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Tuesday, December 1, 2015

Obscene salaries encourage contempt for the simple dignity of a job well done

Obscene salaries encourage contempt for the simple dignity of a job well done
The idea that talented people need to be incentivised to work to the best of their abilities by obscene salaries and bonuses is toxic at many levels.

Brian Clough: “We’ve done it as I assume everybody wants to do their job: nicely, honourably and well.” (AP Photo/PA)

In the delicious recent documentary I Believe in Miracles, there’ s a clip ofBrian Clough being asked how he and Peter Taylor had achieved one of the great feats of management: transforming a bunch of has-beens, never-weres, misfits and lost boys from a hopeless second division outfit to champions of Europe . Clough says: “We’ve done it as I assume everybody wants to do their job: nicely, honourably and well.”
Clough was to modesty what Casanova was to chastity, so he certainly wasn’t being modest. He was expressing, with his usual eloquence, a common assumption of the era before the Thatcher/Reagan revolution kicked in: that most people actually want to do their jobs well and do them honourably. You do your job to the best of your ability, whether you’re a football manager, a nurse, a teacher or a chief executive. Would Clough even have understood the notion that he had to be “incentivised” to achieve great things, that he did it all to secure a performance-related bonus?
How quaint Clough’s assumption seems now – especially that apparently archaic word “honourably”. In the world of inflated executive salaries – into which the staggering payments to Pat Smith at the Irish Farmers’ Association are only the latest little glimpse – honour is neither here nor there.

Prestige vs money
Today’s management guru is Falstaff: “What is honour? A word. What is in that word ‘honour’? What is that ‘honour’? Air.” The honour of being able to do an interesting job in which you have influence, prestige and the satisfaction of knowing that your work counts for something doesn’t show up in your bank balance. It’s air.
The idea that talented people need to be incentivised to work to the best of their abilities by obscene salaries and bonuses is toxic at many levels. Its most serious consequence is, of course, the return in western societies of inequalities of income not seen since the 1920s. But it injects a subtler poison: it dishonours work itself. It suggests that nobody works hard and well for any other motive than greed. It puts forward an especially bleak and narrow and mechanical view of human nature. It encourages the rest of us to have contempt for the aspects of our working lives that are not about money: the dignity of doing a job nicely and well, the esteem of our fellow workers, the belief that we are doing some little bit of good in the world, the simple pleasure of completing a task.

Of course everyone wants to make a decent living from their work. Of course we want to get something extra back if we spend time acquiring more skills or if we take on more responsibilities. Of course human beings are terribly interested in their status within whatever group they find themselves.
But we’re also complicated creatures. Our hunger for status can be satisfied in all sorts of ways, many of which have nothing to do with money. We want to be honourable and to be honoured.

Falstaff, after all, is a clown. Honour really is more than a word – we do the hardest things for it, from charging the enemy in battle to writing groundbreaking novels, to solving mind-bending puzzles in computer games.
Do people like Pat Smith ever go, for example, to a hurling match and ask themselves why Henry Fsheflin developed such extraordinary skills and put himself though such punishing training regimes? Do they think that Shefflin was a worse hurler because he wasn’t paid a cent and that he would be a better one if he were paid as much as a Premier League  footballer?

When Bernard Shaw was an obscure young clerk in the estate agents Uniacke Townshend on Bachelors Walk in Dublin, he was promoted to head cashier at double his salary. But it struck him that he would have taken the job even if the firm didn’t increase his salary because it had more prestige, the work was more varied and he liked having more responsibility. If, on the other hand, he had been offered the job of the charwoman who cleaned the office, “they would have had to overcome my repugnance to it by offering me a salary at least 20 times as large as they actually paid me after my promotion”.

Incontinence vs lobbying
The hardest jobs, as Shaw realised, are generally the worst-paid. Which would you rather do – clean up after an incontinent patient or fly to Brussels to lobby officials? Who has more pressure and responsibility – an intensive-care nurse (paid €40,000 a year) or the manager of a middling-size organisation (paid 10 times as much)? Who has a better record of competence – poorly paid nurses or men who run banks with vast “incentives”?
The dignity of labour has to be more than a hypocritical sop to exploited workers. People who are set up as leaders have to show that they actually believe in it too.

Managers should remember that it’s an honour to hold a position of responsibility and that they’re lucky to have interesting, challenging, varied and fulfilling jobs. And that anyone who needs a bonus to do their job as well as they can isn’t fit to have it.
Fintan O’Toole

Monday, November 30, 2015

Photo Minute: Storms down under (Brisbane and Sydney)

Barristers’ anti-competitive practices remain an issue

Up to 85% of intended reforms can result from the Legal Services Regulation Bill

“It is unfortunate that on this issue the Bar Council’s motto “Nolumus Mutari” (We Shall Not Be Changed) has triumphed.” Photograph: Frank Miller

During December the Legal Services Regulation Bill should complete its passage through both Houses of the Oireachtas. Unfortunately, because of the delay in its enactment, it is likely to fall to the next government to bring it into force.
When in force the Bill will deliver major public interest reform in the legal services area. An independent Legal Services Regulatory Authority will be established to ensure the maintenance and improvement of standards in the provision of legal services in the State. For the first time there will be independent regulatory oversight of both solicitors and barristers and an independent complaints and disciplinary process.
While providing oversight, the legislation also recognises the importance of protecting the professional independence of lawyers. The Legal Services Regulatory Authority is specifically required to encourage an independent, strong and effective legal profession and promote and maintain adherence to key “professional principles” which require legal practitioners to: (i) act with independence and integrity; (ii) act in the best interests of their clients and (iii) maintain proper standards of work.
These professional principles, included in the legislation from day one, are designed to ensure that the creation of the authority in no way entitles the State or any State agency to interfere with or undermine lawyers independently advising and representing their clients.

Allegations of misconduct
The legislation focuses heavily on consumer interest, promoting competition in the provision of legal services and ensuring greater transparency in legal costs. The investigation and determination of complaints will no longer be the preserve of the Law Society and the Bar Council. The authority will handle all complaints and allegations of misconduct made against legal practitioners. A new independent Legal Practitioners Disciplinary Tribunal will be established. The legislation facilitates the speedy consideration and resolution of less serious complaints, such as poor communications, delay or misunderstandings by a system of “informal resolution“ that should benefit both clients and lawyers whilst not precluding disciplinary action should serious misconduct be disclosed.

A central feature of the Bill is the creation of the new Office of Legal Costs Adjudicator. It will replace the Taxing Master of the High Court and be responsible for determining legal cost disputes and for assessing the legal costs payable by an unsuccessful litigant against whom an order of costs is made. The Bill details a set of principles applicable by legal costs adjudicators in assessing bills of costs and, in doing so, seeks to ensure that fees charged reasonably relate to the legal work undertaken for a client.
Various provisions in the Bill end anti-competitive practices. Solicitors, since 1971, have been entitled to act as advocates before all of our courts. However, while one or more senior and junior counsel can together act as advocates in court on behalf of one client, the Bar Council regarded it as an anathema for a solicitor and barrister, known colloquially as a “mixed double” to jointly act together as advocates before any court. In an age of complex litigation and lawyers having expertise and specialist knowledge in discrete areas, there is a public interest in ending such a restrictive practice.

Senior counsel
Under the Bill solicitors and barristers can jointly act as advocates and cannot be restricted from doing so. The Bill allows direct consumer access to barristers for legal advice and enables a barrister in paid employment to represent his or her employer in a court or tribunal or in arbitration. It also extends to experienced solicitors the possibility of becoming senior counsel, a title that is presently exclusively the preserve of barristers.

The Legal Services Regulation Bill is a child of the Programme for Government and of the agreement originally entered into with the Troika in 2010 to address anti-competitive practices in the legal profession.
Upon my becoming Minister for Justice in March 2011, it was urgent to publish it by early Autumn 2011 to comply with the State’s Troika obligations and to ensure receipt of essential Troika funding supports. It was intended that, following its publication, a public consultative process would be undertaken together with substantial additional work to perfect the Bill. Unfortunately, its publication generated outright opposition from the Bar Council and more nuanced criticism from the Law Society.

During my time in office, valuable engagement with both bodies contributed positively to the development of the Bill. However, I also considered it necessary to stand firm against pressure to remove or row back on some of what I regarded as crucial reforms.
The consultative engagement had substantially ended by early 2014 and we were on course to ensure the Bill’s enactment by September 2014 at the very latest. I believed it vital that vested interest did not usurp the public interest, that competition increase and legal costs be reduced by the availability of new business models providing legal services.

Watered down
Many of the recent amendments made to the Bill by my successor as Minister for Justice, are beneficial and address areas I had directed be addressed prior to the Bill’s enactment. Essentially, 80-85 per cent of the reform I set out to achieve can result from the Bill as now amended. Unfortunately, one particular area has been substantially watered down and the Bar Council permitted to preserve anti-competitive measures within its code of practice. These changes to the Bill have been rightly criticised by the Competition and Consumer Protection Authority.

Presently, solicitors provide legal services through sole practitioner practices or through partnerships. Barristers provide advice and represent clients as sole traders. While not preventing any solicitor or barrister operating as they do now, the Bill, as published, outlawed any codes of practice which prevented barristers and solicitors jointly forming legal partnerships; barristers together forming legal partnerships; and both barristers and solicitors participating in multidisciplinary practices.
This reflected the modernised approach of some other countries. The Bill also envisaged the possibility of solicitors’ firms employing barristers, a provision of substantial benefit to newly qualified barristers who find it very difficult in their early years to make a living wage.

Seanad amendments
The Bar trenchantly opposed these reforms. Regrettably, Seanad amendments to the Bill permit the Bar Council to continue to prohibit its members from providing legal services through partnerships or multi-disciplinary practices and essentially permit it to excommunicate from the Bar Library those who do. Ironically, the Bill expressly enables Bar Library members to receive work from them. The Bill originally prescribed that, within 12 months of enactment, the new business models provisions would become operative. This gave ample time to establish related codes of practice. Unfortunately, amendments now being made to the Bill, whilst preserving the possibility of barrister/solicitor and barrister legal partnerships and multidisciplinary practices, prescribe no timeframe for their commencement and require the Legal Services Regulatory Authority to re-examine whether multidisciplinary practices should be permitted.

In addition, the obligation imposed on the Authority to engage in a consultative process and to report within two years on whether it is desirable, in the public interest, that we have a unified legal profession has been extended to four years.
In summary, I am delighted that the Bill is about to finally complete its passage through both Houses of the Oireachtas. I am, however, disappointed that it is unlikely we are going to see any time soon legal services delivered through new business models which would reduce legal costs and increase competitiveness. It is unfortunate that on this issue the Bar Council’s motto “Nolumus Mutari” (We Shall Not Be Changed) has triumphed.
Alan Shatter