Judge: 'Astounding' for solicitors to make unilateral decision not to represent clients in custody

There were 16 defendants up for sentence before judge, 10 of whom were 'custody cases' involving serious violent or drug dealing offending

Judge Martin Nolan made his comments in the context of a number of defendants appearing without a solicitor before Dublin Circuit Criminal Court sittings. Stock picture

A judge has said he finds it astounding that solicitors are not attending court to represent clients who are in custody as part of the legal aid dispute.

Judge Martin Nolan made his comments in the context of a number of defendants appearing without a solicitor before Dublin Circuit Criminal Court sittings.

In the dozens of cases affected, the court was informed by barristers for the prosecution or the defence that solicitors who were previously “on record” as acting for the accused were not in attendance because of the ongoing dispute.

On Monday solicitors escalated their protest with justice minister Jim O’Callaghan over changes to how they are paid under the legal aid scheme by withdrawing most services in court. Since July solicitors had withdrawn their services in “bail cases” — cases where defendants were out on bail.

A number of cases before Judge Nolan on Tuesday morning involved defendants who were in custody and the judge repeatedly criticised solicitors who were on record but were not in attendance. He said that there is a statutory procedure set out whereby if “people want to come off record they must come to court”.

“I am surprised and taken aback that solicitors adopt this approach of leaving their clients in custody unrepresented. It is the most basic duty of a solicitor to represent a client in custody.

“For solicitors to make a unilateral decision not to represent their clients in custody is... astounding. 

"If solicitors think their dispute with the (Justice) department is more important than representing their clients in custody... I find it hard that solicitors would adopt this position,” he said. 

Judge Nolan's comments came in the context of a man facing sentence for theft.

In another case, a defendant appeared via video-link from custody. Judge Nolan said that the solicitor on record “has refused to come to court” and “is failing in her obligation to her client”.

“If you are on record, you must act for your client. The courts have been very, very flexible in relation to non custodial cases. It seems solicitors have lost sight of their duty to their clients who are in custody,” he said.

Defending counsel Oisin Clarke said the matter could not progress in any case because the accused needed a psychiatric assessment. The defendant spoke directly to Judge Nolan and said he didn’t need a psychiatric report and that he has been in custody since February and it was “literally breaking” him.

Judge Nolan put the case back into the list for mention next month and asked Mr Clarke to speak to the solicitor.

“This man needs help. He is in custody. He needs someone to talk to him,” Judge Nolan said.

There were 16 defendants up for sentence before Judge Nolan, ten of whom were “custody cases” involving serious violent or drug dealing offending. Instructing solicitors were in attendance for five of these and the sentence hearing went ahead.

There was no solicitor in attendance for the five remaining “custody cases” and the six “bail cases”. These cases were all adjourned for sentence to dates in mid to late November. One of these involved a defendant on bail awaiting sentence having pleaded guilty last June to the sexual assault of a female in Dublin in 2023.

Most of the 32 other defendants up before Judge Nolan for mention or for arraignment — where defendants can either enter a guilty plea or elect to take a trial — appeared without an attending solicitor and were adjourned to future dates.