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specialisation is limited, sometimes non-existent. It
might be possible to introduce the ideas of the
•economist but only by massive interference and change
in the structure of practice and the relationship of the
profession with its clients. This would have consider-
able social implications affecting the service now given
by the profession to the public. In the absence of a
system of adequate legal aid in civil and criminal mat-
ters a large number of clients need legal service and
advice and guidance not only on legal matters but over
a wide field for which they cannot pay adequate fees.
There is a social service element in legal practice which
is particularly relevant in country areas. The fact must
be faced that if the existing system of cross-subsidisation
were abolished the State would have to provide many
of the legal services, which the public demand, by
means of direct legal aid in civil and criminal matters.
This would inevitably create a different form of cross-
subsidisation through payment for services from public
monies which could be raised only by taxation. If, in
the absence of cross-subsidisation by the profession or
a comprehensive system of State aid many services
were simply unavailable to a large sector of the
public, who or what would fill the gap if solicitors de-
clined all unremunerative work, as they would have to
do in a strictly commercialised profession? No one has
examined the alternatives to cross-subsidisation and it
is not sufficient to condemn it without suggesting an
alternative. The report of the English Prices and
Incomes Board recognised it as an essential element
in the economic and financial structure of legal practice.
Fairness
Cross-subsidisation is fair in its results. It is not un-
reasonable that the wealthier client, particularly where
property and money is passing, should pay more so that
the less affluent can obtain legal services at a price
within their means. This has been a characteristic of
both the legal and the medical professions from time
immemorial. Cross-subsidisation is recognised by the
State itself and in statutory bodies such as C.I.E. and
the E.S.B. It is well known that the profits from the
bus service in Dublin are used to subsidise transport
in country districts. It is also a feature of commerce
and business. Supermarkets which are often quoted as
a model of efficiency vary their prices continually runn-
ing off some lines below cost and making up the profit
on others. The E.S.B. supplies electricity to some citizens
at or below cost while others are charged at a higher
rate.
It is thought that part of the fees paid by university
students in low cost faculties is used to subsidise the
high cost faculties such as medicine, dentistry and
engineering which require expensive capital equipment.
In fairness it must be said that the exact position in
the universities cannot be established in the absence of
detailed financial accounts. Enough has been said how-
ever to demolish the theory that cross-subsidisation is
intrinsically bad or indeed unusual.
Cross-subsidisation in solicitors' professional fees was
created by the State as these fees are fixed, not by the
profession but by statutory bodies. Solicitors' fees in
non-contentious business are regulated by orders made
under the Solicitors' Remuneration Act 1881 and, in
the case of litigation, by rules made by the various
courts committees also operating under statutory
powers. It is erroneous to suggest that the profession
itself has created cross-subsidisation.
In the experience of practitioners there is no general
complaint from the public at large. The effect of cross-
subsidisation is reduced by the regressive element in
the conveyancing fees and further by the spread of
registration of title. As examples, in the case of con-
veyances of unregistered land the commission scale fee
falls away from 3.25% on the part of the considera-
tion below £1,000 to 1% on the part of the con-
sideration exceeding £10,000. In the case of fully regis-
tered land the corresponding percentages are 2% and
0.37%. The system favours the public in underdeveloped
areas where holdings are small and practice largely
consists of numerous small transactions which could
not bear the economic cost of the services. Solicitors
more than any other profession must transact business
for a widely varying clientele from wealthy companies
to individuals with little means. Many transactions have
great personal but little tangible property value, e.g.
family and personal problems. It would be impossible
to time-cost each case and charge on the basis of cost
plus. A former Secretary of the Department of Justice,
now deceased, once remarked to the writer of this
article that as a matter of practical business the pro-
fession must look for its remuneration where the
resources exist.
Commission scale fees
The commission scale fee is a separate matter.
Theoretically, commission scale fees could be designed
which would produce over a particular class of business
just sufficient to cover the costs plus reasonable profit
on that specific business. It has been argued that,
because it is geared to inflation, the commission scale
fee enables solicitors to obtain an economic advantage
not available to other sections of the community, that
it produces excessive remuneration and that it is in-
equitable that solicitors' fees on the commission basis
should increase with inflation although the actual work
involved remains the same.
There must, however be some criterion. Other pro-
fessions which have no statutory scales, have well-
understood concepts as to the appropriate scales be-
tween comparable offices and practices. The minimum
time charges in many cases are much higher than the
statutory time charges of solicitors. The increase in these
other charges is continuous and progressive and has
outstripped solicitors' fees. Commission scale fees are
not peculiar to Ireland or to the solicitors' profession.
In the U.S.A. even litigation is conducted on a com-
mission scale fee system which is not permitted in Ire-
land on professional grounds. The commission scale
fee system was introduced to replace the old itemised
system which encouraged multiplication of work and
delay. It is more efficient in its operation. It is used
by architects, stockbrokers, surveyors, commodity fac-
tors, literary agents and commercial agents generally.
Business generally protects itself against rising costs by
fixing profit as a percentage on turnover as in the build-
ing industry where the recognised rate of profit may be
as high as 21% so that some builders' profits rise with
wages and the price of building materials.
It has also the advantage of uniformity, certainty
and simplicity. The client can ascertain in advance
his total financial commitment in a conveyancing mat-
ter while on any other basis he cannot calculate his
liability until the work has been completed and detailed
bills of costs drawn and furnished. It is therefore a pro-
tection against overcharging and it also has the advant-
age of economy and speed in drawing bills of costs. The
alternative under the present system is a bill of costs
drawn under schedule 2 which requires the services
of an experienced costs drawer. There is a great short-
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