Let the solicitor be the judge

Solicitors could soon be appointed judges in the higher courts – if new proposals are approved, reports Eileen McCabe. Eileen McCabe is a freelance journalist.

Barristers in Ireland are bracing themselves for yet another attack on one of their preserves by their solicitor colleagues. The Republic's Minister of Justice John O'Donoghue will shortly receive a report on the sensitive issue of judicial appointments – more specifically whether solicitors should be appointed as High/Supreme Court judges.

The report, which was drawn up by a committee appointed by O'Donoghue's predecessor Nora Owen, is at the final draft stage and should be on the minister's desk within weeks. It is widely expected to recommend that suitably qualified solicitors should be considered for appointment as judges in the higher courts.

The low-key discussions surrounding the committee's work are in sharp contrast to the heated, sometimes vitriolic exchanges, which preceded Owen's decision in 1995 to break barristers' stranglehold on appointments to the circuit court. Back then, the Law Society and the Bar Council traded polite put-downs in public and, in private, were aggressively lobbying the minister.

This time both groups had representatives on the committee and it appears they have managed to come to an acceptable compromise.

Although of enormous symbolic importance for both the Law Society and the Bar Council, the expected changes will have very little immediate effect in the courts; a raft of judicial appointments over the past couple of years means there will be few vacancies in the short term.

Those appointments, along with administrative changes, have resulted in trial waiting times being slashed from almost two years to less than a month. Among the appointees are five solicitors who were made circuit court judges under the Owen reforms and who, according to both professional groups, have performed very well in their new roles.

Since the 1970s, Irish barristers have had to get used to conceding ground to their solicitor colleagues. In 1971, Minister of Justice Des O'Malley upset the Bar Council by granting full advocacy rights to solicitors in all courts, including the Supreme Court.

O'Malley, who like the current minister was a solicitor before turning to politics, was determined to move away from what he saw as the restrictive practices of the legal profession. His reforms were much more wide-ranging than similar ones in other jurisdictions, because he refused to put any examination or experience barriers on solicitors' right of advocacy in the higher courts.

At the time there were dire warnings from barristers that the entire legal edifice would collapse as a result. But in fact O'Malley's bold initiative has led to very little change on the ground.

Twenty-seven years after the changes, the number of solicitors who actually use their right to present cases in the higher courts can be counted on the fingers of one hand. Exceptionally, solicitor Alan Shatter, an acknowledged expert on family law, has appeared before the Supreme Court.

According to solicitors, the main reason is simple economics. Ken Murphy, director general of the Law Society, says that apart from minor procedural issues in the circuit court, most solicitors confine their advocacy to the district courts.

“Given the overheads solicitor firms carry, it is often a more economic use of time to employ counsel to present cases than to do the additional work that would be required to perform as advocates in the higher courts,” he says.

Solicitor Roddy Bourke, a partner in the large Dublin firm McCann FitzGerald, agrees that the remarkably low take-up of the rights of audience in the higher courts is attributable to the fact that the present regime is very cost-effective.

In Ireland, even the biggest law firms can boast of a maximum of only 30 solicitors in their litigation department, compared to London where there can be more than a hundred. The scale of the London firms allows solicitors to develop an expertise in advocacy which makes it cost-effective for them to present cases in courts rather than brief counsel.

In Ireland the service available from most barristers is by and large of such a high standard that most solicitors' attitude seems to be “if it's not broken, why fix it”, says Burke.

He also believes the reluctance of solicitors to present cases which require only a small amount of advocacy, or where they have a very detailed knowledge of the issues, is rooted in an unjustified lack of confidence. But, he says, the appointment of solicitors as judges in the higher courts will go a long way to overcoming that problem.

However, another solicitor, who is heavily involved in litigation, rejects the self-confidence theory and argues that the reluctance is due entirely to the attitude of judges.

“There is a feeling among solicitors that judges would prefer to deal with barristers. I'm not suggesting that any judge has shown any hostility to solicitors appearing before them, but there is a presumption that judges would be inclined not to show solicitors the same respect as barristers,” she says.

The solicitor, who refused to allow her name to be used on the basis that “we have to work with these people”, accepts that in many cases it makes good economic sense to brief barristers. However, she insists that in some cases, “it is a real nuisance to have to use barristers who know far less about the issues than we do”.

The sentiment has been heard often by Ken Murphy who explains: “There is a perception, correct or not, that because judges on the bench have been until recently practising barristers, solicitors feel that their client will not get as good a hearing if they do not have a barrister.”

At the Bar Council, chairman John MacMenamin rejects suggestions of bench hostility to solicitors. He insists that the main reason why Irish courts' practice has remain unchanged since the much-feared O'Malley reforms, is that the system works well and is very cost-effective. He also argues that historically the two groups are self-selecting. So people who want to engage in advocacy tend to become barristers and those who do not, tend to become solicitors.

MacMenamin says that the particular advocacy skills of barristers, based on a degree of familiarity with the way the judiciary approach an issue, will always be in demand. But, in keeping with the new spirit of co-operation within the legal fraternity, he insists that both groups bring their own “equally valid” skills to the process.

He also says that turf battles with solicitors are simply not on the Bar Council's list of current priorities. A much more pressing issue is the low earning power of many barristers.

According to survey in 1996, almost 50 per cent of Irish barristers earned just under IR£22,500 gross with many first, second and even third-year barristers taking home a lot less.

The Bar Council believes the low wages are a result of the explosion in the number of people qualifying as barristers. In 1975, there were around 230 barristers in Ireland compared to over 1,100 today.

“The workload has not expanded commensurately and there are a lot of barristers who are finding it very difficult,” says MacMenamin.

The Celtic Tiger has boosted almost every other area of activity including the workload of solicitors, but, he claims, it has not significantly affected the lot of Irish barristers.