Colin Scott UCD College of Social Sciences and Law

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Presentation transcript:

Colin Scott UCD College of Social Sciences and Law Coláiste na nEolaíochtaí Sóisialta agus an Dlí College of Social Sciences and Law Reform in a Cold Climate: Remodelling the Regulation of Legal Services in Ireland Colin Scott UCD College of Social Sciences and Law Authorized Revolution: Regulatory Disruption of the Legal Services Market Georgetown University Law Center, 24th April 2015

Mandated Self-Regulation Reforming Legal Services Regulation: A Pyramid of Technique Meta- Regulation Mandated Self-Regulation Self-Regulation Mega-Regulation Balance of Professional and State Responsibility for Legal Services Regulation Adapted from Ayres and Braithwaite Responsive Regulation (1992)

Pure Self Regulation Analysis Low Cost, Expert BUT, risk that professional interests placed above public interest Lacks Transparency Pure Self Regulation Bar Council Sets Norms Version A: Reactive Adjudicates complaints Version B: Proactive Monitors Enforces complains Barristers Protected Class

Mandated Self Regulation Analysis Low cost, expert Modest political investment May be challenging to align industry and public interest Mandated Self Regulation Legislature Minister Version B: ‘Shadow of Hierarchy’ Version A:‘Supplies LegislativeFramework’ Law Society of Ireland Sets Norms Version A: Reactive Adjudicates complaints Version B: Proactive Monitors Enforces complains Solicitors Protected Class

A Challenging and Changing Context

Law Society of Ireland unveils new brand The Law Society of Ireland is today (4 July 2014) launching its new logo, visual identity and tone of voice guidelines, marking a significant step in implementing the recommendations of the Future of the Law Society Task Force report.

Competition Authority 2006 Report Legal profession ‘permeated with unnecessary and disproportionate restrictions on competition’

Competition Authority 2006 Recommendations Separation of regulatory and representative roles of Bar Council and Law Society Ending of Law Society and King’s Inns role in setting standards for provision of professional education Permit barristers to act in partnerships Establishment of independent Legal Services Commission approval for professional training for solicitors and barristers approval of professional codes of conduct making of regulations for the profession undertake research into such issues as alternative business structures End restrictions on solicitors as advocates in court

Reform EU/IMF Aid Package , December 2010, commitment ‘...to introduce legislative changes to remove restrictions to trade and competition in sheltered sectors including...establishing an independent regulator for the [legal] profession...’ (p9). (by 2011 Q3) Infringement proceedings for failure to implement Services Directive 2006 Art 24, April ‘15

Legal Service Regulation Bill, October 2011 ‘The Irish legal system will be comparable to that of countries like China, Gambia or Vietnam if the Legal Services Regulation Bill is passed unchanged, according to the director of the IBA…’ At Dublin Seminar with Presidents of ABA and CCBE ‘All three warned independence will be compromised if the proposed Bill, published in October, is enacted as it stands. This will place Ireland outside the norms of developed democratic states, they said.’ Irish Times 8 December 2011

Legal Services Regulation Bill 2011 (amended) Cl 12 (4) The Authority shall, in performing its functions of the regulation of the provision of legal services under this Act, have regard to the objectives of— (a) protecting and promoting the public interest, (b) supporting the proper and effective administration of justice, (c) protecting and promoting the interests of consumers relating to the provision of legal services, (d) promoting competition in the provision of legal services in the State, (e) encouraging an independent, strong and effective legal profession,

Legal Services Regulation Bill, Meta-and Mega-Regulation Appoint/remove members, (stakeholder nominations) chief executive, Remove members (on stated grounds) Direct issue of codes Consent to issue of Codes Provide funds Request reports Consent to Regulations Issue codes, Make regulations (accounts, complaints, advertising, etc) Supervision of accounts, Inspection, Charge Fees, Investigate complaints, Initiate investigations, Apply to Disciplinary Tribunal, Apply for court orders, Prosecute Legal Services Regulatory Authority Minister/ Government Barristers Solicitors Inform Submit strategic plans & annual reports Reports on: a. Education and training (2 years) b. Unification (4 years) c. MDPs (6 months) 1. Approve codes 2. Review: a. admissions standards, b. professional education & training Regulation/ Representation Review education & training University Law Schools King’s Inns Bar Council Law Society

Completion of Lower House Process, 22nd April 2015 New amendments to strengthen the regulatory powers of the new LSRA Legal partnerships will be subject to a public consultation process provision will now be made to conduct detailed research on the likely effects of MDPs Further significant amendment at Seanad Stages Inspections and complaints; the Legal Practitioners’ Disciplinary Tribunal; Limited Liability Partnerships, etc

Conclusion Legal Profession very hostile to reforms Crystallised government preference for Mega- Are reforms coherent enough to provide model for E&W Reforms?