Reform of the Legal Services Sector

johnnyskeleton · 30-08-2011 1:25pm #1

The debate seems to be heating up about the proposed reforms to the legal professions, which have to be implemented by the end of Q3 2011 i.e. before the end of September.

The most recent commentary has been in the Irish Times:

http://www.irishtimes.com/newspaper/opinion/2011/0822/1224302805757.html

http://www.irishtimes.com/newspaper/letters/2011/0824/1224302896250.html

http://www.irishtimes.com/newspaper/opinion/2011/0826/1224302998210.html

http://www.irishtimes.com/newspaper/letters/2011/0830/1224303187798.html

The two sides seem to be constantly throwing mud at each other. Michael Casey has a clearly skewed and incorrect view of a "typical case", Paul O'Higgins has an overly defensive view of the matter without proposing any reforms that he would like to see implemented and now Anthony Lester QC appears to be entirely unaware of the significant reforms that have taken place already and appears to champion the UK Chambers system as somehow inherently fairer than the Irish system.

What is overlooked is perhaps the most important part - what reforms are actually likely to happen?

It seems to me that although there has been a lot of talk about dramatic changes, the most likely changes are:
1) permit barristers to operate chambers if they wish;
2) a single independent regulatory body to cover both barristers and solicitors; and
3) solicitors will be permitted to apply to become senior counsel and will be admitted into the barrister's tea rooms.

On the chambers issue, I wonder how they will bring this in. There is no law that precludes barristers from setting up chambers now. The only thing stopping them seems to be the rules of the Law Library. In fact, it seems to me that they could do so right now and continue to act in the Courts and there is nothing to stop this from happening, other than a sense perhaps of loyalty to the Law Library or perhaps they are waiting to see who will move first. So a statute change in this area will at best amount to a catalyst to what they can already do if they wish.

On the single regulatory body, I don't think anyone, whether lawyer or layperson could argue with such an independent ombudsman type body being put in place. Certainly, if the government are going to pay for such a body, it relieves the Law Society and the Bar Council of a significant regulatory burden which they do not enjoy exercising and which leads only to more criticism of them. The Law Society in particular must spend a significant amount of money operating their disciplinary proceedures given that they will often have 10 or more cases per week before the High Court, all of which cost money. That's in addition to the costs of their own disciplinary body.

So, as long as it is not imposed by way of a levy on lawyers, this can only be a good thing.

Finally, as regards solicitors becoming Senior Counsel and/or using the barristers tea rooms (which are apparently perceived as privileges to barristers), other than the fact that these reforms seem to confuse the role of SCs in Court with the status of the SC title, they are nothing more than a cosmetic change and so therefore won't really make too much of a difference.

Less likely (IMO) but possible reforms also include:
1) liberalisation of legal professional qualifications;
2) partnerships between solicitors and barristers/accountants/other professionals;
3) limited liability companies for solicitors;
4) new profession of conveyancer (I'm sure it will be really popular these days);
5) complete fusion of the two branches of the legal profession;
6) abolition of rule that senior counsel must not appear without junior counsel;
7) a rule that solicitors can lead junior counsel in cases;
8) abolition of wigs, gowns and tabs;
9) mandatory chambers system for barristers (by, for example, dismantling the law library).

Etc.

What would other people's views on this be? I suppose in a sense it is all just speculation as the government have been very silent on this issue and the Minister for Justice is widely rumoured to have very strong (negative) views about barristers.

My view is that these "reforms" are aimed not so much towards creating greater competition and lower legal fees for the consumer, but rather to give the legal profession a bloody nose, as though seeing lawyers being paid less is better than actually getting better value for money.

supermonkey · 30-08-2011 2:32pm

Get rid of the Junior / Senior division.
Make solicitors liable for choosing an incompetent barrister.
Change the way in which we oversee client accounts.
Make barristers liable for excessive length of cases that they run.
Allow barristers to be sued for malpractice.

The state should reduce all fees paid.
Someone'll take them and if they don't get 'the best' so what?

Also the best thing we could is a general codification of the law so a foreign lawyer could read a pamphlet and have a general idea of the Irish law on multi phase contracts and a 180 page book could express all Irish IP law (for example).

blueythebear · 30-08-2011 3:02pm

supermonkey wrote: »

Get rid of the Junior / Senior division.

Aside from the fact that this is just not going to happen, there's an argument that this would "level the playing field" in terms of fees charged by barristers. However, I can't see any SC agreeing to this as the whole point of the many years of hard work as a JC is to reach SC and rake in the cash!

supermonkey wrote: »

Make solicitors liable for choosing an incompetent barrister.

That's ridiculous. How does one define an "incompetent barrister"? Solicitors already pay a penalty for poor performance by counsel by losing the case and thereby failing to get costs orders.

supermonkey wrote: »

Change the way in which we oversee client accounts.

What kind of a change in particular are you suggesting?

supermonkey wrote: »

Make barristers liable for excessive length of cases that they run.
Allow barristers to be sued for malpractice.

I always agreed with barristers being immune from suit as it allows them operate freely. If a barrister is worried about being sued for negligence, then this is going to temper his/her advice. The barrister would therefore insist on a very conservative approach, so for example, they always recommend that the client pleads guilty in a criminal case rather than take a risk on a not guilty verdict.

supermonkey wrote: »

The state should reduce all fees paid.
Someone'll take them and if they don't get 'the best' so what?

I'm presuming you're referring to legal aid clients. Criminal legal aid has been cut to such an extent that there are complaints and talks of establishing a union for criminal defence solicitors. In my opinion, criminal aid shouldn't be cut any further. In fact, the prosecuting solicitors/barristers now get more in fees than defending solicitors, so this is already happening, that the more experienced lawyers will veer toward prosecution work, therefore it's less likely that the accused will get the "best".

Family legal aid is in a similar situation. Very often, it's not worth a solicitor's time to do any legal aid work unless they have a very large volume of it so that they are dealing with several clients in a court on any given morning.

supermonkey wrote: »

Also the best thing we could is a general codification of the law so a foreign lawyer could read a pamphlet and have a general idea of the Irish law on multi phase contracts and a 180 page book could express all Irish IP law (for example).

I agree that in certain areas, codification would be welcome, for example, the companies acts (which I think is being done this year anyway). However, your suggestion is extremely simplistic and I have no idea how this would help to streamline the legal system in Ireland. What have foreign lawyers got to do with it?

blueythebear · 30-08-2011 3:34pm

Agree with a single regulatory body. There is too much suspicion with the public in that the LAw Society and Bar Council are self regulating. There is very much a feeling out there that complaints to the LAw Society are pointless as the Law Society will look after their own.

If they want to lower legal fees, then operating costs must be reduced and that's done by tackling the PII issue. I think a single regulatory body would go towards lowering PII in the future if robust auditting procedures are in place but this won't kick in for a while and I think that insurers would have to be "encouraged" to pass on these kinds of savings.

Partnerships between solicitors and other professionals, I think would only formalise arrangements that are already there in practise. Very often, a small - medium firm will use the same barristers, accountants, engineers etc all the time but I do think if it is formalised, it will result in lower engineer/doctor/forensic accountant/etc fees. I think one area that greatly increases legal fees are doctors. Consultant reports and witness expenses can involve unbelievable charges but very often, a plaintiff needs a report from a very specific type of consultant of which there is only a handful in the country so they can charge whatever they wish. Perhaps standardising report and witness fees would be an idea.

Limited liability companies for solicitors - I'm not sure this is such a good idea as I think the partnership format should encourage solicitors to carry on business to the highest standards. With limited liability, the consequences of failing to meet these standards are not as severe.

-new profession of conveyancer - With solicitors offering conveyancing carried out at around €850 plus outlay and less, I don't see this helping much to lower costs. It may have an effect on PII though seeing as carrying out Conveyancing work ramps up the cost of PII for hte average firm.

- complete fusion of the two branches of the legal profession- with thousands of solicitors already out of work, the immediate introduction of hundreds/thousands of barristers to this is not sustainable. Plus, barristers could not do solicitors work and vice versa as they do not have the required training. Not that they could not learn but then do they lose immunity from being sued in negligence? I can't see that as a good thing.

- abolition of rule that senior counsel must not appear without junior counsel; - This would instantly decrease legal fees but this would mean SC's are going to have to attend the more mundane motions for discovery etc. THey won't want to do that and JC's would object to SC's taking their work.

- a rule that solicitors can lead junior counsel in cases - Don't see any issue with this.

- abolition of wigs, gowns and tabs; - Don't see this assisting with decreasing legal fees to any great degree. There's no need to wear the wig anymore and the costs aren't that great for gowns AFAIK.

-mandatory chambers system for barristers (by, for example, dismantling the law library). - I wouldn't particularly have any opinion on this.

supermonkey · 30-08-2011 4:47pm

I mean reduce all fees. JRs, prosecutions the lot.

impr0v · 30-08-2011 9:15pm

supermonkey wrote: »

The state should reduce all fees paid.
Someone'll take them and if they don't get 'the best' so what?

supermonkey wrote: »

I mean reduce all fees. JRs, prosecutions the lot.

Then the state loses more of the actions that it is prosecuting or defending and it ends up paying more in the long term in costs orders and damages.

This debate hasn't really popped up on the radar on the solicitor's side of the fence. I mentioned it at work a few weeks ago and nobody seemed to have heard that reform is supposed to be coming in a matter of weeks. This is potentially reflected by the fact that the Law Society don't yet seem to have joined the fray. However, when I talk to my barrister friends, they mention it all the time and say they are expecting the doomsday scenario of a fused profession. They expect solicitors to do better in those circumstances because of their relationships with clients. I suspect a lot of the fear is driven by the expectation that Minister Shatter will focus most of the reforms upon the bar rather than upon his brethren.

I don't see that any of the feasible changes will make any huge difference. I am against the idea of chambers because I believe in the usual argument that is offered against it - that it will distort a litigant's ability to arm him or herself equally well as his or her opponent. The commercial bar, for example, is relatively small at the upper end of the quality scale. In a multi-party action it can already be difficult to source an experienced commercial senior at times (depending upon when one is instructed, the few commercial seniors with availability on the necessary dates may already have been instructed by other parties). Presuming that clusters of those marquee names end up sharing chambers, that will thin the available field even more.

There may be something to be said for combining the professions over a long period of time. The mechanics of a solicitor offering a one stop shop are already there, but why would a solicitor take on an experienced advocate when (i) there is no benefit in terms of taxation (though that may be at the Taxing Master's discretion) and (ii) it would mean one less layer of PI protection. If it were to come to pass, it would have to gradually occur over a period of at five to ten years.

Thanks for posting the articles, Johnny. I agree with the comment that "Tim O'Connor" made on Michael Casey's piece. There's a kernel of truth in almost everything he highlights, but the alarmist and almost comical exaggeration devalues the article as a whole.

Flincher · 31-08-2011 2:22am

Obviously the scenario in the first article is completely unrealistic, but there is an element of truth in the assertion that cases take too long to be heard. I wonder could the Master play more of a role in this. I've limited enough experience to be honest (primarily personal injuries), but I notice that we can often be waiting quite a while for a Defence to be filed. The standard Order from the Master seems to be to strike out the motion, give costs, and 21 days to file a Defence. Given that the D will generally be served with the motion papers at least a month out, I always get the feeling that if the Master spent a Monday morning giving judgment in default, it might speed up a lot of cases, especially in PI when the Defence is quite often just a blanket denial, and the delay can be caused by Solicitors or Counsel not being particularly rushed.

No.2 · 31-08-2011 6:28am

johnnyskeleton wrote: »

What would other people's views on this be? I suppose in a sense it is all just speculation as the government have been very silent on this issue and the Minister for Justice is widely rumoured to have very strong (negative) views about barristers.

My view is that these "reforms" are aimed not so much towards creating greater competition and lower legal fees for the consumer, but rather to give the legal profession a bloody nose, as though seeing lawyers being paid less is better than actually getting better value for money.

The Government's commitment is to (publish a bill to) bring into force unimplemented recommendations in the Competition Authority's 2006 Report, the Legal Costs Group's 2005 Report and establish an independent regulator for the profession, i.e. the Ireland/IMF MoU requires by the end of 'Q3':

"establishing an independent regulator for the profession and implementing the recommendations of the Legal Costs Working Group and outstanding competition Authority recommendations to reduce legal costs."

The Competition Authority's website lists the following as unimplemented recommendations of its report so we can probably expect at least these:

Establish an independent Legal Services Commission to oversee the regulation of legal services.
An independent body should set standards for solicitor training and approve institutions that wish to provide such training.
An independent body should set standards for barrister training and approve institutions that wish to provide such training.
Allow qualified persons, other than solicitors, to provide conveyancing services.
Allow unlimited direct access to barristers for legal advice.
Barristers should be allowed to form partnerships.
Remove the unnecessary restriction on switching solicitors. (called a solicitor's “lien” on the file)
Legal costs should be primarily assessed on the basis of the work
undertaken by lawyers and not primarily on the basis of the size of the award.
Examine the possibility of introducing competitive tendering for the provision of legal services to the State.

What is planned beyond that is entirely up to the Government, although EU/IMF officials will have a strong part to play in vetting any proposals. Ultimately there will always be a need for those trained in knowledge of the law, and advising and representing those who do not, and those who are good will always do well; while an efficient system benefits everyone so lawyers should resist and urge to trying to cling on to restrictive practices because they currently suit and engage in an effort to bring in genuinely beneficial reform (e.g. all recognise there are a lot of inefficiencies in the system for adminstering justice as a whole, very many nothing to do with the structure of professions). That said, there doesn't appear to have been much of a genuine study of how the justice system and its professionals work in Ireland, as against a number of comparable jurisdictions (e.g. England and Wales, Australia, Singapore, a US jurisdiction) to see what can be taken from other places which to bring us closer to delivering efficient and effective access to justice. Were something like that to be done and it to show that, for example, a fused profession gives a client as much representation, but results in lower costs; recommendations should be extrapolated from the conclusions and implemented accordingly. Unfortunately that doesn't seem to have been done yet and we're left with a lot of hypotheticals and theoretical argument from each side. The Government should ensure that reforms are genuine and well thought as opposed to some half-baked ideas that will not just affect lawyers but the justice system for everyone but given the potential for backroom deals and prejudices who knows ...

mikemac · 31-08-2011 7:13am

Office of the Taxing Master

How about giving this a twenty first century name that might be obvious and relevant to people.

Antiquated name at the moment and confusing for people who don't know where to turn

supermonkey · 31-08-2011 9:27am

impr0v wrote: »

Then the state loses more of the actions that it is prosecuting or defending and it ends up paying more in the long term in costs orders and damages.

Why?

shaneybaby · 31-08-2011 10:15am

"Vincent Brown" shon TV3 last night had a good discussion on Judges pay and reform of the legal sector in general. Iva Yates presented with a range of legally trained panellists

http://www.tv3.ie/shows.php?request=tonightwithvincentbrowne&tv3_preview=&video=39556

johnnyskeleton · 31-08-2011 10:38am

blueythebear wrote: »

If they want to lower legal fees, then operating costs must be reduced and that's done by tackling the PII issue. I think a single regulatory body would go towards lowering PII in the future if robust auditting procedures are in place but this won't kick in for a while and I think that insurers would have to be "encouraged" to pass on these kinds of savings.

Exactly. In fact, if they were offering to throw lawyers a bone and give them something they want (e.g. a way to reduce PI insurance or scrapping the 2-3k practising cert fee for solicitors and a binding dispute resolution or perhaps a rule that they can now sue for their fees for barristers) it would probably get a lot of them on board for reform. However, the public sentiment and the way in which reform is being proposed seems far too much like a witch hunt, as though the purpose of the exercise is to punish lawyers rather than actually create cheaper legal services.

blueythebear wrote: »

Partnerships between solicitors and other professionals, I think would only formalise arrangements that are already there in practise. Very often, a small - medium firm will use the same barristers, accountants, engineers etc all the time but I do think if it is formalised, it will result in lower engineer/doctor/forensic accountant/etc fees.

Another way to lower the fees would be to have set and widely published professional fee rates for attending court in various disputes. Exceptional fees can be agreed, but a client will know what fee will or will not survive party/party taxation and if they agree to a higher fee that isn't justified, they will have to pay for it themselves.

But mixed practicies would probably not, in my view, be permitted to allow their engineers/accountants/doctors etc give professional evidence as experts because their impartiality would potentially be impaired. That is one of the points made about the impartiality of an independent bar, although with increased competition it is only a matter of time before this is fully eroded.

blueythebear wrote: »

Limited liability companies for solicitors - I'm not sure this is such a good idea as I think the partnership format should encourage solicitors to carry on business to the highest standards. With limited liability, the consequences of failing to meet these standards are not as severe.

I suppose forgetting any possibility of fly by night operations and those collapsing under a load of professional negligence claims, even a normal solicitor who closes up shop is exposed to massive costs -they have to have run off insurance cover and they might have to break a lease and other commitments that could cost them significantly. Arguably, one reason why a lot of the unemployed solicitors at present remain unemployed is because it would be too expensive and too much of a risk to set up a practice to try to get some work in. IMO, limited liability company/partnerships could assist in this, and could be limited to litigation only, or disputes not exceeding €X amount, after which you have to go to a full solicitor's firm.

blueythebear wrote: »

-new profession of conveyancer - With solicitors offering conveyancing carried out at around €850 plus outlay and less, I don't see this helping much to lower costs. It may have an effect on PII though seeing as carrying out Conveyancing work ramps up the cost of PII for hte average firm.

I suspect this is a non runner. It was a bit of a fiasco in the UK. Who will train them? Where will they get their experience etc to start off? Mostly, there is so little conveyancing going on now and into the immediate future that I can't see any interest in this profession at all.

blueythebear wrote: »

- complete fusion of the two branches of the legal profession- with thousands of solicitors already out of work, the immediate introduction of hundreds/thousands of barristers to this is not sustainable. Plus, barristers could not do solicitors work and vice versa as they do not have the required training. Not that they could not learn but then do they lose immunity from being sued in negligence? I can't see that as a good thing.

I agree, although there might be some notional fusion of the profession but with no real changes. So, for example, if all solicitors and barristers were now lawyers, one could be a solicitor-type lawyer and the other a barrister-type lawyer with the same business models and specialisations.

blueythebear wrote: »

- abolition of rule that senior counsel must not appear without junior counsel; - This would instantly decrease legal fees but this would mean SC's are going to have to attend the more mundane motions for discovery etc. THey won't want to do that and JC's would object to SC's taking their work.

This to my mind is the most important and difficult of the proposed reforms. On its face, it is perhaps the most restrictive practice of all. From the outside looking in, people who have never been involved in litigation before balk at the idea that there is a rule that if they want to get barrister X to represent them, they must also retain and pay barrister Y a fee for no discernable reason.

The reality is more organic than that, as most clients actually involved in litigation will realise that the junior has done much of the preparatory work including motions and understand the concept that they assist the senior when they are on their feet and can take over the senior is busy or has another unforseen appointment. But the perception is that the case is somehow magically ready for trial and that a senior is picked but a junior barrister appears out of nowhere, does no work, and has to be paid a fee, usually in the region of 2/3rds of what the senior charges.

It seems to me that a complete abolition of the system of both senior and junior counsel appearing for a typical High Court case would be a disaster for both senior and junior counsel, as seniors would as you point out have to do more of the preparatory work while juniors would be considered second rate in comparison. The logical outcome of this would probably be that all junior counsel take silk as soon as they can, and would probably become senior after about 5 years, thus rendering the title SC somewhat meaningless.

On the other hand, what is proposed is not abolition of the structure of junior and senior counsel, but rather the mandatory rule that there must be a junior with every senior. I suppose this rule only becomes an issue where, for example, the junior already involved in a case can't attend the hearing so charges for the preparatory work only. The client is told that a new junior has to be drafted in at short notice to fill in, but from the client's point of view, what extra benefit does this new lawyer give to him?

I think ultimately because this is perceived as a restrictive practice, the rule itself should be abolished. However, the practise of having both junior and senior counsel would continue and where a client can appreciate the work done by junior counsel they will be retained and where it seems like a waste they do not have to be engaged. Apart from anything else, the established model is that a solicitors first point of contact is usually with junior counsel, who will then contact senior counsel and unless this changes, most cases would still have two counsel where senior counsel is warranted.

impr0v wrote: »

I don't see that any of the feasible changes will make any huge difference. I am against the idea of chambers because I believe in the usual argument that is offered against it - that it will distort a litigant's ability to arm him or herself equally well as his or her opponent. The commercial bar, for example, is relatively small at the upper end of the quality scale. In a multi-party action it can already be difficult to source an experienced commercial senior at times (depending upon when one is instructed, the few commercial seniors with availability on the necessary dates may already have been instructed by other parties). Presuming that clusters of those marquee names end up sharing chambers, that will thin the available field even more.

I suppose one of the big issues is that the concept of chambers is not entirely clear. On the one hand, it could merely be the practice of sharing office space. On the other, it could mean advertising a "brand" of barristers who share work amongst themselves. In all cases, there would presumably be a rule that members of chambers can be on opposite sides of a dispute if needs be, but the difficulty arises in extreme scenarios where a few barristers form the only chambers in a certain area and decide to take work only from select clients.

The other thing is that the Law Library is at present a form of big chambers, but there is nothing to stop barristers leaving the Law Library and setting up their own version, other than any perceived reputaitonal issues.

impr0v wrote: »

There may be something to be said for combining the professions over a long period of time. The mechanics of a solicitor offering a one stop shop are already there, but why would a solicitor take on an experienced advocate when (i) there is no benefit in terms of taxation (though that may be at the Taxing Master's discretion) and (ii) it would mean one less layer of PI protection. If it were to come to pass, it would have to gradually occur over a period of at five to ten years.

I think that even if there were a merger of the professions, there would still exist within that profession, an independent referral bar. There is clearly a market for expert advocacy services, and the current model suits that quite well. As you point out, the government can at best simply create the possibility of a merged profession, but it will require more solicitors firms to take on advocacy and more barristers to take on more direct access stuff before a merger of the professions could even be considered.

Flincher wrote: »

Obviously the scenario in the first article is completely unrealistic, but there is an element of truth in the assertion that cases take too long to be heard. I wonder could the Master play more of a role in this. I've limited enough experience to be honest (primarily personal injuries), but I notice that we can often be waiting quite a while for a Defence to be filed. The standard Order from the Master seems to be to strike out the motion, give costs, and 21 days to file a Defence. Given that the D will generally be served with the motion papers at least a month out, I always get the feeling that if the Master spent a Monday morning giving judgment in default, it might speed up a lot of cases, especially in PI when the Defence is quite often just a blanket denial, and the delay can be caused by Solicitors or Counsel not being particularly rushed.

A comprehensive case management system could certainly be of use. After all, the areas where cases are progressed relatively quickly i.e. commercial, administrative law etc are case managed. This could perhaps be the incentive used by the Judiciary in bargaining over their salaries i.e. increased efficiency for the same level of pay etc.

johnnyskeleton · 31-08-2011 10:46am

http://www.tv3.ie/shows.php?request=tonightwithvincentbrowne

Ivan Yates (standing in for Vincent Brown) takes on 4 legal insiders (solicitor, barrister, legal correspondent and academic/barrister).

Essentially covers three points:
1) judges referendum - no one really disputes need for it or that it will pass, but rather the wording. My view is that the reductions could be made right now by legislation without a referendum and it is just a cynical political ploy because the children's rights and abolition of the seanad referendan (which were promised us) would be too controversial.

2) competition in the legal sector, in particular direct access to barristers and delays in the system - Not really all that exciting as a debate, but hits the main points;

3) wearing of wigs and "all rise" - not really discussed in great detail, but it seems to me that you can't have a judge wander into court in a tracksuit and have a cozy fireside chat with the people he is going to send to jail, so some level of formality is obviously needed.

Overall, what was interesting was the sheer misunderstanding of Ivan Yates questions and those that were twitted into him. The fact that the panel were all agreed on fairly common sense issues only lead to suspicion that they were in a cartel, to the point that Ivan said that he was surprised that Carol Coulter was standing up for the lawyers or some such.

Again, confirming my suspicions that the people pressing for reform don't know much about the legal professions, don't want to know about the legal professions, and will do anything if they think it will harm lawyers rather than doing something to actually reduce legal fees.

johnnyskeleton · 31-08-2011 10:57am

No.2 wrote: »

Establish an independent Legal Services Commission to oversee the regulation of legal services.

I don't see anything controversial about this, so long as lawyers don't have to pay a special tax to fund it. I wonder why it hasn't been implemented until now.

An independent body should set standards for solicitor training and approve institutions that wish to provide such training.

An independent body should set standards for barrister training and approve institutions that wish to provide such training.

I've no real strong views on this. I would imagine it would be very hard for a new body to compete with the Law Society/Kings Inns for prestiege value. On the other hand, if the same courses could be offered for cheaper, why not? Education is not a barrier to entry to the Barrister profession, but there are more people sitting the FE1 exams than there are places, so presumably this liberalisation would lead to more people qualifying as solicitors and flooding the market further.

Allow qualified persons, other than solicitors, to provide conveyancing services.

Again, I really can't see this working out in reality.

Allow unlimited direct access to barristers for legal advice.

Barristers should be allowed to form partnerships.

These two are issues for the bar council to implement. They are not statute law but rather rules imposed by members of the law library upon themselves. The Competition Authority could have sought to enforce this at any time in the last 5 years but have chosen not to do so. If they want to do this, they should do it now, but it is not really a matter for the upcoming legal services bill.

Also, allowing partnerships seems if anything to be anti-competitive.

Remove the unnecessary restriction on switching solicitors. (called a solicitor's “lien” on the file)

Agree insofar as a solicitor keeps a client's original documentation, but disagree where the solicitor has had work carried out e.g. opinions, advices, drafting etc. Until the solicitor is paid for this work, he should be entitled to keep it.

No.2 wrote: »

Legal costs should be primarily assessed on the basis of the work

undertaken by lawyers and not primarily on the basis of the size of the award.

That has been the case since 1995 so I'm at a loss as to what they mean to do here.

Examine the possibility of introducing competitive tendering for the provision of legal services to the State.

Again, the government does engage in some level of tendering, perhaps they could widen the net of who they use and thus decrease fees.

blueythebear · 31-08-2011 11:45am

Tendering for legal services is carried out but it should be used more widely by the Government. Provision of legal services would be a very difficult thing to tender for as unlike for example a building contract, you aren't dealing with definite costs such as the cost of cement etc.

There is definitely a perception that there are very few firms outside of the top 5 who succeed in these types of tender competitions and there are many reasons for this. The fact that the particular firm has carried out government work before would feature heavily in their favour and the criteria of the tender competitions themselves, such as minimum turnover in the millions all result in a scenario whereby the same firms get all the work.

Tendering out more smaller projects would help reduce legal costs on a twofold basis, i) it would introduce more income streams for other firms as well as ii) break the closed shop that exists for the very large firms in relation to Government work.

johnnyskeleton · 31-08-2011 1:11pm

blueythebear wrote: »

Tendering for legal services is carried out but it should be used more widely by the Government. Provision of legal services would be a very difficult thing to tender for as unlike for example a building contract, you aren't dealing with definite costs such as the cost of cement etc.

There is definitely a perception that there are very few firms outside of the top 5 who succeed in these types of tender competitions and there are many reasons for this. The fact that the particular firm has carried out government work before would feature heavily in their favour and the criteria of the tender competitions themselves, such as minimum turnover in the millions all result in a scenario whereby the same firms get all the work.

Tendering out more smaller projects would help reduce legal costs on a twofold basis, i) it would introduce more income streams for other firms as well as ii) break the closed shop that exists for the very large firms in relation to Government work.

+1

Also, the idea that the Chief State Solicitor's Office can deal with the most complex constitutional matters, but can't expand to carry out the due dilligence on NAMA, leaving the due dilligence to be carried out by the same firms that act for the banks, doesn't make any kind of sense.

nuac · 31-08-2011 1:33pm

i,nteresting discussion. Haven't time to consider it in detail at the moment, but I congratulate all who have made detailed posts. Have just looked thru Johnny Skeletons recent posts and generally agree with same

blueythebear · 31-08-2011 2:13pm

johnnyskeleton wrote: »

+1

Also, the idea that the Chief State Solicitor's Office can deal with the most complex constitutional matters, but can't expand to carry out the due dilligence on NAMA, leaving the due dilligence to be carried out by the same firms that act for the banks, doesn't make any kind of sense.

From what I have seen of CSSO, the difficult constitutional issues (and other complex legal issues) is dealt with by Counsel exclusively as they arise in the context of a hearing/trial. The solicitors there seem to be case managers only. This would be typical of the Civil Service anyway, if there is a difficult decision to be made, an outside expert is brought in so that if it goes wrong, you can blame the expert, in this case, juior or senior counsel, who can't be held legally liable anyway.

Bearing in mind that I am speculating big time, I believe that the NAMA work has been farmed out to big firms for this very reason. Fair enough, the CSSO may not have any experience of this type of work but nobody has any experience of NAMA or its' type before in this country anyway so why shouldn't the CSSO have carried out all the work on NAMA?

Slightly off topic, but i think it goes to show how these proposed changes to the legal sector will work out. This year, there was a successful action by developer Paddy McKillen against NAMA taking over some of his properties. This generated millions in costs against the State for his solicitors, who also happen to be on the panel for provision of legal advice to NAMA! I'm not suggesting that they was any impropriety but surely there is a conflict of interest there.

johnnyskeleton · 01-09-2011 12:45pm

http://www.irishtimes.com/newspaper/opinion/2011/0901/1224303291774.html

Des O'Malley, former FF TD and founder of the PDs, makes unsubstantiated attacks on the legal profession without any facts.

He blames the legal profession, and not the PD party / coalition with FF government, for:

A further cause for concern must be the eagerness with which the legal system seems to want to accommodate the mega-wealthy “non-resident” oligarchs who pay no tax here but avail to the full of the facilities which the State provides for its denizens.

Then, at the end of his opinion piece that is sadly lacking in specifics or verifiable facts, he states:

And for once could these matters be debated without resentment and without a desire for a rigid adherence to the status quo?

I agree with him that there should be a debate without resentment or other emotional responses and it should be based on the facts. The trouble is, people can easily dismiss anything said in favour of the legal profession as being based on resentment and anything said against it as being based on the facts. "Facts" it seems, are anything that portrays the legal profession in a negative light. Anything that is positive for the legal profession or at least neutral is mere spin or an attempt to prop up the status quo.

Robbo · 01-09-2011 3:07pm

So we have outdated Acts of the Oireachtas in relation to tax residency and this in turn is causing Denis O'Brien to rain down litigation from above like some scene from Independence Day? And this is somehow the fault of the legal profession rather than the Dail? Can you still take a day either side of your "resident" day on account of the relevant acts not taking into account any improvements in transport since the days of steamships from Liverpool?

If anything the Irish people are far too indulgent of tax exiles. Witness the bread and circuses approach of JP McManus and the reverential awe it inspires in the Limerick area.

At this stage going on about the wigs and gowns in these articles has to be something akin to Godwin's Law.

NoQuarter · 01-09-2011 3:20pm

Titles inherited from a monarchy of occupation and Gilbert Sullivan-style fancy dress may create an air of awe and mystery in less sophisticated witnesses and litigants but they hardly serve a valid purpose in this society.

And for once could these matters be debated without resentment and without a desire for a rigid adherence to the status quo?

Nice one Mr. O'Malley!

johnnyskeleton · 01-09-2011 4:04pm

NoQuarter wrote: »

Nice one Mr. O'Malley!

If we were to adopt a new court costume befitting the modern Irish State as envisioned by Dessie O'Malley and the other PDs we would have wigs made out of greasy brown envelopes and gowns hewn from the tattered remains of the health service.

But I digress...

dermot_sheehan · 01-09-2011 5:22pm

For the proposed reforms themselves, we really have to see what is in the works.

Some practices in litigation are completely indefensible and ought to be changed.

Change just for the sake of it though may not necessarily reduce costs or increase the value for money people get from legal services.

The fixation on the court costume is strange, wigs haven't been mandatory since 1995, M'Lud is gone since 2005-2006 or so, and there is a degree of formality required for court. The level of fascination with the court costume a commentator has seems to be inversely proportionate to their knowledge of the industry.

There are many things wrong with the legal system but blaming lawyers for tax exiles or the recession is ridiculous.

FreudianSlippers · 01-09-2011 6:10pm

Damn had a good post there and lost it and don't really have time to write out a whole new one... but anyway, here are two points that are really interesting me:

1) What about allowing barristers to take action to "chase up" fees? It would appear to be the only profession around where you can get a service without actually paying for it.

2) I don't see how forming chambers is going to have any impact on the profession in a positive way. Am I going to make money if I join a chamber? That is, will I be guaranteed to make x amount per year?
Or, is it just going to be another elitist level of the bar where you must pay large amounts and/or be related to the head of the chamber to get in and those that don't are left out in the cold at the law library?

The profession, as a young barrister, is unsustainable for me. I knew about not making any money devilling, but now it's looking like a few more years before making any actual money (and I'm not talking about even 60grand, I mean dole levels of money)... and as I near 30 it's just not going to work out for me when I can take a US bar or qualify in Canada and be guaranteed a cheque every month and make between $70k to $100k a year starting out.

What's the incentive to be a barrister in Ireland? Sure, it's a great job - once you can overlook the years of making no money and not being eligible for the dole, the fact that you can send out as many fee notes as you want... half seem to be just ignored and every year there are more expenses and membership fees.

I love the job and don't want to leave, but at the end of the day I can't do a few more years of all outgoing expenses and no incoming.

johnnyskeleton · 01-09-2011 9:03pm

FreudianSlippers wrote: »

1) What about allowing barristers to take action to "chase up" fees? It would appear to be the only profession around where you can get a service without actually paying for it.

Makes sense. Should be an element of tit-for-tat for any reform.

FreudianSlippers wrote: »

2) I don't see how forming chambers is going to have any impact on the profession in a positive way. Am I going to make money if I join a chamber? That is, will I be guaranteed to make x amount per year?
Or, is it just going to be another elitist level of the bar where you must pay large amounts and/or be related to the head of the chamber to get in and those that don't are left out in the cold at the law library?

It is going to be an additional administrative expense and, much like the U.K., it will make it harder for new entrants because if there are 5 barristers currently taking a devil each, if they have a chambers they might only take on 3 devils or 2. Or, if there is an expectation of being paid a minimum level like there is in the UK, or an expectation of being kept on, they might only take 1 if at all.

FreudianSlippers wrote: »

The profession, as a young barrister, is unsustainable for me. I knew about not making any money devilling, but now it's looking like a few more years before making any actual money (and I'm not talking about even 60grand, I mean dole levels of money)... and as I near 30 it's just not going to work out for me when I can take a US bar or qualify in Canada and be guaranteed a cheque every month and make between $70k to $100k a year starting out.

Sorry to hear that, but it has always been thus. Perhaps give it more than a devilling year (or is it two?), as the usual recommendation is for about 3-5 years to give it a good shot. You never know; sometimes when things seem bleak they turn around.

I suppose this ties into the debate at the level that people who want it give it a shot find the complete lack of earnings to be a barrier to trade. Perhaps you might expand on that or if there is any way that this system could be improved. Certainly if there was a chambers along UK lines it could reduce the numbers going into the profession, but once there people would be fairly well set and on a guaranteed minimum income.

Alternatively, a system for bursaries to young barristers or a rule that a master taking on a devil must pay them X or give them Y amount of work for themselves might be a bold move. Finally, there could always be some system to allocate low paid work to younger members e.g. a masters court motions pool, where people who are free to do masters court motions can let their senior colleagues and solicitors know that they are available.

FreudianSlippers wrote: »

What's the incentive to be a barrister in Ireland? Sure, it's a great job - once you can overlook the years of making no money and not being eligible for the dole, the fact that you can send out as many fee notes as you want... half seem to be just ignored and every year there are more expenses and membership fees.

What's the incentive to be a barrister or what's the incentive to be in Ireland? The commonly accepted wisdom is that you have to be a bit mad to stay in Ireland, so I suppose if you have a job abroad take it. But the incentive to be a barrister in Ireland, presumably over another job such as solicitor, accountant etc is that you are your own boss, you can do interesting important work in a public forum, its better than a real job, and although money can be thin on the ground, there is still a good living to be made there by all accounts and the traditional wisdom that 80% of barristers would leave after 5 years does not seem to be true. Plus, unless Mr. Shatter has his way, you get to wear a wig without people laughing at you (in theory).

FreudianSlippers wrote: »

I love the job and don't want to leave, but at the end of the day I can't do a few more years of all outgoing expenses and no incoming.

Part time work, slowly building up contacts and a gradual build up of fees sent eventually starts to come good. But, as with setting up any business, it takes time.

FreudianSlippers · 01-09-2011 9:25pm

Oh, I don't mean to sound like I want want want... and I was completely ready for 2 years devilling, but when it starts going beyond that and you're doing informal relations with people in third year with still no money and no prospect of money for 2-3 more years, you start to question how you can do it any more.

Perhaps the independent referral bar is broken and a more North American approach should be incorporated? I don't really know how to fix the system and it certainly works out ok for some... but in truth, I don't want to work a part time job at a restaurant when I can go make money doing the same job elsewhere.
I think that's what it has boiled down to for me recently. I love the job, but I love being able to support myself with my work and being able to live my life without working 80 hours a week, half as a barrister half as a barista

Maybe it's just me, but the system seems broken and I'm not really sure how to fix it.

bath handle · 02-09-2011 8:49am

Where did this rubbish about chambers and overheads start? Shaving overheads is already allowed. A group of barristers can get together to share expenses such as rent, secretarial etc. Bar Council approval is needed for groups of more than 3.

The law library iitself is the ultimate example of shared overheads.

What is not allowed is a barrister purporting to link to another. A group cannot set up a website with all their photos and issue headed paper with all their names on it. That rule prevents any self perpetuating group covering a section of the market.

johnnyskeleton · 02-09-2011 10:41am

FreudianSlippers wrote: »

Oh, I don't mean to sound like I want want want... and I was completely ready for 2 years devilling, but when it starts going beyond that and you're doing informal relations with people in third year with still no money and no prospect of money for 2-3 more years, you start to question how you can do it any more.

Not at all, no one is ever suggesting that barristerrin', particularly at the start, is not a very hard job with little to no money. I suppose the big problem is that you will get people who after 4-5 years are still not making any money and are very vocally bitter about it, and these can be a disincentive to others. After all, why spend another few years if it is just going to end in leaving the bar a few years down the line, or so the logic goes.

However, on the other hand, it really is too soon after 1 year to know whether it is going to come good or not. After a second year, you might get a bit more perspective, but I understand that the general wisdom is that the real make or break year is the third year at the bar.

Obviously circumstances change and someone who is prepared for 2/3 years abject poverty and part time work can change their mind for any number of reasons. But, being discouraged too early could well be a serious problem at present i.e. whereas ten years ago if it didn't work out there were plenty of other jobs in the public sector etc, now with recession that appearance of a safety net is gone.

But in any event it is a personal choice and I will say no more for fear that certain persons on this forum will accuse me of being biased because of, I dunno, my job selling time shares to devils or some such.

FreudianSlippers wrote: »

Perhaps the independent referral bar is broken and a more North American approach should be incorporated? I don't really know how to fix the system and it certainly works out ok for some... but in truth, I don't want to work a part time job at a restaurant when I can go make money doing the same job elsewhere.

Perhaps a system more like Australia is better i.e. you have to be a solicitor first for 3 years, during which you gain contacts and get a feel for advocacy etc and then move on into the referral bar. If the flaw with the current system is that new entrants to the barrister's trade earn nothing, have little chance of being briefed and see little prospects on the horizon, then it seems this is a main priority (or should be) in the reforms. Perhaps the government and large institutions (i.e. the main consumers of legal services) could proactively try to send briefs in smaller cases to barristers in their first few years. They could even save a few quid by doing so.

FreudianSlippers wrote: »

Maybe it's just me, but the system seems broken and I'm not really sure how to fix it.

In a sense, this is the problem. Many view the current setup as intrinsically wrong or broken, but no one seems to have any clear idea of what would make it better.

I suppose at the end of the day there is an element of the professional athlete to it, where a few top boys can command any fee and clients will not only pay these massive fees, but almost feel reassurance in the high cost of their "striker". Below them are a strand of good but interchangeable players who make solid money. Below them is a strata of people earning just enough to stay off the breadline, and below them still are the young people trying to get in, earning nothing and indeed perhaps paying money for the chance to compete. Equally, at every level there is lots of competition. When you are at your peak, you have a fairly limited shelf life, at the bottom, you are easily expendible. In between, there is constant pressure from those at the top wanting to keep their positions and keep you out, and from the bottom there is always another young turk ready to fill your shoes.

So in that sense at least, trying to homogenise legal services won't work, and likewise trying the change the overt structures of the professions won't change the fact that there will always be this pyramid shaped hierarchy where all the money flows to the top, and customers are almost afraid to shop around in case they get an inferior product.

johnnyskeleton · 02-09-2011 11:03am

Garett Simons SC, Wendesday's Irish Times wrote:

Sir, – Anthony Lester, QC (August 30th) rightly criticises the chairman of the Bar Council, Paul O’Higgins, SC, for his “defensive and complacent” response to Michael Casey’s recent call for reform of the legal profession. This complacency is nowhere more evident than in Mr O’Higgins’s attempt to justify the lengthy court vacations. The High Court and Supreme Court’s “long vacation” extends for nine weeks. Mr O’Higgins suggests that legal vacations are necessary “to ensure that lawyers, litigants and witnesses will all be available at the same time”.

I have yet to meet a client who takes nine weeks’ holidays during the summer, and thus suspect that any difficulties with availability during the summer months lie solely with the lawyers.

Mr O’Higgins’s opposition to the chambers system is also difficult to understand. A chambers system would allow barristers to share overheads. It would also ensure that work is allocated more efficiently between barristers, to the benefit of both consumers and practitioners. The current sole trader requirement means that the economic benefits of “division of labour” are not properly available. – Yours, etc,

http://www.irishtimes.com/newspaper/letters/2011/0831/1224303236886.html

Gloves are coming off.

Paul OHiggins SC, Chairman of the Bar Council Todays Irish Times wrote:

Sir, – I hope Lord Lester (August 30th) enjoyed his holidays in west Cork where he was “amazed” to observe the restrictive practices of the Irish bar. He says I did not in my article (Opinion, August 26th) identify any practice or procedure that I would like to change. He then, implicitly, instances those which he thinks should be changed. All of the “much needed reforms” which Lord Lester says were made in England in the face of “professional opposition” have already been voluntarily made by the Irish bar or were in existence anyway.

For his information, the two- thirds and two-counsel rule have been abolished here for several years. The same is true of advertising, where our rules are similar to those in the UK. As distinct from the UK, where solicitors of recent times enjoy varying rights of audience in the higher courts in competition with the bar, solicitors have had full rights of audience in Ireland since 1971. In Ireland, unlike England, applications to become senior counsel have never been politicised. As in England, barristers have to demonstrate adherence to continuing professional development requirements. In every one of these respects, Lord Lester’s letter is entirely wrong.

On access to the profession, Nicholas Greene QC, then chairman of the English Bar Council said in 2010 that of about 1,800 qualifying in the previous year there, only 463 had been in a position to get pupillages. In plain English that means that less than one-third of newly qualified barristers got a chance to practise. In Ireland every newly qualified barrister, between 150 and 200 a year, gets that chance.
Lord Lester’s claim that there is wider access in England goes well beyond the complacency of which he accuses me and in a less distinguished person might be considered smug.

Lord Lester thinks it notable that many outstanding Irish lawyers prefer to practise in the UK or Europe. Some nationals of every country, especially small ones like Ireland in every discipline have sought their futures abroad. This is no necessary comment on Ireland.

http://www.irishtimes.com/newspaper/letters/2011/0902/1224303347577.html

Absolutely true, although he fails to mention the abolition of the two counsel rule and restrictions on advertising.

The debate rages on as to whether the UK system or the Irish system is better. Certainly the UK system is fairer for those within it, but the Irish system is fairer in that it has equality of opportunity, even if that opportunity is harder to succeed on. Overall, I think the Irish system is fairer (with possible tweaks such as bursaries, masters paying devil's fees, some system of work distribution to younger members etc). Certainly, in terms of competition, the Irish system is much more open and less restrictive to new entrants.

However, rather bizzarely, there is so much competition in the Irish bar that it is almost seen as anti-competitive because of it.

Paul O'Higgins wrote:

I am, of course, Paul O’Higgins SC, (Senior Counsel) not QC, (Queen’s Counsel) as Lord Lester refers to me. That status was last conferred in this country at the end of the reign of Queen Victoria and that of KC (King’s Counsel) before the second World War. – Yours, etc,

Lol. He forgot to mention that when in an Irish newspaper, Anthony Lord Lester QC of Hearne Hill becomes Anto Lester Q.C. Tecnically, in fact, he is Anto Lester B.L. because he is a junior member of the Irish bar.

hada · 02-09-2011 3:02pm

Busy at work so will keep this short - more so weighing in my own views. Hopefully will get time to respond more expansively/engage in a debate over weekend. I'm mainly going to focus on entry to the profession - as that is the stage I find myself at, or at least, I will in the coming years when I decide to go down.

My belief, having spent time in England, during which I was lucky enough to spend time doing numerous mini-pupillages, talking to friends who are pupil barristers/juniors in the chambers system - they simply cannot understand how the Irish system re joining the Bar is still operating the way it is. I completely agree for the following reasons:

1) Chambers allows for an objective selection process whereby each candidate is formally assessed as to their ability to cut it at the Bar/in that particular chambers. Paul O'Higgins mentions how 436 pupillages in England were available last year in the UK vis a vis 150 - 200 barristers qualifying each year here.

Q: How many of the 150-200 barristers will still be practising in 3-5 years time?

Doesn't it make more sense to have the bar to entry at the start of the qualification route so that (as is currently the current situation) those who can, don't can't simply decide to become Barristers because they can on "Doddy & Mommy" footing the 12,000 or so in first year, and provide a substantial source of income thereafter. This includes those who simply have connections - we all have friends/acquaintances who have parents who are solicitors/barristers' and despite the unavoidable hardship, do have a much easier ride at the early stages of practising at the Bar.

2) The Chambers system ensures that young barristers learn from numerous barristers, of varying seniority - and depending on the chambers, can specialise in a particular area/type of area. This is extremely hard i to do nowadays...all depends on getting a particular type of master who may or may not have the specialisation you want...and again goes back to "who you know".

3) Pupil barristers in England must be paid a minimum wage. The figures for the average wage paid to pupils in england is easily searchable online. I bet everything I own that O'Higgins couldn't tell you if I gave him a week what the average devil earns in Ireland. He's not looking out for the best interests of the Bar, he's simply looking out for his own interests (and those who he represents).

4) Chambers system ensures that work is distributed fairly and evenly amongst ranks of barristers. Clerks in each chambers ensure that the more junior barristers will get work in the early years. This allows them to build their name as they ride on the chamber's name for the first few years, before building a reputation for themselves.

5) O'Higgins etc say ireland is too small for chambers. Then have less chambers than England. Chambers operate effectively (and in some cases have some of the best at the Bar) in Manchester, Birmingham and across the regions where there are much smaller legal scenes than London.

6) Chambers often have maternity/sickness policies that being a sole-trader simply does not provide. If a female barrister gets pregnant and wants to take any extended period of time off, she forces seriously crippling her legal career and losing the contacts she may have spent years building up. In a chambers system, I know that they are quite conscious of this and on return (should they wish to), the clerks/chambers ensure that workflow is maintained.

In summary, I know for a fact that I would stand a damned good chance of gaining a well-paid pupillage in some of the top chambers in London. This isn't conjecture, it's fact. I shouldn't be forced have to leave Ireland to become a barrister. Don't take this as any sense of entitlement, but I would love to start and raise a family here. And what if I decide to go to the Bar in England and come back.... Two people I've met stick out in my mind - both, despite having trained and practised in two of the top London chambers (public law) - cannot come back to Ireland simply for the fact that they have no reputation here and would be starting back at square 1. If there was a chambers system here, they could apply as many Irish solicitors do between the London firms + Irish firms. They're essentially stuck there.

Finally, I know that a chambers system won't fix all of our problems (nepotism is still rife) but it's got to be better than the current system we have now.

Apologies again for the rush/ineloquence of this.

johnnyskeleton · 02-09-2011 4:20pm

Excellent post, and while I don't necessarily agree with the general thrust, you make some interesting points.

hada wrote: »

My belief, having spent time in England, during which I was lucky enough to spend time doing numerous mini-pupillages, talking to friends who are pupil barristers/juniors in the chambers system - they simply cannot understand how the Irish system re joining the Bar is still operating the way it is.

Be careful that you are not swayed by a perception bias here. The UK always had chambers (well, in living memory anyway) and the few barristers who operate outside the chambers system are perceived as rogues. Plus, the tendency in England is to look down on the Irish/Scottish generally. Therefore, I can easily see why UK barristers would assume that the Irish system is inferior without looking into it in any great detail.

hada wrote: »

1) Chambers allows for an objective selection process whereby each candidate is formally assessed as to their ability to cut it at the Bar/in that particular chambers. Paul O'Higgins mentions how 436 pupillages in England were available last year in the UK vis a vis 150 - 200 barristers qualifying each year here.

It allows for it, whether it actually happens or not is a different story. Compare that to Ireland where there is no selection process, so while the UK system minimises the potential bias which might prevent someone from becoming a barrister, the Irish system allows anyone who has a BL degree to practice.

hada wrote: »

Q: How many of the 150-200 barristers will still be practising in 3-5 years time?

If you look at the law library website, it will show you just how many barristers there are remaining from each year. The first "bumper" year of 150-200 was in 2004 or 2005. So there are are three sample groups now - 2004, 2005 and 2006 that are at least 5 years down, and 2007 and 2008 who are 4/3 years down. (ok, there might be a few people who take a year or two out beforehand, but it is still a good general guide). As far as I can see, most are still there.

You may argue that of those, some might only be barely hanging in there or whatever, but the fact is that they are still on the law library website, still paying their fees, and still registered as available to do work. So to my mind, it is significantly better that say 200 people start in 2006 and 150 are still in practice 5 years later (i.e. 3/4) rather than 200 qualify but only 70 get a shot at practicising at the bar like in the UK (about 1/3). Bear in mind that not all of those who get a pupilage get a tenancy, and there may well be a drop off after tenancy too. So I would be of the view that the Irish system allows more people in than the UK and is less restrictive.

hada wrote: »

Doesn't it make more sense to have the bar to entry at the start of the qualification route so that (as is currently the current situation) those who can, don't can't simply decide to become Barristers because they can on "Doddy & Mommy" footing the 12,000 or so in first year, and provide a substantial source of income thereafter. This includes those who simply have connections - we all have friends/acquaintances who have parents who are solicitors/barristers' and despite the unavoidable hardship, do have a much easier ride at the early stages of practising at the Bar.

No, I don't believe so. Because someone who appears quite good on paper could be awful in court and those who are awful on paper could be excellent in court. Such a system could produce homogenised lawyers who only ever appeal to the chambers' style of barristerrin'. John Mortimer was quite scathing of the way the chambers system works, in that some members of chambers are constantly worried about things like human rights cases and criminal law bringing down the reputation of chambers. The Irish bar, for all its perceived flaws and lack of uniformity, produces a style of loveable rogue barrister that perhaps would slip through the net of the difficult UK selection process.

At the end of the day, in the Irish bar your qualifications and accomplishments in academia are virtually worthless, and what matters is how well you can do the job. Chambers, on the other hand, would most likely prefer a doctor of law with many text books who is not particularly good at lawyering.

hada wrote: »

2) The Chambers system ensures that young barristers learn from numerous barristers, of varying seniority - and depending on the chambers, can specialise in a particular area/type of area. This is extremely hard i to do nowadays...all depends on getting a particular type of master who may or may not have the specialisation you want...and again goes back to "who you know".

You can have more than one master in the Irish system, and besides, there is an old saying that "you don't choose your practice, your practice chooses you". Many barristers who devil in criminal law end up doing civil law, and vice versa.

To my mind, the chambers system is more of a straight jacket, in that a new tenant is not likely to be doing work viewed as inconsistent with the reputation of chambers. A good example would be asylum law or criminal constitutional challenges.

The stereotypes of those who succeed at the Irish bar i.e. those that are independently wealthy or well connected no doubt exist, but there is a much overlooked and, IMO, much larger category of barrister - the hard working, part time jobbing, lecturing and article writing barrister. Those who succeed without a leg up deserve more credit than to be tarred as owing their success to a privileged background.

hada wrote: »

3) Pupil barristers in England must be paid a minimum wage. The figures for the average wage paid to pupils in england is easily searchable online. I bet everything I own that O'Higgins couldn't tell you if I gave him a week what the average devil earns in Ireland. He's not looking out for the best interests of the Bar, he's simply looking out for his own interests (and those who he represents).

I would say with relative certainty that the average devil earns 0 or less than 0 in their first year, and maybe a couple of hundred or a couple of grand in their second year. But that is widely known and publicised.

hada wrote: »

4) Chambers system ensures that work is distributed fairly and evenly amongst ranks of barristers. Clerks in each chambers ensure that the more junior barristers will get work in the early years. This allows them to build their name as they ride on the chamber's name for the first few years, before building a reputation for themselves.

Really? Does it mean that barristers of 2-3 years are put on high profile high value cases because it is "their turn"? Or, does it mean that barristers in their first few years do all the grunt work which brings in better cases which are dealt with by the more senior members? Isn't that what Garett Simon SC is after with his concept of allocating work more efficiently among barristers? I mean, that is a laudible goal, but who exactly is to be doing this allocating? One thing is for sure, the person doing the allocating i.e. the clerk, is not going to go out on a limb to give a junior barrister a shot when he can give it to his old buddy of 20 years.

It wouldn't surprise me one bit if there was a junior barrister who did such a good job the solicitor decided to reward him/her with a nice easy high value case but when they ring the clerk of the chambers they are gently persuaded to give the plum gig to a senior man/woman and give the old discovery motion to the junior barrister.

Overall, I think chambers is a way of securing a small level of income by giving up the possibility of getting good cases early.

hada wrote: »

5) O'Higgins etc say ireland is too small for chambers. Then have less chambers than England. Chambers operate effectively (and in some cases have some of the best at the Bar) in Manchester, Birmingham and across the regions where there are much smaller legal scenes than London.

Yeah, I don't really understand this point either. Since 100 barristers would be a big chambers and some are as small as 5-10, there is room for maybe 50+ chambers in Ireland. I would be slightly concerned that chambers would lead to a level of geographical demarcation though i.e. the Kerry Chambers gets all the Kerry work, the Dublin Crime Chambers gets 90% of Dublin criminal cases etc.

hada wrote: »

6) Chambers often have maternity/sickness policies that being a sole-trader simply does not provide. If a female barrister gets pregnant and wants to take any extended period of time off, she forces seriously crippling her legal career and losing the contacts she may have spent years building up. In a chambers system, I know that they are quite conscious of this and on return (should they wish to), the clerks/chambers ensure that workflow is maintained.

Again this is true to a certain extent, although I have never heard of an Irish barrister's career being destroyed over this and I know a number of female barristers who have juggled maternity/child care quite successfully with a busy career at the bar. I would imagine that they no doubt lose some solicitors over it, but the reality is that the type of solicitor who will drop a barrister because she had a child is going to do so anyway irrespective of whether there is a chambers to pick up the slack or not.

hada wrote: »

In summary, I know for a fact that I would stand a damned good chance of gaining a well-paid pupillage in some of the top chambers in London. This isn't conjecture, it's fact. I shouldn't be forced have to leave Ireland to become a barrister. Don't take this as any sense of entitlement, but I would love to start and raise a family here. And what if I decide to go to the Bar in England and come back.... Two people I've met stick out in my mind - both, despite having trained and practised in two of the top London chambers (public law) - cannot come back to Ireland simply for the fact that they have no reputation here and would be starting back at square 1. If there was a chambers system here, they could apply as many Irish solicitors do between the London firms + Irish firms. They're essentially stuck there.

Yes, I suppose this is all true. Except of course your view that you are forced to leave Ireland to become a barrister. It is no doubt more difficult, but you are certainly not forced to leave if you want to become a barrister.

hada wrote: »

Finally, I know that a chambers system won't fix all of our problems (nepotism is still rife) but it's got to be better than the current system we have now.

Actually, in the short to medium term, we could have the worst of both worlds as chambers take on fewer devils but still don't pay them or guarantee them any work/tenancy and they are forced to set up chambers of their own. Remember that chambers is not a business, it is a way for self employed persons to share facilities.

bath handle · 02-09-2011 5:57pm

Remember that chambers is not a business, it is a way for self employed people to share facilities.[/Quote]

Facilities can be shared without chambers. Chambers is about branding and administration. Briefs go to " good" Chambers. Clerk manages Diary and chases up fees.

One thing chambers are not about is reducing costs so that the reduced cost can be passed back to the client.

Regarding size, Ireland is small. Closed loops would emerge between solicitors firms and chambers. To get one a client would have to take the other.

nuac · 04-09-2011 4:38pm

Have scanned thru this while taking a break from work to watch the SHF - pressure!.

Some quick thoughts

1. Far too may qualify as lawyers ( solrs and bar ) each year for the volume of work available.

2. The high fees paid for Tribunal work have led many, including fond parents, to think law is the easy path to riches.

3. There are now a range of institutions offering legal courses. Some of their purblicity also claim their course is a passage to high earnings

4. The independent referral bar and separate non-fused professions work well in the interests of the client. Chambers would militate against that.

5. Backoffice procedures at all court levels should be fully computerised
- a lot of unnecessary bits of paper
- court fees ( recently slyly increased ) paid by manually presenting
certain documents to be stamped - should be an electronic payment system.

hullaballoo · 04-09-2011 8:28pm

Does anyone else really hope that we do not become "the Legal Services Sector"? That sounds too like a State-regulated body for my liking.

On a serious note, I would have grave concerns regarding reforms, particularly on a personal level as a barrister at my stage, going into my 3rd year.

My personal circumstances are such that any changes to the delicate relationships within the legal system at the moment could balance the scales in such a way that it becomes impossible for me to continue as a practising barrister. It's a line of work I've made huge sacrifices to undertake and I love it. I'm struggling though, as are many who perhaps do not have to fortune of coming from a background that enables them to work without earning a living for a number of years.

Should the system be reformed, for example, by the introduction of Chambers, I do not know if I would have either the contacts or the knowledge to get into a decent Chamber. I also do not know what that kind of reform would do to my stream (trickle) of work.

I am sure there are many other barristers, at all stages, who would have similar concerns.

From a broader viewpoint, I think that reforms in terms of chambers, single profession, single regulatory body are perhaps trying to fix something that is not broken from the point of view of those who are in the unfortunate position of having to engage legal professionals. I think there might be a slight issue where solicitors are negligent in relation to a case and the system at the moment causes an ethical issue for the barrister whereby he may feel obliged to advise the client in relation to that negligence at the risk of never getting briefed by that solicitor again.

In relation to fees, some adjustments to the manner in which fees are calculated would be beneficial but the legislature should not interfere with this. It is really a matter for the Taxing Masters etc. to ensure that people are not being overcharged in relation to fees. It would be a shame to say that lawyers salaries should be capped and I say that for so many reasons, but it would take well beyond the character limit for posting here to discuss in full. I suppose primarily, there is no reason why anyone's salary should be capped if they are working at a high enough level. It is the same argument for paying judges, politicians, economists, financiers and others who contribute to how we function as an economy/society etc.

The same economic principles apply to legal fees as apply to footballers' wages, in my view. If you can justify paying "entertainers" who are not artists millions of Euro a year, you can justify paying big money to other people whose line of work creates a market. The fact that a lawyers market is one that stems from other people's misery (generally), is simply a fact of life in civilised society.

What have I missed?

Oh yeah, the time periods for cases is something that requires addressing. The legal system is crying out for the implementation of IT solutions to track and administer cases and this, in turn would obviate against the need for the judges to have their Monday lists full of judgment in default-type applications etc.

Those are the primary issues as I see them. I would love to have more time to deal more fully with these reforms. And also to read more fully the other lengthy contributions to this thread.

johnnyskeleton · 04-09-2011 10:21pm

nuac wrote: »

Have scanned thru this while taking a break from work to watch the SHF - pressure!.

Damn Cats.

nuac wrote: »

1. Far too may qualify as lawyers ( solrs and bar ) each year for the volume of work available.

The difficulty is, how do you measure what is the correct number of qualified lawyers? The nature of legal services is such that it is in many ways an irrational market, and the increase in numbers has possibly lead to an increase (rather than decrease) in fees due to perceptions of quality and experience of fly by night conveyancing firms.

The numbers of unemployed solicitors certainly speaks to the difficulty in securing employment on that side, but perhaps is due to high overheads as much as anything else. If start up costs were as low as they are for barristers, I would imagine that many more solicitors would have started up their own practices recently.

Compared to the bar, the lack of any clear numbers makes it hard to know whether there are too many qualifying or not. Again, numbers go up, but fees don't change, at least in nominal terms. An interesting point that is made is that many fees have remained at the same nominal levels for several years, with a draft statement of claim costing about IR£120-150 in the 1980s compared with €200-250 now. Sure, other fees have increased (sometimes quite dramatically), but it is interesting none the less.

nuac wrote: »

2. The high fees paid for Tribunal work have led many, including fond parents, to think law is the easy path to riches.

3. There are now a range of institutions offering legal courses. Some of their purblicity also claim their course is a passage to high earnings

I dunno. The bar council and kings inns are quite voiciferous about how difficult the bar is, long before the recession. The law society hasn't had the same traditional outlook, but they are starting to come to that view.

In any event, whether that is the perception to the casual observer, anyone entering the legal profession will be warned well in advance.

nuac wrote: »

4. The independent referral bar and separate non-fused professions work well in the interests of the client. Chambers would militate against that.

Agreed, but it's the mindless assumption that the current set up must be anti-competitive that is causing the proposed changes.

nuac wrote: »

5. Backoffice procedures at all court levels should be fully computerised
- a lot of unnecessary bits of paper
- court fees ( recently slyly increased ) paid by manually presenting
certain documents to be stamped - should be an electronic payment system.

If only. Or as a lesser alternative, some sort of case management system before county registrars etc to put rigid structures on the exchange of pleadings.

johnnyskeleton · 04-09-2011 10:53pm

hullaballoo wrote: »

My personal circumstances are such that any changes to the delicate relationships within the legal system at the moment could balance the scales in such a way that it becomes impossible for me to continue as a practising barrister. It's a line of work I've made huge sacrifices to undertake and I love it. I'm struggling though, as are many who perhaps do not have to fortune of coming from a background that enables them to work without earning a living for a number of years.

Something that is often not considered - any dramatic change would cause massive disruption to all, but would cause even greater disruption to the less senior people in the legal professions. It is all too easily assumed that the chairman of the barcouncil is opposing chambers because it doesn't suit him and because it would be better for people entering the profession (as per hada's post above). But maybe he genuinely is concerned for the traditions of the bar and believes that the current system is genuinely more competitive and better for the junior members.

While opinion is divided, even amongs the junior members of the profession, as to which is the correct way forward in general, in a very specific sense it seems probable that the immediate impact of radical change would be visited primarily on those who have spent, like yourself, 3 years working in a tough profession only to be put back to square 1.

nuac wrote: »

Should the system be reformed, for example, by the introduction of Chambers, I do not know if I would have either the contacts or the knowledge to get into a decent Chamber. I also do not know what that kind of reform would do to my stream (trickle) of work.

As far as I can see, and articles like the above from Garret Simons SC appear to confirm it, the new chambers would be in need of a number of junior barristers (as in junior junior-counsel, if you get me) to do all the grunt work such as motions, drafting, legal research, for which they would be paid either a salary or a case by case fee at a very low rate. Meanwhile, the more senior barristers (as in senior juniors and SCs) would be able to farm out the less attractive briefs to the youngest member of chambers while keeping the best for themselves.

As a rough example, X BL is 2 years qualified and in chambers with Y BL who is 10 years qualified. A case Y started off 5 years ago has gone sour and it looks like the client is not going to win and in any event neither party can afford to pay the legal fees anymore. So he gets X to run the case when it comes on for hearing. Lets say that X pulls out a stunning victory or at least comes to a good settlement and the solicitor is pleased. Although there is no money in the case, the solicitor decides to reward barrister X for the good job by giving a good, well paying brief. However, when the solicitor rings up the chambers, he is told by the clerk that barrister Y really did all the hard work and told barrister X what to do, and in any event, it was the chambers, not the individual barrister, that produced the result. Therefore, given that barrister X is very young at the bar and its a difficult case, why not give it to barrister Y, to which the solicitor could well agree.

Or even on a more basic level, if barrister X becomes known to do basic motions for the chambers, he may be pigeon holed into that roll forevermore and won't be allowed to do better cases, because he is too valuable to the chambers doing the work no one else wants to do.

Is that a realistic interpretation of how it could work? Certainly, it seems to me to be the inescapable inference from the concept of work being distributed in a more cost effective manner. Does this lead to lower fees for the consumer? I can't see how it would, as for the purposes of taxation I'm sure there would be a chambers set rate e.g. €150 per motion, which is the same whether barrister X or barrister Y does it.

Arguably this happens anyway with busy barristers selecting the best paid work and palming off the other stuff onto their devils or junior barristers. But there are two significant differences. Firstly, there is at present the possibility that solicitors will take a shine to a devil or junior barrister and start giving them better work. Secondly, once deviling is over barristers tend to move up a notch at their own pace. It would seem that in a chambers system people could get stuck doing devilling (albeit at a liveable wage) for several years.

And as to the suggestion that work would be equitably divided in a chambers, does anyone really believe that?

nuac wrote: »

I am sure there are many other barristers, at all stages, who would have similar concerns.

I'm sure there are some who are very much in favour of it, and some that are very much against. I'm also fairly sure that, despite what I said above, there will be many young barristers who would be more than happy to be the perennial devil in a busy chambers.

nuac wrote: »

In relation to fees, some adjustments to the manner in which fees are calculated would be beneficial but the legislature should not interfere with this. It is really a matter for the Taxing Masters etc. to ensure that people are not being overcharged in relation to fees. It would be a shame to say that lawyers salaries should be capped and I say that for so many reasons, but it would take well beyond the character limit for posting here to discuss in full. I suppose primarily, there is no reason why anyone's salary should be capped if they are working at a high enough level. It is the same argument for paying judges, politicians, economists, financiers and others who contribute to how we function as an economy/society etc.

Perhaps publication of guideline fees for particular types of work. Thus, if the standard daily rate for a high court case is €X and a barrister wants to claim €X*2, they have to justify why they are worth twice as much as a normal case. This would also give clients a much better idea of how much it is going to cost them for any given type of litigation, and it also gives a handy reference as to fees e.g. "I want a solicitor that will act for scale costs less 20%"/"Because of the complexity of the case, I will only work for scale times two" etc.

This is effectively how costs are taxed anyway i.e. compared to simliar cases but adjusted to take account of the work actually done, so I don't see any reason why basic scales shouldn't be made public.

nuac wrote: »

The same economic principles apply to legal fees as apply to footballers' wages, in my view. If you can justify paying "entertainers" who are not artists millions of Euro a year, you can justify paying big money to other people whose line of work creates a market. The fact that a lawyers market is one that stems from other people's misery (generally), is simply a fact of life in civilised society.

It's all about bargaining power. If a footballer is indispensible to a club, they will pay whatever he asks. If a CEO can run a company better than anyone else, they will pay him whatever he asks. If a surgeon is the best in his field, then people will pay him whatever he asks. This is how the market works, and for the most part people are happy with it. Yet for some reason they feel the need to artificially lower the earnings of lawyers.

Crucially, the whole debate seems to be about giving lawyers a good kicking rather than any objective views of value for money or actually increasing competition and lowering fees. In so doing, they are actually giving the biggest kicking to the least well established lawyers and thus further concentrating power into the hands of a few.

dermot_sheehan · 04-09-2011 11:03pm

My own tuppence.

I'm uncertain of the merits or demerits of chambers either for consumers of legal services or regarding my own practice. Though assuming one gets into chambers as a junior enough member there will be a guarantee of a flow of work, the clerks will ensure the work is "appropriate" for a junior member. An independent referral bar allows as a junior member to take work which a clerk wouldn't allocate them, often on a no foal no fee basis.

The idea of a profession of clerk would also personally irk me. I've heard from friends in England that the clerks effectively are professional smoozers who although lacking a professional legal qualification can make or break people's careers by allocating work.

The overhead of clerk's wages would of course have to be passed on to the end consumer who wouldn't get the benefit of many junior barristers willing to take cases on the basis of only putting in a fee note if a costs order is granted against the other side.

Furthermore the number of chambers with the expertise and experience to undertake certain work (for example high value chancery actions) would be small enough and given conflicts of interests it would mean a smaller selection of potential counsel for the public.

This would lead to the current situation where only certain categories of transactions can only be undertaken by one of the top 5 solicitors firms being replicated in the bar with a resulting increase in fees.

No one seems to note that despite the bar taking cuts in legal aid work the top 5 still bill quite handsomely for state work, and there may be an equivalent top 5 chambers if chambers were to be allowed.

Furthermore a chambers system might worsen the nepotism that is rife enough. Chambers lead to a certain perpetuation of class division in London where only pupils who've gone to the right schools or universities or having the right connections achieving pupillages and tennancies. Given the smaller size of Ireland compared to London, it would even be worse over here.

That being said, the Bar Council has done a poor enough job convincing myself or my peers of the benefits of an independent referral bar and they are doing even a worse job of selling it to the public. There is a perception that it allows senior members to hoover up work and if there was a system of chambers it would allow senior members to farm out work to junior members in their chambers. There is further a perception that the bar council hasn't engaged constructively with the criticisms leveled at the current system at what is admittedly a campaign by a hostile media. I personally think the Bar Council should rethink it's media strategy, if necessary hire professionals in the area. There is an unwarranted degree of hostility in the media to the Bar that is surprising, possibly because many a journalist has been on the receiving end of a harsh cross examination.

I think there is a fixation on commentators with the chambers in the reforms the Minister of Justice may bring in. I don't think the current Minister would want the bar to be organised into several powerful chambers. If we look at a private members bill he proposed when he was in opposition, he wanted to bring in a rule that solicitors can lead counsel (he acts as a solicitor advocate in family high court proceedings and wanted a junior counsel to assist him, but the code of conduct prohibits a junior from being lead except by another barrister).

I think the biggest change he will probably bring in is to allow solicitors firms to employ counsel to engage in litigation. This would greatly damage the independent referral bar without allowing powerful chambers to form. The big criminal solicitors in Dublin could for example replace the many junior practitioners they engage with a few employed barristers.

This will also deal with some of the criticisms of abolishing the independent referral bar. A few specialists would remain as sole practitioners and small or medium sized firms could engage them while some larger firms have employed counsel.

I would personally be against such a system as part of the point of bringing a barrister into a case is to bring an independent perspective on the merits or demerits of the client's case. An employed barrister would be reluctant to critique the established firm view on the case. I can understand how a system of employed barristers can easily be sold to the public.

Regarding other reforms that he might bring in. He might abolish the two counsel rule in the High Court. This rule is difficult to justify as not every High Court cases requires two barristers (normally one SC and one B.L), and a system could be brought in of only costs for one barrister would be granted unless the judge certifies otherwise. This change would only require an update to the Rules of the Superior Courts. A further change could be to up the Circuit Court's monetary jurisdiction to €100,000 which can be done by statutory instrument. The County Court in England and Wales for example has an unlimited monetary jurisdiction.

Finally a reform that could reduce the costs of litigation which again would only require a rule change would be to provide a schedule of presumptive costs that would be allowed in taxation. The schedule could provide in a personal injuries case a presumptive brief and drafting fee of a certain amount. This may seem anti competitive but at the moment there is already an idea of what fees would tax in certain actions. A litigant could of course chose to pay his solicitor and barrister more then the schedule, but he'd only recover that from the opposing side.

It's unfortunate that the commentary so far on the proposed reforms (and I mean in the media and not this thread) has been quite ill informed.

There are some reforms that are justifiable and for which the bar council should constructively engage on, its unfortunate the way they have reacted so far. I personally haven't come to a view on chambers, and although I see the merits, I fear a replication of the system of top five solicitor firms at the bar with a resultant lack of competition, increase in fees, and lack of young able barristers taking on high value cases for impecunious litigants on a no foal no fee basis.

There is however a clamour for change for change's sake, and I understand there is a public perception that we are overpaid for what we do, which may well be correct for some elements of the bar.

If however people chose to litigate in a free society, they can chose to pay their legal representatives what they want and unfortunately it is human nature that when one is locked in a litigious fight and one's emotions get involved in the fight, one wants to throw whatever one can afford at the other side rather then taking a cold logical approach of getting the legal representation at a cost that is proportionate to the dispute in question.

How society should control the costs of litigation is an issue not just for Ireland, but elsewhere in the world.

The state is perfectly free to reduce the fees it pays for litigation and take the counsel willing to work for it at those fees. The State can also reduce the fees which are recoverable from the other side in litigation and require barristers to give a fee estimates before taking on the work in question (I routinely give one).

If however a private client, having seen the fee estimate, really wants the counsel/solicitor in question and is willing to pay top dollar for him since to a litigant, his piece of litigation is important to him in a way that is disproportionate often to the legal fees for the litigators engaged, I don't see how a State can control that.

a148pro · 04-09-2011 11:44pm

To be honest I'm surprised the IT published Casey's emotive and propagandist piece given that it simply passes off myth and exagerated stereotype as the everyday norm.

I am also surprised at how a respected senior member of the bar would come out attacking their chairman in a public forum, thereby lending a veneer of credibility to the QC's views, those views patronisingly based on having holidayed in West Cork for years. He may have an issue with O'Higgins or his stance on things generally but most of the points presented by the QC as indicia of reform have, as was pointed out by O'Higgins, been in place (at least on paper) for quite some time.

The legal profession is ripe for reform and aspects of it and the public's experience of the legal system are frankly ridiculous. But the content of O'Casey's article or that of the QC's letter should not set the agenda.

johnnyskeleton · 05-09-2011 1:06am

Excellent posts. Just one point:

dermot_sheehan wrote: »

Regarding other reforms that he might bring in. He might abolish the two counsel rule in the High Court. This rule is difficult to justify as not every High Court cases requires two barristers (normally one SC and one B.L), and a system could be brought in of only costs for one barrister would be granted unless the judge certifies otherwise. This change would only require an update to the Rules of the Superior Courts.

Doesn't the abolition of the the two counsel rule mean that senior counsel could appear without junior counsel rather than that the cost of two counsel in High Court cases will normally tax?

It would mean in effect that solicitors could brief senior counsel directly, and a junior would only be brought in if the solicitor believes it is necessary. From a consumer point of view, this makes a lot of sense. But I can see how those in the legal professions wouldn't be best pleased about it. Also, it could potentially be an end to the junior/senior counsel divide as why would anyone get a junior counsel when they can have a senior counsel for more or less the same rate? Why would senior counsel price themselves out of the market for circuit court work if they could nip in and settle a few before heading back to the High Court.

On the issue of two counsel taxing for High Court costs, even forgetting the rules on two counsel appearing, the taxing master is entitled to consider whether the case itself justifies the retention of senior counsel from the point of view of the reasonable man. Since pretty much everything in the High Court is of the highest importance, it would be fair to presume that most if not all cases will justify senior counsel.

johnnyskeleton · 05-09-2011 1:12am

Cabinet to consider proposal on legal reform

http://www.irishtimes.com/newspaper/ireland/2011/0905/1224303498351.html

LEGISLATION TO provide “essential reform” of the legal profession will be brought before the Cabinet within a fortnight and published by the end of the month, according to Minister for Justice Alan Shatter.

Mr Shatter said the Legal Services Bill would “modernise areas of our legal architecture that still reflect the 19th century” and address consumer concerns about the sector. It would also help meet the State’s obligations to the International Monetary Fund, he added.

“We are working on developing the Legal Services Bill which the Cabinet will have before it during the month of September and the objective is to have it published by the end of September,” he said.

Mr Shatter said extensive work on the proposed new laws had been carried out between the Department of Justice and the office of the Attorney General throughout the summer months. This interaction which began in early July would continue as the proposals were developed further. Mr Shatter said he anticipated the Bill would go before Cabinet within two weeks.

there is more

.

Avatargh · 06-09-2011 10:04am

johnnyskeleton wrote: »

Again, confirming my suspicions that the people pressing for reform don't know much about the legal professions, don't want to know about the legal professions, and will do anything if they think it will harm lawyers rather than doing something to actually reduce legal fees.

Agreed. Entirely.

Avatargh · 06-09-2011 10:14am

dermot_sheehan wrote: »

An independent referral bar allows as a junior member to take work which a clerk wouldn't allocate them, often on a no foal no fee basis.

Good point, often over-looked. My own practice would involve probably 20% pro-bono/social interest litigation for little to no money which simply couldn't be done if my fee income was accountable in some form to someone else.

dermot_sheehan wrote: »

Furthermore a chambers system might worsen the nepotism that is rife enough. Chambers lead to a certain perpetuation of class division in London where only pupils who've gone to the right schools or universities or having the right connections achieving pupillages and tennancies. Given the smaller size of Ireland compared to London, it would even be worse over here..

Close to my own fear. Contrary to some of the IT letters its not a simple situation of "bar=patronage and connections but chambers=meritocracy".

I'd be somewhat willing to assume that the first chambers, drawn out of the existing population, would simply replicate the issues of neopotism etc that exist and the population of chambers would be boringly predictable.

One might assume that the preferred selections in respect of work etc, would just continue into the formation of chambers with those who have the power to "make or break" simply continuing to exercise that in the selection/population of chambers.

It may be better for new entrants down the line, but the initial set-up would, probably, do little more than concretize the divisions between the connected and the unconnnected.

Avatargh · 06-09-2011 10:21am

johnnyskeleton wrote: »

Doesn't the abolition of the the two counsel rule mean that senior counsel could appear without junior counsel rather than that the cost of two counsel in High Court cases will normally tax?

There are some permutations here. A case has to be drafted and prepared. It is perhaps likely that an SC won't want to do this, or if he/she will, will charge at a higher rate for it than otherwise would have been the case.

One could say then we get a junior to prep it, but the junior won't appear at trial and no fees would be paid for that. Fine, but people don't often realise that counsel charge a relatively low amount for drafting. Something which takes ten hours to prepare may be charged at €250.00 plus VAT.

If there isn't the court fee (brief fee) then we simply will see proper charges on a time-worked basis and suddenly the cheap-junior isn't as cheap any more.

I'd assume more money would be saved by using one junior and no SC, rather than a SC. Not popular, but probably more realistic.

johnnyskeleton · 06-09-2011 11:07am

Avatargh wrote: »

There are some permutations here. A case has to be drafted and prepared. It is perhaps likely that an SC won't want to do this, or if he/she will, will charge at a higher rate for it than otherwise would have been the case.

One could say then we get a junior to prep it, but the junior won't appear at trial and no fees would be paid for that. Fine, but people don't often realise that counsel charge a relatively low amount for drafting. Something which takes ten hours to prepare may be charged at €250.00 plus VAT.

If there isn't the court fee (brief fee) then we simply will see proper charges on a time-worked basis and suddenly the cheap-junior isn't as cheap any more.

I'd assume more money would be saved by using one junior and no SC, rather than a SC. Not popular, but probably more realistic.

I suppose if you are not paid a brief fee, the tit for tat would be that you could then charge per hour for the preliminary work i.e. drafting fees. So you could charge, what, 100 per hour for 10 hours rather than a flat rate of 250?

In any event, I wonder whether people are under valuing a junior appearing with a senior. Sure, there may be a junior who sits there and sleeps, but others will presumably be sorting out papers, taking notes, helping the senior and, should the senior be unavailalbe, taking their place like the way actors have a standby/understudy.

The point re: using an SC alone rather than a junior alone is that people will go for the perceived quality of the SC, rather than be looking to save a few quid.

FreudianSlippers · 06-09-2011 6:09pm

I suppose it all boils down to fees. The public perception being that all lawyers make millions, the reality being that very few are making an appropriate wage in general (some too much; most far too little).

I don't think it's going to work if we beat around the bush with any new legislation. If there is a desire to "reform" the legal system, then we need to be more honest about it. There is no transparency at the moment though, so it's just vague concepts being bandied about that will have little to no actual impact on the "system" or any positive impact on fees structure (or any other significant aspect of the field).
Fees and wages are a cornerstone of reform, it should start there. How do we guarantee that young professionals get a living wage and that a few well connected individuals aren't running a profession where they control the market.

I guess in a way the problem is that people are fixated on a "reality" that isn't real... the millions just don't exist for 90%+ of either profession, although I think it's often overlooked that young solicitors are at least making some money.

johnnyskeleton · 06-09-2011 7:48pm

FreudianSlippers wrote: »

I suppose it all boils down to fees. The public perception being that all lawyers make millions, the reality being that very few are making an appropriate wage in general (some too much; most far too little).

Really? I'm not so sure. Given the numbers still remaining after a few years and that the total numbers don't seem to be going down significantly, I can't imagine that they are still there unless they are getting at least a liveable wage.

Sure, people could earn more, but in a recession if they are earning say 25k or more after a few years rising to maybe 50-60k as they progress is that not within the realms of "a reasonable wage".

The competition authority showed that wages were reasonably well distributed down along the line, albeit using averages and showing total income rather than barrister income. Perhaps they could do so again, to give an idea as to what sort of levels we are talking about. Otherwise, as you say the whole debate is characterised by assumptions and neither set of assumptions is necessarily correct.

FreudianSlippers wrote: »

Fees and wages are a cornerstone of reform, it should start there. How do we guarantee that young professionals get a living wage and that a few well connected individuals aren't running a profession where they control the market.

Am I wrong to suggest that it is really about consumers? People are prepared to shop around to find the best value food, clothes, books etc, even so far as to going abroad to source same. Why don't they apply the same logic to Ireland?

Certainly, one way to break any perceived cotiere of well connected individuals is for the state and large institutions e.g. banks and insurance companies to try to spread their work a bit further. But I hear that it is these big institutional consumers of legal services that are the worst for consolidating power amongst the few.

FreudianSlippers wrote: »

I guess in a way the problem is that people are fixated on a "reality" that isn't real... the millions just don't exist for 90%+ of either profession, although I think it's often overlooked that young solicitors are at least making some money.

I suppose it is equally important that one "reality" isn't replaed by another "reality" that is equally open to criticism. If there were some firm data in the area it would prove to be of immense benefit. But the Law Society and Bar Council don't seem to be too interested in getting any solid information, instead relying on anecdotes and vague assertions, in a way making them as bad as the reform for reform's sake crowd.

FreudianSlippers · 06-09-2011 8:01pm

I guess what I meant was why are we even having this conversation? Is it about transparency of a profession, is it about wages, is it about tradition... one, all, none?

If it's about wages and fees then we start from one block and tackle the systemic failure of the fee structure and the bar council in general.

If it's about transparency then we start from a different block and tackle god knows what (perhaps again systemic failure of the bar council).

If it's about "traditions" and the stupid concept of banning the wig (etc.) then we're having the wrong conversation and it's about carrying out a public flogging of a group of professionals that the public in general is not so fond of... a basic show for the masses to gather and have a good laugh.

Rushing any legislation without a clear idea of "what are our goals" and without reasoned input by everyone is ridiculous - especially where nothing is changing for a purpose, it's all change for change's sake.

A lot of barristers may want to see a systemic change, many probably are happy with status quo... but do we know what these numbers are and/or do we know what people want changed.
I wouldn't mind sacrificing some autonomy if it meant I could guarantee even a basic level of minimum income - I'm very lucky to be in a financial position where I'm not dependant on my professional income, but that's a finite situation.
I'm getting pretty sick of telling myself "it'll get better next year" and frankly isn't it a bit absurd that we have professional lawyers in this country that are expected to get a part-time job? Does that actually exist in other countries?
My lawyer friends in the US, Canada and Australia don't seem to think so... they find it laughable. So, to me, to say that 25grand or 60grand is an appropriate amount of money to make as a barrister is crazy, considering that's starting wage of most lawyers in the US, Canada and Australia.

Jo King · 06-09-2011 9:38pm

This thread has turned into a debate on how junior barrister can earn a living income. The approach is wrong. It has to be approached from the point of view of a litigant. An litigant who loses a case can end up getting an enormous bill for a couple of days in the High Court. There are case of people getting bills for 250K over a case lasting 2 days. It is a fat lot of good saying to that person that some junior barristers are living on 50 euro a week and there are 1000 unemployed solicitors. So far as I can see, apart from suggestions about case management and automation the profession has not offered any useful solution to the question of legal costs.
Setting up chambers will not reduce costs. Do the solicitors firms with the greatest number of solicitors charge the least? On the contrary.
Some items which are charged for are mind boggling. If a judgement is reserved, the loser ends up paying several thousand euro for two solicitors and four barristers to sit and accept the print out of judgement and make applications for costs and stays of execution etc.
The only response of the legal profession to this nonsense is to moan about poor junior barristers and the independent referral bar.

Avatargh · 07-09-2011 10:02am

Jo King wrote: »

This thread has turned into a debate on how junior barrister can earn a living income. The approach is wrong. It has to be approached from the point of view of a litigant. An litigant who loses a case can end up getting an enormous bill for a couple of days in the High Court. There are case of people getting bills for 250K over a case lasting 2 days. It is a fat lot of good saying to that person that some junior barristers are living on 50 euro a week and there are 1000 unemployed solicitors. So far as I can see, apart from suggestions about case management and automation the profession has not offered any useful solution to the question of legal costs.
Setting up chambers will not reduce costs. Do the solicitors firms with the greatest number of solicitors charge the least? On the contrary.
Some items which are charged for are mind boggling. If a judgement is reserved, the loser ends up paying several thousand euro for two solicitors and four barristers to sit and accept the print out of judgement and make applications for costs and stays of execution etc.
The only response of the legal profession to this nonsense is to moan about poor junior barristers and the independent referral bar.

Probably because the perception (rightly or wrongly) is that the motivation behind the reforms aren't simply about costs but about long-held ambitions to "do something" about the bar.

Avatargh · 07-09-2011 10:24am

johnnyskeleton wrote: »

I suppose if you are not paid a brief fee, the tit for tat would be that you could then charge per hour for the preliminary work i.e. drafting fees. So you could charge, what, 100 per hour for 10 hours rather than a flat rate of 250?

In any event, I wonder whether people are under valuing a junior appearing with a senior. Sure, there may be a junior who sits there and sleeps, but others will presumably be sorting out papers, taking notes, helping the senior and, should the senior be unavailalbe, taking their place like the way actors have a standby/understudy.

The point re: using an SC alone rather than a junior alone is that people will go for the perceived quality of the SC, rather than be looking to save a few quid.

The interesting point which will end up emerging is that for low to middling size cases, people will start to see that a huge amount of work in them is unpaid. Let me be clear here - I am talking about low to middling size cases which we can group as being just above the District and in the Circuit Court - i.e. the classic cases whereby "not rich" people may be forced to litigate to, say, recover fees due to them for work done, unpaid rent, damages from a builder etc.

With no complications at all - i.e. an incredibly simple straight forward case whereby there is no conceivable defence, the counsel's input would be something like the below:-

Read the brief (1 hour), draft the originating papers (1 hour), deal with replies (1 hour), advise on proofs (1 hour), pre-trial consultation (usually client demanded - 2 hours), trial prep (2-4 hours) trial (2-4) hours.

That's about, roughly, 10-14 hours for a simple case worth between, say, 6.5k to 38k to the client.

Now, the costs on that (if successful) from my own experience would, all things considered, be taxed at about €1500-1700 plus VAT and maybe more but no more than €2,000 plus VAT (assuming we are in the Circuit). What the public seems to see is "2 grand for 2 hours in court...they have it minted", without thinking about what goes behind the 2 hours in court. It's, I suppose, a little like saying the only function of a football manager is to select a first eleven, and be there for 90 minutes on a Sunday.

Now, if we move from beyond the incredibly straight-forward case (which still requires work) to, a far more common case. Let's suppose the client wants to sue for money for goods delivered and the client's books are a mess. Let's say the sums claimed make no sense. Then we start to see that cases for money in the range of 6.5k-38k taking far more time. We might see something more like the following

Read the brief (1 hour), figure out and outline difficulties with figures presented (2 hours), meet with client to deal with difficulties before issuing proceedings (1 hour), consider fresh figures and fresh information (2 hour), raise more queries when these don't make sense (1 hour), draft the originating papers (1 hour), deal with replies (1 hour), advise on proofs (1 hour), pre-trial consultation (usually client demanded - 2 hours), trial prep (2-4 hours) trial (2-4) hours.

In this example, roughly five hours of work (and this is conservative) is added because of the client's record keeping. The costs will tax at precisely the same as above. However, on an hourly or worked-time basis, the fees would be substantially higher assuming a professional rate of €200.00 per hour plus VAT.

If the public want the bar to abandon the brief and mark fees on a time-spent basis (like other professions), its going to be a rude awakening for precisely the kind of people who are most at risk from higher costs, when they seek to recover lower sums between the 6.5 and 38k markers. At that range, which involves probably the most vulnerable clients to costs orders (consumers, sole traders etc), we quite often do far more work than the ultimate fees actually cover.

I can't see any reason why I'd be against this at all, but am unsure that anyone is really thinking it through.

At the upper end, certainly, one may see savings when moving from a brief to time-spent/worked but it will be curious to see how costs reforms can really do anything about the bare fact that low to middle value cases can involve just as much work as the highest value cases (and sometimes more).

FreudianSlippers · 07-09-2011 6:12pm

Jo King wrote: »

This thread has turned into a debate on how junior barrister can earn a living income. The approach is wrong. It has to be approached from the point of view of a litigant. An litigant who loses a case can end up getting an enormous bill for a couple of days in the High Court. There are case of people getting bills for 250K over a case lasting 2 days. It is a fat lot of good saying to that person that some junior barristers are living on 50 euro a week and there are 1000 unemployed solicitors. So far as I can see, apart from suggestions about case management and automation the profession has not offered any useful solution to the question of legal costs.
Setting up chambers will not reduce costs. Do the solicitors firms with the greatest number of solicitors charge the least? On the contrary.
Some items which are charged for are mind boggling. If a judgement is reserved, the loser ends up paying several thousand euro for two solicitors and four barristers to sit and accept the print out of judgement and make applications for costs and stays of execution etc.
The only response of the legal profession to this nonsense is to moan about poor junior barristers and the independent referral bar.

Avatargh wrote: »

Probably because the perception (rightly or wrongly) is that the motivation behind the reforms aren't simply about costs but about long-held ambitions to "do something" about the bar.

In a way exactly. I suppose it's a gripe personally and as a whole I don't see the point in reforming the "legal services sector" without addressing an issue as important as that.
IMO it breeds a profession where talent is lost at an early stage because the job isn't or at least doesn't appear to be sustainable long-term.

What are the points of the proposed reforms? I fail to see how any of them actually address real, significant problems at the bar. What about raising the jurisdiction of the Circuit Court again to, say 100,000? That has been discussed but appears to be not included in any recent talks (although I'm out of the country at the moment so I could just be not getting all the news).

Reform of the Legal Services Sector

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