The power of mythical thinking has to be experienced to be believed. Currently, in Ireland, nobody is more subject to its power than the judges of the Superior courts. (With the possible exception of the Irish catholic bishops).

Of course the legal profession is subject to the same myths as the judiciary, but that would not long outlast (I hope) the escape of the judiciary from their myths.

The myth of immediate interest is the fairytale that the Dail (Ireland’s lower parliamentary chamber) has any influence in the making or passing of legislation. It does not; legislation is originated by the Cabinet and driven through onto the statute books.

We know who is responsible, therefore, for the requirement that personal injury litigants must swear an Affidavit of Verification asserting the truth of the factual assertions set out in pleadings commenced on their behalf.

Willie O’Dea is in the Cabinet. He says, of his factually incorrect Affidavit, that when he realized his error in his Affidavit, he “put his hands up” and admitted the error. The Cabinet has endorsed this as the correct response. Consequently, no judge can, or should, ask for more of personal injury litigants.

Willie O’Dea’s understanding is not new or peculiar. His Affidavit will have contained the averment:

“I make this affidavit from facts within my own knowledge save where otherwise appears, and where so otherwise appearing I believe the same to be true.”

This statement is about appearances and beliefs. Willie was right to emphasise that his beliefs are the important thing and, of course, we know that appearances can be deceptive, especially to deponents in Affidavits.

That, clearly is what the Cabinet meant and means by the legislation imposing the obligation on personal injury litigants.

Judges take note.

Oddly, nobody has adverted to the role of the Attorney General in the Willie O’Dea kerfuffle. The Attorney General is the lawyer to the Cabinet. He clearly endorsed the view of the Cabinet, did he not? Maybe not. Whether he did or did not is not important. We are not entitled to know and nobody is asking.

But we should see him as he is, warts and all. We should not have to endure the consequence of more mythical thinking by the judiciary (and the Law Library). The Attorney General is down in the arena with everybody else. He fights for his clients. He represents their interests. He should not be accorded the deference he gets from the judiciary and the Law Library. (According to the Bar of Ireland, the Attorney General is the Leader of the Bar).

1. It was (arguably) beyond the remit of the High Court inspector to make exhaustive comment on the giving of legal advice to Mr. Jim Flavin (“Flavin”) on the legality of the sale by Flavin of Fyffes’ shares.

2. However, the advice was wrong, the inspector says. (He could hardly say anything else, given that the Supreme Court effectively said the same thing).

3. Consequently, the question as to whether the solicitor who gave that advice was negligent could arise. Hopefully, the solicitor knew this and qualified the advice with the use of some formulation like “…on the one hand this… on the other hand that…”.

4. But then Flavin would have been in a quandary. He would not have been able to sleep with worry about the possibility that he was about to commit a crime.

5. But what of the solicitor? Is his sleep of no consequence? If he says, positively, that the sale of shares is legal; is not a crime, and is nonetheless wrong, is he not liable to the client? How can he sleep with the worry that his advice will prove to be wrong?

6. Even if he has nerves of steel and a will of iron, what can he say to the client who returns to him after the trauma of even a successful defence of the client’s actions? Did he not advise the client of the possibility, indeed the likelihood of litigation? If he did, surely the client had grounds to doubt the legality of what was proposed and if he did not surely the client, learning of the decision in C. W. Dixey and Sons Ltd. v Parsons [1964]192 E G where the court said;

“In the present circumstances the solicitor owed a duty of care to his client to take reasonable care, not only to protect his client against committing a breach of the law but to protect him against the risk of being involved in litigation… It would not do for him to say that in his view it was all right. There was an obvious danger that a different view might be taken. In the present circumstances the ordinary careful solicitor would have gone to see his clients and advised them not to sign.”

would be rightly aggrieved at the advice the solicitor had given.

7. Of course, there is another way of seeing the situation. There are some things upon which a solicitor should not venture an opinion or advice and clients should not seek such opinion or advice.

This is a post of clarification. No blog post can be a monograph, but sometimes “mature reflection” indicates that more needs to be said.

My post on the UK Law Society (seen HERE) is one such post.

May I be taken to be endorsing the Legal Services Board in any sense? Emphatically, no.

Do I approve of the concept of a regulatory system for solicitors? Reluctantly, yes.

Do I believe that the throwing of ashtrays at staff is a matter to be addressed in a regulatory system for solicitors? No.

Do I believe that the stealing of money from clients is a matter to be addressed in a regulatory system for solicitors? Yes.

A fundamental principle should apply; no person and no group of persons should be above the law. That law should be adequate to protect the legitimate interests of the public.

In addition, it is undesirable that there be a special process for applying the law to one group of persons by comparison with any other group of persons.

(It was the failure of the Catholic church and Irish society to adopt and apply these principles to Catholic priests that facilitated wrongdoing by priests.)

In any walk of life, therefore, be it that of lawyers or priests, the throwing of ashtrays should be challenged and, if appropriate, punished, in the same forum as is used for everyone else.

Why do I distinguish the stealing of clients’ money by solicitors from that principle?

I do so because when it happens the client is immediately at a disadvantage, relative to the solicitor.

The client has voluntarily transferred, or directed the transfer, of the money to the solicitor. On that ground alone the average policeman is immediately bemused at the beginning of any hypothetical investigation of a client’s complaint. It takes a specialised policeman, from a fraud squad, to conduct that investigation. In Ireland we have inadequate resources to investigate fraud.

As a practical matter, therefore, it is a necessary evil that the regulation of solicitors exist and that it apply with full force to the management of clients’ money.

I should declare an interest in this topic; under current regulations the Irish solicitors’ profession (I belong to that group) is the collective end stop for making good money losses by solicitors’ fraud or theft, as analysed previously by me HERE.

Needless to say I want a good, efficient, policeman working on the problem when it arises.

The UK Law Society has had a long history. It is now at a new low.

Having been cavalier about its “regulatory” function, it was forced to cede that responsibility to the Legal Services Board. The Board is one of those independent bodies to which there is always appended the word “independent” when it is mentioned by its spokespersons and mentors.

Verbal tics like that are the speech equivalent of body language signals.

Now the Law Society’s real owners are going to abandon it. I mean the big City firms. They do not want to be subject to a messy regime of regulation; they do not even want to be in charge of it.

They want their own system of regulation (which is not to say they never had that before).

In the UK the possibility of partnerships between solicitors and barristers is looming. The UK Bar is what is known as a sophisticated user of legal services. It knows full well the real system by which the professions are operated; it wants no “regulation” from the Law Society or its members, over members of the Bar.

Now the Law Society has “commissioned” a review of things by Lord Hunt of Wirral. He happens to be a solicitor and a former member of the Cabinets of Mrs. Thatcher and John Major.

He has, it seems, announced his brief thus:

Should the system of regulation be the same for a High Street solicitor as for a medium-size law firm? Should it be the same for a one-person practice as for a global law firm?”

Peculiarly, for a solicitor, he does not seem to have noticed the question has been asked and answered:

Yes”

Why should a partner in a global law firm who throws ashtrays at his staff not be brought to book like anyone else?

Why should he not be brought to account if he steals the money of a client?

What Lord Hunt probably means is that the Legal Services Board has not got the skill, experience or facilities to delve into the accounts of a big firm.

He probably already knows that, before all those features, there must come the will to act. That will has always been absent.

1. Legal education is expensive. It is not desirable that a person educated for legal work should fail to gain employment. (That statement is too broad; like medical practitioners, some legal practitioners should not be working, but the statement is true generally). The Chairman of the Bar Council of Ireland admits the profession (he means the Bar) is “pear shaped”. By this he means a small proportion of barristers get most of the work (and most of the income). Any expressions of concern from him at this should be taken with a pinch of salt; the Bar Council of Ireland subscribes, and always has, to the Social Darwinist notions of Herbert Spencer. Whatever the legal professional equivalents of thrift, hard work and sound family life are, the Bar Council of Ireland attributes the road to professional success to them.

2. The public is not demanding the Bar Council give up its delusions. No journalist would file a report to the effect that it was, but journalists do report that the public is demanding regulation of the professions. This is not credible. Ordinary people do not express themselves like that; they demand justice and fairness. They do not think that “regulation” delivers justice and fairness and therefore do not make demands for regulation.

3. It is said, or implied, that there is insufficient work for all lawyers. This may be true, but it remains to be demonstrated. A growth in numbers in the legal profession may reveal that, previously there were insufficient numbers of lawyers, rather than show there are now too many. The subject of interest is “work” not “numbers”. It is an unsustainable proposition to say there is not enough work for Irish lawyers. It is true only by reference to a perverse and reactionary definition of “work”. It is predicated on the further dubious proposition that levels of injustice in Ireland are very low. Where there is injustice there is work for lawyers. (Getting paid for that work may be problematic, but that is another issue).

4. Consumers have no confidence in the legal system. The reason for this is that they have little or nothing, as consumers, to do with the legal system. (A “consumer” is a purchaser of a commercial product or service). Lawyers work for consumers, who become their clients, if the consumer has a claim arising from a defective product or service. Consumers are a vanishingly small cohort in lawyers’ clients. The main reason for this is not that Irish products and services are top-notch; it is that the value of the claim does not usually warrant the investment of money needed to vindicate the disappointed consumer.

5. It may be true (who knows?) that clients have low levels of confidence in the legal system. Perhaps they are sceptical of the likelihood of being treated justly in an Irish court, based on newspaper reports of judgments from time to time. They may even have little or no confidence in lawyers, having gone through a bruising family law case. It cannot be true, however, that they have little or no confidence in their own lawyer; they hired him or her and would not have done so if they positively had no confidence in him or her. In any event it is probably misleading to use the term “confidence” in this context, something many clients would probably recognize intuitively. The emotion felt is probably closer to hope than anything else, or, in the case of very inexperienced clients, expectation. “Confidence” is something based on past experience; most clients have little experience of the legal system. What of a client accused of the offence of dangerous driving? How can his/her emotional state be said to be one of “confidence”, when the most positive outcome may, to the knowledge of the client, be one where public humiliation is attenuated by the lawyer speaking for the client, rather than snatching an acquittal from the situation? Nobody, save the more immature readers of Erle Stanley Gardner, expects a lawyer to have only innocent persons for clients.

6. The tribunals, each and every one of them, came into existence because of profound failures of the political system. The level of payment to the lawyers in the tribunals was a direct result of the influence of politics on the legal world and not the reverse. The various Attorneys General (political appointees par excellence) were at the heart of the fixing of payment to those lawyers.

7. The legal profession, both branches, prides itself, (often without justification, but sometimes correctly) on adjusting its fees to the personal situation of the client. What is wrong with that process? If a poor person is not charged a commercial rate, who is to complain? If a rich person is charged a rate commensurate with his/her ability to pay, his/her complaints are without foundation. Citing as authority, on the subject of fees, what some barrister says of solicitors (or vice versa) is the journalistic equivalent of making a point by telling a “Paddy the Irishman, Paddy the Englishman…” joke.

8. The customers of the big city firms of solicitors are sophisticated users of legal services. They do not need external protection. The people who need protection are the employed (and junior partners, if such they be) solicitors of the big firms. Hand-wringing about fee padding is just that; hand-wringing. To say this, is not to condone fee padding, but the causes and the persons effectively responsible should be defined correctly. A workplace that measures the value of work, by reference only to income, is a bad workplace. The “owners” of the practice are answerable for that. Such persons do not have to institute fee padding themselves to get the benefit of it.

9. The “general public” has no opinion on the remuneration of lawyers. It is a political myth that it does. It is one of many political hobbyhorses generated to provide a subject for “public” debate to raise a political profile or deflect attention from real political failures or shortcomings.

10. Competition in the delivery of legal services is not necessarily a good thing. Indeed, “competition” in any field is not necessarily good. Who wants economic competition in the delivery of medical services? Some services should not be measured by the cost of the service. They should be measured by the quality. Unthinking economic notions like “competition” can imply a race to the bottom.

11. What economic commentator will experience the conduct and outcome of major litigation and suggest it should be judged on an “economic” perspective? Few. Litigation more closely resembles a military operation. In 1863, in the course of the US Civil War, General U. S. Grant telegraphed Colonel Murphy of the US Federal Army at Holly Springs telling him to post more guards. The Colonel went to bed, neglecting to do so. The Confederates, that night, burned Federal stores at Holly Springs to the then value of $4,000,000. A failure like that is not an economic issue; it is a personal failure. There are many current Murphys who ought to, but do not, face court martial as Colonel Murphy rightly did.

12. Even the “economists” like Mr. Charlie McCreevy and Ms. Neelie Kroes adjust themselves (quiet differently in the case of those individuals) to reality. Something can be theoretically anathema but practically acceptable to Ms. Kroes, it seems. So much for theory.

The Irish Times is on odd newspaper. It seems to aspire to be a place rather than institution. An institution implies a purpose, a place implies openness to the contingent.

We see this recently in an article on “the Legal Profession”.

The article is a review rather than a report. It is, in fact, an opinion piece.

There is a place in life for opinion pieces, but the Irish Times is overly fond of them.

This post is a modest attempt to counter the Irish Times.

1. It is, in the context of a newspaper article, pointless to speak of “the Legal Profession”. The term must refer, at least, to the collective of persons practicing law (in Ireland). The profession, as most people know, is a divided profession. There are solicitors and there are barristers. That division is a modest indication of this fact:- lawyers are disparate. They live by instructions from individual clients. They spend most of their time acting on the instructions. In short, their daily work has little to do with the collegiate aspect of the profession. Indeed, the work often requires the deliberate eschewing of “collegiality” and emphasizes the individualism implicit in a society that has privatised the practice of law. (The practice of law does not necessitate the existence of private practitioners, but that is the system we have in Ireland).

2. It is a misnomer to use the term “the Legal Profession” as a reference to the Bar Council of Ireland or the Law Society of Ireland. Neither of these bodies is the profession. Even together they are not the profession.

3. Individual wrongdoing by a solicitor or a barrister implies little about any other lawyer. This is clearly the case where the wrongdoing consists of murder or armed robbery or dangerous driving. Even if it consists of mortgage fraud, it implies nothing about other lawyers. (Mortgage fraud may imply something about human nature, but lawyers, as such, are not accountable on that score). Mortgage fraud may indicate the desirability of having mortgage processing systems that will practically eliminate mortgage fraud. If so, any case of mortgage fraud has implications for other lawyers, not because they may succumb, but because it shows up something problematic and remedial. In Ireland, until the Irish banking industry demanded change, there was a system in place that, unlike the current system, hindered mortgage fraud. Any current or recent case of mortgage fraud points to the mistake that was made in yielding to the bankers’ demand. The Bar Council or Ireland was not involved in that mistake; the Law Society of Ireland was. Ironically, the mistake was made because of pressure, ostensibly, to meet the “needs” of clients.

4. Tax fraud is not something unique to lawyers. More than mortgage fraud, it implies nothing about other lawyers.

5. Falling incomes for lawyers do have implications for them and society. Assuming Irish lawyers deliver services that Irish society needs, it is socially undesirable that they are not properly paid for the work. The morale of any normal person would be affected by lack of money and/or recognition of the value of that work. Socially undesirable things usually (almost by definition) have undesirable effects for individual members of society. In this case it may be a neglect of a client’s business; or a refusal to represent a client. More likely than not it will take the form of a growth of unmet legal needs. There is, in the view of this writer, an ocean of this in Ireland. Now, even victims of personal injury may find themselves in this ocean.

To be continued…

Presently, the new Chairman of the Bar Council will be known.
So what; who cares?

To be the Chairman of the Bar Council is to rise to obscurity, excepting the possibility of judicial preferment later, on the strength of its occupation.

Yes, indeed, few people care, excepting the candidates and, possibly, their partners. The Bar Council of Ireland makes no reference to the Chairman on its website, unlike the Bar of England and Wales. That website gives at least one clue to explain this; it says the Attorney General is the Leader of the Bar.

The mind boggles, or should.

The Attorney General is the lawyer to the Government and anomalously has a role, under the Constitution, representing the State.

The Chairman has no chance against the Attorney General in a straight contest, or even in a not so straight contest.

It should not be so. The bar claims it is independent. If that is not a claim to be independent of the Government, to what is it a reference? The Bar of Ireland should not be led by the Attorney General. He is, or ought to be seen as, the opponent of the members of the bar, possibly as the opponent of their personal interests.

Apparently, the choice of at least one barrister in casting his vote for the candidates for chairman, will be decided by his view of the candidates’ field of work. He is reported to have declared that the Bar Council needs a chairman with “blue chip briefs�?.

It’s a pity this is not a reference to underwear. It’s a euphemism for being dependent on the larger firms of solicitors for work.

Now, there is great merit in this situation, if you have just been called to the Bar. You need work; you need an income. Indeed, you need to develop some skill of use to your clients or their solicitors. Blue chip briefs deliver all this, at a price.

The price is an absence of any claim to a broad social function.

Maybe that’s the way it should be. There is little evidence that the representative bodies of the Irish legal profession perform a broad social function, but has the world collapsed as a consequence? No; but it’s not improved either.

The representative bodies of the legal profession are a part of civil society. They should not simply express the financial interests of their members, especially a clique element of their members. Even less should they express or discharge, the interests of the Government or even the State.

If you have sold the pass on these points you have no difficulty choosing your lead representative on the basis that he is a huckster with attitude.

Many civil relationships are based on law. If you go to MacDonalds for a snack, a legal relationship underlies your visit. When you buy the snack you form a contract. When you enter the premises you get the benefit of law on occupier’s liability.

The relationship between a mortgagee and a mortgagor is replete with law to regulate the rights and obligations of the parties.

It was a strange idea, therefore, to think of divorcing a mortgage from the right to receive the mortgage repayments. This was the net effect of “pooling�? home mortgages and selling them as, essentially, investments.

That wheeze, as we now know, also meant the “investors�? no longer knew the details of the mortgagor and whether he/she could make the repayments. That meant that very bad credit risks could be, and were, passed on as “investments�?, resulting in the US sub-prime mortgage crash.

The investors are now discovering that they cannot prove they “own�? the mortgage, not being the original mortgagee and not having a legal chain of title to the mortgage.

In short, they lack the evidence showing their right to seize the secured property.

In Ireland, until relatively recently, a mortgagee would receive the title deeds and the executed mortgage in exchange for the mortgage money. It would register the mortgage and schedule the title deeds and place them in a strongroom of some kind.

Now, the practice is to have the solicitor for the mortgagor also act for the mortgagee. That solicitor will be obliged to register the mortgage and schedule the title deeds and, in due course, send them to the mortgagee.

As we now know (and always knew from experience elsewhere) what ought to happen and what actually happens are not necessarily the same thing.

That is and was foreseeable. Even the effect of Murphy’s Law would ensure a deviation from the desired outcome. There are therefore, good grounds for asking if any “investment�? managers have lost their jobs for arranging (with the assistance of solicitors’ representatives) this unwise relationship with solicitors?

I have claimed an affinity for laconic speech. My favourite example is this:

Philip II of Macedon sent a message to Sparta;

You are advised to submit without further delay, for if I bring my army into your land, I will destroy your farms, slay your people, and raze your city.”

The Spartan ephors sent back a one word reply:

If”.

In “Fillums�? by Hugh Leonard the character of Doc Moone has gone to a bar and left advice for patients on a sign in his surgery;

Gone out – Feed colds, starve fevers”

Suggestions, please, for the text of an equivalent sign for a lawyer’s office.