Legal profession

Irish lawyers do many things. Some of them work for rentiers. Some of them work for big business. Some of them work for farmers. Some of them work exclusively in criminal prosecutions, for the State and State bodies. Some of them work exclusively in criminal prosecutions, for the defence. Some of them are unemployed.

Some of them work in politics as politicians. In his book, “The Burden of Responsibility” Tony Judt examines one of those, Leon Blum. Leon Blum was a lawyer, albeit French. Judt contrasts him with the other lawyer-politicians.

He says:

“At a time when most French politicians were either mediocre provincial worthies or else phrase-making businessmen and lawyers cynically unconcerned with ideas or ethics, Blum stood alone.”

A lawyer could be like Blum, or be “…unconcerned with ideas or ethics”.

No fair person could think that the lawyers at Public Citizen lack ideas or morals. They have campaigned for a long time against the use of arbitration to ensnare ordinary people. They say;

“People who have been harmed by fraud, predatory lending, discrimination, negligence, defective products or scams should not be forced into arbitration: they should have a choice.”

(Most people would think that “reckless lending” and “predatory lending” are, invariably the same thing. If so, predatory lending is lawful in Ireland. See ICS Building Society v Grant [2010] IEHC.)

Ireland recently expanded the possible use of arbitration here. Of immediate interest are Sections 21 and 31 of the Arbitration Act 2010.

Section 21 effectively disables any attempt to disentitle consumers to an order for costs in an arbitration where the consumer is successful in the arbitration.

Section 31 effectively disables any attempt to force consumers into arbitration where the dispute is for a claim exceeding €5,000.

The implications are clear; if you are a consumer and you bought a product or a service [and your claim exceeds €5,000 in value] you can and will be bound by any arbitration agreement in the “standard” agreement you made and you will be liable for the costs of the arbitration if you are unsuccessful.

Yes, you will need a lawyer or even lawyers, if you find yourself in this kind of trouble. Lawyers, regardless of what they are doing, are doing it to earn their living, among other things. Get ready to pay for the service and remember why you needed the service in the first place.

What is one to make of the implied threat from the Minister for Justice and Equality? He has suggested that the proposed Legal Aid strike by members of the Criminal Law Practitioners Organisation is of doubtful legality. This may just be bluster. If it is not, he will, presumably, contemplate a range of options. He might:

a)              Remove solicitor strikers from the Legal Aid practitioners’ panel; and/or

b)             Refer solicitor strikers to the disciplinary processes of the Solicitors’ Disciplinary Tribunal;

(Barristers are chosen by solicitors; consequently they, to partake in the strike, need only have a private conversation with their solicitor benefactors advising them that they are not available for work. The Minister would have his work cut out for him to access the content of such conversations, if not their effect).

He will not choose b); the Tribunal has expressed disappointment that the Minister has tabled proposals to replace them when they have, to paraphrase it, an unblemished record of doing their work.

He may not react at all. His Press Office, HERE, expresses the peculiar language adopted for such happenings;

“The threatened withdrawal of services seems to apply only to defence lawyers operating under the criminal legal aid scheme…”

Well, yes.

They were the very people whose incomes were being cut by the Minister and who made the complaint to him. His response was to cut the incomes of other lawyers, as if the substance of the initial complaint was a demand for absolute fairness, even in misery.

Those other lawyers are barristers briefed by the State. No solicitor on the Legal Aid panel works for the State in prosecution work and vice versa. State prosecutions are taken by various solicitors appointed for that purpose in, effectively, County districts around the country. For good and obvious reasons they do not offer services to the general public for defence work.

The Minister says:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the cost of Criminal Legal Aid whilst continuing to ensure that the rights of alleged offenders are being protected.”

This is provocative. The Minister means by this:

“The Minister has invited the Criminal Law Practitioners Organisation to furnish to him their proposals for reducing the [fees paid to criminal law practitioners…]”

The Minister’s mode of expression is a “first strike” in a blame game where the Minister’s antagonists are weak and disparate and their work is obscure to most citizens.

The title to this post is tongue-in-cheek. It is the appellation attached to one High Court judge, deemed too generous to personal injury plaintiffs, by a politically well-connected barrister.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

This writer has an iPhone, but is not an enthusiast of it. Peering into BAILII on the small screen, to read Ireland’s Road Traffic Acts, say, is not to be recommended, particularly if a court hearing is in the offing.

Consequently, the proposal to introduce “the paperless office” to Norwich prosecutors is looked at with a jaundiced eye.

That same eye, being in private practice, is distantly threatened with strain; if the prosecutor has a tablet, the defence counsel must have one also.

The interesting issue is, however, not the tablet; it is the prosecutor and the prosecutor’s mind-set. Does it matter a fig (assuming it to be true) that some money will be saved by the use of tablets? Many administrators would be able to find other ways of saving money in the conduct of criminal trials. Why should they not be given their wish?

A criminal trial is, supposedly, not about the convenience of the prosecution; it is, reputedly, a search for justice.

When it is not that, it is a fraud. It is a fraud because its procedural approach is deceitful. The elaborate procedure of a criminal trial is intended to vindicate the State as it punishes a human being. If the State has some other agenda it is the State that should be in the dock, not the accused.

What kind of impermissible agenda could a State have?

Well, levying terror on its own military forces is one.

Needless to say, there will be no evidence of impermissible agendas in prosecutors’ tablets. To find that kind of stuff, defence counsel must walk, as it were, behind the false wall of the prosecutor’s case and find the real evidence. That will become more difficult without ready access, without quibble, to all the prosecution material, particularly the stuff the prosecutor deems not relevant or necessary to his/her case.

If that is what the defence requires and needs, there will develop a new stage in a paperless prosecution; the inspection in situ of prosecution paper. We know how important it is to be skeptical of conventional wisdom; now we must be skeptical of prosecutorial WYSIWUG.*

* “What You See Is What You Get”, Apple’s reprobation of Microsoft’s interface (before Windows).

“It will be convenient to have a name for the ideas which are esteemed at any time for their acceptability, and it should be a term that emphasizes this predictability. I shall refer to these ideas henceforth as the conventional wisdom.”

So wrote John Kenneth Galbraith in 1958 when he coined the phrase “conventional wisdom”.

The idea is so good that he was not the first to recognize the truth in the phrase; that much of what passes for ideas is real only because it has been agreed to be so.

If that truth were to be again forgotten a criminal legal aid lawyer would be a prime candidate to re-discover its force. As a solicitor on the Legal Aid panel I feel the power of dislocation it engenders when I read HERE that some of my predecessors have had to represent pigs, goats, rats and other animals.

“All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence. …”

A lay person might (on reflection) wonder (or not, on reflection) how the lawyer is to take instructions from the client, a phrase and concept itself wonderfully conventional. We lawyers don’t need the client to tell us what we are to do; we tell the client what the client needs and proceed to do that. So, if a pig is facing a murder rap we undermine the evidence and so on, depending on the character of the charge, not the character of the accused.

Nobody knew this better than Socrates. He lived an unconventional life and the first charge against him read;

“Socrates does wrong and is too concerned with enquiring about what’s in the heavens and below the earth and to make the weaker argument appear the stronger and to teach these same things to others”

This was an accusation that he, Socrates, was a non-conformist, something he consciously sought to be. In effect, it accused him of being himself.

There are some charges you just can’t beat; being a pig must be one.

“Into the face of the young man who sat on the terrace of the Hotel Magnifique at Cannes there had crept a look of furtive shame, the shifty, hangdog look which announces that an Englishman is about to talk French.”

So starts “The Luck Of The Bodkins”, by P. G. Wodehouse. His triumph is to continue writing with the same skill, as in the first sentence, for the rest of the book. He does something else; he imparts meaning to the world.

Every litigant in court must do the same and invariably a litigant must convey that meaning in writing, either in pleadings or in affidavits or both. The premier mode of writing to convey meaning is narrative. It not only implies a point of view, it implies understanding. A litigant without understanding of his/her case will lose it.

This is what my computer dictionary/wikipedia has to say about third party narration, that is narration by “… an unspecified entity or uninvolved person…”.

“Traditionally, mainstream fiction with third person narration operates near the middle of the subjective/objective spectrum, alternating between objective and subjective reality and also offering alternating perspectives of the main characters. This allows the narrator to present both the objective reality and the subjective perspectives of the various characters on that reality. Given this information, the reader can then judge for themselves (without being told outright by the narrator) whether the character is a hero, fool, or other type based on the way they perceive and interact with the established reality.”

In “Law and Philosophy”[2007, Oxford University Press] one essay, with the title “Objectivity and Value: Legal Arguments and the Fallibility of Judges”, by Stephen Guest, runs for 27.5 pages and we need all of them. It is required of judges that they be objective, otherwise they cannot be wrong and the hierarchy of courts giving opportunities for appeals implies that judges can be wrong.

From the litigant’s standpoint, to expect him/her to relate “just the facts” is to ask him/her to abandon meaning. As my computer dictionary/Wikipedia puts it;

“Naturally, any being that is omniscient is supernatural, or God-like, and must hold back information due to the constraints of time and the potential to overwhelm the reader.”

We must be selective in the facts we choose to relate and, of course, nobody is omniscient. What is not obvious is that, in litigation, the applicable law determines what are the relevant facts. Unless you know the law you cannot know the facts.

So, that’s what we need lawyers for; to write the pleadings and affidavits of the litigants and to make sense of the world.

Modern newspapers are, or have been, full of Tony Blair. However, the US Blairs are more notable, particularly Montgomery Blair.

A US lawyer, from Kentucky, he represented Dred Scott in Scott v Sandford [1857].

Dred Scott was a black slave, married to Harriet and each owned by Major Emerson of the US Army (in the case of Dred, since 1832). Major Emerson had consented to the marriage of Dred and Harriet and had taken them to Illinois and the Wisconsin Territory. In each of these places slavery was prohibited. In 1837 Major Emerson married Eliza Sanford. The Emersons and the Scotts moved in accordance with Major Emerson’s army assignments and the Scotts were in Missouri when Major Emerson died, his wife inheriting his estate, including Dred Scott.

Dred Scott offered to buy his freedom from Mrs. Emerson but she refused and in 1846 Dred Scott sued her, claiming he was entitled to his freedom. He ultimately lost in the Missouri Supreme Court, it finding that he should have made his claim while he was in the free territories of Illinois and the Wisconsin Territory.

Dred tried again, in 1853, in Federal court. The defendant was the then executor of Major Emerson’s estate, John Sanford. Ultimately, represented by Montgomery Blair, Dred Scott lost again in the US Supreme Court, (the court mis-spelling Sanford’s name as “Sandford”). The majority on the court denied that Dred Scott was a citizen of the US and therefore the US Supreme court lacked jurisdiction over his claims. It found that the applicable law was that of Missouri, in which Dred Scott was a slave.

The consequences of the decision were very far-reaching. There was an immediate financial upheaval; the possibility that the Southern states could expand slavery into the territories disrupted a political balance between the North and the South and led to the US Civil War.

During the war Montgomery Blair served in the Lincoln cabinet, retiring in 1864 as part of a deal to stall a Fremont candidacy for President, leaving  the way open for Lincoln to seek a second term. Prior to that, Blair advocated the freeing of black slaves to undermine the power of the secessionists, a course followed by Lincoln in due course.

Like many lawyers, Mr. Blair’s representation of his client, Dred Scott, was not for money but from conviction.

As for Eliza Sanford, she learned there are some offers you should not refuse, even if you can. (She had gone to live in Massachusetts before the Supreme court decision and slavery was not permitted there. Massachusetts was a Union state in the war.)

Ireland is a small place; we should be temperate in our comments because we may offend where no offence is meant and our reduced “degrees of separation” makes the comment fester.

Bearing that in mind, see this newspaper article from the Sunday Business Post of last year. The subject is legal costs. This writer has much to say on the subject, which is not to say the writer is always right.

However, the writer is confident of this; there is a great deal of hoopla dished out on the subject. This post is a small attempt to look at some proposed nostrums and the cited Sunday Business Post article is useful for collecting them together in a “gentleman’s cabinet of curiosities”.

1.       Assess costs by reference to the work actually done. No reasonable person could dispute this. However, as Milton knew,

“They also serve who only stand and wait.”

Lawyers spend an inordinate amount of time standing and waiting, sometimes both. One solution to this aspect of things is that lawyers might charge by reference to time expended. In short, while they are waiting, “doing nothing”, they are entitled to be paid. Taxi drivers operate to some extent on this principle. So, what looked like a reasonable proposition needs refinement by the careful definition of what is meant by “work”. Then we need only make the “assessment” of value. The work of lawyers is not always equal or comparable. That is, some lawyers produce better work than others. (This can sometimes be explained by the role the lawyers are playing; in civil litigation, generally, a plaintiff’s barrister has a greater burden than a defendant’s barrister). One expression of this is to say that, not only do you need to know how to hit the nail on the head, you need to know which nail to hit and when to hit it.

2.       Assess costs by reference to the work appropriately done. Again, no reasonable person could dispute this but who is to decide what is appropriate? Generally speaking, following convention is a reasonable guide to doing appropriate work. (Another solution is that adopted by the Taxing masters of the High Court, who have assigned to barristers the job of defining what is appropriate work to bring an action on for trial. Of course, the Taxing masters are themselves an answer to the question.)

3.       Liberalise conveyancing services. This writer does not know what this phrase means.

4.       Allow clients to switch solicitors. Currently clients may have any number of solicitors they want. They may change their solicitor in any particular matter. What the proposal really means is this; that the client be permitted to change solicitor without reference to the fact that he or she owes the solicitor outstanding fees for work done in the matter. Currently, solicitors rely on a lien on papers to secure them their fees. (The client may withdraw instructions but will not get his or her documents or papers unless the outstanding fee is paid). If solicitors lose that lien they will, inevitably, require payment in advance for their services. That will have social consequences generally considered to be undesirable.

5.       Give the public direct access to barristers. Barristers, generally, do not want this and in due course, neither will a select group of the public – those members of the public who have accessed barristers directly. This last comment will be wrong, in time. That time will arrive when barristers have sufficiently changed to become very like solicitors. Then, they will take and manage client money; they will require larger premises and more staff and they will require to pay more for their professional indemnity insurance.

6.       Permit partnerships for barristers. Why not? Chambers of barristers in the UK very often deliver services as if the chambers were a partnership, but the Law Library in Dublin does the same. These are structures to pool resources and reduce costs. The missing element is the allocation of loss, due to wrongdoing or negligence, on a group rather than a sole practitioner. If barristers formed partnerships it would be for the presumed benefit, to them, of attracting more clients due to the extra security of the collective responsibility, but that is predicated on the supposed inadequacy of current professional indemnity insurance for barristers. If it is inadequate that problem should be addressed immediately.

7.       Increase the numbers of lawyers. Currently, as many as 1,300 solicitors are unemployed. Practising barristers are self employed. They are not so much unemployed as underemployed. Some are much more underemployed than others. Why generate more unemployment?

This subject of legal costs is reminiscent of the “discovery” of “Ida”, a 47 million year old fossil. The press release promised much as Time magazine remarked;

“All of which renders the press release touting a “revolutionary scientific find that will change everything” absolutely true — as long as by “everything,” you mean “whether the branch of the primate family that includes monkeys, apes and humans comes from the suborder strepsirrhinae or the suborder haplorrhinae,” according to the PLoS One paper. And by “change,” you mean “adds information that may or may not help settle the question, but whose implications won’t be known for a long time in any case.”

(See the New Scientist article on the topic HERE, paying close attention to the diagram HERE.)

Government is very wasteful. Anybody with any experience of government will see this promptly.

Public speeches or comments by politicians should always be seen in that context.

One is reminded of the history of waste disposal and control in Ireland. Local Authorities were the regulators of waste disposal and were the greatest offenders; their sewage, alone, was a source of great damage and offence.

These are my thoughts as I note that, shortly, the Minister for Justice, Equality and Law Reform (“MJELR”) will disclose his plans for conformity with the IMF/EU “reforms” of the legal professions.

As I understand it, the professed intention is to eliminate wasteful costs.

To that end, the Minister could do worse than have a word with his fellow EU Ministers for Justice about extradition.

Surely the provisions of Section 11 of the Extradition (European Union Conventions) Act 2001 need adjusting?

They are too low.

Many offenders in Ireland, guilty of an offence falling within the terms (but not the application) of Section 11 would qualify for the provisions of the Probation of Offenders Act 1907.

What the EU states have done is this; they have resolved to spend money without reserve in pursuit of EU citizens who have collided with State power. They are saying there will be no opportunity to escape the State, regardless of the triviality of the offence.

Who pays for this? Well, in Ireland, the taxpayers pay and the MJELR spends that money enthusiastically.

When Ireland receives a warrant from another EU state for the extradition of a person a very costly process is commenced. This should happen in appropriate cases, but not in inappropriate cases.

It can, and does happen, that extradition requests are made in cases where the “absconder” received a suspended sentence.

Does the MJELR keep a horse? Does he not notice he needs to clean his stables?

The Irish solicitors’ profession seems peopled by rabbits. The Irish Bar is preparing to make submissions relating to the forthcoming IMF/EU diktats. It rolled out the Attorney General in a conference at the weekend just past, to invoke pious words about the need to preserve the missionary-like zeal of “pro bono” barristers. (This writer approves of such barristers, when he can find them.)

The Law Society of Ireland, however, is wasting energy on the SMDF. More importantly it appears to be ignoring the need to prepare for the IMF/EU issues.

What are they? Because the IMF is busy and not often in Ireland, it, of necessity, has to find available domestic criticism of solicitors as ammunition to fire off. They believe they have it in the report of the Competition Authority of December 2006 “Competition in Professional Services; Solicitors & Barristers”.

The good news for the Law Society is that the IMF/EU ammunition is, in every sense, shoddy. (“Shoddy” was a cloth material for army uniforms for the Union soldiers in the American civil war; think of the fluff from the filter of your tumble drier and make it on an industrial scale. Now shape it into a garment. Now, send its wearer into the rainy winter).

At paragraph 5.274 it states the following;

“In seeking to limit excessive and costly litigation in relation to personal injuries, the regulations carry the risk of overly restricting advertising for other legal services. Other measures have recently been introduced in relation to personal injury claims, such as the Personal Injuries Assessment Board (PIAB) and the Civil Liability and Courts Act 2004, both of which also seek to control unnecessary and costly litigation, and consequently there is less need to rely on advertising restrictions as a means to limit personal injury litigation.”

This farrago of bad ideas indicates this; we are likely going to find ourselves looking at solicitors’ advertisements on the backs of busses.

OK, so what? So this; the IMF/EU nostrums will carry an outrageous agenda, as expressed in paragraph 5.274, that victims of personal injury should be hindered in the search for justice (a policy already established).

That is the point of attack the Law Society should be focusing on. It is incapable of doing so.

(The Maya independently invented the wheel, but could find no use for it.)