The State is by far the biggest buyer of barristers’ services. Every day of the week, it turns to the law library for legal advice and dispatches counsel to represent it in civil and criminal cases in courthouses across the country, on everything from constitutional challenges to complaints against Government agencies.
That puts the Attorney General, whose office handles civil briefs, in a pivotal position of influence. And nowhere is that influence felt more keenly or more immediately than in the law library itself.
State work is coveted by many barristers; it’s stable, interesting and, while perhaps not always the most lucrative, comes with a cast-iron guarantee – especially prized in recent years – that the client will pay. Speculation is always rife on who is being briefed and who is not, on the going rates and on the long-term trends.
Rumours and urban myths abound. But the 10-year payment database released by the Attorney General’s office under the Freedom of Information Act – and published on irishtimes.com today – sheds new light on some key questions.
Some figures leap off the page. First, there are the high earners.
Highest-earning barristers
It's clear that a small number of individuals have earned significant amounts of money from civil work for the State. From January 2002 to August this year, two barristers were paid some €3.2 million, seven made €2-€3 million and a further 27 earned €1-€2 million. It's not unusual for the highest-earning barristers to make more than half a million euro in a calendar year from the Attorney General's office (the list does not include work done for the Director of Public Prosecutions or the HSE).
Second, asylum has been by some distance the busiest area of activity for the Attorney General's office, and lawyers specialising in asylum have been handsomely rewarded as a result. For the past six years, despite a steady fall in the number of people seeking refugee status in Ireland, asylum cases have outstripped all other types. For example, in 2010 the Attorney General's office briefed barristers in 901 asylum cases but only 243 in commercial or constitutional cases (the dominance of asylum cases would stretch farther back were it not for the high volume of Army deafness claims the State dealt with in the years 2004-06.)
"The asylum system is broken," says one barrister. "The legislation and the way decisions are made – they're both broken. Look at the asylum list in the High Court on a Monday morning." There are about 1,000 cases pending in which asylum seekers have challenged decisions to refuse their applications for asylum or permission to remain in the State.
The reasons for the backlog are in dispute. Some argue that asylum seekers take legal challenges to prolong their stay in the State. Others believe a key reason for recourse to the courts is the lack of effective remedy within an asylum system that is opaque and not sufficiently independent.
Fresh legislation required
Fix the system, they argue, and the huge numbers of people going to court to appeal decisions will begin to fall. Both sides agree, however, that new legislation is badly needed to update the system. Part of the problem is that asylum seekers apply for different types of protection – such as refugee status and subsidiary protection – one after the other, stretching the process, and appeals, out over many years. Successive governments have pledged to introduce a single procedure where all applications could be lodged together, and Minister for Justice Alan Shatter says a draft law to do just that will be published next year.
The database also raises questions as to whether the State is doing enough to spread the work around. Last year 333 of the State’s 2,400 barristers were briefed by the Attorney General’s office. Of these, the highest earner was paid €519,772 for work on 141 cases; the lowest earner was paid €10.46 for two cases. While the names at the top make the headline, it’s striking that about two-thirds of those on the Attorney General’s payroll last year were paid less than €20,000.
This reflects a wider trend at the bar, where a small number make millions and many others struggle to earn a living.
Younger barristers, in particular, can find it difficult to establish themselves or to get paid for they work they do. Almost 180 barristers left the bar last year, the vast majority citing financial or family reasons.
Risk averse civil servants
The Bar Council, which represents barristers, has called on the Attorney General's office to cast its briefs, and fees, across a wider pool, and the office's website states it has a policy of "distributing briefs among a wide number of barristers". But the figures suggest civil servants are risk averse and often turn to the name they know and trust – to the extent that some individuals are handling 150 cases a year for the office.
“You might get the call [from the Attorney General’s office] at 11.55pm,” says a barrister by way of explanation. “The crisis has already happened, or is about to happen. It’s last-minute panic. It’s going to be very pressurised – they have to make a quick judgment call about who to brief.”
Finally, the figures confirm that, overall, barristers’ fees have fallen sharply since the financial crisis struck. The Attorney General paid €17.8 million to barristers in 2008.
That total has fallen every year since, and by 2012 the annual spend was down to €9.5 million, even though the number of cases going through the system has been relatively stable.
