Recent ruling on Direct Access Counsel


By McDowell Purcell \ In All Posts, Public & Regulatory

The issue of direct access counsel was recently considered by the High Court in Bond v Dunne [2017] 4375P.

Facts

Whilst the vast majority of Irish Barristers are members of the Bar of Ireland ( the “Law Library”), Ms Houston was not a member. Ms Houston made an application to the High Court to permit her appointment as direct access counsel (a barrister acting without the instructions of a solicitor).  Mr Justice Gilligan refused her application and, in delivering his decision, placed emphasis on the interaction between regulatory legislation and professional codes of conduct in such matters.

The application of the Professional Code of Conduct to non – members

Ms Houston, who was named President of the Association of Barristers in Ireland, formed in 2016, argued that as she was not a member of the Law Library she should not be a subject to the professional Code of Conduct of the Bar of Ireland which forbids a barrister to act without the instruction of a solicitor in contentious matters.

She claimed she was entitled to act without instructions in this matter under section 13(5) and section 101 of the Legal Services Regulation Act 2015 ( the “Act”) which provides a list of professional principles for legal practitioners such as complying with duties owed to the Court, acting in the best interest of their clients, maintaining proper standards of work and keeping their clients affairs confidential. Ms Houston argued she was not handling client monies and had professional indemnity insurance.

The Honourable Society of Kings Inns trains all Barristers and they become members of the Society on completion. It was submitted that Ms Houston’s admittance to the Bar was contingent on a declaration to the Benchers of the Honourable Society of Kings Inns as part of her admittance to the degree of barrister at law. She had given an undertaking that she would conform to the professional code of conduct, which specifically prohibits direct access counsel in contentious litigation.

Decision

Mr Justice Paul Gilligan dismissed Ms Houston’s application stating that the Rules of the Superior Courts make no provision for a barrister to come on record or have carriage of any proceedings on a client’s behalf and to act in contentious matters without a solicitor. The same Rules do not permit counsel to file documents, serve documents or accept service in proceedings. The Court reaffirmed that “solicitors are a nominated body of persons entitled to represent clients in contentious litigation”.

The Court referred to Section 101 of the Act (not yet commenced) which Ms Houston sought to rely on. The Court held that it was quite clear that the section provides that “no professional code shall operate to prevent a barrister from providing legal services as a practising barrister in relation to a matter other than a contentious matter, where his or her instruction on that matter is received directly from a person who is not a solicitor”. The Court held that it was clear that the Oireachtas intended that professional codes applicable to barristers should continue to apply unless or until discontinued or revised by the regulation authority. In essence the Rules of the Superior Courts do not permit a party to defend an action by counsel alone. The Court confirmed that there was simply no authority for the proposition that a barrister could act for and conduct contentious litigation on behalf of a party to proceedings without being instructed by a solicitor.

The Court confirmed that the codes of conduct Ms Houston undertook to abide by expressly prohibit her in her capacity as a barrister be it individually or as a part of an association of barristers outside of the Law Library, to act on behalf of a client in contentious litigation without being instructed by a solicitor.

Mr Justice Paul Gilligan further added that his decision does not affect the defendants’ right of access to the courts and that they could either represent themselves directly or retain the services of a solicitor to act on their behalf.

McDowell Purcell Solicitors represented the Legal Services Regulatory Authority in this case. The LSRA has reported to the Minister on the issue on the 29th of September. Publication of the report is awaited.

Authors: Veronika Krajewska and Vivian Meacham