Public distrust of 'outdated and unprofessional' barristers

''All of the market survey done by the Bar Council – and in particular the Behaviour and Attitudes report – established that the public in general is hostile to what they perceive as an outdated, unprofessional and greedy profession.”

So reads the so-called Blue Book of proposals for reform of the barristers' profession in Ireland. A copy of the report was not leaked to The Lawyer by a disgruntled junior counsel. It was made available freely by James Nugent, the self-effacing chair of the Bar Council.

The Blue Book adds: “Irrespective of the large number of individually good experiences of clients of the profession, the vast majority of the public is either unsympathetic or hostile.”

Strong stuff indeed. But Nugent believes there is no point in ignoring the facts.

“That is the reality,” he says in an interview with The Lawyer. “But the Irish Bar is in a healthy condition. The Bar Council is carrying out a root and branch examination of every aspect of the profession. We are identifying our strengths and our weaknesses and in so doing we are taking enormous strides in dealing with the problems.”

There are many problems, although Nugent would prefer to describe them as challenges.

Nonetheless, as well as the poor public perception of Irish barristers, this branch of Irish legal practice faces physical difficulties regarding professional accommodation for its members, and an under employment problem which is afflicting hundreds of recently qualified practitioners.

Furthermore, the Irish barristers' profession is technologically ill-equipped, and relations with the solicitors' body, the Incorporated Law Society of Ireland, recently hit an all-time low following the enactment of legislation rendering solicitors eligible for appointment to the benches of the Circuit Court and High Court.

Nugent claims that barristers' attitudes to their present difficulties are extremely positive.

“The reaction to our proposals for change has been better than a lot of people expected,” he says. “The day we held the extraordinary general meeting in January to discuss the changes must have been the worst day of the year. There was snow and ice and it was bitterly cold, but well over half of our members turned up. There was a realisation that things had to change and the support for the proposals was overwhelming.” But time, Nugent freely admits, has passed many Irish barristers by.

“In the 1970s there was a huge expansion in the volume of work for Irish barristers. Whole new areas of law opened up, which absorbed the majority of existing practitioners in case work. Family law, employment law, judicial review and criminal work grew rapidly, and invariably barristers were preoccupied with getting results for their clients. Results are important, but other matters were passed over.

“For instance, there was no conception that barristers would have to relate to the public in a formal way. While clients were happy with individual barristers, very often the concept of service was not given the priority it deserved.”

For the first time in its history, and following a proposal in The Blue Book, the Bar Council has appointed a press and information officer. She is Edel Gormley, a solicitor, whose function will be to liaise with the media, the general public and professional bodies.

Her appointment has been accompanied by a relaxation in the rules which restricted barristers from appearing on radio and television stations and writing newspaper articles as experts in various fields.

This is viewed as a welcome change by many barristers who feel the wider lay profile will improve the public's understanding of the role they play.

It is significant that Gormley's office is located in the new law library close to Dublin's Four Courts on Church Street. The library is extremely crowded, and research and consultation facilities have for years been hopelessly inadequate.

This attractive modern building is itself a symbol of the change through which Irish barristers are passing. It cost the Bar Council IR£9 million, a sum which is due to be paid off by 2005, and it includes library and consultation facilities as well as a bar and restaurant for 90 barristers.

It is the first of two phases of expansion in facilities for barristers working out of the Four Courts. Further up Church Street, building is about to begin on another law library, which will provide professional accommodation for 200 or more barristers.

The new facilities will, say Dublin barristers, help keep much of the specialist consultancy work in Ireland. Too often in the past, the lack of proper consultation and arbitration rooms in the Four Courts has encouraged many clients to refer briefs to London.

The Bar Council will have little problem filling the accommodation facilities. Ten years ago, there were approximately 250 practising barristers. Now there are over 1,000. This prompts Nugent to deal with the problem of unemployment and under-employment among Irish barristers. A large proportion of the practising barristers earn less than IR£10,000 per annum.

The traditional open system adhered to at the Irish Bar means work is not evenly distributed. Unlike in London where the chambers system operates, Dublin barristers work from the law library in the Four Courts. On being called to the Bar, barristers must serve an informal apprenticeship with their “masters”. Throughout this period of “devilling”, and in most cases for up to four or five years after, they have to survive on meagre incomes as the vast majority of briefs are passed on by solicitors to established junior and senior counsel.

Although the Bar Council may officially deny it, barristers privately accept that the profession is highly politicised. Briefs are often channelled in accordance with political orientation of the barristers.

This aspect of the system is unlikely to be changed for many years, because established barristers have an obvious interest in preserving their position as the top earners.

“It's a real problem for barristers starting out,” Nugent admits. “A partial remedy will be provided when seven more Circuit Court judges are appointed by the government. This will lead to a significant increase in the number of briefs.”

He says: “Seven new judges, each hearing 10 cases per day? That's 70 new briefs. That should provide ongoing work for 140 junior counsel.”

The appointment of new judges is an important development for other reasons. In 1994, the government coalition of Fianna Fail and Labour collapsed. The official reason offered by Labour was that its partner had failed to keep it informed of details of a child sexual abuse case involving the priest Brendan Smyth.

But political correspondents believe the real reason was the insistence by the then Taoiseach and Fianna Fail leader, Albert Reynolds, that his nominee, Attorney General Harry Whelehan SC, be appointed president of the High Court.

While Whelehan continues to enjoy an extremely good reputation, the episode did little to strengthen the regard in which the legal profession is held.

Furthermore, and for the first time in the history of the state, solicitors will be eligible for appointment to the Circuit Court and also to the High Court. They already sit on the bench of the District Court.

For this reason the Courts and Courts Officers Act 1996 represented a landmark in the development of the Irish legal system. The circumstances surrounding the drafting of amendments led to an unprecedented row between the Bar Council and the Law Society.

The Bar Council claimed the agreement it had come to with the solicitors' body regarding the changes in judicial appointments to the benches of the higher courts was reneged upon in a manner which it feels was contemptuous of the council. Both bodies lobbied hard for their point of view to be taken on board by the government, which includes representatives of both branches of the legal profession. The Taoiseach, John Bruton and the Tanaiste, Dick Spring, are both barristers, while Mervyn Taylor, the Minster for Equality and Law Reform, is a solicitor.

The Law Society, which represents around 4,500 solicitors, won significant concessions through effective lobbying of the government and opposition. The new judicial appointments commission will take submissions from both branches of the legal profession. The barristers' monopoly of the higher courts will be broken through the changes in judicial appointments and rights of audience.

Although the Bar Council won the right to nominate its members to the position of county registrar, a quasi-judicial office pertaining to the administration of the courts, the Law Society emerged with the better deal. And last December there was a stand-off between the two bodies which are only slowly rebuilding trust.

“That's all history as far as I am concerned,” says a philosophical Nugent. “Yes, there was a fundamental disagreement on whether solicitors should be eligible for the Circuit Court and High Court benches, and also about the circumstances surrounding a particular meeting late last year. The solicitors were partly successful. We also won concessions. We are now working properly together.”

Some barristers reacted cynically to the recent news that the Bar Council had gone on the Internet. Its own page on the World Wide Web was, according to one senior counsel, cosmetic. The reality was that legal research facilities provided by the Bar Council for its members are archaic.

Not so, responds Nugent, who says that many real improvements have already been made. The recent appointment of Cian Feirtear and Greg Kennedy as directors of the new legal research unit represent another step towards the provision of a full service to members of the Bar Council.

“Legal research done on a computer is quicker and more thorough. Facilities are improving. The new building will meet the requirements of modern legal research, and will have all the latest computer equipment. We soon hope to have all the acts of parliament and other legal material on CD-ROM. We hope The Irish Reports, which are not published by the Bar Council, will soon be available on compact disc.”

Another controversy surrounding the barristers' profession in Ireland has been the old wigs chestnut.

The government last year tried to prohibit the wearing of what many people in politics believe to be antediluvian headwear. But following an effective campaign by the Bar Council, this legislative prohibition was made optional.

“Personally I could never see why it was such a big issue,” says Nugent. “I'd sooner not wear one myself, but how and ever. There are so many more issues which are of greater importance to us.”

On the issue of whether the Irish Bar is likely to change to the chambers system which operates in London, Nugent is more outspoken.

“I think it would be a retrograde step,” he says. “The chambers system has its own problems. Just because it works in London does not mean it is without its drawbacks. The system we operate – the system which is also operated in Belfast and in Edinburgh – has many advantages and I think it would be imprudent to change it. It offers a great cross-fertilisation which is of enormous benefit. This is just one aspect. There are many others I could mention.”

Nugent is reforming and progressive, but well liked in legal circles. In a profession which is inherently conservative, it is inevitable that some members, particularly older ones, express fear about the changes which, although slow in pace, represent a departure from the old ways. Does he get much criticism? “No,” he replies. “At least not to my face.”