Vol. 147 No. 9
I move amendment No. 1:—
In sub-section (1), to delete the definition of "Civil Service solicitor" and, in page 6, between lines 4 and 5, to insert:—
"‘solicitor in the full-time service of the State' has the meaning assigned to it in sub-section (3) of Section 54;"
This is a drafting amendment arising out of a suggestion made by Deputy Moran; there appears to be some objection taken to the title of "Civil Service solicitor" and it is to meet that objection that this amendment is put in.
I think the amendment is an improvement. It makes it better.
I move amendment No. 2:—
In sub-section (5), page 8, line 18, to delete "three" and substitute "five".
The object of this amendment is to increase the quorum of the disciplinary committee from three to five. I think the House will agree that it is better that, in dealing with the rather serious matters that will come within the ambit of the jurisdiction of the disciplinary committee, there should be a full quorum of five, rather than the rather small quorum of three; and, for that reason, I commend the amendment to the House.
I would agree with the Taoiseach that that should be done, but I think that the size of the committee should be ten instead of ten or seven as appears to be intended in the Bill. I think, because seven is a small number out of which to get a quorum of five, the committee strength should be left at ten rather than seven. I suggest the Minister insist on ten.
I think there is something to be said for the Deputy's suggestion but I think on the whole it can be assumed that members who are appointed on the disciplinary committee being, as they undoubtedly will be, very experienced solicitors of standing, will take their duties very seriously and will attend. I think it would be a greater safeguard for one against whom serious charges were made that they should have these charges investigated by five rather than by three.
I quite agree with that.
The same consideration will arise in this connection as arose in connection with the increasing of the Supreme Court. The Incorporated Law Society favoured this amendment of the disciplinary committee provision and requested that we put the figure up.
On the section, I was wondering whether, in sub-section (1), paragraph (b), sub-paragraph (iii) dealing with a misdemeanour committed outside the State, that is too trivial a matter for which a solicitor might be in danger of losing his professional practice within the country, or whether it would be a subject that the disciplinary committee set up by the society will treat with due discretion. It is just a question I pose to the Taoiseach.
I think this was raised on the Second Reading also and I considered it, as I undertook, since that time. I put this particular case as an example to the House and to the Deputy in particular who has raised this question again. Suppose a solicitor practising here goes across the water to England and commits what is an offence against the criminal law, a misdemeanour, surely he should not be entitled to come back here and practise, or at least he should be subject to the disciplinary jurisdiction of his own body in a matter of that kind. I think it is for the purpose of dealing with interests of that nature that this particular section was put in. Obviously a solicitor who has committed misconduct outside this country should not be entitled to practise his profession unless the disciplinary committee or the Chief Justice so thinks.
Deputy Lynch, if he considers the matter of this particular paragraph he is raising in conjunction with paragraph (b) of sub-section (1) of Section 14, will see that under that paragraph one of the matters that may be inquired into is if a solicitor has been guilty of misconduct tending to bring the solicitors' profession into disrepute. Even if paragraph 3 were not in the Bill as it stands, that particular provision would enable the disciplinary committee to take into account the very matter that is specifically referred to in the sub-paragraph to which the Deputy appears to take exception. I think it is far better for solicitors to have their attention directed to the fact that if they engage in criminal activities outside the country they may be subjected to the discipline of their own body. I think it can be left to the committee and to the Chief Justice on appeal to see that nothing untoward will arise.
I am satisfied with the Taoiseach's explanation.
I move amendment No. 6:—
In page 10, to add to the section two new sub-sections as follows:—
(4) The disciplinary committee may, on the application of the solicitor to whom an order under this section relates, suspend the operation of the order pending an appeal under sub-section (1) of Section 23 of this Act.
(5) An order under this section shall not, while suspended, be filed or enforceable under sub-section (1) of Section 21 of this Act.
Again, this amendment I think was suggested by Deputy Moran during the Second Reading of the Bill and I thought it was a reasonable and proper suggestion that there should be power for the disciplinary committee to put a stay upon the Order striking a solicitor off the rolls pending the hearing of an appeal.
I think the House will agree that it is better that this particular provision should be in the Bill rather than be made by rules.
I move amendment No. 10:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) Rules under this section may provide, in particular, for extending the period for the furnishing of any affidavit or document, or for receiving an application or affidavit notwithstanding any irregularity in its form, where it appears to the disciplinary committee to be just to do so.
The object of this is to enable the disciplinary committee when they consider fit to do so to extend the period for furnishing affidavits or documents and to waive any irregularity in the form of the affidavit. This power is possessed by the present statutory committee and every court of justice because injury may be done if the court or tribunal were bound by a merely technical regulation to rule out some document which they believed should in the interests of justice be allowed in. It has been suggested that, while the disciplinary committee under the section, as it now stands, would have the power to dispense with any of their own rules in the interests of justice they would have to observe a statutory requirement, and they would also have to reject an affidavit if there was the slightest technical irregularity in its form. This amendment will remove any doubts on that point.
I move amendment No. 12:—
In sub-section (2), line 16, to add to the sub-section the following words:—
and shall also cause the notice to be published in such other manner as the disciplinary committee may direct.
This amendment proposes to authorise the disciplinary committee to publish the notice, in addition to publishing it in the Irish Oifigúil, in any newspaper, periodical or other publication if the disciplinary committee deem it proper to do so. The point there is, that while Irish Oifigiúil is an official publication, very few people read it and it is thought that people generally should be informed of the fact that a solicitor has been struck off the rolls, so that they will not go to him or permit him to practise.
Will the Taoiseach say the publication will be subsequent to any appeal, or will it take place immediately?
I would say it will only take place on the final determination of the matter. Otherwise they might be in for libel.
On the section, perhaps the Taoiseach would clear up this point. Sub-section (4) refers to the filing of orders made on appeal on either File A or File B as may be appropriate. I am wondering what would happen where an order on File A was an order to strike off? Is it intended then that if there was an appeal, and such order was amended, that the amendment would appear on File A?
I am afraid I did not get the point. It is my own fault. I was just trying to bring my mind to the particular matter.
The order will contain the names of solicitors struck off by the disciplinary committee.
Yes.
Where an appeal is made under Section 23 of this Act and it succeeds, sub-section (4) of this section says that the order made on appeal will be entered in File A or File B, and it just struck me that confusion might be possible if the order made on appeal was put in a different file from the original disciplinary order.
I think perhaps the point may be met by Section 23, sub-section (3) which provides that a copy of the order made on appeal under this section shall be sent to the registrar and then he will deal with that in the appropriate way. File A, of course, is the order striking off. File B is all other classes of orders. Therefore, if there is an order made on appeal restoring the solicitor to his practice he will not appear on File A.
He would not appear at all until the appeal is heard.
He would not appear at all.
I move amendment No. 15:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) An appeal shall also lie to the Chief Justice against the refusal of the disciplinary committee to suspend the operation of an order under Section 18.
This amendment is consequential on amendment No. 12 which gives the disciplinary committee power to suspend the operation of any of their orders pending an appeal to the Chief Justice. The new sub-section which it is now proposed to insert in Section 23 entitles a solicitor who is aggrieved by a refusal of the committee to suspend an order to appeal to the Chief Justice against the refusal. Deputies will remember that there was power to suspend the order made by the disciplinary committee and this allows an appeal against a refusal by the disciplinary committee to suspend the order. In other words, if the order made by the disciplinary committee was to strike a solicitor off the rolls and the disciplinary committee refused to put a stay upon that order, the solicitor could thereupon appeal immediately to the Chief Justice asking for a stay pending a full hearing of the appeal by the Chief Justice. It is proper that that safeguard should be put in for solicitors.
There is one small point on this section. I called the Taoiseach's attention to it on Second Reading. It seemed to me, in regard to line 31, dealing with the return of premium, that it might be more proper to deal with it in terms such as these, "including terms as to return of premium in whole or in part". I may be wrong but, on reading that section, it would seem to me that the decision must be either to return the premium wholly or not at all, and it may be that the desire is that it should be partially returned.
"Including terms as to return of premium"; it is not "to deal with return of premium".
Then it is probably all right as it is.
I could not assure the Deputy that his point is not well founded because I have not considered it.
I think it is intended that a partial return may be made.
I think so because the power is given to fix the terms at which the indentures may be discharged. "Terms" include the return of premium. Even if those words "including terms as to return of premium" had not been put in I think it would have been included in the word "terms".
I think that is right.
I think on the whole I would take a chance on it.
I move amendment No. 16:—
In sub-section (2), line 15, to add at the end of the sub-section "Such consent shall not be withheld where the two apprentices are the children of the solicitor or where the second apprentice is the child of the solicitor and the first apprentice has been apprenticed with the solicitor for not less than two years".
The object of this amendment is to retain a right that I think a solicitor has at the present time to apprentice two of his children at the same time to him as a solicitor. I agree that there is in the second sub-section a provision whereby the society can give consent to a solicitor to have more than two apprentices under special circumstances but I submit that there should be no question of a solicitor who has two sons or a son and daughter whom he wants to apprentice to his own profession in his own office having to go to the society to get that consent. I suggest that there should be an absolute right in the case of such a man to have his sons or his son and daughter, or his daughters, for that matter, apprenticed, if he wishes, without let or hindrance on the part of anybody.
I am sure the Taoiseach will be aware of circumstances in which it would be awkward for a solicitor, having two sons growing up who were near the same age, both of whom wanted to become solicitors. He certainly could apprentice one but in the case of the second son, unless he got the consent of the society, as the section sets out, he would not be able to apprentice that son in his own office. I think it is plain and obvious that he could not very well apprentice his son in the office of another solicitor if it was in the ordinary country town. Even in Cork City it could hardly be done. It could be done but the other solicitor who was to take the second son would not be too well disposed towards doing it. Even in Dublin it would be difficult for a solicitor to apprentice his son to an office other than his own. Therefore, I suggest that it should be an absolute right, not depending on the consent of the society.
The second point in the amendment provides for a case where a man has a son who, having made up his mind about his future, decides not to become a solicitor and in the meantime somebody approaches that solicitor to take on somebody else and he does so and his own son within two years changes his mind and desires to become a solicitor. I again suggest that that solicitor should have the right, without the consent of anybody, to apprentice that son to his own office.
I am sure the Taoiseach can visualise the cases I have tried to put before him. I would like to hear what he has to say.
I think Deputy Lynch has made a reasonable and cogent case for this amendment and I am prepared to accept it.
Perhaps the Taoiseach would make this section more clear. I think that under sub-section (2) provision can be made by regulation for ascertaining the fitness or capacity of solicitors to take apprentices and to teach such apprentices. I do not see any provision—perhaps there is, but I do not see it—for appeal. I presume it is the society that will presume the fitness of a solicitor to take and teach apprentices. I would think there should be provision to have it looked into by someone else.
I think there is no provision for appeal and I would say the object is to give notice to people by regulations as to the qualifications they must have before taking apprentices. For instance, a gentleman in a back room in a back street in Dublin without any qualifications or practice: it would hardly be right that he would be allowed to take apprentices and to take a fee. I would imagine it is such cases that are envisaged in this. I would agree the regulations should give notice to solicitors, but there is no provision here for appeals.
I move amendment No. 17:—
In sub-section (1), page 19, line 49, to insert "(exclusive of cases in which the applicant has practised as a solicitor in the full-time service of the State within 12 months before his application)" after "force".
This amendment was submitted to cover the case of a solicitor who has been in the whole-time service of the State. Under the previous provisions of this Bill it would not be necessary for him to take out a practising solicitor's certificate. If this amendment were not inserted and if he left the Civil Service and started practising on his own he would have to apply to the society for a practising certificate and they could refuse to give it to him at their discretion. He has been practising in one or several senses all his life and the only difference is that he has not paid the necessary fee. The amendment is to provide that the mere fact that while he was in the service of the State he has not had to fulfil the requirements of paying a fee would not mean that he should not be deemed to be a solicitor, and that on resuming practice outside the Civil Service he should have the necessary certificate to enable him to continue in practice.
I move amendment No. 18:—
In sub-section (2), paragraph (c), to delete "a Civil Service solicitor" and substitute "a solicitor in the full-time service of the State".
This is consequential on the previous amendment as to the definition of Civil Service solicitors and the same applies to it.
There is one point of clarification in this section. It deals with the restrictions on persons drawing up legal documents. There is reference to an act done by a practising barrister and I have been asked to inquire as to whether it is an act done by an acting barrister on the instructions of a solicitor——
Not at all. There are certain privileges—very few and far removed—that a practising barrister still enjoys. As a matter of prudence these are very limited.
This does not purport to extend these privileges?
It purports what is there and nothing else.
It often happens in country places that priests and auctioneers and other people, even licensed vintners, draw up wills and they might now find themselves in a rather disadvantageous position. Many of these gentlemen draw up wills from which they may get some reward. The auctioneer might ultimately get the sale of the premises, the priest might get something for Masses and the publican might be asked to provide drink at the wake or something like that. I should like to know whether the Taoiseach thinks this should be made more explicit in such cases so that a gentleman could draw up a will without fear of the law.
If I were to make this section any more explicit it would be in a direction contrary to what the Deputy wishes. I would get after all these classes. Those people who engage in these activities for reward, whether here or hereafter, bring about a set of circumstances which are objectionable to the legal profession. The sooner they are got rid of altogether the better.
I was afraid to raise this matter because of its ambiguity. What would now happen in a case where a will had to be drawn up in a hurry? Will all these people mentioned by Deputy Lynch be debarred?
They will not be debarred at all. They will be debarred only if they are doing it for reward.
Supposing a will had to be made in a hurry and that the only person available would be the direct heir of the person making the will, would that mean that the heir would leave himself open to a charge?
Not at all, unless, of course, it left him open to a charge of procuring the property for himself.
I move amendment No. 20:—
In sub-section (1), paragraph (a), page 24, line 43, to insert at the end of the paragraph the words "so as to enable that person to act as a solicitor".
This is merely a drafting amendment. It has been inserted to meet the various suggestions made by Deputy O'Higgins on the Second Reading of the Bill. I intimated at that time that there was some substance in the views of Deputy O'Higgins and to make the matter absolutely clear I have brought in this amendment.
I should like if the Taoiseach explained the first paragraph in this section which states that where a solicitor dies his personal representatives may appoint a solicitor to carry on the practice of the deceased solicitor for such a period and on such terms as the society may approve of. I do not know exactly what is intended there. I think the practice at the moment is that the widow can get some other solicitor to act for her. Is there a great lot of power being taken by the society? Perhaps the Taoiseach would explain what is intended if he can. Would this provision restrict the widow from taking on a solicitor herself?
Section 59 which has been passed was for the purpose of ensuring that a solicitor's office would not be used as a front for an unqualified person. Section 61, I think I am correct in saying, relaxes that and relaxes the existing law. The position, as I understand it, is that strictly speaking, on the death of a solicitor, the widow or no one else has the right to go in and ask another solicitor to carry on but, in fact, with the tacit approval of the Incorporated Law Society it has frequently been done in order to alleviate the hardship which is often caused by a sudden death. What has been done in this section is simply to empower the council to legalise, if you like, the arrangement which has often been made.
Deputy O'Higgins is quite right that this section is a relaxation of the present law rather than an extension of it. It permits the practice to be carried on possibly for the benefit of a growing son or, perhaps, pending profitable sale of the practice. I am informed that the Incorporated Law Society have permitted the practice to go on and allowed the purchase money to be paid in instalments and generally they have enabled the retention of the family business for the benefit of the children growing up. In any event in view of the compensation provision in the Bill at the present time it is desirable to prevent an unqualified person from having control over a solicitor's practice particularly having regard to the desirability of controlling clients' money after the death of the person. I can assure Deputy Boland if the section did what he said I certainly would not have stood over it.
That is all right. I merely wanted clarification.
I move amendment No. 21:—
Before Section 65 to insert a new section as follows:—
65. Where a solicitor enters an appearance or is acting generally for a party in an action, suit, matter or criminal proceedings, a solicitor qualified to practise who is acting as his assistant shall have a right of audience therein in any court or tribunal in which the first-mentioned solicitor has a right of audience.
This amendment proposes to substitute a new section for the present Section 65 of the Bill. The only reason the amendment is in the form of a new section is to make the thing easier of understanding and clearer in its intention. The only substantial change that is effected by the proposed new section is to extend to criminal proceedings the provisions of Section 65 as they are at present drafted which gives an assistant to the solicitor on record in a civil suit a similar right of audience to that of the solicitor on record. The extension has been suggested by the profession through the medium of the Law Society, and I think we ought to accept it. The new section also makes it plain that an assistant to the solicitor on record must be qualified to practise before he can appear in court, that is, he must hold a valid practising certificate.
I move amendment No. 22:—
In sub-section (3), to delete paragraphs (a) and (b) and substitute the following:—
(a) a solicitor in the full-time service of the State, or
(b) any solicitor who is in the part-time service of the State, so far as regards moneys received, held or paid by him in the course of such service.
This is consequential on the definition of "Civil Service solicitor".
I move amendment No. 23:—
To insert at the end of the section a new sub-section as follows:—
(5) The council shall ensure that no member of the disciplinary committee shall act as a member of any committee under this section concerned with complaints against solicitors.
This amendment provides that the council shall ensure that no member of the disciplinary committee shall act as a member of any other committee which is concerned with complaints against solicitors. As the disciplinary committee has the quasi-judicial function and the duty of investigating and inquiring into charges against solicitors, it is obviously desirable that the members of that disciplinary committee should be members of no other committee where any charges in different forms may arise for consideration.
Would it not be clearer if it was put in as "change of address"? It could be that a man might convert his offices in some structural way. The section refers to a change in his place of business. "Change of address" might make it clearer.
I think it would be even less clear because a solicitor very frequently does not live in the place where he practises, and if it is "change of address"——
I mean "change of address in his place of business".
I think "any change in his place of business" is clear enough.
I move amendment No. 24:—
Before paragraph 14 to insert a new paragraph as follows:—
14. Any claimant for a grant from the fund, may, if he so desires, be represented before the society by a qualified accountant.
The main purpose of this amendment is to pinpoint what appears to me to be something that is missing from the Sixth Schedule, that is, reference to the mode of inquiry by the society into a claim made by an aggrieved client of a solicitor. As far as I can see the Schedule contains in paragraph 13 the only reference to any means of presenting a case or of the society sending documents on which a case may be presented:
"The society, for the purposes of inquiry into any matters which may affect the making or refusal of a grant from the fund, may take evidence on oath, and administration of such oath is hereby authorised."
The obvious thing for an aggrieved person to do would be to go to another solicitor and to ask that solicitor to make representations to the society for compensation. As a general principle it would not be a good thing to ask a solicitor who has charged a member of the society to appear for that aggrieved person before the society. It is for that reason I suggest that it might be made more explicit as to how that aggrieved person can make his case for compensation to the society.
I think perhaps Deputy Lynch is unconsciously confusing the idea of representation before the committee making the grant and the evidence to establish a claim before the grant. I think there can be no doubt that in many cases, not in all cases, the evidence of an accountant would be very desirable to establish the claim. That will not be necessary in all cases; in fact it may not happen very frequently. I think this is a question of evidence, and I would strongly object to a qualified accountant being put into this section as an advocate, and I think that is what the Deputy means by the amendment. Whether he intends to mean that or not I do not know, but as one who formerly practised as a barrister and who is dealing with a Bill for practising solicitors I would most strongly and strenuously object to having anything to do with a provision which would enable a qualified accountant to act as an advocate. If Deputy Lynch thinks it is not proper for a solicitor to come before a solicitors' body to make a case——
He is too shy to put in the alternative.
You can understand well why I did not put in the barrister in this amendment, but the Taoiseach struck the nail on the head when he mentioned I probably was confusing representation with presentation of evidence. What I really feel is that ignorant people may not be able to present their cases properly to the society for a grant from the fund. There should be some provision or the Bill should make it more explicit as to how that person can properly and fully present his case and produce evidence of his claim to exercise it.
I should have referred the Deputy to paragraph 19 of the Fifth Schedule which provides for regulations to be made with the concurrence of the Chief Justice providing for the procedure. I have little doubt that, when these regulations are made, the manner in which these things can be investigated will be provided by these regulations made with the concurrence of the Chief Justice and that all the matters that the Deputy has very properly drawn attention to will be taken into account.
I appreciate the point the Deputy made, that is, that ignorant people may not be able to present their case. However, when they come to make their case they will get every possible facility to do so and the procedure of the regulations made with the consent of the Chief Justice will be a guide to get over all the difficulties.
I move amendment No. 25:—
In page 35, line 47, to insert "or any" after "all".
This is a drafting amendment.
I move amendment No. 26:—
In page 35, line 46, to insert "the society or" before "the person" and to delete "his" and substitute "the".
This amendment seeks to secure that the Incorporated Law Society, as well as a person who requires them to investigate his claim to documents taken by the society from a dishonest solicitor, may require the costs and expenses of investigating the claim to be taxed by the Taxing Master.
It is little more than a drafting change.
I move amendment No. 27:—
To delete paragraph 17 and substitute the following paragraph:—
17. Where the society are satisfied that dishonesty of a solicitor has occurred, they may apply to the High Court for, and the High Court may make, an order directing either—
(a) that no banking company shall, without leave of the High Court, make any payment out of a banking account in the name of the solicitor or his firm, or
(b) that a specified banking company shall not, without leave of the High Court, make any payment out of a banking account kept by such company in the name of the solicitor or his firm.
This amendment proposes to substitute a new paragraph instead of the existing paragraph 17 of the Fifth Schedule. Under the existing paragraph the High Court was being given power to order that a specified banking company should not, without the leave or order of the court, make any payment out of a dishonest solicitor's banking account. As, however, there may be no information available as to the particular bank or banks at which a solicitor keeps accounts, it is desirable that the High Court should have power not only to "stop" payments by a specified bank but also payments by any banking company whatever. This is what the new paragraph achieves.
When is it proposed to take the next stage?
Could I have all stages to-day? It is very desirable. The Seanad is meeting to-day and it may not be able to meet next week.
We do not object.
Agreed to take the remaining Stages to-day.
Bill received for final consideration and passed.
I should like to express my appreciation of the support and assistance I have obtained on this measure from all sides of the House, particularly from Deputy Boland.
I appreciate that very much.
