The Gazette 1993

GAZETTE

1 W

1 N

MARCH 1993

V E

P 0

No Solicitors Need Apply!

It is now almost three years since the

report of the Fair Trade Commission

into restrictive practices in the legal

profession was published and, while

the results of implementation of the

Commission's deliberations may not

be obvious to everyone, many of the

issues identified for action in the

report have been addressed by the

legal profession itself and also, of

course, by the Government through

the Competition Act and, more

recently, the Solicitors (Amendment)

Bill.

There are, however, one or two items

of unfinished business. Solicitors are

still ineligible for appointment as

judges in the Circuit Court or in the

higher courts such appointment

being open only to barristers. We

have commented on this matter

before in these pages. Suffice it to

say now that, in response to action

by the Law Society, we hope that the

forthcoming Court and Court

Officers Bill-will contain the

necessary amending provision which

will put that matter right.

But the higher echelons of the

judiciary are not the only remaining

bastions where the writ of the Bar,

and only the Bar, still runs. Recently,

the Attorney General's office

advertised publicly for positions as

parliamentary draftsmen in that

office. Applications were confined to

barristers with at least four years

practice at the Bar. The President of

the Law Society immediately wrote

to the Attorney General about this,

expressing surprise and seeking an

explanation as to why solicitors were

excluded. It transpired, from the

Attorney General's response, that the

traditional view in that office is that

experience as an

advocate

in court is

deemed to be an essential

requirement for a parliamentary

draftsman. In fairness to the

Attorney General, he did not

expressly claim that advocacy

experience was essential for these

posts but that was the clear import

of what he said.

We think that the solicitors'

profession has the right to know why

the legal adviser to the Government

still apparently takes the view that

experience as an

advocate

in the

superior courts is essential in the

formation of persons whose task it is

to translate instructions from

Government departments into

appropriate legislative format. We

can clearly see that experience in the

courts is not an unreasonable

requirement for positions of this

kind as it would be necessary to

have an understanding of how

legislation is judicially applied and

how changes in the law would be

likely to operate in practice.

However, it is, in our view, untenable

to suggest that solicitors, experienced

in litigation, would not be likely to

have such experience.

This is the second occasion in recent

times that access to legal positions in

Government service has been denied

to solicitors. In 1991, a competition

for posts as

legal advisers

in the

office of the Attorney General was

also confined to barristers and, at

that time, the Society also made

representations in the matter.

So far as we are aware, the Attorney

General's office is now the only area

in the State legal service where

solicitors - who account for about

4/5th of the total number of lawyers

in the State - are deemed ineligible

to serve. In recent times, the office

of the Director of Public

Prosecutions has been opened up to

solicitors and there are now a

number of solicitors serving there as

legal assistants. It will be recalled

that the prosecution of offenders

used to be handled by the Attorney

General before the office of DPP

was established. So far as we can

ascertain, the recruitment of

solicitors to the DPP's office has

been entirely successful.

The eligibility of solicitors for posts

in the legal service of the State is an

important matter that goes to the

very heart of the debate about the

relative roles of solicitors and

barristers in the legal system.

Solicitors have, since 1971, full rights

of audience in all the courts of this

country and, so far as the practice of

law is concerned, are on an entirely

equal footing with their colleagues at

the Bar. The fact that many of them

choose not to exercise their rights of

audience in other than the District

Court has nothing to do with

competence; it has, in fact, more to

do with the daily pressures of running

busy practices, their perception that

both the Bar and the Bench do not

really encourage it and a consequent

unwillingness on their part to risk

damaging the interests of their clients

by running cases themselves. Those

solicitors who do advocate in the

higher courts - and there are some

- do so with competence. Even they,

however, would be ineligible to

compete for posts in the office of the

Attorney General, given the present

policy of that office.

It is time that the Government ended

this form of discrimination against

solicitors. The current programme

for government contains

commitments in relation to equality

and this has been followed up by the

appointment of a Minister with

specific responsibility for equality.

As it happens, that particular

Minister is also a solicitor and it is

to be hoped, therefore, that he will

take an interest in this matter and

include it in the many issues that

will, presumably, be targeted for

action during his period of office. •

NORTHERN IRELAND

AGENT

* Legal waik undertaken on an agency baaia

* All communication! to clienta through

instructing Solicitors

* Consultant! in Dublin if required

Contact:

Seamus Connolly,

Moran and Ryan,

Solicitor*

Anan Haute,

Bank Building,

35 Anan Quay,

Hill Street,

Dublin 7.

Newry, Co. Down.

Tel:(Ql) 72S622

TeL (080693) 65311

Fax: (01) 725404

Fax: (080693) 62096