186 / 482
GAZETTE
APRIL 1989
From the President . . .
IContd.
from psge
167)
another EC country who works
with a Solicitor for three years will
then be entitled to admission as a
full member of the profession
without examination. If we are
offering such access to lawyers
from abroad, should it be more
difficult to transfer from one branch
to another of the profession here?
I would urge that appropriate
representatives of the King's Inn
and the Law Society sit down
quickly to work out revised
agreements which, it seems to me,
would be in the interests both of
the profession as a whole and of
the public.
ONE PROFESSION?
If one accepts the principle that
the only restrictive rules should be
those that are necessary to ensure
the proper maintenance of profes-
sional standards in the public
interest and in the interests of due
administration of justice, what
other restrictions should go?
Speaking personally, I believe
first, that the barriers should go
down between the two branches of
the legal profession, secondly, that
multi-national partnerships with the
lawyers of other countries should
be permitted and thirdly, that the
barriers should go down between
members of the legal profession
and other professions.
To an outsider the formal division
of the profession into Barristers and
Solicitors may look strange.
Why should there be two separ-
ate professions: what is the
essential difference that justifies
this? Is it education? No, as it is
shared in university and, as I have
already said, could very easily to be
combined at the level of post-
graduate training.
Is it in the right of audience in the
Courts? — No — as both Barrister
and Solicitor have unlimited rights
of audience.
Is it in the type of law that can
be practised? — certainly not.
Then what constitutes the
essential difference?
To my mind it comes down to
three things, first the Bar does not
in general deal directly with the lay
client nor handle clients money.
Secondly, speaking generally, Sol-
icitors do not act as advocates in
the Superior Courts; and thirdly
only Barristers are eligible for
appointment as Judges of the
Circuit and Superior Courts.
If the Bar decided to permit
general access to lay clients, then
it would appear the configuration of
the two branches of the profession
would be virtually identical. And
that is an interesting thought!
As I see it, you can have three
types of lawyer, one who wishes to
practise solely as a solicitor, one
who wishes to practise both as a
solicitor and advocate, and one
who wishes to practise solely as an
advocate taking instructions from
a fellow lawyer.
I believe it should be left to each
individual practitioner to make this
decision for himself, that the
restrictive rules of the Bar relating
to partnership between Barristers
should be revoked, and not only
should partnership with each other
be allowed but they should be
permitted to be in partnership with
Solicitors.
It is also imperative that the
present restrictive rules of the Bar
requiring a Junior Counsel to be
briefed with a Senior and to be paid
two-thirds of his fee must go as
they are certainly restrictive and
anti-competitive.
I am aware that any suggestions
of this nature will be greeted with
horror in the Law Library and the
King's Inns. I am familiar with all
the arguments
about
the
independence of the Bar and their
accessibility to individual Solicitors
around the country.
In common law countries such
as Australia and Canada, never
mind the United States, a single
profession has managed to practice
in just the way I have described,
some wholly in offices, some both
in offices and in Court, and others
solely as Court practitioners taking
referral work from other firms.
I believe there always will be a
need for
independent
lawyers
including advocates
but it is a
different question as to whether
such advocates should constitute
a separate profession.
Incidentally I do not accept that
a solicitor is in any way less
independent than a barrister.
I have a report on a recent
meeting of the C.C.B.E. with D.G.
111 of the Commission, prepared by
an Irish Barrister, which states that
the Commission simply regard
lawyers as one small part of the
service sector to be regualted like
every one else in the context of
achieving the goals of 1992. It was
also clear that they regard all the
lawyers of Europe as essentially
one profession.
As a Latin Notary put it to me
recently, the Commission is inter-
ested in regulating activities not
professions.
Is there any logic in this com-
petitive age in a formal division of
the profession? Can the separate
profession of barrister survive in the
Single Market?
Is there not considerable force in
the view that as a small country we
must make the best use possible of
the available pool of talent both
barristers and solicitors. Can the
forces of the past be permitted to
paralyse the future?
I have tilted at enough windmills
for one day.
It is my belief that change just for
the sake of change is not
necessarily good, but change for
survival is essential.
CONCLUSION
To conclude, and since I am an
optimist, to conclude on a high
note, there are tremendous
opportunities available to a
profession, one third under 30 and
half under 35, well educated and
well trained in professional skills.
Provided we shake off entrenched
restrictive attitudes, provided we
develop the intention to strive to
deliver high class, high standard
professional services to as many
people as possible, then the future
of our excellent profession is more
than assured.
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