Competition authority report on solicitors and barristers

AuthorCharles Lysaght
PositionBarrister-at-law, formerly Lecturer in Competition Law, London University and formerly Professor of Company Law, King's Inns
2008] Competition Authority Report 159
The Competition Authority Report1 with its strangely
inverted title “Solicitors and Barristers” published in December
2006 (hereinafter called the Report) is a sequel to the Study of
Competition in Legal Services (hereinafter called the Preliminary
Report) published in February 2005.2 It was written following
consideration of submissions made by the legal profession, and
seems destined to set the agenda for reform of the profession over
the next few years. It must, therefore, continue to command
attention. The purpose of this article is to review the Report and
to refer to some subsequent developments relating to matters
treated in it.
At the time of the publication of the Preliminary Report,
I expressed the view that it would do little to cure the central
malaise of the legal system, which is that costs at their present
level are a substantial deterrent to those contemplating the
assertion or defence of their legal rights.3 There is nothing in the
more limited recommendations of the final report to make me
alter that view. While it is superior in presentation, and rectifies
some of the egregious errors in the Preliminary Report, its
analysis of complicated issues, such as the permissible business
structures for practising lawyers, advertising and professional
charges, is not exhaustive, and at times is questionable. By
asserting that the likely benefits of competition must be assumed
and cannot easily be quantified, it absolves itself from the task of
* Barrister-at-law, formerly Lecturer in Competition Law, London University
and formerly Professor of Company Law, King’s Inns.
1 The Competition Authority, Competition in Professional Services: Solicitors
and Barristers (Dublin: The Competition Authority, 2006).
2 Competition Authority, Study of Competition in legal services: Preliminary
Report (Competition Authority, 2005).
3 “How good is the Authority’s draft report on the legal professions?”, (2006)
14 Competition 9.
Judicial Studies Institute Journal [2008:2
examining the facts in detail. An over-ready tendency to
recommend English solutions, evident also in the Preliminary
Report, without making a thorough up-to-date analysis of what
has happened there, is symbolised by its image of the barrister.
The wigged figure is depicted not at any Irish legal venue, but
crossing the Strand in London, on his way into the Royal Courts
of Justice.
End of Self-Regulation
Fundamental to the conclusions of the Report is the view
that competition has been impeded in both branches of the legal
profession, by regulations governing entry and practice made by
the profession itself. Self-regulation, it is argued, is inevitably
biased in favour of the profession rather than the consumer of its
services or other outsiders; accordingly, it needs to be overseen
by a Legal Services Commission, so constituted that the majority
of its members are not practising lawyers.
Thus stated, it sounds admirable in principle. It is in line
with what is happening in the financial sector and elsewhere.
However, under the recommendations in the Report, power to
make regulations in the first instance would still be vested in the
professional bodies. The Commission’s effectiveness would
depend on the willingness and ability of its members to second-
guess these professional bodies in making regulations and vetoing
those made by these bodies. There could, it must be said, be
justifiable disquiet if the proposed power of the Commission to
direct the making of new regulations or the amendment of old
ones led to far-reaching changes of the kind that should be
reserved to legislation enacted by the Oireachtas, which has, in
the past, provided a measure of independent regulation of
solicitors. Advertising regulations, the subject of detailed, if not
altogether satisfactory, legislation as recently as 2002,4 is an
example of an area where this would be controversial. None of
these difficulties are canvassed in the Report.
As regards the enforcement of regulations, the Report notes
the introduction, in line with the Competition Authority’s
4 Solicitors (Amendment) Act, 2002; Solicitors (Advertising) Regulations
2008] Competition Authority Report 161
Preliminary Report, of proposals for legislation creating a legal
services ombudsman, to hear appeals against the handling of
complaints by professional regulatory bodies.
However, there is no detailed critique in the Report of this
proposed legislation, which was published six months earlier, in
June 2006, and entitled the Civil Law (Miscellaneous Provisions)
Bill 2006, the provisions of which have now been incorporated in
the Legal Services Ombudsman Bill 2008. It seems that the
Competition Authority may not have brought itself fully up to
date on it.5 By limiting the role of the legal services ombudsman
to an oversight one, intervening only where the manner in which
the professional body has handled a complaint is defective, the
Bill imposes significant limits on the ability of that officer to
provide redress. Such redress would appear not to be available
where a complaint is turned down because the professional
regulatory body prefers to accept the version of events put
forward by the member of the profession against whom the
complaint is made.
The inadequacy of a divided complaints procedure, for a
client who does not know whether the fault is with the solicitor or
the barrister, to which reference was made in the Preliminary
Report, is not teased out. In England this has led to the creation of
an Office for Legal Complaints, to which complaints against both
barristers and solicitors are to be directed in the first instance.6
However, even this kind of provision would not offer the prospect
of satisfactory redress where the fault of which complaint is made
may possibly be attributable to the administration of the courts or
some other public office.
5 The Report does refer (para. 3.20) to the provision in the Bill giving the Legal
Services Ombudsman the right to recommend to the Law Society that a
payment should be made out of its Compensation Fund to a person making a
complaint against a solicitor. It suggests that the legal services ombudsman
should be entitled to order such payment to be made both by the Law Society
and the Bar Council. But, somewhat carelessly, this suggestion is not carried
through into the formal recommendations in the Report.
6 Legal Services Act, 2007.

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