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The New Legal Year 2

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 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…

Filth

Three babies in Letterkenny General Hospital have been infected with MRSA.

Clearly, the Hospital is answerable for these infections. They have occurred in the health care setting; the babies cannot be accused of any contributory negligence in the matter.

Their respective parents cannot be held responsible either; they had contact, in each case, with just one baby.

Indeed, these are absurd notions, born of desperation to dodge responsibility.

They have meaning only to medical practitioners and health care managers willing to delude themselves that they can avoid shouldering responsibility for such infections in the absence of being confronted with a video or other visual record (and therefore, presumably unchallengeable) of the mechanism of infection.

What is now clear is that the Chief Executive of Letterkenny General Hospital knows someone in the Hospital is the source of these infections.

He is obliged in criminal law to ensure that person does not cause any more infections.

Shut Up!

The sole member of the Morris Tribunal has criticized Mr. Jim Higgins MEP and Mr. Brendan Howlin TD for contacting the Minister for Justice with information relating to, inter alia, wrongdoing by members of the Garda Siochana in Donegal.

As part of their reply, in rejecting the criticism, they refer to the absolute privilege they were entitled to if they had chosen to make their disclosures in the Dail. They make the point they did not avail of this (on the basis that it might have been an abuse of the privilege).

What they do not say is that in communicating with the Minister for Justice their communication was also privileged. The privilege would not have been absolute; it would have been and was, a communication attracting qualified privilege.

Only malice could have deprived them of the benefit of the privilege. No malice has been alleged against them.

Communications on occasions of qualified privilege have been protected in law for a very long time.

The sole member of the Morris Tribunal cannot have meant to disparage that privilege and if so, it is difficult to understand his criticism of the two politicians.

A Personal Fighting, Flying, Machine for every Citizen?

Ryanair is not popular. For this writer, it’s enough to remember traveling to Venice and being dropped in Treviso. It was the “arrangementâ€? for the return flight that left everything to be desired.

Nevertheless, the Bar Council of Ireland should strike a memorial medal to the airline for its services to the legal profession.

Look at its latest litigation outing HERE.

It issued proceedings in the form of a Special Summons and got slapped down because it hadn’t proceeded by way of Judicial Review.

Is it possible that Michael O’Leary has a jaundiced view of Order 84 of the Rules of the Superior Courts as referred to HERE and HERE?

When and where and why did that happen?

In Mussolini’s Garden

This blog has previously bemoaned the lack of interest in Ireland in ideas. Strictly, what was being regretted was the failure to articulate the controlling idea; the people of Ireland, sometimes all of them, and often many of them, are not heedless of ideas – they act on them rather than voice them or consider them.

One of the most influential ideas in Ireland is the belief that the State is superior to the citizen. This idea does not have universal acceptance, but it has a very strong grip on the persons controlling public administration. It is all the stronger for being an assumed truth and never referred to, let alone justified.

The fact that the Irish Constitution contains, and is professed to contain, provisions intended to safeguard the citizen from abuses by the State or its agents, does nothing, it would appear, to attenuate the Statist belief.

Historically, the Statist view is most strongly associated with Germany. Arguably its traditional or original German proponents hold the view as a considered philosophical position. They readily express and defend their ideas of the precedence of the State over the citizen.

It is a matter of surprise that such an idea would find root in Ireland, but its home in public administration suggests its attraction; it appeals to politicians in office and public administrators generally. The exercise of power is rarely if ever a pure act. The administrator invests his/her personality into the decision or act (and judges the fortune of his/her career thereby). Any opposition is resented. Any abstract idea that belittles or diminishes the status of the citizen is welcomed. It vindicates the continued deployment of power even in the face of substantial opposition. In the balancing of citizen and State rights, the balance is not affected by opposition measured by numbers; after all, numbers cannot make what is wrong, right.

Ireland inherited from the UK a perception that the traditional marginal role of the police in the UK (and Ireland) was superior to the Napoleonic system, seen in modern times in mainland European countries in the vestige requiring strangers to report in to the local police station.

In Italy its most ironic manifestation is the absence of internet hotspots or wifi zones on the terms found in Ireland, the UK and the US – free. In Italy it is necessary to produce a passport to use an internet shop; to join a wifi network or, effectively, to use a hotspot.

Benito Mussolini’s villa in Rome was Villa Torlonia on Via Nomentana. Reputedly its garden is a good reception point for the principal wifi network of the city. But reception is available only on terms Mussolini would have understood; by the grace of the Italian State.

While that is not the situation in Ireland, we still limit the ability of the citizen to challenge the State. The principal mechanism of limitation is Order 84 of the Rules of the Superior Courts.

Mussolini would have understood and approved that.

The Long Vacation

Following a long-standing tradition, the Supreme Court, the High Court and the Circuit courts are on holiday. The holiday lasts for August and September and is appropriately called The Long Vacation.

According to Wikipedia;

In the United Kingdom the word “vacation” referred specifically to the long summer break taken by the law courts (and later universities)—a custom introduced by William the Conqueror
from Normandy where it was intended to facilitate the grape harvest. The French term is similar to the American English: “Les Vacances.” The term derives from the fact that, in the past, upper-class families would literally move to a summer home for part of the year, leaving their usual family home vacant.â€?

In Ireland grape harvesting is not to fore. It has been speculated that the tradition facilitated taking in any harvest and that gentleman farmers that were practicing barristers or judges found the same need for quitting their professional activities to bring in their crops.

The pressure of modern life probably ensures the continuation of the tradition rather than ending it. While the courts are sitting, barristers, solicitors and judges are engaged in the constantly moving process that is the formal administration of justice. The pressure of this work suggests “the front lineâ€? of warfare. Even, or particularly, in warfare it is necessary to rotate the troops out of the front line and into the rear, for “rest and recreationâ€?.

Under the Rules of the Superior Courts the obligation to deliver pleadings is suspended during the Long Vacation. Consequently, motions for judgment in default cannot arise; the great engine of confrontation that drives litigation is thrown out of gear, if not switched off entirely.

In fact it cannot be switched off completely. Urgent matters can and do arise. There is always a judge on duty to hear applications of that nature. In addition, the courts sit every fortnight or so and urgent applications may be listed before the court to be heard on those days. They are occasions to see what life would be like without the wearing of wigs, gowns or tabs by the barristers and judges, which, during terms, the forces of political and social reaction dictate.

The RIAI Contracts

The form of contract for Irish nominated building sub-contractors has featured previously HERE.

At the time I made no reference to its terms. I do now. It is badly written. It is a challenge, for instance, to find the provision under which the Main Contractor is obliged to make payment to the sub-contractor (Clause 11).

This is not good enough, given the likely value of the sub-contractor’s work and contract. The terms of the contract are not very generous to the sub-contractor either. They associate the Contractor’s obligation to pay, with the Architect’s certificates issued under the Main Contract. How and in what circumstances is the sub-contractor going to receive a copy of the certificates, or even notification of them?

There is no provision to cover this and it behooves the sub-contractor to ensure a contractual obligation on the Contractor to notify, at the very least, the sub-contractor of the issue of certificates.

The Parliamentary Draftsman (2)

It is likely I was unfair to the Parliamentary Draftsman HERE.

Who can now say what was intended by the legislation? In Ireland, the answer to that question is “the Courtsâ€?.

Unlike some other jurisdictions we do not seek the meaning of words used in legislation by, for instance, interviewing the people involved in the introduction of the legislation. In the case of Section 20 of the Proceeds of Crime (Amendment) Act 2005, if we were to follow that course we would have to interview the then Minister for Justice. But even that would not be sufficient. He did not “passâ€? the legislation; he introduced it to the Oireachtas. It was the Oireachtas that passed it.

It is not feasible to interview the members of the Oireachats to find out what they intended. Even if it were feasible to do so, it would be wrong. It would be an admission that nobody knew the meaning and purpose of the legislation until the views of those members was ascertained. Even the idea of something being “ascertainedâ€? is a problem.

Who will formulate the question to be put to the members?

Who will interpret the confused, inarticulate replies? (Some, at least, will be such).

No, indeed. We need the principles of Statutory Interpretation.

A golden age of Statutory Interpretation has just opened in Ireland.

The future is bright for its practitioners.

The Parliamentary Draftsman

The people who draft legislation are unusual. The job is difficult and requires long training, experience and talent. Inevitably, mistakes are sometimes made.

Section 20 of the Proceeds of Crime (Amendment) Act 2005 looks like a mistake. The writing is not elegant; the reverse.

To understand Section 20 it is actually necessary to cut and paste the amendments set out in Section 20 into Section 38 of the Criminal Justice Act 1994.

Section 38 had, originally, a simple aim; to confiscate money entering or leaving the country and connected with drug trafficking.

Somebody, (probably the Minister for Justice etc.) decided to expand it to apply to cash connected with any criminal activity. In addition, it seems it was intended to allow confiscation regardless of the importation or exportation element.

So, Section 20 of the Proceeds of Crime (Amendment) Act 2005 inserted two new sub-sections into Section 38 of the Criminal Justice Act 1994.

However, no amendment was made to Section 38 (2) of the Criminal Justice Act 1994. Continued retention or confiscation of the cash was permissible only on the order of a District Court judge. Before making the order the judge had to be satisfied of certain matters (by evidence from the Gardai). That evidence included the requirement to show the cash was being imported or exported.

This renders the new provision Section 38 (1A) VERY difficult to rely on; most such cases would have no element of importation or exportation, and yet it is only when evidence showing such element is adduced that the sub-section becomes useful to the prosecution.

38.—(1) A member of the Garda Síochána or an officer of customs and excise may seize and, in accordance with this section, detain any cash which is being imported into or exported from the State if its amount is not less than the prescribed sum and he has reasonable grounds for suspecting that it directly or indirectly represents any person’s proceeds of, or is intended by any person for use in, drug trafficking.

(2) Cash seized by virtue of this section shall not be detained for more than forty-eight hours unless its detention beyond forty-eight hours is authorised by an order made by a judge of the District Court and no such order shall be made unless the judge is satisfied—

( a ) that there are reasonable grounds for the suspicion mentioned in subsection (1) of this section, and

( b ) that detention of the cash beyond forty-eight hours is justified while its origin or derivation is further investigated or consideration is given to the institution (whether in the State or elsewhere) of criminal proceedings against any person for an offence with which the cash is connected.

(3) Any order under subsection (2) of this section shall authorise the continued detention of the cash to which it relates for such period, not exceeding three months beginning with the date of the order, as may be specified in the order, and a judge of the District Court, if satisfied as to the matters mentioned in that subsection, may thereafter from time to time by order authorise the further detention of the cash but so that—

( a ) no period of detention specified in such an order, shall exceed three months beginning with the date of the order; and

( b ) the total period of detention shall not exceed two years from the date of the order under subsection (2) of this section.

(4) Any application for an order under subsection (2) or (3) of this section may be made by a member of the Garda Síochána or an officer of customs and excise.

(5) At any time while cash is detained by virtue of the foregoing provisions of this section a judge of the District Court may direct its release if satisfied—

( a ) on an application made by the person from whom it was seized or a person by or on whose behalf it was being imported or exported, that there are no, or are no longer, any such grounds for its detention as are mentioned in subsection (2) of this section, or

( b ) on an application made by any other person, that detention of the cash is not for that or any other reason justified.

(6) If at a time when any cash is being detained by virtue of the foregoing provisions of this section—

( a ) an application for its forfeiture is made under section 39 of this Act; or

( b ) proceedings are instituted (whether in the State or elsewhere) against any person for an offence with which the cash is connected,

the cash shall not be released until any proceedings pursuant to the application or, as the case may be, the proceedings for that offence have been concluded.

20.—Section 38 of the Act of 1994 is hereby amended—

(a) by the substitution of the following subsections for subsection (1):

“(1) A member of the Garda Síochána or an officer of customs and excise may search a person if the member or officer has reasonable grounds for suspecting that—

(a) the person is importing or exporting, or intends or is about to import or export, an amount of cash which is not less than the prescribed sum, and

(b) the cash directly or indirectly represents the proceeds of crime or is intended by any person for use in connection with any criminal conduct.

(1A) A member of the Garda Síochána or an officer of the Revenue Commissioners may seize and in accordance with this section detain any cash (including cash found during a search under subsection (1)) if—

(a) its amount is not less than the prescribed sum, and

(b) he or she has reasonable grounds for suspecting that it directly or indirectly represents the proceeds of crime or is intended by any person for use in any criminal conduct.�,

and

(b) by the insertion of the following subsection after subsection (3):

“(3A) Where an application is made under section 39(1) for an order for the forfeiture of cash detained under this section, the cash shall, notwithstanding subsection (3), continue to be so detained until the application is finally determined.â€?.

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