Improve Access to Justice: Oversight of Legal Practitioners (IE0035)

3C. Improve Access to Justice: Oversight of Legal Practitioners
Commitment Text:
Create more open and transparent oversight of legal practitioners by:
- Establishing a new independent regime to regulate solicitors and barristers. This
will end reliance on self-regulation by the legal professional bodies and will open up
governance and reporting mechanisms to public and parliamentary scrutiny.
- Introducing an independent complaints system to deal with professional misconduct
by legal practitioners.
- Making the way legal costs are charged more open and transparent through the
introduction of new rules for solicitors and barristers. This will require legal
practitioners to inform their clients in much greater detail how their legal costs are
calculated.
Responsible institution: Department of Justice and Equality
Supporting institutions: Department of Health, Decision Support Service
Start date: January 2017
End date: June 2018

3C. Improve Access to Justice: Oversight of Legal Practitioners

Commitment Text:

Create more open and transparent oversight of legal practitioners by:

- Establishing a new independent regime to regulate solicitors and barristers. This will end reliance on self-regulation by the legal professional bodies and will open up governance and reporting mechanisms to public and parliamentary scrutiny.

- Introducing an independent complaints system to deal with professional misconduct by legal practitioners.

- Making the way legal costs are charged more open and transparent through the introduction of new rules for solicitors and barristers. This will require legal practitioners to inform their clients in much greater detail how their legal costs are calculated.

Responsible institution: Department of Justice and Equality

Supporting institutions: Department of Health, Decision Support Service

Start date: January 2017

End date: June 2018

Editorial Note: For the remainder of the commitment text, please see Commitment 3A.

Context and Objectives

In Ireland, there is currently no independent regulation of the legal profession. Complaints against lawyers can only be made through the Law Society of Ireland, which is ‘the educational, representative and regulatory body of the solicitors' profession in Ireland.’[Note: See: https://www.lawsociety.ie/.] This means that the Law Society acts as a self-regulating body and effectively decides on how to deal with ‘one of their own’ when a complaint against lawyers is made. Moreover, there lacks independent regulation of the costs that legal professionals charge clients. Self-regulation amongst legal professionals runs the risk that these professionals turn a blind eye to their colleagues’ breaches of policy.[Note: For a theoretical discussion of the differences between self-regulation and mandatory regulation by way of law in which an independent bodies have oversight power, see: Chari, Hogan, Murphy, 2010. Regulating Lobbying A Global Comparison: Manchester University Press, Chapter 1.] The move to end self-regulation of the legal profession has been a result of increasing lack of confidence of the public in this system[Note: See for example, ‘Should self-regulation for solicitors be scrapped?’, The Irish Times, 12 November 2007,

https://www.irishtimes.com/opinion/should-self-regulation-for-solicitors-be-scrapped-1.981361. ] and a goal of the Law Reform Commission, an independent body whose purpose is to ‘keep the law under independent, objective and expert review, to make recommendations for law reform and to make current law accessible for all.’[Note: On the LRC, see; http://www.lawreform.ie/. ] These milestones seek to establish an independent regulation of solicitors and barristers, open up a complaints system to deal with professional misconduct, and increase the transparency of costs. Specifically, they aim to:

3.C1: Establish a new independent regime to regulate solicitors and barristers and make the way legal costs are charged more open and transparent through the introduction of new rules for solicitors and barristers (originally C1 and C3 in the action plan).

3.C2: Introduce an independent complaints system to deal with professional misconduct by legal practitioners (originally C2 in action plan).

Given that the milestones seek to create independent regulation of the legal profession and create a complaints mechanism to report misconduct almost legal professionals, it is relevant to the OGP value of public accountability. The milestone’s goals are to change the status quo of self-regulation to create an independent statutory regulator for all legal practitioners, create more open oversight of the profession, and effectively more knowledge to clients who will be informed in more detail on how their legal costs are calculated. However, because it does not provide greater detail for the composition of the new regulatory regime, the specificity is marked as medium. If fully impended, these milestones would provide greater public oversight of the legal profession via independent regulation of solicitors and barristers, a complaints system for reporting misconduct, and greater transparency of legal cost calculations. However, it is unclear how the public scrutiny of the independent regulation regime will influence the conduct of solicitors and barristers in practice. It is also unclear what mechanism will be put in place to ensure that costs charged are more open and transparent. Therefore, the potential impact of the milestones is moderate.

Completion

With regard to 3.C1, the passage of the Legal Services Regulation Act in late 2015 effectively set the stage for the development of the new independent statutory regulator for the legal profession, referred to as the Legal Services Regulatory Authority (LSRA).[Note: Department of Justice and Equality, ‘Minister Fitzgerald welcomes the completion of passage of the Legal Services Regulation Bill,’ 15 December 2015, http://www.justice.ie/en/JELR/Pages/PR15000646.] According to the government’s progress report, the LSRA was established on 1 October 2016. Parliamentary debates verify that, by December 2016, the government earmarked EUR 1 million towards the LSRA and that it met several times during the first year of the action plan and started a search for a full-time chief executive.[Note: Response by Charles Flanagan (Minister for Justice & Equality) to a Parliamentary Question from Deputy Jim O’Callaghan, Parliamentary Question - on status of implementation of Legal Services Regulatory Authority: http://justice.ie/en/JELR/Pages/PQ-19-10-2017-8.] The government also reports, in assessment of this commitment, that cost transparency obligations for legal practitioners has been set out in Chapter 3 of Part 10 of the Legal Services Regulation Act of 2015. Interviewed officials told the IRM researcher’s team that, while the roadmap and timelines of the phased roll-out have not been published yet, they have been created and are expected to take place in the second year of the action plan.[Note: Interviewees from the Department of Justice and Equality, December 2017] Until the LSRA is fully operational, the rules for charging clients cannot be fully put into motion.

Regarding 3C.2, The Legal Services Regulation Act of 2015 creates ‘a new single Disciplinary Tribunal for solicitors and barristers’ by way of Part 6 of the Act.[Note: Minister Fitzgerald welcomes the completion of passage of the Legal Services Regulation Bill, http://www.justice.ie/en/JELR/Pages/PR15000646.] The government reports in its assessment, however, that ‘next steps’ for the second year of the action plan include ‘putting the crucial staffing and information-communications technology (ICT) capacities in place with the new Legal Practitioners Disciplinary Tribunal’ and the implementation of the 6 of the Act. Given that the roadmap (referred to in 3.C1 above) is still being developed, the implementation of this is limited but on schedule by the end date is June 2018.

Although stakeholders have not been directly involved in the implementation of the policy in the first year of the action plan, Director of Regulation of the Law Society of Ireland John Elliot has expressed the organisation’s positive views on Part 6 of the 2015 Act, stating that ‘the new complaints and disciplinary system should be of interest to all solicitors.’[Note: Lorcan Roche, ‘Legal Guardian,’ Law Society Gazette, April 2016, https://www.lawsociety.ie/globalassets/documents/gazette/gazette-2016/april-16-gazette.pdf.]

Next Steps

If full implementation of 3C does not take place during the current action plan cycle, it should be included in the next action plan.

For commitment details, see https://www.opengovpartnership.org/wp-content/uploads/2001/01/Ireland_End-Term_...