Recent changes mean rethink is no longer necessary

Turlough O'Donnell, Chairman of the Bar Council

The Bar Council welcomes the Competition Authority’s report, the result of five years engagement with the Authority.  This long period of dialogue has resulted in enormous, and welcome, changes within the legal profession. The Bar Council has made the largest set of changes in the profession’s history.

These changes have provided for improvement in work practices, allowed for advertising, improved the complaints system, provided for advance fee estimates, allowed for transfer to the solicitors’ profession, promoted the sustainable development of junior members, and provided for cost-sharing amongst barristers.  

The nature of law is such that the majority of people have contact with a barrister once or twice in their lifetime, yet the issues requiring such contact are nearly always life changing.   It may be that a life-long relationship has ended, a business is under threat, that liberty or reputation is at stake, or that some personal right has been denied.  The current system allows the client in the smallest town in Ireland to instruct whatever barrister they need, often without guarantee of payment.   

It is vital to retain the core ethics of the profession, not for the benefit of barristers, but for the benefit of society.  That requires independence and universal availability, with barristers advocating for a client without regard to their own interests or any consequences to themselves or any other person.  Economic theory, and free market values, are important.  However, even the Authority has had to recognize, in light of competition decisions from the European Courts of Justice, that pure economics cannot prevail in disregard of the public interest and the administration of justice. 

The Bar contains many different areas of specialisation.  If barristers form chambers form partnerships, there is a danger that these will effectively corner their particular market, inhibiting and distorting competition.  Whilst access to these may not prove difficult for large organisations or the financially better off, the same cannot be said for the ordinary individual clients who are as entitled to justice as the big organisations. 

The recent Bain Report on the legal profession in Northern Ireland (which has a very similar system), has found that the existing independent, sole trader model should not be changed as it:

“gives anyone in any part of Northern Ireland the chance to obtain advice on any matter from the top barristers in Belfast. While we considered the alternative models being proposed in England and Wales… we believe that allowing such models in Northern Ireland would not have the desired effect of increasing competition. Indeed, we consider that they could actually reduce it.”

The recommendation that a legal services commission be created has been overtaken by events. The government has proposed a legal services ombudsman with the publication of the recent Civil Law (Miscellaneous Provisions) Bill. The legal services ombudsman was in fact a key proposal of the Bar Council to the Competition Authority, proving the benefit of ongoing dialogue to the improvement of services. The ombudsman should be set up as soon as the legislation is enacted, and given time to evolve, before further legislative changes are considered.

The Bar Council notes that ongoing dialogue has been suggested by the Chairman of the Competition Authority. The Bar is committed to continue this process of discussion, as it has been in the past, in order to ensure that legal services are delivered to the highest possible standards in the interest of justice for all.

(Article in Irish Independent, 12th December 2006)