The Gazette 1996

V I E W P 0 I N T When is a solicitor not a legal adviser?

the Department of Foreign Affairs) are. after all, doing work of a broadly similar nature and solicitors are eligible for appointment to those posts. Likewise, although the field of endeavour may be somewhat different, solicitors are, and have been since its inception, successfully working in the office of the Director of Public Prosecutions in relation to functions which were once part of the Attorney General's office. The single requirement for these positions which excludes solicitors is the requirement that candidates must have practised for at least four years as barristers within the State. The experience so gained automatically ensures that these persons will be capable of performing the duties set out above and this, and this alone, distinguishes them and sets them apart from solicitors. It is, apparently, irrelevant that experience gained as a barrister in the Law Library or on circuit may have been of the most mundane kind and it matters not, it seems, that a candidate may never have advocated before a judge in the superior courts at all - other, perhaps, than to seek an adjournment or bring a minor application. The mere fact of being a member of the Bar Library and of having been 'on the hazard' is in itself sufficient. As against that, a solicitor candidate (if he/she could be a candidate) might have ten or 15 years of varied experience working on behalf of demanding high-powered corporate clients; he might have represented his firm internationally, (he might even have worked in a branch office of his firm abroad). It is not inconceivable that he might be expert in legal drafting, have conducted arbitrations on his own; indeed, he might even have advocated in important cases before the superior courts - as some solicitors undoubtedly have. It matters not, it seems, that such a solicitor might have acted as an inspector under the Companies Acts or conducted legal enquiries on behalf of the Government - so long as he has not been in the Bar Library for at least four years he is, as a consequence, disqualified.

Attorneys General in the past have sought to justify this insidious discrimination against one branch of the legal profession on the grounds that, to understand how law operates in practice, one must have practised at the Bar. Perhaps there are some who will find that excuse convincing. We certainly do not. It is now time that this matter was addressed seriously by the Government. We believe that all restrictive practices that seek to exclude one branch of the profession from eligibility for appointment to legal positions in the State - including appointment as judges - must now be ended. The skies will not fall in if this happens. The two branches of the profession will continue to fulfil their separate roles. Once eligibility is established, those charged with the responsibility of selecting candidates for appointment will, of course, be free to exercise their own discretion in relation to the experience of the candidates and decide whether, all things considered, a particular individual is suitable. If it does it is because the above is an exact republication of the Viewpoint which appeared in the July 1994 issue of the Gazette. Sound familiar? Since then, some things have changed and some things have not. The Govern- ment has changed. The Attorney General has changed. The Report on the Office of the Attorney General by a Dail Select Committee on 15 February 1996 expressed the opinion that "the office of legal assistant should also be open to either branch of the legal profession". The law has changed to allow, to date, three solicitors to be appointed judges of the Circuit Court. As the recent employment advertisements reveal, however, in the Attorney General's office it remains a case of' nolumus mutari rules ok'. Can they still be that much out of touch in Merrion Street?

The title to this Viewpoint may seem odd: how, it may be asked, could the question posed in the title be raised? Solicitors are, after all, fully trained lawyers - most of them law graduates - who have rights of audience, as advocates, in all the courts. Indeed, since the late 1970s, solicitors have benefitted from a form of vocational training in the Society's Law School at Blackhall Place that has been much admired (even endorsed by the former Fair Trade Commission) and considered to be on a par with the best vocational education systems internationally. Nowadays, many solicitors have post-graduate degrees in law and specialisation in particular areas of law is common. Many would be well versed in international law, particularly the law of the European Union. Yet, despite all of this, the Attorney General's office recently advertised, once again, for legal assistants making it clear in the advertisement that solicitors need not apply. Eligibility was confined exclusively to barristers. As we move closer to the 21st Century, you might very well ask how this could be so. What is it about the work of the Attorney General's office that makes solicitors unsuitable? The advertisement says that the duties of a Fourth Legal Assistant (which is the basic entry level) involve a "very wide range of legal work of a major public importance. They include advisory work and research in the fields of both domestic and international law, including the law of the European Union; and participation in formulating law at domestic and international levels." The advertisement went on to say that those appointed to the posts would be expected to travel abroad to international meetings and conferences and to represent the State in a legal capacity - nothing, you might think, in any of those duties that a well educated young solicitor could not do. Lawyers in other areas of the public service (for example.

Ken Murphy

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