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lawyers may compete with the profession and are
free to negotiate their own fees.
Furthermore, it should be noted that solicitors'
fees are controlled even for those in which they
have no monopoly. Anyone can negotiate a settle
ment or compromise of a claim or a property
deal. A
non-solicitor doing
such work can
negotiate his fee or commission and will not be
subject to the Taxing Master. A solicitor doing
precisely the same job, as a solicitor with the
additional expertise required of him, will be
subject to the statutory requirement of submitting
a Bill of Costs and to taxation if required.
The so-called monopoly was created in the
public interest; it gives the client the protection
of the solicitors' professional training and integrity
and the protection of the Compensation Fund.
Solicitors' statutory fees are fixed only in the
sense that a solicitor may not —
(a)
charge above them;
(b)
hold himself out as willing to undercharge for
the purpose of attracting business.
He may accept a lower fee, or nothing, for a
particular job.
It is in the area of competition that the con
fusion with monopoly mainly arises. It is, however,
quite incorrect to say that "Solicitors oppose com
petition between themselves by arguing that this
will reduce the quality of their work", and is
wholly
inapt
to
them
to ask
if supermarkets
provide worse value because they charge lower
prices than the small general stores.
Whilst
monopoly
eliminates
competitors,
standards of performance and behaviour do not.
Solicitors are in intensive competition with each
other on the basis of quality. As I have already
pointed out in my comments on Professor Kaim-
Caudle's earlier article on
the professions
in
general, the volume of work which the professional
practitioner builds up is dependent upon
the
reputation he has gained in the rendering of past
services. Resources are not pooled, rewards are
not shared.
Supermarkets do not produce quality,
they
market
it. The quality
is
the function of the
manufacturer or the primary producer. Nothing
can affect the standard of quality of a particular
brand of a tin of peaches once it has been pro
duced — not even the 3d. off expedient. What
the supermarket can charge
is a quantitative
assessment based on answering the question—how
many XY articles can be sold, and, if XY are
sold at a cut-price on Wednesday, how many
other articles will be sold on that day because
of the enticement of additional customers chasing
the reduced XY?
Undercutting when the quality is being sold by
the producer is a wholly different matter. Cut-
price practices have to be compensated for some
how. What the solicitors' profession seeks to
eliminate is competition between quality and less-
than-quality. It is not a reflection on the profession,
any more than it is on human nature in general,
to acknowledge the fact that there are those who
will produce at a price below accepted levels,
compensated by a reduced if disguised quality.
Skill, confidence,
trust and
integrity are not
matters to put at risk. The Professor says that
there is "little reason for thinking that absence of
competition guarantees a high standard of work.'1
Of course, it doesn't. When quality is what is paid
for, the product can only survive if it leads in
quality. An economist should know better than
to confuse quantitative with qualitative assess
ment.
Once more Professor Kaim-Caudle flies the kite
of cross-subsidisation. It has become fashionable
following the ideas of English writers like Abel-
Smith, Stevens and Zander to condemn cross-
subsidisation as self-evidently bad, but —
(a)
Solicitors' conveyancing charges are fixed not
by the profession (as in the case of chartered
accountants)
but by
the State
operating
through statutory bodies.
The system has
worked well in practice. By and large there
are only few complaints from clients — cer
tainly in regard to the large transactions which
are the target of criticisms of these authors.
(b)
It is not inequitable that the wealthy client
should help to subsidise the poorer. The State
adopts the same principle in taxation. Many
public services operate on the same basis.
(c)
The extent of cross-subsidisation is reduced
by the regressive element in the conveyancing
fee and further by the spread of registration
of title e.g. in the case of unregistered property
the rate declines to 1%, and in registered
property to 0.375% above £10,000.
(d)
It is difficult to understand why commission
charges are attacked when used by solicitors,
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