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GAZETTE
SEPTEMBER 1981
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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