Closing Argument Stuart Gilhooly
Stuart Gilhooly is a partner at HJ Ward & Co Solicitors and former president
of the DSBA. He has won a number of journalistic awards for his writing
They Can’t
Handle
the Truth
T
his column has a soft spot for
Thomas Mapother Cruise IV. Not
the scientology bit or the couch
jumping but rather his movies. He
never lets you down and more often
than not, they’re top class entertainment.
Apart from Far and Away that is, but I
suspect even Tom would go along with that.
As courtroom romps, with a bit of
Tom Cruise stardust go, it’s hard to look
beyond the timeless A Few Good Men. On
this occasion though, Lieutenant Daniel
Kaffee, played with typical brio by Cruise,
was upstaged by the didactic Colonel
Nathan Jessup, superbly portrayed by Jack
Nicholson, a man for whom self-belief comes
as second nature. The denouement is the
wonderful scene at the end when Kaffee
goads Jessup into admitting he ordered the
code red and Jessup, so convinced is he of his
omnipotence that he can’t help but concede
with the famous line “You can’t handle the
truth”.
Back in the real world this, of course,
doesn’t happen but the legal profession had
its own Jack Nicholson. For three years, Alan
Shatter reigned supreme and believed he
could change the face of the legal profession.
In those three years, he initiated a lot
of legislation, much of it reforming and
required. He also took on what amounted
to a mammoth task, the Legal Services
Regulation bill which commenced over
four years ago. It was driven by the political
cliché that self-regulation doesn’t work and
therefore only independent oversight will do.
This concept has been unchallenged
either politically or in media circles for many
years now, so bringing oversight into the
legal profession was also going to play well.
Somewhat ironically, many members of the
legal profession were equally excited at the
prospect of a Law Society without regulatory
powers.
As time progressed, the popular
perception which still remains, was that
the delays were the result of clandestine
lobbying and dark arts operated by the legal
professions. In fact, as Shatter admitted
himself when he published the bill, it was a
document that was designed for consultation
and he fully expected amendments to be
made. That he took this stance is to his
credit, but he possibly underestimated firstly
the size of the task he had undertaken and
secondly, the trenchant opposition he would
face from the Bar.
In fact, the issues the Bar had with the
bill, while clearly important to them, are of
little interest to the solicitors’ profession.
Legal partnerships are unlikely to take
off even if they do become a reality. If a
barrister wanted to go into partnership with
a solicitor, he’d become a solicitor. Barristers
do what they do because they enjoy the
status they have. They generally have no
interest in the world we inhabit. Multidisciplinary partnerships are more dangerous
but the experience of other countries is that
they have been a disaster and it seems a
stretch to believe they would ever catch on
in a jurisdiction this small.
Ultimately, Alan Shatter shook off any
Jessup-like tendencies and showed admirable
ability to bend when confronted with
incontrovertible arguments. The picture
painted unfairly, by media in recent weeks
is that his successor, Minister Fitzgerald,
was bullied by the legal profession into
watering down the bill. This is, in fact,
completely wrong. Most of the changes
were agreed before she took on the job
Ultimately, Alan Shatter,
though he might have
liked the Nicholson
comparison, was more
malleable than he has
been given credit for
and the amendments she has made are a
combination of reasonable concessions, such
as on the issue of partnerships, practical
improvements which were absolutely
necessary and technical changes which occur
with nearly every large piece of legislation.
Clearly though, the truth should never get
in the way of a good story and the largely
ill-informed media, many of whom made
no attempt to read the legislation merely
reported on what they perceived to have
occurred, rather than what actually did.
To be fair to the minister, despite this
onslaught, she stood strong in her beliefs
and like her predecessor, refused to be
cowed. One of the most common criticisms
is that the cost savings originally envisaged
were lost by caving into legal lobbying. This
demonstrates the complete lack of insight by
most commentators on the issue as, in fact,
the costs provisions were one of the few
areas of the bill that saw no practical change
from that originally introduced by Shatter.
Although the bill will see many changes
in how the profession works and most will
make our lives more difficult, the one boon
which did come about from lobbying by
both the DSBA and the Law Society is the
advent of limited liability partnerships. At
last, the legal profession will benefit from
the same protection as other commercial
entities.
Ultimately Alan Shatter, though he might
have liked the Nicholson comparison, was
more malleable than he has been given
credit for. He has lived to fight another
day and so will we, though 2016 is going
to have a different complexion to the last
few centuries. This profession has always
embraced change and come out stronger.
And that’s a truth we can handle. P
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