Barristers ‘abandoning criminal and family law work for other cases’

First independent review of the Bar of Ireland described as ‘historic’

Being a barrister is now “a vocation”, according to Bar council chair Maura McNally, who says that many solicitors starting their careers in legal firms can earn from €50,000 to €70,000 a year: “There is not a hope of getting that starting off at the Bar.”

Describing the first-ever independent review of the Bar of Ireland as “historic”, McNally said: “Everyone starts at the bottom in every job but the rates being paid today in the District Court, as low as €25 a day, are the same as in 2002.”

A “constitutional crisis” is looming because the poor pay rates mean barristers are abandoning criminal and family law work for other cases, she told The Irish Times, ahead of the publication of the report.

Barristers are “continuously filling the gap that the Government refuses to step into”, including by providing pro bono services in the absence of an adequate system of civil legal aid, she said.

Early career income has always troubled newly starting barristers, she said. But the problem is “perhaps worse” now, with many junior counsels worrying because of greater competition and low legal aid rates for criminal and family law work at District Court level.

Getting fees from solicitors is a particular problem for barristers as they cannot sue solicitors over fees owed, with an average of €27,000 outstanding in 2020. So far, €277,000 has been recovered, but some €1.2 million remains outstanding.

Investment in the judicial and courts system here by the State is very low, with just €56 per head of population being spent annually when the figure in comparable countries is €190-200, she said.

The Bar of Ireland is facing challenges on several fronts but has “changed so much in the last 30 years. It is doing its best to reflect society, to break down the glass ceiling and the wrong perception of it”, McNally said.

“As a gay woman from the country, from Leitrim, who has done okay at the Bar and managed to become chair[woman], I think it is much more diverse now,” said McNally, who was called to the Bar in 1992.

Its diversity programme includes work with Deis schools, an equality action plan and a new equitable briefing policy, she outlined, while since last October masters must now pay the first-year Law Library fees. Subscription fees remain at 2008 levels.

Property portfolio

Of the review’s 51 recommendations, many relating to improving education, training, marketing, diversity and inclusion and managing TBOI’s €53.5m property portfolio, all but six have been accepted by the council and have already been, or will be, partially or fully implemented.

There were “no major surprises” in the report as the council and executive were “keeping pace to a degree with the changes necessary in the profession”, McNally said.

While the council disagreed with four core recommendations that TBOI [The Bar Council of Ireland] should consider changing its Independent Referral Bar (IRB) [sole trader] business model to allow barristers form a meitheal, a non-commercial group of senior and junior counsel and pupils who would remain self-employed members of the IRB, discussions will continue in relation to the business model, McNally said.

While the review suggested more than half of Law Library members would like the option of legal partnerships between barristers and solicitors, TBOI says that is inconsistent with the IRB model.

A recommendation for the appointment of non-executive directors to the council was also rejected.

The council accepted most of the EY recommendations aimed at improving fee recovery, except for one proposing an invoicing scheme allowing for the sale of unpaid fee debt to a third party.

Ciara Murphy, chief executive of TBOI, noted the EY review conservatively estimates the appropriate number of barristers here at about 1,500 with the effect, in today’s terms, Ireland is “over-barristered”.

An insufficient supply of work will be “a continuing problem” but the council does all it can to support this self-employed individual profession, including by seeking out opportunities for work for barristers via specialist bar associations, Murphy said.

Addressing the market perception that legal costs here are “opaque”, Murphy said there is no evidence for the “mantra” over the last 20 years that Ireland is a high legal costs jurisdiction.

The LSRA — the legal services regulator since 2015 — had “changed the landscape” on costs and EY and State agencies agreed the services provided by TBOI provide value for money, she said.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times