22 minute read
Once in a Lifetime
by 256 Content
Stuart Gilhooly is a partner at H.J. Ward & Co. Solicitors. He is a former President of the DSBA and former President of the Law Society
There are few names more recognisable in the legal profession than Ken Murphy. The ubiquitous Director General of the Law Society has been in position for 26 years but as his 65th birthday approaches, he is leaving the institution he has made his own. Former Law Society President Stuart Gilhooly, who has worked with Murphy for nearly all of this time, met him as he contemplates his legacy and his future
By 2013, many Manchester United fans had reached their thirties without knowing any other manager than Alex Ferguson. 26 years of success came to an abrupt end when he finally stepped off the stage to be replaced by David Moyes. Although it is coincidental that Ken Murphy’s stewardship of the Law Society covers the same time span and while there were fewer trophies, there are also parallels. Many solicitors – including me, I qualified the same year he took over – will never have known another leader of the profession. Ken Murphy has become has become the voice and the face of the Society, meaning his impending departure will leave a hole not easily filled. Let’s hope his successor lasts longer than David Moyes and we don’t end up with Ryan Giggs running the Law Society.
When his retirement was announced in December, it came as a shock. Although I knew his 65th birthday was coming on 22 March, like most others involved in the Law Society, I believed he would seek an extension for at least another two years. But the effects of the last twelve months, which has taken its toll on everyone, didn’t spare even the phlegmatic Murphy. The joy
had gone out of the job and he had just had enough.
Walking into Blackhall Place to interview my friend and mentor, the setting has an eerie quality. The car park is empty and most of the staff are working from home. I walk down the main corridor of the ancient building and the beautiful stone flooring carries the echo of my footsteps as ugly yellow signs divide the thoroughfare into directional lanes. I’ve tread this path hundreds of times and knocked on his office door for the last 20 years but there is a poignancy to the last time. The door is locked as usual and Murphy greets me with a smile, dressed as always in a suit and tie. Nowhere to go and no one to meet but old habits die hard.
A Fortunate Wind that Blew me Here
His office is, let’s be kind, lived in. 26 years of memories are visually contained in Council books, old Gazettes and tapes or videos of his many media appearances. The chair and desk date from the days of his predecessor, Noel Ryan and are an odd sight in the office of a high-level executive. The chair in particular is a relic. Tatty doesn’t do it justice. Flea-
ridden maybe does. But he is a man who believes in tradition and isn’t driven by show or ostentation so counter-intuitively it fits.
We adjourn to the Council chamber where the table is bare and two chairs are distanced six feet apart. Although we are alone, the ghosts of former presidents linger. Portraits of William Hayes, Peter Prentice and Moya Quinlan look down on us with enquiring eyes and the newly arrived painting of the first solicitor High Court judge, Michael Peart, provides a welcome reminder of the progress made.
We have spent many occasions here debating the issues of the day with a full council and it feels incongruous that Murphy’s last meeting on 19 March will take place with just he and the President in this august room while the rest of us watch on a computer.
A council member since November 1983, he was elected twelve times to the Council (the whole council was up for election every year in those days) before taking on the role of Director General on 13 March 1995. Over that 37 year period, he attended 370 consecutive council meetings, creating an institutional memory unparalleled in the history of the profession.
His memories of those early council meetings in the 1980s are amusing.
“The Council would meet at 2.15 on a Thursday. The meeting would be held after a good lunch. There was a big debate about smoking in the council chamber. At 3.00, you were allowed to smoke so Paddy Glynn would take out a large cigar at that point and others would begin puffing away. It was a very different era. We moved to Friday morning meetings in the 1990s.” at this stage, based in Brussels for a lot of this period. When he returned to Ireland, the job of Director General surprisingly became available. Noel Ryan, who had been in the position since 1990, suddenly left to follow his passion by taking over at the Irish Horse Racing Authority. Was it a sudden decision to leave the comfort and certainty of partnership in a large firm?
“I decided quickly but not on a whim. I’d been elected to the Council twelve times and was five years away from the presidency. I was one of 32 partners in A & L Goodbody but there was only one director general. The fact that I am still doing it 26 years later suggests it was a good fit for my skillsets and I never regretted it.”
Murphy was interviewed by Law Society grandees Tom Shaw, Frank Daly, Laurence Shields and the President at the time, Paddy Glynn. As he points out smiling “gender balance wasn’t an issue in those days”.
The interviews took place in Price Waterhouse Coopers, home of the recruitment consultant, Tom O’Higgins. His two most immediate predecessors, Noel Ryan and Jim Ivors, had public service backgrounds and he reveals that his rivals for the position were mainly from that area.
However, Murphy feels his interviewers wanted a solicitor and he ticked the boxes.
His large firm background was helpful but they had seen him in action in recent reviews of both the education and the regulation departments.
He was the current chairman of the Education Committee and following his second interview, he received the call he had been hoping for.
“Paddy Glynn, in his inimitable fashion, said ‘Ken I think I will have to find a new Chairman of Education.’ That was how I found out I had the job.”
Steadfast Companions will Stand by him
He hit the ground running and set up a management team. It didn’t initially include his sidekick and partner in crime, Mary Keane.
“She was the secretary to the Council when I arrived. It became clear to me how bright and extremely able she was. We had a review group and one of the recommendations was that we would have a deputy director general and she, along with PJ Connolly, jointly took up that role. We have very different skillsets. We have made a great team. I have the height of regard for her. She is one of the most able people I have ever worked with anywhere. She is just superb. I am more of a big picture person, she gets stuff done, grinding out the detail. And the combination of the two has proved powerful and effective. She would have made a great director general if she was interested which she clearly wasn’t. We were also very lucky to have such a strong and capable management team.”
Mary Keane is the yin to Ken Murphy’s yang and while their personalities could not be more different, the contrast works. She will briefly take on his mantle until Murphy’s successor is in situ.
His 26 years has been a rollercoaster ride with no shortage of crises and major changes. From the army deafness controversy to the introduction of Personal Injuries Assessment Board and culminating in the recent damages debate, personal injuries has always been to the fore in the public consciousness.
“Every aspect has been contentious. The defence interests have always campaigned against the public interest. Don’t forget juries were abolished in 1988, it goes back that far.”
PIAB, driven by Mary Harney, was a major change and this was where Ken Murphy and I first forged a partnership as the only public voice for the accident victim.
“I knew Mary Harney for years. She was an old friend but there was no stopping her on this. And Dorothea Dowling, a media phenomenon, meant the combination was irresistible. I sat in at the Oireachtas debate and Mary Harney accepted no amendments.
Ken Murphy at a glance
FAMILY DETAILS Married for 32 years to Yvonne Chapman, who is retiring from her role as a language teacher in St Andrew’s College in the same week as I retire. Our three children are Gavin (a solicitor), Rebecca (a trainee solicitor) and, to show the family has some imagination, Charlotte who is a doctor. POETRY OR PROSE? Both. And maybe I’ll now have time to write. In the words of my hero, the late Seamus Heaney (whose mobile number I will never delete) ‘I rhyme, to see myself, to set the darkness echoing’. RUGBY OR SOCCER? Again both with an equal passion. I attended my first internationals in both codes when I was 11 years old and I’ve missed very few Ireland home matches since. LENNON OR MCCARTNEY? Controversially I prefer Paul as the greater genius and more attractive personality. Last year in lockdown I completed Philip Norman’s marvellous 850-page biography of McCartney. TIGER KING OR THE CROWN? Tough one but as I prefer to see the red-in-tooth-andclaw depiction of wild beasts savaging each other it has to be the Crown. WHAT ELSE ARE YOU WATCHING ON NETFLIX? Currently the family and I are deep into series 5 of How to Get Away with Murder.
We were dealing with a juggernaut at that stage.”
Defiance is Actually part of the Lyric job
Murphy is remarkably equable. In 25 years of knowing him, I’ve never seen him stressed or angry. This would appear to be his default setting but even he must have found the Redress Board controversy of 2005 a little disconcerting.
“It was certainly a crisis. Shortly after it broke, I did Morning Ireland, the Six One news and Prime Time on the same day. It was intense fire.
We had to immediately investigate but the allegations had to be based on evidence. When we had a team of staff in place, I had the idea of getting the TV news to film it. Then, of course, due process had to be followed. We weren’t naming any names and it turned out that there had been some overcharging but very few cases in terms of those involved in the process.”
As the controversy raged on, he set about rebalancing the argument towards its members.
“I remember going on Questions and Answers and pointing out that Irish society had consigned these people to hell-holes and it was solicitors who took the cases and forced the State to set up the Redress Board. I thought that helped to put it in a different context.”
Murphy received a lot of support for the Society’s stance on his visits to local Bar Associations. The President of the day and the DG visit between 12 and 14 Bar Associations per year. I personally attended 20 with him and marvelled at his extraordinary ability to treat each one as if it was the first time he had been and to recount his updates in precisely the same enthusiastic manner each time. It is a skill possessed by very few and will be sorely missed when visits are permitted once more.
“I enjoy Bar Association meetings. I estimate I have attended 350 in total during my time. The face-to-face engagement with colleagues is a powerful source of strength for the DG and the President. To hear, to debate and not just talk to them but listen. I have often come back to the office and shifted my position based on what I heard.”
At the other end of the spectrum, large firms have become more important and influential as the years have progressed so finding a way to hear their views was equally important.
“I was instrumental in starting visits to the managing partners of the large firms and also made a point of inviting them and some of their other partners to dinner in the President’s suite where we would discuss matters of mutual interest.”
His experience with his international counterparts has taught him much but one view from abroad rings particularly true.
“I came to realise that everywhere the Bar is seen by large firms as representing small firms and small firms as representing large firms. It is not unique to Ireland.”
Losing 37 years of institutional experience will be a challenge for the Law Society. Having finally shed much of its regulatory role, Murphy’s successor will find an organisation and profession that is adapting, like so many others, to a pandemic restricted world. What advice would he have and is being a solicitor a significant advantage?
“Someone who is not a solicitor will have a steeper learning curve, to learn the culture of the organisation and the profession. I think it was a great strength for me to be a solicitor.”
If you Have the Words
Ken Murphy became the voice of the profession and was always at ease in front of a camera or microphone. The next Director General may not have the same skillset or may feel different voices, such as the President of the day, are preferable. Murphy has strong views on the subject.
“The profession doesn’t care who the spokesperson is. It cares about how well it is done. It should be done articulately and persuasively. It is a subtle skill learned with time. The more often you do it, the better you get. If you get a President coming in with no background or aptitude in media, you could get disasters. Asking a President, who changes from year to year, is an amateur approach.”
Whoever takes over won’t have Ken Murphy flattening their learning curve or looking over their shoulder, depending on your point of view. He will leave the building
Ken Murphy and the late great Seamus Heaney sharing a moment at Blackhall Place for the last time on 22 March and won’t look back. He doesn’t do regrets or harbour grudges.
“The only regret I have is that I didn’t leave a year ago. The last year has been fairly joyless. In general, I’m future focussed and positive and I think happier people are.”
What does the future hold for a man loves his job and has been involved in the Law Society for so long? Like almost any question Murphy is asked, the answer is sanguine.
The Squat Pen Rests
“I have had a couple of approaches so far, I will choose to do what interests me and what I want to do. Eugene McCague [an old college friend] keeps talking to me about doing memoirs. I will be reading and writing. I loved literature before I loved the law. The only downside is the absence of travel at the moment. Yvonne [his wife] and I would like to live part of the year in France when that is possible. I’m never bored. There are lots of things that interest me and we still have two kids living at home.”
Murphy’s appetite for legal politics will be sated by his continuing involvement with the International Bar Association where he is vice chair of the Bar Issues Committee and the Policy Committee.
He is a man who never saw a camera he didn’t like and there are many photographs of him over his long association with the Society. What many remark on, and is undeniable, is how little Ken Murphy has changed. He doesn’t look his age, or anything close to it, while his hair remains the same colour and style it has been for 40 years.
Slowing down, tending to the garden will not keep this retiree busy. He is a man of huge energy and no little wisdom. I remember he once explained to me that the most important part of his job was judgment and it is a commodity that is often underrated.
In the time I have known Murphy, he has never let his profession or employer down. As an outside-the-box thinker and strategist, he has few peers. His replacement will no doubt bring a fresh pair of eyes and new ideas but following a man who embodied the profession for so long is a big undertaking.
After the interview ends, we stand and shoot the breeze, looking out over the football pitch. There are no students, no staff and no noise, just the rustling branches reminding us of the changing of the season.
Presidents come and go. We have kidded ourselves that we made a difference. Ken Murphy actually did. The sun is coming out again after a long winter but there is a large shadow cast over Blackhall Place. P
Jamie Fitzmaurice is a partner and Elaine Bellew is a Senior Associate in the Real Estate Law Team at Mason Hayes & Curran
New Property Regulations
The Property Services (Regulation) Act 2011 (Minimum Standards) Regulations 2020 came into effect on the 30th November 2020 and requires licensed property services providers (LPSPs) to adhere to additional minimum standards. Jamie Fitzmaurice and Elaine Bellew review these new standards and set out the implications for LPSPs
Background – The Property Services Regulatory Authority and the Pre-Existing Regulations
The Property Services Regulatory Authority (PSRA) is the body responsible for the licensing, supervision and regulation of all LPSPs in Ireland. Subject to limited exemptions, only persons holding a licence issued from the PSRA under the Property Services (Regulation) Act 2011 may provide property services.
A property service is (a) the auction of property other than land (b) the purchase or sale of land (c) the letting of land or (d) property management services.
The Regulations apply to any ‘property service’ offered by LPSPs, if they are provided for ‘consideration’, i.e. some form of payment or compensation. In order to come within the remit of the Regulations, the property service must be provided within Ireland although the property itself may be located outside of Ireland.
The pre-existing regulations were designed to ensure that LPSPs have the necessary qualifications, are of good character, good financial standing and hold appropriate professional indemnity insurance.
The 2020 Regulations – Obligations
The 2020 Regulations further build upon these minimum standards to ensure transparency and accountability in the provision of property services. The 2020 Regulations cover standards to be adhered to by LPSPs in relation to: (i) conduct, behaviour and experience (ii) handling of client’s money (iii) publication of information (iv) communication and recording of offers (v) validation of references and checks in respect of tenants (vi) timelines for transfer of money from tenants (vii) notification of termination of tenancies (viii) administration of service charge and sinking fund contributions and (ix) notification of potential conflicts of interests.
In addition to these minimum standards the 2020 Regulations also contain prohibitions on the way LPSPs conduct their business. For example, LPSPs must not: • Hold themselves out as possessing experience, competence, training or resources, which they do not possess • Accept any form of inducement, being a reward,
advantage or enticement other than the agreed fee • Retain any unused advertising outlay • Charge any fee other than to their client • Knowingly produce, publish or circulate false or misleading advertising information including (a) sales records (b) sales prices achieved (c) experience of the licensee or any licensed principal officer or employee (d) fees charged or chargeable or (e) applicable commission rates • Hold more than one booking deposit in relation to the sale of the same land at one time, without reasonable cause • Be a director of a management body of a multi-unit development, where property management services are provided to that management body by the LPSP or other specified parties.
Penalties for Breach
Failure to comply with the standards set out in the Regulations is “improper conduct” and has serious consequences for offenders.
The PSRA has the power under the 2011 Act to impose major sanctions for improper conduct including monetary sanctions up to €250,000, suspension of the LPSP’s licence, revocation of LPSP’s licence or any combination of the above. The 2011 Act also provides for a range of offences such as providing a property service without a licence, obstructing an investigation or mishandling of client funds. Any person found guilty of such an offence may be subject to a fine of up to €50,000 or five years’ imprisonment or both.
Conclusion
The aim of the 2020 Regulations is to ensure that there is transparency and accountability in the provision of property services in Ireland. They require LPSPs to act in a professional and reasonable manner for their clients.
For LPSPs, now is the time to consider if your current processes and procedures are compliant with regulations or if they need to be modified and updated to operate effectively within the new regulations.
If you are in receipt of a property service, you should ensure that the property service provider is licenced with the PSRA and be aware of the minimum standards expected to be adhered to by the LPSP. P For LPSPs, now is the time to consider if your current processes and procedures are compliant with regulations or if they need to be modified and updated to operate effectively within the new regulations
Eoin Brady is a senior associate and Grainne Tiernan is an associate at Mason Hayes & Curran. Both specialise in Planning and Environmental law
Substitute Consent Procedure Enacted
Following a Supreme Court decision on Substitute Consent last year, the Oireachtas introduced new legislation in December 2020 to provide for a reconstituted Substitute Consent process. Eoin Brady and Grainne Tiernan take a closer look
The Substitute Consent process allows developers to apply to An Bord Pleanála, (the Board), for permission to regularise permission for certain developments. Developments that come within the scope of the process are those that are found or considered to be non-compliant with provisions of EU law. The Substitute Consent process was thrown into chaos last year when the Supreme Court struck down provisions of the legislation regarding the requirement to demonstrate “exceptional circumstances” for regularisation. It also highlighted the requirement that members of the public should be able to participate in the process from the initial stage.
What this meant in effect was that any developments which may have found themselves on the wrong side of the law, had no way to ‘cure’ their particular legal problem, with the result that affected developments could not proceed.
Supreme Court Decision
The Supreme Court’s decision had significant impacts on activities across a number of particular industries such as those in the quarrying and peat extraction industries. Individual developments already in the process of applying for Substitute Consent or preparing for similar applications were also affected.
New Provisions
In response to these concerns the Government introduced amendments to the Planning and Development and Residential Tenancies, Bill 2020 to provide for a reconstituted Substitute Consent process. The amendments were introduced in the Oireachtas in early December 2020 and passed by the Oireachtas on 16th December 2020. The rushed nature of the debate on the legislation was severely criticised by opposition politicians.
The new provisions are inserted into Section 177 of the Planning and Development Act, and provide for amendments to the Substitute Consent procedure as follows: • “Exceptional circumstances” must be considered by the Board in the substantive or second stage application for substitute consent, and • Public participation is facilitated with respect to the consideration of “exceptional circumstances”, as well as on the wider application of substitute consent Applying the New Provisions
The amendments are to apply to both new and existing applications pending before the Board.
The amendments maintain the format of the two-stage Substitute Consent process, concerning an initial ‘leave’ application stage followed by a ‘substantive’ application stage.
The amendments provide that the Board at the ‘substantive’ application stage can only grant substitute consent where it is satisfied that “exceptional circumstances” exist which would justify the granting of such consent.
In making that determination, the Board cannot be bound by, or have regard to, any determination made by it at the ‘leave’ stage as to the existence of “exceptional circumstances”. A Board member who considered the application at the ‘leave’ stage is precluded from participating in the determination of the substantive application stage.
Furthermore, the public is now to be afforded the opportunity of making submissions on whether “exceptional circumstances” exist which would justify the granting of Substitute Consent. In addition, transitional arrangements are provided for public participation on resumed applications for Substitute Consent.
Conclusion
The amendments to the legislation deal with the two issues which were at the core of the Supreme Court decision last July, namely public participation and “exceptional circumstances”. It is hoped that the amendments will allow those applications which were affected by the decision to resume their consideration by the Board. The fact that there is now the potential to regularise developments which may have been affected by the loss of a regularisation process will come as a relief to many developers.
However, it remains to be seen as to how the Board will apply the ‘exceptional circumstances’ test in practice. There had been a criticism of the Board by environmental campaigners that many of the Board’s decisions gave insufficient attention to the requirement that regularisation only be permitted in “exceptional circumstances”.
In that regard, the decisions made by the Board under the new procedure will be closely scrutinised to see if there is any substantive approach in their analysis of the “exceptional circumstances” test, and as with all contentious areas of environmental and planning law, it is likely that further litigation concerning the Substitute Consent process will ensue in due course. P
