Seven months after the highly critical Competition Authority report into the legal profession, little has changed, writes Carol Coulter, Legal Affairs Correspondent
However this situation may not continue for long, as the authority prepares its final report, likely to be ready by the end of the year, and an expert group on legal costs puts the finishing touches to its report to the Minister for Justice.
The Competition Authority, which published its report last February, sought an external regulating body for all lawyers, which would regulate the two branches of the profession and set standards for training. This would entail removing the monopoly on professional training from the Law Society for solicitors and from the King's Inns for barristers. It also proposed a number of changes in the way both solicitors and barristers operate, including direct access to barristers and the abolition of the "sole trader" rule at the Bar, allowing barristers to form partnerships with each other or with solicitors, or join multi-disciplinary practices with other professionals.
The Law Society and the King's Inns responded by rejecting most of the authority's proposals which affected them.
Specifically, they defended their respective monopolies on legal education, arguing that they provided practical training by practising solicitors and barristers, which would not be available elsewhere.
The Bar Council is proposing a number of changes to meet the authority's concerns.
In the other professions, such as the various branches of medicine, professional training is provided by the universities with input from practising professionals, usually attached to hospitals or other service-providers.
Both solicitors and barristers must attend courses in Dublin, in the Law Society and the King's Inns respectively, to qualify. Most students will have studied law before entering and may hold a law degree.
They all have to pass an entrance examination.
Both organisations claim that there is no evidence that this system restricts entry. However, it clearly imposes a heavier burden on students outside Dublin than on those based in the capital, which could be eased by licensing institutions in other population centres to provide properly accredited training.
It also lends credence to the view that both the Law Society and the King's Inns are resistant to change and to anything that would lessen their control over entry to their professions.
It cannot be argued that this monopoly on education ensures that certain standards are maintained among all solicitors and barristers practising in Ireland, as, under EU law, lawyers qualified in other EU states may practise here, subject to certain temporary restrictions.
Already there are reciprocal arrangements between the Law Society and its sister organisations in England, Wales and Northern Ireland allowing solicitors qualified in one jurisdiction to practise in the other.
This means that a solicitor qualified in a London college can practise in Ireland without ever reading an Irish statute, but it is not possible to qualify in, say, Cork Institute of Technology following a similar, Irish-oriented course validated by the same London college.
Under the EU Establishment Directive for Lawyers, which became law in December 2003, an EU-qualified lawyer may practise in Ireland, with some restrictions. After three years he or she can take local qualifications and cannot be required to pass any examination or test.
This will lead to a situation within a few years where a solicitor or barrister qualified in Paris or Warsaw, with no reference whatsoever to standards set by the Law Society or the King's Inns, can practise in Ireland, but not one who qualified in an Irish institution, which could be licensed by one or other of these bodies.
The Bar Council has nothing to do with training and has been spared having to take a view on this contentious matter. On most of the other issues raised by the Competition Authority, it has adopted a more conciliatory approach and is preparing a number of changes to its rules to meet the authority's concerns.
The council is prepared to accept some kind of ombudsman for legal services and is proposing to have a lay majority on its disciplinary committee. Minister for Justice Michael McDowell has already indicated to a PD colleague that he also favours such an ombudsman, which is opposed by the Law Society.
While not abandoning its position that barristers operate as sole traders, receiving referrals from solicitors, the Bar Council is proposing to stretch these concepts to their limits. Later this month it will introduce, with the chambers of commerce, an alternative dispute- resolution scheme for small commercial claims, for a flat fee of without any solicitor intermediary. This is a step towards direct professional access to barristers.
The Bar Council also operates a voluntary assistance scheme, where NGOs working with various disadvantaged groups can seek the services of barristers on a pro bono (no fee charged to the client) basis.
If the case is won, the barrister will get his or her costs from the other side, so it is a calculated gamble and can benefit the barrister by enhancing his or her reputation, especially if the case is high profile.
Nonetheless, as one barrister pointed out, it offers a means whereby people of limited resources, who have a case considered sufficiently serious by a voluntary organisation, can gain access to the leading legal experts in this area. Again, no solicitor is involved, except, on occasion, a solicitor working with the NGO.
The Bar Council is also proposing to change its rules governing part-time work by practising barristers.
Up to now, only a limited number of occupations were acceptable, notably those of politician and journalist. However, other types of work were not considered worthy of the senior counsel or judges of the future, and working in a bar or as a taxi-driver outside court hours could have led to a quick exit from the barrister's profession.
This will change, and only work likely to bring the bar into disrepute, which will usually mean work of dubious legality, will be prohibited.
This means that young barristers will be able to support themselves in various ways as they struggle to get established.
An egm will be necessary to approve these rule changes, but no date has yet been set for this to take place - nor is the outcome certain. However, Bar Council chairman Hugh Mohan stressed that the profession was "using the Competition Authority report as an opportunity to look at ourselves and become more modern and consumer-friendly, and give added value to clients".
Meanwhile, however, another train is coming down the tracks that could run over both branches of the profession. This is the expert group on legal costs, chaired by Paul Haran, former secretary general of the Department of Enterprise, Trade and Employment.
When setting it up in September 2004, the Minister said he "attached the highest priority to reducing the cost of civil litigation".
The group contains representatives of Ibec, Ictu and the Consumers' Association, as well as civil servants from various departments, but not direct representatives of the Law Society or Bar Council. Its terms of reference include looking at how legal fees and costs arise and are calculated in civil litigation, international comparisons and to consider whether a scale of solicitors' costs and fees should be made by regulation. Its report is due very shortly.
The report is likely to look at various practices within the profession, including the linking of fees to the size of an award, irrespective of the amount of work involved, in civil litigation. It is likely to recommend that fees be linked instead to the complexity of the case and the work done.
This report comes at a time when the Personal Injuries Assessment Board has significantly reduced the income of both branches of the legal profession. The volume of claims has also been reduced. The reasons for this are various, but undoubtedly include the aggressive advertising campaign waged by the insurance industry, suggesting that the typical claimant is of dubious honesty.
Solicitors have traditionally claimed that personal injury litigation, with the costs borne by an insurance company, allowed for cross-subsidisation, where clients of limited means got legal advice and services below cost on the assumption that they, or someone connected with them, might one day bring a personal injury claim into the practice.
That informal system has been undermined by the Personal Injuries Assessment Board, which may well have knock-on effects for the legal services available to the public, especially in the absence of comprehensive civil legal aid.
All in all, it is unlikely that the continuation of a "steady as she goes" approach to proposals for reform will mean the legal profession can emerge untouched by the changes affecting other areas of society.