Should all solicitors and barristers be state employees??

musings

In my experience with the legal system in this country, the system far too focused on maximizing the amount of money that can be extracted from a client.

Would we have a better country if all solicitors were employed by the state (as judges are) and paid a salary of €XX,XXX per year and had no vested interest in who wins or loses? Would it focus their mind on justice rather than their own remuneration?

Reloc8

Your experience is of course your own experience and can never be disproven on here. In the meantime :-

Would you be happy to be represented in court in a case against the state where your counsel/solicitors were state employees ?

Would you be happy to be represented in court against a significantly bigger entity than you where your counsel/solicitors were employees of the state ?

Would you be happy for the state in all cases to be represented by its employees, and those who it was against to likewise be represented by its employees ?

(nb barristers/solicitors in receipt of legal aid are not state employees)

musings

Reloc8 wrote: »

Your experience is of course your own experience and can never be disproven on here. In the meantime :-

Would you be happy to be represented in court in a case against the state where your counsel/solicitors were state employees ?

Would you be happy to be represented in court against a significantly bigger entity than you where your counsel/solicitors were employees of the state ?

Would you be happy for the state in all cases to be represented by its employees, and those who it was against to likewise be represented by its employees ?

(nb barristers/solicitors in receipt of legal aid are not state employees)

I don't think it would make a difference because at present, the judiciary are state employees and are supposed to be impartial.

At present we have a scenario where the state has virtually unlimited resources and if an ordinary citizen does take a case against the state or a local authority, the state will appeal against you until you are broke and/or scared of the legal fees. State employed solicitors would be a better solution in this case.

Reloc8

The judiciary are indeed expected to be impartial in all cases in which they deal - you might be aware of in particular their much touted financial independence.

Would you be happy enough that the state solicitor representing you in your civil case could tell you not to appeal the decision against you and that you would then have no solicitor to represent your appeal ? Or are you saying that the state solicitor representing you would just have to blindly follow all client's instructions, issue every writ that everyone wants to issue whether there was merit in it or not, appeal everything/contest everything just because the client wanted to do so ?

Or would the state solicitor have to/get to decide which cases and appeals get taken or defended ?

In soviet russia court appeals YOU comrade.

musings

Reloc8 wrote: »

Would you be happy enough that the state solicitor representing you in your civil case could tell you not to appeal the decision against you and that you would then have no solicitor to represent your appeal ?

Appeals are made based on changed circumstances in a case. Most sensible people only appeal a case when there is a good chance of the new evidence changing the judgement in their favour. I merely want to see that a persons means have no influence on their ability to get justice.

The legal system was set up to interpret and implement laws. Somewhere along the line it has become an industry which creates ambiguity.

I can't see how it would be a bad thing for the legal system to take the monetary incentive away from the legal profession.

234

musings wrote: »

Appeals are made based on changed circumstances in a case. Most sensible people only appeal a case when there is a good chance of the new evidence changing the judgement in their favour. I merely want to see that a persons means have no influence on their ability to get justice.

The legal system was set up to interpret and implement laws. Somewhere along the line it has become an industry which creates ambiguity.

I can't see how it would be a bad thing for the legal system to take the monetary incentive away from the legal profession.

First, there are many reasons why a case should be appealed; an obvious one is if the judge erred on the law, or misdirected the jury.
Secondly, our legal system was not set up to interpret and implement laws. In fact our legal system is what creates laws in the form of legislation from the Oireachtas and case law from the courts. Our legal system developed as a means of dispute resolution. If you go back 200-300 years there was very little legislation and most of the law was created by the courts in the form of precedent.

musings wrote: »

I don't think it would make a difference because at present, the judiciary are state employees and are supposed to be impartial.

At present we have a scenario where the state has virtually unlimited resources and if an ordinary citizen does take a case against the state or a local authority, the state will appeal against you until you are broke and/or scared of the legal fees. State employed solicitors would be a better solution in this case.

In the situation you are describing it would actually be easier for the state to appeal as they would not have to pay any increased costs to their legal representatives.
While tactical appeals by the state are a problem our costs system helps with this to some extent. Since costs are paid by the unsuccessful party a person who is certain of their case can sue the state and appeal as high up as they can sure in the knowledge that they will not have to pay their costs when they win.

musings wrote: »

In my experience with the legal system in this country, the system far too focused on maximizing the amount of money that can be extracted from a client.

Would we have a better country if all solicitors were employed by the state (as judges are) and paid a salary of €XX,XXX per year and had no vested interest in who wins or loses? Would it focus their mind on justice rather than their own remuneration?

Our legal system is adversarial in nature rather than the inquisitorial system that is found in many civil law jurisdictions. Our system is based on the idea that the tribunal who makes a determination will of course be impartial but the legal representatives will have strong vested interests- their clients. Barristers and solicitors have to represent their clients to the best of their abilities and solicitors can be sued if they are professionally negligent. This absence of impartiality on the part of the representatives is actually the best way to ensure that justice is done. As Lord Eldon LC noted in Ex parte Lloyd, "truth is best discovered by powerful statments on both sides of the question".

johnnyskeleton

Firstly, I take it that you only mean this in circumstances where the cases is citizen vs. state. Clearly the government should not have to foot the bill for private civil, family or corporate disputes as that would be imposing a massive burden on the state.

Second, let's look at the system we have at present:
a) if you have limited means and are facing a criminal charge, you get legal aid;

b) if you have a good case against the state, or even a 50:50, there will be many lawyers who are prepared to take the case on a no win no fee basis;

c) if you have a case that is likely to lose, but concerns issues of public importance or civil rights, you will most likely get some liberal lawyers taking the case for you on a pro bono basis;

d) if your case is not likely to succeed and has no public importance, then you probably shouldn't be taking the case anyway, but if you insist on taking such a case, why should the state and/or the lawyers bear the cost/risk? You will get a legal team to take a stateable, if unlikely to succeed case if you provide them with a reasonable fee to compensate them for their time. Obviously if you are of limited means you will not have to stump up €50k in advance, but you might have to pay a couple of grand to pay for outlay etc.

Third, let's look at what would happen in the above scenarios if all criminal state side, constitutional and planning cases were litigated through employees of the state:

a) solicitors and barristers will act for you in the criminal cases, but because they are on a fixed salary and don't get any benefit from getting you off or getting you out of jail, there is no monetary incentive for them to spend much time on your case. I'm not saying the lawyers will deliberately be lazy, but what will happen is that the funding to defence lawyers will keep being cut and cut, while the prosecution gets more and more funding, until you have say 100 barristers and 200 solicitors prosecuting but only 30 barristers and 50 solicitors defending. The defence will be completely overworked and, most probably, under paid. Further, as the state employs them but you don't, they will not exactly be on your side because while they might meet you for a few days doing your case, they will have to work with the state every single day;

b) similar considerations arise here. Supposing that you have discovered a problem in tax law that means that the government has no power to collect tax and that this is a great case that is very likely to win. Do you think that your government appointed lawyer is going to be particularly keen to challenge that act? Again, lets assume they give you the correct advice on the law - even that is still not certain as to whether you should take a case or not. The element of opinion comes in whenever it comes down to whether to fight or not, because nothing is ever certain in litigation. Therefore, who would you rather have fighting your corner - a lawyer who has a vested interest in winning your case, or a lawyer whose salary depends on you losing your case.

c) it is entirely possible that if the government had a choice of lawyers to act in human rights cases, that instead of chosing those who actually believe in protecting the rights of the individual, they would choose those who believe in the rights of the state. In this scenario your case is unlikely to succeed and you will be told of that. But, while a private solicitor may take the case anyway just to show the state that they don't agree with what's happening, the state appointed lawyer would say that they think it is likely to lose and refuse to take your case. Then you're snookered and, unlike a refusal in court, you have no appeal and no redress.

d) state appointed lawyers will never take these cases. Maybe that's a good thing.

Fourth, the reality of the situation is that approximately 90% of serious criminal cases are legal aid cases, the remaining 10% are very wealthy individuals. Why should the state pay for a millionaire's defence?

Fifth, there are currently 4 categories of persons who take cases against the state:
1) people who feel they have been wronged and have little or no money;
2) people who feel wronged, have money and are prepared to risk their money for their convictions;
3) politicians or political activits trying to prove a point;
4) very wealthy people who can afford to bring an unsuccessful case.

It's difficult to see how anyone falls outside of those categories. I suppose someone who feels slightly miffed at the government but doesn't want to risk their life savings bringing them to court. But that's a decision they can make. They also have redress by way of the many ombudsmen and complaints bodies. If they really feel strongly about their case, they shouldn't have a problem getting a private solicitor to deal with it. If they don't feel that strongly about it, well again, why should the state have to pay for frivolous cases against them that the individual doesn't really believe in themselves, or at least believes in them until it is time to dip their hand in their pocket?

So maybe give us a specific example of how you perceive justice is not being done in the current system. Because your system is much more likely to lead to injustice than the present one.

Jo King

musings wrote: »

In my experience with the legal system in this country, the system far too focused on maximizing the amount of money that can be extracted from a client.

Would we have a better country if all solicitors were employed by the state (as judges are) and paid a salary of €XX,XXX per year and had no vested interest in who wins or loses? Would it focus their mind on justice rather than their own remuneration?

So we move to a system which will be far too focussed on maximising the salaries, allowances and promotional opportunities and work life balance of the legal practitioners? This country needs fewer civil servants not more.

musings

Here is one scenario I know of, where the current system fails

Man A is a PAYE worker with an average standard of living, who was left the farm of his late uncle (no will), which included a house. A friend of his uncle
(Man (a man with nothing to his name) fabricates a story that Man a's uncle promised him the house of the farm after his death.

This man lodges a claim for the house.
Man B has an extremely weak case, however he is proceeding with the claim.
Man A is intent on defending it until his solicitor informs him of how it all works.
Solicitor for Man A informs him that while Man B has a very poor case, he can bring him all the way to the high court clocking up all the fees
he wants as Man B has no assets to lose. Man A still runs the risk of loosing the case despite his weak opponent.
Man A has a lot to lose as he has substantial assets. He could lose the house and end up paying both his and the other sides costs.

It is therefore recommended that Man A should take the least risky solution and make a settlement with Man B. Which he duly does.
Result: Man B gets paid for something which we all no he is not entitled to.


Who thinks this was a fair outcome? Would it not have been correct for this to be brought to court and tested? It wasn't simply because of the costs involved.

The currrent system is biased in favour of the client with more resources or no resources. The man in the middle (ie the majoriy of people) is at a disadvantage.

This type of scenario is far from uncommon, especially in the case of Personal injury.

Even regulated legal fees could go along way to improving the system.

johnnyskeleton

musings wrote: »

Here is one scenario I know of, where the current system fails

Man A is a PAYE worker with an average standard of living, who was left the farm of his late uncle (no will), which included a house. A friend of his uncle
(Man (a man with nothing to his name) fabricates a story that Man a's uncle promised him the house of the farm after his death.

This man lodges a claim for the house.
Man B has an extremely weak case, however he is proceeding with the claim.
Man A is intent on defending it until his solicitor informs him of how it all works.
Solicitor for Man A informs him that while Man B has a very poor case, he can bring him all the way to the high court clocking up all the fees
he wants as Man B has no assets to lose. Man A still runs the risk of loosing the case despite his weak opponent.
Man A has a lot to lose as he has substantial assets. He could lose the house and end up paying both his and the other sides costs.

It is therefore recommended that Man A should take the least risky solution and make a settlement with Man B. Which he duly does.
Result: Man B gets paid for something which we all no he is not entitled to.


Who thinks this was a fair outcome? Would it not have been correct for this to be brought to court and tested? It wasn't simply because of the costs involved.

The currrent system is biased in favour of the client with more resources or no resources. The man in the middle (ie the majoriy of people) is at a disadvantage.

This type of scenario is far from uncommon, especially in the case of Personal injury.

Even regulated legal fees could go along way to improving the system.

1. You still haven't explained why the state should intervene in a civil claim between two private citizens and pick up the cost for that.

2. The system does not fail in this regard. Under no circumstances is Mr. A obliged to either obtain legal advice or settle the case. He is perfectly entitled to go into court himself as a lay litigant and if the case is s as spurious as is made out then he should have no problem, especially as the other person is probably unrepresented as well.

3. We only have your word for it that Mr. B is fabricating his story. In the above scenario, if Mr. A settles, then there must be some element of truth to the claim. Certainly, it is not as though some random person is suing for some random reason. If the decision to settle was based purely on a cost benefit that contesting the matter would be more expensive than paying Mr. B off, then Mr. A can still chose to fight on principle or represent himself. No one holds a gun to his head to make him pay out unfairly.

4. The illogical position you take is perhaps best described by analogy. Suppose Mr. A wants to build a 3 story house on his land. He wants to apply for planning permission. Suppose Mr. B objects to the plans. Mr. A can either represent himself in the planning process and deal with Mr. B's objections (if they are spurious), or he can employ an architect and/or planning lawyer to ensure that the planning permission is granted without a hitch. That is his choice. If he wants to pay the architect and planning lawyer to provide a service to him, he can pay them. Alternatively, if he wants to try to do those things himself, no one is stopping him. But why should the state have to pay to ensure that he has complied with the laws and regulations in his project? Surely that is a matter for himself to look after?

So you ask me is it a fair outcome? Yes. In your scenario, there is a clear risk that Mr. A will lose the house and have to pay two sets of legal costs. That is possibly several hundred thousand euros worth of a loss. This is a real risk to him. The state did not put him in this risky situation, and indeed it could well be that the uncle did promise away the land. So two people have a claim to the property, neither has an airtight case, but Mr. A believes his case is stronger than Mr. B's. So, to offest the potential loss of several hundred thousand euro, he offers several thousand euro to Mr. B. I'd say he gets off rather lightly.

But Mr. A is not without options. Supposing Mr. A believes he has an airtight case and that it should be tried in court. He is entitled to have his day in court. He can go in, fight the case, and if he wins he has no loss but his time in defending the case. Given that there is a plot of land at stake, I don't think spending a day or two in court is that much of an inconvenience to satisfy the court that the claim is good. Mr. A will also have to learn a bit about the laws and procedure, but this information is usually available in the local library.

Alternatively, if Mr. A wants to engage professional people to provide a service to him so that he doesn't have to do it himself, he is entitled to employ them. They are providing a valuable service to him, in that they deal with his hassle for him and provide a stronger legal case in court. This is a service that he is entitled to get, but he has to pay for it, obviously, as he would have to pay for any other service.

As regards regulated fees, fees are regulated. Anyone can apply to have their legal fees taxed or measured by the courts.

So I don't see how there is any injustice at all. I don't complain that the state doesn't provide a mechanic to fix my car because I don't want to do it myself.

musings

You completely ignored my basic point.

which was that Man B can engage a no win, no fee solicitor and take his case as far as he wishes as he no assets to lose.

Man A does not have this luxury as he has Assets to lose.
Also I have never heard of a solicitor offering a free defense in such a scenario, so he is at a disadvantage to man B immediately.

While technically you are correct about Man A being able to represent himself in court, he would be up against a solicitor operating on a no win no fee basis, who would in all likelihood run rings around him and he would lose.

Regarding why the state should pick up the tab for legal services. My argument is the same as why the state picks up the tab for medicine. I.e:
I think all people should have the same access to the law and the same chance of obtaining justice regardless of their means...simple

I think most people who have had the misfortune to have had to employ a solicitor will agree that the system is a money racket. I personally know plenty of people of this opinion...(several of them are solicitors!)

johnnyskeleton

musings wrote: »

You completely ignored my basic point.

No I didn't.

musings wrote: »

which was that Man B can engage a no win, no fee solicitor and take his case as far as he wishes as he no assets to lose.

Man A can likewise engage a no win no fee solicitor, if one is prepared to act for him. The latter part is the crucial part because to be realistic, Man B will only get a solicitor to act on a no win no fee basis if he has a strong chance of success.

musings wrote: »

Man A does not have this luxury as he has Assets to lose.

On the contrary, he has the luxury of being able to choose not just from the no win no fee lawyers, but also from the fee paid lawyers. He can engage the best senior counsel in Ireland to completely destroy the other side's claim.

musings wrote: »

Also I have never heard of a solicitor offering a free defense in such a scenario, so he is at a disadvantage to man B immediately.

First of all, it is never free. Second, as said above, a solicitor will take a no win no fee case (for either side) if there is a reasonable prospect of winning and thus getting paid.

musings wrote: »

While technically you are correct about Man A being able to represent himself in court, he would be up against a solicitor operating on a no win no fee basis, who would in all likelihood run rings around him and he would lose.

Well he has the choice to get legal representation if he wants. I really don't get your point here.

Ultimately, you seem to think that it is wrong that an impecunious person can bring legal proceedings. But wouldn't it be a whole lot worse if only the rich could afford justice. In the scenario you describe, I find it difficult to believe that a solicitor will take such a complex case on on a no win no fee basis unless there was a very strong chance of success.

I don't see why Mr. A., who is a rich individual, should get a "free" solicitor, any more than he should get "free" GP visits or anything else for free. Further, the scenario you describe is a very wealth person inheriting even more wealth and a penniless person who has an apparently strong claim against it, and the main gripe you have is that solicitors (who are private individuals) are prepared to help out the poor person with a good case for free, but they are not so generous with the rich person. In fact, your complaint in this scenario is the opposite of your original post (i.e. that lawyers focus on extracting money from their clients) as in this scenario the lawyers are prepared to take the case without any certainty of reward because they believe in the justice of it. And you would seek to deny the justice of the situation by asserting some strange poor-rich-man argument.

musings wrote: »

Regarding why the state should pick up the tab for legal services. My argument is the same as why the state picks up the tab for medicine. I.e:
I think all people should have the same access to the law and the same chance of obtaining justice regardless of their means...simple

But we don't all have free access to medicine. In fact, the complaint you descibe about the middle income person being in the worst position is apt to medicine too. On a medical card, pretty much everything is free. For the insanely wealthy, the cost is immaterial. But for the middle income earner, things like health insurance, medicines, GP visits, elective surgeries etc all cost a significant amount of money. Very often, people choose not to have health insurance, or not to have elective surgeries, or instead of visiting a GP to wait it out and use herbal remedies. That is their choice. And they are entitled to hold a view that on a strict transaction basis, they would be better off as medical card holders. But that does not mean that we should give everyone a medical card just to make things fairer.

musings wrote: »

I think most people who have had the misfortune to have had to employ a solicitor will agree that the system is a money racket. I personally know plenty of people of this opinion...(several of them are solicitors!)

But for a private individual, employing a solicitor is never mandatory. One can lives ones entire life, full of legal dealings and litigation, and never have to employ a solicitor. It is impractical, but it is possible. If they are concerned that it is a money racket i.e. they are not getting good value for their money, they can litigate their own case.

musings

johnnyskeleton wrote: »

No I didn't.

Man A can likewise engage a no win no fee solicitor, if one is prepared to act for him. The latter part is the crucial part because to be realistic, Man B will only get a solicitor to act on a no win no fee basis if he has a strong chance of success.


On the contrary, he has the luxury of being able to choose not just from the no win no fee lawyers, but also from the fee paid lawyers. He can engage the best senior counsel in Ireland to completely destroy the other side's claim.

You are still not seeing the issue.
The solicitor for Man B will take on a case on a no win, no fee basis as he has a chance of winning and getting his fees from Man A but no risk of losing his clients non-existent assets.

NO SOLICITOR will take on Man A's Case on a no win, no fee basis as he knows that if he wins he will not be paid as the bill would fall on man B who has no means of paying it.

If you think otherwise you are completely naive.

johnnyskeleton

musings wrote: »

You are still not seeing the issue.
The solicitor for Man B will take on a case on a no win, no fee basis as he has a chance of winning and getting his fees from Man A but no risk of losing his clients non-existent assets.

NO SOLICITOR will take on Man A's Case on a no win, no fee basis as he knows that if he wins he will not be paid as the bill would fall on man B who has no means of paying it.

If you think otherwise you are completely naive.

If Man A wins, he gets the land. So he should have ample resources to pay for the lawyer who agreed to the "No win no fee" arrangement. I honestly can't see how Man A has a lack of access to justice. He merely has a lack of a solicitor who will act for him for free. Nobody should work for someone else for free.

Kosseegan

musings wrote: »

You completely ignored my basic point.

which was that Man B can engage a no win, no fee solicitor and take his case as far as he wishes as he no assets to lose.

several of them are solicitors!)

If man B can find one. This solicitor will have to find barristers who are willing to work on no foal no fee and also fund the litigation as it progresses. Court fees for documents, photocopying, court attendances preparing files all take time and money. It could be years before any money is obtained if ever. Some solicitors, but not all, are willing to run personal injury and public law cases on a no foal no fee basis, but are very wary of doing it in other areas. A few cases like that going wrong would be ruinous. Most no foal no fee cases are in the 90% certain range of likely success.

maidhc

musings wrote: »

Would we have a better country if all solicitors were employed by the state (as judges are) and paid a salary of €XX,XXX per year and had no vested interest in who wins or loses? Would it focus their mind on justice rather than their own remuneration?

Permanent, pensionable, unionised and no requirment to do any work?

Count me in!