Barristers may make complaints against judges under new complaints procedure

Barristers may make complaints against judges under a new judicial misconduct complaints procedure, the new chairwoman of the council of the Bar of Ireland has said.

Sara Phelan SC noted the complaints procedure, which came into operation this week, will deal with complaints alleging a judge has behaved in such a way as to bring the administration of justice into disrepute. Barristers are not going to be precluded from bringing complaints, she said. “The avenue is open and if there is a good reason, then I think a barrister may. It’s early days, we’ll wait and see.”

Asked about anecdotal reports that some judges appear to unfairly “pick on” particular barristers, and whether that might prompt complaints, she said: “I’m all on for accountability.”

Barrister and solicitors are accountable to the Legal Services Regulatory Authority, she noted. The complaints regime for judges, she considered, adds to respect for the judiciary which is “hugely important” for the administration of justice.

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Ms Phelan, from Co Kilkenny, took up her post last month after defeating other candidates in a Bar election last July. A qualified pharmacist, she opted for a career at the Bar in 1996 after deciding that running a pharmacy was not for her, and was appointed senior counsel in 2013. Her broad practice includes child and family law, judicial review and personal injuries law.

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She said her objectives as chair include making the Bar more inclusive and diverse, and “as relevant as we possibly can be”.

A report commissioned by the Bar from consultants EY, which concluded Ireland has too many barristers, did not alter her objective of making the Bar more representative of society, she stressed.

There are no barriers to entry, but the Bar acknowledged financial pressures on barristers and the EY findings of a high drop-out rate, particularly across the first seven years, she said.

A number of the EY report’s recommendations, she said, have been put in train and the priorities include to help new entrants stay at the Bar. Getting work and getting paid for that work are “two of the biggest issues” for barristers.

A “rather archaic “payment structure, involving most barristers’ fees not being paid by solicitors until the end of a case, is a “really significant” issue for younger barristers, and is among the issues about which she hopes the Bar council will be liaising with the Law Society. The Bar council, she said, is “front and centre” of the campaign to restore criminal barristers’ legal aid fees, which remain at 2002 levels as a result of emergency pay cuts imposed during the financial crisis of 2008-11.

In relation to barristers’ incomes, she said the full impact of new guidelines slashing awards for mainly minor personal injuries is not yet evident. “We’re all eyes and ears in terms of what that impact is going to be.” While it is anticipated damages will fall and there will be fewer personal injuries cases in the higher courts, a corresponding rise in personal injuries litigation in the lower courts will probably benefit new entrants to the Bar, she said. “It’s never all doom and gloom. We will just have to see what is going to pan out.”

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Barristers are diversifying into other areas of work, including into data protection and mediation, she noted. She is a “firm believer” in mediation in appropriate cases.

On concerns privately voiced by some barristers that male barristers may suffer as a result of the Bar’s equitable briefing policy, Ms Phelan said that suggested a “misunderstanding” of the policy.

International studies show that fewer women are briefed or instructed, and fewer women are being considered for different types of work, she noted.

“We’re absolutely not asking State stakeholders or large firms or anybody else for that matter to brief women above men, that’s absolutely not what it’s about. It’s simply about asking a solicitor, when they have gone through the expertise and seniority and everything else, that they make sure there isn’t an inherent bias on a gender basis or on other diversity bases.”

Rejecting suggestions by some that women are “taking over” the Bar, she said women now comprise 36 per cent of the Bar overall and, following the latest calls to the Inner Bar this week, 20 per cent of senior counsel. “That’s not a takeover.”