The Gazette 1989

GAZETTE

APRIL 1989

From the President . . . IContd.

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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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

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