LEGAL REFORM must ensure that barristers can continue to take on unpopular and unprofitable cases in the public interest and the interests of social reform, according to the Attorney General.
Máire Whelan SC told the conference of the Bar Council in Galway at the weekend that the Bar had been able to serve the community because of its existence as a collection of individuals of independence and integrity who were free to follow their own lights, even if it resulted in the disturbance of the status quo.
Members of the Bar had been drivers of change because of their willingness to give of their time and skill to address issues that worked to the detriment of those who otherwise would have no voice, she said.
There was a danger that if this model of independent individual barristers, known as the independent referral Bar, was altered, the need to seek the approval of others in a corporate structure could compromise the ability of the individual barrister to take a case on a pro bono (for the public good) basis.
She urged barristers to engage with the Government and show that as a profession they were not opposed to change. “Constructive engagement with the Government will ensure our independence and our ability to serve the public interest,” she said.
Referring to access to the profession, she said that in England and Wales young people underwent expensive legal educations and then could not obtain pupillages in chambers. “Where they have gone we should not follow,” she said.
There should be an emphasis on making the Bar inclusive and diverse, and open to those with different life experiences, including those who joined later in life. “If there are practices that have no place in the Ireland of 2011 we should not hesitate to get rid of them,” she said.
The chairman of the Bar Council, Paul O’Higgins SC, told the conference that the EU-IMF memorandum of understanding referred to the need to implement outstanding recommendations from the 2006 Competition Authority report, written “an economic world ago”.
The Bar Council had implemented nine of the 14 recommendations referring to it, not implementing those it considered would undermine the administration of justice.
These included the recommendation that barristers should be allowed form partnerships.
This could lead to the end of the Law Library, which at the moment is subsidised by the higher earners at the Bar, he said.
“If sufficient of the subsidising barristers leave the Law Library then those that are left, because their numbers are smaller and the resources are thinner, may find it impossible to compete. If this drives other players out of the market, supply gets shorter and the price rises accordingly.”
He also said that since the Competition Authority report came out solicitors, because they handle clients’ money, had been subjected to huge professional negligence claims and insurance had become prohibitively expensive. If direct professional access were permitted, barristers would have to handle clients’ money, with a major increase in the cost of insurance, creating a barrier to entry.
Barrister Cian Ferriter told the conference the recommendations for structural reform of the profession overlooked the dual role performed by each barrister. Unlike other professionals, barristers did not just have a duty to the client who would ultimately pay for their services, but a superior public duty to the proper administration of justice, and in any conflict between the two the administration of justice had to prevail.
This was so to preserve the vital public interest in the proper, corruption-free administration of justice. The present model very successfully achieved the difficult task of balancing and reconciling the effective discharge of barristers’ public duties with their private market duties, he said.