20 September 2004
The greatest disaster ever to befall the legal profession in Ireland has been the Tribunals of Inquiry. A handful of lawyers have made a great deal of money, but the whole profession has paid the price in public cynicism and false impressions of average lawyers’ earnings.
Although most of the criticism of lawyers’ fees and the Tribunals of Inquiry has been directed at barristers rather than solicitors, there has undoubtedly been ‘collateral damage’ for the solicitors’ profession. Most members of the public do not distinguish between the two branches of the profession on this issue.
The above having been the oft-repeated view of the Law Society of Ireland for many years, we extended a warm public welcome to Minister for Finance Charlie McCreevy’s announcement that the existing daily rate for working in tribunals would be replaced with an annual salary. In one of his final announcements as Minister for Finance, prior to his dispatch to Brussels to become Ireland’s new European Commissioner, McCreevy declared that, from September, senior counsel working for newly established tribunals would be paid €213,098 (£145,124) a year. This is the same as the salary of a High Court judge, but with an additional 15 per cent in lieu of pension contributions.
McCreevy pointed out that this is around 40 per cent of the current maximum rate of pay, which runs to €2,500 (£1,700) a day for senior counsel on top of the very hefty brief fees they receive on their appointment to work for one of the tribunals.
It is the notorious daily rate of €2,500 which, together with the glacially slow pace of almost all tribunals and the apparent ineffectiveness of many, that has caused public anger from which the legal profession as a whole has suffered – despite the fact that less than 1 per cent of the profession has ever made a penny out of a tribunal.
In a much-repeated soundbite, McCreevy said in the Dail that “a senior counsel in one of the tribunals earns more in three and a half days than an old age pensioner gets in a year”.
The cost of Tribunals of Inquiry has been an issue from the commencement of the Beef Tribunal Inquiry in 1991. Indeed, for some people, the level of legal costs is the single biggest issue of the tribunals. But we in the Law Society have long said that a better and more cost-effective way to run tribunals needs to be found in the public interest.
The society believes there is a great deal of sense in the measures recommended in the 350-page Law Reform Commission of Ireland consultation paper on Tribunals of Inquiry, published in March 2003.
Even Bar Council representatives have in the past questioned the over-reliance on senior counsel for tribunal work. A senior counsel’s special skill is likely to be in cross-examination, although, of course, many solicitors have considerable skill in this area as well. However, much of the behind the scenes work of tribunals involves the methodical examination of documents and the tracing of payments, for which work the use of senior counsel is a misallocation of resources.
Also, the target of much sensible criticism in the Law Reform Commission report is the retention of counsel, often for periods of years, on the basis of a daily fee as would apply in a court case. The Law Reform Commission memorably summed up the situation as follows: “Counsels’ income depends upon an aggregate of ‘sunny days’ (when he is paid) and ‘rainy days’ (when he is not). Against this background, Tribunals of Inquiry offer the climatologically impossible scenarios of, often, three or four years of continuous sunny days”.
However, McCreevy has now decided, rather belatedly, that into even a tribunal lawyer’s life a little rain must fall. A cap is being put on lawyers’ earnings from Tribunals of Inquiry and, indeed, efforts are being made to bring most, if not all, the tribunals to an end within the next two years.
Most lawyers in Ireland will regret that this was not done a decade ago.
Ken Murphy is director general of the Law Society of Ireland