Regulatory Reform for a 21st Century Legal Profession
- CHECK AGAINST DELIVERY -
Regulatory Reform for a 21st Century Legal Profession
- Friday, 6th July 2012 -
Mr. Alan Shatter TD
Minister for Justice, Equality & Defence
I warmly welcome you all to this conference on the theme of "Regulatory Reform for a 21st Century Legal Profession". I welcome too the active interest being shown in the conference by members of both legal professions, consumer and competition interests and other stakeholders.
The purpose of the event is to distil a sense of how legal professions in other common law countries have experienced modern regulatory reform. I am sure that experience is profoundly instructive. The questions-and-answers session that follows will allow us to clarify issues of importance. And today’s event will enhance the process of consultation in relation to the Legal Services Regulation Bill.
In this jurisdiction, the regulation of a more open legal profession, greater transparency in the charging of legal costs and the removal of restrictive practices in the provision of legal services have been matters of persistent policy concern. There is a plethora of reports and copious submissions relating to various aspects of proposed change in these areas spanning the last thirty years. These change efforts have enjoyed only limited success notwithstanding a number of very positive steps that have been taken by the professional bodies in addressing some of the areas concerned including in the relevant professional codes of conduct.
Today, we are in a prolonged but nonetheless acute phase of a challenging and global economic crisis which is proving not merely to be a catalyst for change but a change imperative. The economic crisis now permeates every sector notwithstanding previous perceptions, deserved or not, that some professionals such as lawyers, bankers, doctors and dentists were "sheltered" from such realities. We are also several decades into perennial advances in business and communication technologies which have utterly altered and internationalised the way business is being conducted, be that in the legal or other spheres. These technologies have also emboldened our clients in terms of greater access to knowledge and alternative providers, transactional efficiencies and much enhanced transparency in relation to comparative costs. We are also seeing that less costly technologies have commoditised niche services across all sectors and made it advantageous to provide such services in a more competitive way through external providers. Like firms in the United States and Britain, Indian firms are now offering "e-lawyering" services and solutions online. Some of these new services have been established by alumni of the National Law School of India University. Today’s challenges to the established order of things for the legal professions are, therefore, at least as techno-logical as they are Tesco-logical.
The accumulating catalysts of change – be they on the economic, the technical, the structural, the consumer, the global or the competition fronts – are not merely anecdotal in nature but have been analysed in great depth by a range of authoritative sources. Over a twelve year period Dr. Richard Susskind, the well-known consultant in law and technology who holds several professorships including at the University of Oxford, has produced three successive works whose respective titles pretty well speak for themselves in tracking the momentum of change – these are, The Future of Law, Facing the Challenges of Information Technology (1996), Transforming the Law (2000), and The End of Lawyers? Rethinking the Nature of Legal Services (2008). Dr. Susskind has developed a model based on three key questions about how legal services are changing right now, namely, (1) what will legal services be like in the new and emerging paradigm, (2) what technology will deliver these new legal services, and (3) who will lead the paradigm shift. While I am not even going to try to elaborate Dr. Susskind’s expert hypotheses which are in any event open to learned debate, I avail of them to put it to this conference that our legal services sector would wish to be to the forefront of any emergent paradigm shift in the provision of legal services. This is not something beyond our reach if we are prepared to create and embrace opportunities for change, including those being provided under the Legal Services Regulation Bill, while retaining the best of what our traditional legal business models have to offer. All in all, many elements of modernisation and reform that would have been seen as "optional extras" even in the mid-2000s, such as outsourcing or alternative business structures, are now mainstream initiatives being implemented across a number of competing common law jurisdictions. We can expect to garner some perspectives on this phenomenon in the course of today’s conference. The outsourcing of law-related services continues unabated and it is not by accident that for many European legal firms the Indian cities of New Delhi, Mumbai, and Hyderabad have already become synonymous with legal support services in relation to patent filing, legal research, litigation and compliance. This is the new high street for legal services that we in Ireland can and must work to exploit in both directions. As the proverbial Kerryman pointed out to the lost tourist seeking directions, there is no benefit in being on the right road if you are facing the wrong way!
The recent announcement of an additional 75 jobs by the firm of Maples and Calder in Dublin, which already employs 175 people here, reflects a reassuring degree of international demand for financial and legal services to which we can, and must, remain fully responsive. Indeed Maples and Calder have lauded the fact that "Ireland is a common law jurisdiction with an extensive framework of laws, regulations and tax codes tailored to modern corporate and financial services businesses" while also being a gateway to Europe. This is but a recent example of inward investment and incoming good news for the legal sector. By the same token, a number of our indigenous law firms have been exploiting our capacities and reputation in the legal services sphere by expanding outwardly to other countries and markets and some continue to rank among the top 100 legal firms in Europe. The growth of new business models in the legal sector should not, therefore, be dismissed as a blight on the legal professions as we know them or as an outbreak of supermarket law. Rather, these new models are portents of new opportunities in an evolving market for legal services. Tellingly, under the plan for growth and jobs, the Government has set the target of creating an additional 10,000 jobs in the international financial services sector by 2016 and these will, by definition, include a significant number of suitably qualified legal practitioners.
I have found a further key to understanding the current conundrum facing the legal services sector in the work of Dr. Mari Sako, Professor of International Business at the Saïd Business School of Oxford University and a dab hand at probing the innards of corporations and analysing their behaviour. She relates in a timely 2008  study that, "the jurisdictional boundary of what a profession does arises not only through regulation by the state, training and self-regulation, but also in relation to other contiguous professions". She points out that the struggles between contending occupational groups for jurisdictional control may arise in the face of new kinds of knowledge or new technologies, that is to say, when opportunities arise to expand and deepen control. "Thus" she contends," what lawyers do is determined, not only in relation to the subordinate functions such as those of paralegals and legal secretaries, but also in relation to other business advisory professionals such as accountants, consultants and investment bankers". The legal and other professions are no longer impervious to one another, or as Dr. Sako explains – "new technologies, such as ICT, impact on the professions in two distinct ways: they affect how the existing professional work is carried out, and also affect the boundary of the work to be carried out by a specific profession". To my mind this is the cross-roads of the professions at which barristers and solicitors now find themselves in seeking to shape and manage their futures and at which we will all have to dance one way or another.
Change, some of it radical, some of it incremental, is already happening on several fronts all of which coincide and converge to make our era stand out from any previous one in terms of its palpable challenges to the legal professions. These combined forces of change are confronting us with the question of how our legal professions can best respond to them and how best barristers and solicitors can be regulated to reap the opportunities of this cumulative "change imperative". The "change imperative" has, therefore, generated quite a degree of "policy imperative" being given expression, among other policy responses, in the form of the Legal Services Regulation Bill. The Bill supports the urgent policy objectives of structural reform, national competitiveness and economic recovery contained in the EU/IMF/ECB Memorandum of Understanding on Specific Economic Policy Conditionality of 28th November 2010 building inter alia on the relevant recommendations made by the Legal Costs Working Group in 2005 and by the Competition Authority in 2006. The EU/IMF/ECB Memorandum of Understanding clearly identifies the remaining barriers to structural reform, growth and competitiveness in the provision of legal services to be a burden that the country can no longer afford to carry. More succinctly, the Programme for Government encapsulates the Bill in its undertaking to "establish independent regulation of the legal professions to improve access and competition, make legal costs more transparent and ensure adequate procedures for addressing consumer complaints".
Four Key Elements of Reform
At the core of the Legal Services Regulation Bill there are four key elements of reform –
· a new, independent, Legal Services Regulatory Authority with responsibility for oversight of both solicitors and barristers. The Authority will have a lay majority and a lay chair and I will be introducing amendments to further augment its independence at Committee Stage including in relation to the modalities of its appointment.
· an independent complaints system to deal with public complaints including those relating to professional misconduct. This will provide a first port-of-call for the public, independent of the professional bodies. There will also be an independent Legal Practitioners’ Disciplinary Tribunal to deal with both legal professions which will be independent of Government, the new Regulatory Authority and the professional bodies. I will be further developing the complaints architecture for Committee Stage.
· an Office of the Legal Costs Adjudicator that will assume the role of the existing Office of the Taxing-Master which will be conferred with enhanced transparency in its functions. The Bill provides that a new Office of the Legal Costs Adjudicator will deal with disputes about legal costs – at present these are dealt with by the Office of the Taxing-Master. The new Office, headed by a Chief Legal Costs Adjudicator, will modernise the way disputed legal costs are adjudicated. It can prepare published Legal Costs Guidelines and will maintain a public Register of Determinations which will include the outcomes and reasons for its determinations about disputed legal costs. Public access to such decisions will include costs adjudications in relation to family law cases – the Bill will simply preserve the anonymity of the family members concerned but does not grant anonymity to solicitors or barristers whose fees are disputed. The legal costs regime is bolstered, to the benefit of both practitioners and clients, by new Legal Costs Principles to be found, for the first time in statute, in Schedule 1 of the Bill.
· a framework for Alternative Business Models. Taking account of developments and the pressures being experienced by legal practitioners in other open common law jurisdictions there is a very real danger of Irish law firms and legal practitioners been left to languish at a competitive or structural disadvantage. Several types of new alternative business structure models have been, or continue to be, rolled-out in England and Wales, Scotland, Australia, Germany, Netherlands and parts of Canada. And the momentum of this change is unstoppable. The Bill, therefore, includes several measures aimed at opening up the provision of legal services in a way that takes account of emergent new business models and the huge advances that have been made in business technology. The Bill provides a framework for a number of structural reforms building upon a framework of public consultations. These new or "alternative" business structures will be optional. Members of both legal professions will continue to be entitled to deliver legal services under the current structures of solicitors practices and through the Bar Library.
A Modern Balance of Interests
Before turning to the issue of alternative business structures being facilitated, as a matter of determined Government policy, by the Legal Services Regulation Bill, I would like to emphasise the Bill’s balancing of professional and client interests in the regulation of legal services. It cites, in Part 2, section 9(4), six objectives to which the new Legal Services Regulatory Authority must have regard in performing its functions. Three of these are in the public/consumer interest -
§ Protecting and promoting the public interest
§ Protecting and promoting the interests of consumers relating to the provision of legal services
§ Promoting competition in the provision of legal services in the State,
while three support high standards in the provision of legal services -
§ Supporting the proper and effective administration of justice
§ Encouraging an independent, strong and effective legal profession
§ Promoting and maintaining adherence to the professional principles.
Further, section 9(5) (a) of the Bill gives clear statutory expression to the core ‘professional principles’. Thus, legal practitioners must –
(i) act with independence and integrity,
(ii) act in the best interests of their clients, and
(iii) maintain proper standards of work.
Moreover, under section 9(5)(b), they must comply with the duties that are rightfully owed to the court, and, under section 9(5)(c), they must, subject to professional obligations, keep the affairs of their clients confidential. Both the professional and client interests are being mutually upheld under the Bill. This balance informs the entire Bill and will continue to shape it through Committee Stage.
In working towards the appropriate balance of the professional and public interests in the Bill, I have very much welcomed the decision taken by the council of the Law Society of Ireland that "it would be in the best interests of the public and the profession" if complaints were no longer to be dealt with by the society but by the new Legal Services Regulatory Authority.
I also understand the Bar Council to be amenable to the new complaints architecture once satisfied that it is duly independent. Both legal professions are, I am happy to relate, generally welcoming of the enhanced and more transparent legal costs provisions found in Part 9 of the Bill subject to some adjustments of a more technical nature. The provisions in the Bill relating to the opening-up of legal professional education are also broadly welcomed, again subject to avoiding replication or interference with established academic performance regimes.
Open for New Business
Against the background of an appropriate balance of the professional, consumer and other policy interests, the new Bill contains a range of measures aimed at opening up the provision of legal services in a way that takes account of the emergent challenges and the new legal business models that they have generated. It is essential that in the now prevailing and highly competitive legal business climate our legal services sector is recognisably "open for business" with the attendant opportunities this will undoubtedly bring. The Bill provides a framework for key structural reforms building upon a series of public consultations. These will be used, on the basis of the consultative process, to address key issues such as-
· partnerships between barristers; barristers and solicitors; lawyers and non-lawyers (also known as multi-disciplinary practices)
· direct access to barristers on contentious business
· the possible unification of the two legal professions
· the education and training of legal practitioners
The Bill also contains other modernisation provisions which provide new opportunities for legal practitioners as follows:-
§ it will be possible to establish multi-disciplinary practices.
solicitors and barristers will be allowed to act jointly as advocates in court and other proceedings.
§ for the first time express provision is made for solicitors to be appointed Senior Counsel.
§ The Law Society and the Bar Council will, as I have pointed out, be more the representative organisations of the professions and will have less constraints on that area of their activity arising from their regulatory inputs.
§ clients will be able to nominate who should lead their case where members of both legal professions are involved and cannot agree.
§ legal practitioners working for private or State entities will be allowed to act as advocates in court proceedings for their employers.
§ the new Legal Services Regulatory Authority may make regulations in relation to the advertising of legal services.
§ practising barristers who share premises and costs as a group are to be allowed to advertise themselves as such.
solicitors will be able to employ barristers in their practice if they wish to do so.
§ a whistleblowers provision will protect employees who report professional misconduct.
A number of benefits accruing to legal practitioners under the proposed alternative business and multi-disciplinary models have been identified internationally. These would include –
§ Increased clientele generated by linking-up with the client base of other professional service providers.
§ Greater access to investment, liquidity and debt equity in support of practice viability and business expansion - nationally or internationally.
§ Better spread of financial risk.
§ Increased operational flexibility and service options that are more attractive to consumers by creating working synergies with non-legal providers in areas such as insurance, real estate, accounting, finance.
§ Greater discretion in the hiring and retention of high-quality legal and non-legal staff with incentivised remuneration.
§ More choice and opportunity for new or as yet untapped legal professionals who are in the labour market but inhibited or restricted in opportunity by existing structures.
The new business structures for the delivery of legal services envisaged under the Bill will not only provide for increased competition which is in the public interest but will, as I have outlined, provide new opportunities to deliver legal services for members of the profession. In doing so, however, the Bill erects no barrier to solicitors and barristers continuing to provide legal services as they do at present. I emphasise that although the Bill introduces change and permits new business models these will be discretionary – the Bill does not impede the existing practice models applicable to barristers or solicitors. Barristers who wish to do so can continue to be self-employed and work from the Bar Library. What is being proposed is an alternative structure in which legal services can be provided using the innovative business technologies now in play, with greater competitiveness and in support of early national economic recovery. A substantial number of individual and partnered legal practices in our own jurisdiction are already using these technologies, pushing out the traditional boundaries of the legal domain as are providers of legal support services.
As today’s conference will attest, across the common law jurisdictions, new legal business models and technologies are being rolled out under new laws providing new legal commercial opportunities and career options. We in this country must respond to what is happening in the global environment. We cannot continue to be blind to developments that have taken place elsewhere and against which legal practitioners on this island already find themselves competing on a daily basis with regard to certain types of commercial and other work.
That is not to say that such change can be rolled out instantly or lightly. The Government recognises that prudential safeguards will need to be put in place for professionals and consumers alike under the new practice models regime. Under section 75 of the Bill the Authority will carry out a public consultation and evaluation process and then report to the Minister on the manner in which these models for delivery of legal services should be formed and operated. I wish to emphasise that it is only when this process has been completed that the relevant provisions by way of regulation or codes of practice or otherwise can be framed – but framed they will be. As I have outlined, there is a weight of research and empirical evidence that clearly shows we are well beyond the point of wondering whether such change is necessary or desirable and that we have reached a point where we need to provide the statutory and other frameworks to carry out the change that is essential to the sustainability and future success of our legal services sector.
Lawyers Under the Bill
I reiterate that under this Bill, every lawyer will remain an officer of the court who is free to exercise independent judgment in the performance of his or her professional service, who must obey the rules of our independent courts, and who owes a duty of candour to the court. He or she must assist the court, appropriately, in the fair administration of justice and has rights and responsibilities to the court arising out of his or her relationship to it. One of his or her basic duties as an officer of the court is, and will continue to be, to make sure that the party that he or she represents receives a fair trial and ever lawyer will continue to be free to provide legal advice and legal services and to represent anyone in court proceedings in the absence of any executive control or pressure. All lawyers will remain completely free to champion fundamental rights under the Constitution and to sue the State before the courts without fear of executive disfavour, disadvantage or disapproval. They will also be free to sue the State in courts outside this jurisdiction such as, for example, the European Court of Human Rights and the European Court of Justice. Fundamentally, there is nothing in the Bill which acts as a barrier of any description to a lawyer - be he or she a solicitor or barrister – advising or representing an individual or a group of clients in respect of any matter relating to any legal issue or acting on a pro bono basis. Moreover, the importance of independence is further copper fastened by the criteria, for the first time prescribed in statute, applicable for the future appointment of Senior Counsel, which includes ensuring that a legal practitioner seeking to be so appointed has, in his or her practice, "displayed professional independence" as well as competence, probity, prescribed expertise and other appropriate skills and suitable characteristics.
Roles of the Professional Bodies
I would also like at this point to emphasise the continued role of the professional bodies under the new regime envisaged by the Legal Services Regulation Bill. The Law Society will continue to represent solicitors and the Bar Council will continue to represent barristers. Also -
· They can set rules, regulations, practice notes and codes of conduct for their members
· They will retain their own committees, working groups and task forces.
· They will retain their representation on other bodies such as court rules committees.
· They will maintain a role in the field of legal vocational education and training.
· The Law Society will retain the Compensation Fund and administer the provision of Professional Indemnity Insurance (PII) for practitioners and the issue of Practice Certificates. A statutory minimum of PII cover will continue to apply.
· Both the Law Society and the Bar Council will nominate members to the Legal Services Regulatory Authority, the Authority’s Complaints Committee and the Legal Practitioners Disciplinary Tribunal.
· There will be a far clearer delineation between the representational and regulatory functions of the professional bodies.
Perfecting the Bill
Having laid out the stall in relation to the change imperative and other matters of thematic relevance to this conference, I would now like to turn our attention towards the forthcoming Committee Stage of the Legal Services Regulation Bill which will take place in the Dáil following the summer recess. This brings us neatly to my ongoing review and consideration of the Bill’s generic provisions, based on standard legislative precedent, for a range of matters including a number subject to standard ministerial consents. For example, last December I indicated that I would be removing the need for ministerial approval for any Codes of Practice which the Legal Services Regulatory Authority proposes to apply to the legal profession. I am also actively considering other instances in the Bill where similar amendments might arise and where, having reflected on the contents of the Bill, I see no benefit or public interest in certain actions of the Regulatory Authority requiring ministerial consent. It can be taken, therefore, that the independence of the new Regulatory Authority will be enhanced in this revisiting of generic ministerial consents.
Similarly, I am considering possible amendments in the context of creating an appropriately independent procedure for the appointment of lay members of the Legal Services Regulatory Authority. There are various models of reference by which this might be achieved. One of these is the option of drawing from a pool of nominating bodies and having considered the submissions received from the Bar Council, Law Society and other stakeholders this is the option which I would like to see developed further for Committee Stage. The professional bodies are, of course, already named nominating bodies in the Bill for the appointment of the new Authority but there will be obvious benefit in identifying the complete range of nominating bodies that will put forward candidates subject to gender equality safeguards. I also intend to bring forward an amendment at Committee Stage in respect of section 8 of the Bill in order to make provision to stagger the period of appointment of members of the Authority. This would be similar to the provision contained in section 10(7) of the Property Services Regulation Act 2011. Such a measure would ensure continuity in the expertise and effectiveness of the Authority, while safeguarding against the unilateral removal or roll-over of its entire membership in one sweep.
I am revisiting the complaints processes, as outlined in Part 5 of the Bill, with a view to providing greater clarity in respect of a number of issues. These will include the independent appointment of members to the Complaints Committee and the Legal Practitioners’ Disciplinary Tribunal, as well as the manner in which complaints will be dealt with by the Authority, the Complaints Committee and the Disciplinary Tribunal. I see merit in having a greater role for the Authority in settling complaints, as far as possible, by agreement between the parties or by mediation, particularly when the complaints do not relate to very serious matters but are clearly of concern to the complainant. It would be my intention to front-load the complaints process so that consumer type complaints which do not amount to professional misconduct can be resolved informally in the first instance. It is important that this facility be available before the more formal processes of the Complaints Committee and the Disciplinary Tribunal would come into play – again today’s speakers may have perspectives to share in this regard.
Provision will be made for Limited Liability Practices, an option which I know to be of interest to the Law Society. I am examining this in all its aspects including in relation to ensuring adherence to the professional principles and with due regard for the current Professional Indemnity Insurance regime. There is, of course, already some provision in law for limiting liability by agreement with a client and the Bill replicates the current provisions in section 44.
Towards Committee Stage
In developing the Legal Services Regulation Bill to date substantial, positive progress has been made towards achieving the desired balance between the independence of the legal professions and the Government’s stated policy objective of independent regulation. The relevant professional standards and objectives are specified and upheld in statute for the very first time under this Bill. The standard ministerial consents and appointment procedures that apply to statutory bodies generally and were availed of in the initial drafting of the Bill are being enhanced to uphold the relevant principles of independence to the utmost degree. As I have outlined in some detail, I am actively considering amendments that will place the new regulatory and disciplinary architecture for the legal professions beyond any perception of undue interference by Minister or Government. This effectively lays to rest those concerns about impinging on the independence of the legal professions or of the new regulatory bodies that have been voiced in relation to the Bill and its motivation.
We have reached a point where the Bill provides for an independent Legal Services Regulatory Authority, an independent complaints framework and an independent Legal Practitioners’ Disciplinary Tribunal. These are being buttressed by the functions and powers of a modernised Office of the Legal Costs Adjudicator, with the support of transparent Legal Costs Principles and procedures. The provisions of the Bill relating to legal costs, complaints and legal education already have broadly declared support at both the professional and political levels. While the provisions relating to alternative business structures lend themselves to further refinement this work has to be duly cognisant of the "policy imperative" to roll-out early meaningful change in the areas identified. We must pave the way for new approaches to be taken in the way some legal business is conducted in this State. The Bill is set, therefore, to open up the path of the legal services sector to the future and its emergent business technologies in a way that will benefit the legal professions as much as it will enhance the position of their clients. I would like to take this opportunity to thank the professional bodies and other stakeholders, many of whom are here today, for their ongoing submissions and observations on the provisions of the new Bill. These are all under ongoing consideration. Proposed amendments to the Bill along the lines I have expressed will be made available in timely fashion for consideration before the commencement of Committee Stage of the Bill which can be expected to take place in the Dáil following the summer recess.
While not wishing to unduly pre-empt the inputs of today’s speakers I would say that there are some reassuring aspects of the roll-out of alternative business models in jurisdictions such those of New South Wales and of England and Wales that can readily be built upon. For example, fears that large financial or corporate services firms would dominate and smother the legal profession have not materialised in New South Wales and there has been success in what Steve Mark has described as "entrenching and promoting ethical behaviour and encouraging the profession to remain a true profession as well as operate like a business". While Chris Kenny will elaborate on the change dynamic in England and Wales which has also addressed the professional ethics question, there has been a pragmatic realism in the way legal practitioners have responded to the alternative business structures on offer in that jurisdiction. This is reassuring in relation to how such a substantial change process can be prudently managed given the concerns that have arisen in anticipation of its introduction. Recent surveys commissioned by Fox Williams and HW Fisher and Company indicate that the roll-out of the alternative structures in England and Wales under the Legal Services Act will gain some pace following the initially cautious response by the legal professions. There would also appear to be increased interest being shown by firms in availing of the new business structures to attract outside investment
I am delighted that we have been able to bring together a Chair and speakers for today’s conference of such high calibre and I will leave their contributions to speak for themselves, tempting as it is to anticipate and chew on them. They are each a substantial actor in his own right in the legal services domain whose inputs will be most worthwhile. I would therefore like to convey my personal appreciation to our Chair this morning, Professor Sandeep Gopalan, Professor of Law and Head of the Department of Law at National University of Ireland, Maynooth and our guest speakers: Professor Colin Scott, Dean of Law at University College Dublin; Mr. Steve Mark, Legal Services Commissioner of the State of New South Wales, and Mr. Chris Kenny, Chief Executive of the Legal Services Board for England and Wales. As will be evident from their inputs, the rolling-out of the new regulatory regimes in other jurisdictions can help shape how such change can best be implemented in our jurisdiction. It is of some comfort that we are not alone in facing these challenges of reform and modernisation and the complexities of their implementation while also wishing to retain the core ethos and probity of current legal practice. A great deal of work has been done in reconciling the regulatory and ethical issues concerned with several changes in step and direction along the way from which we will undoubtedly learn this morning and I will conclude my remarks, right now, on that basis.
 Global Strategies in the Legal Services Marketplace: Institutional Impacts on Value Chain Dynamics (2008). Prof. Mari Sako, Said Business School, Oxford University (2008).