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GAZETTE
I
N
S
M
SEPTEMBER 1992
Why are 80% of Lawyers Excluded
From Judicial Appointment?
At the end of July I staged a press
conference to publicise details of a
submission to the Minister for
Justice,
Padraig Flynn,
TD, in which
the Law Society called for a change
in the law to make solicitors eligible
to be appointed as judges in the
higher courts.
Our submission also argues that it is
important that solicitors should be
eligible to compete for all posts in
the Government service for which a
legal qualification is required.
In our submission we say the
exclusion of solicitors from
appointment to judicial office in the
higher courts means in effect that
about 80% of all practising lawyers,
irrespective of individual merit, their
academic qualifications, experience,
or standing as lawyers, are ineligible
for consideration. If the Government
changed the law it would have
available to it a much wider range of
candidates from which the choice of
judges could be made. Such a
change would be beneficial and
would ensure that the ablest persons
would be appointed as judges.
I think it is unacceptable that
appointment as a judge in the
Circuit Court, High Court and
Supreme Court should nowadays be
the preserve of only one branch of
the legal profession, namely, the bar.
Why should experience as an
advocate be a prerequisite for
eligibility for appointment as a
judge? There are many other
desirable qualities to be sought in
suitable candidates.
Experience has shown that the best
advocates do not necessarily make
the best judges and, correspondingly,
that some of the most able judges in
the past did not have distinguished
careers as advocates. The candidate's
knowledge of the law, his or her
standing as a lawyer, independence
of mind, judgement and decisiveness
as well as the perceived ability to
"chair" and administer his/her court
are among the qualities that are
more desirable than experience as an
advocate. Other personal qualities
are also important such as patience,
courtesy and, of course, compassion.
The appointment of solicitors to
judicial office in the higher courts is
essential if the Government is serious
about bringing about change in the
legal profession and, in particular,
encouraging solicitors to exercise
their existing right of audience in the
higher courts. While solicitors are
entitled to appear as advocates in the
Circuit Court, High Court and
Supreme Court, the general practice
still within the profession is to brief
barristers in these courts. The
difficulty is that many solicitors feel
inhibited from exercising their rights
of audience at present because of the
fact that the judiciary in the higher
courts are invariably former
barristers. The Fair Trade
Commission acknowledged this
difficulty in its report (paragraph
17.9) and put their view as follows:
"We believe that the presence of
former solicitors as judges would
encourage more solicitors to engage
in advocacy, since they may well be
partly inhibited from exercising their
rights of audience at the moment
because all judges are former
barristers, and the possibility of
judicial appointment for solicitor-
advocates also might encourage
more Court appearances by
solicitors."
If the Government is serious about
trying to erode the present rigid lines
of demarcation between solicitors
and barristers and ultimately to
bring to an end any restrictive
practices that may exist within the
legal profession, it must do what it
can to eliminate barriers and
divisions that contribute to the
demarcation that exists. The early
appointment of a number
of solicitors to the Circuit and High
Court would have a powerful impact
on the momentum for change
throughout the entire legal system.
All that is required is a relatively
simple legislative change. The
Minister has an ideal opportunity to
do so this Autumn when he
publishes a new Court and Court
Officers Bill. I hope that he will
make his intentions known before
then, by clearly signalling that he
accepts our arguments. It is
"The early appointment of a
number of solicitors to the
Circuit and High Court would
have a powerful impact on the
momentum for change . . . "
heartening to note that the Minister
of State at the Department of
Justice,
Willie O'Dea
TD, has
publicly accepted, in principle, the
merits of our arguments. I have also
received letters indicating support
from Oireachtas members of Fine
Gael, Labour, Progressive Democrats
and Democratic Left.
I want to thank my predecessor,
Donal Binchy, who chaired the sub-
committee on judical appointments
and who did a great deal of the
preparatory work on the submission.
I also want to thank
Alan Shatter
TD,
Max Abrahamson, Frank
O'Donnell, Andy Smyth, John Fish
and
Ray Monahan
who attended
the press conference and spoke
tellingly of their experience of
advocating in the higher courts, of
acting as arbitrators and serving on
tribunals such as the Criminal
Injuries Compensation Tribunal and
the Garda Siochana Complaints
Board.
Adrian P. Bourke
President
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