The debate over Catherine Connolly’s work on behalf of financial institutions has brought an intense focus on the work barristers do – and what could, or should, be read into it. So, how might a barrister come to be briefed in such a case?
Several legal professionals, speaking privately to The Irish Times, say the allocation of work to a particular barrister depends on an array of circumstances.
The State maintains panels, which lawyers apply to be on. Outside of State work, lawyers say some corporate clients and their solicitors have internal panels of barristers they want to act on their behalf, particularly in the High Court.
While such panels are not governed by rules within the courts system, they can be formalised internally within organisations, with barristers even told explicitly by a large company or its solicitors – semistate companies, for example – that they are preapproved to work on specific areas. In such circumstances, there are associated fees for different types of work.
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Lawyers say that this work can provide a welcome and reliable stream of income, with some actively petitioning to be put on such panels. It can be an “extremely competitive” process, in the words of one barrister.
More frequently, the process is less formal – with “call lists” of barristers being approached by a solicitor by virtue of past performance, experience or availability. According to one barrister, the litigation departments of larger solicitors firms “have their pets”. Another barrister, who has done work for major financial institutions, says they have never been made aware of being on a panel.
However, there are more factors including geography, the court in which a case is being fought, the seniority of a barrister and when it happens.
Connolly’s work on behalf of financial institutions took place in the western Circuit Court in Galway, where Dublin-based barristers are less likely to appear, especially for less remunerative procedural work.
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The Irish Daily Mail reported on Tuesday that Connolly acted in a specific case in 2013 where a bank was seeking repossession of a family home. At that time, legal practitioners who worked in this field say there was a glut of cases coming through the system associated with toxic debts of the financial crisis. Funds which purchased bad debts in the crash, one barrister says, were not likely to name specific barristers they wanted for a Circuit Court case: “[A fund] couldn’t give a s**t who did the work . . . they just say they want it done.”
Barristers and solicitors who worked in the area, including in and around Galway, say the volume of work meant practitioners would have picked up work in these cases (often procedural) by being present in court – and that the system of briefing them, at least in the first instance, would have been more ad hoc.
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“Sometimes trying to get a barrister, they’re like hen’s teeth,” says one solicitor operating at the time. A barrister added that the key determinant might be that they were present and could take five cases in a day. The starting point was: “who’s there?”, in the view of one solicitor. These cases could often be delivered at short notice.
Over time, someone working in this area could cultivate their practice and earn repeat business, becoming “go to” people. Lawyers also argue that junior barristers would have found it difficult to turn down work without souring their relationship with a solicitor, never mind passing up the fee from a client guaranteed to pay out.
“Nobody in their right mind would have said no,” says one experienced barrister working in the area. The application of the cab rank rule means Connolly would have been obliged to accept such work (although some legal practitioners say there are ways of getting around this).
Her campaign had not responded to a query at the time of publication about the extent of her work in this area.
