The Honorable Society of King's Inns was established in 1541, the same year in which the lordship of Ireland became a realm of King Henry VIII. From its outset, the King's Inns had a gatekeeping, regulatory and representative role with regard to the barristers' profession.
However initially, it had no educational role, because the Statute of Jeofailles of 1542 provided that a period of residency at a London Inn of Court was necessary in order for a person to practise law in Ireland, a requirement that remained in place for more than 300 years.
The history of the Inns is fascinating, and in many ways it mirrors that of Ireland itself. However, when one considers the motto of the King's Inns, nolumus mutari 'we will not be changed', one can be forgiven for wondering, is it not time for a change of motto? The King's Inns comprises members of both the judiciary and the Bar, and today it controls entry to the barristers' profession and plays a significant part in its education and discipline.
The Legal Services Regulation Bill 2011 promises to introduce the most fundamental reform of the legal profession since the foundation of the State, and arguably, since the lordship of Ireland became a realm of King Henry VIII. The legal profession has traditionally been self-regulated, and the Bill is set to bring radical reform in that regard. The enactment of the Bill will bring much needed clarity, openness and accountability to the regulation of the Bar and also to the solicitors’ branch of the profession. Most importantly, the Bill will introduce a system of independent regulation for the legal profession, and an open, transparent and much simplified disciplinary process.
The present system for disciplining barristers is archaic, complex and somewhat dysfunctional. First, there is the rather strange division between the bodies which investigate complaints that depends upon who actually makes the complaint. Whereas a complaint emanating from a fellow barrister or a judge is privately investigated by the Professional Practices Committee, a complaint emanating from a mere member of the public is privately investigated by the Barristers' Professional Conduct Tribunal, with the possibility of an appeal to the Barristers' Professional Conduct Appeals Board, also to be held in private.
Representative body
All three of these bodies have their origins in the Bar Council of Ireland, primarily a representative body for the Bar, which rather vigorously endeavours to distance itself from regulatory matters, although the Professional Practices Committee has its origins in the Constitution of the Bar Council of Ireland, whilst both the Barristers’ Professional Conduct Tribunal and the Appeals Board were established in accordance with the Disciplinary Code of the Bar Council of Ireland.
Matters become even more complicated in the rare event of an occurrence of serious professional misconduct on the part of a barrister. Where the aforementioned bodies consider a barrister’s conduct is so reprehensible that disbarment is merited, the matter must be referred to the Disciplinary Committee of the King’s Inns. At this point, unfortunately for the complainant, the entire investigative procedure appears to commence once again, possibly with a complete rehearing of the evidence which was previously presented before the Barristers’ Professional Conduct Tribunal.
The Disciplinary Committee of King's Inns is comprised of three judicial Benchers, and where having considered a matter, in private, it makes a finding of professional misconduct, it submits a report to that effect to the Benchers, who must then hold a special meeting to further consider the matter. The Benchers are a sub-group of the Inns, comprising more senior barristers and judges, and it is they who make the ultimate decision, in private, regarding disbarment. In more than 470 years of the King's Inns' existence, its Benchers have disbarred only two members on grounds of professional misconduct, one in the 1790s, following "a tightening of professional standards" by the Benchers, and one in 2012, on foot of "disgraceful acts of professional conduct".
Disbarment unconstitutional
The latter case was that of Patrick Russell, and it is arguable
his disbarment was unconstitutional, given the Supreme Court ruling in Re O’Farrell and the Solicitors Act 1954 [1960] which, by analogy, suggests disbarment is an administrative act of justice – a judicial function – which ought to be performed only by the judiciary in an open court, in accordance with the Constitution.
Law by its very nature, being rooted in tradition and precedent, is resistant to innovation. However the Inns cannot remain unchanged indefinitely. The citizens of Ireland deserve a modern, functional legal profession, and the present regulatory and disciplinary authorities, as far as the Bar is concerned, are failing them. The Legal Services Bill, if enacted, promises to deliver some much-needed change.
Dr Maeve Hosier is an independent legal researcher whose PhD was on the regulation of the legal profession in Ireland