The Gazette 1971

medicine and other professions at least to the extent of

preventing unqualified persons from using a profes-

sional description. The Oireachtas has recognised the

need for protection as recently as 1963 by creating the

new profession of trade mark agent.

The removal of restrictions could also open the field

to malpractices. The penal sanction of striking off the

role would be gone with consequent lowering of stan-

dards. Solicitors themselves might be tempted to reduce

the quality of professional service in order to get busi-

ness and in competition with others. There may be an

arguable case for terminating the so called legal mono-

poly. It is, however, not tenable to argue that the

restrictions on practice should be removed while con-

tinuing the present statutory restrictions on fees. If

solicitors are to compete with non-lawyers in their field

of practice they should also have the same freedom to

fix their own fees as, say, chartered accountants in

Ireland and elsewhere, and solicitors in Scotland where

the scale charges in non-contentious matters are pre-

scribed by the law Society.

Competition

The economic arguments for price competition in

the professions with the concomitant practices of adver-

tising, undercutting and supplanting, which have

always been regarded as unprofessional, are that they

would

(a) reduce legal charges,

(b) promote business efficiency by driving our in-

competent practitioners and encouraging amal-

gamation and large scale operations of the

Marks and Spencer type together with the use of

machinery and up-to-date methods of process-

ing work.

As opposed to this view it is said that competition

of the commercial type is inappropriate to professional

work where the emphasis must be on quality and in-

tegrity. Is a system of cut-throat competition desirable

with prospective clients hawking business from office to

office to get the lowest cut price? It would lower

standards, cause professional financial failures and lead

to claims on the compensation fund. The existence of

the compensation fund is hardly an argument for en-

couraging practices which may lead to claims against

the fund—which, incidentally, is not inexhaustible.

Solicitors compete with one another on the basis of pro-

fessional skill and efficiency. There is an adequate

supply of solicitors in the country to satisfy the public

need and there is nothing in the nature of a large scale

monopoly of the trust or cartel type. If full scale com-

mercial competition were to become the rule in the

legal profession there could be a tendency for the

smaller offices, which perform a useful service particul-

arly in outlying districts, to be replaced by larger units

in urban centres. Competition might therefore tend to

defeat its own object as the closure of offices in small

towns would result in concentration of work in larger

units and probably a refusal to accept the type of busi-

ness which is now carried on in many branch and sub-

offices. The result in the end might be larger incomes

for practising solicitors but a loss of professional ser-

vices to clients in isolated districts with small means.

Competitive advertising by professional men would not

increase the quality of professional services. It would

be expensive and the cost would have to be recovered

in fees. By a process like that of Gresham's law the

result in some cases might be that the bad would drive

out the good. The object of commercial advertising is

to generate a demand for consumer goods. The legal

profession exists to satisfy a demand which already

exists and it is questionable whether individual adver-

tising with a view to increasing the public demand for

legal services in litigation and other fields would have

any long-term advantages. This, however, is not to sug-

gest that there is no case for institutional, informative

publication by professional bodies on behalf of their

members as a whole and this has already been under-

taken by the Society although on a limited scale.

The effect of solicitors' earnings on inflation

Professional fees have probably a small influence on

prices. Solicitors' fees must have a smaller effect than

many other professions because of the small "legal

costs" content in most jobs. The statements of Pro-

fessor Fogarty of E.S.R.I, on this topic have been men-

tioned already.

Responsibility with Independence

The solicitors' profession has no inbuilt resistance to

change or to a full examination of its professionsl rules

and practices; on the contrary, it is welcomed by the

profession. The Council of the Law Society suggested

to the Minister of Justice in 1962 the appointment

of a single statutory body to deal with all professional

remuneration and in 1969 they repeated this sugges-

tion and offered to accept a committee which would

include representation of the public and experts such

as chartered accountants who are familiar with con-

ditions in the commercial as well as the professional

field. They have, however, insisted on one condition—

that control over the orders made by such a committee

would rest with the Oireachtas not the executive or

the civil service.

For the preservation of the liberty of the subject

and the rule of law it is essential that the legal pro-

fession above all should preserve its independence. From

this it follows that the profession should have the

right to regulate its own affairs, have adequate

economic resources to enable it to act fearlessly and

that it should not have to perform its duties in pre-

serving the rights and liberties of the citizen under

conditions calculated to render it subservient to

external pressure. If the independence of the profession

were significantly curtailed a vital safeguard for the

liberty of every citizen would be curtailed with it.

(By permission of the

New Irish Jurist)

The President and Vice-Presidents

Mr. James W. O Donovan of Cork City has been

Osborne of Naas, Co. Kildare have been elected Vice-

elected President for the year 1971-72. Mr. T. V.

Presidents.

O'Connor of Swinford, Co. Mayo and Mr. William

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