# Legal Reform: Should solicitors and barristers continue to regulate themselves?



## Purple (26 Oct 2011)

The separation of the representative and regulatory functions of the Law Society is long overdue, if only to remove the perception of cronyism.

On the face of it it is impossible for an organisation to both represent and discipline any group.The medical profession separated these functions years ago. 

Edmund Honohan, the Master of the High Court, spoke on this issue a few years back and said that the “_no spinning by the Society could disguise the systemic failure of self-regulation_”. 

The fact that all member of the Law Society are lawyers is farcical.


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## onq (26 Oct 2011)

Let's not put how the medical profession are regulated up as an example.

Their censuring of the two surgeons who took the wrong kidney out of a child recently seemed less than exemplary.


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## Purple (27 Oct 2011)

onq said:


> Let's not put how the medical profession are regulated up as an example.



I'm talking about structure, not practice.
I'm of the opinion that the police should be the police in this country, but if we have to have experts involved in the regulation of their own areas of expertise then their input should be advisory and they should never be involved in adjudicating in any particular case. 
Doctors are always in a minority on a committee of the medical council. That’s the minimum that should happen with lawyers.


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## onq (27 Oct 2011)

I'm making the point that independent monitoring structures didn't improve the practise.
The assumption that they will underlies the calls of those  seeking independent monitoring of professions.

*The use of Independent Persons*

Taking one view, your comment about experts in the field being reduced to the role of advisors is relevant up to a point.
But this assumes that those making the decisions don't have an ingrained bias against the profession or professions in general.

I'm not certain that such an assumption can be made in every case, given some of the comments I have seen on AAM this past year.
It seems clear that the focussed, unqualified, year on year approach of a director of a company isn't the same as a forty year professional perspective.

*The use of Professionals*

Taking the contrary view, a professional reviewing another professional who has brought the profession he shares into disrepute may be a far harsher critic.
Look at the priory hall thread and compare the general negative concerns about the building industry centring on Registering builders with my comments about the certifying architect.

Those professionals who are concerned for the public good and maintaining the good the standing of the profession are not going to be the easiest judges on those who may have let the profession down.
On the contrary, members of a profession, particularly those still practising, are likely to be among the harshest critics where errors of judgement, negligence or willful fraud may have resulted in harm or risk to the public.


If I'm reading you correctly, the real fear of many people looking at a self-regulated profession is that its an old boys club, where people are indoctrinated in the professional body to a certain way of thinking.
I agree with this, but oddly enough I think the ILS already does a reasonable job of keeping its members worst excesses in check and unlikely to be outperformed by a new quango composed of civil servants.

Merely trumpeting "independent monitoring with professionals in the minority on the board" doesn't guarantee that standards will be maintained or enforced.
You need people with vision and determination who will actively work with those practising to improve their game, rather than a retribution-based approach.

Having said all that, putting the regulation of the legal profession on a statutory footing with defined roles and responsibilities is something I support.
As with a contract however, its how thsi new regulation managed on a day to day basis that will determine whether or not it succeeds.


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## onq (27 Oct 2011)

ajapale said:


> Bill Number 58 of 2011
> Sponsored by Minister for Justice and Equality
> Source: Government
> Method: Presented
> ...




One thing that seems to be missing is the role of Legal Services Ombudsman, to give the ordinary citizen a right of complaint and easy access to redress and referrals.
Is this whole conglomeration of roles and tasks meant to suffice or is there supposed to be one in existence already?

I see a lot of money being thrown at this, which looks like it will most affect the top end of the profession.
There is a desperate need for the provision of free or low cost representation in  civil cases.


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## Purple (27 Oct 2011)

onq said:


> I'm making the point that independent monitoring structures didn't improve the practise.
> The assumption that they will underlies the calls of those  seeking independent monitoring of professions.


I disagree that independent monitoring structures don’t and haven’t improved practice. They certainly haven’t improved them enough. I would like to see a structure in place where if it is shown that the medical council didn’t act appropriately on information of a criminal nature when they clearly should have then those involved on the investigating committee would face prison. 
The same structure should be in place for all other bodies regulating a particular sector. 



onq said:


> It assumes that those making the decisions don't have an ingrained bias against the profession or professions in general.


 True but that should be taken into account at the selection phase. 



onq said:


> I'm not certain that such an assumption can be made in every case, given some of the comments I have seen on AAM this past year.
> It seems clear that the focussed, unqualified, year on year approach of a director of a company isn't the same as a forty year professional perspective.


I’m not sure what point you are making here.


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## onq (27 Oct 2011)

Purple said:


> I disagree that independent monitoring structures don’t and haven’t improved practice. They certainly haven’t improved them enough. I would like to see a structure in place where if it is shown that the medical council didn’t act appropriately on information of a criminal nature when they clearly should have then those involved on the investigating committee would face prison.
> The same structure should be in place for all other bodies regulating a particular sector.



Unfortunately that kind of draconian thinking may be one of the issues that will send all the professions into a tailspin.
There are degrees of criminality and already there is a high degree of liability attaching to professionals.


> I’m not sure what point you are making here.


The fear is that people who aren't part of a profession may not have the appropriate perspective to monitor it or appreciate the difficulties professionals face.
This is the other issue that will start the professions tailspinning.



I'm not advocating looking the other way BTW, but the civil and criminal law exists already to deal with professionals.
I am reluctant to create more laws when we aren't using the ones we already have - more top-heavy bureaucracy.


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## Purple (27 Oct 2011)

onq said:


> There are degrees of criminality and already there is a high degree of liability attaching to professionals.
> The fear is that people who aren't part of a profession may not have the appropriate perspective to monitor it or appreciate the difficulties professionals face.


 The flip side of that is that the perspective and expectations of those within the sectors being regulated may not be in line with what their actual duties and responsibilities are. From reading posts in various sections of AAM it is clear that this is sometimes the case. 



onq said:


> I'm not advocating looking the other way BTW, but the civil and criminal law exists already to deal with professionals.


 Yes but the complaint/issue usually has to get past the regulatory body first.



onq said:


> I am reluctant to create more laws when we aren't using the ones we already have - more top-heavy bureaucracy.


 I think we can all agree on that.


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## Brendan Burgess (27 Oct 2011)

> the civil and criminal law exists already to deal with professionals.


Are there any changes proposed to the criminal law?   To send someone to jail will presumably continue to be a function of the courts and the courts alone. 

The adversarial nature of civil law in Ireland is just not suited to someone seeking redress from the legal profession. You have a complaint against your solicitor and you have to use one of his colleagues to take a case for you.  It takes years and it's very expensive.


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## onq (27 Oct 2011)

Purple said:


> The flip side of that is that the perspective and  expectations of those within the sectors being regulated may not be in  line with what their actual duties and responsibilities are.


This is the issue of lax or slipping standards which is a widely held view.
It is particularly poignant when a professional acts negligently  or criminally because of the standard they are supposed to work embrace.


> Yes but the complaint/issue usually has to get past the regulatory body first.


I don't think this is true in the case of the legal profession.
I think the ILS acts as a sort of low cost Ombudsman - its not forced.

In the case of building infractions there is no regulatory body as proposed for the law per se.
People are already empowered to make direct, no cost referrals about buildings to the following departments


 Planning
 Building Control
 Fire Prevention
 Health and Safety
  If  a new regulatory body comes into power for the building industry, people may be required to take the case before them as opposed to making direct referrals.


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## onq (27 Oct 2011)

Brendan Burgess said:


> Are there any changes proposed to the criminal law?   To send someone to jail will presumably continue to be a function of the courts and the courts alone.
> 
> The adversarial nature of civil law in Ireland is just not suited to someone seeking redress from the legal profession. You have a complaint against your solicitor and you have to use one of his colleagues to take a case for you.  It takes years and it's very expensive.



In post #8 above I raised the issue of a Legal Services Ombudsman.

Do we have one?

Apart from the office of Taxing Master, I don't think so.


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## onq (27 Oct 2011)

Where is our legal services ombudsman?

http://www.irishstatutebook.ie/pdf/2009/en.act.2009.0008.pdf

http://www.kildarestreet.com/debates/?id=2010-02-04.577.0


We already have the Independent Adjudicator of the Law Society of Ireland

[broken link removed]


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## Brendan Burgess (2 Nov 2011)

Let's take complaints about financial institutions for comparison. 

If you can't resolve it directly with the institution, you go to the Ombudsman. Neither of the Ombudsmen so far have had a background in financial services. They have both done a balanced job so far. 

Would I like to take a complaint against my bank to an internal complaints committee of the Irish Bankers Federation? No, I would not. They would unerstand the issues better and I am sure that they would want to uphold high banking standards. But would they be as impartial as the Ombudsman? 

A complaint against a solicitor isn't that technical. After some training a non-solicitor would understand the issues very quickly. The complaints are not about how the law is interpreted. They are generally about the fees charged, the failure of the solicitor to actually reply to correspondence and things like the failure to distribute the proceeds of an estate to the beneficiaries.  You don't need another solicitor to assess these complaints. 

The Legal Services Regulatory Authority will have two solicitors and two barristers on it with 7 lay persons. That seems about the right balance.


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## Brendan Burgess (2 Nov 2011)

onq said:


> Where is our legal services ombudsman?
> 
> [broken link removed]



The Minister for Justice decided not to proceed with the appointment as the new legislation would make it redundant according to [broken link removed]


> In a letter to the director general of the Law Society, which has been seen by  _The Irish Times,_ an official in the Department of Justice said  the Minister has decided “no useful purpose” would be served by making  an appointment now in the light of the requirements of the EU-IMF deal.


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## onq (2 Nov 2011)

Thanks for the clarification - its what I expected.
Needless to say I totally disagree with not proceeding.

The Ombudsman isn't perfect but its the low-cost option.
As you noted yourself Brendan, in post #13 above in this thread -



> Neither of the Ombudsmen so far have had a background in financial services. They have both done a balanced job so far.




ONQ.


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## Brendan Burgess (2 Nov 2011)

Not sure it's the low cost option.

1) You complain to the firm itself - this takes a lot of time 
2) You complain to the Law Society - this takes a lot more time
3) You appeal to the Ombudsman - ages more. 

It makes more sense to have two stages 
1) You complain to the firm
2) you appeal their decision to the independent complaints process

Brendan


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## onq (2 Nov 2011)

You seem to be talking time and not cost, although I accept that paid professionals time is a cost if you're paying for it.
This is the whole point - people of limited means may have a lot of time, but definitely don't have a lot of money.

Also why can you not refer the matter to the Ombudsman as opposed to going to the Law Society first?
Are you imply these would be a necessary first low-cost recourse?

I see the Ombudsman as directly working for the consumer.
I see the ILS as keeping its member in line, which may or my not have a direct benefit for the consumer.
I think these are hugely important issues  - the cost of justice to individuals in the State - so I see the Ombudsman as a first recourse.


ONQ.


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## Brendan Burgess (2 Nov 2011)

The LSRA will set up a Complaints Committee. 

So you will go directly to it and cut out the Law Society. Cuts a layer of time, cost and bureaucracy out. 

The Complaints Committee will be more powerful than the Ombudsman.

Same result. Only much more independent and efficient. 

Brendan


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## onq (2 Nov 2011)

Its hard to see a downside with it.

Plus it seems to be better staffed, with legal experts on the board.


ONQ


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## Brendan Burgess (4 Nov 2011)

The [broken link removed] allowed for monitored self-regulation.





> The Legal Services Commission would delegate many regulatory functions to existing and possibly new self-regulatory bodies.
> 
> The Legal Services Commission would be given explicit authority to make new regulations and would have the power to veto the rules of
> self-regulatory bodies.
> ...


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## onq (6 Nov 2011)

So where does that leave the ILS?

Does it become disbanded, or reduced in function to merely being representative?


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