Unification of the Legal Profession

Robert Ryan provides an overview commentary on two recent Legal Services Regulatory Authority Reports which address the unification of the legal profession, legal education and training

The Legal Services Regulatory Authority [“the Authority”] has very recently published two Reports under Section 34 of the Legal Services Regulation Act 2015 [“the 2015 Act”] entitled: • Greater than the Sum of its Parts? Consideration of

Unification of the Solicitors’ Profession and Barristers’

Profession [“the Unification Report”]; and • Setting Standards. Legal Practitioner Education and

Training [“the Education Report”].

Each Report is dated 30th September 2020, was published on 19th November 2020, and is available to view on: www.lsra.ie/publications.

By way of overview, the substantive conclusion of the Unification Report is that there should not be unification of the solicitors’ profession and barristers’ profession; and the substantive conclusion of the Education Report is that there should be Standard Setting for Legal Practitioner Education and Training.

Those conclusions accord with the submissions of the DSBA to the Authority on each topic, and which have been extensively referenced by the Authority in both Reports.

In a press release dated 19th November 2020 issued by the Department of Justice headed “Minister McEntee to reform legal education and remove barriers to becoming a solicitor or barrister”, the Minister for Justice Helen McEntee welcomed both Reports.

The Minister made no specific comment in the press release on the Unification Report, but did state in relation to the Education Report that she “was committed to working with the LSRA to drive reform of legal education”. The Minister also stated that she had now called upon the Authority to prepare a report focusing on the financial and administrative barriers that aspiring lawyers face at the outset of their careers, and to make recommendations for change in that regard. Unification The Unification Report (125 pages) analyses the question as to whether there should be unification of the solicitors’ profession with the barristers’ profession. The analysis is applied across the five headings of examination provided for under Section 34 of the 2015 Act – as to the public interest, competition, administration of justice, the consumer interest, and other matters considered appropriate by the Authority.

The Unification Report draws on relevant research in Ireland and in other comparable jurisdictions, as well as (extensively) on the various submissions received in response to its consultation on unification (the DSBA being one of the ten bodies listed as having made a submission, and the only solicitors’ bar association to do so). Most of the submissions advocate against unification of the solicitors’ profession with the barristers’ profession, and it appears for much the same reasons.

As to whether any such unification might provide lower costs for consumers of legal services, both the Law Society and the DSBA expressed the view that this would require a full economic analysis, with the DSBA adding that reform of the court listing system might also be necessary.

The Authority evidently hoped [para. 4.10] it would have received more submissions and from a wider stakeholder base (such as consumer, business and public sector entities or groups which are users of legal services). The absence of other such submissions might be indicative of unification not being regarded at large as necessary.

In any event, having considered all relevant aspects, the Authority concluded that “there is a lack of compelling evidence to support a recommendation that the profession be unified” [para. 6.54].

Robert Ryan is former chair of the DSBA Task Force and a member of the Law Society of Ireland Task Force, on the Legal Services Regulation Act. He is also a past president of the DSBA. Robert is the principal of Doherty Ryan & Associates Solicitors, Dublin 2

Accordingly the Authority’s recommendation to the Minister [para. 6.22] is that “the solicitors’ profession and the barristers’ profession should not be unified at this time”. This is subject to a time based saver [para.6.25] in that the Authority “undertakes to return to this matter no less than five years from the date of submission of this report to the Minister”.

This period is as stated [para.6.22] designed to allow for changes over time in the legal landscape in Ireland, particularly the changes as are or may be allowed for under the 2015 Act as relevant to the unification question – such as to allow for new business structures (e.g. legal partnerships or multidisciplinary partnerships) or expanded direct access to barristers or easier transfer between the two professions and so on. Legal Education & Training The background to the Education Report (105 pages) is the Authority’s September 2018 Interim Report to the Minister regarding Legal Education and Training in Ireland [“the 2018 Report”]. The 2018 Report attached the very lengthy report of the Consultants engaged by the Authority, and which report set out a case for the reform of legal education and legal training in Ireland based on two Core Proposals.

The first Core Proposal was that a clear definition of the competence and standards required to practise law should be developed in relation to legal practitioners, as the “competence and standards-based approach …offers an opportunity better to define not only core knowledge, skills and attitudes required by legal professionals, but also the specific tasks they should be capable of performing, and the standard at which such tasks should be performed”.

The second Core Proposal was that the Authority should establish a new independent body, to be called the ‘Legal Practitioner Education and Training Committee’, to be tasked with responsibility for setting and assuring standards of legal practitioner education and training.

Subsequent to the 2018 Report the Authority undertook consultations on the proposals set out therein, including with the professional and educational bodies for solicitors and barristers as well as other key stakeholders (including the DSBA). The Authority also held a public symposium to discuss those proposals in September 2019.

The Education Report refers to all of the foregoing, setting out the positions of all those subsequently consulted on the 2018 Report, as well as referring to the wider context of legal education and training. It then makes twelve Recommendations (set out on pages 98 & 99) and which may be broadly summarised as follows: • to establish an ‘Legal Practitioner Education and Training’ (LPET) committee tasked with developing, implementing and maintaining a clear definition of the competence and standards required to practise as either a solicitor or barrister; • LPET committee to have powers to compel adherence in relation to the required standards by existing and new legal education & training service providers; • LPET committee to have power of accreditation and scrutiny of new legal education & training service providers; • LPET committee to be statutorily empowered to exercise its functions; • LPET committee to be established by the

Authority, and to receive administrative and logistical support from the Authority, but to be independent from the Authority in its decision making; • LPET committee to be made up of no more than seven members and constituted as a part time committee; • LPET committee to be funded by a blend of State grant and accreditation fees. Conclusion

The Unification Report may be viewed as settling, at least for now and into the medium term, the question of unification of the solicitors’ profession and barristers’ profession.

In the Education Report the Authority has evidently adopted in its recommendations the two Core Proposals of the 2018 Report, and that these have the support of the Minister. One may conclude therefore that it is only a matter of time before the LPET committee is established, albeit it appears dependant on statutory intervention for is establishment.

And as to the Minister’s call for the removal of barriers to becoming a solicitor or barrister, this will in due course likely become another topic for detailed consideration by all concerned, and not perhaps for the first time.

Most of the submissions advocated against unification of the solicitors’ profession with the barristers’ profession