Public Access in Ireland: A Challenge to the Bar?

‘The Bar has developed as a referral profession’^[1]

Introduction

The evolution of the Common-law system saw the creation of two distinct professions for lawyers; solicitors, employed to interact directly with clients and manage the requisite documents of the court, and barristers, referred by solicitors to cases in order to present arguments in court and offer specific legal expertise in cases.  Traditionally, barristers were required to act only on the instructions of a solicitor and could not accept private employment from individual members of the public.  This has created an inter-reliant profession in the practice of law.  In modern times, the distinction between the two occupations has devolved significantly.  Solicitors now enjoy a right of audience in all Irish courts, allowing them to assume the role of barristers in the court system.^[2] Solicitors are now in a position to compete in court and in business with barristers.  Should barristers in turn be permitted to work directly for clients in the court system in order to compensate for the modern changes in the legal profession? If so, in what way, and to what extent does this jeopardise their role as the ‘referral profession’?

Historical development of  a ‘ Split Profession’

The origins of the split legal profession and restrictions upon barristers lie in the common-law legal system of medieval England.  Out of informal roles fulfilled by plaintiffs and their associates arose two distinct categories of lawyer; ‘Pleaders’, the predecessor of barristers, employed to present the case of a plaintiff and argue points of law in court, and ‘Attorneys’, from which arose the solicitor; employed to represent the client in court and perform the complex clerical work associated with pursuing a case in court.^[3]  By the eighteenth century these roles had largely evolved into their modern counterparts.^[4]  This distinction was maintained in Ireland until the Courts Act of 1971 granted practising solicitors rights of audience in all Irish courts.^[5] Similar privileges would not be granted in England and Wales until 1990.^[6] Initial use of this right was limited in the courts, accentuated by the barrister-centred nature of the courts system: until 1995, solicitors could not be considered for appointments to the judiciary in Ireland.^[7]  However as the court system developed, solicitors increasingly appeared both before and within the courts. The number of practising solicitors in Ireland today is far higher than the number of barristers: approximately 2,300 barristers^[8] are now left to compete with the 11,618 practising solicitors recorded in 2019.^[9]  Since 1888, English barristers had been forbidden to receive instructions from clients directly and instead had to act on the instructions of solicitors.^[10]  This has left members of the bar caught between their role as a ‘referral profession’ and the evolving legal field in which they operate.

Modern Problems Posed by a Split Profession

The problem posed by the ‘split profession’ model to a modern litigant is straightforward: to pay for costs of court and the services of one or more legal professionals is prohibitively expensive.  This is highlighted in the comments of  Chief Justice Clarke in SPV OSUS v HSBC Institutional Trust Services: ‘I remain very concerned that there are cases where persons or entities have suffered from wrongdoing but where those persons or entities are unable to vindicate their rights due to the cost of going to court’.^[11]  In England and Wales similar criticisms have been levied against the current system, notably in the ‘Access to Justice’ report by Lord Woolf wherein it is acknowledged that ‘litigation is so expensive that the majority of the public cannot afford it unless they receive financial assistance.’^[12] This prohibitive cost of justice is only increased in a system wherein two separate class of legal professionals are expected to be employed by a litigant.  The duplication of costs for potential litigants by maintaining this traditional divide and mandatory use of barristers as representatives has thus proven untenable in the modern justice system which increasingly involves litigants of average means, resulting in the aforementioned reforms to the courts system and provision of rights of access to solicitors.

As much as this approach has sought to address inequality of access within the courts and streamline the legal system, it leaves members of the Bar in a perilous position: as solicitors are equal in access to barristers, and the justice system de facto mandates the retention of a solicitor for the majority of individual cases in order to navigate the complexities of court application and the legal process, the ‘referral role’ of the barrister is now more than ever placed into sharp relief in this jurisdiction.  The modern barrister is, by virtue of the expanded remit of solicitors, no longer a necessary actor in the pursuit of justice, and represents an expensive addition to a case which may or may not prove useful in deciding its outcome.  The advantages of enlisting the services of a barrister, in particular the objectivity with which they may view a case owing to their separation from a given client, are lost if their roles as advocates are incorporated into the sundry services supplied by a solicitor.  In essence,  the dualistic nature of this aspect of the legal profession has bound barristers to their detriment to a position of strict referral, preventing them from pursuing cases independently, whilst no such burdens are placed upon solicitors, who need not act within the strict parameters of this traditional model.

Direct Access

The Westminster parliament extended full rights of audience to solicitors in 1990.^[13]  This led to a broad amalgamation of the two professions in the early 21st century: according to the Clementi report, it was not uncommon to find solicitors addressing in court while many barristers carried out the clerical duties formerly expected of solicitors.^[14]  In order to address this, the Public Access Scheme was introduced in England and Wales in 2004.^[15]   Under the terms of this scheme, barristers were permitted to accept instruction directly from clients to represent cases in court or simply provide legal advice with specific caveats; court proceedings could not be drafted nor submitted by the barrister, barristers could not manage client’s cases nor handle client money, could not submit documents to court and were not permitted to instruct witnesses on the client’s behalf.^[16]  This scheme addresses the issue of high fees for those litigants to whom it applies: if a barrister’s counsel and ability to act in court is required by the litigant, it is unnecessary to pay both a barrister and solicitor provided the litigant is willing to undertake the management of a case themselves.  This Public Access scheme did not destabilise the legal field upon its introduction, as in a 2008 poll of 11,981 barristers only 66 performed public access work.^[17]  However the low number of participating barristers would suggest that this scheme does not have the requisite impact upon the Bar as a whole to realign it from its current referral status and attempt to resolve the above issues of partial amalgamation highlighted in the Clementi report.

The tight restrictions placed upon the role of the barrister in such cases seem to incentivise the use of this scheme not for the lay-litigant but for larger bodies which may retain the use of legal professionals or be sufficiently familiar with the legal process that the retention of a solicitor is unnecessary in their case.  Thus the Public Access scheme does not seem to address the problems of the wider public, from which little experience or competence in the navigation of the courts system should be expected.  Nor does it aid the majority of barristers in pursuing cases beyond the scope of their traditional ‘referral’ remit.  This ‘Public Access’ thereby confounds the convenience of private sector interests with a provision of service to the broader public and a novel route to employment for barristers.  Such a scheme in this jurisdiction would require an overhaul of its requirements with respect to the duties of the litigant in order to fulfil its eponymous role and allow the public to access the talents of barristers, and vice versa.

A similar scheme does exist in Ireland to permit a more circumscribed form of direct access to barristers in the form of the ‘Direct Professional Access’ scheme.^[18]  This system allows certain organisations to apply to the Bar council of Ireland in order to be permitted to contact barristers directly for legal advice.  The extent of this scheme ends here, however; barristers may not represent clients nor assist them in contentious manners within the courts. The self-stated aim of the scheme is to ‘provide cost-effective and speedy professional advice’ and ‘helping to avoid litigation in the long term’.^[19]  This form of barristerial relationship is further narrowed in scope by the strict set of criteria which organisations are expected to meet in order to be considered for acceptance to this system.  Thus the Irish public access equivalent is beset with an amplified set of the issues associated with its English counterpart; namely, that it is not truly public access, nor broadly applicable to the majority of cases within the courts.

It is reasonable to expect some heightened level of increased competition between solicitors and barristers due to this scheme, and a further break from the traditional  litigation system, however the origins of any such conflict lie in the lack of distinction between the two guilds, a result of modern legislation granting greater advocacy privileges to solicitors.  It cannot be said that the Public Access scheme would serve to overhaul the nature of barristerial work in Ireland if the results of such a scheme in England and Wales are a reliable forecast.  Instead more comprehensive and radical change to the litigation system would be necessary in order to implement such a system in this jurisdiction with the aim of removing the mandatory referral process for barristers whilst retaining the privileges of yesteryear hitherto granted to solicitors.  Neither scheme, in Ireland nor England, gives any clear method on which to base this overhaul, as the neutered forms of ‘public access’ and ‘direct professional access’

Professional Fusion

What alternatives exist then, in implementing such a radical overhaul of the legal system and addressing the issues of the current professional division?  In many common law jurisdictions, notably the United States and Canada, the traditional division between barrister and solicitor is absent, and legal representatives known as ‘attorneys-at-law’ perform both clerical work and advocacy.  Such a fusion of professions is complemented by many aspects of the American legal system; attorney’s fees are as a rule paid by those for whom the attorney is operating, whereas solicitors and barristers are paid for by the defeated party.^[20]  This unification of the legal profession allow attorneys full oversight in cases and provide litigants a closer connection to their advocates in court, as they are directly hired and not referred by another professional.  It has the potential to reduce costs as the litigant is paying a single lawyer in order to both manage and plea their cases before the courts, and streamlines the process of litigation by reducing the number of actors upon which a litigant must rely upon.

The concept of a fused profession is not a novel idea in Irish legal theory.  Calls for such a fusion of professions had been made and rebutted by the Incorporated Law Society of Ireland as early as 1884 when it was posited that it would be “to the advantage of the public and of the profession that the professions of barrister and solicitor should be amalgamated, so that all members of the legal profession should have the same rights and privileges.”^[21]  The prevailing opinion at the time was that whilst it may be of economic value to the public to amalgamate the professions, such a fusion would bring a lower standard of litigation before the courts as the fused professional would be expected to perform twofold work in managing and presenting cases, leading to a decline in quality of legal work.  In short, “though cheap law may be a good thing, bad law is worse.”^[22]

Further calls for such a fusion have been made in recent years in England and Wales, leading to a revived discussion of the respective merits of fusion and division.  Such discussions are framed more easily in the modern era of quasi-amalgamation of the professions, with solicitors and barristers adopting the traditional roles and skillsets of their analogues.  The distinction between the two could today be seen to be “outdated and irrelevant.”^[23]  Might developments in the devolution of the divide between solicitors and barristers simply serve to increase the need for fusion and the abandonment of the bisected model of the legal profession?

Conclusion

Ireland has had a history of embracing change in common law, often more eagerly than in the UK. The right of audience was extended to solicitors a full 21 years ahead of the 1990 act in England and Wales and the Irish Supreme Court was established upon the adoption of the constitution, whereas the English supreme court only formed in 2009.^[24] The Irish court system is, by virtue of its republican nature, not as heavily bound by common law and feudal tradition as the English legal system, and therefore it is logical to assume a more rapid rate of change in Ireland.  It is disappointing then to see little attempt to address the above issues with the split profession model in Ireland.  The lack of a broadly applicable scheme of public access and a diffuse distinction between barrister and solicitor directly impact public access to justice through their effect on the costs of court.  The high costs of a court case involving barristers could be mitigated by allowing public access akin to the UK: limiting the role of the barrister to an advisory and representative role to avoid the subsumption of the solicitor in the legal process, while incentivising the use of solicitors to avoid the labour associated with managing complex cases and court submissions.  Should such a scheme prove ineffective or limited in its application, the legislature, alongside the governing institutions of the respective legal professions, must examine whether the continuation of the present division is tenable, necessary, or sustainable moving forward In elevating the role of solicitor and allowing their advocacy in court, the legislature created an imbalance in the courts and the wider legal world, which they now bear the responsibility of redressing.

^[1] John Flood & Avis Whyte, ‘Straight there, no detours: Direct access to barristers’ (2009) 16 IJLP 131.

^[2] Courts Act 1971, s 17.

^[3] W.W. Boulton, ‘The Legal Profession in England: It’s Organization, History and Problems’ (1957) 43 ABAJ 507.

^[4] ibid 508-509.

^[5] Courts Act 1971, s 17.

^[6] Courts and Legal Services Act 1990 (UK)

^[7] Courts and Court Officers Act 1995 s 16(7)(a)

^[8]The Bar of Ireland, ‘About Us’ (Bar of Ireland Website)  <https://www.lawlibrary.ie/About-Us.aspx> accessed 10 October 2019.

^[9] Michael Quinlan, ‘Annual Report 2018/2019’ (Law Society of Ireland Website) <https://annualreport.lawsociety.ie/> accessed 1 March 2020.

^[10] Flood & Whyte (n1) 133.

^[11] [2018] IESC 44, [2018] 7 JIC 3106.

^[12] Lord Woolf, ‘Access to Justice: Final Report’ (HMSO 1996) 2(7).

^[13] Courts and Legal Services Act 1990.

^[14] Sir David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales (UK Ministry of Justice, 2004) <https://webarchive.nationalarchives.gov.uk/+/http://www.legal-services-review.org.uk/content/report/index.htm> accessed 3 March 2020.

^[15] Bar Standards Board, ‘The Public Access Scheme Guidance for Lay Clients’ (2010) < https://www.barcouncil.org.uk/media/119600/public_access_guidance_for_lay_clients_-_mar_2010_-_as_at_25_oct_2011__1_.pdf> Accessed 10 October 2019.

^[16] ibid, 3.

^[17] Flood & Whyte (n1) 137.

^[18] The Bar of Ireland, ‘Direct Professional Access’ (Legal Services) <https://www.lawlibrary.ie/Legal-Services/Direct-Professional-Access.aspx> Accessed 3 March 2020.

^[19] The Bar Review, ‘Direct Professional Access’ (2006) 11(3), 74.

^[20] Harry Cohen, ‘The Divided Legal Profession in England and Wales – Can Barristers and Solicitors Ever be Fused?’ (1987) 12 J Legal Prof 7.

^[21] William Lawson, ‘The Fusion of the Two Branches of the Legal Profession’ (1891-92) 9(72) JSSIS 632.

^[22] ibid 636.

^[23] Quentin Bargate, ‘Time for a Fused Legal Profession in England’ (Bargate-Murray, 28 April 2014) <https://bargatemurray.com/time-fused-legal-profession-england/>  Accessed 5 March 2020.

^[24] Constitutional Reform Act 2005, s 23.