Should self-regulation for solicitors be scrapped?
YES:
Other jurisdictions with similar legal systems - England and Wales, Australia and New Zealand - have all moved away from self-regulation to independent oversight. The trend in Ireland too is towards independent statutory regulation. The medical and pharmacy professions have independent statutory regulators, courtesy of government legislation. So does dentistry. And banking. And private health insurance. The list goes on.
So is the legal profession somehow unique or special, or above all others in insisting on running its own affairs? No - the old paternalistic model of trusting a profession to protect consumers carries too much potential for conflicts of interest. It is time this was recognised, and the power to regulate solicitors' affairs was taken away from them.
The proper role of the Law Society is as a representative body for solicitors, to act in the interest of solicitors. The role of an independent regulator, on the other hand, is to act in the interests of consumers and in the public interest. The representative and regulatory roles regularly collide and, where they do, the consumer is the loser. There is increasing evidence that many solicitors think so too. As one prominent solicitor said recently, "I don't think the Law Society can continue going forward riding both horses".
Let's look at a few examples of this conflict in practice.
1. The Law Society spends huge sums on advertising campaigns to encourage you to engage a solicitor but very little on promoting consumer awareness of your rights when dealing with a solicitor. 2. The Law Society has lobbied to protect its monopoly on conveyancing, despite the clear consumer benefits of opening up this market. 3. The Law Society has also maintained its monopoly on solicitors' training by refusing to publish guidelines by which other schools (eg universities) might provide this. 4. The Law Society has failed to act effectively against known consistent abuses by solicitors, waiting instead until a scandal unfolds - and there have been plenty of them in recent years.
You simply cannot combine regulatory and representative functions in one organisation, in this case the Law Society. It just doesn't work. It doesn't inspire consumer or public confidence.
To resolve these conflicts, we need to establish a fully independent legal services commission, backed by legislation, with these powers: to determine how, and from whom, solicitors should get their training; to lay down proper ethical and conduct standards; to inspect solicitors' activities; and to apply meaningful and proportionate punishment for any wrongdoing.
Such an independent commission would promote the consumer's interest and provide consumer information, much as the Financial Regulator does.
An independent commission might well have representatives on its board of those it is supposed to be regulating, but the important point is that they should not control the system. The reforms planned by the Government in relation to legal complaints and legal costs are very welcome, but they don't go far enough. Independent regulation is needed to restore public confidence.
Solicitors in England and Wales have now agreed to split the roles of regulation and representation, and to the creation of an independent regulator. Their counterparts here should do the same; if they don't, the Government should decide this for them.
As for public accountability, let us not be diverted by claims that solicitors are ultimately regulated by the High Court. While the President of the High Court does have a role in relation to the ultimate disciplining of individual solicitors, the fact is that solicitors hold most of the strings when it comes to regulating the affairs of the profession.
The foundations for self-regulation in the solicitors' profession have been crumbling for years, as problem after problem surfaces, and the litany of complaints becomes ever longer and louder. We should not hold on any longer to a discredited self-regulatory system that has lost the public's confidence. Of all the professions, one would expect solicitors, who claim such an integral role in vindicating citizens' rights, to accept they should be regulated in a manner that inspires public confidence - in other words independently of themselves.
Justice must not only be done, it must be seen to be done.
Declan Purcell is a member of the Competition Authority and director of its advocacy division
Cecilia Keaveney was Fianna Fáil TD for Donegal North West from 1996 to 2007 and is now a member of the Seanad.
