Dáil Éireann debate -
Wednesday, 11 Dec 1996

Vol. 472 No. 7

Adjournment Debate. - Applications for Legal Assistants.

Mr. Hughes

Advertisements were recently placed for the positions of third and fourth legal assistants in the Office of the Attorney General. It was stated in the conditions of application that applicants must be barristers and have practised in the State for at least seven years for the post of third legal assistant, or at least four years for the position of fourth legal assistant.

The report of the Select Committee on Finance and General Affairs on the Office of the Attorney General, which was published on 15 February 1996, stated that the position of legal assistant should be open to both branches of the profession. The committee, as stated in the introduction to the report, considered it timely to examine issues in relation to the Office of the Attorney General in light of difficulties in that office in late 1994. It is clear that a major recommendation of a Dáil committee is being ignored by the Office of the Attorney General. Poor administrative arrangements in that office led to the difficulties which preceded the report of the Select Committee on Finance and General Affairs.

While I have the height of respect for barristers and recognise their special skills and experience which come from practice at the Bar, one can hardly say they are better administrators than members of the solicitors' profession who use their acquired skills on a daily basis. Last year, for the first time, solicitors were appointed to the Office of the Parliamentary Draftsman which is under the direction of the Attorney General. The Court and Court Officers Act, 1995, also allows solicitors of ten years' experience to be eligible for appointment as judges of the Circuit Court. This was previously the preserve of the barristers' profession. As a result, three solicitors now sit on the Circuit Court bench. Those members of the solicitors profession who serve four or more years on the Circuit Court bench are also eligible for appointment to the superior courts. Furthermore, a working group met last Tuesday to consider all aspects of solicitors' eligibility for appointment to the position of judge of the superior courts.

What is it about the work of a legal assistant in the Office of the Attorney General which renders the entire solicitors' profession unsuitable for consideration for one of these posts? I am not suggesting that solicitor applicants should be given more favourable treatment but such public service positions should be open to competition from both branches of the profession. This would broaden the pool of talent available from which to select.

The duties of legal assistant referred to in the advertisement are not such as to debar well educated solicitors from applying. Lawyers in other areas of the public service, such as those in the Department of Foreign Affairs, are doing work of a broadly similar nature and solicitors are eligible for appointment to those posts. Many solicitors with ten or 15 years' experience work for demanding, high powered corporate clients and they may have represented their firms internationally. He or she might be an expert in legal draftsmanship, have conducted arbitrations on their own, have acted as an inspector under the Companies Act or been appointed by the Government to conduct legal inquiries. However, they are all ineligible to apply. On the other hand, a person who has sat in the Bar library for four years, without extensive experience other than seeking adjournments or making minor applications, can apply.

This restrictive practice must be ended and all positions must be open to both branches of the profession. When this happens, those charged with the responsibility of selecting candidates for appointment will be free to exercise their discretion in relation to the experience of the candidates and to decide whether a particular individual is suitable.

At the bottom of the advertisement, which was published in the national press, the Civil Service Commission stated that it is committed to a policy of equal opportunity. The Civil Service Commission may be committed to such a policy but it appears the Attorney General is not.

Minister of State at the Department of the Taoiseach (Mr. J. Higgins)

I thank the Deputy for raising this matter. I understand the Deputy's concern arises from a letter he and other solicitor Members of the Houses of the Oireachtas received from the Director General of the Incorporated Law Society concerning this issue. The Attorney General also received a letter from the Director General of the Law Society dated 26 November 1996 which related to "the recruitment of barristers only for Legal Assistant positions in the Office of the Attorney General". The Attorney General acknowledged receipt of this letter in a letter to the Director General dated 3 December and, in a letter dated 6 December, the Attorney General outlined in considerable detail the reasons for the approach adopted.

He said the following lawyers work to, or under the direction of, the Attorney General: legal assistants in the Office of the Attorney General — there are 19 such positions and recruitment is confined to barristers; the Office of the Parliamentary Draftsman — there are 12 positions in this office and recruitment is open to barristers and solicitors; the Chief State Solicitor's Office — there are 50 permanent positions and, at the moment, approximately another ten contract positions in this office which are all confined to solicitors; country State solicitors — there are 32 positions around the country in this part of the service, all of them confined to solicitors. Out of the 123 lawyer positions in the service, 12 are open to barristers and solicitors, 19 are confined to barristers and 93 are confined to solicitors.

One cannot help feeling that at the heart of this debate is an unresolved question in the mind of the Incorporated Law Society as to whether a unified profession would be a good thing. The fact that there may be areas where the services provided by both professions overlap, or where arguably a client would have equal confidence in a particular task being performed by a barrister or solicitor, does not take away from the fact that every practitioner in both professions knows there are areas of work which are more properly and better performed by solicitors on the one hand, and other areas where the tasks are better and more properly performed by barristers.

It is important that if we are to progress in discussing this matter we should correctly understand the Incorporated Law Society's view on this question. Is it the society's view that a dual profession is best and that there are areas of legal practice which are better performed by barristers, on the one hand, and other areas where the tasks are better performed by solicitors? This question has not been answered by the Incorporated Law Society.

In the most general terms, barristers provide specialist legal advice and services of advice and representation, both oral and written, in connection with litigation. The majority of the practitioners in both professions, with the possible exception of a small number of large solicitor firms which might reasonably expect to have enough work for full time advocates on their staff, favour the current arrangement. If the society has a different view, it should correct this impression.

The Attorney General is also of the view that both the Bar and the solicitors' profession have, in recent years, improved the arrangements whereby established practitioners can transfer from one profession to another. Thus, a barrister who, after a number of years' practice discovers that he would prefer to be doing the work of a solicitor, can change and vice versa. There are a number of examples in both professions of persons who now function as highly successful solicitors or barristers having commenced their career in the other branch of the profession.

If one accepts the fundamental view that there is different work for barristers and solicitors and that we are better off with a dual profession — if this is not accepted we are facing a much greater controversy — then it is a matter of deciding whether any particular employer requires skills which are typically to be found in one profession rather than the other. There are other differences between barristers and solicitors to which reference can be made. Since the early 1970s solicitors have had rights of audience in all courts but they have been rarely exercised.

The work of a legal assistant is concerned with specialist, sometimes highly specialist, advisory work and advising on the conduct of litigation. These, in the Attorney General's view, are matters where the experience of having been a practising barrister is much more material than that of having been a practising solicitor. Even the Incorporated Law Society acknowledges that in certain areas of legal work it is appropriate that barristers would be engaged. The Attorney General observes that the Incorporated Law Society was represented by a number of distinguished barristers in a recent high profile High Court matter. Neither, however, is this confined to litigation. Thus, from time to time, the society obtains specialist advice from barristers on matters which are not immediately, primarily, or ever will be the subject of litigation. Conversely, barristers regularly retain solicitors to advise upon and conduct important aspects of their personal legal affairs. Most barristers never have to retain another barrister on a professional basis; almost every barrister will retain a solicitor on a number of occasions during his life.

In the Chief State Solicitor's office a whole section is given over to advisory work. It is not the case that solicitors are not asked to perform advisory work. When files come to the Attorney General's office, they frequently have been advised on, in the first instance, by a solicitor, which mirrors the practice in the private sector.

The Attorney General is of the view that practice at the Bar allows a familiarity with not just the formal rules by which the court operates, but the informal understandings and practices which are a part of every legal system. Someone coming to this office after five or ten years practice at the Bar will have an understanding of litigation, of how particular judges are likely to treat particular issues and a special knowledge of the skills, and strengths and weaknesses, of practitioners at the Bar.

In those instances where legal advice — which is more properly within the customary professional remit of a solicitor — is required, or where input from a solicitor's vantage point would be valuable or helpful, he has no hesitation in calling on the advisory section of the Chief State Solicitor's office to furnish that advice.

The Bar continues to provide highly qualified candidates with experience of the actual conduct of litigation and of the courts and the judges. It is the Attorney General's view that it is that sort of advice he requires from the 19 legal assistants who work closest to him.