The Gazette 1983

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. 2 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 "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... argue from them, he is handicapped. Professor Kahn-Freund has written:

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