Two senior counsel representing the Flood Tribunal were accused yesterday of "dubious ethical standards" by another lawyer, Mr Garrett Cooney SC, during an argument about witness statements.
Mr Cooney, for the Murphy group, said he wanted the matter referred to the Bar Council and Mr John Gallagher SC, for the tribunal, countered angrily that this was an outrageous attack on his two colleagues, Mr Pat Hanratty SC and Mr Desmond O'Neill SC.
The row centred on a statement submitted by Mr Gabriel Grehan, former director of JMSE, on January 11th last, and an earlier draft statement of Mr Grehan's prepared by counsel to the tribunal in December 1998, after the two counsel interviewed Mr Grehan on November 30th, 1998 at his home in Dundalk. The tribunal was told last Wednesday that there appeared to be a number of differences in the two statements.
All parties were informed by the tribunal that the draft statement would be put to Mr Grehan when he gave evidence. On Wednesday, Mr Cooney objected to Mr Grehan giving evidence as he claimed Mr Grehan's testimony would be based on rumour and hearsay and not admissible.
Yesterday, the chairman, Mr Justice Flood, gave a ruling that Mr Grehan could give evidence. Mr Cooney said he would like to make submissions arising out of the ruling. If Mr Gallagher cross-examined Mr Grehan on the draft statement, he would be doing that based on something conveyed to him and to the chairman by other counsel in the case. That was in breach of the code of conduct of the profession. If the two counsel were acting in their capacity as investigators, they were obliged to do so with impartiality.
It would appear from the documention that the efforts of Mr O'Neill and Mr Hanratty were to buttress Mr James Gogarty's account of events which led to the establishment of the tribunal and undermine the account which they (the Murphy side) had furnished.
Mr Cooney said the first interview by two counsel of Mr Grehan was when they, unusually, travelled to his home without a solicitor attending. On December 16th, 16 days after the interview, the Murphys' solicitors furnished a statement to the tribunal which gave, for the first time, the fact that they had traced cheques which made up £30,000 which they say Mr Gogarty gave to Mr Ray Burke.
He wanted to know whether Mr Hanratty brought these statements to Mr Grehan when he interviewed him on a second occasion, on December 21st, 1998, when he went through the draft statement, and whether he raised the contents of those documents.
In Mr Grehan's outline statement in January, he used the phrase "on a frolic of his own". The first time the phrase arose was at the tribunal, when the chairman asked if his case was that Mr Gogarty was "on a frolic of his own". This phrase was not in common usage. He might be wrong, this was a phrase which must have been used to Mr Grehan in the interviews and he adopted it. He also asked to see the memorandum that the two counsel made for the chairman informing him of what transpired. "I don't want to be unduly critical of Mr Hanratty or Mr O'Neill, that's not my purpose, Mr Chairman, but it seems to me that what they have done in relation to Mr Grehan is of dubious ethical standards as far as our profession is concerned," Mr Cooney claimed.
He referred to the Bar Code of Conduct. One provision said: "A barrister must not, when conducting his case, assert as such his personal opinion of the facts or the law." Mr Cooney claimed it was quite clear Mr O'Neill and Mr Hanratty would be asserting their opinion as to the facts of this case. Another provision stated that barristers should not, before or during a trial, discuss the case with the trial judge in private or should do so only in the presence of each of the parties' solicitors.
Mr Cooney said it was clear counsel for the tribunal, having discussed it with the chairman, expressed a particular view on very fundamental facts which the chairman would have to decide and had done so in the absence of any other parties. There was at least a serious question as to whether a breach had been committed on that provision.
Mr Cooney quoted another provision: "A barrister may not coach a witness in his evidence." It appeared as if there was not only an attempt to coach Mr Grehan in his evidence, but he subsequently produced an outline of his evidence which, according to tribunal counsel, was not in accordance with the earlier facts, which was an effect of their coaching.
He asked that before any attempt was made by Mr Gallagher to cross-examine Mr Grehan on the basis of what Mr O'Neill and Mr Hanratty told the chairman in private, and which presumably they intended to bring to the tribunal in public, a ruling be made as to the propriety of the transactions.
Mr Gallagher said they were not seeking to buttress anybody. Their role was unique. Mr Cooney asked if statements the Murphy side gave to the tribunal were disclosed to Mr Grehan. Mr Gallagher said he could assure Mr Cooney they were not. The Bar code had not been breached. It was highly improper to suggest that counsel would attempt to coach witness.