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Standard of the Preliminary Examination
The Council approved in principle of a report
from a committee recommending that the stan
dard of the Preliminary Examination should be
raised to the standard of the open public Matri
culation Examination and
that applicants for
exemption from the Preliminary should be required
to satisfy the Society that they have achieved an
equivalent standard of education. As from June
1967
the universities will cease
to accept the
Leaving Certificate for the purpose of Matricu
lation unless the candidate has secured honours in
at least one subject, as from June 1968 honours
in two subjects will be required. The Council
have under consideration the question of limiting
exemption from the Society's Preliminary Exam
ination to candidates who have obtained the open
public Matriculation of a university without credit
for any subjects passed at the Leaving Certificate
or other non-university examination.
THE PROS AND CONS OF FUSION—I
1. There is already fusion of function (but separa
tion of status) in about 80 per cent of the whole
field of practice viz., litigation in the Circuit and
District Courts, probate work, conveyancing and
all advisory work. A solicitor may engage in this
type of work without counsel. Counsel is equally
entitled to practise in these fields but because of
separation of status he does so as a member of the
Bar and will not take instructions from the client
or from any other professional adviser except a
solicitor. He has no legal redress for his fees and
he is not liable for negligence. The existing field
of fusion of function will be extended if the juris
diction of
the Circuit Court
is
increased. As
regards the type of work mentioned in this para
graph the only remaining step would be fusion
of status so that barristers and solicitors would
practise on equal terms with the same right to
accept
instructions from a client or from an
accountant or other professional adviser of the
client. Fusion of status from the practical point of
view if applied literally in practice would widen
the functions of the Bar more than the solicitors'
profession.
2.
Superior Courts
As regards advocacy in the Supreme Court and
High Court there is separation of function and
status. With trivial exceptions, solicitors have no
right of audience. Counsel accepts
instructions
only from a solicitor. He is not legally liable for
negligence and he has no legal right to recover
his fees. In a fused profession the solicitor would
be entitled to act as advocate in these Courts
either carrying out the preparatory office work
himself or having it done by a partner or assistant.
The existing corps of barristers would be entitled
to accept instructions from a client or an accoun
tant or other professional expert direct, either
forming partnerships among themselves or joining
firms of solicitors. Solicitors and barristers would
have equal status and priority in Court and for
appointment as judges, Attorney General, Taxing
Masters, Court Registrars and other legal appoint
ments. Possibly under a fused system the present
rule that an advocate is not liable for negligence
might be changed so that all members of the
profession, advocates and officer
lawyers alike,
would be liable to the client for negligence in
performing
their duty. There are
two
recent
English cases on the law of professional negli
gence which are relevant. The case of Hedley
Byrne v. Heller casts some doubt on the long
standing immunity of counsel from liability as
regards purely advisory work. In the particular
case the defendant was a bank but the reasoning
behind the decision might conceivably have wider
application. In Rondel v. Worsley the English
High Court recently held that an advocate (which
it thought would include a solicitor as well as
counsel) is immune from liability for negligence
qua advocate.
This decision is under appeal.
Inferior Courts and Non-Contentious Business
Although there is at present fusion of function
in the lower Courts and for non-contentious busi
ness many solicitors do not exercise their rights,
either because they have not the time or inclin
ation to conduct Court cases as well as office work
or because they wish
to obtain the protection
against liability for negligence which may result
from engaging the services of a member of the
Bar. It is unlikely that any practical result would
emerge from fusion unless the existing organisation
of the solicitors' profession were changed so that
large partnerships would become the prevailing
pattern of the profession. In small units it is
unlikely that there would be sufficient and sus
tained
demand
for
advocacy
in
a
firm
to
justify the retention of a wholetime advocate and
to ensure that he would not become redundant
if the volume of litigation declined. One advan
tage of the present system is that the demand of a
particular solicitor or firm for advocates can be
tailored to the requirements of his clients at any
particular time. At the date of the last annual
report there were 1,111 self-employed solicitors in
the State grouped in 929 principal offices. Of
86