Yes but, where is, what if? - FLAC

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Comments on the Legal Services Bill26 Nov 2011________________________________________________________________________This chimes with certain duties and responsibilities of lawyers as set out in the UN BasicPrinciples which require lawyers to maintain the honour and dignity of their profession asessential agents of the administration of justice, advising and assisting their clientsappropriately, upholding human rights and fundamental freedoms, acting freely anddiligently in accordance with law and recognised standards and ethics of the legal professionand loyally respecting the interests of their clients. This piece of legislation may be anopportunity to include the somewhat wider delineation of principles set out in human rightsnorms.The Legal Services Bill 2011 addresses two of the areas that are of fundamental concern tomembers of the public who contact FLAC – complaints and legal costs.One of the absolute constants in relation to complaints from the public is their suspicion andlack of confidence in the current complaints and disciplinary system. As people areprincipally dealing with solicitors, the main concerns that we hear in FLAC relate to solicitorsalthough some concerns also relate to barristers employed in the course of a case.In spite of a framework which aims to build independence and accountability within thecomplaints procedure, independent Disciplinary Tribunal and ultimate recourse to the HighCourt, the reality is that many members of the public who contact us in FLAC genuinely don’ttrust it. They believe that the system is run by the Law Society and that as the Law Society isthe representative body for solicitors, that it cannot be fair to the complainant. I think frommy own experience that it would be fair to say that for exactly the same reason – that itcannot be both representative and a disciplinary body – many solicitors also have concernsabout the system. It may be that by any objective standards the system is entirely fair to allparties and totally independent. However, for as long as it is seen as having its roots in theLaw Society – and similarly for as long as the Bar Council is seen as the foundation of thebarristers’ disciplinary system – then justice will not be seen to be done.Therefore the introduction of a system of regulation including a complaints and disciplinarysystem which is independent of the legal professions will be welcome to people who, afterall, approach the system with a complaint relating to lawyers, the law or the legal system.People will feel that they will get clearer information - for all that people who contact us can4
Comments on the Legal Services Bill26 Nov 2011________________________________________________________________________be frustrated with the situation in which they find themselves, it is also quite true that a lotof people who contact FLAC don’t want to make a complaint. Instead, they just needinformation as to how the system works. They would like an idea of whether the length oftime that their case is taking is excessive, or whether a fee is likely to be a realistic one.People are likely to trust a system which is independent of the legal system more. They willnot feel – as many now do – that the system is weighted in favour of the lawyer or that thehearing process must be a biased one. I stress again that this is not an objective finding thatthe system is unfair. It is the perception of many people that I relate. Therefore, as thecurrent system stands, justice is not seen to be done.However, in dismantling that system which is too often perceived as dependent, thereplacement must not suffer from the same fatal flaw.Under the Bill, the complaints and disciplinary system will be a substantial part of the workof the new Legal Services Regulatory Authority. The current structure of s.8 of the Bill has aregulatory authority which will be appointed by the Government. Four nominees are tocome from the legal professional bodies (2 from the Law Society, 2 from the Bar Council) butare appointed by government and the other 7 are to be appointed by the governmentdirectly. The authority members would have a 4 year term, and would then be eligible forre-appointment – by Government. Members could be removed if ‘in the opinion’ ofgovernment, they had a significant ‘conflict of interest’ or the member’s removal ‘appearedto be necessary’.I read both Dr. Carol Coulter’s recent analysis where she concluded that the proposed newsystem lacks independence and Minister Shatter’s defence in last Monday’s Irish Timeswhere he asserts the many ways in which independence is built in to the proposedAuthority. However, that genuine defence will undoubtedly be perceived in much the sameway that those who operate the current system are often perceived as making a special casefor their own system. The proposed new Authority remains rooted in and composed by thegovernment of the day in the same way that the current system remains rooted in theprofessional bodies. The proposed structure therefore will be seen to be to be as tainted bythe perception of bias as that which went before.5
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Yes but, where is, what if? - FLAC

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