The Gazette 1981

SEPTEMBER 1981

GAZETTE

Solicitors and the Bar A precis of the address given by Niall McCarthy, Senior Counsel Chairman of the General Council of the Bar of Ireland, to the Society's Annual Conference at Waterville, County Kerry, on 7th May, 1981

A Bifurcated Profession A common stem or root requires or, at least, makes desirable the provision of a common educational policy in at least the elements and rudiments of law and legal practice. The acquisition of legal knowledge in, say, tort, contracts, land registry, conveyancing, crime, equity and the like are, surely, capable of joint learning. It was so, in my student days at University College, Dublin, and, I believe, elsewhere. It is so in the obtaining of a degree in Law in the National University and in Dublin University. Whilst the systems of education and qualification for both branches of our profession now require third-level education, this is not to say that the teaching of law beyond the third level cannot usefully be combined between both branches. One must recognise that a stage will be reached where the two prongs of the legal implement must go their separate ways — the degree of separation not being free from certain grey areas — but, generally speaking, there is on :he part of the apprentice solicitor a concentration on the administration of an office and dealing with various other offices, both those of fellow solicitors and the public and court offices, while on the part of the student barrister, the emphasis is on the presentation of court work and in time, the study, research and experience that will tend to give him or her a more specialised knowledge in particular fields. If the stem remains sound there is no reason why the profession, in its two aspects, cannot remain equally sound and true to itself, as well as to the public. It demands, however, that each branch should recognise problems of the other; should try to avoid petty criticisms; should seek, together, to remedy defects; should abandon any form of siege mentality vis-a-vis the other branch of the profession or such other bodies or persons as may tend to mount attack. It is not uncommon for newspapers to publish criticisms of the law and lawyers — ranging from comments on the delay to comments on the charges. Many of these comments c ome from the convenient recipe of arrogance and ignorance. The profession, as a whole, I suggest is not helped when such comments are made by members of the profession itself, on matters of particular kind about which they know little or nothing. Fusion The c ommon argument in favour of fusion in our profession is that of reduced cost. There is, however, nothing to show that the cost of litigation in jurisdictions where the profession is unified is any less than it is here. Would it be more efficient? The c ommon experience is that, in fact, whether or not the profession is unified, the

individual members tend to do the work either of a Solicitor or a Barrister. Where two minds or two sets of minds are brought separately to bear upon the presentation, analysis and resolution of a problem, it is likely although, I hasten to'say, not invariably, to be the ease that the resolution will be the better of it. It .s not my purpose to enter into an analysis of the various arguments against fusion — suffice it to say that they are not limited to the well-worn ones of the problems for country Solicitors, the independence of the Bar, the influence of corporate bodies or the State, but extend also to such considerations as the continuity of trial; the presumption of ignorance on the part of the judiciary — this is no idle or joking matter — it seems to me to underly the duty that lies upon Counsel to inform the Court of all relevant law, including precedent and Statute, irrespective of whether or not that law favours his particular client's case — this seems to be based upon an assumption that the Judge knows no law; the exact converse is the case in Continental Europe where, indeed, cases have been decided upon legal issues which were not even the subject of argument, much less pleading — what appears to me to be a most unsatisfactory method of administering justice, if it can be called justice at all; it appears to infringe the first principle of natural justice — audi alteram partem, if not also the second — not to be a Judge in their own cause. What is one being other than a Judge in one's own cause, if the case is decided by the Judge upon a point that was not taken by the other side and which the losing party never had the opportunity of answering? Continuity of trial depends, in part, on the availability of Counsel. In a fused profession, it would seem to me that great difficulties would be met in achieving this. I do not know exactly what the situation is in the United States, but the simplest of trials there seem to take an unacceptably long time in Court. Let me and, indeed, you, discard fusion, attractive though it is for those of my years to contemplate entering into a partnership in a law firm with consequent pension and insurance advantages! Future Law Let us, in both branches of the profession, play our part; let us not merely use the law and the legal system as we know it, b"t let us seek to influence it in a particular way, to guid: it along developing lines, to appreciate that we shou'J not merely react to proposed changes in the law, but actively seek to improve it for the good of the community as a whole and the good of our profession in particular. During the next decade, the rate of technological

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