That the Government was told by the Attorney General that the barristers' representative body, the Bar Council, would go to court over a proposed change to how the legal services sector works in this jurisdiction, and decided to change tack as a result, plays to fears many people have about the power of the legal profession in Irish society.
According to the Competition and Consumer Protection Commission (CCPC), effective lobbying by the Bar Council and the solicitors' representative group, the Law Society, has led to "a complete emasculation" of aspects of the proposed law on the regulation of legal services.
The Bar Council, the AG, Máire Whelan SC said, would go to court over a proposal to stop them preventing their members working in new partnerships that are to be provided for under the bill, and could win on the basis that there was no evidence to support this restriction on public policy grounds.
The Minister for Justice and Equality, Frances Fitzgerald, has decided to change the bill so that now it just provides that representative groups cannot seek to impede their members from working with lawyers who work in such partnerships.
Fitzgerald has said that if evidence is found of their doing so, then it could be used to introduce new legal provisions.
On the face of it then, the Bar Council has won its battle against this aspect of the bill. But its victory is limited, and the war may not yet be over.
The second change to the bill cited by the CCPC as a particular cause for concern, is the leaving with the Law Society of part of its function in relation to the regulation of solicitors.
Complaints against lawyers are going to be moved to a new body, the Legal Services Regulatory Authority (LSRA), but the Law Society is going to retain its role in overseeing how solicitors deal with clients’ funds. It operates a Compensation Fund which currently has an ability to cover up to €80 million in claims against members.
The LSRA will have an oversight role in relation to this and the decision to leave the function with the Law Society insulates the State from the risk of claims arising from dishonest solicitors ending up at the Exchequer’s door.
Overall, the new bill provides for the independent regulation of the legal profession, something that has been viewed as necessary for years. Furthermore, the bill, as it currently stands, includes a programme of work for the new authority, including timelines, for reports on aspects of the legal sector as part of a process for further legislative measures.
The bill, first published by former minister Alan Shatter in 2011, is to be enacted by the end of the year, according to Fitzgerald, with the new authority to be in place in 2016. Apart from the Bar Council's move, there appears to be a consensus across the political parties, and in much of the legal profession, that the bill as currently constituted is reasonable.
According to Ken Murphy, director general of the Law Society, the independent regulation provided for in the bill will increase public confidence in the legal profession. On legal fees, however, he says that much of the downward pressure has already occurred, courtesy of the recession.
It would be extraordinary if barristers and solicitors were not in the premier league when it comes to arguing their case to Government. Nevertheless there is a lot of change in the proposed law that have been a long time coming, and should be welcomed. The bill provides for increased transparency concerning fees, which may create a restraining pressure.
The bill constitutes one of the biggest changes in the operation of the law in decades, and contains much that should be welcomed. It is not the case that the power of the legal profession is such that it can stifle all change it doesn’t want. But it is certainly no pushover.
Colm Keena is Legal Affairs Correspondent