OPINION:Commerce and private life are propelled into adversarialism under the system of barristers and solicitors. Merging of the roles is attractive
MINISTER FOR Justice Alan Shatter’sproposal to transfer regulatory functions away from both the Law Society and the Bar Council is meeting stiff resistance both from his own profession and the Bar. But one positive outcome may be that an independent regulatory body, speaking from neither professions’ standpoint, can look more objectively at one of the issues to be referred to it for examination, namely the desirability of merging the two.
A notable feature of debates about legal reform is the extent to which discussion focuses on the litigation process. Just as medical professionals focus on pathology, society has to give equal priority to health and prevention.
If priority of attention is switched, to recognise the unique potential for those with legal skills to serve society and the market in the promotion and fashioning of agreement, the choices around professional organisation begin to look different.
Commerce is built on relationships, and a thriving economy requires the skills of those who can fashion business relationships into clear and effective commitments. It is the role of the lawyer to elicit what it is their clients mean to commit to, and to express their intentions in enforceable form. Legal services are needed for all manner of deal-making, and to create partnerships, joint ventures and the varieties of corporate organisation. Business also needs access to quick advice in the context of ever-increasing complexity.
Availability of such skills is critical to the expansion of entrepreneurial activity, employment growth and recovery of financial independence for the State. To the extent the economy is underserved in this respect, only the litigation business will thrive.
Paul O’Higgins SC, chairman of the Bar Council, has justified maintenance of the split legal profession on the basis of a specialist rationale. Barristers, he says, “develop their own particular expertise. Many barristers specialise in very complex legal disciplines.” Thus, in the higher courts, a client can have the benefit of “an expert referral lawyer who has concentrated their entire career on gaining the expertise the client now requires”. The solicitor, Mr O’Higgins acknowledges, “is also a highly qualified lawyer who is free to concentrate on the non-advocacy elements of the case”. He suggests the solicitor, with a detailed knowledge of the legal landscape, “is in a position to select the correct barrister”.
Does a GP-specialist analogy work? My contention is twofold. First, that a professional structure built around the litigation system will not optimally serve business needs. Second, the perception that specialised legal knowledge is to be had primarily from the Bar (outside perhaps of the circle of large law firms) inhibits a necessary growth of legal practices that are “full service” relative to their clients’ requirements in non-litigious work.
Clients doing business need lawyers who have answers at their fingertips. A reservation of legal expertise to an elite second tier focused primarily on courtroom star wars drains the profession of what is needed at the coal face. The need to price in duplication of effort, and where barrister intervention is at a remove and spasmodic, leaves a profession unable to provide what the market needs at affordable cost. Only in the case of large firms is it economic to cover the necessary range of specialisations. But the charges made by such firms are out of reach of small traders.
It has frequently been remarked that the presence of major sophisticated law firms in Ireland has been important to the attraction of foreign investment. Nascent businesses in the indigenous sector could likewise benefit from enhanced services at affordable prices.
The second aspect of agreement-making arises when parties are in dispute. How well does the legal profession serve a societal objective of promoting agreed solutions – as early as possible – in such circumstances?
We are accustomed to see the litigations process as the first recourse when parties are in conflict. In fact most cases are settled by lawyers negotiating. Here, you may say, is the legal skill in agreement-making at its best?
A further element of the Government’s legislative agenda becomes relevant here, as it has promised a Bill to implement the findings of the Law Reform Commission on alternative dispute resolution. A remarkable feature of those recommendations is the proposal that civil or commercial legal proceedings cannot even be got under way unless it is formally certified that mediation or conciliation (or both) have been considered and that the solicitor acting has advised the client to consider that alternative “where appropriate”.
It is true that, in recent years, the legal profession has embraced to some degree the mediation/conciliation alternative. What is not in evidence is a willingness to go to mediation at the outset of a dispute. The litigation process, of itself, entrenches parties in their positions and, in the course of pleadings, increases antagonisms.
This makes the attainment of settlement by agreement more difficult, and explains why so many settlements are achieved late in the proceedings or at the door of the court. In Commercial Court, where Mr Justice Kelly has led the way in advocating mediation for major cases, that process is normally engaged in only when litigation is well-advanced.
Although it is often assumed that clients, if their real preferences could be heard, would favour alternative dispute resolution, in fact hesitancy by the profession about the use of such resolution is frequently matched by a lack of enthusiasm on the part of clients. Parties in conflict often want victory and do not care to acknowledge weakness or their own contribution to a dispute’s escalation.
It makes sense that legislation should push the issue; lawyers may all-too-readily assure themselves they are doing what the client wants, whereas they may in fact be profiting from their anger. A profession geared to the adversarial system is not best-organised to be an agent for consensus and agreement in everyday commerce. A split profession does not serve the needs of an enterprise economy for skilful fashioning of business relations, nor meet the social objective of providing early solutions where relationships break down.
Fergus Armstrong is a former chairman of McCann FitzGerald and is a mediator with One-resolve