- Using language reminiscent of a contrite bishop, Bernard Allen TD, Chairman of the Public Accounts Committee, described the progress of reform in the legal profession as ‘seriously inadequate’. It might have been more honest to state that the absence of reform is a truly searing indictment of the Department of Justice, Equality & Law Reform, the Law Society and the Bar Council.
A robust and comprehensive case for root and branch reform was made in November 2005 by the Legal Costs Working Group and in December 2006 by the Competition Authority. These reflect prior recommendation made by the Restrictive Practices Commission, the Fair Trade Commission and the OECD between 1982 and 2001. The Competition Authority made 29 recommendations designed to overcome unnecessary and disproportionate restrictions on competition, of which 15 were to have been implemented directly by the Department of Justice Equality & Law Reform by June 2008. Only one of the 29 recommendations has been introduced. It is no longer necessary to pass an exam in the Irish language.
The average gross income of an Irish lawyer in 2002, before the emergence of the property bubble, was €164,000. The total number of practicing lawyers in Ireland then, relative to our population size, was lower than in other common-law countries. Research also indicates that there is a very large variation in fees charged and that legal fees had risen faster than incomes in other sectors.
The collapse of the construction sector has diminished legal earnings potential from property transactions and places the State as a more strategically important source of their fee income. There is still an appalling lack of transparency and predictability with respect to legal costs.
The 2008 Annual Report of Dublin Docklands Development Authority, for example, indicates that this disgraced entity spent over €5.4 million on legal costs that year. But there is not a scintilla of explanation as to whom this money was paid, or what value, if any, was achieved by taxpayers'.
While NAMA is intended to bring about a rehabilitated banking sector is it also to become an boundless, easily exploited, gold mine for lawyers, as various tribunals have been for fifteen years, because there was no competent adult supervision to control costs?
The Comptroller & Auditor General indicated in Special Report 63, published in December 2008, indicated that the total cost of the Mahon, Morris and Moriarty Tribunals were difficult to precisely forecast but this Report states:
Administration costs will amount to between €50 million and €52 million
Tribunal legal teams will cost between €84 million and €87 million
Litigation will cost approximately €4 million
Third party costs could range from €157 million to €182 million based on the pattern of awards observed in the Morris and Mahon Tribunals
The overall likely cost to the State of these three tribunals based on the pattern of costs experienced prior to December 2008 is estimated to be in the range of €336 million to €366 million
The Solicitors Judicial Tribunal reported a 28% increase in the number of applications reporting professional misconduct in 2008 when the recommended reforms of the Competition Authority were to have been an accomplished fact. They cautioned how this spiralling trend in the number and nature of complaints is eroding trust, integrity and public confidence in how the profession is regulated. There is no pattern to the gender, geographic location, age or mental stability of those solicitors who are the subject of complaint. Their victims' can be alive or deceased. Subsequent media reports show no abatement in the trend of professional delinquency among solicitors. Therefore, when one looks into the wing mirror of one's car, it is important to realise that a rogue solicitor maybe closer than you realise.
A case has been made that the Church can be successfully and transparently led by ‘wounded healers’ who could recover trust and esteem. Do the legal professional bodies also expect society to tolerate a possé of ‘wounded advocates’ whose charges are so excessive that they are regarded as the highest in the world? Is the leadership of these bodies so smug, weak and taciturn that they are content and sufficiently complacent to preside over a profession diminished by an epidemic of professional misconduct and unconcerned that their members are anything but consumer focused and competitive, in stark contrast to their counterparts in other common-law jurisdictions?
Perhaps the Taoiseach should have also changed the title of the department that deals with law and order issues in the State to better reflect its actual scope. Should it be known as the Department of Policing and Prisons? It no longer has the equality mandate. There is no justice if consumers cannot access legal services on a transparent, genuinely competitive basis. A new title would reflect its flaccid, impotent approach to the delivery and embedding of reform in the legal profession and a failure to empower consumers with core information they need to deal with lawyers and make informed decisions.
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