Dáil Éireann debate -
Wednesday, 24 Nov 1954

Vol. 147 No. 7

Committee on Finance. - Solicitors Bill, 1954—Second Stage.

The Taoiseach (for Minister for Justice)

I move that the Bill be now read a Second Time. This Solicitors Bill was initiated quite a long number of years ago by the Incorporated Law Society. It has been, over those years, the subject of prolonged and detailed discussions between the representatives of the solicitors' profession, the Incorporated Law Society and successive Governments. As a result of those detailed discussions and negotiations, I think I am entitled to say that a pretty substantial measure of agreement was arrived at between the last Government and the Incorporated Law Society. As a result of further discussions that have gone on since the recent change of Government I think I can say that complete agreement has been reached on a variety of topics and on the Bill as a whole between the present Government and the Incorporated Law Society.

Having regard to these extensive discussions, the long period of time during which these discussions took place and the very substantial, if not indeed complete, measure of agreement that has been achieved, it is proper to describe this Bill as an agreed measure. I appreciate, of course, that the Dáil and Seanad can make such amendments to this Bill as is thought proper or expedient in the public interest. Nevertheless I do suggest to the Deputies that they should approach the consideration of this Bill in the frame of mind that those people who are intimately concerned with the profession have been given every opportunity of making their case and that successive Governments representing the public interest have, with a view to ensuring that the public interest would be adequately safeguarded, dealt with this matter in the way I have indicated.

This Bill, it is quite clear, involves not merely the regulation of a learned profession but in very many respects it involves the public interest as well. Solicitors are not merely members of a learned profession acting for private clients or private interests. They are officers of the court, they handle trust money, they handle the property of their clients and are the repositories of the secrets of their clients. The general public interest requires from the members of that profession individually and from the profession as a whole high standards of efficiency, integrity and, above all, honesty. This Bill, therefore, comes as a public Bill in which it seeks to regulate the general affairs of the solicitors' profession and also to safeguard the public interest. I think Deputies may rest assured that as far as the public interest is concerned the present Government, the last Government and previous Governments who handled this matter did everything possible to ensure that the public interest would be in every respect safeguarded. A word of tribute is due to the representatives of the solicitors' profession and the Incorporated Law Society for this Bill because while it may be described as the charter of the solicitors' profession, nevertheless it imposes upon solicitors, individually and collectively, far greater burdens than it provides easement for individual solicitors of the profession.

The main objects of the Bill as set out in the explanatory memorandum which has been circulated to Deputies might be briefly restated. They are: to repeal and re-enact, with modifications, the existing law as to solicitors; to enforce stricter discipline within the profession; to regulate professional practice and conduct; to make the profession more self-governing than it is at present; to require solicitors to keep proper accounts and to keep clients' moneys and trust moneys separate from their own; to establish a compensation fund out of which grants may be made to relieve or mitigate losses arising from the dishonesty of solicitors or their employees; to remit the stamp duty payable on the admission of solicitors and on their annual practising certificates, and to reduce the stamp duty payable by persons becoming apprenticed to solicitors. It will be clear from that statement that the Bill enables the solicitors' profession to regulate their own domestic concerns, to provide, subject to certain safeguards, for all matters of discipline, for all matters of fees, for all matters dealing with the admission of solicitors, the education of solicitors' apprentices, and so on.

Where public interest is involved or where the rights of individual citizens might be jeopardised by that particular body that is set up under the Bill, there is allowed an appeal to the Chief Justice, and where regulations are to be made where the public interest would be involved, the Chief Justice is interposed as the guardian of the public interest save in the case of the amount of the contribution that each solicitor is to pay towards the compensation fund that is to be set up under the Bill. In that case, the Minister for Justice is inserted into the Bill to safeguard the interests of the public and to see that the contribution that will be payable by solicitors under the Bill when it becomes law will not be reduced under the sum of £5. I think the general idea of interposing the Chief Justice into this Bill between the solicitors' profession and the public is because of the fact that the Chief Justice has been, since the establishment of the State, really the judicial officer with the particular function of supervising certain activities of the solicitors' profession. It is desirable at all events that the Chief Justice should be retained in his powers and functions in the manner and to the extent disclosed in this Bill.

I do not think it is necessary for me to go in any greater detail through this Bill. An explanatory memorandum which has been supplied gives in very simple and comprehensive fashion an outline of the main provisions of the Bill. The Bill deals with the admission of solicitors, the discipline of solicitors, and also makes provision against unqualified persons practising as solicitors. I think, however, the real interest from the public point of view in this measure must lie in the parts of the Bill—namely, Parts VII and VIII—and in the Fifth Schedule of the Bill, providing for the keeping of separate accounts by solicitors of their own moneys and moneys which they hold either in trust or on behalf of clients, and for the setting up of a compensation fund to provide some measure of indemnity, and ultimately a full measure of indemnity, for clients' losses caused through the defalcation or dishonesty of solicitors or their employees.

Part VII of the Bill contains details requiring regulations to be made with the concurrence of the Chief Justice providing for the opening and keeping by solicitors of accounts at banks for clients' moneys and for moneys of any trust of which the sole trustee is a solicitor or the trustees are a solicitor with partner clerk or servant of his or with more than one of such persons, and the keeping by solicitors of accounts containing particulars of clients' accounts and the keeping by solicitors of accounts containing particulars of and information as to money received, held or paid by them for or on account of any trust of which the solicitor is sole trustee or the trustees are a solicitor with partner, clerk or servant of his or with more than one of such persons.

It would be expected that in the normal course of events solicitors acting in a businesslike way would completely separate accounts of moneys which they receive from their clients, and keep them separately from moneys of their own and not use a bulk account containing a client's moneys which may come in mixed up with their own or perhaps using that composite fund as their own money. This is a measure in this Bill which I think will be of particular interest to the public and it is one that will require, what I believe all efficient and honest solicitors will welcome, that separate accounts can be kept in order that there should be less liability to defalcation on the part of the profession. The Bill also prohibits banks from setting off the amount of money that happens to be lodged in one account which is, in fact, a trust account or a client's account, against the liability of the client's own personal account.

Part VIII of the Bill sets up the compensation fund. I think I should again, perhaps, say at least a brief word of tribute to the solicitors' profession for their proposals in reference to this compensation fund. As things stand at the moment, clients have no redress against a defaulting solicitor and unfortunately there have been perhaps too many cases of defalcations in recent years, but in order that their profession should stand well with the public and that it should be made apparent to the public that the profession requires the highest standards in professional integrity and honesty these proposals were made by the solicitors' profession themselves. Without these proposals there would be no remedy for clients. The compensation fund which is being set up under this Bill will have to be built up over the years. It is not the kind of fund that can be established straight away. It is not the kind of fund that could be made liable for perhaps all the defalcations, if all the solicitors were suddenly to go wrong—something which will not, in fact, happen.

For the first five years it is proposed that there should be a fund established and financed from contributions by individual solicitors, such contribution amounting to in or around £5 a year and that for the first five years the solicitors' body itself acting through the Incorporated Law Society or whatever committee they set up under it, shall have full discretion as to the amounts that will be paid either in indemnity or part indemnity or by way of ex gratia payment towards indemnification of losses sustained by clients through defalcation or dishonesty of solicitors or their employees.

After that period of five years, the object is to achieve a fund which will give complete indemnity to clients for defaulting solicitors and their employees except in the case where these defalcations are contributed to by the client himself by his negligence or otherwise. That, I think, is a proper safeguard to put in because a client may possibly, knowing that a solicitor has defaulted on his funds, knowing perhaps that he has contributed by his own negligence, allow a solicitor to carry on as a solicitor inspiring a feeling of confidence in other clients and solicitors and members of the profession as well, and thereby cause other damage and loss which might be avoidable. At all events, I stress the importance of this fund, which is one set up at the instance of the profession themselves. It is the scheme suggested by them and approved, with certain modifications, by the last Government and by the present Government. It is the scheme that we recommend to the House, the scheme that will give something to the clients which they never had before and which will, taken in conjunction with the other provisions as to separate accounts, give the public confidence in the solicitors' profession and endeavour to raise and maintain the standard of professional conduct and integrity in the profession as a whole and in individual solicitors.

There is one other matter that I think should be referred to. Part X of the Bill provides for the abolition of certain stamp duties that were originally payable by solicitors and solicitors' apprentices. The Minister for Finance is giving up the revenue that previously inured to the Exchequer from those stamp duties but, in return, the solicitors have given certain undertakings. They have undertaken to prescribe such fees as will enable them to discharge without financial assistance from the State the duties imposed upon them by the Bill, to relieve the State of any financial responsibility to assist in the production of students' textbooks and to contribute an additional £500 per annum to the Incorporated Council of Law Reporting towards the cost of printing and publishing the Irish law reports. Moreover, individual solicitors will have to pay an annual contribution of £5 to the compensation fund which is being set up, and when the fund commences to provide full indemnity they may be asked to pay a further £5 in any year in which this is necessary to secure the financial stability of the fund.

The intention is that the stamp duties which up to now have been collected by the State should be applied so as to enable the society to meet the heavy burden they are now undertaking.

I think it is proper that that statement should be made for the guidance of whatever authority hereafter has the duty of fixing or reviewing the amounts of any of the fees that may be charged in pursuance of the Bill when it becomes law.

In conclusion, I would like to stress through this House the desirability of this Bill becoming law before the 6th January next. The Bill proposes that on that date the compensation fund will be established and that solicitors will send their annual contributions to the fund along with their applications for practising certificates in respect of the coming practice year which commences on that date. If the Bill is not enacted by that time, the establishment of the fund would, as the law stands, be delayed until the next practice year comes round.

I think, and I want to emphasise again, that it is very desirable in the public interest that this Bill should be enacted on the date that I have mentioned in order that that compensation fund may be set up and be available at the earliest possible moment.

I think that it is justifiable for me to say that the general principles of this Bill are such as are acceptable to all Parties in this House and accordingly I ask that it be given a Second Reading.

Mr. Boland

I agree with the Taoiseach that the Incorporated Law Society should be paid this tribute for their public spirit in introducing these proposals. It must be 12 years ago— I happened to be Minister for Justice at the time—that they brought in a private Bill. I thought that was a long time but I was speaking to some of them recently and they told me that the 1898 Bill took about 14 years, so we were not worse than they were 50 years ago.

When the Government decided to take over the Bill in the public interest there were provisions in the Bill of which they did not approve. They were not very important. One was a proposal for compulsory membership and as there were 80 per cent. or more of the solicitors in the society we did not see any reason why they should have that provision and the solicitors agreed not to proceed with it.

In regard to the compensation fund, we thought there should be a bond. There was no mention of compensation in the beginning. I do not suppose I am doing the solicitors an injustice by mentioning that. It would be rather too much to expect of them that they would include it in their Bill. When we took over the Bill we suggested a bond. They had very strong objections to that and they convinced me that their objections were sound and that the scheme that they suggested as an alternative was a better one. Our Government was satisfied that that was so. The more I look into it and the more I hear the case made for a compensation fund as against a bond the more satisfied I am that they were right in that.

The solicitors certainly have to be congratulated on bringing in the proposal to keep the accounts of their clients and their own accounts separate. When I was Minister for Lands I had the experience of a farmer who owed land annuities and asked for time to pay until the next fair. Fair day came along; his cattle were sold and the salesman, I believe in good faith, gave him a cheque for the amount. The farmer lodged the money in the bank and the bank closed on the money and the farmer had to wait until the salesman was able to get the money to repay him. I am glad that that cannot happen under this Bill. Section 68 safeguards that position, and if a solicitor's personal account is overdrawn, that is his look out and the bank cannot interfere with the client's money. That is a very good thing, and it was the solicitors who were responsible for bringing in that proposal. They will make regulations that these accounts are to be kept separately and I have no doubt that they will be able to enforce that provision effectively.

The Taoiseach has given a very full account of the Bill. As far as our Party are concerned, they are agreed that the Bill should be passed and that it should be law in time so that a year will not be lost. I understand that if the Bill is not passed by 6th January, a whole year will be lost. This Party are prepared to facilitate the enactment of the Bill. The Bill could be described as a Committee Stage Bill but there have been so many amendments to the original proposals that personally I cannot see very much need for many more. Other members of the Party may think there are small points that need to be cleared up. I think that will be all, as far as I can see. I am glad to welcome this Bill. I hope it will be a very successful one.

Mr. MacBride

I, too, should like to welcome the Bill and to congratulate the Incorporated Law Society and the successive Governments responsible for promoting it during the past 12 years. I should like to congratulate them for having at last brought the Bill to a stage where it can become law. I think everybody will agree—members of the public as well as the legal profession— that such a measure is absolutely essential.

There are just two small matters that probably would be better raised on the Committee Stage but which I should like very much to mention now so that the Taoiseach and the Minister for Justice might consider them. One of the points in regard to Section 12 is extremely small. Section 12 provides that:—

"a registrar of deaths shall, where an entry is made in the register of deaths concerning a person whose name is on the roll, forthwith send by post to the registrar a certified copy of the entry, and may charge the cost of the certificate and of the sending thereof to the registrar as an expense of his office as registrar of deaths".

In practice that might be a rather difficult onus on the registrar of deaths who might not have an opportunity of knowing whether a man is a solicitor or not. Some other method might be adopted. There is always the difficulty of a registrar of deaths ascertaining the occupation of all the persons whose deaths occur.

The other matter is a more substantial one. It is in regard to Section 54 which deals with the qualifications necessary for a person to act as a solicitor. Sub-section (2) provides firstly that the name of the solicitor is on the roll; secondly, that he does not stand suspended from practice; and lastly that either he is a Civil Service solicitor or that a practising certificate in respect of him is in force. Then sub-section (3) defines what a Civil Service solicitor is for the purposes of the Bill. I have not examined the Bill sufficiently thoroughly to satisfy myself as to the effect of dispensing with the necessity of the practising certificate in the case of the Civil Service solicitor. If I am not mistaken I think a Civil Service solicitor is really a new innovation as regards solicitors. All that a practising certificate imposes upon solicitors is to notify the registrar of the Incorporated Law Society from year to year that they are entitled to practise. Is it wise to dispense with those provisions in regard to a solicitor employed by the Civil Service? What does the exemption from the necessity to have a practising certificate involve, as far as the Civil Service solicitor is concerned?

I think that if it is an effort to exempt the Civil Service solicitor paying certain contributions to the Incorporated Law Society I could understand it, but is it wise to exempt a Civil Service solicitor from complying with the ordinary rules laid down for solicitors in the general way? Will it be creating a different type of animal in the end? Is there a necessity for doing that? I do not want to criticise the Bill because, as I say, I have not studied the impact of this section sufficiently thoroughly, but I would ask the Taoiseach and the Minister for Justice to look into that aspect of the Bill.

Mr. Glynn

I should like to welcome and to support this Bill. There may be some few modifications as it passes through the different stages, but I do not think there will be very many. On the whole the Bill is a good one and it is quite clear, as the Taoiseach, Deputy Boland and other speakers have said, that the Incorporated Law Society who, one might say, have initiated the Bill, are to be complimented. They have gone to great trouble to produce a Bill which, I think, will pass through the House without many modifications.

The Bill gives power to set up a disciplinary committee with power to impose penalties, and it protects the rights not only of the solicitor but of other parties by giving the right of appeal to any aggrieved party to the Chief Justice. That, I think, is desirable. It may sound extraordinary that the council of a profession should have such powers, but I think that without such a Bill as this at all the profession has, through the Incorporated Law Society, shown that it is a body capable of accepting responsibility in such matters, and of dealing impartially and justly through its present committee with all matters which come before it.

I do not think that either the members of the profession or of the public need have any worry about this disciplinary committee. In fact they can be assured from experience that it will be a very effective committee and that it will be for the good not only of the profession but of the public generally. I also think that the power given under this Bill—in fact the obligation—to set up a compensation fund is going to be of great benefit to the profession and to its individual members. It will give that essential thing, greater confidence, to the public, in the profession and in its individual members.

There are quite a number of things in the Bill about which one would like to talk but these, I expect, will be discussed in detail on the further stages of the Bill. I intended at this stage merely to express my support and to welcome the Bill. I think it is a measure which might have been introduced years ago but even now it is very welcome.

Mr. Moran

I also welcome the Bill and agree with the other speakers that it is a measure which has been long overdue. While I largely agree with the general principles enshrined in the Bill I should like to say that I feel sure its provisions will be welcomed by the members of the profession. It is a Bill which will be dealt with at greater length on the Committee Stage. Although it has been under consideration, as the Taoiseach has said, for 12 years, the profession itself has had very short opportunity of considering it. This very week a number of meetings are being held by a number of branches of the society and we hope they will have an opportunity of considering all its implications and that the Bill will be in force, as the Taoiseach requests, by the 6th January next. The principles underlying this measure have been discussed over a number of years but it is only since the circulation of the Bill a couple of weeks ago that people had an opportunity of considering the matter in detail. Many of the principles in this Bill are already observed. In the vast majority of cases, even in relation to accounts, a great number of practitioners, particularly those with any kind of extensive practice, have to keep separate accounts as otherwise they would never know where they are. However, this provision for the keeping of separate accounts is welcomed by the vast majority of the profession. I agree it is a very necessary provision.

In connection with Part III, I do not think anybody has any objection to a solicitor being struck off the rolls for professional misconduct. I would, however, ask the Taoiseach to consider the implications of Section 14, sub-section (1), (iii) (b), where it is provided that a solicitor convicted of treason or of a felony or misdemeanour or convicted outside the State of a crime or offence which would be a felony or misdemeanour if committed in the State may have his name struck off the rolls. As the Taoiseach is aware, "misdemeanour" covers practically anything, even a common technical assault. Anybody who spends a penny on an innocent game of roulette is committing a misdemeanour. Anybody who plays a game of pongo at a country carnival is committing a misdemeanour.

The Taoiseach

He is only a rogue and a vagabond. He is not being struck off the rolls.

Mr. Moran

Under the Gaming Act he could be declared to be committing a misdemeanour. Possibly the Taoiseach's answer will be that the disciplinary committee will be composed of reasonable men exercising their powers in a reasonable way. I suggest that it is going very, very far to give such powers to such a body. We are in effect giving statutory powers to this committee. That is going very far indeed. The suggestion is made that if a misdemeanour is committed outside this State, something which would constitute a misdemeanour inside the State if it were committed inside the State, will be sufficient ground for removing a solicitor from the rolls. That is something new in statutory law here. How the Taoiseach would exercise his mind as to its constitutionality, or otherwise, is a question for the Taoiseach.

The Taoiseach

The question of constitutionality is not one for me now.

Mr. Moran

I think that would be a six mark question for some constitutional lawyer here. On my interpretation of Section 23 where an appeal is pending to the Chief Justice that appeal does not form a stay of execution. Provision should be made that if an appeal is pending the individual concerned shall not be struck off the rolls pending the outcome of that appeal.

In connection with apprentices, I have no doubt that the provisions in this Bill are a re-enactment of the existing practice and I am sure these provisions have been discussed between the Department of Justice and the Incorporated Law Society. Taking the term of four years, the major portion of that time is spent by the apprentice in a university taking out his degree. That prevents him from getting the practical knowledge so essential. Between this and the Committee Stage I suggest that this matter should be considered and the apprenticeship period should be extended to five years, the fifth year to be served with a master or firm of solicitors. A graduate in law knows very little as a rule about the inside workings of a solicitor's office. It is just as dangerous to let a final medical student loose on a man's stomach with a blunt hatchet as to let a final legal student loose in the State without any practical experience of the workings of a solicitor's office and with no knowledge of the difficulties he will encounter. I think such a graduate should be compelled to spend one year after getting his technical qualifications in the office of his master or with a firm acquiring the practical knowledge so vitally essential in the interests of the public before he sets up on his own. Many solicitors' apprentices realise at the present time that they lack the practical knowledge and experience to enable them to set up on their own and as a matter of course they take employment with a solicitor or firm of solicitors before they launch out on their own. A medical graduate is required to serve a certain term in a hospital. In the same way the legal graduate should be compelled to take a practical course before he is allowed to practise as a solicitor.

Deputy MacBride adverted to the position of Civil Service solicitors. Some of these solicitors take the view that they were formerly described as solicitors in the State service and they seem to think that if they are now defined as Civil Service solicitors they might in relation to some legal matter find themselves subject to a civil servant who is himself not a legal man. I do not know whether there is anything in that but, at all events, there is that view among some of them. It is something that the Taoiseach might perhaps like to go into before the Committee Stage.

Section 65 deals with the right of audience for solicitors. There is one suggestion which I have to make and I have solely in mind the question of Circuit Court appeals to the High Court. A solicitor would not have the right of audience in the High Court. Quite often, in practice, it happens that, after an appeal is brought from the Circuit Court to the High Court on circuit, the parties settle whatever the cause of their action may have been. A solicitor is not entitled to remain and have that settlement made a rule of court in the High Court on circuit without counsel. I suggest that when the House is dealing with the question of the right of audience, it might be suitable on Section 65 to allow a right of audience at least for that purpose.

With regard to the rest of the Bill, in the main, I agree with practically every section of it. Solicitors throughout the country will have from now until the Committee Stage to consider it.

I see that, in its own way, the State is getting relief in respect of certain financial responsibilities under this Bill. I have no doubt that the solicitors' profession as a whole will have to pay for the relieving of the State in that connection. That is probably all to the good. When the solicitors' profession is taking charge of its own affairs, naturally it will be expected to meet the resultant costs. However, I should like to make it clear that it appears to me that the taxation on the profession as a whole as a result of this Bill will be greater than it was. I think the stamp duty that individual members of the profession formerly had to pay will be more. I do not object to that. I just mention it in case it may be suggested from some circles that there is relief in the whole taxation of the profession under this particular Bill. I consider that it will work out to be much more than what it has been.

I know that the provisions of this Bill, particularly as regards the compensation fund, will be widely welcomed by the profession itself. It is rather strange that nobody suffers more than the body of solicitors as a whole if one individual solicitor goes wrong in any particular area. The profession as a whole suffers very much over that. Under this provision, there will now be protection for the public. My first impressions in regard to this Bill were that it would possibly be simpler if the situation were met by some other form of bond. However, I am satisfied, after discussion with some of my colleagues, that this is a better way and that the profession as a whole will be responsible and will build up a fund that will take care of any person or any member of the public who may, through the depredations of a solicitor, lose financially. Apart from the question of overcrowding in the profession —we all know there is no outlet in these parts, at any rate, for members of our profession—I think many of these cases are due to lack of experience. I would seriously urge on the Taoiseach to consider the suggestion I have made in connection with the training of solicitors' apprentices. I will deal with any other matters arising out of this Bill on the Committee Stage.

I am sure the Taoiseach will get full co-operation on the principles of this Bill. We, on this side of the House, will do our utmost to ensure that the Bill will have a speedy passage so that the Taoiseach will be enabled to have it on the Statute Book in time for the 6th January, 1955.

Mr. M.J. O'Higgins

I should like to join with other speakers in welcoming this Bill. I should like, also, to say, from this side of the House, that I believe quite a lot of the work which was put into this Bill is a result of the work done by Deputy Boland in his capacity as Minister for Justice. As some speakers have pointed out, it is practically 17 years to the day when legislation of this type was first suggested by the Incorporated Law Society. The suggestion was first made at a meeting of that society on, I think, the 26th November, 1937. At the request of the general society, the council of the society took the matter in hand and proceeded with the preparation of a Bill which was after some years, I think in 1943, submitted to the then Minister for Justice and his Department. From that time on, there have been fairly close discussions and negotiations between the Department of Justice on the one hand and the Council of the Incorporated Law Society on the other hand.

If there are two people in this House who have done most, in conjunction with the Incorporated Law Society, to bring this Bill on to the Statute Book, they are Deputy Boland and the present Taoiseach. As the House will remember, when the Taoiseach resumed office, he had to act as Minister for Justice for quite a few months and, even during that period, it fell to his lot to deal with this Bill and to enter into discussions and negotiations about it. I am glad the Taoiseach and Deputy Boland have done it and it is right, also, that tribute should be paid to the Incorporated Law Society for having the courage, the wisdom and the foresight to initiate this legislation.

As an ordinary member of that body —never having served on the council— I should like to say that I think every member of the solicitors' profession owes a debt of gratitude to the members of the Council of the Incorporated Law Society who have, time after time, throughout the years, been pressing for the introduction of this legislation. I say that because I think it is necessary to make it clear that, so far as the solicitors' profession is concerned, they do not look upon this Bill as a Bill imposed upon them by the Legislature. They consider it a Bill which they themselves seek and desire, a Bill of fundamental importance for the profession—for solicitors in relation to their clients and for the solicitors' profession as a whole in relation to the public at large.

I think we should put it on record that in the negotiations and discussions which took place between the Department and the Incorporated Law Society, the Incorporated Law Society was speaking for the vast majority of the solicitors' profession. According to the last report issued by the Incorporated Law Society a short while ago, out of 1,338 solicitors who have practising certificates in this country 1,150 are members of the Incorporated Law Society. Consequently, when the Bill is welcomed by the Council of the Incorporated Law Society we may take it that they are talking in a fully representative capacity for the solicitors' profession.

In regard to the Bill itself, as Deputy Moran pointed out, no one suffers more in the long run by one solicitor going to the bad than his own colleagues. The very nature of the work which a solicitor has to perform makes it necessary to have a very high code of professional conduct and I think it is right to say that without any compulsion, without the disciplinary powers which are being given in this Bill, the solicitors' profession as a whole have maintained a high standard of professional conduct and disciplined themselves throughout the years. But because they recognise their duty to the public and because they recognise it is in the best interests of the profession itself, the Incorporated Law Society feel that a Bill of this kind, giving the powers to regulate all matters of professional conduct and discipline which this Bill will give, should be brought in, and they welcome that that step should be taken.

There are six major features in the Bill. There is the question of the disciplinary committee; secondly, the question of the solicitors' accounts; thirdly, and possibly the most important of all is the question of the compensation fund; fourthly, the provisions dealing with legal education; fifthly, the provisions dealing with the reduction in the number of apprentices; and, sixthly—a provision which so far has not been touched on and which I think should be mentioned—the provision in Section 44 of the Bill dealing with the possibility of reciprocity with the North in relation to solicitors.

I do not propose to deal in any very great detail with these matters but in regard to the disciplinary committee which it is proposed to establish under this Bill, there is a very definite advance being made. The present position is that the Law Society are enabled to have what is known as a statutory committee which has very limited powers and functions. These powers are really limited to acting as detectors, to investigating any complaint which may come before it and, if it finds that there has been professional misconduct on the part of a solicitor, then it is bound to report that to the Chief Justice. The disciplinary committee which is being established in this Act will carry out the same work of investigation but it will also be given the right to impose penalties. There is also in the Bill before us a right of appeal then by the solicitor or by the applicant to the Chief Justice if he is not satisfied with the decision of the disciplinary committee.

The big difference between the disciplinary committee and the statutory committee existing at the moment is the power to impose penalties and also the fact that for the first time—I think I am right in saying—there will be powers to the governing body of the profession to impose penalties of a varying nature according to the degree of gravity of the matter into which they are inquiring.

I do not propose to say anything with regard to the solicitors' accounts or the regulations to be made concerning them because other speakers have dealt with that matter fully. I believe that it is an improvement in our legislation and—I think Deputy Moran referred to it—that it is quite possible that some of the misfortunes which solicitors who were guilty of defalcations had might have been avoided had they been required during their early years to keep proper accounts in their own offices and if the public had the protection of the statutory bank account for clients' or trust moneys.

As I mentioned already, the most important feature of this Bill is the compensation fund. It is important both from the solicitors' point of view and, as the Taoiseach has pointed out very rightly, in the public interest. I think I am correct in saying that the provisions in this Bill in relation to the compensation fund go very much further than the similar provisions in England. With regard to the compensation fund when this Bill has been passed, we will have, so far as the solicitors' profession is concerned, the most up to date and progressive legislation probably in the world. I understand the position to be in England that the controlling body of the solicitors' profession there has at all times unlimited discretion with regard to what awards it will make out of the fund, how the claims will be dealt with and that the body dealing with the claims under the English legislation need not give any reasons for their decision, that they may refuse or allow a claim as they see fit without giving reasons. Under the compensation fund being established here, discretionary power will vest in the Council of the Incorporated Law Society for a limited period of five years and after that the discretion of the council will only be in cases where they find there has been negligence on the part of the claimant, the person who has been at a loss. In cases where they are satisfied that the loss is attributable to the dishonesty of the solicitor and that no question of negligence on the part of the applicant comes in, then the applicant must be compensated whatever the loss may be.

I do not propose to go into the sections dealing with education except to point out that it probably will be a matter of surprise to lay Deputies to discover that at the present time the Incorporated Law Society cannot by itself make regulations dealing with such matters as legal education. From the professional point of view and ultimately from the point of view of the public generally, the powers which are being given in this Act with regard to legal education will prove to be important and beneficial.

In relation to Section 44 of the Bill dealing with reciprocity with the North, it would seem to me that this section might require some amendment.

I think that from the point of view, if you like, of politics or from a national standpoint, Section 44 is a section that has very many attractions, and a solicitor criticising this section may seem to do so purely from a point of view of self-interest, but that is not necessarily so. What I want to draw the attention of the Minister for Justice to, is that under Section 44 as it stands, the provision is that the Government when satisfied that reciprocal provisions will be in operation in relation to solicitors holding practising certificates here can then bring into operation Section 44 of this Bill which will, subject to the matters laid down in the section, enable Northern Ireland solicitors to practise here. The only point I have in mind about it—and I think it is possibly worth looking into—is that one could visualise a situation arising where the Government in the North might make reciprocal arrangements and eventually suspend these arrangements, but if our Government under this Bill by Order bring Section 44 into operation, our Government have no authority under the Bill subsequently to suspend the bringing of Section 44 into operation. The reply is that that can be done by coming back to the House and passing another Bill. My suggestion to the Minister is that he should safeguard the position of the solicitors principally dealt with by this Bill by taking power by Order if necessary to suspend the reciprocal arrangements.

There is just one other point to which I would like to call the Taoiseach's attention. It is also a Committee point but I think it is one which ought to be referred to at this stage. It is in regard to the wording of Section 59 (1) (a). Section 59 provides that a solicitor shall not wilfully do different things and the first of these things is that a solicitor shall not wilfully act in business carried on by him as a solicitor, as agent for an unqualified person. I think that the probable intention of Section 59 is to replace and re-enact Section 51 of the Solicitors (Ireland) Act, 1898, but I do not think it does that. It would seem to me that the wording of (a) of Section 59 would make it impossible for any solicitor to practise as a solicitor because the wording as set out here is that a solicitor shall not act in business carried on by him as a solicitor as agent for an unqualified person. An unqualified person is a person who is not a solicitor and, as any person who is a member of that profession will tell you, practically all our work is in working as agents of people who are not qualified or who are not solicitors themselves. If they were they would be doing the work themselves. It is quite clear that the Government intended, by this section, to prevent a solicitor qualified to practise from using his office as a front or a façade for an unqualified person, but in fact if this section were to be rigorously interpreted it would mean that a solicitor could not act as an agent for any person who was not a solicitor. I think if (a) was worded quite simply to say "a solicitor shall not wilfully carry on business as solicitor as agent for an unqualified person" that the position would be covered, but certainly, as it stands, there is something wrong with the wording there and something which I would suggest the Taoiseach would look into.

I think those of us who are members of the solicitors' profession appreciate the manner in which the Taoiseach has presented this Bill to the House and will appreciate the remarks he has made both with regard to the profession and with regard to the governing body of the profession. I would like to say that I personally appreciate very much the way in which the House, and particularly those Deputies who are not solicitors, have received the Bill.

Mr. Colley

I also would like to welcome this Bill. I think that the long period that has been spent on the negotiations for it have produced good fruit. This Bill, to my mind, will be very good both for the profession and the public. Undoubtedly in the past the huge bulk of the solicitors have suffered gravely in prestige through the default of perhaps just one of their members—certainly of a very small number—and I think the provisions of this Bill for the compensation fund and the keeping of accounts will go a long way towards assuaging a feeling that has got into some people's minds that all solicitors are not to be trusted.

On the compensation fund, I personally at first felt that a bond would be the proper way of dealing with it, but I must say that on the case that has been put up by the Incorporated Law Society against it I was convinced that the provisions in this Bill are far better in every way.

There may well be a number of points that will come up on the Committee Stage, but on the whole, I think the Bill will make for a great improvement and that it is one to be welcomed both by the profession and the public and the Law Society are to be congratulated on bringing it here.

The Taoiseach

I would first like to express my appreciation and the appreciation of my colleagues of the way in which this Bill has been met by Deputy Boland and his colleagues and by Deputy MacBride and, in fact, by all Deputies in the House. I am also grateful for the notification—if I may call it that—of the desire to have this Bill in operation next year. I think, in the interests of the profession and the public, that it should be so.

I will, of course, have all the points that have been raised considered between this and the Committee Stage, and we hope to clear the Committee Stage and have the whole Bill in operation in due time.

Deputy MacBride made a point on Section 12. The answer to that is that the section appeared in quite a number of other Acts dealing with medical practitioners and dentists and has caused no trouble, and the person concerned has made no complaint. I think on the whole it is quite innocuous in the present Bill, and if one does not comply with it nothing happens.

As regards the Deputy's other points on Section 54—that section is a re-enactment of the Solicitors Act of 1943. I think the history of it, if my memory serves me properly, is that a State solicitor did the dirty upon a private solicitor by raising the point that he had not paid his licence fee and therefore he was not entitled to be paid his costs, and that particular solicitor lay in wait for the State solicitor when he was looking for his costs and raised the point that the State solicitor had not paid his licence fee. That was the position until that period. The payment of the particular annual fee or other fees that are chargeable to solicitors by solicitors who are in State employment was and will be until this Bill is law really a book-keeping transaction; one of the parties paid the amount and the other got credit for it. Being such, I assume, was the reason for the passing of the Solicitors Act, 1943. The intention is to continue that practice under this Bill to avoid the pretence of a State solicitor or a solicitor in Civil Service employment having his fee paid by one Department and it going into another Department — a mere book-keeping transaction.

Probably, I think, the real reason for this particular enactment about solicitors in State employment is the desire that they shall not have to pay the contribution payable by private solicitors towards the compensation fund. There is no provision imposing an obligation upon solicitors in State employment to pay such contribution because of the fact that the State will make no claim upon the compensation fund itself, but if any claim is made against the State by reason of the defalcation of a solicitor in the employment of the State the State will discharge the liability itself. I think that is the reason for the section as it stands.

With regard to Deputy Moran's point on the same section as to the nomenclature, "Civil Service solicitor or solicitor in the State service," the Parliamentary Draftsman is responsible for the phrase as it stands at the moment and I am sure there is no sinister meaning in it but, if there is, we will change it.

Deputy Moran made a number of points. This perhaps is not the appropriate moment to reply to them. The first point was on Section 14, providing that application shall be made to procure the removal of the name of a solicitor from the roll of solicitors on the ground that he has been convicted of treason or of a felony or mis-demeanour or has been convicted outside the State of a crime or offence which would be a felony or mis-demeanour if committed in the State.

The answer, if it be the answer, is that that particular provision is in all the other Acts dealing with professional bodies that are regulated by statute. Another answer, I think, and one perhaps that will appeal more to Deputy Moran is the fact that under the law as it stands at the moment there is no specific detailed provision laid down as to the circumstances in which a solicitor may be struck off the roll. The solicitors' disciplinary committee is the body that at the moment have authority to recommend that the name of a solicitor be struck off the roll for "misconduct"—whatever that may be. It means whatever the disciplinary committee think is misconduct subject to the Chief Justice agreeing with it and if a man is convicted of being a rogue and a vagabond or perhaps of having been guilty of being drunk while in charge of a car on the Continent of Europe, the committee, subject to the Chief Justice, has the authority at the present moment to recommend that his name be struck off the roll.

I do not think that there is any very great substance in the point raised by Deputy Moran, but we will have it examined. I do not express any view upon the constitutionality of it. The Supreme Court have laid down the rule of interpretation that if the Oireachtas passes a law they start off with the assumption that it is constitutional.

Deputy Moran then raised another point, I think on Section 23, that there is no stay of execution. I think he has a point there. Although, under Section 18 (2), the disciplinary committee may postpone the making of an order under the section, nevertheless, I think possibly the Deputy has a point and we will look into it.

As regards Deputy Moran's point that apprentices, when they pass their final examination, should be compelled to serve a year in a solicitor's office following the analogy of the doctor, after passing his final examination, having to continue a course for 12 months, I have no strong views on that. The position has not been put up to any Government as far as I know, but we took a strong view on the subject of the length of time during which a solicitor's apprentice would be bound to serve his apprenticeship before being qualified. We took the view that the length of the period of time was unfair to poor people or poorish people—because I do not suppose any poor person can afford to send his son or daughter to be a solicitor. To poorish people relying on their own efforts to save the necessary money to provide the necessary expense for educating their son or daughter and keeping him or her in Dublin or elsewhere while he or she is continuing an apprenticeship the expense is very steep. We felt a period of five years would be adequate as the length of time for qualifying as a solicitor although we fully appreciated, not the point made by Deputy Moran, but the point that was rather put up to us by the Incorporated Law Society that a period of six years is required for the proper education of the solicitor's apprentice, not merely in the technicalities of his profession but also adequately to equip him for his profession in the future. On the whole we came to the conclusion that five years was the best possible period in all the circumstances, and to that the solicitors' profession agreed.

With regard to the point made by Deputy O'Higgins on Section 59 (1), I think he too has a point there. Of course, it is a drafting point. The subsection, as it is drafted at the moment, is open to criticism along the lines suggested by Deputy O'Higgins. All my colleagues here on the Front Bench at the moment, with the exception of the Attorney-General, are all exbarristers for the moment at any rate and we recall the fact that most of our opinions start off by saying: "Agent should do so and so,""agent," of course, being the solicitor who acts for his client and, therefore, sub-section (1) (a) is open to the construction that a solicitor acting as agent, as he is, for his client, would come within the paragraph of the sub-section. It is a drafting point and we will have the matter examined.

Again, I appreciate the manner in which this Bill has been received by the House and particularly the fact that the Opposition and all other Parties in the House will co-operate in seeing that this Bill becomes law before Christmas.

Question put and agreed to.

Committee Stage ordered for Wednesday, 1st December, 1954.