It has traditionally been difficult enough to like lawyers, except your own. Ask any taxi driver. And now this. The Legal Services Regulation Bill
The consumers’ website ‘Rate-Your-Solicitor.com’ was a window on frustrated public legal detestations. It was closed in 2012. Guess by whom? On the order of a judge because it contained defamatory material about one individual.
The forerunner of the Law Society of Ireland (LSI), the solicitors representative body, was the suggestively named Law Club of Ireland, founded in 1791. Some would say the LSI is still too like a club, too little like a machine for justice. Solicitors have been mollycoddled.
In her book Bust (2010) Dearbhail McDonald showed some of what this meant: “A roll-call of dodgy solicitors has been hauled before the Solicitors Disciplinary Tribunal (SDT) and into the courts, heaping shame on the legal profession and calling into question the efficacy of the LSI’s regulation of solicitors”, she wrote.
For instance, Michael Lynn who fled Ireland in 2007 after the LSI closed down his firm and asked the High Court for a bench warrant for his arrest is now incarcerated in Brazil facing extradition. Lynn had used clients’ funds to fund his extravagant lifestyle, and abused solicitors’ undertakings in order to obtain multiple mortgages on the same properties.
Thomas Byrne’s practice was also closed down by the LSI, and he is currently serving twelve years in jail for fraud which involved stealing from clients and abusing undertakings to a value of almost €60 million. Like Lynn, Byrne also had a history of previous misconduct. The LSI had prohibited him from being a sole signatory on client accounts in 2002. Then in 2005 it found that €1.7 million was missing. Incredibly he was merely fined €15,000 and allowed to continue in practice, a sanction which was not appealed by the LSI. At times the LSI may exercise poor judgement in pursuing certain practitioners, and failing to adequately examine the motive of a colleague who initiates a complaint.
The Kenmare-based solicitor Colm Murphy recently claimed in a detailed submission to the Supreme Court, that his striking off was based upon spurious and inaccurate information which was provided by the LSI and SDT to the High Court ten years ago. The claim by Linda Kirwan of the LSI that he had breached an undertaking he had supposedly given to the President of the High Court was instrumental in his strike off. In an affidavit seen by Village, Kirwan insisted that she had been in the High Court on the day the undertaking was supposedly given. It was only after Murphy was struck off that she admitted, on affidavit and in a letter to Murphy in 2010, that she was not in fact in the court when the supposed undertaking was made. No such undertaking is recorded in the order from the court issued on the day in question. Murphy was also able to prove, again following his strike off, that the LSI had in part relied on a document forged by rogue Frank Fallon who was subsequently jailed for two seven-year terms.
The problems are not all down to fraud. Conflicts of interest are the issue for the biggest firms.
Arthur Cox, Solicitors, did well from the Fianna Fáil/Green government and no less well from its successors in Fine Gael/Labour. Arthur Cox has been perceived as guruishly close to Fianna Fáil: at one stage the Irish Independent’s Sam Smyth even speculated that Brian Cowen might ultimately join Cox’s, headed by his college class-mate Eugene McCague.
In 2010 Arthur Cox was engaged by the NTMA to draft the legislation creating NAMA after it submitted the lowest tender for the services though there was no reason the work could not have been handled by the Chief State Solicitor’s. At the time Arthur Cox commented, ‘‘Once Nama is established, there is undoubtedly potential for conflicts of interest to arise for any firm working with NAMA in its transactions with banks and property owners. This is not what we have been appointed to do”. Nevertheless the Comptroller and Auditor General reported that from
According to the Competition and Consumer Protection Commission (CCPC), the proposed legislation to regulate solicitors and barristers was subject to a veto from those professions over its provisions: “The views of the Law Society and the Bar Council have been privileged over those of the consumers of legal services – the clients of the legal profession”.
September 2009 onwards, Arthur Cox was billing NAMA for €40,000 per month, its biggest retainer. The Department of Finance and its agencies paid a staggering €15m to Arthur Cox alone over the five years to 2012 for legal advice on the bank guarantee scheme, recapitalisation issues, nationalisation, NAMA, restructuring plans and the eligible liabilities guarantee scheme.
Law Society Regulations for solicitors state that ‘‘if a conflict of interest arises between two clients in a matter in which the firm is acting, the firm must cease to act for either client in that matter.” However, in exceptional circumstances, one of the clients may consent to the other client remaining. Arthur Cox claims to operate ‘Chinese Walls’ for such clients.
For example, once the legal advisor to Anglo Irish Bank, Arthur Cox discontinued to provide legal services to them when hired by the Government to advise on the Bank Guarantee. But it continues to advise Bank of Ireland. Even when that makes it lawyer for the sellers of loans (Bank of Ireland) and for their purchasers (NAMA). More recently though none the less controversially Arthur Cox also represented Siteserv and Millington (Denis O’Brien) both during the sale of Siteserv. An internal investigation found there was no conflict of interest.
The LSI is nowhere close to being able to call Arthur Cox to account for conflicts of interest.
187 complaints were received by the LSI in 2012, an increase of over 30% on the preceding year. Its Tribunal made referrals to the High Court in 57% of the cases. Conveyancing, at 56%, dominated the complaints and 61% of these cases concerned breaches of undertakings.
Patently self-regulation by the LSI hasn’t worked.
According to the CCPC, effective lobbying by lawyers, has led to “a complete emasculation” of much of the proposed law.
So how have they got away with it?
Lawyers are deeply embedded in networks of ‘governmentality’.
For example it is perceived that the Labour party in government was surprisingly squeamish about introducing multidisciplinary partnerships, coming late to the idea that they might compromise the vaunted, all-trumping though not self-evidently republican (or necessarily otherwise desirable – who cares if all doctors or cabbies are independent?), independence of the bar.
At the time, the Irish Times quoted a “government source” to the effect that the “Bar Council has nobbled the Labour Party”.
Joan Burton and Eamon Gilmore both have daughters practising at the bar. Labour Minister for Communications, Alex White, is a senior counsel, his election agent is Peter Ward SC and John Rogers SC (SC) is a long-term legal advisor to the party. The attorney General Maire Whelan is a senior counsel whose advice on reform has been conservative. It’s the same with Fine Gael. Frank Callanan SC and to a lesser extent the current President of the Law Society and solicitor to Fine Gael, Kevin O’Higgins are well ensconced. Most of the influential long-term coalition acolytes of course have been elevated to the judiciary, though in many cases not before being allowed to hyperventilate about the imperative to preserve the integrity of their Bar. The wily Benchers (the title is awarded for demonstrated capacity to deny overpayment even when threatened with being struck from a height by a five-hundred-year-old Bench) have installed the former Secretary General of the Department of Justice at the head of King’s Inns and Tanaiste Joan Burton dutifully visited to dine.
Most of these eminences provide good and free advice on the law and politics to the government. In private, though usually progressive, most of them are as defensive about the independence of the legal profession as if it had been mandated by Magna Carta. A 2012 Law Society Gazette editorial referred to this independence as being part of the separation of powers, though that embraces legislative, executive and judicial powers (not lawyers).
Government listens to this. Even journalists listen to lawyers. The Irish media are famously deferential to barristers and their judicial overlords. You will never read a profile of a senior counsel or judge who is not eminent or celebrated for his (or even her) great and speedy feats of brief-mastering.
A survey of guests on the Marian Finucane Radio Show, conducted last year by Village, revealed it was strangely heavy on appearances by legal professionals, notably, Ken Murphy, the LSI’s buttery Director General.
Whenever Village writes something negative about a senior lawyer other lawyers advise that it would be injudicious to publish.
Pat Leahy, the Sunday Business Post political editor, wrote in agitation recently that in order to prise the best judges up out of the well-fed ranks of the senior bar we need to pay them more. It didn’t occur to him that we could pay
the senior bar less and expedite the jump. His former editor, Ted Harding, and predecessor as political correspondent, Mark O’Connell (Print Journalist of the Year, 2000, as awarded by the territorial Law Society of Ireland), both now practise at the bar. Over the year journalists from Michael O’Higgins to Vincent Browne to Colette Browne have studied at the bar. I did it myself.
That the cosiness of the Irish government/lawyer nexus is longstanding is clearly illustrated by the 1954 Oireachtas debate on the grounding legislation for solicitors, when the Taoiseach John Costello SC noted that: “complete agreement has been reached on a variety of topics on the Solicitors Bill as a whole between the Government and the Incorporated Law Society…All my colleagues here on the Front Bench at the moment, with the exception of the Attorney-General are all ex barristers for the moment at any rate”. Subsequently Taoiseachs Lynch, Haughey, Fitzgerald and Bruton all qualified at the bar. An insight into the solipsistic conservatism of the bar comes from my own recollection of a lecture on ethics for barristers 25 years ago in the King’s Inns (motto: Nolumas Mutari 1541 – ‘we don’t want to be changed 1541’). An ancient Bencher was batting for the Bar Council. A student asked why a second-level teacher could not practise at the bar when a third-level teacher could. “Oh, That’s easy”, the gentleman of the Bench intoned. “That’s because it’s always been the way”. Forfend the ‘devil by day/burger-flipper after dark’ apocalypse.
That very issue has in fact now been fudged in the barristers’ code of conduct.
The barristers’ code is a weird one. It recognises, for example, conflicts of interest. Though, rib-ticklingly, not for barristers: 3.2 (a) If a barrister forms the view that a conflict of interest has arisen between a client and the solicitor who has instructed the barrister on behalf of that client, the barrister must provide advice for the client stating the nature of the barrister’s concerns and recommending that the client instruct a different solicitor”. Solicitors cannot, the bar implies, be trusted, and it is important that our learned friends have the Code-mandated right to draw attention to any deviance especially a conflict of interest. The equivalent ‘handbook’ for barristers and England and Wales outlines the standard as you would expect: C21 –
You must not accept instructions to act in a particular matter if:
there is a conflict of interest between the prospective client and one or more of your former or existing clients “. Then again the British barristers didn’t write their own code.
As for solicitors: for over a hundred years the LSI has had a tripartite supervisory role for the solicitors’ profession, being responsible for the representation and regulation of solicitors, and also for their professional and continuing education. In 1982 the Restrictive Practices Commission, in 1990 the Fair Trade Commission and in 2006 the Competition Authority established that the legal profession engaged in restrictive practices, In 2009 the Fianna-Fáil led government legislated for a Legal Services Ombudsman. In 2010 the troika mandated an overhaul, but left too soon for the airport.
Retiring High Court President Nicholas Kearns recently thundered that “comfortable assumptions” that legal fees should continue as before “without the slightest regard for privations experienced by citizens”, including other professionals, do not serve “the interests of justice”. about the ability of the public to pay legal fees. The Public Accounts Committee estimated in 2011 that the state was spending half a billion euro on legal costs. The Master of the High Court, Edmund Honohan acknowledged in 2011 that the number of self-litigants has “skyrocketed”, as ordinary people cannot afford to avail of legal services. However, the National Competitiveness Council recently found that though high solicitors’ costs have fallen by 6.3% since 2010 and OPW Minister Simon Harris has recently been charged with centralising negotiations with solicitors for State legal services.
The Legal Services Regulation bill, first published by former minister Alan Shatter in 2011, is to be enacted by the end of the year, according to his successor, Frances Fitzgerald, with the new authority to be in place in 2016. Most of the Act will be implemented by a new government.
Alan Shatter, a successful solicitor, had it in for the legal profession, or at least for barristers – partly at least because of perceived sleights dealt him by members of the judiciary and bar when he attempted to exercise rights of audience in the superior Irish courts. He claims that the bill he published induced “mild hysteria” but even that did not address costs or effect many of the sorely needed structural reforms required and so widely recommended. Famously he refused the barristers’ requests for meetings. The right thing to do.
Nolite timere. Frances Fitzgerald, less steel in her stomach, attended the Bar Council’s annual conference last year in Westport (Enda Kenna was able to attend too as fortuitously it’s in his constituency!), and has taken 300 amendments to the bill, many from representatives whose changes seem to have come directly from the legal representative bodies. Fitzgerald, described the changes to the draft legislation as “a pragmatic and prudential approach”.
As a result, under the Legal Services Regulation bill, there will be:
•No provision for a unified profession, Shatter planned to allow the public to have direct access to barristers, bypassing the usual route through a solicitor. The obligation imposed on the independent legal services regulatory authority (LSRA) to engage in a consultative process and to report within two years on whether it is desirable, in the public interest, that we have a unified legal profession has been extended to four years.
•No abolition of the quaint but expensive senior/junior counsel distinction (and the privileges it bestows – where one of the two does most of the work but, feudally, the other gets a fixed percentage of the fee paid to the lead counsel).
•No multidisciplinary partnerships of solicitors, barristers and other professionals; or legal partnerships of solicitors and barristers
– at least for the moment, though solicitors and barristers may work together. The new legal regulator may carry out studies into such partnerships, which hilariously were actually already allowed under the 1994 Solicitors (Amendment) Act, but the Minister for Justice alone can authorize them. Fianna Fáil’s Michael McNamara, a barrister, says “I don’t think you will ever see them up and running”. The AG, Máire Whelan SC believed (who knows how she got wind?) the Bar Council would litigate the original proposal to stop it preventing its members working in new partnerships so they will now have to operate outside the Law Library. According to an unscandalised Irish Times she believed the Bar Council would win on the basis that there was no evidence to support the restriction on public policy grounds. One policy ground she might have considered was the avoidance of restrictive practices. Alan Shatter was incandescent.
• One exciting provision that barristers may work directly for an employer such as a company or government department – outside the Law Library.
• Unrecognizable watering-down of the provision for independent regulation. The establishment of an independent legal services regulatory authority to include members of organizations such as the Citizens’ Information Board, the Human Rights Commission and the Competition Authority, with responsibility for overseeing barristers and solicitors, was central. Complaints against lawyers are going to be moved to the LSRA but the Law Society retain financial and accounting oversight of solicitors and
the €80 million Solicitors’ Compensation Fund. This means complaints made to the LSRA about fraud or dishonesty will be referred to the Law Society.
• A quid pro quo for the change: the LSI itself will be subject to oversight by the LSRA. But the pre-approval of LSRA will not be required
for the Law Society to take enforcement actions against any solicitors for any financial misconduct.
• Appointment by the President of the High Court, not the government, of the legal practitioners disciplinary tribunal to deal with professional misconduct. The minister will no longer have a role in deciding the levy to
be imposed on the profession to fund regulation.There is also more emphasis on informal resolution of client complaints before formal disciplinary procedures are initiated.
• Replacement by the Office of the Legal Costs Adjudicator of the role of the current Taxing Master, in an effort to bring greater clarity to
the area of legal costs. Unsurprisingly for Ireland. there is no benchmark such as reducing fees to international averages or by a percentage annually, or guidance on competitive tendering, let alone specific guidance on what constitutes a reasonable fee for a type of case. And revealingly there will be no removal of the mad provision that clients who appeal their solicitor’s costs must employ a legal costs accountant, and pay the court fees and the costs incurred by the solicitor defending the costs appeal, unless the fees are reduced by at least 15%.
• Maintenance of the pampered training colleges of the King’s Inns and the Law Society as the sole route into the professions of barrister and solicitor. The new regulator can make “recommendations” but there is no
provision for disparate schools or a single school with bifurcate vocational wings for general practitioners, specialists and advocates.
• Introduction of cut-price specialist conveyancers, as in Britain, must await a review by the legal regulator and will take at the very least two years.
• No express recognition of the obvious but under-emphasised rights of lay litigants within the legal system.
The Irish Times’ Legal Affairs Correspondent, Colm Keena tellingly noted that: “Apart from the Bar Council’s move, there appears to be a consensus across the political parties, and in much of the legal profession, that the bill as currently constituted is reasonable”. He does not make it clear if the political parties he canvassed included anyone radical (after the event, Sinn Féin at least seems exercised), and he fails to address whether the bill serves the public interest and the ‘consumer’. After so long such concerns should have been central. Proper, radical reform, it is clear, will take another generation.
Democracy in a republic, which depends on access for ordinary people to justice, must wait while the legal profession conspires and the government foosters around the alleged imperatives of legal independence.
Some of the substance for this article is drawn from a 2014 series in Village written by Maeve Hosier
Legal affairs: fraudulent developer implausibly tried to impugn Supreme Court judge.
By Michael Smith
Village is loth to get into the salaciousness that drives the professional classes in decadent Dublin.
Nevertheless the integrity of the judiciary, and indeed the perception of that integrity, has to be beyond doubt and a story unfortunately came our way which challenged it, anonymously, and was accompanied by affidavits submitted for in camera family proceedings.
A bankrupt developer with an alpha personality and omega ethics alleged in the affidavits, which he was never allowed to open in court, that Irish High Court and Supreme Court judgments against him were tainted with bias because the lead Supreme Court judge in his case had an affair with the High Court Judge who determined the matter originally, and that the Supreme Court judge anyway had shown in dealings with him in the judge’s former life as a barrister, that he despised him.
The developer’s affidavits are clumsily drafted and he is careless as to whether the relationship may have continued at times when the Supreme Court judge heard the action – on occasion fudging the tenses about the timing of the relationship.
Nevertheless as a matter of fact the relationship had ended by the time of the Supreme Court hearing, even if it had subsisted, insignificantly and irrelevantly, during the High Court hearing.
The High Court judgment was persuasively damning of the developer personally, finding he had deliberately and fraudulently failed to make certain disclosures and misled the court and his ex-wife. The developer claimed he had been in the process of preparing disclosures when a settlement was reached that obviated the necessity for him to make the disclosures. But the High Court, on the facts, said there was no evidence of this. He had engaged in litigation misconduct.
The appeal was fast-tracked to the Supreme Court but took four years to be heard.
At the last minute, the Supreme Court panel of judges was apparently changed, with the particular Supreme Court justice who had allegedly had the affair stepping in to replace a judge who had been originally listed to sit. The developer claims to have been wrong-footed by the change between the judges and would have aimed to pre-empt the Supreme Court judge sitting on the matter had he known he intended to do so. He claims he had already advised his solicitor of the potential for the judge being compromised. His legal team noted that day one of a two-day appeal was already over, and they didn’t dare question the judicial etiquette.
The Supreme Court upheld all the High Court’s substantive reasoning.
When the judge endorsed his alleged former lover’s strong judgment without – according to the developer – “canvassing” all the developer’s fundamental grounds, the developer sought redress on grounds that there was a reasonable suspicion of objective or apprehended bias. Justice must not just be done but be seen to be done, was the cry.
However, these days thankfully an alleged affair between judges that may have been finished for years does not constitute, or rather does not necessarily constitute, a reason for the appellate judge to refuse to hear an appeal of his former lover’s judgment.
For obvious reasons the developer had difficulty getting any Irish lawyers to take on his prurient case. In the end he sought help from UK barristers but ultimately the Official Assignee in Bankruptcy successfully objected to the developer taking a judicial-bias challenge because he was bankrupt and therefore lacked the standing to take the case. The Assignee in Bankruptcy took the reasonable stance that even if the judgments were overturned it would not be appropriate for the Assignee, who alone could take the decision do so, to refight the substantive issues of fraud, failed disclosure etc on the part of the dubious developer.
Even if the unsubstantiated allegation of bias could be proved, it would achieve nothing, for the case was not worth re-running.
These days thankfully an alleged affair between judges that may have been finished for years does not constitute a reason for the appellate judge to refuse to hear an appeal of his former lover’s judgment