The new chairman of the Bar Council wants to head an organisation that is open to change, he tells Carol Coulter, Legal Affairs Correspondent
Mr Hugh Mohan SC knows more about the media than most barristers. He advised the Sunday Tribune on libel for the best part of a decade, and headed the Advisory Group on the law of defamation set up by the Minister for Justice, which reported last year.
He is aware that the Bar Council, of which he was elected chairman in July, has an image problem, largely deriving from the much-publicised fees earned by a small minority of the profession in various tribunals. That problem has to be tackled, he believes.
"Keeping the head down hasn't worked. The bar is at a cross-roads. The bar has received adverse publicity from the fees being paid to certain barristers in tribunals. Only a tiny percentage are senior counsel working for tribunals. The Bar Council has no role in the selection of barristers for tribunals, and no role in fees.
"Although we think a good service has been provided by those working in tribunals, we would welcome any arrangement that would bring them to an effective and speedy end."
He pointed out that junior counsel outnumber seniors by six to one, and the majority of barristers under 30 are female. The nature of the profession is changing.
"The backbone of the bar is the 1,200 or so junior counsel earning a fraction of the figures read about in the papers. The majority of the bar are junior counsel under 40 working long hours to provide a service. There are instances where barristers work for months or years to represent a person, giving up other work to do it, without being paid."
Even when they are paid, the majority are not paid huge fees, he said. "In personal injuries cases, for instance, junior counsel earn 1 per cent of the award where the case is settled, 3½ per cent if it goes to court. That's a very small portion of the 40 per cent of awards paid out in legal fees, according to the insurance industry."
Although, like other representatives of the Bar Council, he is sceptical that the Personal Injuries Assessment Board will significantly reduce insurance costs, he accepts that it is now a reality. "The figures in its Book of Quantum are higher than what was being awarded in the courts."
However, he added that the advertising campaign against fraud waged by the insurance industry has already resulted in the volume of claims going down, and may even discourage genuine claimants from pursuing claims. The Bar Council is not opposed to change, he stressed. "In relation to personal injuries, we went to the Minister with proposals and the majority of the reforms in the Civil Liabilities Bill were advocated by us, along with others that didn't make it.
"We are fully engaged with the Competition Authority. If they have legitimate concerns about any of our practices, we will address those concerns."
The kind of issues likely to be raised by the Competition Authority includes the division of the profession into seniors and juniors, the lack of direct access to barristers by members of the public, who must consult a solicitor, and entry to the profession.
The Bar Council will look at all of these issues with an open mind, according to Mr Mohan. For example, already the rules allow direct access to barristers for professional bodies in non-contentious matters. The new Bar Council will look at whether such access is restricted to these bodies. It will also consider whether it needs to set out a client's charter. One principle it will defend, however, is the sole trader status of barristers.
"An independent referral bar plays a pivotal role in a democratic society. An individual from any background anywhere in Ireland can, through his solicitor, engage the best legal brains in the Law Library. That should not change. If the sole trader status of the Irish Bar were to change that would be more anti-competitive, and would lead to the concentration of the best brains in four or five large firms in Dublin.
"At the moment the DPP can engage a barrister to prosecute who defended last week. The criminal justice system is well served by that. Barristers understand their duty to the client and to the court as well."
Mr Mohan sees the need for the bar to play a stronger role in ensuring access to the law for the weaker members of society.
"We have met with a number of NGOs and we are exploring with them ways of providing a service to those in a weaker position in society. We are full of members who are very civic-minded," he said. He pointed out that members of the Bar have played an important role in changing Irish society.