Competition authority report on solicitors and barristers

• Author: Charles Lysaght
• Position: Barrister-at-law, formerly Lecturer in Competition Law, London University and formerly Professor of Company Law, King's Inns
• Pages: 159-192

2008] Competition Authority Report 159

COMPETITION AUTHORITY REPORT ON

SOLICITORS AND BARRISTERS

CHARLES LYSAGHT*

INTRODUCTION

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

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* 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

160

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

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4 Solicitors (Amendment) Act, 2002; Solicitors (Advertising) Regulations

2002.

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.

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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.