Solicitors

Modern people, sportsmen/women excepted, are most at risk of serious injury when travelling on the road. The energy bundled in a motor car, or other vehicle, is considerable. If that energy is suddenly blocked, which is what happens in a typical car accident, it must go somewhere and, unfortunately, it sometimes goes into us. Then you are injured and the nature and extent of that injury is determined by chance.

Make no mistake; as a society, we have planned these accidents. Otherwise we would prohibit such forms of travel. Instead, we build lots of roads and we promote the use and sale of motor cars.

In this sense, it is a misnomer, to call these events “accidents”.

Take a circus, or theatre, knife-thrower.  If the knife thrower “accidentally” throws the knife and stabs his (typically) lovely assistant in the heart, we expect that the police will arrest him and that he will be convicted of a crime. We reject the idea that this is an accident. His implied position, that his only fault lies in that last unintended lapse in his wrist, is rejected.

We know that he arranged everything and we are reasonable in considering that, perhaps, or even probably, he had no lapse whatever in his wrist and intended the injury/death.

It is, among other things, this knowledge of a social responsibility for road traffic accidents that we see expressed in the fact of a Government “4^th Road Safety Strategy” or that the EU is holding a “Road Transport Safety Conference on Serious Injuries” in Dublin.

It is a fact, and we should know it, that, as a society, we can suffer mental aberration on these matters. (“Mental aberration” is a polite term for madness).

I do not just mean politicians’ proposals for Irish farmers to be permitted to drink and drive.

I do not just mean politicians claiming that workers allegedly neglecting road safety be allowed to get on with the job and be freed from “red tape”.

I mean it is a form of mental illness, hypocrisy certainly, to plan for injuries to happen and to claim, in the Constitution, that the State will vindicate the person (meaning bodily integrity) of citizens (and others) and then to establish a statutory body (the Injuries Board, a.k.a., the Personal Injuries Assessment Board) (and maintain it) that seeks to ensure the lowest possible level of success in delivering compensation to those injured persons, and to go further; to shrink the window of opportunity for the injured person to effectively make a claim for that compensation to the inadequate time of two years.

In fact, to term all of this “madness” is politeness.

We should remember that we were not always as “mad” as we currently are. We have a “legal system” that includes a cohort of persons intent on overcoming the State’s lunacy.When it comes to car accidents solicitors (and barristers) are those working for the common good. The persons who intentionally hobbled them in doing what they try to do, namely, vindicate the bodily integrity of road accident and other personal injury victims, cannot be categorised as mad. They are simply working against the common good.

Our Ref: EMcG            Your Ref;                                    8^th October 2012

Alan Shatter TD

Minister for Justice and Law Reform

St. Stephen’s Green

Dublin 2

Re: Legal Services Regulation Bill 2011

Dear Minister,

I am writing this open letter to you about one element of your proposed legislation, the Legal Services Regulation Bill 2011. That element is the errors in the Bill, relating to legal costs.

What is wrong with your Bill, relating to legal costs? Well, it correctly assumes that some reform is needed in the area. Ever since early Victorian times, a solicitor has had obstacles put in his/her way to recover legal costs. You already know of those obstacles. Allied to that, the calculation of legal costs has been rendered so abstruse that even an expert like yourself has fallen foul of the rules applying to their calculation. See the judgment of the High Court in Gallagher, Shatter v De Valera (1983) HERE.

I do not think that your expertise has been improved with the passage of time since that judgment. You were wrong then and you are wrong now, for different reasons.

So, what IS wrong with your Bill?

1.   Litigation is expensive. Nothing in your Bill will change that. Of course, your Bill may reduce legal costs from a category of “very expensive” to “expensive”, but it will not make those costs “affordable”.

2.   Worse than that, the Bill ignores reality. It assumes that, in every litigation case, the solicitor’s client pays his or her legal costs. You and I know that that is not the norm.

3.   In Ireland, and the UK, the judiciary, generally, follow a practice of awarding costs of the action to the victor.

4.   This is a two edged sword. It makes litigation a very risky business; the costs, if you lose, are high. On the other hand, it encourages certain forms of litigation. It encourages victims of abuse of power to challenge their abuse. I am not just referring to abuse of power by office holders like yourself; I include abuses by people who have more money than the victim. It is easy to dominate people who lack the resources to fight back, particularly in a society like ours where, rightly, we insist that disputes are to be settled only in a court system and not by direct action.

5.   Encouragement is not sufficient to deliver justice; for that, a victim also needs help from a lawyer or lawyers. If that help is not forthcoming the encouragement is a disservice. The victim might become a litigant without representation (a “lay litigant”). (There are more and more lay litigants appearing in the court system nowadays. They represent a serious problem for the courts, not least because a case with such a litigant takes much longer than otherwise).

6.   A litigant, without representation by a lawyer, is gambling on winning and is increasing the chances of losing. At the same time the litigant is likely to suffer very high levels of stress.

7.   Your Bill, overall, is likely to increase the number of lay litigants.

8.   That fact alone is an indictment of you. It should be your primary duty to deliver justice to the citizens and residents of Ireland. The place where they get that justice is in court and you should facilitate that court justice. The major problem in this area is a lack of proper civil legal aid. A lay litigant is not a match for an opponent with legal representation. In short, the court system cannot run correctly without lawyers.

9.   You and your predecessors have had your work done for you by Ireland’s lawyers. By “work”, I mean discharging your primary duty. Because the courts will award costs to successful plaintiffs Ireland’s lawyers consistently act for indigent plaintiffs who are victims of abuse of power. The plaintiffs are the clients of the lawyers, but they are clients who, generally, do not pay their own lawyer. Those lawyers assess and filter the injustices in our society and advance claims in court for people who otherwise would suffer injustice without redress. This “system” is inefficient. Practising lawyers cannot undermine their livelihood by taking all such cases on a “deferred fees” basis. They inevitably select those with the best chance of success. (They are the “marginal” cases beloved of economists.)

10.   Your Bill fails to acknowledge this. Worse, it pretends that no such activity takes place. It pretends that you are the defender of those plaintiffs as they “pay” for those legal services.

11.   The State has established, nominally, a system of civil legal aid. In practice that delivers, very slowly, legal services only to indigent family law litigants. Nobody knows this better than you; your livelihood, as a lawyer, has been derived from family law litigation representing persons who do not qualify for legal aid.

12.   Who, then are the beneficiaries of your Bill’s provisions relating to legal costs? The litigants who lose are the beneficiaries.

13.   Who are the litigants who lose? Ironically, lay litigants are, generally, losers, but the big losers are the companies in Ireland’s insurance industry, and, on occasion, the State. These are the most litigious parties in Ireland’s court system. It is inevitable, particularly in the case of the insurance companies, that they will lose. They are contractually obliged to indemnify their customers when claims are made against the customers. They, generally, cannot decline indemnity just because the customers’ actions are or were egregious and inflicted loss, injury and damage on innocent plaintiffs.

14.   So, they should settle those claims. But they do not. At least, they do not settle enough of them. There are reasons for this, but this is not the moment to canvass those, disparate, reasons.

15.   There is one reason worth mentioning; sometimes the insurance company or even its insured, calculate that the victim plaintiff is vulnerable to pressure. The available pressure to apply is the stress generated by litigation. Litigation and its oppressive costs are weapons in the contest between plaintiffs and defendants.

16.   Your Bill is a contribution to that contest. You have weighed in on the side of the defendants and, consequently, will drive more injured  victims beyond the “margin”.

Yours faithfully,

McGarr Solicitors

Accidents are confusing. Meeting the unexpected (or just the unwelcome) is disturbing. Many personal injury victims have difficulty orienting themselves after an accident. For some, the difficulties are greater than others. Some accidents are more unexpected than others. Road accidents are relatively common, whereas to be hit by an object falling from a defective building is very unusual.

Some injuries bring mixed emotions; accidents at work, for incident. It is difficult to bring yourself to sue your employer even in the absence of simple fear of losing your job in retaliation.

Nonetheless, the principal thing for an accident victim, whether injured in a road traffic accident, an accident at work or in a public liability accident, is to take the initiative.

This is both a large move and a small move, but it is foremost exactly what the law requires. In Ireland, (and other Common Law jurisdictions), civil actions are adversarial, not inquisitorial. There will not, normally, be “an inquiry” into your accident or your injury.

There will, instead, be a contest and you, the victim, will be in the thick of it.

You cannot prevail in a contest unless you take the initiative. This word has two meanings; it means to start something, but it also means to dictate the run of the play.

Initially, all you need to do is to start (the) process, then, you leave it to your lawyer to dictate the run of the play.

What is the process? It is whatever the extent of the injury requires. For a lawyer, the question of liability is to the fore; for a victim the possibility of recovery from injury is to the fore. The lawyer is right to think of liability. Without fault and proof of fault, there will be no victory in the contest. But the norm is not to have struggles over liability. (They do happen). It is to struggle over the claimed extent of the injury. (Sometimes there is no struggle).

The process is twofold; medically, getting better, and, forensically, documenting that process.

At McGarr Solicitors, we tell our injured clients that they need four things; a medical report, €45, a completed PIAB form and a solicitor.

We leave the “getting better” to our clients and their doctors. We look to the forensic documenting. In the Personal Injuries Assessment Board system that means, in effect, the production of a medical report. In the Courts system it may mean a great deal more.

1. I have been injured; will the person who injured me, or his/her insurance company, hasten to fully compensate me?

No, they will not. This is human nature and also implied in the social arrangements under which we live.

2. Will the Injuries Board ensure that my interests are fully looked after?

No, it will not. It has a limited focus. It only addresses one question; the level of compensation the injured person ought to get. It does little to ensure that you will actually get your compensation.

3.         How can that be?

An injured person will get nothing unless he/she can prove, if necessary, that some other person has been at fault and that the injury results from that fault. The Injuries Board expressly excludes consideration of fault.

4.         Surely that’s a good thing?

Yes, if the person who injured you expressly admits the fault.

5.         Will that happen in the Injuries Board system?

No, it never comes up for mention.

4.         Who will look after my interests, then?

You will.

5.         How do I do that?

By fully understanding what is implied in the Injuries Board system.

6.         What is implied in the Injuries Board system?

The Injuries Board system exists to ensure that any legal costs incurred by you as a result of your injury will be borne by you and not by the person who injured you.

7.         Is that true?

Not completely. That’s how the Injuries Board started out, but it has changed its mind. It now makes an effort to make your opponent pay for your legal representation, or some of it, if you, the injured person, are a vulnerable person.

8. I have been injured. Am I not vulnerable by that fact alone?

No, not in the view of the injuries board. In the view of the person from whom you are trying to extract compensation, or his/her insurance company, yes, you are vulnerable, but that is advantageous to them and they owe you no duty to reduce your vulnerability.

9.         I am inexperienced in these matters. Am I not vulnerable by that fact, then?

No, not in the view of the injuries board.

10.       What is a vulnerable person, in the view of the Injuries Board?

Someone who needs legal advice to make the application to the Injuries Board.

11.       But surely no such advice is necessary?

The Injuries Board thinks it is sometimes. If you are a vulnerable person.

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

“It will be convenient to have a name for the ideas which are esteemed at any time for their acceptability, and it should be a term that emphasizes this predictability. I shall refer to these ideas henceforth as the conventional wisdom.”

So wrote John Kenneth Galbraith in 1958 when he coined the phrase “conventional wisdom”.

The idea is so good that he was not the first to recognize the truth in the phrase; that much of what passes for ideas is real only because it has been agreed to be so.

If that truth were to be again forgotten a criminal legal aid lawyer would be a prime candidate to re-discover its force. As a solicitor on the Legal Aid panel I feel the power of dislocation it engenders when I read HERE that some of my predecessors have had to represent pigs, goats, rats and other animals.

“All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence. …”

A lay person might (on reflection) wonder (or not, on reflection) how the lawyer is to take instructions from the client, a phrase and concept itself wonderfully conventional. We lawyers don’t need the client to tell us what we are to do; we tell the client what the client needs and proceed to do that. So, if a pig is facing a murder rap we undermine the evidence and so on, depending on the character of the charge, not the character of the accused.

Nobody knew this better than Socrates. He lived an unconventional life and the first charge against him read;

“Socrates does wrong and is too concerned with enquiring about what’s in the heavens and below the earth and to make the weaker argument appear the stronger and to teach these same things to others”

This was an accusation that he, Socrates, was a non-conformist, something he consciously sought to be. In effect, it accused him of being himself.

There are some charges you just can’t beat; being a pig must be one.

“Into the face of the young man who sat on the terrace of the Hotel Magnifique at Cannes there had crept a look of furtive shame, the shifty, hangdog look which announces that an Englishman is about to talk French.”

So starts “The Luck Of The Bodkins”, by P. G. Wodehouse. His triumph is to continue writing with the same skill, as in the first sentence, for the rest of the book. He does something else; he imparts meaning to the world.

Every litigant in court must do the same and invariably a litigant must convey that meaning in writing, either in pleadings or in affidavits or both. The premier mode of writing to convey meaning is narrative. It not only implies a point of view, it implies understanding. A litigant without understanding of his/her case will lose it.

This is what my computer dictionary/wikipedia has to say about third party narration, that is narration by “… an unspecified entity or uninvolved person…”.

“Traditionally, mainstream fiction with third person narration operates near the middle of the subjective/objective spectrum, alternating between objective and subjective reality and also offering alternating perspectives of the main characters. This allows the narrator to present both the objective reality and the subjective perspectives of the various characters on that reality. Given this information, the reader can then judge for themselves (without being told outright by the narrator) whether the character is a hero, fool, or other type based on the way they perceive and interact with the established reality.”

In “Law and Philosophy”[2007, Oxford University Press] one essay, with the title “Objectivity and Value: Legal Arguments and the Fallibility of Judges”, by Stephen Guest, runs for 27.5 pages and we need all of them. It is required of judges that they be objective, otherwise they cannot be wrong and the hierarchy of courts giving opportunities for appeals implies that judges can be wrong.

From the litigant’s standpoint, to expect him/her to relate “just the facts” is to ask him/her to abandon meaning. As my computer dictionary/Wikipedia puts it;

“Naturally, any being that is omniscient is supernatural, or God-like, and must hold back information due to the constraints of time and the potential to overwhelm the reader.”

We must be selective in the facts we choose to relate and, of course, nobody is omniscient. What is not obvious is that, in litigation, the applicable law determines what are the relevant facts. Unless you know the law you cannot know the facts.

So, that’s what we need lawyers for; to write the pleadings and affidavits of the litigants and to make sense of the world.

Ireland is a small place; we should be temperate in our comments because we may offend where no offence is meant and our reduced “degrees of separation” makes the comment fester.

Bearing that in mind, see this newspaper article from the Sunday Business Post of last year. The subject is legal costs. This writer has much to say on the subject, which is not to say the writer is always right.

However, the writer is confident of this; there is a great deal of hoopla dished out on the subject. This post is a small attempt to look at some proposed nostrums and the cited Sunday Business Post article is useful for collecting them together in a “gentleman’s cabinet of curiosities”.

1.       Assess costs by reference to the work actually done. No reasonable person could dispute this. However, as Milton knew,

“They also serve who only stand and wait.”

Lawyers spend an inordinate amount of time standing and waiting, sometimes both. One solution to this aspect of things is that lawyers might charge by reference to time expended. In short, while they are waiting, “doing nothing”, they are entitled to be paid. Taxi drivers operate to some extent on this principle. So, what looked like a reasonable proposition needs refinement by the careful definition of what is meant by “work”. Then we need only make the “assessment” of value. The work of lawyers is not always equal or comparable. That is, some lawyers produce better work than others. (This can sometimes be explained by the role the lawyers are playing; in civil litigation, generally, a plaintiff’s barrister has a greater burden than a defendant’s barrister). One expression of this is to say that, not only do you need to know how to hit the nail on the head, you need to know which nail to hit and when to hit it.

2.       Assess costs by reference to the work appropriately done. Again, no reasonable person could dispute this but who is to decide what is appropriate? Generally speaking, following convention is a reasonable guide to doing appropriate work. (Another solution is that adopted by the Taxing masters of the High Court, who have assigned to barristers the job of defining what is appropriate work to bring an action on for trial. Of course, the Taxing masters are themselves an answer to the question.)

3.       Liberalise conveyancing services. This writer does not know what this phrase means.

4.       Allow clients to switch solicitors. Currently clients may have any number of solicitors they want. They may change their solicitor in any particular matter. What the proposal really means is this; that the client be permitted to change solicitor without reference to the fact that he or she owes the solicitor outstanding fees for work done in the matter. Currently, solicitors rely on a lien on papers to secure them their fees. (The client may withdraw instructions but will not get his or her documents or papers unless the outstanding fee is paid). If solicitors lose that lien they will, inevitably, require payment in advance for their services. That will have social consequences generally considered to be undesirable.

5.       Give the public direct access to barristers. Barristers, generally, do not want this and in due course, neither will a select group of the public – those members of the public who have accessed barristers directly. This last comment will be wrong, in time. That time will arrive when barristers have sufficiently changed to become very like solicitors. Then, they will take and manage client money; they will require larger premises and more staff and they will require to pay more for their professional indemnity insurance.

6.       Permit partnerships for barristers. Why not? Chambers of barristers in the UK very often deliver services as if the chambers were a partnership, but the Law Library in Dublin does the same. These are structures to pool resources and reduce costs. The missing element is the allocation of loss, due to wrongdoing or negligence, on a group rather than a sole practitioner. If barristers formed partnerships it would be for the presumed benefit, to them, of attracting more clients due to the extra security of the collective responsibility, but that is predicated on the supposed inadequacy of current professional indemnity insurance for barristers. If it is inadequate that problem should be addressed immediately.

7.       Increase the numbers of lawyers. Currently, as many as 1,300 solicitors are unemployed. Practising barristers are self employed. They are not so much unemployed as underemployed. Some are much more underemployed than others. Why generate more unemployment?

This subject of legal costs is reminiscent of the “discovery” of “Ida”, a 47 million year old fossil. The press release promised much as Time magazine remarked;

“All of which renders the press release touting a “revolutionary scientific find that will change everything” absolutely true — as long as by “everything,” you mean “whether the branch of the primate family that includes monkeys, apes and humans comes from the suborder strepsirrhinae or the suborder haplorrhinae,” according to the PLoS One paper. And by “change,” you mean “adds information that may or may not help settle the question, but whose implications won’t be known for a long time in any case.”

(See the New Scientist article on the topic HERE, paying close attention to the diagram HERE.)

The Council of the Law Society of Ireland has proposed that the members of the Law society vote for the following proposal:

“That [the members] approve[s] the recommendation of the Society’s Council to provide financial support to the Solicitors Mutual Defence Fund…”

Surprisingly for lawyers, the Council seems not to recognise that it carries a risk of non-persuasion. This is evidenced in its several failures to treat the members respectfully.

Why did the Council submit the proposal to the members, rather than adopt it at the Council? The Council elided the question, but the answer is very relevant. Many of the Council members are also members of the SMDF and would therefore, be conflicted. A vote by persons with a conflict of interest would be easily overturned in the appropriate forum. In short, the Council could not lawfully adopt the proposal.

The Council has not been restrained in its advocacy of the proposal. It has urged its adoption on the Law Society members. It is using the resources of the Law Society to procure its adoption. It is doing this without declaring the conflict of interest of the Council’s SMDF members. It is the fiduciary duty of corporate directors to avoid conflicts and they are further bound to disclose them.

The proposal is of doubtful legality. The SMDF, the Council of the Law Society says, is a private independent body, not controlled by the Law Society. The funding of the SMDF bailout will not be voluntary. It will be enforced by a planned refusal of the Law Society to make it a condition, of the receipt of an annual practicing certificate, that solicitors pay a levy for the bailout.

The Council has, it says, received legal advice from Counsel that the proposal is lawful. It has not disclosed that advice to the members, and clearly the Council has no intention of disclosing it now. It is not credible, without full disclosure, that the Council has such advice.

The claimed source of the law validating or empowering the proposal is Section 26 of the Solicitors (Amendment) Act 1994. A bailout of the SMDF was never in the contemplation of the Oireachtas in passing Section 26. None of the provisions of Section 26 authorise the Council’s proposal. Indeed, special mention, in Section 26, had to be made of SMDF because it does not fit with an essential ruling idea in the Section; that solicitors be indemnified. An indemnity, legally, implies a right to indemnity, usually in contract. It is generally admitted that the members of SMDF have, and had, no right to indemnity from SMDF; its benefits were available only at the discretion of the directors of SMDF.

There is something more immediate to throw the Council’s proposal into questionable light; is the SMDF insolvent?

The Council asserts it is, but there are reasons to doubt this. The Council itself discloses that the regulations governing SMDF preclude the SMDF directors from making any payment resulting in insolvency. In addition, the SMDF itself has not claimed it is insolvent. This is not surprising because there could be malign consequences for the directors of SMDF if that were the case. The issue is not a minor one; much of the Council’s case is predicated on the un-foreseeability of the actions of the inevitable liquidator of SMDF. But, if there is no insolvency, there is not likely to be a liquidator. (For lawyers, “insolvent” has a precise meaning; that the entity is unable to pay its debts when they fall due.) A letter from SMDF to some practitioners dated 27^th May 2011 is confirmation that SMDF is not insolvent; it says…

”It should be understood that the Fund has no immediate difficulties…”

If there is a problem in the SMDF, why do its members, including those on the Council of the Law Society, not solve their own private problem?

Even if the SMDF is not insolvent, it is possibly suggesting that it will not pay out on some at least of valid claims against solicitor members of the SMDF. Why do the members not top-up the “mutual fund” that is the SMDF, to meet those claims? On the figures provided by the SMDF, this would cost the members approximately €1000 per year. According to the Council of the Law Society, the prospects of them agreeing to this are “slim”, but they have not been tested.

Separately, the members of the SMDF could seek real professional indemnity insurance elsewhere. They will have to do this anyway at the end of the current year; the SMDF says it will not take on any business after this year; (we now see “business” here is a misnomer).

If SMDF members have poor claims histories they can apply to enter the “Assigned Risks Pool”, a device provided for in the Solicitors (Amendment) Act 1994. This allows solicitors with very poor claims records to continue in practise.

Consequently, there is no immediate problem. According to the SMDF, it has re-insured 100% of the risks for this year. In previous years it re-insured 90% of the risks. We do not, in the light of those facts, know why SMDF is taking the extreme step of ceasing “business” at the end of this year, but it is.

Here again, the Council of the Law Society has failed to properly inform the members as to what the problem is, and its implications.

The members of the Law Society should vote no to the Council’s proposal.

The Irish solicitors’ profession seems peopled by rabbits. The Irish Bar is preparing to make submissions relating to the forthcoming IMF/EU diktats. It rolled out the Attorney General in a conference at the weekend just past, to invoke pious words about the need to preserve the missionary-like zeal of “pro bono” barristers. (This writer approves of such barristers, when he can find them.)

The Law Society of Ireland, however, is wasting energy on the SMDF. More importantly it appears to be ignoring the need to prepare for the IMF/EU issues.

What are they? Because the IMF is busy and not often in Ireland, it, of necessity, has to find available domestic criticism of solicitors as ammunition to fire off. They believe they have it in the report of the Competition Authority of December 2006 “Competition in Professional Services; Solicitors & Barristers”.

The good news for the Law Society is that the IMF/EU ammunition is, in every sense, shoddy. (“Shoddy” was a cloth material for army uniforms for the Union soldiers in the American civil war; think of the fluff from the filter of your tumble drier and make it on an industrial scale. Now shape it into a garment. Now, send its wearer into the rainy winter).

At paragraph 5.274 it states the following;

“In seeking to limit excessive and costly litigation in relation to personal injuries, the regulations carry the risk of overly restricting advertising for other legal services. Other measures have recently been introduced in relation to personal injury claims, such as the Personal Injuries Assessment Board (PIAB) and the Civil Liability and Courts Act 2004, both of which also seek to control unnecessary and costly litigation, and consequently there is less need to rely on advertising restrictions as a means to limit personal injury litigation.”

This farrago of bad ideas indicates this; we are likely going to find ourselves looking at solicitors’ advertisements on the backs of busses.

OK, so what? So this; the IMF/EU nostrums will carry an outrageous agenda, as expressed in paragraph 5.274, that victims of personal injury should be hindered in the search for justice (a policy already established).

That is the point of attack the Law Society should be focusing on. It is incapable of doing so.

(The Maya independently invented the wheel, but could find no use for it.)