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GAZETTE
MARCH 1983
cases, from lawyers in other countries. Irish clients can,
and do, go direct to non-Irish lawyers for advice on
questions of Community law. Clients in general are more
willing to go to different lawyers for different kinds of
problems. If the clients go to lawyers on the Continent, or
to English or Scottish counsel practising outside Britain,
they need not go through solicitors. If they find themselves
parties to a case before the European Court, they do not
need junior counsel. Irish solicitors with a case for the
Community Court do not need counsel at all, and if they
want to use counsel they do not need to use an Irish
counsel. Companies in other EEC countries often get
advice from lawyers of different countries, so it is natural
to expect that Irish client companies will continue to do
so.
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These facts, combined with the fact that certain
lawyers have already established reputations in
Community law, put Irish lawyers at a certain disadvantage.
In Northern Ireland, English barristers have been brought
in to argue points of Community law. In fact, Irish clients
need not go to the continent for specialised advice on
Community law: at least one Irish company already
employs a full-time Irish lawyer as a specialist in
Community legal questions.
Under the directive on freedom of lawyers to provide
services, non-Irish lawyers are free to provide legal advice
in Ireland and to appear in Irish courts, on certain
conditions. Irish lawyers are free, if they wish, to do the
same in Northern Ireland and in Britain and the other
Member States. (Free movement for lawyers is not, of
course, confined to Community law cases).
To deal with Community law requires a certain
investment of time and money. It is important that a
sufficient number of Irish lawyers should choose to make
that investment. Community law is emphatically not to be
regarded as if it were merely a new topic of Irish law which
can be mastered ad hoc when the need arises.
Most cases, in practice, are not purely Community law
cases: they are cases which involve both points of national
law and points of Community law. So they cannot be
handed over to a few specialists (whether Irish or not),
even if the legal profession in general was willing to hand
over an expanding and lucrative sphere to others. There is
no real "Community Bar", although a few lawyers have
appeared many times in the Court:
all
lawyers in the
Community may find themselves at any time in a case
which may go to Luxembourg.
So far, in Ireland and Britain, solicitors have taken more
interest in Community law than the Bar has done. Irish
solicitors have appeared many more times before the
Court in Luxembourg than have Irish barristers, if one
includes, as one must, Irish lawyers representing the EEC
Commission. In cases before the Court, most of the
arguments are in writing, and witnesses are unusual. A
good knowledge of Community law and of the facts of the
case are more valuable than the other skills traditionally
associated with/barristers.
I have a clear impression that the legal profession in
Ireland is
less
prosperous than the legal profession in other
countries in the Community, even making allowances for
national differences in average income per capita. I think I
know why.
I believe that Irish lawyers are less prosperous because
of the amount of their own time and of the ever increasing
salaries of assistant solicitors and employees) which are
spent on working with an old-fashioned, cumbersome,
inadequately staffed and inefficient legal system. Irish
lawyers are now more and more often in a situation in
which they cannot charge enough for what ought to be (but
is not) a simple transaction. They cannot charge enough to
pay for the time and the staff they need to carry it out, and
to give themselves a reasonable profit as well. This
problem cannot be solved by raising fees. If I am right, the
economic situation of the Irish legal profession as a whole
will continue to deteriorate until the legal system (courts,
court offices, conveyancing, etc.) is modernised and
streamlined and made less wasteful of time and manpower
for practitioners.
This economic pressure is not due to the EEC.
However, it certainly makes it more difficult for Irish
lawyers to take advantage of the opportunities and
overcome the difficulties which the Community presents.
A profession must be reasonably prosperous if it is to have
time for improving its own legal system, and for investing
in the study and practice of such a big, new and difficult
field as Community law.
Consequences for the handling of cases
To deal adequately with a Community law problem one
must have a grasp of Community legal reasoning as well as
legislation and case law. New techniques of legal
reasoning cannot be worked up for the purposes of a brief:
they have to be carefully and thoroughly acquired.
To deal with a Community law problem a lawyer must
have a knowledge ofthe whole field of Community law and
procedure. Analogies may occur to the judges of which he
must be aware: he must be able to answer questions which
may be outside his immediate brief. His problem may have
to be considered in the light of broad principles laid down
in judgments in other areas of Community law. If he is not
familiar with these principles, or does not know how to
argue from them, he is handicapped.
Professor Kahn-Freund has written:
"There is . . . as between common law and civil law
countries, a difference in the method of legal
reasoning and — more important — of organised
fact finding, in the outward form of legal rules, in
legislative and judicial styles . . .
As regards methods of law making . . . there is prima
facie a gulf which separates the common law from
the civil law world . . .
the existence of non-existence of codifications is
irrelevant in this context: French administrative law
is no more codified than the English law of contract
or t o r t . . .
What is . . . relevant is the role of the courts as law
making agencies, the systematic and casuistic
methods of legal reasoning, the style and treatment
(interpretation) of legislation, and the dichotomy of
methods of adjudication in matters of public and
private law in continental countries, and its absence
in (Ireland)...
The (EEC) Treaty . . . prevails over the common
law principle of the binding force of precedent...
Lawyers trained in the common law will have to
adjust to systematic, and lawyers trained in the
"civil law" to casuistic, reasoning...
The thought processes of the common law are based
on analogical and not on deductive reasoning...
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