The Gazette 1992

GAZETTE

OCTOBER 1992

Fusion is not a reform panacea

In a recent article in the Irish

Independent entitled "Time for a

shake-up in our Courts", Democratic

Left TD

Pat McCartan,

who is a

solicitor, rehearsed many of his

favourite 'hobby-horses' on the need

for reform across a wide spectrum of

the legal world.

In fairness, Deputy McCartan is a

person who takes his responsibilities

as a public representative seriously

and, being a lawyer, he does have

something to contribute on the issue

of legal reform. However, on the

question of fusion he displayed an

acute lack of understanding of the

issues involved and, in particular, the

likely consequences were the

Government to go down that road.

Deputy McCartan's thesis, in

essence, is that there should be

coerced

fusion by means of

legislation. His central point is that

little effective reform will take place

until such time as the Law Library is

dismantled and barristers are allowed

to travel out to work alongside other

professions on the high street. This

will "cut out the unnecessary middle

man, the solicitor, in many

instances". This very simplistic view

of the consequences of removing the

Bar's rule on direct access is, to my

mind, naive and fundamentally

misses the real issue involved in this

debate.

Historically, the legal profession in

these islands developed in response

to the needs of litigants and in

recognition of the separate and

diverse functions that are involved in

the provision of legal services.

Solicitors are lawyers who provide a

wide range of services to clients,

many of which are of a non-

contentious kind, involving property

transactions, commercial activities,

wills and trusts etc. Solicitors handle

clients funds and, as such, are in the

position of trustees in relation to the

monies they hold. Their work is

essentially client-related and, in the

area of litigation, includes the

preparation of the documentation

necessary to commence and progress

legal proceedings. Barristers, on the

other hand, are essentially

trial

lawyers

who specialise in the

presentation of cases in court. The

skills required for each branch of the

profession are different and are not

necessarily enjoyed by all lawyers. In

any event, experience has shown that

this kind of specialisation of

function is necessary and works well

in practice. Even in countries where

there is a unified profession, the

same general division of functions

amongst lawyers is found.

Coerced

fusion would not necessarily make

any difference in practice and,

certainly, there is no evidence to

suggest that it would reduce the cost

of legal proceedings.

The idea that fusion would allow

barristers to work alongside other

professions in the high street,

thereby cutting out the unnecessary

middle man, the solicitor, is, to put

it bluntly, nonsense. If barristers

were allowed to take instructions

directly from clients they would, in

effect, become solicitors. The

General Council of the Bar

maintains that the rule which

prohibits barristers from dealing

directly with the client is a rule

which, in fact,

defineswhat a

barrister is.

In my view, if the direct

access rule maintained by the Bar

were removed, it would make no

difference in practice. Lawyers who

wanted to specialise as advocates or

trial lawyers would continue to do

so. Likewise, those who preferred the

client-related area of work would

remain as solicitors.

Deputy McCartan makes a good

point when he says that there are

two few lawyers in many important

areas of social and legal need. I

would agree. But my answer to that

would be to insist on the

Government introducing a decent

system of civil legal aid, involving

the private practitioner, which

would bring many more lawyers

into the area of the provision of

legal services for the less well

off. Another area, rightly identified

by Deputy McCartan, in which

urgent reform is needed is the

appalling shambles that is our

listing system in the higher courts

and the inordinate delays in bringing

cases to trial. Deputy McCartan

correctly identifies the need for

rationalisation and streamlining in

the courts system and the

introduction of proper information

technology to improve efficiency.

In my view, these and other areas

of reform are the matters upon

which Deputy McCartan should be

concentrating, not on promoting the

illusory concept of a fused legal

profession.

This is my last President's message

in the

Gazette.

I would like to

express my appreciation to those

who have taken the trouble to read

some, or all, of them, and who have

responded, sometimes warmly,

sometimes critically! I would also

like to place on record my thanks to

Noel Ryan

and the staff at Blackhall

Place for their assistance. Finally, I

would like to express my sincerest

and heart-felt thanks to the entire

legal profession for the warmth,

courtesy and encouragement which I

have been shown and given

throughout the year.

Adrian P. Bourke

President

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