In a campaign video Fine Gael has highlighted presidential candidate Catherine Connolly‘s work representing banks in home repossession cases while working as a barrister. They have accused her of hypocrisy for later, as a TD, describing bank repossessions as “criminal behaviour” without declaring her past involvement in repossession cases for the banks.
Are barristers not obliged to work for all sorts of clients?
The short answer is yes. Barristers have a code of conduct that seeks to ensure access to justice for everyone. They have what is sometimes called a “cab-rank system”, meaning barristers “pick up” the cases they are asked to take on. Ensuring everyone can access justice is central to trust in the rule of law, the Bar Council has said in response to criticism of Connolly.
So barristers have no choice?
The code says barristers “hold themselves out as willing and obliged to appear in court on behalf of any client on the instructions of a solicitor”. They should not “discriminate in favour of or against any person availing, or seeking to avail, of the services of the barrister on the grounds of race, colour, sex, sexual orientation, language, politics, religion, nationality, national or social origin, national minority, birth or other status”. But the obligation to take on clients is not an absolute one.
First, barristers are not obliged to work for clients who don’t pay the “proper professional fee”.
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Second, they can also pass on a case if they are too busy with work they have already committed themselves to, or if it is a simple matter and they have progressed to a stage where they usually work on more complex cases, or if working for the client would create a conflict of interest.
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According to barristers, the cab-rank rule is less straightforward for those working in civil than in criminal law. Civil law covers a huge range, from bank repossessions to asylum law to family law to personal injury cases, and barristers usually find themselves more knowledgeable in some areas than in others. So, they might not take on a case because of its nature.
What does the code say about that?
It says barristers are “bound to accept instructions in any case in the field in which they profess to practise (having regard to their experience and seniority)”. In other words, if it’s not their area of practice, they can say no to a case, on the grounds that the client should seek out a barrister who would be better able to represent them.
Do barristers choose to work in particular areas?
People starting out in their careers usually take whatever work they can get and chance can play a role in what they end up doing. As a result, they can often end up working in areas of the law they never envisaged themselves specialising in. In the years after the crash, working on bank cases was a “dominant” area of civil practice for barristers seeking to build up their practice.
So they don’t get to pick and choose?
One barrister, who did not want to be identified, said people could avoid areas of law for personal reasons, such as avoiding child care work because they are likely to encounter harrowing circumstances involving children. Such work might require “a level of mental fortitude” you might not feel you had. Objecting to work for moral reasons is not an issue, according to this barrister, because the job is to represent the client’s position to the best of your ability. The decision as to what happens in each case is made by the judge. And somebody has to represent the banks.
Other examples of politicians acting in legal cases in which they were criticised?
Fianna Fáil Minister for Justice Jim O’Callaghan SC represented the then Sinn Féin leader Gerry Adams in his work as a barrister in a defamation case in 2015. During the 2020 general election campaign, the then Fine Gael leader Leo Varadkar said O’Callaghan could have “recused” himself on the grounds that his role as a politician created a conflict of interest. O’Callaghan disagreed. He returned to the topic on Monday, in the wake of the Fine Gael video.
“Just because a lawyer takes on a case for a client doesn’t mean that the lawyer is endorsing the behaviour or opinions of that client,” he said.
“They’re simply providing legal services.”
