Why are lawyers above the law? The legal profession has been operating restrictive practices for centuries. Now the Office of Fair Trading is demanding a better deal for consumers Like the little boy who noticed that the emperor wasn't wearing any clothes, the Director General of Fair Trading, John Vickers, has asked questions of the legal profession which have never been asked before. The simplicity of Mr Vickers' approach, contained in a 143-page report published by the Office of Fair Trading (OFT) last week, has exposed the business of the law and forced lawyers to defend their restrictive practices. For example, Mr Vickers wants to know why is it that for over 100 years, a member of the public must always see a solicitor before instructing a barrister and so pay for two lawyers when one might do? And, asks Mr Vickers, why should the Government single out a few barristers each year for Queen's Counsel status, allowing them to double their earnings over night? Underpinning these questions is the Office of Fair Trading's determination to get value for money from lawyers. But by applying the laws of supply and demand to barristers and solicitors, the OFT has presented the Bar Council and the Law Society with their biggest threat for years. In essence, Mr Vickers wants to know why for over a century ordinary tradesmen, like plumbers, have been left to the mercy of market forces while lawyers have been able to thrive under the special protection of "numerous restrictive practices?" Lawyers answer this by saying that because they are in the business of upholding people's rights, they operate in a different market place to plumbers and other tradesmen. If a plumber poorly fixes your boiler you can get another plumber, but if a lawyer badly represents you in court you can end up prison and wait for another to get you out on appeal. But this argument doesn't wash with non-lawyers like Mr Vickers who can't see why a solicitor or a barrister doing an important job needs special protection from Britain's competition laws. At the centre of the OFT's inquiry is the suspicion that professional bodies, left to their own devices, will always construct means of protecting their own markets. Last week the OFT was happy to quote the free market economist, Adam Smith, in order to justify the basis of its own investigation. Says the great free-trader: "People of the same trade seldom meet together, even for merriment and diversion, but when they do, the conversation ends in a conspiracy against the public, or in some contrivance to raise prices... Though the law can not hinder people of the same trade from sometimes meeting together, it ought to do nothing to facilitate such assemblies, much less to render them necessary." Mr Vickers shows how the OFT has given these famous words a modern context. He says: "In the professions, there remain restrictions on competition which do, in effect, prescribe how services should be supplied. In assessing whether such restrictions should be permitted to remain, the onus of proof should be on the proponents of the restriction." Last week, the Government accepted this principle by promising to remove the exemption which the collected professions theoretically enjoy over compliance with the competition laws. These laws prohibit price-fixing or other anti-competitive behaviour. Under the Competition Act 1998, professional bodies like the Bar Council and the Law Society can apply to the Secretary of State to have their rules excluded from the legislation. So far, no such application has been made and neither, says the OFT, has it received a complaint, under the new legislation, about anti-competitive behaviour within the legal profession. Mr Byers says it is important that the professions do not receive special protection for no good reason. On the other recommendations, he says the Government will consult with the professions before coming to any firm conclusions. This means that lawyers can breathe a temporary sigh of relief as nothing is likely to happen this side of a general election. But professions know now that the OFT report has given ministers the excuse and the means to introduce radical reforms in their market places. But it is the Director General of Fair Trading's attack on the system of Queen's Counsel which has most enraged the barristers. John Vickers said the Government, in its recent attempt to reform the QC appointment system, had failed to asked the most fundamental question. Was it right for the Government to have responsibility for conferring on selected practitioners in a profession a title that manifestly enhances their earning power and competitive position? The OFT investigators concluded that the QC system did not operate as a "genuine quality accreditation scheme" but acted as an "informal quota" which raised fees. They also found that clients did not need "the assistance of a quality mark" to decide which barrister was best. "This quota may act as a barrier to entry to the senior Bar and allow the incumbent QCs to charge fees higher than they would command in a normal competitive market," said the report. And the OFT also argues that they should be allowed to form partnerships and join multi-disciplinary practices. It says that the current ban on such businesses stops barristers from sharing risk and may contribute to the shortage of pupillages and tenancies. The Bar Council accused Mr Vickers of applying market forces to a profession whose principle responsibilities were protecting people's rights and upholding justice. Chairman of Bar, Roy Amlot QC, said: "We would have to question its conclusions in almost every respect. People are more than just consumers, they are citizens who require the protection of a strong framework for justice, including an independent legal profession." But the OFT report had more bad news for barristers. Its own research found the Bar would shrink in size in the coming years as it faced up to growing competition. The OFT's investigation, launched after last year's Budget, identified "numerous examples" of restrictive practices operated by both solicitors and barristers. Mr Vickers criticised the near monopoly that solicitors enjoyed in the conveyancing and probates market and questioned the restriction which stopped solicitors "cold calling" clients. But the tone of the Law Society's response suggested solicitors had less to fear from the OFT. Michael Napier, President of the Law Society which represents solicitors in England and Wales said: "Consumer choice and providing access to good quality legal advice is essential, and the Law Society welcomes any moves by the OFT that will help us achieve this whilst maintaining consumer protection." He reported that the Law Society had been looking at ways to "widen the opportunities" for solicitors to work in partnership with other professionals to create one-stop shops. Nevertheless, the Law Society is less happy about an end to the restriction on cold-calling which many lawyers believe reduces them to the level of the door-to-door salesman. That is not an objection which will wash with Mr Vickers who believes arguments about professional status only get in the way of delivering the best service to the public. By Robert Verkaik 13 March 2001 "The Independent" - English broadsheet -------------------------------------------------- "Perceptions" note:- That sanctimonious claim by the barristers (elite lawyers) is almost funny - "People are...citizens who require the protection of a strong framework for justice". Compare that mealymouthed claim with the actual behavior of untruthful, arrogant, pervert barristers (and their over-privileged offspring) :- http://www.perceptions.couk.com/laworjustice.html#rich http://www.perceptions.couk.com/manip.html -------------------------------------------------- FURTHER REFERENCES GO - "search perceptions" - in SEARCH-ENGINE file-ID www.perceptions.couk.com/twoface.txt