GERTRUDIS, “FIGURA ESTELAR” DEL “HERALDO DEL AMOR DIVINO”
2. La parte de la Figura estelar
Conveyancing and the Restrictions on Advertising by Solicitors (April 1982)
Background
The Restrictive Practices Commission reported to the Minister for Trade, Commerce and Tourism in April 1982 on its Enquiry into:
(1) “the nature and extent of competition in the carrying on of conveyancing for gain with particular reference to the effects on competition of legal requirements restricting the provision of this service; and
(2) how the prohibition on advertising affects competition by solicitors.”
In the course of its Enquiry the Commission received 33 submissions from interested parties and held twelve days of public sittings, taking evidence from 29 witnesses.
Recommendations
The Commission made a number of recommendations designed:
• to ensure protection to members of the public through greater publicity for the Law Society’s disciplinary procedures and lay representation on the Society’s Disciplinary bodies and its Council;
• to prohibit restrictions on advertising (with the exception of advertising which would bring the profession into disrepute);
• to make it unlawful to induce a solicitor not to charge less than the prescribed scale fees; and • to examine whether the aspects of conveyancing reserved to solicitors could be reduced.
Implementation
Some of the Commission’s recommendations have been implemented. There is now some lay representation on the Law Society’s disciplinary bodies. Other recommendations have been overtaken by events, for example fee scales are now prohibited. Other recommendations have not yet been implemented (for example there is still no lay
representation on the Council of the Law Society), or partly implemented (such as the recommendation to prohibit restrictions on advertising).
Fair Trade Commission
– Report of Study into Restrictive Practices in the Legal Profession(March 1990)Background
In 1990 the Fair Trade Commission published the report of its Study into Restrictive Practices in the Legal Profession. The study was part of a wider study into certain professional services which the Commission was asked to carry out by the Minister for Industry, Trade, Commerce and Tourism in April 1984.
The Commission received more than 80 submissions from interested parties and compiled a questionnaire which it sent to the relevant professional bodies. The Commission also held 40 days of meetings with interested parties, including the Law Society and the Bar Council.
Recommendations
Committee on Legal Education and Training to review the education and training of lawyers and to implement a system of common vocational training for solicitors and barristers. The Commission also highlighted its concern that the control over entry exerted by the professions might lead to the numbers admitted being restricted to a level which matched the requirements of the profession and not the public.
On direct access to barristers, the Commission concluded that all clients should be able to approach barristers directly, both for contentious and non-contentious business, but that individual barristers would be entitled to insist that a solicitor be engaged.
The Commission also examined a number of rules and practices around the size of legal teams in Court and recommended that the number of counsel engaged in a case should be no more than strictly necessary. On the issue of business structures, the Commission recommended that there should be the greatest possible freedom allowed to solicitors and barristers to decide on the most suitable form of business organisation.
The Commission recommended that individual barristers and solicitors should be permitted full freedom to negotiate
fees with their clients; that the various Rules and Orders prescribing solicitors fees should be revoked and that
neither the Law Society nor the Bar Council should issue recommendations on fees to their members.
On advertising, the Commission recommended that barristers be able to advertise freely and that restrictions on advertising by solicitors, such as the prohibition on touting for business and the ban on fee advertising, should be removed.
On legal personnel in employment, the Commission recommended that employed barristers should be allowed to represent their employers in Court and that barristers should be permitted to be employed by other barristers and by solicitors and multi-disciplinary practices.
The Commission expressed concern that there was no lay involvement in the disciplinary procedures of the Law Society and the Bar Council and recommended lay representation on disciplinary bodies and the establishment of an office of Legal Ombudsman to deal with complaints concerning solicitors and barristers.
The Commission also made a number of miscellaneous recommendations such as the appointment of solicitors as judges and that consideration be given to dealing with personal injuries actions in a tribunal rather than a normal court.
Again, some of the recommendations made by the Commission have been implemented, such as lay involvement in disciplinary procedures; the appointment of solicitors as judges and the establishment of the Personal Injuries Assessment Board. Legislation providing for the establishment of a Legal Services Ombudsman was published in April 2006. Others have been partly implemented, such as direct access to barristers, which is limited to certain groups for legal advice only, rather than full access as recommended by the Commission. Many recommendations have not been implemented. For example, employed barristers cannot represent their employers in court; barristers are still not allowed to advertise freely and solicitors and barristers are still restricted in terms of the business structures they can use in offering their services to the public.