1. Legal education is expensive. It is not desirable that a person educated for legal work should fail to gain employment. (That statement is too broad; like medical practitioners, some legal practitioners should not be working, but the statement is true generally). The Chairman of the Bar Council of Ireland admits the profession (he means the Bar) is “pear shaped”. By this he means a small proportion of barristers get most of the work (and most of the income). Any expressions of concern from him at this should be taken with a pinch of salt; the Bar Council of Ireland subscribes, and always has, to the Social Darwinist notions of Herbert Spencer. Whatever the legal professional equivalents of thrift, hard work and sound family life are, the Bar Council of Ireland attributes the road to professional success to them.
2. The public is not demanding the Bar Council give up its delusions. No journalist would file a report to the effect that it was, but journalists do report that the public is demanding regulation of the professions. This is not credible. Ordinary people do not express themselves like that; they demand justice and fairness. They do not think that “regulation” delivers justice and fairness and therefore do not make demands for regulation.
3. It is said, or implied, that there is insufficient work for all lawyers. This may be true, but it remains to be demonstrated. A growth in numbers in the legal profession may reveal that, previously there were insufficient numbers of lawyers, rather than show there are now too many. The subject of interest is “work” not “numbers”. It is an unsustainable proposition to say there is not enough work for Irish lawyers. It is true only by reference to a perverse and reactionary definition of “work”. It is predicated on the further dubious proposition that levels of injustice in Ireland are very low. Where there is injustice there is work for lawyers. (Getting paid for that work may be problematic, but that is another issue).
4. Consumers have no confidence in the legal system. The reason for this is that they have little or nothing, as consumers, to do with the legal system. (A “consumer” is a purchaser of a commercial product or service). Lawyers work for consumers, who become their clients, if the consumer has a claim arising from a defective product or service. Consumers are a vanishingly small cohort in lawyers’ clients. The main reason for this is not that Irish products and services are top-notch; it is that the value of the claim does not usually warrant the investment of money needed to vindicate the disappointed consumer.
5. It may be true (who knows?) that clients have low levels of confidence in the legal system. Perhaps they are sceptical of the likelihood of being treated justly in an Irish court, based on newspaper reports of judgments from time to time. They may even have little or no confidence in lawyers, having gone through a bruising family law case. It cannot be true, however, that they have little or no confidence in their own lawyer; they hired him or her and would not have done so if they positively had no confidence in him or her. In any event it is probably misleading to use the term “confidence” in this context, something many clients would probably recognize intuitively. The emotion felt is probably closer to hope than anything else, or, in the case of very inexperienced clients, expectation. “Confidence” is something based on past experience; most clients have little experience of the legal system. What of a client accused of the offence of dangerous driving? How can his/her emotional state be said to be one of “confidence”, when the most positive outcome may, to the knowledge of the client, be one where public humiliation is attenuated by the lawyer speaking for the client, rather than snatching an acquittal from the situation? Nobody, save the more immature readers of Erle Stanley Gardner, expects a lawyer to have only innocent persons for clients.
6. The tribunals, each and every one of them, came into existence because of profound failures of the political system. The level of payment to the lawyers in the tribunals was a direct result of the influence of politics on the legal world and not the reverse. The various Attorneys General (political appointees par excellence) were at the heart of the fixing of payment to those lawyers.
7. The legal profession, both branches, prides itself, (often without justification, but sometimes correctly) on adjusting its fees to the personal situation of the client. What is wrong with that process? If a poor person is not charged a commercial rate, who is to complain? If a rich person is charged a rate commensurate with his/her ability to pay, his/her complaints are without foundation. Citing as authority, on the subject of fees, what some barrister says of solicitors (or vice versa) is the journalistic equivalent of making a point by telling a “Paddy the Irishman, Paddy the Englishman…” joke.
8. The customers of the big city firms of solicitors are sophisticated users of legal services. They do not need external protection. The people who need protection are the employed (and junior partners, if such they be) solicitors of the big firms. Hand-wringing about fee padding is just that; hand-wringing. To say this, is not to condone fee padding, but the causes and the persons effectively responsible should be defined correctly. A workplace that measures the value of work, by reference only to income, is a bad workplace. The “owners” of the practice are answerable for that. Such persons do not have to institute fee padding themselves to get the benefit of it.
9. The “general public” has no opinion on the remuneration of lawyers. It is a political myth that it does. It is one of many political hobbyhorses generated to provide a subject for “public” debate to raise a political profile or deflect attention from real political failures or shortcomings.
10. Competition in the delivery of legal services is not necessarily a good thing. Indeed, “competition” in any field is not necessarily good. Who wants economic competition in the delivery of medical services? Some services should not be measured by the cost of the service. They should be measured by the quality. Unthinking economic notions like “competition” can imply a race to the bottom.
11. What economic commentator will experience the conduct and outcome of major litigation and suggest it should be judged on an “economic” perspective? Few. Litigation more closely resembles a military operation. In 1863, in the course of the US Civil War, General U. S. Grant telegraphed Colonel Murphy of the US Federal Army at Holly Springs telling him to post more guards. The Colonel went to bed, neglecting to do so. The Confederates, that night, burned Federal stores at Holly Springs to the then value of $4,000,000. A failure like that is not an economic issue; it is a personal failure. There are many current Murphys who ought to, but do not, face court martial as Colonel Murphy rightly did.
12. Even the “economists” like Mr. Charlie McCreevy and Ms. Neelie Kroes adjust themselves (quiet differently in the case of those individuals) to reality. Something can be theoretically anathema but practically acceptable to Ms. Kroes, it seems. So much for theory.
Another excellently cogent and well written argument. My eye was particularly drawn to your comments in paragraph 10 about competition and the awarding of business on the basis of price alone.
W.Edwards Deming (cited by many as the ‘father’ of Total Quality Management) called on businesses to cease the practice of awarding business on the basis of price alone. He argued that the dollar price wasn’t the total price of any deal and there were other qualititative and intangible costs associated with the development of a sound commercial relationship that would provide basis for mutual success.
He was explicit that awarding business on price alone lead to a race to the bottom as providers of goods and services cut eeked out as much profit margin as they could at lower cost. (One of his specific examples was butchers who added fat to minced meat to bulk it up because fat was cheap).
So, if someone providing me with advice in contentious business is undercut on price by a competitor, I have to ask myself what the legal equivalent is of adding fat to the mince. What corners are being cut to reduce the hours invested by them in the work (to allow them deal with more business)? Has the cheaper counsellor invested more in Wikipedia and Googling than their CPD studies or the simple ‘shoe leather’ expenses involved in research?
On the other hand, if I am charged a silk purse rate for sow’s ear advice and/or slapdash treatment then I would be right to be indignant, for the advice given or service provided would not have been of quality commensurate with the expectation set by the bill. I would be reasonable in forming the opinion that not only was the mince fatted in that case, but that the legal cat I had engaged was also looking decidedly plump around the middle.
It is from those cases that the popular press spin their ‘fat cat’ stories and calls for competition. Such calls seem always to be a call for competition on price. However, it is also of equal, and in my view greater, importance to consider competition on quality of service and a host of other ‘softer’ issues.
Unfortunately headlines like “Reasonably priced lawyer listens closely, provides astonishingly cogent advice and a cup of tea with a chocolate biscuit, route to effective remedy found.” don’t sell newsprint.