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The New Legal Year 1

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…