Any solicitor should reasonably be glum now. No office will escape the consequences of Ireland’s financial troubles and, ignoring runes, we need only read the recent record of our neighbour, the UK, to see what those consequences might be.

Let’s start with the straightforward stuff; Thomas McGoldrick, a solicitor, stole £1.25 million from a client left paralysed (from the neck down) by a traffic accident. The judge sentenced him to ten years in jail. McGoldrick’s firm acted for the client in his personal injury action. McGoldrick met the client once and when the compensation was lodged in the client account McGoldrick treated it as his own, driving a Mercedes and Jaguar with personalised number plates and sending his children to expensive prep schools.

In the UK, as in Ireland, theft like this is, effectively, a charge on all solicitors; the Law Society Compensation Fund has to make good the loss.

Any normal person might go off the rails on hearing news like this. Take Esther Cunningham for example. She was defending her cousin on a dangerous dog prosecution but had to be escorted from court after kissing a solicitor, swearing at an usher and insulting the prosecutor while “fortified” with brandy. To her credit her legal representative said of her; “The forcible kissing of a solicitor is something that has been difficult to accept”. Who, among her colleagues, would not agree?

Distraction, even while remaining on the rails, so to speak, could also be easily foreseen following on such troubles. Consider how readily a solicitor, raffling a house, could forget to get a licence to run a lottery. The then-President of the Law Society , Paul Marsh warned his colleagues against launching prize draws because he feared that, as the recession deepened and house prices continued to fall, more people might be tempted to establish prize draws. He also feared that they could be used to conduct mortgage fraud or for money laundering. He pointed out that anyone found guilty of running an unlawful lottery faces a maximum sentence of 51 weeks in prison and/or a fine of up to £5,000 under the Gambling Act 2005.

One wonders whether Mr. Marsh was not himself distracted. Did he not know what many of his members were then doing? They were bribing people to get work for their firms.
A report described the practice in relation to the “miners’ scandal” in these terms;

“…some law firms charged fees to the miners out of their compensation awards. This “success fee” was often charged on the ground that the miner had been introduced to the solicitor by a claims handling company or trade union that had charged the solicitor to send the case to them.”

Bribing middlemen for work is the first step to full-time, big-time bribery. Get a scruffy office in Tottenham and become a bagman for Halliburton, delivering £100 million in bribes to Nigerian politicians. That’s a business model any Irish property developer would cheerfully take up. In this case it was a solicitor.

Strictly, as a business model it lacks something; the bribes are going in the wrong direction. Christopher Haan, a consultant solicitor knew that. Despite charging his client, Mr Abela £1.4 million in legal fees (on a share purchase), Mr Haan was clandestinely also advising a Mr Baadarani, who was selling his stake in the Italian company to Mr Abela. Mr. Haan got £400,000 from Mr. Baadarani.
“This is not a case of a technical conflict of interest,” Mr Abela’s, counsel told the court, “but of an intentional preferment of one client’s interests over another.”
Mr Haan’s actions, he said, were negligent, deceitful and a breach of contract towards Mr Abela, adding that simultaneously advising the buyer and seller of a company implied fraudulent or negligent misrepresentation.
Mr. Haan may have known what Mr. Seldon, another solicitor, did not know; that you can be pushed into retirement against your will (and will need every cent you can get).

Or, powerful vested interests lodge a complaint with your Regulator and, despite their tendentious objectives (the complainants were the opponents of the solicitor’s clients) you just survive the trial your Regulator puts you through.

Here in Ireland, being a Republic we, in theory, are no respecters of persons. Oops! Not so, perhaps.

In any event Michael Ford a client of Michael Napier, a former President of the Law Society lodged a complaint with the Law Society about Napier. Napier had represented Ford in a long case against Exxon Mobil, but Ford discovered that Napier’s firm had also been acting for Esso, a wholly owned subsidiary of Exxon.

Ford was not pleased about this. How could he now know that Napier did everything he could to vindicate his interests?

The complaint went nowhere fast. Only when it went to the Scottish Legal Complaints Commission did Ford get a hearing. The Commission found that the Law Society’s investigation was a systemic failure.

Too bad.

Under the Prosecution of Offences Act 1974 most criminal prosecutions are in the charge of the Director of Public Prosecutions (“DPP”). Some offences are assigned to other legal persons (e.g. Government Ministers) for processing in prosecution by the statute under which they are created.

In fact most criminal prosecutions are brought by members of the Garda Siochana in the name of the DPP.

Before the 1974 act the prosecutor was the Attorney General. Consequently, it was, before 1974, a social fiction imposed on the nation that the decision to prosecute or not to prosecute was taken by the Attorney General without regard for the fact that he was a highly politicised figure, held his post at the behest of the Taoiseach and was the confidante and counsellor of the Governement and its members.

The DPP has no role in the investigation of crime. He (or she) receives a file from the Garda Siochana. The file contains the available evidence. The DPP decides, on the evidence in the file, to prosecute or not to prosecute and whether to prosecute on indictment (in the Circuit Court or Central Criminal Court) or summarily (in the District Court).

Prosecutions on indictment are “contracted out” to barristers in private practice. It is a valuable connection to be on the panel for work coming from the DPP.

Ideally, such a person would have considerable experience in criminal cases. That experience can be gained only when working in defence of prosecutions (otherwise the prosecution of offences would be placed in the hands of inexperienced practitioners and that, it is submitted, ought not to happen).

Experience, it is hoped, should dampen zealotry. It is not the job of a prosecutor to “win”, but to facilitate in doing justice. The steady presentation of the available evidence is the job of the prosecutor. That evidence must be such that there is left no reasonable doubt as to the guilt of the defendant.

In fact, the DPP has issued “Guidelines for Prosecutors”. stressing the need for the prosecutor to act honestly, fairly, impartially and objectively. The Guidelines enjoin the prosecutors to;

“(k) carry out their functions honestly, fairly,
consistently impartially and objectively
and without fear, favour, bias or prejudice;”

This is fine in theory, but the decision to prosecute is often made in circumstances where the complainant, sometimes inevitably, has a private grudge against the accused. It is, in such circumstances more important than ever that the circumstances in which the prosecutor got his or her experience qualifying him or her to get work from the State, should have no bearing on whether the private grudge can be advanced at the expense of the public purse and at no risk to the complainant and great risk to the accused.

No! Do not call the judge “Boss”.

When you appear in the High Court or the Supreme Court do what the Minister for Justice has directed HERE.

Call the judge “Judge” (unless he/she is the Chief Justice (or the President of the High Court)).

(It took a very long time to get rid of “their Lordships”. Should we not now discontinue the use of the Irish harp as a symbol of the State? In Italy, the courts exercise power “In the Name of the People”. To corrupt that is more difficult than to hijack an abstract symbol like a harp.)

Errors of judgment on the probability of an event are usually incorrigible. In short, even evidence that we are wrong will not persuade us that we are wrong in making a judgment as to whether something is or was probable or not. This is a serious problem. If we remain unaffected by evidence we are very unlikely to seek the advice or opinion of a statistician or other expert to help us estimate the probability of an event.

Road traffic accidents are common, but we rarely witness them happening. If we made a judgment of their frequency based on our experience, we would be wrong.

The title to the post is a tongue-in-cheek reference to “law” as in “law blog” and is, generally, a solecism.

The “law” is a reference to a common error. If we see a roulette wheel or some other random generator device favour red five times in sequence, we believe that the chance of it showing black, the alternative, on the next spin is greater than it showing red. For most people, this is a harmless error, excepting compulsive gamblers and property developers.

The courts, however, engage in exactly this exercise when they decide if something was or was not foreseeable. Clearly, evidence that something is common will secure a judgment that it was foreseeable, but an absence of evidence of the frequency of an event is not itself a basis to infer the frequency of an event; it is evidence of its being overlooked. The overlooking may be by the parties to litigation, or their lawyers, or it may be by the State or statisticians generally.

What is the likelihood of suffering injury from systemic failure in the Irish health system? Not very high, but not a remote possibility either.

We should remember what the statistics from the Personal injuries Assessment Board show us; Road Traffic Accidents are the major source by far of personal injury in Ireland. Even though PIAB does not assess medical negligence claims, such claims would never exceed the Road Traffic claims in frequency.

For more information see our Colour Supplement HERE

It is surprising that NAMA’s business plan has overlooked the possibilities of souvenir land sales.

These are created when tiny plots of land are provided with their individual land title. The title document will be a Folio from the Land Registry Registry (oops, sorry; Property Registration Authority) and a certificate like an illuminated manuscript. (We are good at that kind of thing).

The UK has taken this very seriously and so should we. The benefits are many. It will give employment to solicitors (a very good thing), to the PRAI staff, to cartographers, to town planners (maybe).

It could be the solution to the disposal of many white elephants, like the Irish Glass Bottle site in Dublin’s docklands. It is an “ideas” proposal.

(Did Mr. Cowen ask for ideas?)

It is an obligation of an advocate, in cross-examination, to convey to the witness the evidence the advocate intends to adduce to rebut the evidence of the witness. This is called “putting” the case to the witness. The witness will have the presumed opportunity to comment on the “case” of the advocate’s witnesses.

The potential penalty for failure by the advocate to do this is a prohibition by the court on the advocate adducing evidence contradictory of the witness’ evidence. In fact, the advocate will, in such circumstances, concede the failure and ask for leave to, belatedly, “put” the case to the witness or witnesses. This may not be convenient (it usually is not) and may be impossible. It will certainly cost money. The cost will be met by the advocate’s client. The court ensures this by permitting the witness to return, conditional on the advocate consenting to an order against his/her client on the costs.

There are often matters on which the advocate has no evidence to present in rebuttal. That does not preclude the advocate from seeking to challenge the witness on the point or points. However, the advocate is not permitted to leave the witness under the mistaken impression that the challenge is the “putting” of the advocate’s case. To avoid this, the advocate “suggests” to the witness that “…………….”. This formulation is a signal to the witness that the advocate is asking the witness to agree or disagree with the advocate and that the advocate is not going to call rebuttal evidence.

The Courts belong to the public world. The speech (and writing) of the courts is public speech and public writing.

Consequently, we in our office occasionally nominate the late Conor Cruise O’Brien as our preferred witness (on any topic, in any case).

He excelled at public speech and writing. He was wonderfully combative and would not suffer fools gladly. In short, he would have made mincemeat of most counsellors. (That’s a good US word to describe a “trial lawyer”).

His gifts were self confidence and familiarity with the public world. Most witnesses lack both to some degree, especially the latter. They are vulnerable, consequently, to mendacious forms of cross-examination.

Conor Cruise O’Brien himself demonstrates this to some degree. He remarked that he recognised his enemies by their approbation of the ideas of Rousseau. This was a harsh standard. Few people know the source or sources of the ideas they use to prop up their speech, not to speak of their lives. To take everything they might say as defining them perfectly is just wrong. To challenge them to defend the propositions inherent in their speech is also, generally, unfair. After all, Rousseau, among other things, undermined the “Ancien Regime”; he pointed to the fact that social conditions were the product of bad government, not the fault of the populace in misery. These opinions would not generally be considered contentious now (among Social Democrats, anyway). Likewise, they are not rebutted by being paraded for inspection with some other doctrine of Rousseau’s, now, perhaps, considered indefensible.

What is the defining characteristic of real troublemakers is their failure to allude to any form of idea in their speech or writing. They seek instead to give the impression that they are simply representative of a general current view, undefined.

They speak in terms of the title to this post.

With the Irish economy in retreat (recession), lawyers will still find a need for their services.

In truth, there is probably a large core of business for Irish lawyers, regardless of the state of the economy. (And that takes no account of the possibility of duplicating the activities of Allen & Overy).

The real issue is not the availability of work, but the financing of the work.

Ireland has seriously handicapped its legal profession, relative to the UK. There, it is possible, under Conditional Fee Agreements (“CFAs”), to recover double (say) the standard fee in court taxation if the lawyers have agreed to act on a “no win, no fee” basis.

In Ireland no such official arrangement exists.

Of course the real loser from the State’s failure is the Irish citizen. At very little cost to the State, it could empower victims to defend their interests and vindicate their rights in fields as diverse as defamation and personal injury litigation.

The legal basis, in the UK, for CFAs is s.58 of the Courts and Legal Services Act 1990, as substituted by s.27(1) of the Access to Justice Act 1999, the Conditional Fee Agreements Regulations 2000 (SI 2000 No 692), amended by the Conditional Fee Agreement (Miscellaneous Amendments) Regulations (SI 2003 No 1240) and the Conditional Fee Agreement (Revocation) Regulations 2005 (SI 2005 No 2305).

Under the Regulations, the plaintiff client will become liable for fees only if he/she:

a) fails to co-operate with the legal representative;

b) fails to attend any medical or expert examination or court hearing which the legal representative reasonably requests him to attend;

c) fails to give necessary instructions to the legal representative; or

d) withdraws instructions from the legal representative.

This failure by the Irish State is particularly glaring in the light of the fact that there are, currently, proceedings at hearing, in Dublin, intermittently, which potentially, if not actually, are financed by CFAs.

Those proceedings are the Omagh civil action arising out of the bombing of Omagh.

Why should Omagh be different to Dublin?

We have to stop working every now and then. I read the Sherlock Holmes body of work a long time ago, but the classics never die and so I have made reference to Sherlock Holmes HERE and perhaps have given the impression that a life in the law is a life in crime or close to it (by and large, it is not; think of Kenneth Starr whose natural habitat was in corporate law and Government administration).

What might a lawyer read for leisure? Anything, but he/she could do worse than read the novels of Stephen Saylor, featuring Gordianus the Finder.

I am currently on page 136 of “This Night’s Foul Work�? by French author “Fred Vargas�?, whose website is HERE, for Francophones, and whose Wikipedia article is HERE, for the rest of us.

Currently I think I will be reading all of Fred’s oeuvre.

We in Ireland are very unfashionable. We are the laughing stock of Europe because we use pencils to vote, the laughing stock of Europe because we might reject the Lisbon treaty and our Financial Regulation is a laughing stock.

Now, we risk being the laughing stock of Australia (and the UK in due course) because none of our lawyers have sold shares in themselves.

(Just to mention the topic is to expose us to derision.)

Have the lawyers not sold themselves already?�?

These reactions are unfair because they are based on unfair comparisons. Consider Slater & Gordon the Australian law firm.

Despite the wording of their (its?) website their principal business is litigation for the recovery of compensation for personal injury. This is a form of business that the Government and the Minister for Enterprise Trade and Employment in particular, have attempted to curtail at considerable loss to victims of personal injury as seen HERE and HERE and HERE.

The business that the government favours is the business of insurance. (Almost invariably the direction of the defence in personal injury litigation is given by an insurance company, in the name of the defendant.)

So, Slater & Gordon’s business model would not appeal to the investors in the Irish Stock Exchange.

So, what business model would work here in Ireland? Undoubtedly it will be the business model ultimately adopted in England and Wales. However, as noted HERE, there are growing potential and actual differences between the two jurisdictions which will probably ensure that our legal behemoths down the Liffey will not make it to the market.