The BarJournal of the Bar of IrelandReview .Volume 10 . Issue 5 . November 2005 • Can Ethics be Competitive • WhoWho’ll’ll bebe thethe JudgesJudges • The Division of Marital Assets in Ample Resource Cases The BarVolumeReview 10,Issue 5, November 2005, ISSN 1339 - 3426 Contents 142 Changes to the Code of Conduct Hugh Mohan SC 144 Can Ethics be Competitive? Editorial Correspondence to: Paul Gallagher SC Eilis Brennan BL, 151 Reflections on the Role of Law The Editor, Bar Review, Bishop Donal McKeown Law Library, Four Courts, 152 Continuing Professional Development. Dublin 7 Inga Ryan CPD Manager DX 813154 Telephone: 353-1-817 5505 153 You Be the Judge Fax: 353-1-872 0455 Jennifer Carroll e-mail: [email protected] Editor: Eilis Brennan BL 155 Legal Update: Editorial Board: A Guide to Legal Developments from Paul Gallagher SC (Chairman, Editorial Board) 15th July 2005 up to 7th October 2005. Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL 173 The Division of Marital Assets in "Ample Resource" Cases Conor Dignam BL Inge Clissmann SC and Paul Hutchinson BL Adele Murphy BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Des Mulhere The Bar Review is published by Thomson Round Hall in association with The Bar Council of Ireland. Jeanne McDonagh For all subscription queries contact: Jerry Carroll Thomson Round Hall Consultant Editors 43 Fitzwilliam Place, Dublin 2 Dermot Gleeson SC Telephone: + 353 1 662 5301 Fax: + 353 1 662 5302 Patrick MacEntee SC Email: [email protected] web: www.roundhall.ie Thomas McCann SC Subscriptions: January 2005 to December 2005 - 6 issues Eoghan Fitzsimons SC Annual Subscription: €188.00 Donal O’Donnell SC Annual Subscription + Bound Volume Service €288.00 Garrett Cooney SC Pat Hanratty SC For all advertising queries contact: Directories Unit. Sweet & Maxwell James O’Reilly SC Telephone: + 44 20 7393 7000 Gerard Hogan SC James Nugent SC The Bar Review November 2005 Design: the Design Room T: 497 9022 Cover Illustration: Brian Gallagher T: 497 3389 E: [email protected] W: www.bdgart.com November 2005 - Page 141 Opinion Changes to the Code of Conduct Hugh Mohan SC The Competition Authority and Bar Council both believe in an The Bar Council wishes to encourage transparency and competition in independent referral Bar. The report and the chairman of the respect of fees. It recommends all clients of the Bar to seek Competition Authority endorse this and accept it is both necessary and comparisons of fees for their legal work and recommends the issuing good for a democratic society. Likewise, we agree that the Bar must be of fee estimates, where possible, prior to the commencement of work. competitive and pro-consumer. The following reforms of the taxation of costs, which determines legal costs, are supported by the Bar Council, and would assist clients and Some of the Competition Authority's proposals will facilitate reduce their costs: competition and will not disadvantage the consumer. The Bar Council (a) Fees should be set on the basis of the work undertaken by each of would like to implement those proposals. Other proposals would senior and junior counsel and the value of that work to the client. undermine the independence of the referral Bar to the detriment of the (b) The Department of Justice, Equality and Law Reform should consumer. The Bar has carefully considered these proposals, and where introduce legislation to permit persons other than solicitors be appropriate, has suggested alternative and more proportionate means appointed to the position of Taxing Master. by which those objectives can be achieved. This document details those (c) The Legal Costs Group established by the Minister for Justice, proposals. Equality and Law Reform should undertake a careful review the The Bar's independence is important, as in a democracy, the law serves current system. as a bulwark between the State and the citizen and protects the (d) Out-of-date provisions contained in Order 99 of the Rules of the Constitution and peoples' rights. A person, anywhere in the land, can Superior Courts should be revoked. take on the might of the State or big business, on an equal footing. (e) The process of taxation should be reformed to eliminate Exclusively commercial or competition standards cannot be applied to unnecessary delays in delivering results. the administration of justice. These standards are ill equipped to reflect (f) Additional Taxing Masters should be appointed to deal with the the value of equality of arms before the court and the need to protect level of work and to allow proper assessments to be carried out in those who cannot afford representation. accordance with the requirements of section 27 of the 1995 Act. (g) It is important that the taxation process should look at both the This is an on-going process of developing and modernising our rules value or worth of the work done and the necessity to carry out and Code of Conduct for the benefit of barristers, consumers and that work. Unnecessary costs should not be for the account of the businesses users and in the interests of increasing efficiency in the legal paying party. system. More detailed wording will be circulated to members in the (h) All taxations of costs should be centralised in one agency in the forthcoming months. Below, please find an over view of the changes State, with provision to allow Taxing Officers to travel around the proposed and the effects these will have. country to facilitate country practitioners. (i) The objections process should be examined. Objections should be Regulation dealt with by a different Taxing Master to the Taxing Master who heard the original taxation. It is felt that greater transparency and openness is needed in the (j) Appeals to the court should be dealt with by judges specifically complaints procedure to reassure clients that they are being treated assigned to reviews of taxation. fairly and equitably if they have a complaint. Complaints have always (l) A simple taxation process should be introduced to deal with cases been very low against the profession which signals that clients are where only a single item is in dispute or only a very small number happy with the work of their barristers. These changes will improve the of items are in dispute. A simple written process might well be complaints procedure if a problem does arise, in the interests of both appropriate in such cases. the barrister and their clients. Expansion of direct professional access. There will be more non-lawyers involved in the complaints process, with a majority on the Barristers Professional Conduct Tribunal and the It is proposed to extend the range of work available on a direct access Appeals Board of the Tribunal. An independent Ombudsman has been basis as much as possible, while preserving the independent referral requested to oversee the complaints procedure. Any person who is Bar. This includes increasing the number of organisations who have dissatisfied with the decision of the Appeals Board will have an DPA, developing the Small Claims Arbitration Scheme and increasing automatic right of referral of their complaint to an Ombudsman. the Voluntary Access Scheme, whereby barristers carry out opinion and litigation work for NGO's and charitable bodies on a free basis. A simple form in plain English will be placed on the website or sent out to complainants. This will give clear instructions on how to make a Advertising complaint. The new procedures will be explained in a plain English leaflet and available on the website of the Law Library and the subject of an information campaign. The procedures and assistance available Changes are proposed in relation to the way barristers advertise their for complainants will be clearly explained services, their experience and expertise and the fees which they charge. A directory of barristers' services (sent to every solicitors' firm in the Legal fees and taxation of costs country) and corresponding website profile will be provided offering detailed information about each barrister. Increased advertising should November 2005 - Page 142 Opinion not encourage litigation or contain misleading information or diminish Council is continually expanding the services made available to public confidence, but should enhance price transparency to the barristers and using its purchasing power to achieve significant cost benefit of business and consumers. savings for barristers, to the overall benefit of business and consumers. Switching professions Part-time Occupations There will be no rules restricting a solicitor from entering the barrister's The range of part-time occupations in which barristers may engage will profession, if they are qualified. This includes removing the rule which be expanded. prevents a solicitor, who has switched profession, taking work from any solicitor's firm with which that solicitor was previously associated. Appointment of Senior Counsel The Bar Council will support the establishment of clear and transparent Assisting new barristers to get established criteria for the appointment of barristers, on merit, to the rank of Changes should be made to make it easier for a barrister entering the Senior Counsel. There should be ongoing monitoring of quality and a procedure for withdrawing the mark in the event of a reduction in the profession to get established quickly. It is proposed that persons level of quality. entering the profession will be free to take work from former employers immediately and that they will be able to participate in an These proposed changes would significantly improve many aspects of expanded direct professional access scheme, as well as have significant the profession, and are proposed for the benefit of business users and freedom in advertising their fees, expertise and availability.