Tribunal fee claim a catalyst for reform of legal professions?

The Irish media this weekend carried two contrasting reports of contemporary life in Ireland. Once concerned a family in Co. Kerry who were starving after the breadwinner’s fragile income disappeared with his part-time job.

At the other end of the spectrum lawyers the Government rejected claims of €30,000 for senior counsel and €20,000 for junior counsel in ‘severance payments’ in respect of their engagement by The Moriarty Tribunal which got under way in 2007 and published its report last March.

The overall cost of this tribunal to the end of 2010 was €41,396,005 with estimates of costs outstanding being in the region of €6.7 million, although the final cost is inherently difficult to estimate, according to the Comptroller & Auditor General.

Public sittings commenced on 31 October 1997 and there were 390 public sitting days from then until 31 December 2010, 13 years later.  Lawyers fees accounted for 78.6% of the cost of the Tribunal.  Total expenditures on this Tribunal was equivalent to an average of €106,144 per public sitting day of which an average of €83,472 was spent on lawyers fees.

The total amount paid to the Tribunal legal team to the end of 2010 was:

 

NAME	FROM	AMOUNT €
Jerry Healy SC	October 1997	9,490,181
Jacqueline O’Brien SC (1)	October 1997	6,707,891
Maire Moriarty JC (2)	December 1997	2,351,893
Stephen McCullough JC	May 2002	1,775,551
Patrick Dillon-Malone JC (3)	2001-2003 and from October 2010	132,798
Stuart Brady, Solicitor	January 2005	1,732,404
Darach McNamara, Research Assistant	September 2003	753,775
FORMER MEMBERS
John Coughlan SC	Oct 1997 – Dec 2010	9,285,628
Brian McGuckian, Research Assistant	1998 -2002	324,122
	TOTAL	€32,554,243

 

The daily rate paid to these lawyers in 2010 was as follows:

Level	Daily Rate, excluding VAT, 1 Jan-31Dec 2010	Daily Rate, Excluding VAT, 1 Feb to date
Senior Counsel	€2,300	€1,955
Senior Counsel, 80% rate [J O’Brien]	€1,840	€1,564
Junior Counsel	€1,012	€860.20
Junior Counsel [P Dillon Malone]	N/A	€1,050

Recruitment

These lawyers were identified, selected, recruited, retained by the sole member of the Tribunal alone and the civil service department who paid them had no input.

No procurement procedures were followed in the selection process. 

In 2002 the per diem rate for senior counsel went up from €1,714 to €2,250 when the counsel engaged by the Tribunals in each case sought a review of the rate. The review was a function of specific proposals and representations made by the individual barristers concerned and, separately, a review conducted by the Department of Finance and the Office of the Attorney General about appropriate rates at that time. A legal cost accountant was consulted on what
would be a reasonable rate at the time.

Three senior counsel at the Moriarty Tribunal were paid €2,500 a day for an extraordinary 304 days in 2008. The Moriarty Tribunal sat in public session for an average of 20 days in each of the past three years. The report advised that there were no specific attendance records for the legal teams maintained at the Morris and Mahon Tribunals. The Moriarty Tribunal records attendance of Tribunal legal team members but does not take account of arrival and departure times.

 

Extra Payments

An extra €1 million has been paid to counsel because of an error in the Department of the Taoiseach, where counsel have been paid a per diem rate of €2,500 instead of €2,250 and where the matter was allowed continue without rectification. After lengthy negotiations, a rate of €2,500 per day was agreed with Moriarty senior counsel and notified to them by letter in June 2002. A few weeks later, in view of the setting of the fee of €2,250 per day for senior counsel at other Tribunals, it was realised that the Moriarty rate had been agreed at a higher figure arising from a misunderstanding between the Department and those setting the fees. The Moriarty fee was reviewed again. It was considered that in view of the particular circumstances of that Tribunal, the higher fee was appropriate and, following advice from the Attorney General this rate was sanctioned by the Department of Finance on a personal basis.

The Department of Finance saw no basis for paying the higher fee of €2,500 per day and having regard to this, is of the view that steps should have been taken to apply the lower fee. The Department of the Taoiseach should have acted with more vigour in refusing the higher rate of payment.

 

Catalyst for Reform?

The scale of these costs and the absurdity of these claims aptly demonstrate the urgent and compelling need for the radical reform of the legal professions and promptly ending the combined role of the Bar Council and the Law Society regulating and representing the professions.

The combined roles of self-governance and representation causes restrictive impediments, less transparency, openness and accountability leading to the typical cost of legal services in Ireland being the highest in the developed world – an observation validated in a 2009 World Bank report and the widespread perception that lawyers can simply charge what they like.

This buccaneering culture is a severe constraint on the prospects for reform, economic recovery and investment. The State, as the biggest buyer of legal services needs to deal aggressively and effectively with the underlying issues that facilitate absurd and outrageous costs and claims, such as these.

Successful intervention will mean fewer unemployed and underemployed barristers and solicitors and a legal system that becomes a more dependable purveyor of justice and equity.

Micheál Martin’s ‘headache’

The article in the Irish Independent on 20 August, ‘Challenge for Martin as Lenihans’ opt out of the election’, asserts that this constitutes ‘a massive headache’ for Micheál Martin’s efforts to rid Fianna Fáil of its toxic image. Surely, this type of brazen nepotism would only appeal to the 15% of the electorate who supported the late Brian Lenihan. Martin’s fundamental challenge is to win the trust of the 85% of the electorate whose political gaze is elsewhere and he will need to do much more than merely preach to the choir in this endeavour.

The immediate and compelling challenge for Fianna Fáil is to sponsor a committed and sufficiently distinguished candidate to contest the Presidential Election. That ought to be a person with the capacity to inspire the trust, confidence and enthusiasm of the electorate; someone who can convincingly be described as the most distinguished Irish person of the current generation.

Half of the Irish electorate are under the age of 35 years. Most of this cohort has never voted in a Presidential Election. Our population has expanded by 850,000 since 1997. A substantial portion of the electorate were not even born in Ireland.

The clumsy and uncoordinated Fianna Fáil efforts to make a credible impact on the most important Constitutional Office of State are risible, especially when the competition is so lacklustre, taciturn and undistinguished.

The Presidency of Ireland is not a political party trophy even though Fine Gael and the Labour Party have treated the forthcoming contest as a facility to confer a distinguished honour on one of their own insiders. No party, or prospective candidate, has begun to explain the credentials to justify their high-flown ambition to be recognised as an eminent, world-class statesman. The response of the electorate to them, according to polls, is ambivalent and uncertain. There is every prospect that the Presidential Election will record a voter turnout no greater than the 47% recorded in 1997. The vitality and influence of the President will not be derived from electorate that is tepid.

Therefore, the next pragmatic step for Fianna Fáil is to provide the electorate with a candidate choice for President who is energetic and credible, untainted by the prevailing quagmire of toxicity and who reflects the voters’ aspirations, values and expectations.

Fianna Fáil could be the real kingmaker in the Irish presidential election

Now that the sluice gate of opportunity has been perceived by Dana Rosemary Scallon to have opened following the exit of David Norris the real king maker could be Micheál Martin.  The presidential election will be the first real test of his leadership of in the eyes of the nation - beyond the boundaries of Fianna Fáil. That said, I don’t think that a member of the Fianna Fáil parliamentary party could be a successful presidential candidate this time for self-evident reasons.

But Fianna Fáil was able in 1997 to attract a distinguished candidate from beyond its own mainstream who was to become a genuine, world class statesman; who became a unifying, consistently progressive force in the country for not one, but two terms; who dreamt of building bridges and did so with astounding tact, tenacity, imagination, diligence and success. Fianna Fáil’s offering to the nation in 1997 was inaugurated one week after President Obama won his first-ever election to political office and she will leave office in 2011 with a level of goodwill and esteem that is, at best, a fantasy for the world’s major leaders and statesmen.

That candidate thoroughly understood what the role of Head of State entails – its scope and limitations. That disciplined candidate safeguarded the Constitution and scrupulously protected the dignity of the Office and of the nation. That visionary candidate understood the concept of prestige and enhancing the reputation of Ireland. That reflective and mature candidate radiated values that resonated with voters’. This chosen candidate was authentic and credible; that’s why she won the election and then won the heart of the nation.

The reputation of this nation had a very close shave with reputational Armageddon this week, three months before the presidential election. The image on the world’s television screens of an Irish President declaring his abrupt resignation on the steps of the Áras and describing his love of a rapist has been averted. The risk that the equivalent of the Lincoln Bedroom at the presidential mansion could be accommodating a personal guest of the President who would attract lurid tabloid journalism comment and speculation has been mitigated. The prospect of a convicted child rapist being the second person, as consort of the President, to formally greet foreign dignitaries when they arrive here on State visits will not arise.

Those who have expressed an interest in contesting this election are not really endowed with the presidential stature that we have become accustomed to. The nation therefore needs a determined input and intervention to insure that this contest provides the electorate with the opportunity to elect a statesman of calibre – an individual who is the best Irish person of this generation and whose credentials to become President are inspiring and compelling.

The electorate should not be reduced to a choice of candidates from among the minor aristocracy of domestic reality TV, from the faded grandees of the Eurovision Song Contest when President de Valera was in office, an anonymous  stranger who has yet to offer a single compelling statement to justify consideration and a pair of jaded duds with a faded political legacy whose appeal is likely, at best, to be only to their most loyal and long-standing following. That escapade would end in a puddle of tears and a nation diminished in the eyes of observers. We have been through enough of that.

If Fianna Fáil can produce a credible candidate with potential universal appeal that personal achievement could become a defining moment, the catalyst for Martin to prove his leadership credentials to those who are apolitical but patriotic. That accomplishment could confirm the character of Martin’s leadership. It would be an act of real patriotism.

Norris bows to the inevitable

The remarks David Norris made when he withdrew from his campaign to seek a nomination to contest the Presidential Election have been described by some commentators as dignified. Norris had petitioned an Israeli court on behalf of his lover, Ezra Yitzhak Nawi, a plumber of Iraqi decent, who had been convicted of the statutory rape of a 15-year old Palestinan youth in 1997. While he condemned the crime as ‘disgraceful behaviour’ and explained that he ‘forgot’ to tell his supporters about the letter; that the episode was ‘very sad that in trying to help a person I loved dearly – I made a human error’

‘Inevitable’ and ‘Histrionic’ might have been more accurate adjectives to use than ‘dignified’ in withdrawing from the predicament that Senator Norris threatened the electorate with. The only saving grace was that this matter came to light three months before the election, not three months after the inauguration where the same speech might have been delivered on the steps of Áras and Uachtaráin to an aghast global media and a mesmerised Irish nation. But this close shave will most certainly prompt the electorate to scrutinise the credentials and capacity of all candidates even more closely question the calibre of what is presented.

The lacklustre nature of this campaign has yet to inspire confidence, conviction, enthusiasm or clarity among the electorate. Therefore, the durability and robustness of a perceived leadership status at such an early stage was questionable.

Has any aspirant demonstrated a thoughtful, insightful understanding of the role of Head of State they are seeking to undertake? Has any aspirant convincingly described what personal qualities and accomplishments that make them especially and eminently suitable to become President of Ireland? Has any aspirant persuaded the electorate he, or she, could enhance and extend the reputation and stature of Ireland in the global community?

The answer, in my opinion, is ‘no’. That is why there is scope for a really distinguished and compelling individual to enter this contest. The people of Ireland deserve a panel of top-class presidential candidates that rouse them with the enthusiasm that only authenticity and legitimacy can produce.

Political parties love to waffle about their aspirations and the bright, gleaming future over the yonder horizon. This presidential election will test their mettle. It will indicate what they can actually deliver. It will demonstrate their capacity to attract real talent. Their sponsored candidate will be a manifestation of where the concepts of ‘excellence’ and ‘high standards’ converge in their world.