The Master of the High Court, Edmund Honohan, last week described the Law Society's scheme of self- regulation as a "systemic failure", and prescribed a radical solution. What was needed, he said, was a "robust agency" to deal with rogue solicitors, one that would sanction and prosecute wrongdoers, and that could command public confidence in its disciplinary procedures. The legal profession, he argued, had been let down not only by a few bad solicitors in its ranks, but also by the failure of the Law Society to fulfil its regulatory role.
The president of the society, James MacGuill, has acknowledged that self-regulation is no longer an option, and has accepted that independent oversight of the profession, with a role for solicitors, is now required. The challenge solicitors faced, he said, was to prove that they were leaders in the protection of the public interest.
Some recent cases have served to highlight the inadequacies of the regulatory regime the Law Society operates. These have resulted in the closure of the practices of two Dublin solicitors who allegedly borrowed millions by securing multiple mortgages from different banks on the same properties. One solicitor, Thomas Byrne, however, had already been investigated by the Law Society three times in the past seven years. Last December, when found guilty of misconduct for allowing a € 1.7 million deficit on his client account, he was censured and fined, but permitted to continue his legal practice. Two months ago the society closed down Mr Byrne's practice, with debts of € 47.5 million outstanding. Such oversight does little to inspire public confidence and trust.
The Law Society's difficulty is one of trying to reconcile two different and contradictory roles. As the self-regulator of the profession, it is the effective arbiter of public complaints against solicitors, which has minimal involvement by the public. As the solicitors' representative body, the society is concerned to defend and advance their professional interests. As Mr MacGuill has rightly recognised, the greatest threat to an independent legal profession is not so much the form of regulation that applies. It is how the public perceive that regulation, and whether it is regarded as ineffective and self-serving, and "geared to the profession, not the consumer".
The Government is expediting legislation to establish a Legal Services Ombudsman to oversee the handling of complaints against solicitors and barristers. The Competition Authority, which has issued a highly critical report on the legal profession, is allowing time for reform to take place. But it has significant powers of enforcement, should reform fail. Time is not on the Law Society's side.