Legal Reform - Advocating in Court

[Brendan Burgess]

The [broken link removed] recommendations

Advocating in Court

36. Barristers who have practised for a certain number of years may be appointed by Government as “Senior Counsel”. The title is intended to be a quality mark, indicating that the barrister has extensive experience and a high level of legal knowledge, skill and judgment in the field of advocacy.

37. In reality, the title of Senior Counsel is not a reliable mark of quality because there are no transparent criteria for awarding the title. Neither is there any ongoing monitoring of quality, nor any procedure for withdrawing the mark in the event of a reduction in the level of quality. The title has the potential to distort the market for legal services, by leading solicitors and their clients to believe, without adequate justification, that in engaging senior counsel they are always engaging a lawyer who excels in his field or that other practising barristers are not of the same calibre.

38. The Competition Authority recommends that the Government establish objective criteria for awarding the title of Senior Counsel, together with a procedure for monitoring and removing it.

39. Solicitors have the right to advocate in every court in Ireland, in competition with barristers, but are inhibited from exercising this right by two restrictions. First, solicitors are not allowed to hold the title of Senior Counsel, irrespective of their ability to provide advocacy services. Second, solicitors are prohibited from being the lead advocate where for example a team of both barrister(s) and solicitor(s) is representing a client in court. The Competition Authority recommends that solicitors be eligible for the title of Senior Counsel, as is the case in Britain, and that they be allowed be lead counsel when advocating in court with a barrister. Removing these unnecessary restrictions will encourage greater competition in advocacy services.

 

[nuac]

Re the Comp Authoriity that there is not monitoring of quality of Senior Counsel - disagree. It is a very competitive profession. A solicitor will advise a client to pick the best person for that type of case. No solicitor will recommend a loser or someone who does not know how to handly the case, or it too lazy to deal with it properly. That it real competition.

 

[onq]

I don't think the competition authority has sat in on enough High Court actions to understand what it is recommending.
I have seen senior solicitors of twenty years and more being left standing by a Senior counsel when it comes to court strategy and presentation of a case to the point where both solicitors from a firm who had issued a rescission notice on behalf of a client were shown to be wrong by the senior counsels two minute reading of a document - embarrassed wasn't the word for it.
They had used the wrong special condition [one of two similar conditions in the contract for sale] in support of the notice.

On the other hand I have seen a senior solicitor issue advice to a client regarding an easement and been contradicted by a Senior Counsel's Opinion.
The solicitor and I agreed that his position seemed to be correct and the senior may have had his wires crossed.
I asked a Junior Counsel of my acquaintance what his opinion was knowing he had specialized in Land Law and he concurred with the solicitor.
However when I explained the detail of the Senior's opinion he backed away, stating it would not be seemly for him - as a Junior Counsel - to issue an opinion that contradicted a Senior Counsel.
Would not be moved on it, no matter what logical argument I advanced.
However, I did manage to learn enough from our exchanges to find the source book on the matter - the Law of Easements and Profits á Prendre and together the solicitor and I had a very frank meeting with the Senior Counsel in which he admitted our arguments had merit - but wouldn't withdraw the Opinion!

So the grading and quality issues discussed in S 36- S. 39 above have implications both inside and outside Court, not least of which is the current pecking order within the Bar itself.

 

[csirl]

Why dont they abolish the title altogether and call them all barristers? It serves no purpose and is a hangover from a long gone era.

 

[onq]

Unless you've been in the system and seen these guys operate, you won't really appreciate the gulf between solicitor, Junior Council and Senior Counsel.
Granted this is blurred somewhat where you have a JC who shows aptitude and ability and is "on the cusp", but these advance to SC soon enough.
A look at the average years taken to go from JC to SC might be instructive - last time I checked it was something like 15 years.
The titles are intended to reflect this different in competence.

 

[csirl]

Unless you've been in the system and seen these guys operate, you won't really appreciate the gulf between solicitor, Junior Council and Senior Counsel.
Granted this is blurred somewhat where you have a JC who shows aptitude and ability and is "on the cusp", but these advance to SC soon enough.
A look at the average years taken to go from JC to SC might be instructive - last time I checked it was something like 15 years.
The titles are intended to reflect this different in competence.

I'm very familiar with the system and have worked in it. You dont need to give someone a title i.e. SC, just because they've worked for X number of years. I think the consumer is intelligent enough to determine someones experience - they do it ok in most other professions.

I dont buy that there is a huge gulf between JC and SC. Yes, there are some very impressive experienced SCs. But there are also some terrible ones, who, no doubt only survive in the profession due to the closed shop. I'd even go with a devil before some of them.

There's another important reason why the distinction should be abolished. If a JC is against a SC in a case, the SC gets to sit at the front bench, whereas the JC is behind. The SC gets is deferred to by the JC - if even only in a cremonial/traditional manner. Both are supposed to be equal before the law, but the airs and graces give the impression that the SC is more superior which, in turn, gives the impression that the points the SC makes in court are more valid than those made by the JC. Its difficult to imagine that this doesnt have some influence in close cases. Even if it does have no influence, it gives the public the impression that justice is unfair as they see one sides advocate been treated better than the others.

 

[T McGibney]

he backed away, stating it would not be seemly for him - as a Junior Counsel - to issue an opinion that contradicted a Senior Counsel.

...

the solicitor and I had a very frank meeting with the Senior Counsel in which he admitted our arguments had merit - but wouldn't withdraw the Opinion!

If the law were reformed to allow barristers to be sued for negligence, it will quickly put an end to the above sort of nonsense.