The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND GAZETTE Vol. No. 79 No. 1 January/February 1985 Not With a Bang . . .

T 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. • 1