It has been said that sad cases make bad law. The case I will outline in tedious detail, for which I apologise to the House, is a very sad case. It indicates how extraordinarily sensitive is the relationship between a solicitor and a client and how a solicitor can abuse a client. In this case no fewer than six solicitors abuse a single lady who took early retirement, resulting in her now living in conditions of poverty.
This case illustrates the injustice that can be inflicted on a citizen by a so-called liberal profession. I do not pretend that this case is typical of the generality of relationships between clients and their solicitors. I hope it is not so typical, but it is not unusual to hear of cases of this nature. The case also illustrates the extent to which matters can go wrong under the existing arrangements. It illustrates the extraordinary vulnerability of the citizen in dealing with any professional service and the urgent need for reform, particularly the type of reforms introduced by the Bill. I suggest that in some cases the Bill does not go far enough. It is only a first step, although a good one. This case suggests that we should go further and introduce ab initio an independent legal services ombudsman who would be available to the citizens at all times. The case I have in mind involves a constituent, whom I will call Betty. Solicitors and solicitors' firms, all of whom emerge with ignominy with the Incorporated Law Society, who sat on their well-manicured hands for over seven years, doing nothing to relieve the distress and the plight of this constituent of mine.
In May 1983 Betty viewed a three bedroom prefabricated chalet of approximately 700 sq.ft. on one-sixth of an acre of land in County Wicklow. The property was for sale privately. The usual undertakings were given with the sale document — there was full planning permission, the septic tank was in an adjoining field and everything was supposed to be in order. In June 1983 Betty engaged a solicitor, whom I will call Mr. NS, to act for her in the proposed purchase. During the consultations it was specifically agreed that a careful check of the planning permission would be made. Betty gave specific instructions in writing to ascertain the exact location of the septic tank and the existence of rights of way. In July 1982, on receiving her solicitor's assurance that everything was in order, Betty signed the contract of sale. She paid the agreed sum in cash and a few months later she paid to her solicitor £1,555 in legal fees, stamp duty and Land Registry fees. In November 1983 my constituent signed a deed of transfer, but no map was appended. This was the first occasion on which she began to feel that something might be wrong.
During the first 18 months or so of occupancy of the house Betty invested the balance of a cash payment which she received on retiring from a State-sponsored body. She intended to make this house her retirement home for the rest of her life, somewhere that would be comfortable and a pleasure in which to live. A year later the problems began to emerge one after another. In December 1984 my constituent had difficulty in contacting her solicitor regarding outstanding matters, particularly the transfer of title. At that stage the solicitor had gone out of public practice, although from time to time he gave advice on a well known RTE programme. Betty had not been notified that the solicitor had gone out of practice or that the practice had been taken over by another well known and well respected firm of solicitors in this city. That firm refused to handle the unfinished business unless Betty agreed to pay further fees.
In March 1985 my constituent contacted the Incorporated Law Society and asked who was responsible for concluding the conveyancing in this regard. She also asked the reasonable question why the second firm should request her to pay a second tranche of fees. Betty contacted the Land Registry and found to her surprise that two applications for transfer of title had been made during the year 1984, both of which had been rejected. Neither the original solicitors' firm nor the firm which took over that business informed my constituent of these rejections even though they were aware of them. When Betty visited the planning department of the county council she was told that there was no planning permission and no planning file for the structure — so much for the capacity of a solicitor to handle a simple matter such as conveyancing — and that she should make an application for retention.
Meanwhile the condition of the house was deteriorating. It developed several serious structural faults, which indicated that a second professional adviser, the architect-engineer, had also been deficient in the performance of his duties. In August 1985 Betty informed the Law Society of what she had discovered and consulted another solicitor. With great difficulty and considerable delay, the file was passed to that solicitor by the company which had taken over the business of the original solicitor. When the file was examined in the second solicitor's office an extraordinary series of details came to light.
First, the second application to the Land Registry had been rejected because the Deed of Transfer had been altered after being signed by both parties — a fraudulent alteration; second, the property described in the deed and marked on the relevant map was not in fact the property that Betty had bought. Not only was it not the property she had bought but it was not even in the right townland. The site described was one and a half miles from the site Betty had bought. So much for the capacity of a solicitor's firm — and I am talking about a well-known solicitor — to operate appropriately; third, the location of the septic tank had not been ascertained, nor had any access rights been sought or obtained from the owner of nearby land; fourth, a retention order was granted on appeal in 1975, on compassionate grounds, by the local county council; fifth, the actual planning document had not been received in Betty's original solicitor's office until nine days after she had signed the contract, on the advice of her original solicitor.
Sixth, it emerged that the solicitor's office had never contacted the planning department and had never made a search of the plan of the Planning Register — although he had charged £1,555inter alia for that service; and seventh, a considerable amount of inaccurate information had been given in the requisitions, particularly in regard to planning and in regard to the septic tank.
The second solicitor engaged by Betty was horrified at what he found and advised her that the only person she could hold liable in this matter was her original solicitor. In this extraordinarily tragic mess, the second solicitor was the one person who dealt with my constituent decently and compassionately. He told her, quite frankly, that there was little point in a person with little means seeking to sue a solicitor. He said that he would terminate his case rather than take money from her. As it turns out, that advice was the most honest and decent that my unfortunate constituent received from any of the six separate sets of solicitors with whom she dealt.
In September 1985 Betty again visited the planning department of the local county council, this time with a folio reference number. The Planning Register showed further anomalies. First, an application for retention had been made in 1974 — Betty's original solicitor had never ascertained that fact. The application had been refused on the grounds that the house was in a designated area and was not in character with other buildings in the district, and there were material contraventions right, left and centre of the county development plan. Second, the planning file showed that the retention order granted on the appeal in 1975 had never been properly entered in the Planning Register — that was a mistake at local authority level.
The planning file could not be produced by either the county council or An Bord Pleanála. Wicklow County Council subsequently confirmed that the issue of a fresh planning permission could not be recommended because it very seriously contravened all of the county's planning rules.
Betty then sought help by contacting various organisations in the area. Various professional contacts were made; builders and local political representatives were contacted. In all, 30 people were written to by this unfortunate woman, who, at this stage, saw her life savings disappearing before her very eyes.
It was at that stage that I first came across Betty, who was extraordinarily distressed. She had had to vacate her house because of severe structural problems; she was, to say the least, being biffed by her various solicitors; and she was living in board and lodgings in a guesthouse.
In January 1986 Betty, as a last resort, decided to consult another solicitor. In fact, she had difficulties in getting another solicitor to handle her case. The solicitor she engaged was a young lady solicitor who had recently started practice. At the outset Betty made it clear to her new solicitor that she was reluctant to resort to court action if the matter could be resolved by any other means. Frankly, she feared that she would not get justice against a solicitor. The new solicitor said that she would first endeavour to have title sorted out and would not charge fees until she knew whether or not the fees could be recouped from the original solicitor.
In February 1986 the new solicitor made an application for registration of caution to the Land Registry. The application was rejected on the grounds that the map lodged was not an original ordnance survey map to the largest possible scale. That was another example of rank incompetence on the part of yet another solicitor, because it is clear from the documents that an original ordnance survey map to the largest possible scale has to be produced.
In June 1986 the new solicitor advised that time was running out and strongly urged Betty to lodge proceedings as a precaution against being barred by the Statute of Limitations. Very reluctantly and with some trepidation, Betty agreed to do that, and counsel was engaged.
In May 1987 draft proceedings for a Circuit Court case were furnished to Betty. Her solicitor advised that the next step would be a consultation with the counsel. It took an incredible 21 months for that counsel to proffer his time to the solicitor and to the solicitor's client; a full 21 months elapsed before a meeting could be organised — and this, I remind the House, was in the days before the Beef Tribunal when those guys were not mining a vale of pure gold in Dublin Castle.
Meanwhile, I was continuing my efforts at local level and had succeeded in having the planning file finally produced. The original application for planning permission was missing from the file, but the file contained documents going back to 1970 and a map that showed the original site area to be 2.2 acres, not the considerably lesser amount of land that Betty had bought. The permission on appeal had apparently been granted on purely compassionate grounds, although several requirements of good and proper planning had not been fulfilled. The council had granted the original retention for compassionate reasons.
In May 1987 I took the matter up with the Incorporated Law Society. After protracted correspondence between myself, Betty and the Law Society, I had a meeting with an assistant secretary of the society. With reluctance, the society allowed my constituent to sit in on that meeting.
In September 1988, as a result of the meeting some 15 months earlier, Mr. N.S., the original and by this time retired solicitor, was brought before the Registrar's Committee of the Law Society. This was five full years after the sorry series of events had started. At this stage my constituent was worn out and practically at the point of despair. One would have thought that the Law Society, having wielded its magisterial presence — reluctantly — into the case would provide Betty with some solace. But, no, the committee's opinion was that "there were matters of law involved" and that Betty should "seek and be guided by the advice of her solicitor". If this case were not so tragic it would by that stage have been a farce. My constituent had been dealing with four different solicitors by that time. Betty's new solicitor was kept informed throughout these developments.
In January 1989 a meeting with counsel and Betty's solicitor took place. When the full facts of the case were discussed Betty was recommended to change from the Circuit Court to a High Court action, to which she agreed. In March 1989 a plenary summons was issued, finally, on the original solicitor. In October 1989 Betty attended a further meeting with her counsel and solicitor to discuss the claim. At or about the beginning of the following year a firm of solicitors were at last appointed to represent the interests of Betty's original solicitor. On 20 July 1990 Betty's solicitor gave the original solicitor a deadline of 21 days for the filing of the defence. After five years, such a deadline was generous. The date was not met. A senior member of the firm made an issue of the fact that he had not yet received the full file. I know that solicitor's offices are somewhat like those of TDs, not terribly well organised but, after all that time, one would have imagined that that gentleman would have read through the papers on his desk and found Betty's file.
Betty's new solicitor, at this stage mark 4, confirmed that she was furnishing copies of the completed file. He also served a notice for particulars which was duly dealt with. In October 1990, seven years after the deed of transfer had been signed, the defending solicitor advised that the defendor was prepared to grant way-leave to the septic tank — seven years after the original solicitor had said there were no problems with the septic tank; and all was in order. Of course, that was an admission that his client had been seriously negligent in just one of the many particulars to which, in a simple conveyancing, attention should be given.
On 22 January 1991 Betty's solicitor again gave 21 days deadline for the filing of the defence, which deadline was not met. On 7 February 1991 another 21 days deadline was given; that was not met. Betty's solicitor's explanation at that stage for allowing so much grace was that the defence might come up with some obscure legal point for which she, the new solicitor, was not prepared.
In April 1991 Betty instructed her solicitor not to wait any longer, to go ahead with a motion for judgment in default of defence, a simple course of action which should not have required a constituent of mine — who at that stage had become somewhat of an expert in law — to advise her solicitor; one would have thought the solicitor would have done that of her own volition. This was listed for hearing on 15 April 1991 but, on that morning, Betty received a telephone call from her solicitor saying it had been agreed by both sides to give yet a further 21 days grace. My constituent, seven and a half years after suffering her original injury, did not agree to a further extension and gave specific instructions that there should be no further extension, requested that the motion for judgment be brought before the court in default. Her specific, written instructions, repeated time and again, were ignored by her latest solicitor. The defence was not furnished within the new deadline either.
Betty continued to put pressure on her solicitor, both by telephone and letter, referring to the inordinate delays, and instructing her to seek the earliest possible date for a hearing. On 8 May 1991 Betty received the draft of an agreement for way-leave to the septic tank for comment. Her comments were choice, if unprintable. Counsel advised that it should be accepted without prejudice. Betty agreed but pointed out that the agreement described her as the registered owner which, of course, she was not, because registration had never taken place.
On 19 July 1991 Betty's solicitor gave seven days notice, and a stern letter, for the filing of the defence. On 1 August 1991 Betty received a copy of the defence from her solicitor dated 6 May 1991. The defence was a simple and blatant denial of every single item. Subsequently Betty's solicitor told her she proposed to arrange a meeting with the defendant's solicitors and with the vendor's solicitors in the hope of negotiating a mutually agreeable out of court settlement.
Betty wrote to her solicitor again on 7 August 1991. She wrote again in September and, on 26 September 1991, she contacted her solicitor to ask whether the proposed meeting had taken place, what had happened and if she, the solicitor, was not too busy would she let her, her mere client, know what was going on in the case. She also sought from her solicitor an assurance that the inordinate delays would not be detrimental to her case and again instructed her to go ahead and seek a date for a hearing if there were no immediate positive results from the negotiations.
On 14 October 1991 Betty's solicitor telephoned and referred to the delay being caused by the industrial dispute at the courts. She suggested it might expedite the matter by a few months if Betty, my constituent, agreed to change her case back to the Circuit Court. It should be remembered that this is the same solicitor who had advised her three years earlier to go to the High Court because of the higher level of claim that can be negotiated there. It is also interesting to note how the solicitor, who had allowed so many delays could so blatantly blame an industrial relations issue which had just then emerged and use it to excuse their inactivity and that of the generations of solicitors with whom my constituent had been dealing.
On 18 October 1991 Betty wrote to her solicitor again stating that she did not agree with this course of action which would be clearly a retrograde step, putting a limitation on the amount of claim that could be pursued. Betty repeated her instructions to her solicitor to seek the earliest possible date for a High Court hearing and requested her to confirm that she was proceeding, as instructed, but that, to date, she had not replied to that letter. Betty continued to press her solicitor through the last few months of 1991, finally writing requesting a reply to her queries.
Without going through the list of the more recent correspondence, the case remains unresolved to this very day. My constituent, in the early eighties, took early retirement from a State-sponsored body and invested all her cash in a nice little house which was to be a happy place in which to spend the remainder of her days. In these later years of her life, which should be a period of joy she now lives in one room, effectively reduced to living in bed and breakfast accommodation by a crowd of thugs who should not be allowed to be a member of any profession. It is a scandal.
The reason I have relayed this scandal in such detail is because I am sure it is not the only such scandal. Perhaps if some elements of this case were brought to the attention of the public, a cord of decency in somebody's body would be struck and well-heeled solicitors will do something to alleviate the extraordinary plight of this unfortunate constituent of mine. To my mind it illustrates the failure not merely of solicitors to operate within grounds of common decency but also illustrates the extraordinary failure of the Incorporated Law Society to vindicate the rights of a citizen. Under our laws that society has been given a privileged position. They are supposed to oversee a liberal profession. But for seven years they did not do anything in this case. In all of my contacts with the Incorporated Law Society, it is only fair to say, they were very correct. However, no one could ever shake off the feeling my constituent and I had that, above all, the focus of that society was to protect the members of that profession. Above all, this sad case illustrates to me — as it has illustrated to other Members — the vital need for a proper set of procedures to deal expeditiously with complaints from the legal profession.
The central core of this Bill deals with the manner in which complaints regarding solicitors are handled. As the former Minister, Deputy Burke, said when introducing the Bill, there has been persistent public criticism of the way in which complaints about solicitors are dealt with by the Incorporated Law Society. If the case I have just outlined is anything to go on, it is not unreasonable to claim that there have been persistent complaints about the way citizens are dealt with by that society.
The Bill is welcome in that it represents a major reform and upgrades the law in relation to solicitors. It is also welcome because its provisions will allow the profession to respond to change and its publication affords this House an opportunity to consider how a vital profession operates.
Part III will help to provide a new procedure for the investigation of complaints, welcomed by previous speakers also. These provisions are long overdue. While they will not prevent a recurrence of cases such as that of my constituent, they will mean that in the future people who feel aggrieved at the action or, more precisely, the inaction of their solicitors will have a more clear-cut means of appeal open to them.
While welcoming the changes being introduced which will go some way to alleviating the most glaring problems, I feel a sense of unease that, in the first instance, complaints will still be referred to the Incorporated Law Society. They should be divorced from the issue of complaints. The public, rightly or wrongly, perceive the Incorporated Law Society as being primarily involved in the protection of the interests of solicitors. While in my limited dealings with the Incorporated Law Society I was always dealt with correctly and properly, the public have some reason for their feeling.
Section 15 allows for independent adjudication of complaints concerning the manner in which the Incorporated Law Society handle a complaint brought to their attention whereas it would be infinitely better were the complaints rolled into one independent institution.
I believe it would be better for a full legal services ombudsman to be appointed on the nomination of the Miniter for Justice, with the agreement of the Houses of the Oireachtas. A legal services Ombudsman should be allowed to examine all complaints, save perhaps complaints regarding the level of fees. He should be entitled to hand down an adjudication which should be implemented by the Law Society. The existing endorsement powers of the Law Society, including the power to strike a solicitor off the register, could then be brought into play in order to ensure relief for clients whose complaint has been upheld.
As I see it, the situation in the legal profession is exactly analogous to the situation which existed in public administration before this House created the office of Ombudsman under the Ombudsman Act, 1980. At that time the State could have taken the decision to extend the in-house appellate systems which already existed. This procedure was recommended in the 1969 Devlin report. However, this House took a more radical view of the situation at that time. Perhaps it should consider taking a more radical view of the situation at that time. Minister to consider taking a more radical view now. As I said, the course of action proposed in the 1969 Devlin report was not acted upon. Instead the Houses of the Oireachtas imported an institution and grafted it on to our administrative system. In spite of the prophets of doom, the graft took and the new institution, the Ombudsman, blossomed. There does not seem to be any good reason why the same institution could not be established ab initio in this case. I accept that the step being taken by the Minister in the Bill is a move in that direction. As in the area of public administration, a legal services ombudsman would provide citizens with a quick, relatively cheap and visibly independent alternative and supplement to the existing or proposed complaints system.
I wish to refer to the provisions in other sections of the Bill. Section 21 provides for the publication of annual information about complaints. The section does not make clear the amount of information which should be published. Will this information simply be an anonymous digest of statistics? If so, I believe it will be useless in forewarning the public about rogue operators. It seems that too much discretion is being left to the Law Society and their committees in regard to the application of section 21. I ask the Minister to look at the possibility of ensuring, either by way of amendment or ministerial order after the Bill is enacted, that the exact type of information which should be made available is set out clearly. If there are rogues operating in the solicitors' profession — I accept that these are only a small minority — then their names, the names of their businesses and the names of the firms under which they operate should be published in the same way as the names of people who try to avoid paying tax in this State are published. Rogues should be faced with the full opprobrium of having their names made public.
Section 22 (1) will leave too much discretion to the Law Society. As things stand, the society could decide to effectively suppress publicity about a case even when their disciplinary committee have made an order. This does not seem to be correct. When we set down rules here we should make it clear that we not only want them to be applied but we want it to be made clear to the public that they are being applied. In spite of these caveats, I welcome the provisions in this Part of the Bill.
I generally welcome the provisions in Part IV of the Bill which deals with the protection of clients. However, I wonder if the maximum fine proposed under section 26 (2), £500, is sufficient. Given that the passage of time inevitably reduces the value of money, I wonder if it is wise to specify in law an amount without index linking it. This observation applies to a host of other sections where reference is made to fines. I have no doubt that other Members will make the same point.
I understand and welcome in a general way the provisions in Part V. However, I have developed a jaundiced view of the so-called liberal professions and their capacity to self-regulate their activities. In particular, I have doubts about the wisdom of any profession controlling both education and admission into their profession. This can give rise to complaints. In the case of the solicitors' profession it has given rise to charges that the profession are restrictive, elitist and self-serving. I do not know, nor can I judge, the accuracy of the charges which have been made but they suggest that perhaps we should give more fundamental consideration to the issue of education in this area. In fact, I would go a step further. Both the State and this House should look at the relationship between professional bodies, education and educational standards. I am not sure what the answer to this conundrum is but it strikes me that there is a problem here. If a profession control education and admission to their profession, they are, at a very minimum, always open to the charge that they are abusing their power to serve the self-interests of their members, limiting the number of people being admitted or operating some form of old boys network. I believe many things about the Law Society but I do not believe those charges, if made, would be true. Nevertheless, we need to think about education, professional training and admission, not just to this profession but to all liberal professions right across the board.
There has been a body of complaint in regard to the education of solicitors, which is dealt with in section 43 of the Bill and section 40 of the principal Act. The complaints made should be examined and thought given to having a more direct State input to protect the public interest and ensure fair play, especially for young people with no legal background who may wish to enter the profession. From my contacts with my students over the years and young people in my constituency — I am sure other Members have had the same experience — I know there is a feeling that these professions are a closed shop. It is believed that a person who is on a certain inside track will be able to get into the profession. I do not necessarily believe that that is true, but we should put in place some institutional arrangements which will indicate to young people that if they wish to get into this profession or any other profession they can do so on the basis of their capacity, merits and ability and not on the basis of linkages, nepotism or friendships.
Overall, I welcome the Bill and I commend the Minister and his predecessor on bringing it forward. It will be no secret to Members of this House that I harbour the most profound doubts about allowing the legal profession or any other profession to examine complaints about themselves. I do not think you can be a judge in your own case. The establishment of an independent system of adjudicating on complaints on how the Law Society investigate complaints against them is provided for in the Bill. This is a good first step in the right direction. However, I would urge the Minister and his Department to think of going a step further and upgrade the proposal by appointing a full legal services ombudsman who will have the capacity ab initio to examine all complaints and ensure that complainants receive justice.
I have outlined the extraordinary case of a woman who over a seven year period has literally been reduced to a piteous state. I do not believe this is in any way indicative of what happens in the vast majority of cases, but the fact of the matter is that this tragedy has occurred. The Law Society have been aware of the case for four years. They have given this woman courteous hearings but, to their grave discredit, they have not given her justice. There is no doubt in my mind that this is good legislation but equally I have no doubt that we need to think a little further about the issue.
I complimented the Minister in his absence on bringing this Bill forward and I now compliment him in his presence on doing so. However, I hope the Minister will give consideration at this stage to providing also that the legal services ombudsman — ombudsperson perhaps — could deal with all complaints ab initio and not wait until the law society have had their day and then come back.
