# Mid defence case my Jnr Counsel has become Sen Counsel and cant continue with case.



## o'grainne (27 Oct 2010)

Hi, I am looking for advice please.

I am the Defendant in a Civil Case in the Circuit Court, it has not been set down for hearing yet and I have engaged a solicitor and a Junior Barrister, who have spent a lot of time getting my defence ready. 

I have been informed by my solicitor that my barrister has "Taken Silk" (Senior Counsel), so I am wondering what  happens now.  

1.   Can my barrister leave in the middle of my case?

2.   Can he finish out my case as a Junior Counsel?

3.   Can he finish my case as a Senior Counsel but without a Junior Counsel     being engaged,  as he has all the work done already?  Cost comes into this one.


I want to keep my barrister as he is excellent and this case is what he specialises in and I do not want to start again with another one. 

Any information will be greatly appreciated


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## Emiso (28 Oct 2010)

Surely your solicitor should have advised you about what happens next


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## SlurrySlump (28 Oct 2010)

My senior council had to resign from a case that she was running for me because she became President of Ireland. True.


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## o'grainne (28 Oct 2010)

*Junior Counsel has become Senior Counsel*

Waiting to speak to my solicitor. But I like to have as much infromation as possible. 
I have found in the past (not with my current solicitor) that they do not know everything on everything. The law is complex and I have found that people who have experienced different aspects of it are a great source of information.


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## nuac (28 Oct 2010)

Talk to your solicitor.   Usually barristers on becoming Seniors agree with their solicitor on handing over the Circuit Court brief to a junior counsel.


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## o'grainne (28 Oct 2010)

*Junior Counsel has become Senior Counsel*

I fully intend to discuss it with my solicitor. 

But *I do not want to hand it over to another Junior Counsel I want the Counsel that I have engaged*, hence my query can I insist he finish  my case?


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## mf1 (29 Oct 2010)

o'grainne said:


> I fully intend to discuss it with my solicitor.
> 
> But *I do not want to hand it over to another Junior Counsel I want the Counsel that I have engaged*, hence my query can I insist he finish  my case?



No. You cannot insist. But you can stamp your little foot as much as you like.  

mf


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## Vanilla (29 Oct 2010)

mf1 said:


> No. You cannot insist. But you can stamp your little foot as much as you like.
> 
> mf



Oooh, you are awful.


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## T McGibney (29 Oct 2010)

Vanilla said:


> Oooh, you are awful.



+1.


Keep it up


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## McCrack (29 Oct 2010)

mf1 said:


> No. You cannot insist. But you can stamp your little foot as much as you like.
> 
> mf


 
Haha love it!

OP sorry but your Counsel is now an SC and he/she will not continue with your case. Seniors generally don't practise in the Circuit Court.


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## legallady (1 Nov 2010)

If there are settlement talks the Senior will generally agree to act and take junior fees. If it actually goes to trial a junior will take over. You can't demand they finish your matter. You shouldn't worry though, I'm sure the new junior will be just as good and will be up to speed with your case very quickly


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## jdwex (1 Nov 2010)

I guess the thing to do is make sure the cost for briefing of the JC doesn't come out of your pocket. Or better again I  suppose, wish the SC well in his new salubrious role, but you won't be paying him anything. 

Seriously, the point I'm trying to make is that  you should make sure that you don't have to pay more because of this situation


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## legallady (1 Nov 2010)

You can't not pay the senior for work done. That's just crazy.


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## Yorrick (2 Nov 2010)

"No. You cannot insist. But you can stamp your little foot as much as you like. 

mf "


You are howwid,so howwid.
I'm gonna cwy and cwy and cwy until I womit


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## tiger (2 Nov 2010)

I think the OPs question/request is reasonable.
In general, in other fields, if you engage an individual for professional services you would expect them to see it through to completion.


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## Vanilla (2 Nov 2010)

You might expect them to, but it doesnt always happen. People get sick, die, have babies, get married, leave the country, suffer bereavements. Professionals are human too, they can't always finish something for reasons outside their control. This is one of those times.


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## Complainer (2 Nov 2010)

Wouldn't it be great if solicitors (who are supposed to act as the gateway to barristers, because us little people aren't smart enough to deal directly with barristers) covered these kinds of scenarios when engaging a barrister? 

Most individual clients will engage a barrister once or twice in their lifetime, so they could be forgiven for not considering this possibility beforehand. This is not an unforseen event, like illness or bereavement. This is an expected and predictable outcome. The solicitor should really have planned for this, and advised the client accordingly.


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## Vanilla (2 Nov 2010)

The fact of the matter is that it is very common for one barrister not to see a case through from beginning to end. The way our system works is that courts clash with each other and one barrister may have cases on the same day in two different courts. If that happens they will go with the heavier case load and the other cases will be handed over to other barristers, sometimes within days of the court date. The solicitor will then have to find a new barrister to deal with the case. However barristers are used to taking on cases at the last minute.

Court cases are a little like novels- there are no new plots. Each case has it's own twists but most cases are capable of being digested by an experienced barrister easily. Where a case is too complex to be handed over the solicitor will not let the barrister hand over like that ( we have ways...).


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## Complainer (2 Nov 2010)

I don't dispute this, but does anyone generally bother to explain this to the client up front?


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## Vanilla (2 Nov 2010)

Complainer said:


> I don't dispute this, but does anyone generally bother to explain this to the client up front?


 
It doesn't sound like it was explained to the OP, but yes, I'd imagine most clients coming in to a solicitor for a consultation with regard to a potential litigation case would get a general overview of what they can expect with regard to their case. 

What you mentioned though is that the solicitor should have planned for this-that it was an expected and predictable outcome. I'd dispute that it was an 'expected and predictable outcome'- the solicitor could not have known this was about to happen. But as for planning for it-there's nothing to plan, another barrister will take it over- that's very common and won't prejudice the OP's case in any way.


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## Complainer (2 Nov 2010)

Vanilla said:


> What you mentioned though is that the solicitor should have planned for this-that it was an expected and predictable outcome. I'd dispute that it was an 'expected and predictable outcome'- the solicitor could not have known this was about to happen.



I don't know what is involved in 'taking silk', but I presume it doesn't drop out of the sky. Isn't it something that the barrister would have been working towards, and would have some kind of expectation about when it might happen. It's not a total surprise that a JC would move to SC. While the solicitor would have not known for certain, would it be unreasonable for one of the solicitor's questions to a barrister prior to taking a case was 'Will you be taking this case to the end yourself, or is there anything in your current professional or personal plans that would stop you taking this case all the way through'.



Vanilla said:


> But as for planning for it-there's nothing to plan, another barrister will take it over- that's very common and won't prejudice the OP's case in any way.



I disagree. At a minimum, they should plan by communicating with the client. If I was a client that had invested in a barrister, I guess that I'd be feeling both nervous and peeved at the prospect of someone else taking over midway. Would there be any extra briefing fees incurred by bringing someone else into the case?


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## legallady (2 Nov 2010)

The length of cases vary. The solicitor would have had no idea when it started how long it would go on for. Many many variables are involved. Therefore it's unrealistic for a barrister to be definate that they won't be taking silk before the end of the matter. The only way you'd safeguard against that is by instructing a very jnior barrister from the start but then they might not be experienced enough.


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## Vanilla (2 Nov 2010)

Complainer said:


> Will you be taking this case to the end yourself, or is there anything in your current professional or personal plans that would stop you taking this case all the way through'.


 
By that reasoning we should ask every professional the same question. And by all means, feel free to. I won't, I would consider it rude and intrusive.

I've already said another barrister taking over the case will not prejudice it in the slightest. It happens all the time for various reasons. And no, it does not result in additional fees- there are fees for each stage of a file by a barrister, the new barrister simply picks up where the last one left off. Real cases in the irish courts aren't usually all that complex and any barrister will usually pick up the case from the solicitors brief which contains all the relevant information. You should also realise that most barristers have hundreds of cases ongoing at any given time and that even where one barrister sees a case through from beginning to end, they will only be looking at the brief for the case in the days before the court date or even that morning, depending how busy they are. 
It's the solicitor that knows the case inside out, that briefs the barrister and attends on the barrister in court. They ensure nothing is missed out and guide the barrister in that regard.

Most of the time a client will not meet the barrister until the court date and therefore will not have any 'relationship of trust' with them before that date.


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## Complainer (2 Nov 2010)

legallady said:


> The length of cases vary. The solicitor would have had no idea when it started how long it would go on for. Many many variables are involved. Therefore it's unrealistic for a barrister to be definate that they won't be taking silk before the end of the matter. The only way you'd safeguard against that is by instructing a very jnior barrister from the start but then they might not be experienced enough.



Indeed, there are many variables involved, and I'm not talking about absolute guarantees here. I'm taking about risk management, and like any risk management process, you evaluate the likelihood of the risk occurring and impact if it does occur. You build a contingency plan to address the impact.

The contingency plan in this case would include making sure that the client understands the risk up front, and agrees with the approach taken. It's not rocket science - just decent project management principles.


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## Vanilla (2 Nov 2010)

Complainer said:


> The contingency plan in this case would include making sure that the client understands the risk up front, and agrees with the approach taken. It's not rocket science - just decent project management principles.


 
There is no alternative. No barrister will give a guarantee they will see the case through to the end, however junior. That's the system we have.


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## Complainer (2 Nov 2010)

Vanilla said:


> There is no alternative. No barrister will give a guarantee they will see the case through to the end, however junior. That's the system we have.



Perhaps you missed part of my post, i.e. "I'm not talking about absolute guarantees "


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## Vanilla (2 Nov 2010)

Complainer said:


> Perhaps you missed part of my post, i.e. "I'm not talking about absolute guarantees "


 
No, instead you are talking about risk management, evaluation, impact and contingency plans.

So here you are:

Er, there's a risk the barrister you have never met, who has just drafted this court document ( which could very well have been drafted by any other barrister in the very same manner) will not be the same barrister who you actually meet in court.

How does that suit you? You're not happy about it? Well, it's okay because, frankly even if it were the same barrister he probably wouldnt remember a damn thing about this case until presented with the brief shortly prior to court and another barrister will do just fine.

What's the contigency plan? Er, getting another barrister.

Job done.


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## Complainer (2 Nov 2010)

Vanilla said:


> No, instead you are talking about risk management, evaluation, impact and contingency plans.
> 
> So here you are:
> 
> ...



OK then - silly old me, and silly old OP, facing into a major stressful occasion with significant associated costs. It seems the OP is just being silly here, and needs to shut up, sit down, tug their forelock and bow to the professionals.

Any suggestion that the professionals need to communicate better for their clients, or indeed advocate for their clients when dealing with other professionals is clearly not something that could be considered by our exalted legal eagles.

Clients could choose to make agreement to continue with a case (regardless of any promotion to SC) a condition of taking the brief in the first place.


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## Eamonn T (4 Nov 2010)

Perhaps the solicitor would have had no way of knowing the barrister would not see the case through but im certain the barrister must have known he wouldnt be seeing it through. He should have advised of this before accepting the case. I wouldnt be to happy about it either or paying him. Court dates clashing is certainly not the fault of the OP who pays the bills. And when cases are passed from 1 solicitor to another and then from 1 barrister to another and so on, surely, the case is not getting the attention it demands.


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## McCrack (4 Nov 2010)

Complainer said:


> OK then - silly old me, and silly old OP, facing into a major stressful occasion with significant associated costs. It seems the OP is just being silly here, and needs to shut up, sit down, tug their forelock and bow to the professionals.
> 
> Any suggestion that the professionals need to communicate better for their clients, or indeed advocate for their clients when dealing with other professionals is clearly not something that could be considered by our exalted legal eagles.
> 
> Clients could choose to make agreement to continue with a case (regardless of any promotion to SC) a condition of taking the brief in the first place.


 
Your tone is a little off-putting to say the least.

You have raised sensible queries and a couple of posters have explained you the reality of how litigation is practised and also explained that a client is not going to be prejudiced by a change in Counsel for whatever reason he/she cannot continue the Brief and yet you simply retort with defensive rhetoric that's just pure nonsense. 

Give it up.


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## Brendan Burgess (5 Nov 2010)

McCrack said:


> Your tone is a little off-putting to say the least.
> 
> You have raised sensible queries and a couple of posters have explained you the reality of how litigation is practised and also explained that a client is not going to be prejudiced by a change in Counsel for whatever reason he/she cannot continue the Brief and yet you simply retort with defensive rhetoric that's just pure nonsense.
> 
> Give it up.



Hi McCrack

I don't agree with you. Many people are critical of the way the legal system operates in Ireland. Saying "That's just the way we do it" and stop criticizing us in not the answer. 

Any idea what the motto of the King's Inns means? 

_Nolumus Mutari_


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## huskerdu (5 Nov 2010)

This thread has turned into a spat about the way barristers operate in Ireland which isn't helping the OP. 

To summarise 

It is normal practice for a new SC to drop their JC cases 
It will not predjudice the case, as it happens all the time and barristers are used to picking up cases in this way
It will not cost the OP anything

BTW, I agree with Brendan. Lots of us do not agree with how barristers work in Ireland, and a huge amount of the massive barristers fees in this country are paid by us via our insurance costs / taxes so we are entitled to complain.


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## Grizzly (5 Nov 2010)

I was involved in a group action case running for circa 10 years and during that time we had 3 changes of senior council. Each time the new senior council would turn up having obviously only read the brief the night before and effectively bluff his way through the meeting. The junior council was practically on his kness kissing the "great ones" This post will be deleted if not edited to remove bad language during each of these sessions.
We spent wasted hours and costs going over old ground at each meeting. Sometimes we would be told the same stuff over and over, the guy couldn't even remember that he had discussed this before.
All along the legal team were working toward an out of court settlement when they considered that they had amassed enough in costs for themselves.


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## Complainer (5 Nov 2010)

McCrack said:


> Your tone is a little off-putting to say the least.
> 
> You have raised sensible queries and a couple of posters have explained you the reality of how litigation is practised and also explained that a client is not going to be prejudiced by a change in Counsel for whatever reason he/she cannot continue the Brief and yet you simply retort with defensive rhetoric that's just pure nonsense.
> 
> Give it up.


Fair point about my tone (though you are letting me drag you down to my level at the end of your post).

It seems that the best answer we're getting from the legal eagles is 'We always do it that way' - very dissapointing as Brendan points out. At a bare minimum, there should be a learning here around managing expectations. If solicitors are unwilling or unable to get better engagement from barristers for their clients, they should do a better job at managing the expectations of their clients. The OP is seriously concerned about their case, and this concern is entirely avoidable.



huskerdu said:


> It is normal practice for a new SC to drop their JC cases
> It will not predjudice the case, as it happens all the time and barristers are used to picking up cases in this way
> It will not cost the OP anything


The only reason that this is 'normal practice' is because the clients (who are footing the bill) aren't asking or insisting on other practices.

 I know that if I'm ever engaging a barrister, I'm going to make damn sure that they will be around for the duration of my case.


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## McCrack (5 Nov 2010)

Brendan Burgess said:


> Hi McCrack
> 
> I don't agree with you. Many people are critical of the way the legal system operates in Ireland. Saying "That's just the way we do it" and stop criticizing us in not the answer.
> 
> ...


I googled it "We shall not be changed". In any event I'm not a barrister, I come from the other side of the coin.

I have not said to anybody just accept the way things are, things will and do change. To a person not in the legal profession there is a perception of stalemate and that nothing changes. The law is constantly changing and evolving, practice is also constantly changing and becoming increasingly regulated but this is not obvious to a non-lawyer.

The OP raised a query and other posters jumped on saying it's unacceptable for a BL to drop a case when taking silk and everything else. Other knowledgeble posters explained the practicalities of the professon and litigation practise and explained how a client is not going to be prejudiced. My issue was not questioning but when explained especially to Complainer he/she continues with the cynical attitude.


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## McCrack (5 Nov 2010)

Complainer said:


> Fair point about my tone (though you are letting me drag you down to my level at the end of your post).
> 
> It seems that the best answer we're getting from the legal eagles is 'We always do it that way' - very dissapointing as Brendan points out. At a bare minimum, there should be a learning here around managing expectations. If solicitors are unwilling or unable to get better engagement from barristers for their clients, they should do a better job at managing the expectations of their clients. The OP is seriously concerned about their case, and this concern is entirely avoidable.
> 
> ...


 
With respect you are incorrect in your assertions.

The best answer you and the OP have gotten is from the likes of Vanilla who has explained very accurately the realities of this issue. Where you are getting this cynical "We always do it this way" is beyond me. Things are done for a reason and are done a certain way because it is the right way practised over many many years. Solicitors manage their clients expectations all the time. Its a necessity of the job. Clients most of the time are unrealistic in their expectations.

I appreciate the OP is concerned about their case to to say it's avoidable is wrong, it's about as avoidable as getting ran over walking on a footpath.

You don't engage Barristers, solicitors do.


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## Complainer (5 Nov 2010)

McCrack said:


> The best answer you and the OP have gotten is from the likes of Vanilla who has explained very accurately the realities of this issue. Where you are getting this cynical "We always do it this way" is beyond me. Things are done for a reason and are done a certain way because it is the right way practised over many many years. Solicitors manage their clients expectations all the time. Its a necessity of the job. Clients most of the time are unrealistic in their expectations.


So remind me - what is the reason why barristers routinely drop clients when they move from JC to SC? It would be great to have an answer from the client's perspective, not from the industry insider's perspective.



McCrack said:


> I appreciate the OP is concerned about their case to to say it's avoidable is wrong, it's about as avoidable as getting ran over walking on a footpath.


This is factually untrue. The number of people who get run over walking on a footpath is tiny. The number of barristers who move from JC to SC each year is significant. The number of cases dropped by those barristers is even more significant.



McCrack said:


> You don't engage Barristers, solicitors do.



Indeed, technically correct. But I pay the bill - and I'll set out the conditions by which my solicitor will engage them.


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## Brendan Burgess (5 Nov 2010)

I have to say I find it very hard to understand how a case would not be weakened by a change of barristers mid course.  I have seen cases where the barrister working on it pulled out at the last minute and the replacement was not up to speed. 

But, I suppose,  I have also seen cases where the barrister on the case for a long time, was not up to speed either. 

I am not sure that all barristers fully appreciate the stress felt by litigants. If I was happy with my barrister I would not want them to change. If they have another case on the day, that  is unavoidable, but otherwise, they should make every effort to see the case through.


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## McCrack (5 Nov 2010)

Complainer said:


> So remind me - what is the reason why barristers routinely drop clients when they move from JC to SC? It would be great to have an answer from the client's perspective, not from the industry insider's perspective.
> 
> 
> This is factually untrue. The number of people who get run over walking on a footpath is tiny. The number of barristers who move from JC to SC each year is significant. The number of cases dropped by those barristers is even more significant.
> ...


 
The main reason is that an Senior Counsel practises the majority in the Superior Courts (High Court and Supreme Court) A Senior Counsel is also going to command higher fees than the Junior Counsel who will practise in the Circuit Court (like the OP case) and does not warrant Senior Counsel fees and indeed the Defendants will not pay Senior Counsel fees for a Circuit Court matter.

Believe it or not (I'm sure you won't by the way) the numbers of BL that take silk each year are tiny. It's very competitive and difficult to become a Senior Counsel.

The client does not set out the conditions of a Brief so no you will not tell your solicitor on what terms he/she will instruct Counsel. You will also only pay legal fees if you are an unsuccessful party or costs awarded against you.


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## McCrack (5 Nov 2010)

Brendan Burgess said:


> I have to say I find it very hard to understand how a case would not be weakened by a change of barristers mid course. I have seen cases where the barrister working on it pulled out at the last minute and the replacement was not up to speed.
> 
> But, I suppose, I have also seen cases where the barrister on the case for a long time, was not up to speed either.
> 
> I am not sure that all barristers fully appreciate the stress felt by litigants. If I was happy with my barrister I would not want them to change. If they have another case on the day, that is unavoidable, but otherwise, they should make every effort to see the case through.


 
Brendan please remember Counsel are at the job years and will have dealt with 100's cases before, they do it day and day. Most litigation cases are not overly complex. A Barrister with at least a few years experience can pick up a Brief, read it, consult with the solicitor and run the matter competently.


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## Padraigb (5 Nov 2010)

McCrack said:


> ... A Barrister with at least a few years experience can pick up a Brief, read it, consult with the solicitor and run the matter competently.



If that is so, why is it that some barristers have large practices and command high fees, while others struggle to make a living? And why does the Bar Council institutionalise a distinction between run-of-the-mill advocates (BLs) and superior advocates (SCs)?


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## McCrack (5 Nov 2010)

Padraigb said:


> If that is so, why is it that some barristers have large practices and command high fees, while others struggle to make a living? And why does the Bar Council institutionalise a distinction between run-of-the-mill advocates (BLs) and superior advocates (SCs)?


 
It's like any self-employed person, the cream will rise and consequestly command higher charges for experience/expertise.

The distinction (I don't think institutional is the correct description) is there as a recognition for particular eminence a Barrister has, it's a ranking so to speak.


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## Complainer (5 Nov 2010)

McCrack said:


> The main reason is that an Senior Counsel practises the majority in the Superior Courts (High Court and Supreme Court) A Senior Counsel is also going to command higher fees than the Junior Counsel who will practise in the Circuit Court (like the OP case) and does not warrant Senior Counsel fees and indeed the Defendants will not pay Senior Counsel fees for a Circuit Court matter.


Right, so I guess from your answer there is no reason from the client's perspective for this change. It is really all about money - the barrister can make more from other clients on SC cases, so he/she drops their old clients like a hot snot. 

This would completely unacceptable in any other profession, and the only reason it happens in the legal world is because clients let it happen.



McCrack said:


> Believe it or not (I'm sure you won't by the way) the numbers of BL that take silk each year are tiny. It's very competitive and difficult to become a Senior Counsel.


About 15-25 most years - right? Not quite 'tiny' in my book.



McCrack said:


> The client does not set out the conditions of a Brief so no you will not tell your solicitor on what terms he/she will instruct Counsel. You will also only pay legal fees if you are an unsuccessful party or costs awarded against you.


I know we're going to get into panto territory here, but believe me 'Oh yes I will'. I will find a solicitor who will follow my instructions, and they will find a barrister that will meet my requirements. But of course, it's not just solicitors that engage barristers these days, so I can go through other professionals too.


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## Padraigb (5 Nov 2010)

McCrack said:


> It's like any self-employed person, the cream will rise and consequestly command higher charges for experience/expertise.



Which undermines your suggestion that a substitute barrister is as good a bet as the one originally briefed.



> The distinction (I don't think institutional is the correct description) is there as a recognition for particular eminence a Barrister has, it's a ranking so to speak.



Of course institutionalised is the correct description. The Bar Council has a system in place to tell everybody that some Barristers have higher professional standing than others, a system that is reflected in the way courts operate and in the fees charged.

I truly wish that your point was valid. In my view, the chances of a person's success in any court action should not be dependent on the skill or status of an advocate, but on the merits of the case.


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## McCrack (5 Nov 2010)

Complainer said:


> Right, so I guess from your answer there is no reason from the client's perspective for this change. It is really all about money - the barrister can make more from other clients on SC cases, so he/she drops their old clients like a hot snot.
> 
> This would completely unacceptable in any other profession, and the only reason it happens in the legal world is because clients let it happen.
> 
> ...


 
I explained you the reasons. Whether you choose to accept/agree is your business. From a clients perspective or indeed a defendants perspective it is of great importance that the right Counsel is choosen. By that I mean it would be unsuitable for a Senior to run a Circuit Court matter because his/her professioanl fees would not be commensurate with the level expected or indeed what would tax before a Taxing Master so no it's not in any of the litigants interests that a Barrister who has taken silk continue with an inferior court (District and Circuit Court) matter.

I believe there are at least 3,000 practising Barristers in this State. 15-25 of those 3,000 becoming Senior Counsel in a year is tiny in my book.

If you came into my office what that attitude I will very quickly show you the door. Actually thinking you can walk into a solicitor' office and tell him/her how to run a case is comical.


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## McCrack (5 Nov 2010)

Padraigb said:


> Which undermines your suggestion that a substitute barrister is as good a bet as the one originally briefed.
> 
> 
> 
> ...


 
We are talking about a Circuit Court matter. If a BL becomes a Senior another BL of recognised competence can take over...some people here cant seem to grasp this. Solicitors know what Counsel are good, they know who to istruct in a given situation.

You call it institutional, I call it distinction. Same as ranking in the Gardai, schools, offices. Different people, different experience, different ranks.


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## Complainer (5 Nov 2010)

McCrack said:


> From a clients perspective or indeed a defendants perspective it is of great importance that the right Counsel is choosen. By that I mean it would be unsuitable for a Senior to run a Circuit Court matter because his/her professioanl fees would not be commensurate with the level expected or indeed what would tax before a Taxing Master so no it's not in any of the litigants interests that a Barrister who has taken silk continue with an inferior court (District and Circuit Court) matter.
> 
> I believe there are at least 3,000 practising Barristers in this State. 15-25 of those 3,000 becoming Senior Counsel in a year is tiny in my book.
> 
> If you came into my office what that attitude I will very quickly show you the door. Actually thinking you can walk into a solicitor' office and tell him/her how to run a case is comical.



So how many clients would each of those 15-25 JCs bet working with at any one time?

But you're right, I don't think we would end up working together. If I came across any professional so arrogant as to be deciding what is in my best interests without having an open discussion with me on the merits of the issue, then I'd be out the door very quickly too. Perhaps you've made assumptions about what is in my best interests. Perhaps I may want to bear the financial risk of the increased fees when I weigh this against the risk of changing barrister? Perhaps I may want a committment from the barrister up-front to continue the case at the JC rate, as a condition of taking the case? I really, really don't want professional to decide what is in my best interests. I want them to advise me on the pros and cons of the various options and let me decide.


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## McCrack (5 Nov 2010)

Complainer said:


> So how many clients would each of those 15-25 JCs bet working with at any one time?
> 
> But you're right, I don't think we would end up working together. If I came across any professional so arrogant as to be deciding what is in my best interests without having an open discussion with me on the merits of the issue, then I'd be out the door very quickly too. Perhaps you've made assumptions about what is in my best interests. Perhaps I may want to bear the financial risk of the increased fees when I weigh this against the risk of changing barrister? Perhaps I may want a committment from the barrister up-front to continue the case at the JC rate, as a condition of taking the case? I really, really don't want professional to decide what is in my best interests. I want them to advise me on the pros and cons of the various options and let me decide.


 
I really couldnt guestimate that.

I never said I would not listen to a client, quite the opposite in fact. You stated that you would find a solicitor that would follow your instructions. Solicitors take instruction from clients but they do not follow orders as to how to conduct a case which is what you seem to have said. A solicitor is responsible for running a file, not the client.

Its just unrealistic to insist on a newly appointed Senior continuing with a Circuit Court matter for reasons I and others have explained. When the matter is ultimatly disposed of and fees are being negotiated, the losing party (usually insurers) will not pay SC fees for a Circuit Court matter. This is the reality. They wont tax. Who is going to make upo the shortfall? Do/can you understand this?


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## Complainer (5 Nov 2010)

McCrack said:


> Its just unrealistic to insist on a newly appointed Senior continuing with a Circuit Court matter for reasons I and others have explained. When the matter is ultimatly disposed of and fees are being negotiated, the losing party (usually insurers) will not pay SC fees for a Circuit Court matter. This is the reality. They wont tax. Who is going to make upo the shortfall? Do/can you understand this?



You might have missed the point I made above, i.e. "Perhaps I may want to bear the financial risk of the increased fees when I weigh this against the risk of changing barrister? "

I would certainly understand this if my solicitor had an open discussion with me on this matter. The OP's solicitor certainly failed to have this discussion.


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## McCrack (5 Nov 2010)

Complainer said:


> You might have missed the point I made above, i.e. "Perhaps I may want to bear the financial risk of the increased fees when I weigh this against the risk of changing barrister? "
> 
> I would certainly understand this if my solicitor had an open discussion with me on this matter. The OP's solicitor certainly failed to have this discussion.


 
If you are the Plaintiff i.e. suing (which most individual clients are) costs are going to be borne by the Defendant/s assuming you are successful. It makes no sense to continue insisting on a newly elevated Senior to continue the matter even if you put money on account yourself to make up the shortfall just for the sake of having the same Barrister see the case through. Sure you can ask but at the end of the day the newly elevated Senior will be carving out his/her Superior Court Briefs and the Circuit Court matters will be a all but distant memory.

Discussion leads to understanding. Agreed. Hence this thread.
Whether the OP solicitor failed to have this discussion yet I don't know. I'll let the OP confrim that.


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## Complainer (5 Nov 2010)

McCrack said:


> If you are the Plaintiff i.e. suing (which most individual clients are) costs are going to be borne by the Defendant/s assuming you are successful.


Yes, I understand this. And if I am unsuccessful, I will pay the cost. So it is my risk to bear.



McCrack said:


> It makes no sense to continue insisting on a newly elevated Senior to continue the matter even if you put money on account yourself to make up the shortfall just for the sake of having the same Barrister see the case through. Sure you can ask but at the end of the day the newly elevated Senior will be carving out his/her Superior Court Briefs and the Circuit Court matters will be a all but distant memory.


Just to be clear, I won't be 'asking' the barrister at the time of his promotion. I'll be ensuring that this is agreed up front, before he takes the brief in the first place.

And I'll be aiming to get agreement that he'll continue the case at his JC rates. The free market will decide whether I get a positive or negative response to that. If I get a negative response, it is a pretty good indication of an uncompetitive market.




McCrack said:


> Discussion leads to understanding. Agreed. Hence this thread.
> Whether the OP solicitor failed to have this discussion yet I don't know. I'll let the OP confrim that.



Indeed, discussion is important, and it is pretty clear to me that the OP's solicitor had no discussion with their client about the possibility of changing barrister. Just to be clear, I'm not suggesting that my view is imposed on every client/barrister in Ireland for the rest of time. I'm suggesting that solicitors educate their clients on the issues around engaging a barrister, and reach agreement up front about the terms of that engagement.


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## Dachshund (5 Nov 2010)

Complainer, what happens if your prospective barrister becomes a Judge?

In a previous post on another thread, I posted the Barrister's  Code of Conduct. It outlines the rules of practice which a barrister must follow including those in relation to taking instructions and receiving payment for a case.

As many other posters have told you, case may take many years to come to court. It is not realistic to expect the same barrister to be there for the whole of the case. Nothing in this world is a certainty, and it is not an indication of  an uncompetitive market if you get a negative response to your request. What happens if your barrister dies? Are you going to expect a ghostly apparition in court?

As McCrack explained when a barrister takes silk (they do indeed wear a silk gown) it acts as a barrier to taking work in the lower courts (Circuit and District).


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## Complainer (5 Nov 2010)

Dachshund said:


> Complainer, what happens if your prospective barrister becomes a Judge?


Do many people go from Junior Counsel to Judge?



Dachshund said:


> As McCrack explained when a barrister takes silk (they do indeed wear a silk gown) it acts as a barrier to taking work in the lower courts (Circuit and District).


The only barrier that McCrack explained was the barrister's income.


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## nuac (5 Nov 2010)

Complainer, I know and know of several judges who were so appointed while practising as junior barristers.

I have been dealing with barristers on bahalf of clients for 40+ years.    For a variety of reasons a barrister may not be able to continue to act in a particular case.  The brief is handed over with the solicitor's agreement and usually without any detriment to the client.

A barrister on becoming an SC concentrates on HIgh Court practice  and for logistical and other reasons would not normally be attending the Circuit Court.

The solicitor recommends to the client a barrister suitable for the particular type of case, and where known, the judge likely to be trying it.    I doubt if any barrister would commit him/herself to stay in the case after becoming a Senior.    I would not relish working with a barrister who was compelled to stay in the case.


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## Complainer (5 Nov 2010)

nuac said:


> The brief is handed over with the solicitor's agreement and usually without any detriment to the client.


Would it be worthwhile getting the client's (you know, the person who is paying the bill for both the solicitor and the barrister) agreement too?


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