Let's Kill some of the Lawyers

4 0 October 2016

POLITICS

AM A LAWYER.

I’ve said it. You may feel that positions me

on the level of an amoeba or vermin but I

believe I am ethical, professionally compe-

tent, creative and that I and many of my

colleagues often do good things ﬁghting on

behalf of the voiceless and the victimised.

But I must admit there are problems within the

profession domestically and worldwide.

This article intends to illustrate some of the

best and worst legal practice.

Corporate Law

Show me a lawyer who is genuinely intellectually

interested for example in mergers and acquisi-

tions law, save perhaps as the by-product of a

professional skill well exercised, and I will call

the person to book as a boor or a charlatan: not

interested in mergers and acquisitions, but in

the money to be got from fabricating an interest

in mergers and acquisitions. The interest is fake.

In fact an interest in mergers and acquisitions

or taxation law connotes a deep-seated psycho

logical malaise. There are far more interesting

things in life and indeed law. Anyone who has

ever worked in a corporate sweat shop, as I have

- a place called Hughes, Hubbard and Reed in No

1 Wall Street (“Hughes,

Cupboard and Greed”) -

will conﬁrm that to acquire

the lucre you so assidu-

ously seek you are boxed in

a gilded corporate cage like

a puffed battery hen spending

as much time calculating the bill-

able hours as actually working. Your

friends think it is glamorous but you know

it is ignominious. Much more important than the

quality of work produced is the amount of time

spent. And quality dedicated to securities and

derivatives or mergers and acquisitions Oh

super. Have you ever seen this stuff?

You will serve as the twentieth-person backup

in a deal represented by a composite document

that is laboriously copy-checked and footnoted

drawn from a crucial well-tested all-important

template to produce something that might end

up in a short hearing which you will probably not

be involved in

Anyone interested in advocacy should steer

far away from corporate law. There will be no

showtime or theatrics. You will have no stake.

This is anally-retentive churning, soul-destroy-

ing work.

Practitioners of such ephemera subject them-

selves to endless, pointless work and no

holidays. A corporate-lawyer friend of mine from

New York visited me for the ﬁrst time in ten years

on his ﬁrst holiday in that time – a ﬁve-day break

in Dublin - and he had to be at the computer for

a few hours every day!

Further, many lawyers I met on Wall Street in

particular – but elsewhere too - seemed drawn

unmitigated from the novel

'American Psycho', danger

ously psycho- or

socio-pathic - over-organ

ised and compartmentalised,

rigid and fetishistic. For the

sake of completeness you may

care to note that sex for these

forensic Gordon Gekkos was a book-

able appointment, boring and consumerised,

between meetings. Dirty love in the afternoon.

Don’t think of the day-to-day reality of the new

you: shrivelled and desexed. Commodiﬁed.

Ossiﬁed. Bored. Sold-out.

Ascending the corporate law ladder: a mis-

spent youth.

As a lawyer I have on occasion faced threats.

For example one ebullient East-End client was

perfectly polite until after the acquittal.

Then he asked to meet for a ‘sing-song’ in a

seedy alehouse: “I didn’t want to say it to you

but you are Irish, and if you had messed up I

would not have taken it kindly. Know what I mean

son?”

The threat was very clear. Needless to say I did

not go for the pints.

In any event it needs to be be said that police

ofﬁcers have issued me threats even more sinis-

ter - insinuating that I was some sort of juvenile

delinquent gone wrong for anti-State work or

Garda criticism; bugging my phones - an occu-

pational hazard of a human rights lawyer;

expressing their closeness to lower-court ofﬁ-

cials and high-ranking civil servants, perhaps

issuing a death threat, as if we lived in a third-

world Police State.

Corporate law is

anally-retentive

churning, soul-

destroying work

Let's Kill some

of the Lawyers

Corporate law is boring

but trials are fun

by David Langwallner

Bastard

This article

illustrates some of

the best and worst

legal practice

October 2016 4 1

East-End gangsters aside, I once represented

hunt saboteurs in England, before the local hunt,

gloriously incarnate as the magistrates’ court

bench where innocence was not always pre-

sumed in such dogﬁghts. One magistrate sotto

voce intoned of my clients before our hearing:

“I’d ﬂog them”. The rules pertaining to fair pro-

cedures had little application in this context.

Big ﬁrms in fact don’t even train you: they

‘invest in’ you with little to equip you to deal with

your post-corporate existence, least of all run-

ning your own show. Medium-size boutique

ﬁrms on balance provide the best career. But

don’t expect nutrition for the soul.

As your lifeblood drains dream of your bank

account and try not to dwell on the corporate-

law-ﬁrm structure that sucks you dry and then

disposes of you just when you’ve got addicted

to the salary.

Nonetheless, give me an outing in criminal law

for the Kray clan any time, over corporate law.

Debasing the law

For those who care for more gentlemanly or lady-

like times there has been a foul but gradual,

insidious penetration of American work prac

tices into Ireland, blind to our native frugality,

scrupulousness and indeed noble tradition of

law dating back to bardic times.

The IFSC is full of the elites of South County

Dublin, lucubrating over the tedious clippings of

global corporate avarice. Solicitors in the ‘big

ﬁve’ ﬁrms are as specialist and hungry as any

attorney on the seventieth story in Manhattan.

They have even affected the jargon of brash US

ﬁrms: corporate responsibility, doing a meeting

and a range of moronic baseball analogies:

touch base, rain check, curveball. In Ireland law-

yers once loved - once had to love – language.

Literary lawyers

Symptomatically, this country, the land of the

Book of Kells and the monkish scripts, of Beckett

and Joyce, characteristically generates poorly-

written mass-produced textbooks like

wallpaper: heavy on the facts of the law but low

on criticism or analysis. In the end, anyone can

write an Irish textbook on The Law of Dogs or of

Parks, with a brief introduction by a judge, prob-

ably written over a bottle of wine, skim-reading

the effort but expressing gratitude, nay respect,

for the important contribution to our law.

Better rather that someone should unleash

The Irish Rumpole or True Crime as Stig Larsen

did in Sweden or as Scott Thorow and Grisham

do in the US. Let us focus on law in reality not the

paper rules of mass-produced textbooks.

In fairness there is some civilised life at the

Irish Bar. Adrian Hardiman was a famous

Joycean. Frank Callinan, a senior counsel and

Brian Cregan, a High Court judge, have tried their

hand at Parnell with some éclat. John O’Donnell

SC writes poetry and serves on the Arts Council.

Not enough. Where is the Nell McCafferty who

documented the dysfunctionalities of the lower

courts a generation ago? We need a Dickens to

chronicle the contemporary Jarnydyce v Jarny-

dyce that is our banking and debt-collection

mess.

Trial Lawyers

Trial lawyers, particularly criminal lawyers, are

different. A species apart.

In fact some would say they are not lawyers

but hucksters, song-and-dance men, functioning

alcoholics, impresarios, vaudeville acts, presti-

digitators. They are not always very well paid but

they as a breed are interested in the challenge

of beating the system – no petty ambition. Fine-

tuning the gentle skill of cross-examination is a

dark art the facility for which is innate. Here

knowledge of the law is scarcely the point: this

is the study of lies and of liars, of human nature

and psychology, the science of setting traps, the

art of surprise; all underpinned by the careful

assembly of evidence, the sanity that pulls the

rest together. This is art in law.

The best exemplar is perhaps fictional:

Despite attempts by his friends and family to get

him to move on to a more respectable position,

perhaps as a Queen's Counsel (QC) or a Circuit

Judge, Rumpole only enjoys the simple pleasure

of defending his, often Legal Aid, clients. A

"character" with a simple credo ("Never plead

guilty!").

Rumpole has no respect for judges who hand

down verdicts in their minds before their cases

are even heard, or coppers who fabricate evi-

dence, or even some of his clients, who attempt

to use him for their own convoluted scams.

When I worked in London's 5 Paper Buildings

chambers, the clerks would regale me with sto

ries of Caesar James Crespi QC who was the

model for the Rumpole books, and was injured

in the IRA Old Bailey bombing. He claimed to so

Your friends think

it is glamorous

but you know it is

ignominious

Let them at it

4 2 October 2016

love the Bailey that he'd interposed himself

between the building and the bomb! The clerks

insisted that he got so fat that they would have

to carry him from the top ﬂoor of chambers to

court and, on a sedan, to his favourite wine bar

as if he were a Persian pasha. His name is

inscribed on Fleet street at the wine bar, in the

chair he once spread all over.

Ireland has its advocacy geniuses. Paddy

McEntee and Adrian Hardiman, who died

recently, are the most famous. Maybe Dermot

Gleeson. Curiously women rarely ﬁgure.

A famous case showing the skill of McEntee

involved Fr Niall Molloy who died after suffering

six blows to the head in the aftermath of a wed

ding. At the later trial of Richard Flynn in the

Circuit Criminal Court for manslaughter Patrick

McEntee SC allowed nine witnesses to give evi

dence in just 90 minutes without any questioning.

State Pathologist Professor John Harbison gave

evidence that the priest died from the injuries to

his head.

The charismatic and compelling McEntee had

one shot at victory. He put forward another ver

sion of what happened: as he ran to attack

Richard Flynn, the priest had a heart attack. Still

standing, he received three blows from Flynn. As

he fell, he hit his head on the bedpost, the bed

board and the ﬂoor. This accounted for the evi

dence of six blows to the head. Harbison agreed

it was a possibility

It would not be safe to put the case to a jury,

McEntee argued. Judge Roe should direct the

jury to ﬁnd Flynn not guilty. It worked.The judge

called the jury back. Incredibly, he told them:

"Professor Harbison agreed that there was a

possibility that Fr Molloy died of a heart attack."

The accused had to be given the beneﬁt of this

possibility, and declared innocent. Thirty years

later there are persistent calls for an inquiry into

what actually happened.

Ireland’s traditions of forensic brilliance are

second to none.

In 1895 the Marquis of Queensbury, who

thought his son, ‘Bosie’. was being corrupted by

Oscar Wilde, sent a card to the Albemarle club

saying “To Oscar Wilde posing Somdomite” [sic].

Wilde prosecuted him for criminal libel. In cross-

examination, barrister and father of Irish

Unionism, Edward Carson mentioned the name

of a servant boy, Walter Grainger, then suddenly

asked: “Did you ever kiss him?”. Wilde unwisely

replied, “Oh, dear no. He was a peculiarly plain

boy. He was, unfortunately, extremely ugly. I

pitied him for it”. Carson asked, “Was that the

reason why you did not kiss him?”, to which

Wilde could only respond to his one time peer in

Trinity College, “Oh, Mr Carson, you are perti-

nently insolent…It is a childish question”.

Wilde’s reply seemed to say he had not kissed

the boy but only because that boy was not good-

looking. Wilde lost the case, and his fate was

sealed.

Carson was briefed

in another case at the

turn of the last cen-

tury, involving the

Cadbury company

which at that time

got most of its

cocoa from slave

labour on African

islands. Slaves were

treated viciously. Cad

bury proﬁted hugely but

traded on its reputation as

a model employer. The Evening

Standard exposed the hypocrisy

and Cadbury sued for defamation. Closing his

cross-examination of William Cadbury, Carson

asked: “Have you formed any estimate of the

number of slaves who lost their lives in prepar-

ing your cocoa from 1901 to 1908?”: Either

answer would be fatal. Cadbury replied damn-

ingly: “No, no, no”. The jury awarded damages

of just one farthing contemptuous damages.

After his capture near Banna Bay during the

Easter Rising in 1916, Roger Casement was tried

in London for treason. He had been seeking to

recruit an Irish Brigade from among the more

than 2,000 Irish prisoners-of-war taken in the

early months of the war. FE Smith, later as Lord

Birkenhead Lord Chancellor, Winston Churchill's

greatest personal and political friend until Birk-

enhead's death at age fifty-eight from

pneumonia caused by cirrhosis of the liver,

asked the jury rhetorically: “How was it, when

his country was at war with Germany, that we

ﬁnd him a free man moving about Germany with-

out restraint? No answer has been given …

because none can be given consistent with the

integrity of the accused”. Another quirk of that

case was that Casement's crimes had been

effected in Germany though the 1351 Treason Act

seemed to apply only to activities carried out on

English soil. A close reading of the Act allowed

for a broader interpretation: the court decided

that a comma should be read in the

unpunctuated original

Norman-French text,

crucially altering

the sense so that

"in the realm or

elsewhere"

referred to where

acts were done

and not just to

where the "King's

enemies" may be.

Afterwards, Casement

himself wrote that he was

to be "hanged on a comma".

He was duly executed in Penton-

ville Prison.

The same FE Smith once appeared for a

defendant insurance company in a case where

the claimant was a man who wanted damages

for an injured arm. While asking the claimant a

series of mundane questions about the injury,

Smith inquired: “How high could you raise your

arm before the accident?”. The man obligingly

demonstrated thereby instantly defeated his

own claim.

Sir Rufus Isaacs dramatically opened the

cross-examination of Frederick Seddon, on trial

for the murder of his lodger Eliza Barrow. Isaacs:

“Miss Barrow lived with you from July 26, 1910,

to September 14, 1911?” Seddon: “Yes”. Isaacs

sprang: “Did you like her?” The unanswerable

question wrongfooted Seddon. If Yes, why had

he given her a pauper’s grave? If No, the suspi

cion against him would worsen. Seddon was

executed.

Penguin, publishers of DH Lawrence’s 'Lady

Chatterley’s Lover' were prosecuted in 1960 for

obscenity. John Grifﬁth-Jones, prosecuting,

alienated the ordinary men and women jurors

when he asked: “Is it a book you would even

wish your wife or servants to read?”. The jury

acquitted. And be careful giving evidence. Coun-

sel may not make you shine. Samuel Beckett,

giving evidence in a libel case being taken by

Oliver St John Gogarty, was humiliatingly

denounced by Gogarty's counsel as "the bawd

and blasphemer from Paris". The judge didn’t

like him either. Mr Justice O’Byrne advised the

jury: “He did not strike me as a witness on

whose word I would personally place a great

deal of reliance”.

Sometimes a trial lawyer gets permanently

diverted. I spend much of my youth on the inter-

national debating circus. Michael Gove, recently

imploded marauding disloyalist Brexiteer, was

a direct peer on the circuit. We were not on the

same wavelength. I recall winning the Observer

Mace after he heaped all his rhetorical chips on

a point of information which I allowed after I had

said I was a follower of Dworkin. On and on he

went, using up his precious time allocation to

establish that I was over reliant on the lesbian

polemicist, Andrea Dworkin and had not

POLITICS

Dream of your

bank account and try

not to dwell on the

corporate-law-ﬁrm

structure disposes of

you just when you’ve got

addicted to the salary

Edward Carson

October 2016 4 3

appreciated the subtlety of her thought. When

he was ﬁnished and just before the ﬁnal bell I

offered him a point of information and simply

clariﬁed that my reference was to legal philoso-

pher, Ronald Dworkin. His argument was

irrelevant and his time was up. Subsequently he

exacted a revenge when he delivered a twenty-

minute speech to an Oxford Union dinner about

my personal life and indiscretions with women.

I know what it is like to be Johnson.

Mind you, the best lawyer I have ever seen was

an English shipping lawyer. I recall as a pupil

barrister in 4 Essex Court chambers in London

two QCs and their two juniors scrambling around

the night before a case when a number of gold-

embossed submissions on vellum paper in

burgundy-leather volumes arrived in from their

one opponent on the morrow, Bernard Anthony

Rix QC - eventually a Court of Appeal Judge,

prompting an odd mixture of awe and derision

from his serried antagonists. They agreed to

arrive before him in court but he was there

already on his own, politely wondering whether

they had received his submissions before scan

ning theirs in a nanosecond. He was on his feet

for the whole day without reading out any of the

documentation from either side, though he cited

relevant passages verbatim from his most formi-

dable photographic memory. He was unafraid to

tell the court of appeal that they were wrong.

Indeed stridently, indeed confrontationally, and

brusquely but politely he showed them marshal-

ling standards of directness and candour sadly

lacking in our over-deferential advocacy

structure.

Certainly criminal lawyers have their ethical

conundrums. First, they often represent guilty

people or rather people in their heart of forensic

hearts they know to be guilty. The ethical stipu

lation, difﬁcult for the layman to understand, is

simply not to ask the question for fear of the

answer you get. If a client tells you he or she is

guilty then the stringent obligation is not to raise

an afﬁrmative defence. You can challenge the

strength of the prosecution case but that is all -

or you can resign from the case. Of course some

defence lawyers buy into the idea that everyone

is innocent as the mad prosecutor caste (far too

many of who now sit bullishly on the bench) buy

into the idea that everyone is guilty and then

contrive constitutional and due process to ﬁt.

Which brings us to the tricky question of pre

cisely what constitutes legal ethics. The Bar of

Ireland ethical stipulations are in many ways

perverse and unethical. A kind of closed shop

rulebook to protect the good Fine Gael families

of Dublin. An article last year in Village showed

how the code of conduct – for barristers - deals

with ‘conﬂicts of interests’ for solicitors, but not

for barristers. Elsewhere the evidence shows

solicitors are not ﬁt to regulate themselves yet

the complaints regime was largely maintained

in last year’s Legal Services Act, after ferocious

sectoral lobbying.

Even more fundamentally, the law library is

rife with the fabrication of cases and the now-

epidemic coaching of witnesses. Careerist

prosecutors masquerade as public avengers. A

visit to a hearing in the family courts will con-

vince you of this. An American ofﬁcial rightly

said to me we should bring the United Nations

Human Rights Committee into our family courts.

What is worse, the lawyers involved often see

nothing wrong with it. Barristers who do this are

often celebrated by their peers and the state for

their careful dispensing of ethics. Not a deliber

ate lie but a half truth without regard to the

obligation to the court, to justice. Another per-

vasive contemporary feature of legal practice in

Ireland is the misleading of other lawyers or

indeed the court, often by the tendentious com-

pression of evidence or of agreements softly

spoken outside of a courtroom semi-reneged

upon before a statist judge.

Standards have certainly slipped. Results

have become key and any unethical ruse is

tolerated.

And then there are the zealots, statist zealots,

religious zealots, Opus Dei zealots.

And the simply evil and sociopathic. The lust

of advocates: the lust of judges. Ludovic Ken

nedy claimed that Lord Chief Justice Goddard

had an orgasm when he sentenced someone to

death. His clerk knew to bring a fresh pair of trou-

sers the last day of a trial.

Village recently covered an intra-judge affair.

Another judicial couple had an arrangement so

when an abrasive young junior announced her

affair with the husband, the wife stated simply

but prophetically: “You poor dear. It won’t last”.

Then there is money and fees. Counsel fee

notes are often elaborately contrived works of

ﬁction for advices which may be non-existent or

from template.

We have a ludicrously inefﬁcient legal system.

Insiderist guerilla campaigns by the Law Society

and Bar Council to undermine the Legal Services

Bill did not serve the consumer, for example by

reducing fees. More insidiously the campaigns

did not serve the junior bar for which the Bar

Council at least cares not a jot.

However, despite these overwhelming short

comings, lawyers, like the rest of the speckled

timber of humanity, may be good or bad.

“The ﬁrst thing we do, let's kill all the law-

yers”, advised Dick the Butcher, in Henry VI Part

II. For this cynical twentieth-first-century

observer many lawyers can be improved by

reform of ethics and greater diversity. Far too

many keel over far too early from ethical turmoil,

ego trauma, drink, lack of exercise, bad diet or

stress; or indeed all of these.

But let us not kill all the others. Some lawyers

have style. Some of them do a good job. Some

of them even do good. At the very least as bad

as they are you never know when you may need

one.

David Langwallner, head of the law department

of Grifﬁth College and of Ireland’s Innocence

Project, was educated in Trinity and Harvard

and is a practising barrister.

Ireland has its

advocacy geniuses.

Paddy McEntee and

Adrian Hardiman.

Maybe Dermot

Gleeson. Curiously

women rarely ﬁgure