The Gazette 1992

N s M

GAZETTE

OCTOBER 1992

Fusion is not a reform panacea

In a recent article in the Irish Independent entitled "Time for a shake-up in our Courts", Democratic Left TD Pat McCartan, who is a solicitor, rehearsed many of his favourite 'hobby-horses' on the need for reform across a wide spectrum of the legal world. In fairness, Deputy McCartan is a person who takes his responsibilities as a public representative seriously and, being a lawyer, he does have something to contribute on the issue of legal reform. However, on the question of fusion he displayed an acute lack of understanding of the issues involved and, in particular, the likely consequences were the Government to go down that road. legislation. His central point is that little effective reform will take place until such time as the Law Library is dismantled and barristers are allowed to travel out to work alongside other professions on the high street. This will "cut out the unnecessary middle man, the solicitor, in many instances". This very simplistic view of the consequences of removing the Bar's rule on direct access is, to my mind, naive and fundamentally misses the real issue involved in this debate. to the needs of litigants and in recognition of the separate and diverse functions that are involved in the provision of legal services. Solicitors are lawyers who provide a wide range of services to clients, many of which are of a non- contentious kind, involving property transactions, commercial activities, wills and trusts etc. Solicitors handle clients funds and, as such, are in the position of trustees in relation to the Deputy McCartan's thesis, in essence, is that there should be coerced fusion by means of Historically, the legal profession in these islands developed in response

monies they hold. Their work is essentially client-related and, in the area of litigation, includes the preparation of the documentation necessary to commence and progress legal proceedings. Barristers, on the other hand, are essentially trial lawyers who specialise in the presentation of cases in court. The skills required for each branch of the profession are different and are not necessarily enjoyed by all lawyers. In any event, experience has shown that this kind of specialisation of function is necessary and works well in practice. Even in countries where there is a unified profession, the same general division of functions amongst lawyers is found. Coerced fusion would not necessarily make any difference in practice and, certainly, there is no evidence to suggest that it would reduce the cost of legal proceedings. The idea that fusion would allow barristers to work alongside other professions in the high street, thereby cutting out the unnecessary middle man, the solicitor, is, to put it bluntly, nonsense. If barristers were allowed to take instructions directly from clients they would, in effect, become solicitors. The General Council of the Bar maintains that the rule which prohibits barristers from dealing directly with the client is a rule which, in fact, defineswhat a barrister is. In my view, if the direct access rule maintained by the Bar were removed, it would make no difference in practice. Lawyers who wanted to specialise as advocates or trial lawyers would continue to do so. Likewise, those who preferred the client-related area of work would remain as solicitors.

two few lawyers in many important areas of social and legal need. I would agree. But my answer to that would be to insist on the Government introducing a decent system of civil legal aid, involving the private practitioner, which would bring many more lawyers into the area of the provision of legal services for the less well off. Another area, rightly identified by Deputy McCartan, in which urgent reform is needed is the appalling shambles that is our listing system in the higher courts and the inordinate delays in bringing cases to trial. Deputy McCartan correctly identifies the need for rationalisation and streamlining in the courts system and the introduction of proper information technology to improve efficiency. In my view, these and other areas of reform are the matters upon which Deputy McCartan should be concentrating, not on promoting the illusory concept of a fused legal profession. This is my last President's message in the Gazette. I would like to express my appreciation to those who have taken the trouble to read some, or all, of them, and who have responded, sometimes warmly, sometimes critically! I would also like to place on record my thanks to Noel Ryan and the staff at Blackhall Place for their assistance. Finally, I would like to express my sincerest and heart-felt thanks to the entire legal profession for the warmth, courtesy and encouragement which I have been shown and given throughout the year.

Adrian P. Bourke President I

Deputy McCartan makes a good point when he says that there are

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