission, then minister for justice Brian Lenihan said there were none.
Since then the appetite of both the public and politicians for effective regulation of those offering services to the public has been sharpened by the banking crisis. This might be a good time for the Competition Authority to renew its call.
Series concluded