The Gazette 1971

Solicitors in the Republic.

A Reply to the Professors

Eric A. Plunkett*

It has become fashionable to criticise the legal profession

as being conservative, unprogressive, overprivileged

and overpaid. The twenty to forty per cent activities of

the solicitors' profession in the field of litigation,

debt collection and contentious work, which by and

large is unremunerative while socially necessary,

creates unpopularity for the profession which is no less

real because it is based on misunderstanding of its

work. Ninety per cent of the community regularly avail

of the health service and are familiar with the work of

the medical practitioners and dentists. They are grate-

ful because they see the results of the work. It is ex-

tremely unlikely that the majority of publicists who

criticise the legal profession have had any extensive

experience of legal services. They speak from hearsay

rather than fact. That is not to argue that the profess-

ion is infallible or faultless or that there is no case for

reform of the law.

Professor Kaim-Caudle in several recent publications

Léargas

and in the

New Irish Jurist

and more re-

cently Profesor Fogarty in

Léargas

have voiced

opinions about fee structures and practices of the pro-

fession which, generally speaking follow the line taken

in England by the now obsolescent National Prices and

Incomes Board and by the Monopolies Commission.

Professor Fogarty's views are crystallised in the follow-

ing passage from his article in

Léargas :

"The earnings of professional men . .. are hard to

judge because the statistics on them are so poor.

Recent studies at the E.S.R.I. have established for

certain professions, what has been widely suspected of

the professions generally, that the rates charged for

professional services are unreasonably high having

regard to the general level of incomes in the country

. . .The main contribution of professional workers

and the self-employed to inflation however . .. is

through creating an atmosphere of fiddle and sus-

picion. The doctor, the solicitor, the substantial

builder or shopkeeper are prominent citizens of the

local community. If people like these are widely sus-

pected, as they are, of falling short of the highest

standards of professional integrity in their financial

dealings with the tax authority or with the public,

it is hard to persuade others to be more self re-

strained."

Professor Fogarty acquits civil servants and others

in widely dissimilar categories from the charge of being

a basic cauie of inflation. Later he says that the culpable

professional class is not criticised because of the scale

of their contribution to inflation which, he says, is only

"peanuts" (wages and salaries being by far the biggest

* Secretary, The Incorporated Law Society of Ireland.

1. "Solicitors' Charges and Incomes,"

Léargas (Public Affairs),

January 1970.

2. "Productivity. Income and Standards of Solicitors in the

Irish Republic" 5

Irish Jurist

(nj.) 40 (1970).

3. "Fighting Inflation—the Role of the State",

Léargas

(Public Affairs),

March 1971.

part of the national income). The argument apparently

runs thus. Wage and salary increases must be controlled

to contain inflation. This cannot be achieved because

of a feeling, albeit based only on suspicion, that pro-

fess

onal men are overpaid.

Ergo,

let us make an

example of the professionals

pour encourager les

autres.

Professor Fogarty is deservedly held in high esteem

for his contributions to thinking on our current

economic problems and it is therefore surprising that

ht should draw conclusions based, as he admits, on

premises without any adequate statistical support on

the basis of mere suspicion. He is on record elsewhere

as saying that the total of shopkeepers' margins and

all professional mens' fees amount to little over 5p in

the pound of the national income.

The economic impact of the fees of all professional

men, and particularly of solicitors' fees, is insignificant

as a contribution to inflation. Still, if Professor

Fogarty is right in attributing to the solicitors' pro-

fession as a whole a declension from proper standards

of professional integrity in their financial dealings with

the tax authorities and the public the position is

indeed serious. He has adduced no evidence to justify

this statement. There are exceptions to every rule, but

it is a remarkable fact that the average client, while

possibly affected by propaganda in the communica-

tions media about the profession as a whole, usually

regards his own solicitor as a trusted and competent

adviser.

Professor Kaim-Caudle and others have dealt with

the problem under various heads.

C ross-subsidisation

Cross-subsidisation occurs in regard to solicitors' re-

muneration when members undertake certain types of

business which are unremunerated or underremunerat-

ed relying on the income from other sources, mainly

conveyancing and probate, to cover their overhead

expenses and provide a profit.

It is said to be unfair that client A should have to

subsidise client B in the cost of legal services and that

there is no reason why a particular client should have

to pay more than reasonable profit plus the actual cost

of providing the services. The fact that another client

may obtain different legal services at a specially reduc-

ed rate is no concern or satisfaction to the client who

has to pay more than what would otherwise be the

normal rate. It is said that each service should pay its

own cost irrespective of the means or ability of the

client to whom the service is rendered and that, if

income or cost transfers are justified, they should be

made by the State, not by a professional body.

These views, with respect, are those of the pure

economist and take little account of the facts of daily

life. The average solicitor must be guide, philosopher

and friend to all his clients. He can refuse no request

for advice and turn away no client. Opportunity for

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