A law unto themselves
IMAGINE building a house, only you can’t talk directly to the architect. To make matters worse, he won't tell you how much the plans will cost until the house is built. And to top it all off, any complaints will be judged in private by a powerful body of the architect’s own peers, not an independent, impartial ombudsman.
If architects worked in the above fashion there would be uproar. The Government would likely be quick to intervene.
Yet there is a profession so powerful that it has always operated such restrictive and anti-competitive practices without ever being challenged by any Government.
Barristers, through their representative and teaching bodies - the Bar Council and the Honourable Society of Kings Inns - have closely guarded their independence, without much fear of State interference, for hundreds of years.
Much the same rules apply to today’s Kings Inns’ graduates as did when Wolfe Tone, Daniel O'Connell and Padraig Pearse were called to the Bar.
The Bar Council’s motto, Nolumus mutari - we will not change - belies the true nature of the organisation’s traditional role. Self-preservation appears the order of the day.
Evidence of this comes directly from barristers themselves. A Competition Authority investigation into the legal profession last March published an interim report by economic consultant Indecon which revealed some telling facts about the country’s 1,300 barristers.
According to a survey of Bar members, carried out for the report, the majority of barristers believed there was limited or no price competition whatsoever in their profession.
On the accountability front, there is the fact that no member of the bar has ever been disbarred for disciplinary reasons.
A spokesman for the Competition Authority declined to comment pending the eventual outcome of the authority’s investigation, but the interim report was left with little choice but to conclude: “The facts point towards a profession in which normal competitive behaviour is lacking or absent altogether.”
However, successive governments have had little desire or inclination to change the status quo.
The proof of that lies gathering dust in the Oireachtas library. In 1990 the Fair Trade Commission, after being asked to do so by the then Government, published a report into restrictive practices in the legal profession.
The report was damning in its criticism of barristers and made numerous urgent recommendations to government including: The abolition of Bar Council rules forbidding barristers from advertising, competing with each other for business, forming partnerships and dealing directly with the public.
“The Commission believes that the collective denial of direct access to barristers is open to serious objections,” the report read.
However, the most damning conclusions related to the education of barristers, the sole responsibility for which lies with Kings Inns. According to those who have been through the institution, Kings Inns remains an antiquated place where students must attend and pay for 20 dining evenings a year attended by senior barristers and judges. Many students express particular revulsion at the obligation to attend such evenings where, by tradition, snuff is passed around all the tables and students must bow in reverence as their superiors enter and leave the room in procession.
However, at the heart of the problem with Kings Inns, as the Commission report saw it, is the institution’s complete monopoly on who and how many new barristers are allowed into the profession. “Education for and access to legal professions are matters of intense public importance and both are not controlled by the public or the state but by the practitioners themselves - which cannot be in the public interest.”
As a matter of urgency the Government was advised to establish an advisory committee on legal education and training with a view to implementing a common system of training for barristers and solicitors. In addition, the report specified that access to training should only be controlled by the Government - not by barristers themselves.
Thirteen years later, nothing has happened, except the compilation of last year’s Competition Authority report which reached much the same conclusions. Access is still controlled by Kings Inns and there is still no Government role whatsoever in the regulation of a barrister’s education.
Meanwhile, trainees for the English bar now study at centres around the country, while in the North, prospective barristers and solicitors study side-by-side.
The Bar of England and Wales, which used to enforce the same restrictions as the Irish Bar, now also allows barristers to advertise and deal directly with members of the public.
Although Kings Inns has not relinquished any of its control over the education of barristers, it is this year changing over from a two-year part-time course to a full-time one year course.
Dean of Kings Inns Sarah McDonald said the previous acceptance limit of 120 students a year would also be abolished.
“It is still not finalised yet, but I’m confident there will be no limit on numbers,” she said.
Ms McDonald defended the €10,750 annual fee for the new Kings Inns course, saying she did not believe it would result in restricted access to the less well off. “I think it’s good value for money. We think that those people who do want to do the course can organise themselves so they can,” she said adding that banks were to be consulted by the school to see whether preferential loans could be made available to students.
Ms McDonald did not want to comment on any of the criticisms of the Competition Authority or the Fair Trade Commission pending the outcome of the authority’s final report later this year.
However, several academics contacted by the Irish Examiner said they could see no reason to justify the Kings Inns monopoly on training.
All asked not to be identified as they and their students had to deal with Kings Inns and the Bar Council on a regular basis.
“There are plenty of law schools around the country that could do a better job,” said one.
Another said the only type of person who could seriously aspire to getting into the Kings Inns course was either independently well off or from a wealthy family.
A qualified barrister who spoke on the condition of anonymity agreed. “Kings Inns is a licensing system tarted up as a meritocracy. It’s a bar to entry to many people whose academic merit may well be greater than those who can afford access. It just perpetuates inequality,” he said.
Barrister and Trinity Professor of Law Ivana Bacik said the lack of sponsored places for less well off students remained a problem.
In 1996 Trinity wrote to Kings Inns seeking a scholarship place for lower income access students without success.
“It does certainly seem to be very self-perpetuating and they would have to do some very proactive things to break that down. There are lots of obstacles still and it is rightly perceived to be a largely elitist profession,” said Professor Bacik.
A recent study by Professor Bacik also highlighted problems with gender access to the higher levels of the profession with many female junior barristers reporting they were frequently degraded and even molested by older male Senior Counsel.
Bar Council director Jerry Carroll did not want to comment on specifics while the Competition Authority study was ongoing.
“They'll be the judges. They are the people that we have to submit to. It would be wrong and inappropriate to start going through the issues,” he said.
However, there are no indications that the Competition Authority report won’t befall the same fate as the Fair Trade Commission report 13 years earlier. Asked whether he could see the Bar changing in the near future, Mr Carroll said the Bar had always been changing.
“It is not static. It has always been willing to reform and it welcomes reform. We are not afraid of change,” he said.
A letter from Competition Authority chief John Fingleton to Law Society president Gerry Griffin two weeks ago conceded: “The final conclusions and recommendations of the Authority have no decisive effect. The Authority has no power to decide how the profession is regulated and merely gives advice to Government.”
It would appear Mr Carroll is right not to fear change - there is unlikely to be any on the way.
CONNECT WITH US TODAY
Be the first to know the latest news and updates
