Barrister cannot directly represent clients without solicitor - judge

A High Court judge has dismissed a barrister's application to be allowed to directly represent clients without having to be instructed by a solicitor.

Eugenie Houston, president of the newly formed Association of Barristers in Ireland, had asked the court to clarify provisions of a new law, passed in 2015, in relation to the question of direct access of members of the public to barristers.

Mr Justice Paul Gilligan ruled on Tuesday there is "simply no proposition" a barrister can act and conduct contentious litigation on behalf of a party to such proceedings without being instructed by a solicitor.

The existing position is that, in order to appear before a court, a barrister must first receive instructions from a solicitor. Barristers are usually members of the Law Library and/or the Society of Kings Inn.

Ms Houston, who is not a member of the Law Library, is seeking to act for two men who have to date represented themselves in High Court injunction proceedings brought against them over alleged trespass on a bog in Co Offaly.

She argued, under the 2015 Legal Services Regulation Act, she, as a qualified barrister, should be entitled to represent the two men directly rather than having to act only after receiving instructions from a solicitor.

Proper standards

While only two parts of the 15 parts of the 2015 Act have so far been enacted, she believed she can do so under Section 13.5, which is in operation, she said.

That section provides legal practitioners shall act with independence and integrity, in the best interests of their clients, and maintain proper standards of work. It states they should also comply with such duties as are “rightfully owed to the court” and keep the affairs of clients confidential.

A section of the new Act, which has not yet been enacted, provides no professional code should operate to prevent a barrister providing legal services “other than a contentious matter” where instructions were not received through a solicitor, she said.

She believed it was proper she should bring the application before the court to clarify whether direct access was permissible rather than “act behind the scenes” for a person as that would be entirely wrong.

Ms Houston also said she has professional indemnity insurance and did not handle clients’ money.

Lawyers for the Legal Services Regulatory Authority, which was set up under the Act, the Kings Inn, and the plaintiffs in the case being brought against Ms Houston’s potential clients, disagreed she was entitled to directly represent them.

The law as it stands does not permit direct access and the rules of the superior courts did not authorise it, they argued. They also said access was a matter addressed during a recent public consultation process by the Regulatory Authority on which a report has yet to issue.

Contentious litigation

It was further argued, as part of being admitted to the degree of barrister-at-law in July 2008, Ms Houston signed a declaration to the Benchers of the Honourable Society of Kings Inn she would comply with the rules and regulations of the Bar Council. They provide a barrister may not act in contentious litigation except on the instructions of a solicitor.

Mr Justice Gilligan, is rejecting Ms Houston's application, said it was clear to the court the Oireachtas intended, in passing the 2015 Act, professional codes applicable to barristers should continue to apply "unless and until replaced or revised by regulatory action of the Authority".

He also found the rules of the superior courts do no permit a party to defend an action by counsel alone. As the rules are secondary legislation, and have the force of law, jurisdiction vested in the court regarding practice and procedure must be exercised in accordance with those rules, he said.