Staying up

The recent boom years have done wonders for the Irish legal market, but more changes are afoot. Ken Murphy reports

“If you want things to stay as they are, things will have to change” – Giuseppe di Lampedusa.
Although Heraclitus famously remarked that “there is nothing permanent except change”, the more subtle approach quoted above from the author of the classic Italian novel The Leopard appeals more to the Irish mind.
In the year that saw the Law Society of Ireland celebrate the 150th anniversary of its incorporation by charter in 1852, the pace and volume of change in the Law Society and in the profession has never been greater. Like most people in Ireland, the 6,000 practising members of the profession did well out of the economic boom of the late 1990s. Indeed, they have had little serious cause for complaint from the more recent economic downturn which, at least up until now, has proved a shallow one.
The boom absorbed the substantial increase in the size of the profession in recent years (an unprecedented 473 new solicitors came on the Roll in 2001 alone), contributing to a distinctly youthful age profile. No less than 47 per cent of solicitors practising today are under 40 years of age. In addition, the gender profile of the profession has been transformed over the last decade or so. Women now comprise 40 per cent of solicitors and over 60 per cent of the profession's annual intake.
The education and training received by the newly qualified solicitors is second to none. With the opening by the Law Society 18 months ago of its e6m (£3.7m) state-of-the-art education centre in Blackhall Place, coinciding with a transformation of course materials and teaching methods, there are good grounds for the belief that the education and training of Irish solicitors is at least on a par with the best in the world.
A further boost to the confidence of the profession came with the enactment just before Easter of the Courts and Court Officers Act, which among other things ended a monopoly of the bar by providing for the first time in history that solicitors are eligible for appointment as judges of the High Court and Supreme Court. The Law Society had lobbied for this for many years to establish a parity of esteem between the two branches of the profession and to widen, in the public interest, the pool of legal talent, ability and experience from which the senior judiciary can be appointed.
Irish solicitors have had rights of audience in all courts since 1971, although very few solicitors exercise these rights in the High Court and Supreme Court. The breakthrough on this issue came when the Law Society persuaded a ministerial working group to discard the fallacy that experience as an advocate was a necessary qualification for judicial office. The experience gained as a litigation solicitor can provide an equally good grounding, provided a candidate possesses the personal qualities necessary in a judge.
Another piece of legislation passed just before Easter, again with the full support of the Law Society, will have a major effect on advertising by solicitors. Introduced by the Irish government in the wake of the army deafness litigation phenomenon a number of years ago, the new Solicitors Act will in effect prohibit any advertising by or on behalf of a solicitor which refers to claims for damages for personal injury (PI). The Law Society supported the government in this regard, as it believes this type of advertising has diminished the public esteem in which the profession is held.
However, the Law Society does not support the government's proposal to introduce a PI assessment board, to which every person suffering bodily injury who wishes to make a claim for compensation must apply for an assessment before the claim can be brought to a court. The declared intention of this proposal is to reduce the 'delivery cost' of the personal injuries compensation system.
The Law Society is fundamentally opposed to this proposal on public interest grounds. There are two major objections. The first is the inherent anti-claimant bias of both the composition and proposed method of operation of the board. The second is the economic nonsense whereby, ironically, the establishment of such a board would introduce a new layer of bureaucracy, cost and delay where none exists at present.
The proposal for the board is the product of a campaign stretching back for more than a decade by employers, public authorities and insurers against the PI compensation system in Ireland. With the level of insurance premiums a politically sensitive issue, the government appears to feel the need to be seen to do something – anything – about the situation.
Reducing the substantial level of fees earned by the legal profession in Ireland from PI litigation is one of the main targets of this initiative. Whether that will be the result remains to be seen. Previous so-called solutions to the 'problem' of the Irish PI compensation system, such as the removal of juries and the reduction of the number of barristers in each case, have failed to reduce insurance premiums.
The high profile of the many judicial tribunals of inquiry over the past decade into various forms of alleged corruption – particularly where politicians were involved – have brought considerable attention to the subject of legal fees, and the number of 'lawyer millionaires' created by the public payment for tribunal work is the subject of regular public criticism. Indeed, the Beef Tribunal of the early 1990s was the worst public relations disaster ever to befall the legal profession in Ireland. A handful of lawyers made a great deal of money, but the entire profession has paid the price in public cynicism.
Finally, the legal profession in Ireland, together with half a dozen other professions, is currently facing a similar review to that which was recently undertaken by the Office of Fair Trading into the legal profession in England and Wales. The Irish Competition Authority's study is welcomed by the Law Society even though a major report on the legal profession was produced as relatively recently as 1990.
Irish solicitors recognise the benefits of competition. Intense internal and external competition is a daily reality for practising solicitors. The profession notes with approval, however, the recent European Court of Justice decision in the Nova case, which illustrates that wider issues of public policy govern the regulation of the legal profession than competition policy alone. Any changes which bear this in mind will be embraced enthusiastically by Irish solicitors and in the same spirit as all of the other changes.
Ken Murphy is director general of the Law Society of Ireland