Should self-regulation for solicitors be scrapped?
NO:
Regardless of who regulated the solicitors' profession they would, in the interests of justice, be unable to comment on any individual case under investigation or before the courts.
I agree with Declan Purcell and others that "self-regulation" is not a good thing, whether it is the legal profession or any other. But the term "self-regulation", as a description of the system of regulation of solicitors in this jurisdiction, is completely misleading. It is a misnomer and the sooner everyone stops using the term the better.
Let's look at how things actually operate in the regulation of the legal profession, and the role of the Law Society in that process. Solicitors are ultimately regulated by the President of the High Court on behalf of the State. He appoints and oversees the work of the independent Solicitors' Disciplinary Tribunal. One-third of the tribunal members are non-lawyers, appointed by the Minister for Justice, Equality and Law Reform. It is independent of the Law Society. Consumers who believe their solicitors may be guilty of misconduct can bring their complaint, if they so wish, directly to this tribunal.
Alternatively, they can go to the Law Society to avail of its powers to intervene with the solicitor (to get delayed work completed, say) and resolve the matter to the consumer's satisfaction if possible.
The Law Society decides whether the complaint should be sent to the Solicitors' Disciplinary Tribunal through the society's complaints and client relations committee. The tribunal will soon have a non-lawyer majority, with the enactment of the Civil Law (Miscellaneous Provisions) Bill, 2006.
If a consumer is unhappy with the Law Society's handling of a complaint, he or she can refer the matter to the Independent Adjudicator, another non-lawyer with extensive powers to overturn the society's decision. The Independent Adjudicator is shortly to be replaced by a Legal Services Ombudsman with even greater powers.
The Law Society maintains a compensation fund which currently holds €33 million in contributions by solicitors. Subject to the provisions of the Solicitors Acts, any client of a solicitor who suffers loss through the dishonesty of their solicitor arising from that solicitor's practice will receive a grant from the fund. The society also enforces a regime whereby every client is covered against negligence by their solicitor up to a minimum of €2.5 million for each and every claim.
All of this exists under the close scrutiny of the Minister for Justice who frequently must approve Law Society regulations before they can take effect. The entire system is designed and operates under statutes passed by the Oireachtas and must, by law, operate in the public interest.
The Law Society plays an important part, with the others mentioned, in all of this. But it is misleading to call it "self-regulation". For years, we in the society have used the more accurate term "co-regulation".
In relation to education and admission to the profession, in the last year almost 2,000 students attended the professional practice courses in the Law Society. This was a 100 per cent increase in numbers in five years and has been achieved without any reduction in the quality of professional legal training which is at least on a par with the best in the world. This extraordinary growth in numbers gives the lie to any suggestion that the solicitors' profession in Ireland is a "closed shop". In fact it is wide open.
The Competition Authority last year recommended to Government that the system of regulation of solicitors be radically changed, relying on sheer assertion rather than evidence that their new recommended system would be superior. This was despite the considered views of Indecon, the Competition Authority's own economic consultants, who had previously reported to the authority: "We have examined the complaints, discipline and enforcement procedures in detail and found no evidence that they are in any way used to institute any anti-competitive practices or damage consumer interests".
The Law Society is a human institution like any other. We don't get everything right all of the time. Where we get it wrong, however, other independent and more powerful bodies can redress it.
The right to an independent legal profession, crucial in a democracy, is a right of the citizen, not of the profession. On one thing there is no conflict whatsoever between the interests of the public and of the profession. Both have an interest in solicitors maintaining the highest standards of professional skill, service and conduct.
Ken Murphy is director general of the Law Society of Ireland
