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Lack of ‘compelling evidence’ for solicitor-barrister unification
New solicitors receive their parchments at Blackhall Place Pic: Jason Clarke

19 Nov 2020 / law society Print

No ‘compelling evidence’ for unification with Bar

The Legal Services Regulatory Authority (LSRA) has issued a report on standards for legal education.

It has also published a report on the potential unification of the solicitors’ and barristers’ professions, but concludes that this is premature for now.

Both reports have been submitted to the Minister for Justice Helen McEntee, as required under section 34 of the Legal Services Regulation Act 2015.

Reforms to legal education

The first report, Setting Standards: Legal Practitioner Education and Training, recommends reforms to, for the first time, define the competence and standards required to practise as a solicitor or barrister.

It also recommends the establishment of a statutory framework to accredit existing providers of legal practitioner education and training, as well as, for the first time, allowing new providers to be accredited to provide professional training for solicitors and barristers.

Unification of professions ‘premature’

In the second report, Greater than the Sum of Its Parts? Consideration of Unification of the Solicitors’ Profession and Barristers’ Profession, the LSRA concludes that, at this stage in its regulatory timeline, it would be premature to recommend that the two branches of the profession be unified.

However, the matter will be taken up again within five years, when the LSRA anticipates that the landscape for legal services’ provision will have evolved sufficiently in order for the question to be reconsidered.  

The report notes that the authority has taken account of pending, proposed and potential reforms that would change the landscape for legal services delivery in the years ahead, and impact on the regulatory framework for barristers and solicitors.

Legal education reform recommendations

Setting Standards: Legal Practitioner Education and Training makes 12 important recommendations for reform of legal education and training for solicitors and barristers, with two central recommendations:

1)    A clear definition of the competence and standards required to practise as a solicitor or barrister should be developed,

2)    The introduction of a statutory framework to establish a new and independent Legal Practitioner Education and Training Committee (the LPET Committee). The committee would be statutorily required and empowered to: 

  • Set the competency framework for legal practitioner education and training,
  • Develop a common set of competencies and standards for admission to professional legal training,
  • Ensure that existing providers of legal education and training adhere to the standards required by the Competency Framework on an ongoing basis,
  • Scrutinise and accredit new providers of legal education and training, based on set criteria established by the LPET Committee,
  • Monitor the quality of legal education and training,
  • Encourage innovation in the provision of legal education and training
  • Encourage diversity in legal education and training, and
  • Engage with key stakeholders in legal education and training.

Two branches

Though concluding that it would be premature to recommend that the two branches of the profession be unified, the LSRA says it will return to the matter within five years.

It anticipates that, by that time, the landscape for legal-services provision will have evolved sufficiently in order for it to reconsider the question of unification, as posed in the act.

The report states that: “The authority considers that, at this stage in its regulatory timeline, it would be premature for it to recommend to the minister that the solicitors’ and barristers’ professions be unified. 

“The authority was established on 1 October 2016. The context in which it is now considering the issue of unification is considerably different to that originally envisaged under the act.”

Changing landscape

Pending, proposed, and potential reforms will change the landscape for legal services’ delivery in the years ahead, and impact on the regulatory framework for barristers and solicitors, the LSRA says.

“The impact of these reforms would be to introduce new methods of legal-service delivery, as well as expanding the scope of existing models,” it continues.

These changes include the planned introduction of legal partnerships, a new legal practice model, which is awaiting implementation by way of amendment to the act.

Relaxing the rules on partnerships

The report says that: “Relaxing the rules on barristers forming partnerships with other barristers and/or solicitors will offer more flexibility to legal practitioners, allowing them to work together and provide different and more efficient and competitively priced legal services to consumers. 

“Legal partnerships, by allowing barristers and solicitors to work together within one business entity, mean that consumers can visit a solicitor and barrister operating in the same premises as a ‘one-stop shop’ for the provision of legal services.”

The authority has also undertaken to give further consideration to the introduction of multi-disciplinary practices (MDPs) – another legal business model contemplated by the Legal Services Regulation Act 2015.

The report notes that the introduction of legal partnerships should assist it in further considering the introduction of MDPs.

Lack of compelling evidence

The authority observes in the report that, regardless of the exact form it may take, the introduction of a formally unified legal profession in Ireland could reasonably be expected to have far-reaching consequences, not only for legal practitioners themselves, but also for consumers of legal services, the operation of the courts, and the wider administration of justice.

The report states that: “In the authority’s opinion, having considered the views of respondents to this consultation, and having analysed arrangements in other jurisdictions, there is a lack of compelling evidence to support a recommendation that the profession be unified.

“This is not to say that there is not an ongoing case for the authority to continue to examine areas of legal-services provision where structural improvements and efficiencies are warranted. This work is fundamental to the fulfilment of its statutory objectives under the act.” 

New business structures

The report adds that the act contains a number of provisions which “have the potential to substantially alter the rules of the legal profession by lifting existing restrictions on barristers, allowing them to operate in new business structures and further facilitating movement between the profession of barrister and solicitor.” 

These include two sections of the act that have not yet been commenced. Section 101 of the act extends the provision of direct access to barristers for legal advice to all members of the public in non-contentious matters (legal opinion).

Section 217 of the act permits the authority to make regulations to exempt barristers and solicitors seeking to transfer to the other branch of the profession from an unnecessary admission requirement.

In-house counsel

In addition, section 212 of the act (which was commenced on 7 October 2019) provides that a barrister whose name is entered on the Roll of Practising Barristers may take up employment, and as part of that employment provide legal services for his or her employer, including by appearing on behalf of that employer in a court, tribunal or forum for arbitration.

Previously, employed barristers were not permitted to represent their employers, or any other client. 

New profession of conveyancer

The report also notes that section 34(1)(c) of the act requires the authority to report on the creation of a new profession of conveyancer.

It says the introduction of a new profession of conveyancer in Ireland could have a significant impact on the solicitors’ profession, as conveyancing work is among what is referred to as “reserved legal services” that can only be provided by solicitors. 

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