CUMULATIVE FEES paid to barristers over the many years of the tribunals and reports of fees claimed before the High Court taxing master have created a public image of barristers as a group of massively overpaid professionals whose social usefulness is debatable, writes CAROL COULTER,Legal Affairs Editor
There is no doubt that some fees are extraordinarily high. At a taxation of costs last July, the taxing master allowed a fee of €60,000 for a brief, received five days before the case opened, and €4,000 a day in court for senior counsel, with two-thirds for junior counsel. However most barristers are not earning that kind of money.
A junior counsel, qualified almost two decades, whose mixed practice is mainly on circuit, told The Irish Times she is lucky to clear €100,000 a year, out of which she must pay office costs, Law Library fees, a pension contribution, VHI and serious illness cover.
Fees are coming down in some areas as clients seek a “beauty parade” of qualified barristers from solicitors, with price a major consideration. It is estimated to take seven years from qualification to start making a living and the rate of attrition is rising.
Sixteen per cent of members of the Law Library are overdue on their subscriptions for previous years and 101 members left the library this year for financial reasons, a three-fold increase on last year.
A junior barrister can go out to Clover Hill District Court, pay for his or her own transport and lunch, hang around there most of the day and be paid between €28 and €74 for the day depending on whether there was a remand or a full hearing.
Such disparity in fees among professionally qualified people shows that too much lucrative work is concentrated in too few hands at the top of the profession.
The State is part of the problem, as State agencies tend to use the same few barristers and do little to ensure work is spread below a top layer. For example, the HSE spent €2.4 million on counsel fees between 2007 and 2009 in relation to childcare cases in Dublin and the surrounding area. Six barristers shared more than 70 per cent of the total spend.
In the area of criminal legal aid, 10 out of the 630 barristers in the scheme shared €3,119,572 of the €20.3 million spent last year, 15.3 per cent of the total. If fees for the State’s civil work were published, it is extremely likely a similar picture would emerge.
The Competition Authority argues that fees are kept high by a range of restrictive practices at the bar, and its 2006 report put forward a number of proposals to end them. However, it is difficult to see a direct connection between many of its proposals and a likely reduction in high fees.
The Bar Council argues that these proposals could in fact lead to increased costs, and would restrict access to justice for many who benefit from the existing system.
It opposes proposals from the authority to end the rule whereby barristers must work as “sole traders” prohibiting them from entering partnerships. Barristers are all theoretically equal participants in an “independent referral bar” based in the Law Library, where a barrister must take a case referred to him or her by a solicitor in an area in which he or she normally practises, irrespective of the client.
The Competition Authority argues that the public should have direct access to barristers for legal advice, saying it is a wasteful duplication to have to go through a solicitor.
The Bar Council argues that providing direct access would involve an expensive infrastructure of reception staff, an office and increased professional indemnity insurance which would increase rather than contain costs, although it does operate a voluntary assistance scheme where barristers give help for free to people and organisations who seek it through voluntary bodies.
Almost 400 such cases were taken without fees being sought last year. For all these reasons it is likely that were the rule to go, only a small minority of barristers in very specific areas (employment or planning law, for example) would bother offering advice to the public. It is difficult though to justify prohibiting barristers from doing so.
The arguments put forward by the Bar Council against many of the authority’s proposals all centre on the rather abstract concept of independence, which has little resonance with the public. This holds that the first duty of a barrister is to the law and the court and no one should have a higher call on his or her duty to state the law as he or she sees it and tell the truth to the court.
Joining with others in chambers, joining a legal firm or taking employment as a barrister would compromise this independence and first duty to the court, it argues.
Solicitors – and some barristers – are unconvinced by these arguments. Solicitors point out that they too are officers of the court and take their obligations to it very seriously.
English barrister Lord Lester QC, who argued against the Bar Council position in The Irish Times recently, says chambers assist the bar in renewing itself and, by organising work in teams, enable a young person to bring up his or her advocacy skills.
The Bar Council points out that when the chambers system took over in England, more than three-quarters of those who qualified as barristers ended up unable to practise because they could not get a traineeship in chambers. Lord Lester acknowledges this is true, but told The Irish Times they end up working in other areas of the legal system and that there is attrition too in the Irish system.
Garrett Simons SC, one of the few prepared to differ publicly with the Bar Council, says a significant number of Irish barristers would welcome chambers.
“One of the ironies of the current system is that although it recognises the economic principle of ‘division of labour’ and divides the legal work in a case into different parts to be performed by lawyers with different skills and experience [senior, junior and solicitor], it then undermines the economic benefit of that division of labour by having all three present and involved at all stages of a case.
“A chambers system would allow a proper division of labour to operate, with more senior barristers delegating some of the work to a more junior colleague.”
Opponents of chambers fear that it would lead to a concentration of talent in a few chambers linked to the big law firms, to the detriment of access to justice for all, and that it would institutionalise nepotism, leading to monopolies and reduced competition and to the detriment of access to justice for all.
“You’d get a Clongowes chambers and a Gonzaga chambers and people who did not have these connections would never get a chance,” one says. However, others argue that already family, school and university connections play an important role in the advancement of young barristers.
Because the Legal Services Bill has not yet been published, some of this academic, which is not the case with a recent decision of the Department of Justice to end the long- established parity between defence and prosecution barristers through the imposition of a fee cut on defence barristers only.
Barristers on all sides fear this is emblematic of a move towards a more American system and as the beginning of a slippery slope whereby defence work becomes downgraded and looks more like the situation that pertains in the US. There, public defenders are mainly the flotsam and jetsam of the legal profession with public prosecutors better paid and better qualified and also, because they do this work exclusively, wedded to obtaining convictions at all costs.
Mary Rose Gearty SC is one of those deeply concerned. “I am grateful to the DPP for acknowledging all the work we do [and not reducing rates for prosecution counsel], but every single practitioner I have spoken to who does prosecution work would take a cut in fees to preserve the parity between the defence and the prosecution. The principle is terribly important to us.”
Tackling duplication and waste is imperative, but so too is bringing about a more equitable distribution of work within the professions, along with ensuring access to justice for the marginalised and those who cannot afford to pay.
Tomorrow:Reform of the legal system