Court has inherent jurisdiction to require a foreign lawyer acting in Ireland to prove qualification

People (Director of Public Prosecutions) (respondent) v Patrick Holland (applicant): Criminal law - Practice and procedure - …

People (Director of Public Prosecutions) (respondent) v Patrick Holland (applicant): Criminal law - Practice and procedure - Visiting foreign lawyers from EU Member States - Whether person consulted needs to be a professional lawyer - Whether fundamental right to choose own lawyer - Whether choice of lawyer includes foreign lawyers - European Communities (Freedom to Provide Services)(Lawyers) Regulations 1979, (S.I. No. 58) ss. 5(1), 5(2)(a), 6, 7(1)(a) and 7(1)(b)(i) and (ii) - EU Council Directive No. 77/249 EEC.

Court of Criminal Appeal (before Chief Justice Mr Justice Murray) ruling delivered on January 21st, 2006.

The EU Regulations provide that activities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in the State by a visiting lawyer under the conditions laid down for lawyers established in the State, save that he shall not be required to be resident or registered with a professional organisation in the State or to hold a practising certificate.

The courts have both statutory and inherent duty to ensure safeguards within their jurisdictions are applied for the protection of public and administration of justice. A court has inherent jurisdiction to require lawyers acting before it to authenticate their professional qualifications if considered necessary for the proper administration of justice.

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The conduct of proceedings and the pursuit of activities relating to representation of a client in proceedings under the Regulations extends beyond appearing in court and making submissions.

The Court of Criminal Appeal so held in refusing the application for adjournment so as to enable the applicant to consult with his legal advisor, a foreign lawyer from a member state, and ruled that the case should take its ordinary place in the list.

Paul Anthony McDermott BL for the respondent; Patrick Holland represented himself.

The Chief Justice, Mr Justice Murray, in delivering the ruling of the court gave detailed account of events which preceded the application for adjournment. The applicant had brought an application pursuant to s.2 of the 1993 Act seeking to quash his conviction. He had been convicted on June 28th, 1999, for unlawful possession of an explosive substance consequent to a plea of guilty. He was sentenced to 10 years imprisonment at the court of trial. This was reduced to seven years, on appeal, by the Court of Criminal Appeal. He was due to be released on April 7th, 2006.

Mr Holland applied for an adjournment of two months of his application on Monday, March 6th, 2006, on the ground that he was due to be released shortly thereafter. The applicant stated that the relevant authorities would not let his legal advisor into prison to talk to him privately although he could apparently speak to him otherwise. It would appear that the reason for this limit on the visit by his legal advisor was related to the latter's credentials. The matter of prison visits was at the time before the High Court. The applicant named his legal advisor as Mr Di Stefano. He confirmed that Mr Di Stefano was a foreign lawyer and stated that he had perfect credentials. Mr Di Stefano is based in Italy. He is one of the principals in a firm named Studio Legale Internazionale. The solicitor recently on record for Mr Holland in the case was Mr Paul Martin of Paul Martin & Co, solicitors in the UK. The notepaper of Paul Martin & Co states that they are members of Mr Di Stefano's firm, Studio Legale Internazionale, Rome. Mr Martin stated that he was acting as agent for Mr Di Stefano and his firm in cases before the Supreme Court and Court of Criminal Appeal, including the case of the applicant. He withdrew from acting in all these cases when asked whether he was acting personally for his clients in accordance with the 1979 Regulations and for verification of his professional qualifications.

Mr Justice Murray directed the applicant to require Mr Di Stefano to lodge an affidavit with the court by 5pm the following Friday giving basic information concerning his legal and professional qualifications. The applicant had queried why Mr Di Stefano had been singled out regarding this requirement. Mr Justice Murray stated that other foreign lawyers had recently accepted without question to provide such information on affidavit. Mr Di Stefano did not. Mr Justice Murray stated that administrative problems arose in a number of cases pending before the court and the Supreme Court. These problems arose largely in part from the involvement of foreign lawyers. Some related to the withdrawal from some cases of Mr Paul Martin, the UK solicitor who had acted as agent for Studio Legale Internazionale. These have occupied the time and correspondence of the Registrar as well as the members of the court. Mr Justice Murray, having final responsibility for the supervision and management of the list, took the opportunity to clarify the practice to be followed concerning foreign lawyers from Member States who wish to pursue activities relating to the representation of a client in the court in accordance with the 1979 Regulations.

Mr Justice Murray stated that visiting lawyers from another EU Member State intending to pursue activities within the State to represent a client in legal proceedings are governed by the 1979 Regulations. These Regulations implement by law within the State the EU Council Directive No 77/249 EEC which applies in every Member State. The Directive is designed to promote the freedom to provide services by lawyers subject to certain conditions and safeguards. First of all, the Regulations only apply to lawyers from a Member State under a designation specified both in the Regulations and the Directive for that Member State. Only lawyers from those states with those national professional qualifications are entitled to the benefit of those Regulations. The Regulations only make provision for an EU lawyer from another state to provide legal services or pursue activities relating to representation of a client in proceedings before a court in their personal capacity and not as agents of law firms.

Mr Justice Murray then cited certain provisions of the Regulations. S.5(1) allows activities relating to representation of a client in legal proceedings or before public authorities to be pursued in the State by a visiting lawyer under the conditions laid down for lawyers established in the State save that such visiting foreign lawyer shall not be required to be resident, or registered with a professional organisation in the State or to hold a practising certificate. S.5(2) requires visiting foreign lawyers to observe the rules of professional conduct in the State without prejudice to the obligations of the visiting foreign lawyer in the Member State from which he comes.

S.6 requires that in pursuit of activities under the regulations, the visiting foreign lawyer shall work in conjunction with a lawyer entitled to practise before the judicial authority in question and answerable to that authority. S.7(1)(a) provides that the visiting foreign lawyer may be required to establish his qualifications by the competent authority. A competent authority being the court where such lawyer is pursuing his activities. Mr Justice Murray stated that independent of any Regulation a court has an inherent jurisdiction to require any lawyer acting before it to authenticate his professional qualifications if considered necessary for proper administration of justice. This applies to Irish lawyers as well. The purpose is for the protection of the public who repose their trust in the lawyers as well as protection of the integrity of judicial proceedings. There is a duty on the courts to exercise their inherent and statutory duty to ensure that safeguards which the jurisdiction involves are applied. Clients and the administration of justice could be prejudiced otherwise by persons who are not qualified.

Mr Justice Murray stated that litigants could consult with any person they wish who is not a professional lawyer. It is a fundamental right for persons to choose their own lawyer to advise them and pursue activities relating to their representation in legal proceedings. In the case of a duly qualified professional Irish lawyer, he or she be established in the State and will be required by law or the requisite professional body to carry indemnity insurance. Such lawyers will be regulated by law, the requisite professional body and answerable to the courts. The Irish lawyer, whether solicitor or barrister, can be readily ascertained in the State. A visiting foreign lawyer cannot be so readily ascertained. Any sanction imposed on an Irish lawyer could have fundamental and continuing implications for his professional practice. This is because the Irish lawyer is established in the State and may remain subject to such sanctions throughout his professional career. Whereas visiting foreign lawyers would not be bound by Irish professional standards nor continue to be answerable under Irish law or to Irish courts once they leave the State. They would continue their professional careers in their own country. Thus the need for the conditions and safeguards in the 1979 Regulations and the EU Directive. These apply to all services provided by the visiting foreign lawyer in the State.

Mr Justice Murray then issued practice directions to be followed by lawyers from Member States wishing to pursue activities relating to the representation of clients in legal proceedings before both the Court of Criminal Appeal and the Supreme Court:

The foreign lawyer should file with the court an affidavit sworn before an Irish solicitor or Commissioner for Oaths (who may be the lawyer with whom he or she is working in conjunction as required by the Regulations averring;

the Member State in which he or she is established and the legal title he or she is entitled to use by reference to the relevant legal title in the Regulations;

the name of the university or other institute from which he or she has obtained legal qualifications, including the year and title of the law degree awarded;

exhibit documentary evidence from an appropriate national authority of his or her entitlement to practice in the country in question, giving full details including the address of the national authority;

any other information relevant to explaining his or her entitlement to practice in the Member State as a lawyer with the legal title in question.

The affidavit should be lodged with the registrar of the court along with details of the Irish lawyer with whom the EU lawyer is working in conjunction. Once such an affidavit is lodged in relation to one set of proceedings, it shall not be necessary to lodge any further affidavit from the same lawyer in relation to any other and subsequent set of proceedings unless the court should give a special direction otherwise. Mr Justice Murray stated that these practice directions should be observed subject to such further directions he may issue from time to time. He opined that all such information is easily and readily at the disposal of a lawyer and should not be in the slightest bit burdensome for any genuine professional.

All of these matters were those which the applicant was directed to provide in relation to his legal advisor, Mr Di Stefano. Mr Justice Murray stated that there was no obstacle to Mr Di Stefano acting in relation to a case before these courts. All he had to do is to produce his professional and educational qualification as directed. Should he do that he would have been accorded the same courtesy and standing given to any Irish lawyer appearing before Irish courts. That he had failed to do. Such obstacle as existed, was of his own making. On the contrary, Mr Di Stefano wrote a letter directly to the Mr Justice Murray purporting to make representations on issues that arose in the application. An EU lawyer is bound to observe the professional standards of lawyers of the country in which he is acting. It is improper for any person and unprofessional for a lawyer to write to a judge concerning proceedings pending before him. Mr Justice Murray stated that only written communications concerning administrative matters may be sent to the Registrar of the court. Other issues or applications should be made in open court.

Mr Justice Murray stated that not only had Mr Di Stefano improperly written directly to a judge concerned in another case pending before the court, he had also, improperly and unprofessionally, written to the registrar. Mr Di Stefano had not provided one piece of paper from a professional body authenticating his legal qualification. These letters included scandalous and unfounded statements. Mr Justice Murray concluded that these issues were raised to distract from the real question, namely, of his professional qualifications. Mr Justice Murray said that it was curious to say the least that Mr Di Stefano was not prepared to make any statement on oath as to his professional qualifications. Of course if he did he would be answerable in a special way for any misstatement of fact in it.

Mr Justice Murray stated that the applicant handed to the court a copy of an English case in support of his contention that Mr Di Stefano was a qualified avvocato. Mr Justice Murray said that this was a case from another jurisdiction, turning on its own facts and had no application in this country. The only purported evidence of the qualifications of Mr Di Stefano before that court was his identity card. The question of Mr Di Stefano's qualification being investigated by the Law Society of England and Wales was not allowed to be pursued on its merits in that case because it was raised shortly before an imminent hearing. Mr Justice Murray noted that there were other cases before the courts in the UK which raised grave doubts about Mr Di Stefano's qualifications. Mr Justice Murray pointed out that an identity card and membership of associations alluded to by the applicant were not evidence of professional qualifications. The International Bar Association may be joined online by filling in a form and paying a fee. Professional and educational qualifications from appropriate professional and educational authority are verified by a simple document. This is the universal and necessary practice in the State.

Mr Justice Murray noted that the applicant sought to play down the role of Mr Di Stefano in the proceedings and therefore considered it necessary to summarise the history of the proceedings. The applicant lodged an application dated August 29th, 2005, with the court on September 1st, 2005, pursuant to s.2 Criminal Procedure Act, 1983. He wrote a letter dated September 23rd, 2005, to the Registrar notifying the appointment of Mr Di Stefano as his legal representative. He stated that Mr Di Stefano would arrange for a barrister to represent him at the hearing and would let him know when this had been done. He requested the Registrar to go ahead with the normal procedures concerning the application and forward to him any documents for onward transmission to Mr Di Stefano. There were then various correspondences between the applicant, the Registrar and Mr Paul Martin, of Paul Martin & Co of Essex, England, between October 2005 and March 2006. The applicant wrote to the Registrar stating that he was informed by Mr Di Stefano that both Messrs. Di Stefano and Paul Martin were on record in his case. The Registrar acknowledged the applicant's letter stating that he noted that "you will be represented by Mr Di Stefano, of Paul Martin & Co. Solicitors of Romford in Essex and I will write to that firm shortly". The Registrar duly wrote to Messrs Paul Martin & Co stating inter alia: "I am informed by the above Patrick Holland that Mr Di Stefano of your firm is now acting for him . . ." By letter dated October 19th, 2005, Messrs Paul Martin & Co. responded by fax and letter in which it was stated "we act for Mr Patrick Holland and have in fact filed a Notice of Acting in this matter. We act as agents for Studio Legale Internazionale in Rome, Italy, and we shall be expecting to assign counsel in this matter". Mr Di Stefano is a principal in that firm in Rome. Subsequently the matter was scheduled to be dealt with in the court's management list on various dates. A question having arisen concerning the capacity in which Messrs Paul Martin were acting as solicitors, since it is a foreign firm of solicitors, Mr Martin filed a notice of change of solicitors and personally went on record as the applicant's solicitor. The letter with this information stated that his firm was a member of Mr Di Stefano's firm, Studio Legale Internazionale. Subsequently in correspondence and in submissions made to court, the applicant referred to "Studio Legale Internazionale of Rome, Italy . . . on behalf of the applicant". In correspondence addressed both to the Registrar and the applicant Mr Martin accepted that his position, as a solicitor acting as agents for another firm, may not be an acceptable form of representation before the Irish courts and that, in fact, Mr Di Stefano had advised that other agents had been appointed by him to act on all matters in relation to the Irish jurisdiction.

Mr Justice Murray stated that he had recounted the events preceding to show that Mr Di Stefano had been inextricably involved in activities related to the representation of his client in these proceedings within the meaning of the 1979 Regulations. Mr Justice Murray stated that the conduct of proceedings and therefore the pursuit of activities relating to the representation of a client in proceedings extends beyond appearing in court and making submissions. Legal submissions filed in court bearing the name of Mr Di Stefano's legal firm was another clear example. Every professional lawyer knows that when he appends his own name or that of his firm to advises to the court in the form of submissions, which Mr Di Stefano had done, he must act responsibly in relation to his client, and comply with directions of the court.

Mr Justice Murray then addressed the issue of adjournment sought by the applicant in respect of s.2 of the 1993 application. Mr. Justice Murray noted that both the applicant and the DPP had lodged legal submissions in respect of the application. A reply had been lodged by and on behalf of the applicant to the DPP's submission. The applicant then sought two months adjournment so as to consult with his lawyer in relation to the proceedings. According to the applicant, he would have a better opportunity of doing so when he is out of prison. Mr Justice Murray noted that the applicant failed to establish that the lawyer specified by him is in fact a lawyer.

Mr Justice Murray stated that the applicant, while in prison, could consult in private any lawyer of his choice including Mr Di Stefano. However, such a person must be shown to be a lawyer. In any event, the case was essentially based on legal issues and these were covered and addressed in the written submissions. Mr Justice Murray said that the applicant was entitled to have any lawyer to advise or act for him whether engaged from his own funds or free legal aid. Mr Justice Murray noted that the case was ready to go on and there was no reason to give the case special treatment. The applicant had not disclosed any special factors which would warrant doing so. Mr Justice Murray therefore ruled that the case should take its place in the list.

Solicitors: Chief State Solicitor (for the respondent); the applicant represented himself .

Ola Ladenegan, barrister