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V I
E W P 0 I N T
When is a solicitor not a
legal adviser?
The title to this Viewpoint may seem
odd: how, it may be asked, could the
question posed in the title be raised?
Solicitors are, after all, fully trained
lawyers - most of them law graduates -
who have rights of audience, as
advocates, in all the courts. Indeed, since
the late 1970s, solicitors have benefitted
from a form of vocational training in the
Society's Law School at Blackhall Place
that has been much admired (even
endorsed by the former Fair Trade
Commission) and considered to be on a
par with the best vocational education
systems internationally. Nowadays,
many solicitors have post-graduate
degrees in law and specialisation in
particular areas of law is common. Many
would be well versed in international
law, particularly the law of the European
Union.
Yet, despite all of this, the Attorney
General's office recently advertised,
once again,
for legal assistants making it
clear in the advertisement that solicitors
need not apply. Eligibility was confined
exclusively to barristers. As we move
closer to the 21st Century, you might
very well ask how this could be so.
What is it about the work of the Attorney
General's office that makes solicitors
unsuitable? The advertisement says that
the duties of a Fourth Legal Assistant
(which is the basic entry level) involve a
"very wide range of legal work of a
major public importance. They
include advisory work and research in
the fields of both domestic and
international law, including the law of
the European Union; and participation
in formulating law at domestic and
international levels."
The advertisement went on to say that
those appointed to the posts would be
expected to travel abroad to international
meetings and conferences and to
represent the State in a legal capacity -
nothing, you might think, in any of those
duties that a well educated young
solicitor could not do. Lawyers in other
areas of the public service (for example.
the Department of Foreign Affairs) are.
after all, doing work of a broadly similar
nature and solicitors are eligible for
appointment to those posts. Likewise,
although the field of endeavour may be
somewhat different, solicitors are, and
have been since its inception,
successfully working in the office of the
Director of Public Prosecutions in
relation to functions which were once
part of the Attorney General's office.
The single requirement for these
positions which excludes solicitors is the
requirement that candidates must have
practised for at least four years as
barristers
within the State. The
experience so gained automatically
ensures that these persons will be
capable of performing the duties set out
above and this, and this alone,
distinguishes them and sets them apart
from solicitors. It is, apparently,
irrelevant that experience gained as a
barrister in the Law Library or on circuit
may have been of the most mundane
kind and it matters not, it seems, that a
candidate may
never
have advocated
before a judge in the superior courts at all
- other, perhaps, than to seek an
adjournment or bring a minor
application. The mere fact of being a
member of the Bar Library and of having
been
'on the hazard'
is in itself
sufficient. As against that, a solicitor
candidate (if he/she could be a candidate)
might have ten or 15 years of varied
experience working on behalf of
demanding high-powered corporate
clients; he might have represented his
firm internationally, (he might even have
worked in a branch office of his firm
abroad). It is not inconceivable that he
might be expert in legal drafting, have
conducted arbitrations on his own;
indeed, he might even have advocated in
important cases before the superior
courts - as some solicitors undoubtedly
have. It matters not, it seems, that such a
solicitor might have acted as an inspector
under the
Companies Acts
or conducted
legal enquiries on behalf of the
Government - so long as he has not been
in the Bar Library for at least four years
he is, as a consequence, disqualified.
Attorneys General in the past have
sought to justify this insidious
discrimination against one branch of the
legal profession on the grounds that, to
understand how law operates in practice,
one must have practised at the Bar.
Perhaps there are some who will find
that excuse convincing. We certainly do
not. It is now time that this matter was
addressed seriously by the Government.
We believe that all restrictive practices
that seek to exclude one branch of the
profession from eligibility for
appointment to legal positions in the
State - including appointment as judges
- must now be ended. The skies will not
fall in if this happens. The two branches
of the profession will continue to fulfil
their separate roles. Once eligibility is
established, those charged with the
responsibility of selecting candidates for
appointment will, of course, be free to
exercise their own discretion in relation
to the
experience
of the candidates and
decide whether, all things considered, a
particular individual is suitable.
Can they still be that much out of touch
in Merrion Street?
If it does it is because the above is an
exact republication of the
Viewpoint
which appeared in the July 1994 issue of
the
Gazette.
Sound familiar?
Since then, some things have changed
and some things have not. The Govern-
ment has changed. The Attorney
General has changed. The Report on
the Office of the Attorney General by a
Dail Select Committee on 15 February
1996 expressed the opinion that "the
office of legal assistant should also be
open to either branch of the legal
profession". The law has changed to
allow, to date, three solicitors to be
appointed judges of the Circuit Court.
As the recent employment
advertisements reveal, however, in the
Attorney General's office it remains a
case of'
nolumus mutari
rules ok'.
Ken Murphy
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