LegalEagleStar

… a kind of Legal Column

Posts Tagged ‘Legal profession

Your access to Justice … as prescribed by a Group of Political Elites

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Lawyer Bashing Is Fun

Lawyer Bashing Is Fun (Photo credit: rkrichardson)

In the 1980s a meeting of ‘Elite’ politicians took place with the Insurance Industry. ( I could name this Group but will refrain from so doing.) Many such meetings were already happening concerning the banks but this one was composed essentially of the same participants.  At this  meeting concerns were raised by the Insurance Industry people regarding the changing face of the legal profession. With pressure on the Government to allow lawyers advertise their firms, concern was expressed that if the American Model was followed that profits would take a severe hit and something had to be done to stop this from happening. The lawyers present, and in particular a leading Law Society member expressed the view that the profession would not be allowed go this route and he would make sure that anyone trying to do so would be severely dealt with. Matters were initially laid to rest but it was not long before the ‘new breed’ of lawyer emerged which challenged those ‘traditional’ types. ( I am not referring to those that didn’t advertise. Just a cynical reference to those that controlled the profession.) Then followed more meetings with the interest group and it was not long before they hatched their own plan to deal with the ‘new breed’.

Juries were removed from Personal Injury Cases in 1988. That of course wasn’t enough as it was decided that Judges could not be trusted to reduce awards. It took them all of  fifteen years to appoint Mary Harney to attempt to introduce a ‘Lawyer Free’ Personal Injury Assessment Board which in effect continues to this day. The reasoning behind this was not, as stated to assist and help the Citizen to get justice in their cases, in a speedier fashion, but was to kick lawyers out of the system.  Sure, the Government had the interests of the citizens at heart. It was those greedy lawyers who ripped the citizen off. Nonetheless the ones to benefit were the Giant Insurance Companies. Thankfully the Courts subsequently found it unlawful to exclude lawyers from dealing with such cases. Today the Insurance Industry spend Millions of Euros each week in expensive television campaigns which denigrate the integrity of the citizen, suggesting that they are crooks ripping off the system. Strangely enough, no mention of the dreaded greedy lawyers in their current advertising campaign. No doubt though they will be the target of a future, more enhanced campaign.

On the family law front, divorce was being heralded as the new way forward. Having dealt a blow to those personal injury lawyers, it was not long before the mantra changed, slightly. We want Divorce and Now was penned but there was an addition to the narrative. We are entitled to Divorce and as a right, we shouldn’t have to pay for it. These chants didn’t fall on deaf ears. (I am not in any way condemning Legal Aid here, a right myself and many others fought hard for.) Those same politicians targeted  ‘Divorce Lawyers’ as the scum of the earth. It would seem that it wasn’t just the ‘new breed’ of Personal Injury Lawyers who would be the target of their venom but now the Family Law Lawyer.

When the dreadful lawyers involved in Family Law became the prime target (I exclude Mr Shatter and other such elitist Firms here), we all started receiving documentation regarding mediation. This was the way of the future we were told. In England there had been a move by some lawyers to become involved in the mediation process and there has been a drive in Ireland in the recent past, to mediate as opposed to litigating family law matters. Let me just comment that the work of the lawyer on a daily basis is not what is widely believed. Yes, we issue proceeding to protect the interests of our clients but then meet with our opposing number to try to see what common ground we may have. Many issues are resolved this way. Other matters that are in dispute will be litigated on. The time of the Court is not wasted on matters that are not in dispute. Mediation is part and parcel of the daily work of the lawyer. Yes, it’s paid for by the client, as is mediation. Now we are told that lawyers should be taken out of the equation and let the mediator do the work. Right, so you pay the mediator instead. Then when the process is complete you attend at the office of your lawyer for advice on what had been agree. Well, in my experience the mediated agreement is far from complete and I’ve yet to see a mediated agreement which I couldn’t have done a better job on and been part of the whole process. Remember you still have to go to Court to get your Divorce, Judicial Separation or suchlike. I know this is controversial but I’m not convinced after my more than 30 years in practice that mediation is the way to go in the majority of family law cases.

So, law without a lawyer is the current trend. Just be careful for what you wish for, because a small group of elite politicians, bankers and Insurance Companies are driving this agenda and it is not for the benefit of the Citizen. The ‘new breed’ of lawyer deserve your support. Remember it is you they act for and your interest alone. And what’s refreshing in this day and age is that they will not be bought off. The political elites are in the ascendancy at the present time and becoming more dangerous by the day. Our current Minister for Justice ,who has a distinct distaste for the current ‘independent’ bar wants to do away with the profession as we know it and have a new legal profession which is answerable to him, as Minister for Justice. While I’m no lover of the current Law Society model which is unrepresentative of me  and I have told  as much, I do fear that under the direct control of the Minister for Justice that my independence will be lost and I will be unable to represent the interests of my client without the State looking over my shoulder and overseeing all my actions. This is not what an independent legal profession is all about. For too long have the Law Society acted only for the elite within the profession and have been unrepresentative of lawyers who acted, not for the Corporate sector but the citizen. They have allowed the elites among them progress at the expense of the grass root solicitor within the community whose sole concern is protecting the rights of the citizen. The loss to the profession of these excellent, and mainly young members, is an absolute disgrace and in years to come, will be regretted by many, when too late to rescue our dying profession.

LegalEagleStar , Thursday , 6th. September , 2012 .

The IMF, The Legal Profession and Austerity for The Citizen

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International Monetary Fund's Managing Directo...

Image via Wikipedia

Friday  was the Last  Day of  Term.  Us lawyers breath a collective sigh of relief at this stage, as the months of June and July are usually hectic. Trying to settle cases before the Long Vacation is tough, exhausting work. The Courts now are officially closed until October. While litigation lawyers usually take their vacations in August and September, it is also a very busy period in the office while you try to play catch-up with work and prepare your cases which should be coming on for hearing next term.

After the invariable merriment following last Friday, my mind switched to thinking about, not only next term, but indeed the future of our profession in general. While there has been much talk about the demands of the IMF as regards bringing in their dictatorial sweeping changes to the profession, there’s also been a lot of time spent in the promotion of many ‘Law without a Lawyer’ schemes. Take the much heralded Mediation for example. The Mediator gets an upfront payment and the process is not binding. Well, our clients don’t pay up-front, as most could not afford to do so on the average industrial wage. It is difficult enough to survive with a family in this day and age never mind putting us in funds in advance for our work. Don’t lawyers already mediate? Don’t we settle cases whenever possible? Of course, the Elite have no such problems. But they do live on a different planet from the rest of us mere mortals and have their own unique set of lawyers to act for them.

The Legal Profession not only needs reform but it needs investment in its pursuit of Justice for All. I have no time for the ‘Law without a Lawyer’ Brigade both from within our profession and outside of it. We must as lawyers, use our expertise for the betterment of the Citizen and not allow our clients be charged for a service which is second-rate and run by Insurance Companies, Developers, Bankers etc. who have their own vested interests to protect. In the United States it is common place for property buyers to deal with their Realtors directly and let them handle all conveyancing matters regardless of whether any conflict of interest occurs. They then satisfy themselves with the purchase of  Title Insurance – from their friendly Insurance Company –  which they will rely on should disputes arise at a later stage. This is not the way forward if the purpose is to keep the best interests of the client foremost. It will enrich those who act for the Developers and their Insurance cousins. In England you have licensed conveyancers. They are no substitute for a properly qualified and experienced lawyer. You must insist on a professionally qualified lawyer to act for you, you alone, and have no conflict of interests. Your lawyers must read the title and take all steps necessary to ensure that the title properly vests in you and you alone.  Remember it’s not just the bricks and mortar that you are buying. It is in essence the title to the property that you are spending your hard-earned cash on.

We see the Courts being circumvented in regard to the victims of Institutional abuse. Redress Boards being introduced to look after the victims. It is unfair to the victims that they cannot have their cases processed through our Courts to provide them with the necessary compensation that is rightly theirs. Beware of Government interference in the rights of the Citizen. It is my view, that the interests of the Citizen are being compromised, not those of the offenders. In personal injury cases, Juries were abolished following successful lobbying by the Insurance Industry. So, the Citizen was removed from the process as the Insurance Industry asserted that they could not be trusted to sit on Juries. Sure what would they know about injuries and compensation ! It should be noted that awards increased thereafter. Not satisfied with this outcome our Government, again at the behest of the Insurance Industry, abolished the right of the Citizen to bring his/her case before the Court without first having to submit same to PIAB, or should I say, The Injuries Board. Look at what a simple Google search brings up regarding their sterling service…..

”You can avoid solicitor fees by applying directly to the Injuries Board. Our dedicated team are available 8am-8pm Monday to Friday to help you.

…Well, how professional is that ? Are they qualified lawyers with years of experience running cases day in, day out, before the Courts ? No, and going by their propaganda it’s quite clear they want to avoid solicitors i.e. the experts, at all costs. So do you want their ‘dedicated team’ or do you want an expert to look after your case? You MUST bring your application before them and unless you do so you will be denied your constitutional right to bring your case before our Courts of Justice. Nice one Ms Harney. You cynically undermined the rights of the Citizen, which I’m told you’re very proud of. Isn’t it really nothing more than a cynical attempt by ex-Minister Mary Harney to undermine solicitors and their clients. It was not the interests of the Citizen that was foremost in Minister Mary Haney’s mind, but to create a ‘Lawyer Free Zone’ which would see her Insurance Company friends decide on what the Citizen was awarded. The continuous compliance with the wishes of the Insurance Industry, at the expense of the Citizen, is nothing short of a disgrace. It is no wonder that now, the same Citizen has been forced by ‘Our’ Government into embracing austerity in order to bail out the Developers and the Banks who enjoyed such a close and cosy relationship with our Government Ministers.

Be under no illusion. Reform of the Legal Profession as proposed by the IMF (Bankers) will be used to further expose the Irish Citizens to more ‘Law without a Lawyer’ schemes. It is the legal profession who stand up for the rights of the Citizen not any Bank, Insurance or other such vested interest Groups. It is the right of every Citizen to have access to our Courts to pursue their rights. Are we to deny you, the Citizen such rights? Are the Courts the sole preserve of the Rich and the Elite in our Society? We need investment in our Courts and the way we do business. The Courts are there to protect us from those who hurt, abuse, neglect and victimize us. Those who try to deny the Citizen the protection of the Courts are being nothing short of immoral.

It will be interesting to see how Minister Shatter, himself a solicitor, with his own high-end Firm, and with an acknowledged dislike of the Bar ( The Barristers ) handles the IMF Brief on reform of the Legal Profession. I’d say some interesting times lie ahead.

LegalEagleStar , Wednesday , 3rd. August , 2011

Waiting for a Phone Call, Listening to Enda, my Grandson Toes and a Red HairDryer

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Taoiseach Enda Kenny

Image by Tom Szustek via Flickr

Today has been a frustrating day. Started off fairly well, as well as could be expected. Yet another sleepless night worrying about the kids, the dog, my mother and a couple of clients who I feel really sorry for. Then the phone call I’m awaiting, well hoping for really.

The day started with me listening to Newstalk Morning News. Maybe it was just the sound of Enda Kenny’s voice declaring that he hadn’t lied to the electorate when he said he was going to protect and maintain the services of a Hospital prior to the General Election. He hasn’t, and has now ‘seen the light’ and realised he can’t fulfil his election promises. Nothing new there you might say. Well, what was the purpose of the original statement? If it was to ensure that he and his Party got elected then things would make sense. Because now, we’re told that Hospitals are unsafe and we need to go to the Major Hospitals for care. The problem is compounded as we’re now told by the Doctors that the major hospitals are unsafe. I’m sure, like me, you are fed up with Spin and the absolute nonsense we’re expected to believe. On the facts today it seems that all the Medical Negligence cases we have Must Succeed as quite clearly today… all hospitals are unsafe, according to Enda Kenny, our Fine Gael Taoiseach. If only life was as straight forward as that. Listen, Enda lied to get elected. That’s the story. No more, no less.

So, angry and frustrated I head into the shower. Lovely moments alone, with the sound of the water caressing you for those few minutes. Maybe after Enda’s Government start rationing water, charging us enormous amounts to actually use the water.. I’ll have to take a quick shower. To think that we’re a small island surrounded by water ! The loss of my only morning pleasure will be a sad day. Maybe I could give the dogs half a bowl of water instead of two. That would conserve some water… or maybe that would be cruel. Will the Minister make a Doggies allowance for us? Will he hell.

It’s now mid morning. All my calls, bar one, have rung out. I’ve left message after message but so far, nobody has phoned me back. No, after checking, it is indeed A.M. not P.M. and it is a weekday, not the weekend or indeed a Public Holiday. What to do. Sure maybe I’ll write this weeks Blog. Yes I’ll do that.. Wait, a phone call for me. Great, ‘Hello Tom Baldwin, who am I speaking to?’ Oh no, ‘I don’t want to talk to you ! No, my computer is fine. No, no …’ While I try to be civil to this foreign gentleman, I end up telling him to ‘Feck Off’ and slam the phone down. Maybe that will have the effect of me being deleted from their database. Wait, was that the guy or was that in fact my Bank? Now, I’m not sure. After some moments I decide that it could have been the Bank. Well, if so, I gave them the right answer.

Nearing lunchtime, I’m home and sitting down working on research for my Blog. Then, at the door I hear a shriek.., ‘Aarsse’. I know that sound. It’s Toes, my grandson, coming to visit me. So, off to play then. After lunch it’s clear said Grandson is getting narky. I ask him if he wants to go to bed? Shake of the head indicates No. I’m not convinced. Are you sure I ask him. Same response. After some time playing with the Dogs and the Parrots I ask again, as I’m unconvinced that he is sufficiently alert to last the afternoon. So, upstairs to bed, turn on Daughter No.2’s Red Hairdryer and put Toes to bed. As I lay on the single bed beside him I start to feel guilty as I wave to him. Hold on, he’s dropping off. Yes, result ! Problem is that I’m doing the same. OK, back to the computer. I wonder will any of those gentlemen and ladies of my esteemed profession actually return any of my calls ??  Well, I suppose, I can only live in hope…..

LegalEagleStar  Tuesday , 12th. July , 2011.

Divorce in Ireland today in this Economic Downturn

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Divorce Cakes a_007

Image by DrJohnBullas via Flickr

When a marriage breaks down or a long-term relationship ends, it’s a tough time for everyone involved. It’s not just the couple themselves who experience the hurt and/or anger of the separation but also any children that either, or both of them may have, their immediate families and also close friends.  Of course, when a couple separates, it is not as simple as it once was. Today with the economic downturn the money is simply not available to effect a proper separation. People  didn’t need to worry about joint bank accounts and mortgages in the past.  When a relationship breaks down everything needs to be regulated. What were possibly at one time, simple everyday matters, have now to go through the long process of being sorted. Parties need to agree, or have a Court decide, custody and access of any dependent children; deciding where the children primarily live and what days and times the other parent may see their children; child and possible spousal maintenance; what will happen to the family home and any other possible houses or assets, pension entitlements, car/s etc. While an amicable breakup is desirable, it is not always possible and in many cases either one or both parties will look for the kitchen sink from the other. In  previous years, which at this time, seem somewhat of a blur, parties separated and huge settlements and significant maintenance were awarded. Cases were fighting for dates to be heard in the High Court. Nowadays, the High Court lists are quite slim with the majority of cases being heard in the Circuit Court.

There are now huge difficulties for lawyers trying to negotiate settlements even where an agreement is reached between the parties. To use by way of example, the following scenario. Say there is a family home and an investment property, and the agreement reached is that one party remains in the family home with the children, while the other party is to live in the investment property. It is agreed that each will be the sole owner of the respective properties and be responsible for that property’s mortgage while allowing the other party off  the mortgage. The Court rules the settlement, but then the Banks will not allow either party off either mortgage. This, even where the parties indemnify each other to the best of their abilities and with the best of intentions. Where one party later defaults, the Bank can still go after both parties and the settlement reached can effectively become worthless.

So, what do people need in a good family lawyer?  Some individuals falsely believe, that by going to one of the Big Named Law Firms, they are getting the best Solicitors and Barristers in the business. In the current economic climate, I believe that some firms continue to charge inordinate fees, when people are struggling to maintain one household, let alone two, which is the effect post separation. I believe this is unjust. While some cases involve more working hours than others and fees vary in this regard, I do not believe people should be paying more for one solicitor than another largely due to the name that appears on the headed paper. Unlike Solicitors, Barristers are a completely independent body and again, while some cases involve more time and paperwork than others, Barrister’s fees will, in most part, be the exact same whether acting for a Big Firm or a Small Practice. Many successful Family Law Barristers, contrary to common belief, act for everyone from the Legal Aid Board, to the local one man solicitor who employs two people, right up to the big firms who employ several hundred. In the times that we live in, it’s also important to remember, that while you do not want to be ‘ripped off ‘  and would like value for money, equally you must be aware of these so-called ‘quickie divorces’ where you think you are getting a bargain and the fees are very low. Later down the line however, you may find yourself in difficulty where transactions haven’t been completed or haven’t in fact been done correctly. In deciding what Solicitor to engage, you must think about yourself and what your needs are.  Some Solicitors and Barristers in the family law field have an aggressive approach, while others have a nurturing view. And then others, just effectively, say it as it is. Personally, I believe a down to earth, friendly, straight forward approach is ideal. I also believe that a party going through a separation has enough physical and mental strain going on in their lives, that an aggressive legal team can sometimes make matters worse and the hopes of a settlement between the parties becomes more difficult. While your legal team does not necessarily need to be your friend, you do need to be comfortable with them and be able to speak openly  in order for them to best meet your needs.

What are you paying for?  You may see your bill at the end of a case and wonder how this figure appeared? Initially, a Solicitor will take your  instructions, explain the different options open to you and then write to the other party involved, informing them of your intention to separate and regulate matters between you. If you agree on a Separation Agreement, the Solicitor will draft this up and you will not need a barrister, nor will you attend Court. A Separation Agreement is in effect, a contract between the two parties and any breach thereof is a breach of contract. If the parties agree to a Judicial Separation or Divorce, in many cases a solicitor will brief a Junior Counsel (barrister) and, in some cases, a Senior Counsel also. The Barrister’s role is to draft the appropriate Court documents and deal with any Court appearances which, in some cases may just be one on the day of the hearing or, in other cases, where interim orders are required and/or where the other party is reluctant to participate in the case. In the latter scenario, Orders to compel them to do so, or have Orders made in their absence may be required.

Unfortunately, relationships will break down in good times and bad. Today we are in unprecedented times and the legal profession must respond to the needs of their clients in a way that reflects the true values in our society. Those values have unfortunately been decimated by the few in our profession who represent the vested interests of those who control our society. It’s time that the legal profession asserted itself in the interests of all who serve the interests of the citizen and lead the demands for true reform and oppose the obscene vested interest groups who seek the ruination of our society and the downgrading of the rights of our Citizens. Elsewhere in the world today, it is the legal profession who are at the forefront of reform in the interests of the citizen and who suffer in such a cause. In Ireland  it should be no different. The politicians today are looking after the interests of the IMF/EU and the Banks, so there is a clear conflict of interests with the concerns of the Citizen.

Those who are unfortunate enough to suffer relationship breakdown in these troubled times deserve to be represented by us in the legal profession, having regard to the considerable strains that people are now enduring. Yes, the strain on relationships is now far greater in such troubled times. There are those that pull together in times like these but bad relationships will certainly not survive the additional stress they must endure today.

LegalEagleStar , Thursday , 30th. June , 2011

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