Bar Council of Ireland

Bar Council of Ireland, Dublin

The Bar Council of Ireland is the regulatory and representative body for barristers practising law in the Republic of Ireland. The Council is composed of twenty-five members composed of twenty elected members, four co-opted members and Attorney-General who holds office ex officio. The elected members are elected in annual elections in which ten members are elected for two-year terms. Each year five members are elected from amongst senior counsel and five from amongst junior council.

The Bar Council operate the Law Library which has premises in the Four Courts, Church Street and in the Criminal Courts of Justice in Dublin, and a smaller library in Cork. Membership of the Law Library is, in effect compulsory for barristers wishing to practise in the Republic, and is often used as a metonym for the Irish Bar itself. Prior to the creation of the Bar Council in 1897, barristers in Ireland were only loosely organised through their occupation of a physical premises of the Law Library.

Before 1984, the Bar Council of Ireland had no written code of conduct. Since 1984, in response to outside pressures from the Irish government and various regulatory authorities, the Bar Council of Ireland has produced various written codes of conduct and disciplinary codes. In March 2011 the National Competitiveness Council said the legal profession in Ireland and the services it provides have come to be seen as overpriced, unaccountable and archaic. However, change is on the way, following the commitment by Ireland under the EU/IMF Memorandum of Understanding no longer to allow the legal profession to run its own affairs.

Famous Barristers

Patrick Pearse BL

Of the 10 Taoisigh since the founding of the State, six trained to be barristers: John A Costello, Liam Cosgrave, Jack Lynch, Garret FitzGerald, Charles Haughey and John Bruton. Mary Robinson, Ireland's first female president, was also a successful barrister before pursuing a career in politics and then human rights. President Mary McAleese was a barrister and law lecturer. Seán MacBride, who was the only person to be awarded both the Nobel Peace Prize and the Lenin Peace Prize, was also a barrister. Of the six Irish Commissioners since 1973, four have been barristers: Richard Burke, Michael O'Kennedy, Peter Sutherland and David Byrne. Patrick Pearse, the leading Irish revolutionary of the twentieth century, had an early interest in the law, trained to be a barrister at the King’s Inns and was called to the Bar in 1901. He practised at the Bar for a time, but instead of pursuing a legal career he decided to spend his life challenging the existing authority in the country. Edward Carson,famous orator and Unionist politician, began his career as a barrister. The first leader of the Irish Parliamentary Party was Isaac Butt, one of the most skilled barristers of the day. The most important Irish politician of the nineteenth century, Daniel O’Connell was one of the most distinguished barristers of his day. Robert Emmet, Irish revolutionary, studied at the King’s Inns; the brilliance of his speech from the dock captured the popular imagination and created a powerful and enduring legend. Other famous Irish barristers include Wolfe Tone and Henry Grattan.

Regulation

The Bar Council of Ireland's code of conduct was changed in 13 March 2006, in response to the Irish Competition Authority's critical stance, in a preliminary report on the barristers' profession, toward the Bar Council of Ireland's anti-competitive or restrictive practices. In December 2006, the Competition Authority produced a detailed report criticising many of the anti-competitive barriers and restrictive practices created and enforced by the Bar Council of Ireland. Three months later, the Government's Better Regulation Unit (a branch of the Department of the Taoiseach) found that there was no statutory basis for the Bar Council's setting and enforcing of professional standards for Irish barristers.

Barristers were allowed to advertise their services for the first time in 2008, subject to guidelines published by the Bar Council. The information may be illustrated by a "passport-style photograph of the barrister."

Notwithstanding its status as a private, unincorporated association the Bar Council has been designated as one of the state's two competent authorities for the regulation of the legal profession within the state (the other being the Law Society of Ireland. These regulations define a barrister as "a person who has been called to the Bar of Ireland and who complies with the requirements of the Bar Council as to professional practice".

Difference between the “Bar Council of Ireland” and the “Law Library”

The “Law Library” predates the creation of the Bar Council of Ireland by up to 100 years. The Law Library was originally a small room attached to the Four Courts intended to accommodate barristers before and between court appearances (before there was a Law Library, barristers simply stood around the main hall of the Four Courts to attract clients). Today, the Law Library extends to a collection of rooms behind the main Four Courts building (owned and maintained by the Office of Public Works), as well as two large stand-alone buildings on nearby Church St, and a small law library in Cork city, owned by Law Library Properties Ltd, a private company. Today, the Bar Council of Ireland administers the various Law Library premises, although as it is not a formal legal entity and so cannot own property, it relies on some of its barrister-members to act as directors of Law Library Properties Ltd.

Why are there no barristers chambers in Ireland?

Following on from their close historical linkages to the English Inns of Court (until 1885, all intending Irish barristers were obliged to “keep terms” in an English Inns of Court before being called to the Irish Bar and being entitled to practise as barristers in Ireland), for much of the nineteenth century it appeared that a chambers system for barristers would catch on in Ireland. Initially, the benchers of King's Inns themselves made plans to build chambers for Irish barristers, in the vicinity of Dublin’s Henrietta St. From about 1793, the benchers went so far as to decide to have chambers built, both by the King's Inns and by barristers who would lease building land from the benchers for their own chambers. Deposits were levied annually from new barristers and solicitors, and rules were even agreed by the benchers for the regulation of tenancies by Irish barristers in chambers. Despite the levying of barristers by the benchers however, due to practical objections raised by architect James Gandon concerning the difficulty of building the main King's Inns building at the same time as private chambers, barristers’ chambers were never built by the benchers and the idea of chambers for Irish barristers has languished to the present day. However, in recent times there would appear to be an increasing number of de facto Irish barristers’ chambers coming into existence in private and segregated premises adjacent to the Four Courts, such as Arran Square, the Capel Building, the Ormond Building all in Dublin along with Washington Street chambers in Cork and Bank Place in Limerick.

Analysis and criticism of the Bar Council/Law Library

In 1990, the Irish Government's Fair Trade Commission, which had spent the previous four years examining the legal profession in Ireland, presented its report on the legal professions to the Minister for Industry and Commerce.

The Commission found that the Bar Council's requirement that practising barristers must be members of the Law Library was "restrictive and unfair, and against the common good. The requirement should be removed, failing which it should be prohibited by means of a Restrictive Practices Order."

The Commission said that

[t]he insistence by the Bar Council that practising barristers should be members of the Law Library seems to the Commission to be unacceptable, in view of the fact that it restricts the right to practice of someone who has been called to the Bar and thus conferred with the right to practice in all the courts of Ireland... We envisage a situation where membership of the Law Library would be optional.

It went on:

The requirement that a person will not practice as a barrister unless he becomes and remains a member of the Law Library [introduced in 1985] should be abolished. Discriminatory entry fees to the Law Library and discriminatory treatment of persons who had been called to the Bar in the past and who wish to practice and/or join the Law Library, should also be abolished. The King's Inns and the Bar Council, as the case may be, should be invited to delete these requirements, failing which they should be removed by legislation. The Government should also cease to issue letters patent by which a barrister may be called to the Inner Bar, and this would require no amending legislation. While it might be necessary to allow existing Senior Counsel to retain the title and while the Bar should not be prohibited from conferring the title of Senior Counsel upon any barrister as a mark of honour, there should be no rules as to the type of work done or the fees charged by Senior Counsel. All references to Senior Counsel of this nature in the existing rules of the Bar Council should be deleted, preferably by the Bar Council itself, failing which prohibitory legislation would be required.

It concluded:

The Commission does not consider that membership of the Law Library is essential for practice as a barrister - both the Bar in Cork and the English Bar, for example, manage without one - nor does it consider that any of its recommendations... would lead necessarily to the dissolution or diminution of the Law Library. If there are important functions to be performed by virtue of the institution of the Law Library - such as a repository of reference books and a place where legal knowledge and wisdom can be exchanged - then it will continue in being irrespective of where barristers actually do their work, and irrespective of how barristers are organised to offer their services. Barristers could run well-equipped offices as well as use the Law Library, and, given the low cost of operating exclusively from the Law Library, it is likely that many barristers would continue to use it as their exclusive or primary place of work.

Distinction between junior and senior counsel

See also: King's Counsel, Senior Counsel, and patent of precedence

In Dáil Éireann on 13 June 2000, Jan O'Sullivan asked "when the Government first granted patents of precedence to barristers at the Irish Bar; the historical circumstances giving rise to the decision to make the grant of patents of precedence to barristers at the Irish Bar by the Government; the basis for the grant of patents of precedence by the Government to barristers at the Irish Bar; and if he will make a statement on the matter.” Taoiseach Bertie Ahern replied:

Since the establishment of the State, the Government has granted patents of precedence to barristers leading to the call to the senior Bar by the Chief Justice. Historically, at common law, the grant of silk was an exercise of the royal prerogative. The transfer of functions which had previously been dependent on the royal prerogative, to the Executive Council of Saorstát Éireann was clarified by section 2 of the Executive Powers (Consequential Provisions) Act, 1937. The function is now exercised by the Government as successor to the executive council and is no longer dependent on the royal prerogative.

On 4 July 2001 Ahern stated the Government had "no plans to change the procedures for the granting of patents of precedence.”

In 1990, the Fair Trade Commission reported

[t]he position of Senior Counsel appears to the Commission to be somewhat unusual... Solicitors cannot become Senior Counsel even if they practice as advocates in the Superior Courts. The appointment of Senior Counsel is not based upon obvious merit and certainly not upon qualifying tests of any sort. The appointment procedure is not transparent, and the fact that appointment is made by the Government in a profession which proudly defends its independence, and is not regulated by statute, appears to be highly anomalous. The Commission considers that the existing formal distinction between Senior and Junior Counsel has features which are restrictive and discriminatory. If certain barristers wish to limit the type of work which they do, and to set their own high fees, they should be free to do so, and to make this information known directly to their clients, without the need for the artificial differentiation by title. Leading barristers should become known by their ability and reputation, as in other professions, rather than by being identified in some mysterious fashion by the Government. The legal system could function perfectly satisfactorily without the titular honour of Senior Counsel... The Commission recommends, therefore, that the appointment of Senior Counsel should not be made by the Government. At the same time, if the title of Senior Counsel were to be conferred by the profession itself as a mark of honour only, with no rules, guidelines or accepted practices as to the type of work done or the level of fees charged by Senior Counsel, the worst features of the system would be eliminated, and the practice would be unexceptionable.

The Commission concluded

[t]he Government should also cease to issue letters patent by which a barrister may be called to the Inner Bar, and this would require no amending legislation. While it might be necessary to allow existing Senior Counsel to retain the title and while the Bar should not be prohibited from conferring the title of Senior Counsel upon any barrister as a mark of honour, there should be no rules as to the type of work done or the fees charged by Senior Counsel. All references to Senior Counsel of this nature in the existing rules of the Bar Council should be deleted, preferably by the Bar Council itself, failing which prohibitory legislation would be required.

In 2009, the Special Group on Public Service Numbers and Expenditure Programmes said that it had

looked at the difference in the level of legal fees payable to junior and senior counsel. The Government, at its discretion, grants Patents of Precedence at the Bar on the recommendation of an Advisory Committee consisting of the Chief Justice, the President of the High Court, the Attorney General and the Chairman of the Bar Council. The Group is of the view that this distinction is unnecessary and contributes to higher legal costs payable by the State. Other jurisdictions function adequately without this hierarchy of legal professionals. The Group notes that this practice applies across the entire legal industry but considers that the removal of this distinction is unlikely to have a significant negative impact on the legal system

The Group recommended that "the abolition of the artificial distinction between junior and senior counsel should be pursued as soon as possible."

See also

• King's Inns, trains and regulates entry of barristers in Ireland

References

• "Solicitors & Barristers – Final Report”" (PDF). Dublin: Competition Authority. 11 December 2006. http://www.tca.ie/images/uploaded/documents/Solicitors%20and%20barristers%20full%20report.pdf. 
• Fair Trade Commission (1990). Report of Study into Restrictive Practices in the Legal Profession. Dublin: Stationary Office. 

External links

• Bar Council of Ireland/Law Library combined site