Lawyers Lobbied Taoiseach to water down regulation of sector

nice_guy80

http://www.irishtimes.com/business/economy/lawyer-bodies-lobbied-taoiseach-on-bill-reforms-1.2480630

Top barristers and solicitors expressed “deep concern” about plans to reform the legal profession in lobbying meetings with Taoiseach Enda Kenny, before the legislation was substantially watered down.
The Bar Council and Law Society each met the Taoiseach in the course of a long campaign against key parts of the legislation, which was under debate for four years before its passage through the Oireachtas a fortnight ago.

*****************
Incredible that such a well connected and wealthy section of society can influence the drafting of new regulations to regulate their own sector!
More incredible that they were granted direct access to the Taoiseach

BoJack Horseman

nice_guy80 wrote: »

Incredible that such a well connected and wealthy section of society can influence the drafting of new regulations to regulate their own sector!

Its the case though for almost all legislation...

Lobbyists will lobby.

nice_guy80

BoJack Horseman wrote: »

Its the case though for almost all legislation...

Lobbyists will lobby.

They were actual members of the Bar themselves, not even lobbyists

Are any influential groups with money behind them allowed direct access to the Taoiseach like that?

BoJack Horseman

nice_guy80 wrote: »

Are any influential groups with money behind them allowed direct access to the Taoiseach like that?

Everyone!

Farmers, construction firms, medical profession, unions.... etc etc...

johnnyskeleton

nice_guy80 wrote:

Incredible that such a well connected and wealthy section of society can influence the drafting of new regulations to regulate their own sector!
More incredible that they were granted direct access to the Taoiseach

If a law was proposed to regulate online message boards, would it be reasonable that boards.ie and similar sites be allowed express their views on the legislation?

In any event, what specifically is alleged to be untoward? What part was wateted down and what was the significance of that part? Why would Enda Kenny pander to special interests over the common good? These are the types of question that would make this a debate. The simple fact of a meeting or meetings doesnt really show anything - maybe he told them to get lost!

You also havent demonstrated that the law society and bar council are wealthy and well connected.

Manach

It is part of legal theory that legislation effecting people is always effected by various special interests groups seeking to better their lot with lobbying. It would be of much greater surprise if they did nothing. This is how much of legistation is crafted and authors like Lawrence Lessing & Richard Posner have written on this.

golfwallah

johnnyskeleton wrote: »

What part was wateted down and what was the significance of that part? Why would Enda Kenny pander to special interests over the common good? These are the types of question that would make this a debate. The simple fact of a meeting or meetings doesnt really show anything - maybe he told them to get lost!
.

The main thrust of the issue under debate is whether the bill will achieve it's key objective of lower legal costs in the state, which would be greatly beneficial to ordinary citizens in taking the litigation route to assert their legal rights.

The Irish Times article of 31/12/2015 gave the following background to the bill:

A key objective of the overhaul, a condition of Ireland’s bailout programme in 2010, is to lower costs.

According to this article by Alan Shatter in Irish Times in November 2015, as regards “watering down”:

Many of the recent amendments made to the Bill by Frances Fitzgerald, my successor as Minister for Justice, are beneficial and address areas I had directed be addressed prior to the Bill’s enactment. Essentially, 80-85 per cent of the reform I set out to achieve can result from the Bill as now amended. Unfortunately, one particular area has been substantially watered down and the Bar Council permitted to preserve anti-competitive measures within its code of practice. These changes to the Bill have been rightly criticised by the Competition and Consumer Protection Authority.

And , in summary:

I am delighted that the Bill is about to finally complete its passage through both Houses of the Oireachtas. I am, however, disappointed that it is unlikely we are going to see any time soon legal services delivered through new business models which would reduce legal costs and increase competitiveness. It is unfortunate that on this issue the Bar Council’s motto “Nolumus Mutari” (We Shall Not Be Changed) has triumphed.

johnnyskeleton

golfwallah wrote: »

The main thrust of the issue under debate is whether the bill will achieve it's key objective of lower legal costs in the state, which would be greatly beneficial to ordinary citizens

Im not sure that the bill was ever really capable of that. The watered down bit refers to the fact that the bill prevents any rule of law preventing barristers from joining a partnership wih other barristers, with solicitors ir going in house. The concession to the bar council was that the bar council can still insist that their members not form such partnerships. So if a barrister wants to be a member of the law library they must comply with its rules not to form a partnership. If they do not wish to join the law library then they are free to join any partnership they wish.

If you think about it this is not unreasonable. If you worked for Microsoft and thry insisted that you cant work for Google at the same time that would be fair. So barristers can choose the independent referral bar route or join a partnership, just not both.

The other major changes are independent regulation which is probably a good thing for people with complaints but as this independent regulation is paid for by the lawyers it will make practice more expensive hence fees will actually increase. In the same way that cutting landlords tax reliefs to punish landlords (who were percieved as greedy) has lead to higher rents and a shortage of available properties. This could never lead to reductions in the cost of legal services.

Another is the costs ajudicator which will replace the taxing master. Presumably the current taxing master will get the job. Maybe they should expand this to all services so I can call out a plumber to fix my sink agree a price and then after hes done it the government can decide to reduce his bill.

Possibly there will be savings for big institutions such as insurance companies in that their in house lawyers will be allowed advocate in court on their behalf.

In reality the only way to reduce legal fees is for each individual to negotiate with their lawyers in advance.

As to representing people in court, a lot of lawyers will act no foal no fee in good cases, and rhere are legal aid systems in place for other people.

At the end of the day, lawyers will act in cases that it is economically viable for them to act in. There is no shortage of trainee lawyers at the moment, but a lot of them dont stick around because the job doesnt pay particularly well. There are hundreds of newly qualified barristers who earn as little as €25 a day. They do this for a while because they are getting on their feet experience. But it may not be a biable prospect long term.

At the other end of the scale, there are lawyers earning high 6 figure incomes and can charge several hundred euro per hour. They earn this because someone is prepared to pay it and they have the reputation as being the best. They are usually employed by big companies or the State. It is open to big companies or the State to shop around and get other lawyers who will act for a fraction of that price and there are no doubt many lawyers who would act in such cases. But these companies feel that their money is bstter spent paying the higher price to the person with the better reputation. That's capitalism!

fly_agaric

nice_guy80 wrote: »

Incredible that such a well connected and wealthy section of society can influence the drafting of new regulations to regulate their own sector!
More incredible that they were granted direct access to the Taoiseach

Not really, is it not fairly typical (for Ireland?)

Godge

nice_guy80 wrote: »

http://www.irishtimes.com/business/economy/lawyer-bodies-lobbied-taoiseach-on-bill-reforms-1.2480630

Top barristers and solicitors expressed “deep concern” about plans to reform the legal profession in lobbying meetings with Taoiseach Enda Kenny, before the legislation was substantially watered down.
The Bar Council and Law Society each met the Taoiseach in the course of a long campaign against key parts of the legislation, which was under debate for four years before its passage through the Oireachtas a fortnight ago.

*****************
Incredible that such a well connected and wealthy section of society can influence the drafting of new regulations to regulate their own sector!
More incredible that they were granted direct access to the Taoiseach

What is most interesting about this story is that it was Alan Shatter who resisted the lawyers and it was only on his departure that the government gave way. Yet, the same people in the media and elsewhere (including on here) who were calling for his head are the ones now complaining about the government backing down.

johnnyskeleton

Godge wrote: »

What is most interesting about this story is that it was Alan Shatter who resisted the lawyers and it was only on his departure that the government gave way. Yet, the same people in the media and elsewhere (including on here) who were calling for his head are the ones now complaining about the government backing down.

You see this is the narrative that is very frustrating about this issue. If there was a substantive discussion on what the bill actually does with specifics it would quickly become apparent that:
a) the issue the government "gave way" on was an issue that they couldnt ultimately succeed on (the law library being allowes to exclude people who are members of firms or other legal orgnaisations) because every business can do this;
b) the measures in the bill will be largely ineffective and may actually increase costs (more expense to run a legal practice, greater opportunity for larger firms to corner the market).

The changes are largely an exercise in public venting of the "yeah, we are hitting the lawyers hard" variety. But after it passes, even as originally envisioned by Alan Shatter, a persons conveyance will cost the same (or slightly more), their civil claim will still be no foal no fee as it was before, legal aid will still be available for them. Possibly the State will save a few quid, but no more than if they shopped around a bit/sought savings now. Big companies fighting highly technical legal arguments could well have to pay more or else be frozen out of access to the top lawyers.

People called for Shatters resignation because he lied to the people about the penalty points issue. And when he grandstands about this one clarification re: the law library and says that it wouldnt happen on his watch or that the government caved etc, he is not being entirely accurate and is overstating its importance.

FreudianSlippers

johnnyskeleton wrote: »

a) the issue the government "gave way" on was an issue that they couldnt ultimately succeed on (the law library being allowes to exclude people who are members of firms or other legal orgnaisations) because every business can do this;

I accept the vast majority of what you're saying, but my issue is with this point.

The Code of Conduct of the Bar of Ireland defines a "Barrister" as:

a person who is a subscribing member of the Law Library and is engaged (subject to the provisions hereof) in full time practice at the Bar.

Therefore, regardless of whether the Law Library itself is a private business, the Bar Council expects all barristers to be members of the Law Library. There are clearly "barristers" who are not members, but it would seem they are in a grey area given the wording of the code of conduct - would you agree?


It goes on at 2.6 to set out the most egregious rule:

In order to perform their functions with due independence and in a manner which is consistent with their duty to participate
in the administration of justice Barristers [note: members of the Law Library by definition] are excluded from occupations which conflict with the duties contained in the Code of Conduct.

There is little to no evidence from analogous jurisdictions, that employed barristers (whether by way of chambers or in a law firm) are unable to perform their functions with due independence and in a manner which is consistent with their duty.

Failing to allow Barristers to form chambers, work in-house or in law firms only benefits the Law Library and has little to no dis-benefit for other independent sole-practitioner Barristers. Any question of independence could easily be dealt with by an independent authority to investigate allegations of wrongdoing.

The changes that have been made to water down the wording in relation to employed and multi-disciplinary firms is infuriating. The 6-month "we'll think about it" is so wishy-washy I feel like marching down to the Law Society at the earliest chance and asking to change over to being a solicitor. At least then I won't be in what I saw a colleague in a similar situation describe as "career limbo".

johnnyskeleton

FreudianSlippers wrote: »

I accept the vast majority of what you're saying, but my issue is with this point.

The Code of Conduct of the Bar of Ireland defines a "Barrister" as:


Therefore, regardless of whether the Law Library itself is a private business, the Bar Council expects all barristers to be members of the Law Library. There are clearly "barristers" who are not members, but it would seem they are in a grey area given the wording of the code of conduct - would you agree?

I agree, and maybe I misunderstood, but I thought that definition would be meaningless after the Bill comes into force and the Bar Council ceases to regulate barristers and the Independent Regulator takes over that function with a list of registered barristers, whether they are members of the law library or not.

Certainly I have no issue with the bar council losing any claim to have a monopoly over who can or cannot call themselves a barrister, although I suspect that they no longer have a de facto monopoly over that anyway.

There is little to no evidence from analogous jurisdictions, that employed barristers (whether by way of chambers or in a law firm) are unable to perform their functions with due independence and in a manner which is consistent with their duty.

Presumably one of the first tasks of the new regulator is to set up their own Code of Conduct. Maybe it would be worthwhile petitioning them about this? But I agree that there is nothing to clearly show any lack of independence on the part of barristers in Chambers. There may be some lack of independence in firms e.g. a barrister's partners may not like him or her taking on certain types of cases or certain clients that they would otherwise take on, but I agree that doesn't mean that they will have any less of a duty not to mislead the Court etc.

Failing to allow Barristers to form chambers, work in-house or in law firms only benefits the Law Library and has little to no dis-benefit for other independent sole-practitioner Barristers.

I believe a system of barrister chambers as they have in England and Wales discourages competition (as seen by the drop off in the UK between the BL qualification, those who get pupilages and again those who finish pupilages who get tenancies).

https://www.barstandardsboard.org.uk/media/1599997/bsb_barometer_report_112pp_june_13.pdf

1469 people called to the E&W bar in 2011/12, 335 got tenancy in a chambers. Effectively, less than 30% of the people who qualify and spend a year doing an apprenticeship get to remain on as independent referral barristers in a chambers system (although I don't have numbers for the UK Bar Library or for barristers who go in house etc).

What this tells us broadly is that of every 3 people who want to practice at the independent referral bar, only 1 gets to stay on in chambers. By contrast, there is no limit to the number of barristers who can continue to practice after their pupilage in the Irish system.

While this is hard to quantify, I believe the current system is more conducive to new entrant to the market competition, and that a ubiquitous chambers system is a restraint of trade.

The changes that have been made to water down the wording in relation to employed and multi-disciplinary firms is infuriating. The 6-month "we'll think about it" is so wishy-washy I feel like marching down to the Law Society at the earliest chance and asking to change over to being a solicitor. At least then I won't be in what I saw a colleague in a similar situation describe as "career limbo".

I agree. These decisions should be made at the Oireachtas level, not by a quango.

FreudianSlippers

johnnyskeleton wrote: »

I agree, and maybe I misunderstood, but I thought that definition would be meaningless after the Bill comes into force and the Bar Council ceases to regulate barristers and the Independent Regulator takes over that function with a list of registered barristers, whether they are members of the law library or not.

Perhaps it is only my understanding, but given there is to be a 6-month consultation process, I presume that the definition will remain the same?

I wasn't aware that the regulatory authority would be taking over from the Bar Council and Law Society - I understood it was merely sitting on top of them?

Certainly I have no issue with the bar council losing any claim to have a monopoly over who can or cannot call themselves a barrister, although I suspect that they no longer have a de facto monopoly over that anyway.

Barristers working in law firms or in-house should be afforded:
1) The right to call themself a "Barrister" without breaching the rules;
2) The right of audience on behalf of clients;
3) To be a member of the Bar.

Whether we have to pay money to the Law Library for that, I don't really mind... but to force us to disbar to earn a reliable income from working as a lawyer is unfair in my eyes. (obviously not suggesting that you're saying this... just ranting a little )

Presumably one of the first tasks of the new regulator is to set up their own Code of Conduct. Maybe it would be worthwhile petitioning them about this?

Perhaps!

But I agree that there is nothing to clearly show any lack of independence on the part of barristers in Chambers. There may be some lack of independence in firms e.g. a barrister's partners may not like him or her taking on certain types of cases or certain clients that they would otherwise take on, but I agree that doesn't mean that they will have any less of a duty not to mislead the Court etc.

I could see that arising in firms, but this doesn't seem to be a major issue with regard to the overall independence in places like Canada.

I believe a system of barrister chambers as they have in England and Wales discourages competition (as seen by the drop off in the UK between the BL qualification, those who get pupilages and again those who finish pupilages who get tenancies).

https://www.barstandardsboard.org.uk/media/1599997/bsb_barometer_report_112pp_june_13.pdf

1469 people called to the E&W bar in 2011/12, 335 got tenancy in a chambers. Effectively, less than 30% of the people who qualify and spend a year doing an apprenticeship get to remain on as independent referral barristers in a chambers system (although I don't have numbers for the UK Bar Library or for barristers who go in house etc).

What this tells us broadly is that of every 3 people who want to practice at the independent referral bar, only 1 gets to stay on in chambers. By contrast, there is no limit to the number of barristers who can continue to practice after their pupilage in the Irish system.

While this is hard to quantify, I believe the current system is more conducive to new entrant to the market competition, and that a ubiquitous chambers system is a restraint of trade..

Perhaps, but the difference in E&W is that Barristers outside of chambers are still allowed to work either independently or as "employed Barristers". Chambers are not the final solution, nor are they for everyone - but this doesn't prohibit independent practise, nor should they prohibit people from working as an "employed Barrister".

johnnyskeleton

FreudianSlippers wrote: »

I wasn't aware that the regulatory authority would be taking over from the Bar Council and Law Society - I understood it was merely sitting on top of them?

I assumed that they would be. Otherwise it is just doubling the expense.

Barristers working in law firms or in-house should be afforded:
...
3) To be a member of the Bar.

As in to be a member of the law library and use its services?

Put another way, should sole trader independent referral barristers also have access to every in-house legal department to come and go as they like? Or should each barrister be entitled to be in-house for several firms at the same time?

Whether we have to pay money to the Law Library for that, I don't really mind... but to force us to disbar to earn a reliable income from working as a lawyer is unfair in my eyes. (obviously not suggesting that you're saying this... just ranting a little )

I thought that a barrister only had to be disbarred if he/she wanted to become a solicitor. If he/she wanted to work in house or in a solicitor's firm as a legal exec they could retain the title of barrister?

Perhaps, but the difference in E&W is that Barristers outside of chambers are still allowed to work either independently or as "employed Barristers". Chambers are not the final solution, nor are they for everyone - but this doesn't prohibit independent practise, nor should they prohibit people from working as an "employed Barrister".

That's probably true. But from the political side of these things i.e. they are being introduced ostensibly to increase competition and therefore reduce fees, I don't think they will achieve either aim and could potentially have the opposite effect.

But, as with so much government thinking, you target a group, see what they are doing, make them do the opposite, and the more they complain the better a job you are doing. If lawyers were cute they should ask for lower fees and the government would insist that they charge more!

Lt Dan

nice_guy80 wrote: »

They were actual members of the Bar themselves, not even lobbyists

Are any influential groups with money behind them allowed direct access to the Taoiseach like that?

Sure, many of them are party members or party money men. Each party has their legal brigade , teachers brigade.........

Alan Shatter, solicitor , shall not be amused

Sand

BoJack Horseman wrote: »

Everyone!

Farmers, construction firms, medical profession, unions.... etc etc...

Organised criminals...oh wait.

I think the key issue is not that interested groups lobby politicians. Anyone ought to be able to lobby their political representative. Its that the system of government in Ireland is such that legislation is drafted, lobbied, redrafted and rubberstamped by a whipped Dail in deep secrecy with no actual evidence presented or objective analysis. And the average Irish citizen is expected to assume that everything is fine and above board despite none of the involved parties being willing to stand over their position publicly.

No one will ever know what the nature of lawyers lobbying was, or what effect it had on the legislation. Because Irish governments never present any evidence to explain their legislation or their decisions beyond meaningless soundbite and little or no record of any meetings or policymaking is kept.

A good recipe for good governance...so much for the reformist Enda Kenny.

johnnyskeleton

Sand wrote: »

No one will ever know what the nature of lawyers lobbying was, or what effect it had on the legislation. Because Irish governments never present any evidence to explain their legislation or their decisions beyond meaningless soundbite and little or no record of any meetings or policymaking is kept.

Equally, however, there is no evidence that the reforms will increase competition or decrease the cost of legal services. However, you can read the competition authoritys report and the law society and bar councils responses to same. From these we can infer what the logic is.

Likewise, in this particular case, the Minister and the former Minister have described the changes to the legislation after the representations. So we have as good an idea we are ever going to get about the areas in which lobbying was successful. We dont kow what areas it was unsuccessful in.

flutered

BoJack Horseman wrote: »

Everyone!

Farmers, construction firms, medical profession, unions.... etc etc...

the legal medical and banking sectors have always had the ear of any goverment, the others get a little word in

flutered

who makes appointments to the bench, they should be able to regulate it then

johnnyskeleton

flutered wrote: »

who makes appointments to the bench, they should be able to regulate it then

The government decide. The judicial appointments advisory board make recommendations, but they are not binding.

Sand

johnnyskeleton wrote: »

Equally, however, there is no evidence that the reforms will increase competition or decrease the cost of legal services. However, you can read the competition authoritys report and the law society and bar councils responses to same. From these we can infer what the logic is.

Likewise, in this particular case, the Minister and the former Minister have described the changes to the legislation after the representations. So we have as good an idea we are ever going to get about the areas in which lobbying was successful. We dont kow what areas it was unsuccessful in.

As citizens and taxpayers we deserve better governance than trying to sift through the entrails for a guesstimate. It ought to be a given that all inputs to and effects on the legislation, including lobbying, is a matter of clear public record. The onus ought to be on the government to present the objective evidence that supports their legislation.

Kenny has failed to offer any meaningful reform of Irish governance so we still get policy making on the hoof with no records kept and with no one willing or able to defend it objectively. Kenny would make the bank guarantee decision from Sept 2008 exactly the same way it was made then.

FreudianSlippers

Given the contents of the Act as passed and signed into law by the President, it would seem the lobby failed to prevent many aspects of the initially proposed Bill from being enacted. Which I must admit is odd, given it had appeared the Bill had been quite stripped out around Summer 2015.