Legal Services Regulation Bill 2011

http://www.oireachtas.ie/documents/bills28/bills/2011/5811/document2.pdf

The Legal Services Bill is a major overhaul of how legal practitioners are regulated in ireland. It includes: the creation of a new regulator that will take over a number of functions from the Bar Council and Law Society; a new system of processing complaints against legal practitioners; a new system of regulating legal costs charged by legal practitioners with the aim of protecting consumers; a loosening of the rules as to what legal practitioners can and cannot do in business.


I am very pleased with a number of aspects of the Bill:
-the functions of the authority as outlined
-the extremely robust powers of investigation of the Authority
-the formation of a new Authority, completely seperate from the Law Society/Bar Council
-a mandate to redraw codes of practice
-the treatment of excessive costs as misconduct
-a simpler, more credible complaints procedure
-scope for a seperate profession of conveyancing
-multi-disciplinary partnerships
-direct access to barristers


However, no mortal thing cannot be improved, so I will also point out a number of things which I believe could be revisited.

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The memo to the Bill and press releases from the Dept say that the Bill empowers the new Authority to regulate/licence educational institutions to train legal professionals (other than the law society and kings inns). However, I do not believe this power is actually contained in the Bill itself. Section 9 of the Bill is the only reference I can find to training institutions. Section 9(a) says that the Authority will keep legal education under "review". This is a very strange word to use, I have never seen it used like this in a piece of legislation before. To my mind, requiring the Authority to keep the provision of education under review, does not imply any power to determine or even influence the provision of education. It appears that far from empowering the Authority to licence new educational institutions (which I believe is a condition of the EU/IMF deal) or regulate existing ones, this Bill only requires/permits the Authority to observe the provision of education by the existing monopolies. The Bill also requires the Authority to draw up a report on legal training, but there is no obligation to follow up this report with action. This I feel is a mistake. The power to regulate the provision of legal education/training must be a fundamental part of the Authority's authority. We are leaving its role in this area unclear for years while reports and new legislation is drawn up (or indeed may never be drawn up). We should state in law right now that regulating/licencing legal training is a function of the Authority.

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There has been much comment about the independence of the new Authority from ministerial control. I understand the Dept.s desire to have a lay majority, but I must agree that the model proposed does seem to give a great deal of power to the Government of the day. It is not an insult to the present government to say that it is undesirable to give ministers too much control over the judicial system -there have been less scrupulous governments in the not very distant past that misused organs of state for their own ends (Phonetapping, intimidation etc)-it is not a good idea to give the Minister this level of control over the Authority, regardless of how trustworthy the current Minister is.

Instead, I would propose that only 4 members of the Authority be nominated by the Minister and the remaining 3 be appointed by some other power. Perhaps the Competition authority could have a seat at the authority. Personally, I would like to see the President send at least a couple of nominees to the authority -independence of the judicial system is after all a constitutional imperative and therefore a fit role for him to involve himself in. Furthermore, his national mandate and independence from Government would give this arrangement independence and legitimacy at the same time.

Likewise, the power under section 8(12)(d) to remove a member should be exercised jointly by the Minister and another power -perhaps an Oireachtas Committee or the Authority itself. Again, this is not a criticism of the current Minister, but it is prudent to prevent any one office having control over this authority.

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The Bill leaves the door open for further legislation to create a seperate legal profession of conveyancer. Given the problems related to conveyancing, in particular the accumulated cost of multiple malpractice cases, and the expensive insurance premia for practicing legal professionals, it is very imporant to get this right. Reducing the risk exposure of the profession to unscrupulous practitioners will reduce insurance costs and radically alter legal costs. A seperate profession of conveyancing would be of benefit, but I believe we should go one step further and create a clearing house for property. In financial markets, clearing houses are heavily regulated conduits of property between individuals. They transfer ownership and payment between the parties, and do so reliably, cheaply and safely. The same cannot be said for the practice of conveyancing in the property market by solicitors. The current system has seen several solicitors behave recklessly at the expense of clients or their fellow solicitors. If a clearing house for property could be established, then solicitors could carry out the due diligence/negotiating functions they currently perform, but then the actual transaction could occur through a central authority (perhaps attached to the Land Registry) which could be relied upon not to run a client account deficit. Of course, solicitors would lose out on the interest payments from handling client funds -but they would also benefit from reduced insurance premia. I believe this is an innovation that would dramatically improve conveyancing and legal costs while actually improving the exercise of property rights. It could also become a source of information to the Revenue.