by Frank Schnittger
Mon Nov 30th, 2020 at 11:41:14 AM EST
Well, really I do, except I have to admit that none of my best friends are lawyers. My problems with the legal profession in Ireland are four fold:
- They are incentivised by the reward structure to mythologise, over-complicate and drag out any work they are given to do, because they are essentially private contractors paid by the hour for the amount of work they claim to have done, and much of what they do is not strictly legal work, or work for which a legal qualification should be required.
- They are an almost entirely self-regulated profession, resisting all attempts at public accountability, have a near monopoly of professional legal training, and are often nepotistic in character, with legal practices handed down through family members and dependent on networks of contacts rather than any extraordinary expertise in a particular field.
- Despite having many members of the utmost integrity and probity, I would also argue the profession is structurally corrupt, with many civil cases settled out of court for fear of ruinous legal fees, beyond the means of most litigants or defendants, who are therefore forced to settle for an agreement with little reference to the facts or the merits of a case. The lawyers in such cases are essentially acting as deal brokers, not lawyers, and virtually always extract a hefty proportion of any financial settlement for themselves.
- The "legal industry" as I call it, has a vested interest in self-enrichment through frivolous or exaggerated litigation, with the judges who decide cases from the same tight social circle as the lawyers representing both sides, who are incentivised to maximise the damages (for one side) and prolong the litigation and the fees accruing to both. Why throw out a case your best buddy and golfing partner stands to make a lot of money from?
All of these characteristics and perverse incentives have consequences in the real world. Medical doctors must practice defensive medicine, so as to reduce the risk of malpractice litigation, typically by the use of excessive diagnostic testing or procedures such as caesarian sections, for fear of problems during and after childbirth.
Many a small business has gone bust or failed to develop, because of the ruinous cost of obtaining public or employer liability insurance, mandated by law. In a small market such as Ireland, there is very little competition among insurance companies, and a very large proportion of their costs are paid out in legal fees rather than in damages to successful litigants.
There is, effectively, no Single Market in insurance services, and so the legal requirement on citizens and businesses for all manner of insurances is effectively a mandate to inflate the profits of a small number of insurance companies operating in a captive market. In my view, if a government wants to make insurance mandatory for a particular activity, (a perfectly legitimate social requirement), it also has a duty to ensure that such insurance is available on an efficient and non-profit basis.
Many a young driver without a no claims bonus must pay thousands of Euro for car insurance, and is therefore effectively forced to drive illegally or not at all. Professional fees of all kinds are hugely inflated by the cost of professional indemnity insurance, and the cost of doing business, or just of every day life are hugely inflated in consequence.
All of which is a long way of explaining a somewhat snarky letter I had published in the Irish Times today, an unprecedented nine days after it was submitted, in which I had a small jibe at august members of the legal profession who had written a long letter criticising the government for not "engaging with stakeholders" sufficiently in the context of pandemic mitigation public health measures:
Emergency measures and civil liberties
Sir, - Our learned friends have divined that the Government is abusing the powers it was given in the emergency legislation passed in March of this year to protect our public health in the midst of a pandemic.
They have opined that the Government has not consulted widely enough, has not published proposed changes far enough in advance, and not given the public enough notice of when they will come into effect.
While it may be normal for complex legal cases to drag on for many months and even years, with copious adjournments and refresher fees, the Government does not have that luxury in the midst of a pandemic.
These emergency regulations are for extraordinary times in which the rate of infection can increase exponentially during the periods of engagement with stakeholders, scrutiny by legislators, and public debate which the lawyers advise.
If anything, the Government can be faulted for not having acted quickly and decisively enough. The last thing we need is for the lawyers to try to get in on the act, poring over the fine print while people suffer. - Yours, etc,
There is a lot of pressure on the government at the moment from various commercial and professional organisations to go much further in re-opening the economy than expert public health professionals currently advise. No doubt the letter from my "Learned Friends", as they self-reverentially refer to each other, is preparing the ground for future litigation by interested bodies should the government fail to cave into their demands. There isn't much fee income to be made from representing the dead and dying from Covid-19, but there could be rich pickings from the business communities most impacted by the lockdown.
Of course the argument is not all one-sided. Every democratic state needs an independent judiciary and legal determination processes, and the Irish courts have sometimes excelled at vindicating the rights of the less privileged. Many corrupt members of the legal profession have been outed and disbarred. My issue is that the overall cost of the system is enormous, that it is primarily incentivised to look after the interests of the legal industry, first and foremost, and that, as in other jurisdictions, the courts are often venturing too far away from interpreting the law to actually making it.
Our legislators may be deficient in how well they legislate for the rights and well being of our citizens, and the executive branch of government may not always make the right decisions in a timely manner, but under the constitution theirs is the job of making and executing laws, and they are the ones democratically accountable for how well they do so so. It is not the job of the courts to effectively legislate where they feel the legislature or executive have failed to do the job adequately.
I had occasion to write a letter to the editor on that topic three years ago:
Sir, - Chief Justice Susan Denham saw fit to rebuke Fianna Fáil leader Micheál Martin over his Dáil comments about former attorney general Máire Whelan and reminded us of the separation of powers between the branches of government and the necessity to maintain some distance between them.
Just days later, Mr Justice Peter Kelly is reported ("Leading judge says Government moves to reform judicial appointments `ill advised'", June 24th) as criticising [Justice Minister] Shane Ross's proposals for reforming the judicial appointments process as "ill conceived" and "ill advised", and the way in which they were being rushed through the Dáil when (in his view) other matters before the courts warranted a higher priority from legislators.
Could it be that our esteemed learned friends are trying to have it both ways, telling legislators how and when to do their jobs whilst being extremely sensitive about any comments directed towards them by our parliamentarians?
Whatever the merits of Shane Ross's proposals, surely it is right and proper that the process of appointing judges should be debated and decided by our democratically elected representatives at a time of their choosing, and not by those who are the primary beneficiaries of the process? - Yours, etc,
It is ironic that the Supreme Court is currently in turmoil because the Chief Justice (and allegedly all his colleagues) have called for the resignation of the most recently appointed Supreme Court judge, Seamus Wolfe, for his involvement in the Golfgate controversy, and his refusal to do so has led to calls for the government to intervene.
The Dáil and Seanad do have the power to impeach a judge for "stated misbehaviour or incapacity" but there is general agreement, in political circles, that his misconduct does not breach the high bar required to justify an impeachment process which has never been completed in Ireland. Former Chief Justice Susan Denham had decided, in a report the current Chief Justice had asked her to prepare on the matter, that his dismissal would be "disproportionate" to the misconduct he had been accused of.
In a further irony, the current Chief justice had sat on a legal appointments panel which had concluded that Seamus Wolfe was suitable for the appointment. So our learned friends can have feet of clay after all, and do not always conform to the rather exalted regard in which they appear to hold themselves. Their lack of democratic accountability has been laid bare by the controversy, and calls for the reform of the profession and access to it have been becoming more strident.
I wouldn't be holding my breath though. Reforms of the legal process in Ireland tend to proceed at a glacial pace and even the warming occasioned by current controversies are unlikely to accelerate progress any time soon. In the meantime all we can do is write the occasional snarky letter to the Irish Times.