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Solicitor Advocates -vs- Barristers

DS86

Do we in Ireland have the same system whereby solicitor's can become advocates, and if so - how does a solicitor advocate differ from a barrister?

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johnnyskeleton

Solicitors have full rights of audience in all irish courts as soon as they are admitted to the roll. The phrase or title of "solicitor advocate" is not used.

234

In Ireland, unlike E&W, all solicitors automatically have full rights of audience in all courts. There is no requirement for them to apply for higher rights. As such there is no title "solicitor advocate" they are all simply "solicitors".

So in a purely technical respect, solicitors are no different from barristers when asking who can conduct courtroom advocacy. However, for a variety of practical and structural reasons barristers overwhelmingly do advocacy from the Circuit Court upwards. I'll let more experienced/knowledgeable members here give you their opinions on why solicitors' rights of audience haven't wiped out the Bar.

DS86

234 wrote: »

In Ireland, unlike E&W, all solicitors automatically have full rights of audience in all courts. There is no requirement for them to apply for higher rights. As such there is no title "solicitor advocate" they are all simply "solicitors".

So in a purely technical respect, solicitors are no different from barristers when asking who can conduct courtroom advocacy. However, for a variety of practical and structural reasons barristers overwhelmingly do advocacy from the Circuit Court upwards. I'll let more experienced/knowledgeable members here give you their opinions on why solicitors' rights of audience haven't wiped out the Bar.

So if this the case, then how come we still have a Solicitor -vs- Barrister distinction, unlike say in America where Lawyers can work from start to finish for a client, all the way up the court room?

johnnyskeleton

DS86 wrote: »

So if this the case, then how come we still have a Solicitor -vs- Barrister distinction, unlike say in America where Lawyers can work from start to finish for a client, all the way up the court room?

The same reason we have different types of doctor, solicitor etc. In the usa thry have specialist litigators who do consultantcy work - barristers in all but name

234

DS86 wrote: »

So if this the case, then how come we still have a Solicitor -vs- Barrister distinction, unlike say in America where Lawyers can work from start to finish for a client, all the way up the court room?

There are some solicitors who carry out all their own litigation and advocacy from start to finish. The last Minister for Justice was a notable example.

Some of the reasons commonly given are:

(i) Insurance - trading independently and not taking on many of the property related liabilities that solicitors do, means that barristers have much cheaper insurance. A complete merger would have a large impact on insurance costs. This can be to a solicitors advantage as by instructing counsel or getting an opinion they are in a sense buying into counsel's cheap insurance rather than undertaking this work on their own at potentially increased insurance costs.

(ii) Specialisation - this is the big one, and I don't know why I didn't do it first. Oral and written advocacy are specialised skills that require a lot of training to inculcate and constant practise to polish and maintain. For solicitors this time is something that they just don't have. Depending on the nature of their practice, a solicitor might be required to have over 100 files on the go at any one time. Many of these may not relate to anything that would require any court involvement. In these circumstances it is difficult for the to keep the skills necessary for performance in court up-to-date.

Specialisation is valued in all commercial fields, so it's natural to expect it in law. On the flip side, solicitors can often be specialised within their field e.g. those that practise only within certain aspects of corporate law. There it is far more cost effective to instruct a solicitor who is familiar with the law that applies to your niche area that allow a less informed solicitor to spend many billable hours just getting up-to-speed.

(iii) Structural Differences - there has been a degree of merger in recent years e.g. Maples and Calder have taken on several barristers for a specialist litigation team. However, even here it is unlikely that they will eliminate the need to brief outside counsel. Because they will usually be charging their clients on the basis of hourly fees, rather than set fees for items of work (as most barristers do for standard elements of litigation) it would still be more economical for a brief application to brief a junior who is already down in the Four Courts, rather than bill the client for two/three house of the time of one of these in-house barristers.

(iv) Independence - the independent referral Bar has several advantages. First, the cab rank rule means that the best advocates aren't tied to large firms or the government and are available to all. A small country solicitor can have access to the best SC just as easily as Arthur Cox. Secondly, the fact that the barrister is at one remove from the client makes it easier for them to form an objective assessment of the client's case are they are not simultaneously worried about telling clients news that they don't want to hear (and might reduce repeat business) to the same extent as solicitors. This aids the effective and just disposition of litigation.

These overlap to an extent, and I'm sure that there are dozens of more reasons. Basically, we have found that the system we have works, and even when the law doesn't force segregation, those involved seem to prefer it as being the most effective way to run things.

conorh91

There already is something of a unified profession, in the sense that a practicing barrister of 3-years standing may become a solicitor, and some firms will hire barristers who are, in effect, working as solicitors. The division is not set in stone, but it is still more rigid than the regime in New Zealand and parts of Australia.

I think there was a stronger argument in favour of divided professions before the Legal Services Bill. Alternative Business Models and a single regulatory authority with ultimate responsibility for oversight of both professions reduce the need for a divided profession.

Nowadays, moving toward a better-unified profession makes sense. Not that a person should be allowed entry onto a roll as a solicitor and a barrister simultaneously. But a practitioner should be able to choose to apply to practice in either profession. Such as happens in New Zealand without the sky falling.

Pat Mustard

DS86 wrote: »

So if this the case, then how come we still have a Solicitor -vs- Barrister distinction, unlike say in America where Lawyers can work from start to finish for a client, all the way up the court room?

The system in the USA might seem fairer at first glance, but an Irish solicitor who just qualified yesterday can instruct any of the most eminent Counsel in the country. Depending on all of the circumstances, this may mean that a client with no money may have access to the best and most experienced Counsel in the country.

In the USA, if you want the best lawyers, you'll have to pay through the nose. If you can't pay, and if it's not a personal injury case, I'm not sure that the options would be great.

MarkAnthony

Someone needs to be in the office to pick up the phone.

Barristers spend a quite a bit of time waiting around from my limited experience.

As stated above the US system essentially splits itself along the same lines as the profession in E&W and here.

plodder

As a matter of interest, is it common for solicitors to appear in the higher courts now? Do they face any discrimination from judges who were probably barristers themselves?

conorh91

plodder wrote: »

As a matter of interest, is it common for solicitors to appear in the higher courts now?

No. Although perhaps more usual in the commercial court.

Do they face any discrimination from judges who were probably barristers themselves?

I'd doubt it. There are more solicitors competent in chancery and commercial matters than there are barristers competent in those areas.

johnnyskeleton

conorh91 wrote: »

I'd doubt it. There are more solicitors competent in chancery and commercial matters than there are barristers competent in those areas.

Bit of a sweeping generalisation, no?

[Deleted User]

conorh91 wrote: »

I'd doubt it. There are more solicitors competent in chancery and commercial matters than there are barristers competent in those areas.

Maybe, MAYBE, as a total figure but certainly not as a % of the total profession. And to be honest even the total figure I really doubt.

MarkAnthony

Sure we all know solicitors have more life experience :pac:

234

MarkAnthony wrote: »

Sure we all know solicitors have more life experience :pac:

I worked as a waiter once; loads of life experience. Can I be a judge now?

Pat Mustard

plodder wrote: »

As a matter of interest, is it common for solicitors to appear in the higher courts now? Do they face any discrimination from judges who were probably barristers themselves?

It is not common for solicitors to appear in the higher courts.

Solicitors aften appear at State Appeals (appeals from the District Court to the Circuit Court in criminal cases), but it is not common for solicitors to appear without Counsel otherwise.

conorh91

johnnyskeleton wrote: »

Bit of a sweeping generalisation, no?

Of course, but not a contentious one. There are many more practicing solicitors than there are practicing barristers, and a substantial amount of solicitors specialize in the dead, the indebted, and the dull province of chancery and non-jury lists generally, relative to the amount of barristers with competence to appear in those areas or get on the relevant panels.

Moreover, those solicitors' firms will instruct the same small group of barristers/ panelists time and time again.

To return to the central theme of this thread, the lack of solicitors appearing before the High Court, and the Supreme Court, is entirely the fault of that profession. They blame everyone but themselves for their rare appointments to the bench. And it isn't for their want of competence. I think a lot of it is financial. Why spend long hours researching a complex point of law, when you can just pay counsel for it, bill the client, and share the profit?

hullaballoo

I'm just wondering whether a barrister who just happens never to have been briefed in chancery is incompetent to appear in the chancery list as a result?

That would be a strange outcome.

conorh91

hullaballoo wrote: »

I'm just wondering whether a barrister who just happens never to have been briefed in chancery is incompetent to appear in the chancery list as a result?

Not exactly. It depends on the circumstances.

If I can be more specific, there are more solicitors regularly instructing barristers in chancery and commercial matters than there are barristers running cases in those lists.

After all, that was part of the argument for the division of labour between solicitors and barristers. So that many solicitors could instruct a small pool of competent barristers. That justification doesn't necessarily apply to situations where a solicitors already tend to have the necessary competence.

Just as an aside, claiming competence in a particular field without ever having worked in it is risky business. Not that anyone is likely to listen to a devil who claims to be competent to run a commercial case, but it's the principle, and there is also a concern regarding negligence.