Summary
5.212 Solicitors who choose to exercise their rights to advocate in higher courts face two restrictions which affect their ability to compete in the provision of advocacy services. First, solicitors are ineligible for the title of Senior Counsel, irrespective of their ability in the provision of advocacy services. Second, solicitors are prohibited from being the lead advocate in instances where a team of both barrister(s) and solicitor(s) is representing a client in court.
5.213 Given transparent qualifying criteria, as recommended above, allowing solicitors to become a Senior Counsel would increase consumer information and increase consumer choice. Removing the existing restrictions would
239 The Taxing Master is a statutory officer whose function is to provide an independent and impartial assessment of legal costs incurred by an individual or company involved in litigation. There are currently two Taxing Masters in Ireland, both of whom are based in Dublin. The issue of taxation is discussed further in Chapter 6.
increase the number of qualified advocates available to clients seeking legal representation and consequently would increase competition in the market for advocacy services.
5.214 Allowing solicitors to lead barristers in court would increase consumer choice and competition by increasing the range of options for how legal teams represent clients in court. For example, it would be possible for a solicitor to lead a team of barrister(s) and solicitor(s) in court, if a solicitor was best qualified and if the client so desired.
Nature of restraint
5.215 The Bar’s Code of Conduct limits eligibility for the title of Senior Counsel exclusively to barristers.241
Notwithstanding their right to appear as advocate in the highest courts, a solicitor cannot become Senior Counsel.
5.216 The Bar’s Code of Conduct also prevents a barrister from being led in a case by anyone except another barrister (or, in exceptional cases, and at the discretion of the Bar Council, a foreign lawyer).242Solicitors are
thereby prohibited from being the leader if and when a mixed group of barrister(s) and solicitor(s) presents a case in court. Unless amended, this restriction would apply even if solicitors were to be granted access to the title Senior Counsel.
Effects of restraint
5.217 Excluding solicitors from eligibility for the title of Senior Counsel restricts competition for the provision of legal services in the area of advocacy. The effect of the restriction is to deny to a supplier of legal services access to the most recognised, and State-sponsored, signal of quality.
5.218 The requirement in Rule 7.4 of the Code of Conduct, that a barrister must only be led by another barrister, means that even if a solicitor was awarded the title of Senior Counsel, he/she would not be able to avail himself/herself of the right of precedence in court whereby senior counsel leads junior counsel appearing for the same party.
Rationale offered for restraint
5.219 The Bar Council believes that the title of Senior Counsel is a mark of quality in advocacy. Given that barristers specialise in advocacy and since Senior Counsel is a mark designed to reward excellence in advocacy, the Bar Council believes the title should only be awarded to barristers.
International Experience
5.220 In England and Wales, the equivalent title of Queen’s Counsel is open to all barristers as well as to solicitors who advocate in the higher courts. In Scotland, both qualified advocates and solicitor advocates may apply to be appointed as Queen’s Counsel.
5.221 In Queensland appointment as Senior Counsel is restricted to practising barristers “unless there are exceptional circumstances”.243In New South Wales, the appointment of Senior Counsel is restricted to
practising advocates.
Views of Interested Parties
5.222 The Law Society supports the proposal that the Government should establish objective criteria for awarding the title of Senior Counsel, together with a procedure for monitoring and removing it. The Law Society also submits that solicitors should be eligible for the title of Senior Counsel.244
Analysis of the Competition Authority
5.223 The fact that the title of Senior Counsel is not awarded to solicitors restricts competition for the provision of legal services in the area of advocacy by denying one group of suppliers of legal services, i.e. solicitors, access to a State-awarded signal of quality.
5.224 There is no justification for confining the title to barristers, to the exclusion of solicitors. Solicitors are trained in advocacy during the professional part of their training, and have a statutory right of audience in all courts. 5.225 The Bar Council itself points out that the title is a mark designed to reward excellence in advocacy. There is no
reason, therefore, given transparent and objective qualification criteria, why a solicitor who excels at advocacy should not be eligible for the title.
5.226 A transparently awarded and monitored title available to solicitors would signal to clients which solicitors excel at advocacy. For example, clients who wish to avail of a “one-stop shop”, whereby a solicitor conducts an entire case from preparatory work to advocating in court, would benefit from a title which acts as a signal of quality.
5.227 In the longer term, broadening eligibility for the title of Senior Counsel would provide an incentive for solicitors to increase their provision of advocacy services. This would further increase consumer choice and competition in the market for advocacy services.
5.228 Solicitors are, however, further restricted in competing for advocacy services by the present requirement that a barrister must only be led by another barrister. A solicitor, even if he or she had the title Senior Counsel, could not avail of the right of precedence in court whereby Senior Counsel leads Junior Counsel appearing for the same party.245This restriction should also be removed.
5.229 Restricting the title of Senior Counsel exclusively to barristers, and prohibiting solicitors from leading barristers, are disproportionate measures that do not serve the interests of consumers. Allowing solicitors to hold the title of Senior Counsel would increase competition and consumer choice. Allowing the possibility of solicitors leading barristers would introduce greater flexibility in the organisation and presentation of a case in court, including, if it is the client’s preference, the option of a solicitor leading a barrister.
Solution
5.230 The Bar should amend Rule 11.1 of its Code of Conduct to broaden eligibility rules so that solicitors as well as barristers can become Senior Counsel. As discussed earlier, the Government should establish objective criteria for awarding the title of Senior Counsel, together with a procedure for monitoring and removing it. Both barristers and solicitors should be eligible to be awarded the title.
5.231 The Bar should also remove Rule 7.4 of its Code of Conduct to remove the restriction on solicitors leading barristers in court proceedings.
245 There is one other relevant situation, not discussed in this report or in the Bar Council’s or the Law Society’s submissions, namely whether a solicitor, who is not a Senior Counsel should be able to lead a Junior Counsel engaged to represent a client. Current practice, as determined by the Bar’s Rule 7.4 requires that the solicitor cannot lead the Junior Counsel. Abolishing Rule 7.4 would allow this to happen.
Recommendation 15:
Remove restrictions on solicitors advocating in court
Details of Recommendation Action By
The Bar Council should propose to the Bar of Ireland the The Bar Council amendment of Rule 11.1 of the Bar’s Code of Conduct to
remove the restriction on solicitors holding the title of December 2007 senior counsel.
The Bar Council should propose to the Bar of Ireland that The Bar Council Rule 7.4 of the Bar’s Code of Conduct, which stipulates that
a barrister shall only be led by a barrister, be abolished. December 2007 The Government should, (where it awards the title of Senior The Government Counsel and on the basis of transparent criteria consistent
with recommendation 14) award the title to both barristers June 2007 and solicitors.