The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND

GAZETTE

Vol. No. 79 No. 1

January/February 1985

Not With a Bang . . .

HE long awaited report of the Restrictive Practices

Commission into the effects on competition of the

restrictions in conveyancing and the restrictions on

advertising by solicitors has emerged not with a bang, but

with a whimper. To a great extent this was inevitable

because of the substantial changes which have taken place

since 1977 when the Minister first requested the Examiner

to conduct an enquiry. The property booms of the early

and late 70's with their emphasis on private house

building and commercial development ended shortly

after the Commission held its hearings in 1980. The

numbers of practising solicitors had by 1984 already

reached the number projected by the Law Society for

1986. One trend has remained constant; the complexity of

the conveyancing process has increased and there is no

sign of reform or updating of Conveyancing law being

given any priority by the Government.

Freedom for lawyers to advertise has recently been

introduced into England and Wales, following on the

United States, and it is about to be introduced in

Scotland. However little taste many, perhaps the

substantial majority of, solicitors may have for

advertising it is beginning to be seen as inevitable but also

as largely irrelevant. In the United States where there has

now been some seven years experience of lawyer

advertising, it is clear that only a small minority of

Attorneys are prepared to indulge in direct advertising in

the media. The view of the theoretical economist that

advertising will improve competition does not commend

itself to most practitioners whose pragmatic judgment is

that the cost of media advertising is not justified by the

prospective return in fee income. An American Bar

Association poll revealed that only 13% of lawyers had

tried advertising. On the assumption that the

Commission's recommendation is accepted it seems likely

that the only practical effect on the general situation will

be that practitioners will be more free to advertise their

existence and possibly the areas in which they are

prepared to take work.

On the Conveyancing side, as might be expected from a

Commission whose majority was composed of two

distinguished academics, the evidence given to the

Tribunal has been marshalled and analysed impressively

and with one major exception it would be difficult to

disagree with the conclusions which have been reached.

The exception is the sort of recommendation which has

tended to make the word 'academic' a pejorative one.

The recommendation that sellers of property should be

entitled to engage non-solicitor conveyancers to do their

conveyancing for reward is impossible to justify. It is

difficult to avoid the conclusion that the majority of the

Commission were thrashing around looking for some

recommendation to make which would reduce the so-

called 'monopoly', having rightly recognised the

pointlessness of setting up a parallel profession of

'qualified conveyancers'.

The recommendation that purchasers need protection

and sellers do not stands up poorly to critical

examination. The Commission itself recognises that 'a

prudent and well advised vendor . . . would choose a

solicitor rather than a non-professional . . .' and also

recognises that the professional indemnity insurance

which it believes all solicitors engaged in conveyancing

should carry would not be available to lay conveyancers.

On the practical side the Commission doesn't appreciate

that most sellers are also purchasers and confusion would

clearly arise if a seller were engaging two persons — one

unqualified conveyancer to act in the sale and another

qualified solicitor to act in the purchase. There is almost

as much logic in the Commissioners' recommendation as

there would be to require motorists to insure their cars for

journeys into the City but not to insure them for journeys

out of the City.

The most disappointing aspect of the report is that

while the Commission rightly recognises the complexity

of conveyancing, it has made no recommendation that

Conveyancing law should be reformed and updated. The

Law Society has been seeking reform of Conveyancing

law for several years but without any satisfactory

response from the Department of Justice. It is the

complexity of the legal aspects of conveyancing practice

which largely contributes to delay and expense,

particularly in domestic conveyancing — over 100 years

have passed since the last major reform of Conveyancing

law. It is clearly time for an urgent review preferably to be

carried out by a specialised Committee such as that sitting

in Northern Ireland.

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