Power of legal profession bad for society

“The first thing we do, let’s kill all the lawyers”

SO said Dick the Butcher in Shakespeare’s Henry VI. Dick’s murderous intent was his contribution to a discussion on how best to reorganise society in a social revolution. The new society was the brainchild of another character, Jack Cade. He was of the opinion that in the England of the day, lawyers’ main concern was “to shuffle parchments back and forth in a systemic attempt to ruin the common people”.

The lawyers survived. Dick the Butcher exited the stage pronto and nothing more was heard from him. Presumably, an injunction was taken out against any further utterances he might make that would adversely affect the income of the legal profession.

When the IMF arrived in Ireland last November, its head honcho, Mr Chopra, issued a Fatwah worse than death on lawyers. He wants to improve competitiveness by cutting their fees. Good luck to him. At the height of the property bubble, legal fees in this country were estimated at €1.5 billion. That’s a lot of gravy to be draining away.

Last week, we got another insight from abroad into the culture of lawyers in this country. Finnish banking expert Peter Nyberg was delivering his report on the banking crisis when he was asked had he encountered many lawyers in the course of his inquiry.

“It was a surprise to me, when I came here, the strong and substantial influence of lawyers on everything that happens here,” he said. “I stumbled over them all the time.”

Nyberg’s experience can, to a certain extent, be put down to the tribunal culture that grew up over the last 13 years. Witnesses with something to hide from a tribunal routinely ran to the Four Courts with a challenge. Most of these witnesses were wealthy individuals, for whom cost was no big issue.

The Planning Tribunal, for instance, was subjected to 29 High Court challenges, nearly all of which went on to feature in the Supreme Court. The constant running to the Four Courts greatly delayed the inquiry and added hugely to the cost.

Early on, the courts largely sided with the tribunals. The trend was arrested in recent years, as the power of the tribunals came under further scrutiny.

The upshot of all this activity has been that anybody approached to co-operate with an inquiry immediately reaches for his or her lawyer. The lawyer in turn starts his clock running, and begins to make waves to justify the fee. Thus the strong influence exercised by lawyers is brought to bear on people like Nyberg who are attempting to do the state’s bidding.

Lawyers will argue their function is merely to assert clients’ rights. But the line between justifying a fat fee and ensuring nothing untoward befalls a client can be a very thin, if lucrative, one.

Beyond the tribunal culture, Nyberg’s observations are just as relevant.

The level of legal fees in this country has a serious impact on how the country is run. Commercial disputes must always factor in the ruinous cost of going to court, rather than the strict rights and wrongs of a case. Media organisations face a similar dilemma in the area of libel. Natural justice is not infrequently compromised because the cost of asserting rights is just too high. The law, like the Ritz, is open to everybody, but in reality it is largely there to serve the wealthy in its current guise.

The business of insurance and the fallout from compensation claims got so crazy that an alternative legal system had to be set up. The Personal Injuries Assessment Board came about as a result of the gravy ladled into lawyers’ pockets. At the height of it in the early Noughties, up to 40% of the cost of insurance claims were going on legal fees. A knock-on effect was felt in business and among consumers in the form of higher premiums. The legal business didn’t create a compensation culture, but it sure exploited it.

The serious business of compensating abused former residents of state institutions was also polluted by lawyers extending a paw. Legal fees accounted for a major proportion of the cost, and in some cases, lawyers double charged, getting fees from both the compensation boards and the client.

At one stage in 2007, a number of survivors of institutions claimed lawyers were encouraging late applications for compensation to pressurise the government to revise the closing date. When the effort failed, the survivors were slapped with fees ranging from €9,000 to €11,000.

There were also cases of former residents being tracked down by lawyers eager to hold them out with a claim. All of this carry-on reflected badly on the system, and led to a growing cynicism about the efforts of the state to make good on its neglect in the past.

To tar all lawyers with the brush of greed would be unfair. But within the business, there appears to be little appetite to root out the gutter stuff. Regulation and disciplinary matters are taken seriously when issues of law breaking or very bad publicity arises. The same rigor isn’t as obvious when it comes to standards.

Accusing lawyers as a body of being inherently greedy, as if it is a condition contracted when training for the law, is unfair. Lawyers charge huge fees because they have the power to do so, not unlike their brethren in the medical professions. If plumbers, nurses or truck drivers had commensurate power in society they would be just as greedy. This applies equally to any group beyond the Little Sisters of the Poor, and who knows, even the Sisters might succumb if they got a whiff of the big bucks.

Ultimately, the influence of lawyers on the state is down to the power of vested interests in the political culture. Vested interests exercise a major pull on governing in this country. And anywhere a vested interest succeeds, it is inevitable that the public interest will suffer.

Lawyers, through their job skills and money, constitute a powerful vested interest. They know the law. They tend to be articulate. Making an argument for themselves is a large element of their skill set. As a group, they are in a position to exercise more influence through political donations than others. And crucially, a large cohort of their number get personally involved in politics. It all adds up to some serious weight behind their own interests.

Last year, the Public Accounts Committee was told just one of 15 recommend- ations in a 2007 Competition Authority report had been implemented. A study by the World Bank in 2009 found that Irish legal fees were among the highest in the world.

As long as governments are willing to succumb to the power of lawyers, that culture will prevail. The knock-on effects of an over-legalised society will continue to be felt. Mr Nyberg can go home to Finland and regale all and sundry about the bankrupt country where lawyers put the hammer on every- thing. The rest of us are stuck with it until somebody in power finally shouts stop.