# "Legal Reforms represent an attack on independence"



## Brendan Burgess (14 Nov 2011)

According to Carol Coulter in today's [broken link removed]

It's an unfortunate heading as the first paragraph appears to welcome the bill



> THERE IS much that is good in the Bill to regulate the legal professions  recently published by Minister for Justice Alan Shatter, notably the  measures to bring transparency to legal costs and to enable clients to  challenge costs they consider unjustified through a new office of legal  costs adjudicator



But her main point is



> The proposed authority will have 11 members, four of whom will be  nominated by the Bar Council and the Law Society. The remaining seven  will be lay people appointed by the Government on the nomination of the  Minister for Justice.
> 
> Of 56 operative sections in the Bill as a whole, 21 require ministerial approval.
> 
> The role of the Medical Council parallels in many ways that of the  proposed legal services authority – it maintains a register of doctors,  specifies and reviews standards, approves programmes of registration and  training, and generally protects the public by promoting high  standards.



Up to now the solicitors and barristers have regulated themselves.

Independence from the profession is far more important than independence from the government. 

Having said that, the minister can address some of these issues in the bill as it proceeds through the Oireachtas. 

I think it's better that the Minister appoints the Authority. I am not sure who else could do so? The universities? The Consumers Association?  The Minister can make sure that the Authority has a balance of skills and represents a variety of interests. 

As with all boards, it would be better if appointments were made by some group independent of government. But then they would be subject to criticism and bribery as well, if we didn't like their appointments.


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## onq (14 Nov 2011)

I'm not worried who appoints the authority so long as the people on are competent enough to carry out their task.
We have just recovered from Michael Casey's unfounded broadside on the architectural profession.

I doubt that someone who thinks like that would do any good on the board of the authority.
Merit-based appointments only please, with swift exits if they start spouting nonsense.


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## Purple (14 Nov 2011)

Brendan Burgess said:


> Independence from the profession is far more important than independence from the government.



That’s the key point. Who better to appoint the members than a minister elected by the people and accountable to the Dail and the people?


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## Mrs Vimes (14 Nov 2011)

Carol Coulter also makes the point that half of all cases involve the government. The fear is that solicitors or barristers who regularly challenge a branch of the government - eg suing the gardai could be penalised by the regulatory body.


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## Purple (14 Nov 2011)

Mrs Vimes said:


> Carol Coulter also makes the point that half of all cases involve the government. The fear is that solicitors or barristers who regularly challenge a branch of the government - eg suing the gardai could be penalised by the regulatory body.



That's a bit of a stretch.


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## T McGibney (14 Nov 2011)

The State should not be seeking to actively control the legal profession, or any other profession for that matter. The notion of self-appointed interest groups like the Consumers Association monitoring standards in the legal profession is, frankly, comical. 

The key to effective regulation of the legal profession lies in the proper adoption and enforcement of high standards within all strands of the profession. The state should act as facilitator in this, but it is a step too far in my opinion for it to act as enforcer as well.


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## Brendan Burgess (14 Nov 2011)

T McGibney said:


> The key to effective regulation of the legal profession lies in the proper adoption and enforcement of high standards within all strands of the profession. The state should act as facilitator in this, but it is a step too far in my opinion for it to act as enforcer as well.



Hi Tommy

Are you saying that it should stay as it is? That they should continue to regulate themselves? I am not sure what "facilitate" means in this context. 

Brendan


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## T McGibney (14 Nov 2011)

Brendan Burgess said:


> Hi Tommy
> 
> Are you saying that it should stay as it is? That they should continue to regulate themselves? I am not sure what "facilitate" means in this context.
> 
> Brendan



Hi Brendan,

I'm not saying as such that the current system should remain as it is, as I'm sure that there is plenty of room for reform. That said, as someone with absolutely no vested interest in the legal profession, that self-regulation is the only way forward, albeit with a degree of State oversight, if this is deemed desirable. 

I am firmly opposed to the concept of the State actively regulating the sector. The Law Society and Bar Council may have made a poor effort to date in this regard but they have yet to plumb the depths of incompetence that the State has reached in regulating the industries and sectors that it is responsible for. It should not be seeking to extend its regulatory functions until it cleans up its own abysmal record.


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## onq (14 Nov 2011)

Purple said:


> That’s the key point. Who better to appoint the members than a minister elected by the people and accountable to the Dail and the people?



"Who better than..."
What makes these guys "better" than anyone else?

Have they excelled at anything except kissing babies and handshakes?
The last thing we need is to place on a pedestal the practice of appointing cronies to boards...


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## ClubMan (15 Nov 2011)

onq said:


> "Who better than..."
> What makes these guys "better" than anyone else?


I presume (at least part of) _Purple's _point is that "these guys" have at least been elected under our representative democracy to do a certain job and this might logically fall within their remit? Certainly more so than some of the self appointed interest groups that _TMcG _refers to.


> Have they excelled at anything except kissing babies and handshakes?


No offence but that's a pretty gross generalisation and puerile argument. And anyway - why would they kiss handshakes?


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## Purple (15 Nov 2011)

onq said:


> "Who better than..."
> What makes these guys "better" than anyone else?


 What makes them better? Nothing. What is better about how they are appointed is that they are accountable to the people and not some vested interest group. If the minister appoints and retains people who don’t do their job properly or in a way that is acceptable to the populace then the minister and possible his/her government will not get re-elected. Therefore the minister has to make sure that the people they appoint are the right people and do their job properly. 

Accountability and a sanction for dropping the ball. 



onq said:


> The last thing we need is to place on a pedestal the practice of appointing cronies to boards...


How do we know that’s not what happens now (for appointments to the Law Society)? If it does happen now what sanction can the citizen take against the appointed or appointees, indeed how can the citizen find out who the appointees are and what the appointment process is? 

Clarity, transparency, accountability and a sanction.  That’s what we don’t have now and that’s what we need.


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## onq (15 Nov 2011)

We don't have any real sanction against politicians.

That's the myth these creatures feed you as a sop to a real sanction.

When I see politicians being jailed or fined serious money for making disastrous economic decisions or bad laws, THEN I'll call it "accountability"...


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## Brendan Burgess (15 Nov 2011)

Tommy raises an interesting point. But while financial regulation has been poor over the past few years, would a self-regulating financial system have done any better?  I very much doubt it.  

Although the Financial Regulator failed to stop the disastrous lending, it has achieved some things. 


A pretty good Consumer Protection Code
A very good Mortgage Arrears Code
Some enforcement regarding overcharging
Some removal of people deemed unfit to act as directors
Elderfield got stuck into Quinn Insurance very quickly, although this showed up his predecessor's shortcomings.
Would an industry body have achieved this?


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## Purple (15 Nov 2011)

onq said:


> We don't have any real sanction against politicians.


Yes we do, its called an election.


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## onq (15 Nov 2011)

Does the Law Society already have a statutory function?

http://en.wikipedia.org/wiki/Law_Society_of_Ireland#Functions

*Functions*

 The Law Society has a range of statutory and non-statutory functions. * Its statutory functions under the Solicitors Acts relate to the  education and admission of persons to the profession; regulatory and  disciplinary matters and protection of solicitors’ clients.* The Law  Society’s non-statutory functions relate to the representation and  provision of services to its members and protecting the public interest.


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## onq (15 Nov 2011)

Purple said:


> Yes we do, its called an election.




That's not a proper means of accountability - that's the platitude by which incompetents get elected again and again to "serve" - not the people - but themselves at the taxpayer's expense.


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## Purple (16 Nov 2011)

onq said:


> That's not a proper means of accountability - that's the platitude by which incompetents get elected again and again to "serve" - not the people - but themselves at the taxpayer's expense.



Firstly; it's a hell of a lot better than what we have now.

Secondly; if I employ a painter to paint my house and he does a really bad job, breaking his promises and proving to be incompetent in the process then that’s his fault. If I then employ his again and again with the same results then that’s my fault. 
The same goes for politicians; if they truly are incompetents who spout platitudes but get elected again and again the problem is the electorate, not the system. There’s no fixing that.


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## onq (16 Nov 2011)

Allow me be quite clear on this -
I know some fine politicians and some who should never have got to high office.
However suggesting that "appointment by croneyism" is any way to achieve competence is a specious argument.

Its almost as bad as the way company law allows people of any level of competence to become directors of companies.
A glissade of "competence" is required, but no objective test and no requirement to show competence at any stage.
Many directors I know have had no management ability, no business acumen and hardly any marketing ability.

If we're serious about setting standards in Ireland Inc we need to set it a company and political level _first_.
Then if some "Entrep-in-are" gets appointed we might hope he can do more than get grants from Fás.
To get back on topic, Board Members should at least have a good working knowledge of the law.

Re your painter - I and others are pushing for a Register of Contractors and Sub-Contractors.
This would include only those who can prove competence or have an acceptable record.
People should expect good service from those who get paid the most on building jobs.

We should be able to get good service from professionals, trades and companies.
So getting architects registered and the legal profession is only a bare start.
I want trades, consultants and company directors subject to review.

ONQ.


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## ClubMan (16 Nov 2011)

Off topic but that's a beautiful boat shaped post.


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## T McGibney (16 Nov 2011)

onq said:


> Allow me be quite clear on this -
> I know some fine politicians and some who should never have got to high office.
> However suggesting that "appointment by croneyism" is any way to achieve competence is a specious argument.
> 
> ...



Did you have to pass an exam in business administration before being allowed to open your own business?  If not, why force this on others? 

If a company director is complying with relevant laws by engaging compliance advisors and delegating tasks to specialists, what harm are they doing? Why should they be put out of business? 

Are you suggesting that a 'bob a job' kid should only be allowed paint a wall if they're on an official register? Sounds like something Erich Honecker would have dreamed up.

There are enough barriers to enterprise in this country without creating new ones.


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## Purple (16 Nov 2011)

How would it ever be practical to require every company director to have a qualification?
If my neighbour starts selling belly-button fluff on the internet and registers a company to do so what qualification should they have? Why would they need any particular qualification? If they are competent they will stay in business, if they are not then they won’t. Anyway, highly qualified people are no more likely to start businesses than people with no qualifications oh, and qualifications and competence are not the same thing.

Any-how, back on topic, this thread is about independent regulation of the legal profession. If we talked about the legal industry it would be more apt.
Self regulation will always be self-serving. Self interest can be close to public interest but it will never be completely aligned. For example some people in the legal industry will say that minimum income levels should be maintained in order to keep skills etc available. This is of course rubbish and just an excuse for price fixing, even of the proponents of the idea honestly don’t realise it. The same nonsense is also aired by members of other industries/professions and they also think it’s a good idea because they are focused only on their needs and don’t have the necessary perspective to see their sector in the broader context. 

BTW, the painter was a metaphor.


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## onq (16 Nov 2011)

Before you engage in a veiled attack on my profession I suggest you look at the difference in salaries/"compensation" between directors, solicitors, doctors, accountants and - architects.

As to your suggestion that competence equals business success, nothing is further from the truth.
Competence directly relates to professional service, but it doesn't guarantee a successful practice.
Cherry-pickers of skills and abilities are suited by arguments that suggest we should all be buffeted by the winds of world trade, yet these are the very people who are in the most privileged positions, with little personal responsibility or liability.
The laissez faire situation with regards to people operating as directors of companies must be brought under regulation just as the professions must be properly regulated - for the greater good.
There are sufficient examples of unscrupulous directors abusing the markets and member of the public or indeed whole swathes of the public to justify someone taking a long hard look being taken at the last refuge of the marginally competent, but suggesting people of relatively low achievement and/or limited life experience should be allowed regulate a profession is a joke.

The reason we are in the smelly stuff is that people who don't understand economies have allowed those providing unregulated financial services to ruin them.

"I'm a successful _entripenair_ so I can comment on everything and you should take me seriously"

Seriously? Because you sell fluff to fluff fanatics? Ehhhh, nope!

We saw the recent nonsense spewed by Michael Casey in relation to the architect's role in the building industry.
This is one of those who think that austerity will restore health to an economy, equating starvation with fitness - yet never stinting on his own intake.
He's one of the best that private enterprise, education and industry have to offer, yet anyone can see that putting him on any board to regulate a profession would be a disaster.

So it comes back to non-professionals regulating professionals.
The think that people who can become directors instantly on the signing of a company document should be governing those who have studied years and forgone their earning potential to become professionals.
Telling them, in the aftermath of a period of unregulated aggressive, negligent lending how they should run their affairs and how much they should be paid.

Not for me thanks - I want someone who knows the score, not someone who has cornered a transient market for a few years thinking he's "competent".


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## Purple (16 Nov 2011)

onq said:


> Before you engage in a veiled attack on my profession I suggest you look at the difference in salaries/"compensation" between directors, solicitors, doctors, accountants and - architects.


 I’ve no idea where that came from. I didn’t refer to your profession once and the market sets prices, not qualification. 



onq said:


> As to your suggestion that competence equals business success, nothing is further from the truth.


 No, I said that without competence you won’t succeed. That’s not the same thing. I also said that qualification is not the same thing as competence. 



onq said:


> Competence directly relates to professional service, but it doesn't guarantee a successful practice.


 I agree. There are very competent professionals who are useless at running their business. 



onq said:


> Cherry-pickers of skills and abilities are suited by arguments that suggest we should all be buffeted by the winds of world trade, yet these are the very people who are in the most privileged positions, with little personal responsibility or liability.


 You lost me there.


onq said:


> The laissez faire situation with regards to people operating as directors of companies must be brought under regulation just as the professions must be properly regulated - for the greater good.


 I agree, but regulation is there to protect the public from dishonesty as much or more than from incompetence. 


onq said:


> There are sufficient examples of unscrupulous directors abusing the markets and member of the public or indeed whole swathes of the public to justify someone taking a long hard look being taken at the last refuge of the marginally competent, but suggesting people of relatively low achievement and/or limited life experience should be allowed regulate a profession is a joke.
> 
> The reason we are in the smelly stuff is that people who don't understand economies have allowed those providing unregulated financial services to ruin them.


 Again, dishonesty and incompetence are not the same thing. 



onq said:


> "I'm a successful _entripenair_ so I can comment on everything and you should take me seriously"
> 
> Seriously? Because you sell fluff to fluff fanatics? Ehhhh, nope!


 Who said that? For the record, I’m not an entrepreneur and would never claim to be. I regard my wife as one but she’s also a skilled professional... go figure. 



onq said:


> We saw the recent nonsense spewed by Michael Casey in relation to the architect's role in the building industry.
> This is one of those who think that austerity will restore health to an economy, equating starvation with fitness - yet never stinting on his own intake.


 I agree. He shouldn’t be appointed to a regulatory board. 


onq said:


> He's one of the best that private enterprise, education and industry have to offer, yet anyone can see that putting him on any board to regulate a profession would be a disaster.


 I don’t know much about the guy but he’s formed strong opinions about a sector without talking to experts within that sector. In that he’s shown that he’s the wrong man for the job.



onq said:


> So it comes back to non-professionals regulating professionals.


 The majority of the people regulating the medical profession are non medical. The profession hasn’t imploded because of it. 



onq said:


> The think that people who can become directors instantly on the signing of a company document should be governing those who have studied years and forgone their earning potential to become professionals.


 Who suggested that? Of course there should be a large group of lawyers on the board that regulates lawyers but they shouldn’t be a majority. The regulators function is to make sure that the professionals in question operate within a framework as set down in the legislation that established the statutory body. They won’t be setting the rules; they will be enforcing them. 

By the way, time spent studying and the income forgone is utterly irrelevant. Time spent in formal education does not elevate people onto a higher plain of existence or instil them with a higher sense of morality. 



onq said:


> Telling them, in the aftermath of a period of unregulated aggressive, negligent lending how they should run their affairs and how much they should be paid.


 Yea, that’s what caused it alright. 



onq said:


> Not for me thanks - I want someone who knows the score, not someone who has cornered a transient market for a few years thinking he's "competent".


 Ok, so the taxi regulator should be a taxi driver, right?


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