Tough times at the Bar? Fees for top lawyers skew reality

“It’s dog eat dog. Everyone is watching and there is a lot of jealousy. If you get a good case that is going to take some time, the resentment can be massive.”

So says a barrister specialising in criminal cases who qualified in the late 2000s, at a time when unprecedented numbers of young barristers were coming out of the King’s Inns and the Irish economy was about to go into free-fall.

The fee cuts introduced since then for barristers working for the Director of Public Prosecutions, or the Legal Aid scheme run by the Department of Justice, now need to be addressed, the Bar Council argues, or the criminal justice system will soon enter a crisis.

It is a familiar type of argument, one that is made by gardaí, teachers, nurses and public servants generally.

“Look, we know the damage that is being felt by other sectors. We meet the Garda every day of the week,” says a successful, male, mid-career criminal barrister with a good practice. “But a knee-jerk reaction, that, look, it’s barristers looking for more money – that’s equally unfair.”

A young woman barrister paints a picture of a difficult profession in which to get a foothold. A new criminal barrister doing work in the District Court can spend all day waiting for their case to come up, and receive €25 for their effort.

“You’re there on your own,” she says. “The client may be drunk, or could shout at you, or might have a child outside the door. If it’s in Tallaght, you’ve spent €3 on the Luas. You think, should I buy a cup of coffee, a sandwich?”

Stuck in District

Traditionally, young barristers wanting to do criminal work might spend a few years in the District Court, learning the trade in the hope that in time they will receive work at a higher level. But this barrister says her contemporaries are finding themselves still in the District Courts eight and nine years later.

Furthermore, while in former times you get good multiples of cases in a single day, that is now less likely because the field is so much more crowded.

She herself now gets work in the Circuit Criminal Court. She has no connections and no family background in law. “I got a few breaks. But I know some very clever, hard-working people who didn’t.”

Two years ago, for the first time in her career, the barrister took a two-week holiday in August. Mostly she likes to stick around during holidays in the hope of picking up whatever work is available, while others are away. “Availability and being present are very important for juniors.”

When a colleague gets sick, others notice and wonder what briefs might be available. Everyone’s watching to see who gets the work.

Being on the DPP’s panel for criminal work is not just a breakthrough because it means you are likely to get steady work, but because you will actually get paid for the work you do. Young barristers, she says, are at the mercy of the solicitors who engage them, and she knows many who have been waiting years for fees they are due.

Interestingly, she says the fees paid by the State are not such a huge issue for her and her contemporaries because they have never known the higher rates. “We never had the big fees,” she says, “and we weren’t hit by being in negative equity [when the fee cuts came] because we hadn’t bought houses.”

An older male barrister confirms that many colleagues saw their investments in property take a nosedive at the outset of the financial crisis, only to see their fees cut by up to 36 per cent and the work become harder to find.

A middle-aged male junior, who has a successful practice, says that his fee rates were cut but his income has probably risen over the past eight years because of the stage his career happened to be at: “The natural progression of a barrister’s career is that you make more money as you go along.”

However, he is very careful to ensure that he is available for work. “Barristers don’t compete on price,” he says. “We compete on being available.”

Given that barristers have to look after their own pensions, he particularly resented the second fee cut that was tied to reform of public service pensions.

As for today’s young barristers, he says he does not know how they survive the first 10 years. “You can sense the anger and resentment from the struggle to get traction.”

Savage rates

“The rates were savaged,” says a male, mid-career barrister who does criminal and civil work. “Not reversing the cuts is a massive bone of contention.”

For him, working for the DPP is like being a supplier to Dunnes Stores. You want to be a supplier, but the deal is they tell you how much you are going to be paid. “You just suck it up,” he says. “If you complain, there might be repercussions. Who’s going to champion a pay rise for lawyers?”

Two young women lawyers now receiving a steady amount of Circuit Court work say the difficulties of the early years means that large numbers of their contemporaries have left the Law Library and gone “in house” to work for State agencies and major firms, despite having started out their careers wanting to work in the courts.

They also say they and their colleagues often supplemented their income by lecturing at night, in order to make ends meet in the early years.

“You go to the bar to be on your feet [in court]. Criminal work means a lot more time in court,” says one. “If things are going well, it’s the best job in the world.”

Of the 200 or so who qualified with this barrister almost a decade ago, she would be “amazed” if there were more than 70 still practicing.

2002 pay rates

Part of the problem, according to a male junior with a mixed practice who qualified in the mid-2000s, is that criminal work has grown more complex and demanding, while pay rates are back where they were in 2002. This is not sustainable, he says.

The social good that comes from a just, well-functioning criminal justice system, and which benefits from well-trained, committed, self-employed barristers doing both defence and prosecution work – and getting the same public fee rates for doing so – needs to be properly funded. The US scenario, where overworked, underpaid lawyers represent many who come before the criminal courts, needs to be avoided.

Interestingly, a number of criminal barristers spoke resentfully about the big law firms. One in particular profited handsomely from State work during the recession.

“Those of us doing pure, publicly funded criminal work are aghast when we look at what is being paid for legal work by institutions such as the National Asset Management Agency,” says one. “Where is the evidence that they are looking for knock- down fees” from the solicitors and barristers they engage?

Another matter that arose in a number of the interviews was work which the profession feels it does for free. These include watching videos of Garda interviews, going through documents relevant to the discovery process, and making written submissions to the Court of Appeal. The work is included in the overall fees but can be demanding and/or laborious.

“You find yourself doing a 20-page submission for the Court of Appeal on a Sunday night and you’re thinking: ‘I’m not getting paid for this.’ That’s not viable.”

Garda interviews move at a snail’s pace because the interviewee’s comments are being written down by the officer. Watching them is “painstaking”, says a woman barrister.

Media reports about the money being made by barristers at the top of the scale skew the reality that most are on modest incomes after years of hard, low-paid work, according to one barrister.

The truth is, he says, criminal law is seen as an unattractive career choice within the profession – and society will eventually pay the price if the problem is not addressed.