‘We really need to be able to deliver the entire legal system online’

Outgoing director general of the Law Society, Ken Murphy, says courts system needs ‘massive investment’ to fund a required transformation

The effect of the pandemic on the legal profession is not uniform, but everyone's income is being hit, according to the outgoing director general of the Law Society of Ireland, Ken Murphy.

The larger firms are faring best, the international evidence indicates, because they have a wider spread of business, and are better able to insulate themselves.

“I would say the general belief is that everyone’s income is down. Absolutely everyone’s income is down, no matter what area of the profession you are in. How much it’s down will vary.”

Attempts to describe or predict the pandemic’s effect on the profession are hampered by the fact that no-one can predict when or how the pandemic will end, he says.

Murphy is a long-time familiar figure of public life in Ireland having taken up the post of director general of the Law Society in March 1995, when he was 38 years old.

He was first elected to the Law Society’s council in 1983, when he was just 27 years old and soon after he had been taken on by A&L Goodbody.

Since becoming director general, he has worked with nine ministers for justice and a smaller number of chief justices.

He has also made a point of being heavily involved in the international legal organisation scene, and has been a frequent presence in the national media.

“They were all very able and brilliant,” he responds, when asked which of the ministers for justice most impressed him.

Likewise, when asked how he has found the judiciary over the years, his answers are careful, though he is prepared to comment on last year’s public fallout between Mr Justice Séamus Woulfe SC, and the other members of the Supreme Court, during which the Chief Justice, Frank Clarke, published correspondence between the two men.

“I don’t think it worked out well,” he says of the decision to publish the correspondence.

"I think it was a misstep. I have huge regard for Chief Justice Clarke. There was a lot of pressure at the time. I don't think either Mr Justice Woulfe or the Supreme Court covered themselves in glory in the way that was handled."

In the correspondence, the Chief Justice said it was his view and that of the other members of the court that the cumulative effect of the Golfgate controversy had been to cause “irreparable damage” to the collegiate court to which Woulfe had been appointed.

“I think it could have been handled better,” says Murphy. “That is a widespread view in the legal profession. There were unforced errors there.”

High regard

The former chief justice, Susan Denham, for whom Murphy obviously has a high regard, was correct, he believes, to find that while Woulfe's attendance at the Golfgate dinner may not have been the best decision, for him to have to resign would be disproportionate.

“The level of outrage can’t be the measure,” he says. “That is a really important part of the justice system.”

Murphy is a huge admirer of Clarke, with whom he travelled two years ago to the US, along with the then attorney general, Woulfe, to promote Ireland as an alternative location for international dispute resolution, in the wake of the Brexit vote.

“He is an outstanding, visionary leader, very much one of the leaders on technology. He has said the court system’s centre of gravity is moving online.”

Technology, how it will affect the delivery of legal services, and how it will affect the operation of the courts system, is one of the major developments Murphy talks about when reviewing how his profession has changed over the years.

While in Singapore “years ago” to attend a conference, he took the opportunity to view its “paperless” courts where everything was being managed on screen.

It was in sharp contrast to the Irish courts, where barristers and solicitors still use trolleys to transport boxes of documents to and from court hearings.

The pandemic has forced a leap forward in the use of technology by the Irish courts system, but the infrastructure suffers from the long “stand still period” of underinvestment that took place during the recession.

Even if Ireland does not succeed in attracting international dispute resolution business from London post the UK’s departure from the EU, the Irish courts system needs “massive investment, tens of millions of euro”, to provide the technology needed for the provision of a modern service.

The investment is needed for “Irish cases, Irish disputes, Irish business,” and the type of litigation that is inevitable in a “cutting edge economy”.

“We really need to be able to deliver the entire legal system online. That is the way of the future.”

“Big Law”

Technological change, the development of “big law” – large practices serving international corporations – the growth in in house lawyers, and the “feminisation” of the legal profession, are among the changes sweeping the profession, according to Murphy.

He was attending an international conference in Cape Town, South Africa, in late 2014, when he was contacted by the office in Blackhall Place to be told that the number of women on the roll of solicitors had reached 50 per cent, plus one.

He canvassed the room, but no-one else could say the same.

“We were the first legal profession in the world to reach that.”

Currently, 53 per cent of practising solicitors are women, with the proportion rising to 68 per cent for in house lawyers.

“At some level, the profession must be welcoming to women, because so many are entering into it. It was a completely male-dominated profession when I was entering it.

“I’m not saying for a second that equality has been reached in the profession, for women, because many of the ownership and most senior roles in the profession are still being held by men, but that is changing also.”

Murphy accepts that wider diversity questions also still remain, but says the society has been working on ways to encourage people from a broader range of backgrounds to become solicitors.

The society, which has a monopoly on legal professional training for solicitors, has introduced a “hybrid” course a sizeable proportion of which is delivered online, to make it easier for those who might not be able to afford living full-time as a student in Dublin.

“In a lot of respects, our training comes at the end of an educational system that goes right back to kindergarten and there are undoubtedly inequalities of Irish society that are built in at all levels of the educational system and it is not as if the Law Society can change that.”

On the other hand, trainee solicitors have to be paid at least the minimum wage during their in-office training period (unlike a young barrister doing “devilling”).

“People can fund themselves even if there is a not a lot of money behind them. But I will acknowledge that there is still some way for us to go here,” says Murphy.

High cost

In November of last year the Legal Services Regulatory Authority (LSRA) recommended that the monopoly roles played by the Law Society and the Society of King’s Inns in providing professional training to, respectively, solicitors and barrister, should come to an end.

“We must address those financial and administrative barriers that aspiring lawyers continue to face at the outset of their careers, for once and for all,” the Minister for Justice, Helen McEntee, said at the time.

The Troika, during the bailout years, sought to address the high cost of legal services in Ireland, but the legal profession fought hard against some of the measures that were proposed.

At one stage, Murphy says, he had a one-to-one meeting with the then taoiseach, Enda Kenny, to discuss concerns that the proposals being made could endanger the independence of the legal profession.

“We took a strong view. There was dismay internationally at the potential that there might be government control of the legal profession.”

Any perception abroad that there was a threat to the independence of the legal profession here had the potential to negatively affect foreign direct investment, the government was warned.

What emerged from the debate, says Murphy, “was a balanced outcome”.

The independence of the legal profession is a benefit to the public and to the democratic system, and is very closely associated with the separation of powers and the independence of the judiciary, he says.

“If the government controls the legal profession, there is always the question as to whether cases that the government doesn’t want brought will be brought.”

Murphy is comfortable talking about such broad brushstroke matters, and can pepper his conversation with references to complaints in Plato Dialogues about having pay for justice, or laments by Hamlet about people having to suffer not just the whips and scorns of time, and the oppressor’s wrong, but also the “law’s delay”.

Technology, he quips, may be finally able to address the last of those complaints.

Black is white

He studied philosophy, English, and French, in University College Dublin, and might, he says, have liked to have been a journalist.

The solicitors profession often attracts unkind jokes - what do you call a bus carrying 100 solicitors driving off a cliff? A start. - while also being consistently viewed as an attractive one by people starting out in life.

The negative attitudes towards the profession is something that Murphy has obviously thought and read about.

When it is put to him that the profession makes people nervous about the fees they will be charged, he readily agrees, but also makes the point that it can be in the nature of legal advice that it loses its value the moment it is disclosed, because, with hindsight, it can appear obvious.

Also, it is an aspect of the lawyer’s skills that he or she can argue that black is black, or that black is white, depending on who is paying them.

“People admire the skill with which that is done, but think that it lacks integrity,” he says.

On the other side of the scales, there are the TV legal dramas, where lawyers are portrayed as wealthy, powerful and sexy.

Likewise, there are the movies where lawyers are portrayed as standing up for justice, the oppressed, or the truth, against powerful adversaries, which also makes the profession seem attractive.

Murphy’s salary as director general is not disclosed and he declines the invitation to change that.

“All I’m saying is that this is something I negotiated and agreed with my employer, who will shortly cease to be my employer.”

His replacement as director general is expected to be announced next week.

The world is becoming more wealthy and complex, people are becoming better educated, and more assertive, and “that great big building on Kildare Street” continues to produce even more law.

For all these reasons, the future for the legal profession, Murphy believes, is a bright one.

Although there is much talk internationally about the potential of new technologies, including artificial intelligence, to replace solicitors, and even judges, in many areas of the law, Ken Murphy is not convinced.

“Law is a human endeavour. It is all really about people in the end,” he says.

Having worked over the years with nine different ministers for justice, he has observed how the human factor plays a real role in decision-making.

“There is a degree to which the personal views and values of the minister can be decisive in many situations. It isn’t simply that there is government policy, and there is department policy, and there is pressure from outside interests.

“The actual views of the minister can be really important in terms of shaping policy. I think in the end we are dealing with human systems. And the legal system is a human system.”