Solicitors (Amendment) Bill, 1991: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".

I welcome the fact that this Bill is in the House. It has been required for a long time in that there has been a great need to address the antiquated laws under which the legal profession operate. I will immediately raise a fundamental difficulty with the Bill. It is regrettable that it is entitled the Solicitors (Amendment) Bill because we seem to be persisting in the view that only one branch of the legal profession requires regulation and that the other branch can be ignored and exempt from any regulation in this House.

Before I proceed further, I should declare an interest. It is not exactly a national secret or unknown to all other Members of this House that I am a member of the solicitors profession. I suspect that some of the things I will say during this debate will not endear me to all of my colleagues within that profession.

We need comprehensive legislation which codifies the legal provisions applicable to the practice of law in Ireland generally. I fail to understand why we proceed on the basis of assuming the solicitors profession requires regulation, which it does, but also assuming that the Bar is a law unto itself, exempt from all legislation and regulation. In 1971 the Courts Act provided for the first time for the appearance as advocates before our superior courts of solicitors. Until 1971 a solicitor could act as advocate in the lower courts but could not appear in the High Court or the Supreme Court. That Bill was published when Deputy Desmond O'Malley was Minister for Justice. He indicated in this House during debate on the Bill that he saw the opening up of advocacy in the higher courts to the solicitors profession as a step along the road to unifying the legal profession. It was a small step and a correct one, but unfortunately there have not been many steps since. We have maintained artificial demarcation lines between the two branches of the profession and in this Bill we are copperfastening and confirming those demarcation lines, some 21 years later.

It is my view that we no longer need two separate groups, one called barristers and the other solicitors. We should have a profession of lawyers. Within that group it is inevitable that people will specialise in different areas. Some will work in those areas of the law which can be dealt with behind a desk in an office and others will wish to appear as advocates before the courts. In both areas people will develop specialities. If the aim of the Oireachtas as stated in 1971 is to encourage a coming together of the two branches of the profession, there are various fundamentals we are not addressing. This Bill should address the legal profession in its entirety.

In the fundamental area of legal education I fail to understand why the Bar and the solicitors should run totally separate courses to qualify to practice in their individual areas, while at the same time academic university courses in law are also in place. I would not share the view expressed by Deputy Burke when, as Minister, he introduced this Bill that the academic and the professional courses should join together. The academic courses in the universities have a specific and separate role from the professional courses. Many of those who take the academic university course go on to take up employment other than as professional lawyers. There is an interest in maintaining academic courses which do not automatically result in people becoming solicitors or barristers, courses that may deal with the more academic areas of law that may not need to be addressed in a professional course. It is indefensible that we maintain a position where the Bar and the solicitors profession run two separate courses, with different criteria, different examiners and different approaches.

The Bill enables the Law Society to come together with other bodies and no doubt it is the Minister's intention to encourage that. Things have gone beyond that. The legal profession is slow to change but there have been some fundamental changes in the education area of the solicitors profession. In the early days of the changes in the system which applies to solicitors' apprentices I was involved in helping to put together one of the courses. The legal training provided to barristers and solicitors should be identical and it should cover all areas of law. Both professions should understand the different aspects of the law and how to act as advocates. The provision of a school of professional legal services would ensure the highest standards of education, greater uniformity of standards than at present and a wider understanding of different aspects of the law than may emerge under the separate systems which operate at present. This Bill runs on the assumption that the education system as it applies to the legal profession will continue to remain separate as between the two branches of the profession.

There are aspects of the Bill I welcome but other aspects seem extraordinarily confused. I do not know whether the confusion derives from a misunderstanding of how our law operates in some areas or whether the confusion is in some ways deliberate, perhaps encouraged by the professional body who may have been consulted in the preparation of the Bill. Maybe that is an unkind insinuation but I will deal with it shortly.

The Bill tries to address the issue of discipline and disciplinary procedures within the legal profession, but those aspects of the Bill are confined to the solicitors profession. I am very critical of the manner in which the Bill in substance addresses those issues. I have no doubt that we need to modernise the current code of law in this area. Just as a solicitor may be negligent or incompetent, a barrister may also be negligent or incompetent; and just as solicitors might misconduct themselves it is not beyond the bounds of possibility that barristers would misconduct themselves.

I would not like what I am going to say to be misinterpreted as suggesting that professional people working in the law, solicitors and barristers, generally behave in that way. In my experience over the years the overwhelming majority of people working in both branches of the legal profession, in the solicitors profession and the Bar, are people of the highest integrity who seek to apply their skills to giving their clients the greatest assistance possible in tackling problems no matter what area of the law they relate to. There is only a very small number of people in the legal profession who create difficulties for their colleagues and their clients, but it is those people who cast a shadow over the legal profession. They impact on the reputation of lawyers and create a public perception of lawyers that, to put it very mildly, is not always complimentary. If a survey was carried out as to what profession is the most popular as perceived by the general public, lawyers and legislators would probably compete for the bottom place on the list of popularity. That is due to perceptions which are often derived from prejudices or from the behaviour of a very small minority of individuals.

I will deal briefly with the various aspects of the Bill and outline my reservations and concerns. I will not delay the House by stating the various provisions with which I agree. In relation to the solicitors profession there are a number of worthwhile and welcome reforms in the Bill and it is unnecessary to advert to those at any great length. I hope that my critical comments of the Bill will be seen as constructive comments, as an attempt to improve the Bill. I will signpost some of the difficulties I see in the hope that the Minister may address them on Committee Stage.

The first matter I will refer to is a standard problem with any Bill that comes from the Department of Justice, that is section 1, which provides that the Bill, or various sections of it, will come into force on whatever day is designated by the Minister. We must get out of the habit of passing legislation in the Oireachtas that gives the appearance of changing the law but which in reality does not come into force. We have to get out of the habit of this House losing control over the time legislation becomes operative. It seems that this provision is inserted in every legislation that comes from the Department of Justice, and the Oireachtas is abdicating its responsibility to determine when the laws passed by it will become operational. I have no problem with legislation which provides that it will become law in three or six months, or even 12 months after it is passed by the Oireachtas. That time may be needed to make complicated regulations or to put in place arrangements to facilitate the implementation of aspects of the Bill. However, I have a fundamental objection to Bills which constantly come from the Department of Justice indicating no time scale as to when they will become operative.

On this issue I would make a point which is relevant to a matter in which the Leas-Cheann Comhairle and I had an interest, that is the recent controversial case in Waterford. The Criminal Justice (Forensic Evidence) Act passed in December 1990, which provides for genetic fingerprinting, contains a similar provision, and a year and a quarter later that Act is still not operational. We have no indication whether it will come into force later this year or next year. If that Act had been operational when the controversial incest case took place in Waterford, genetic fingerprinting could have been carried out to dispel any doubts as to the paternity of the girl who, it was alleged, had been abused. I will not go into detail in that debate because it is not relevant to this issue. I am merely pointing out that because this provision was included in that legislation this House is now helpless to bring it into operation. If we are serious about addressing antiquated laws that apply to the solicitors profession, this House should ensure that whatever legislation is passed here becomes operative within a reasonable period.

I suggest that this section be amended to provide that the Bill will become operational six months after it is passed. That would allow breathing space for the Minister to put together rules, regulations or procedures that he feels are necessary and that may need to be discussed with the Incorporated Law Society, who are directly affected by the Bill.

There is a curious provision in section 2 of the Bill. The phrase "contentious business" is relevant to various sections of the Bill in determining certain controls that apply with regard to the behaviour of solicitors. The Bill provides that contentious business applies to business done by a solicitor in or for the purposes of or in contemplation of proceedings before a court or before an arbitrator. In the context of litigation solicitors do a certain amount of business before tribunals. The Employment Appeals Tribunal is an obvious example of a tribunal before which substantial cases are heard which require legal representation. Various tribunals and appeals hearings take place under the Social Welfare Acts, and I fail to comprehend why contentious business should exclude that type of hearing. Perhaps it is just an omission, but I suggest that the Minister consider the matter.

I am particularly concerned about the investigation of complaints provisions under Part III of the Bill. It is quite clear that complaints are made about a small number of solicitors who do not do their job properly, who misconduct themselves or who, on occasion, disappear with clients' funds. I have a problem with the way this provision is addressed in the Bill. The problem derives from the schizoid personality portrayed by the Law Society. It seems that the Law Society — as a solicitor I am a member of that society — are not sure whether they are a trade union representing solicitors or a body designed to protect the public. They try to play both roles but they are not particularly successful in either role. The blurring of these roles is not in the interests of the general public nor of the legal profession. These two functions should be separate. On the one hand there should be a body representing lawyers — in this case solicitors — a body with the function of maintaining standards, while a different body should investigate allegations of misconduct. Many of the problems with this Bill derive from the fact that the Minister for Justice is trying to accommodate the Law Society in playing the dual roles they believe they should play. That duality of roles is not in the interests of the general public and is causing increasing concern within the solicitors' profession. That concern may not be reflected by the members of the council of the Law Society but it is reflected by practising members of the solicitors' profession.

Part III, dealing with the investigation of complaints, seems to be very confused. Before dealing with the confusion, I wish to express a view which derives from my starting point. If one does separate the roles and accepts the fact that the Law Society should act as a form of trade union for solicitors, should play a role in maintaining standards, should make an input into legal education for solicitors — which legal education should cover the entire profession, including barristers — and should also take the second role of investigating issues of misconduct, then the second body put in place should apply not merely to solicitors but to the Bar as well. There is no reason that it should not. The Bill contains elaborate provisions to deal with the investigation of complaints against solicitors but no provision at all to deal with the investigation of complaints against barristers. Indeed, there is no legislation to deal with the investigation of complaints against barristers.

Section 8 provides:

Where the Society receive from any person having an interest a complaint alleging that the professional services provided by a solicitor in connection with any matter in which he or his firm had been instructed by his client were inadequate in any material respect and were not of the quality that could reasonably be expected of him as a solicitor or a form of solicitors, then the Society may, if they think fit, following investigation of the complaint do one or more of the following things,

I have several questions about that provision. Who will conduct the investigations into such complaints? We are told that it is the society. The society has a council with a huge membership, so it will not be the council of the society. Will it be the disciplinary committee of the society? Will it be the director general of the society? I am not sure that the answer to my questions is made clear.

If such an investigation is to be in relation to a complaint or complaints that work done was inadequate in any material respect or was not of a quality that could reasonably be expected, then I have absolutely no difficulty with the view that when work is not undertaken properly by a solicitor on behalf of a client that client must have a right to have the matter investigated, and if the work is found not to have been properly carried out the client is entitled to compensation. That is desirable. My concern is with the wording used in the provision. The wording used would apply very readily to a solicitor who did not deal properly with a house purchase or any other matter of conveyancing and to a solicitor who did not deal properly with a probate matter in administering a will, but I wonder how it could apply in the area of litigation.

For every case that takes place before our courts in the civil area there is a plaintiff and a defendant and there is a court adjudication. One side wins and the other loses. In every case determined in our courts someone loses and is dissatisfied. Is the provision as it is phrased an invitation to any litigant who loses their case, no matter how well represented, to make a complaint? The litigant could say, "My solicitor was not adequate and that is why I lost the case.". I do not understand what the word "inadequate" means in this context.

The provision gives rise to substantial worry and creates a problem not only for the legal profession but also for the person who wants to litigate in the courts and has a reasonable case to be made but whose case has no certainty of success. If solicitors were to be open to complaint on the basis that they may have done something inadequate in litigation, what solicitor would take on hard or difficult cases without feeling at risk that if their client lost the case, that client would make the solicitor the subject matter of a complaint? What would be the position of a solicitor who did everything possible but had a client who turned out to be a very poor witness or had a client who told their solicitor only half the story and then facts emerged during the court hearing to indicate that not everything the solicitor was told was either accurate or true? If such a client lost the case and then lodged a complaint, how would anyone investigate the adequacy or otherwise of the solicitor's legal representation? Would there have to be a court official present at every court hearing, from the District Court upwards, to take official notes, verbatim, of every single court application in respect of every single court case to provide for the possibility of an allegation that a solicitor did something inadequate? Will solicitors willing to take on difficult cases that have no certainty of success because they feel sympathy for individuals turn those individuals away from their door for fear that if a case were not successful they could be held to have done something inadequate?

The phraseology used in the provision could apply very readily and simply to what I would term a solicitor's "office work"— conveyancing and probate-type work. However, it would prove a huge problem in the area of civil litigation and could be a problem in the areas of criminal prosecution and defence equally. The wording should be considered very carefully in that context. If solicitors do not do their work for a client properly, then the client must have some recourse but I would not be happy with the word "properly" being included in the provision either. This provision needs to be sorted out because it will create huge problems. Frankly, I am astonished that the law society have not expressed worries about this. Perhaps not too many of those in the law society who have been dealing with the Department of Justice in relation to this Bill are involved on a day-to-day basis in the area of litigation.

The Bill also seems to be extraordinarily confused on the issue of legal costs. I do not wish to address the Bill section by section, because we could be here all day if I did so, but that issue is referred to in various parts of the Bill. Undoubtedly there is a degree of disquiet in the mind of the general public in relation to legal costs. That disquiet often results from the fact that people do not realise that there is currently in place a procedure to ensure that if a solicitor attempts to charge excessively for work done the solicitor's bill can be submitted for adjudication. A county registrar or a master of the High Court both have extensive powers to review bills presented by solicitors to clients, to adjudicate on whether the sums charged are appropriate or excessive and to make a decision on that.

It seems to me that in various parts of this Bill a function in determining what costs are or are not appropriate is now being given to the Incorporated Law Society. The Bill appears to pay no regard at all to the role county registrars and the taxing master of the High Court can play. Indeed, it seems to me from the Bill that the Incorporated Law Society could reach one conclusion on a costs issue and the county registrar or the taxing master of the High Court could reach the exact opposite conclusion. What is a problem in the area of costs — and this is something the Bill endeavours to address in another section — is that far too many lawyers, and this can apply to the Bar as much as to solicitors, head their clients into litigation without warning them of the likely expenses they could incur. Only after the litigation has been completed do people receive an enormous bill. In some cases the enormity of the bill may be justified because of the enormity of the work required; of course, in some cases it may not be justified.

In my view there is a very heavy onus on a lawyer to warn any client who wishes to litigate that substantial costs could be incurred. There is a duty to give some general indication as to what will be the ultimate cost. It is not always possible for any lawyer to say to a client: if you go to court on a particular case it will cost you so much, because any lawyer who knows his job will be aware that if one is litigating in the courts one cannot always predict how many preliminary court hearings may take place. Indeed, if one is in the Circuit or High Court it is not always possible to predict whether a case will take a half day, a day, three days, five days or six days. But in a case of some complexity one would have a general idea of how long it would take and a general indication should be given as to the likely expense to be incurred.

Not all lawyers are sufficiently careful to give that general indication. Unfortunately, when it is not given, not all clients ask for it. First, there should be a duty on lawyers to indicate to their clients the general nature of the expense they could incur in particular forms of litigation. Second, it is important — and a later section endeavours to deal with this — that clients be aware, if they are unhappy with a bill they receive, that there is in place a system of adjudication to examine that bill. I think most people do not know that.

Of course, the problem with a system of adjudication is its cost. In practice the system of adjudication before the taxing master of the High Court or the county registrar works well. But where it becomes hugely expensive is in the taxation of the bill in that a substantial sum of money, sometimes running into thousands of pounds duty, is imposed by the State on bills that are taxed at High Court level. It is a fact, for example, that if one has a dispute with one's lawyer as to the nature of the bill submitted, if the dispute is in the context of a major case of litigation, if the dispute is over, say, £3,000 or £4,000, which is a reasonably large sum of money, one may be advised that it is not worth getting an adjudication by the taxing master of the High Court because, even if one saves £3,000 or £4,000 on that adjudication, one may end up spending that amount of money on stamp duty to take up what is known as the certificate of taxation that emanates from the system when the adjudication has been concluded.

I know all of this is terribly technical and difficult but it is the reality of why there is a problem in this area. There is presented in this Bill a populist solution which will not work and which, I predict, will confuse the role of the county registrar and that of the taxing master. It is a solution I consider to be more or less designer-produced to have the Incorporated Law Society appear as though they can play a more substantial role in this area. I predict that this designer-produced remedy will give rise to problems and contradictions in price. Indeed, I would have considerable reservations about the capacity of the Incorporated Law Society to determine whether particular bills of cost for particular types of law cases are or are not reasonable. For one to determine that requires a degree of expertise in the area of law to which the bill relates. There is no indication in this Bill how the Incorporated Law Society will cope with this.

I have not gone into the specific sections under which those issues arise; we will be going into them in detail on Committee Stage. I am merely saying to the Minister: please be aware that there are problems in this area and I am not happy with the manner in which they are being addressed. I can see that the manner in which they are being addressed could emerge as a result of some sort of negotiation between members of the council of the Incorporated Law Society and the Department of Justice, at which stage I suspect that everybody at the end of the day would have become totally confused. But this House should not find itself in a position in which this is presented to us as a fait accompli.

I might draw the Minister's attention to section 10 (1) (b), which deals with this whole area in the context of the production of documents about allegations of professional services which were inadequate in any material respect. What I said about this provision earlier applies equally here. I do not know how this provision will be applied in practice in the litigation area in the context of complaints that may be made by people who are simply disappointed that they lost their court case despite the fact that their lawyer did everything reasonably possible to be of assistance to them.

Section 15 epitomises the confusion which drives from the schizoid personality that the Incorporated Law Society wishes to continue to have and which the Minister and his Department appear willing to allow them to have. I read the earlier debates on this Bill, when Members spoke about this Bill providing an Ombudsman for the legal profession. That is all nonsense. The Bill does not do that at all. What the Bill is endeavouring to do in section 15 is to set up yet another layer of investigation and so allow the Incorporated Law Society to continue to play two disparate and contradictory roles. Rather than have an Ombudsman for the legal profession what we are to have is a person appointed who will investigate the Incorporated Law Society if somebody who previously asked the Incorporated Law Society to investigate a complaint complains that the Incorporated Law Society did not properly investigate that complaint. I cannot think of anything more bizarre than that proposal. This is not an Ombudsman.

Under the provisions of this Bill the Incorporated Law Society — responsible for legal education, the trade union for solicitors, which over the years has played a disciplinary role — is being given an expanded disciplinary role in relation to solicitors. Just in case the Incorporated Law Society do not play that role properly, there is to be another individual who can then investigate the Incorporated Law Society's investigations. Only a group of lawyers could devise such an unwieldy and unnecessary procedure.

The ultimate crowning glory of section 15 is subsection (3) (ii), which reads:

A person appointed as an adjudicator shall not be or have been a practising solicitor or practising barrister and shall be independent in the exercise of his functions.

Under this section we are told that the person appointed as an adjudicator — at least the Bill does not make a pretence at it being an Ombudsman — shall not be or have been a practising solicitor or practising barrister and shall be independent in the exercise of his functions.

Let us begin this from first principles. Let us say that I am an individual who has been to a solicitor. I complain that I was inadequately misrepresented before the courts. I make that complaint to the Incorporated Law Society. The Incorporated Law Society say: no, you were adequately represented. Then I complain to the independent adjudicator, who will now investigate whether the Incorporated Law Society were right in deciding whether I was adequately represented. We must remember that the independent adjudicator cannot be a lawyer with any legal experience at all. How can the independent adjudicator determine whether or not one was adequately represented in the courts or whether the Incorporated Law Society properly investigated that complaint if such independent adjudicator has no background, training or understanding of what is or is not adequate representation in regard to a particular legal issue? This is Alice in Wonderland stuff. It has taken ten years to produce this sort of nonsense. At the end of the day the solicitors' profession will have to pay for the independent adjudicator. It would be very difficult to produce a more bizarre proposal. What is even more bizarre is that the solicitors' profession seem to think this is a good idea. Their only complaint is that they do not want to pay for the person. If ever there was an eloquent testimony of the need to have a separate body dealing with investigation of complaints, the bizarre and complex provisions in the Bill to deal with the problems in this area illustrate it.

What we need is a separate body who will investigate any complaint against the legal profession. This body should clearly be made up of representatives of the solicitors' and the barristers' professions and lay people. They should be the main body who should have the power to appoint someone who would be an Ombudsman with the powers of an Ombudsman to investigate complaints. He should report to the board, who would be made up of people with legal training and lay people on the results of his investigations. If those investigations, when complete, require disciplinary measures the current procedure could be used — instead of the Law Society making a report to the President of the High Court, which is what is done at present, the Ombudsman would make a report to the President of the High Court. If this was done, we would have a body who would be totally independent, who could deal with the entirety of the legal profession, and who would not confuse the roles of the Law Society as the representatives of solicitors and as a disciplinary body, and in whom the general public would have confidence. In addition, there would be no need for the tortuous and bizarre provisions contained in this Bill which I believe are the result of negotiations between the Law Society and successive Ministers for Justice. I will come back to this point on Committee Stage.

The change I am suggesting is a fundamental one to the way the Minister is proceeding. I ask the Minister to think about my suggestion very seriously. Over the years I have found on occasion that Ministers agree with things I say and take them on board. However, I am fairly thick skinned and I am used to Ministers ignoring things I say and taking the view that something I say is not worth pursuing. Let us assume that the Minister decides to stick with the procedure proposed in the Bill. Section 16 deals with the disciplinary committee of the Law Society and provides that not more than ten persons from among practising solicitors of not less than ten years standing may be appointed to the disciplinary committee and that not more than five persons who are not solicitors or barristers may be nominated to the disciplinary committee by the Minister — they will be the lay members. They will represent the interests of the general public.

The Bill provides that the disciplinary committee of the Law Society will have lay representatives and the Law Society have welcomed this. It seems we are going to persist with the duality of roles played by the Law Society. That duality of roles is one of the reasons the public doubt the impartiality of Law Society adjudications in these areas. This is very unfair. The Law Society, when acting as a disciplinary committee, adjudicate impartially. However, it is not just a question of people being impartial; they also have to be perceived to be impartial. That is one of the reasons I would give for separating the functions. The presence of lay people on the board of the disciplinary committee may at least help improve the perception of impartiality.

There is a very curious provision in this section which I do not understand. The President of the High Court may remove a member of the disciplinary committee; he can make a decision in regard to the legal membership. If a member of the disciplinary committee misconducts himself or herself he or she could be removed. However, the President of the High Court may not remove a member of the disciplinary committee who is a lay person without the Minister's prior consent. I have a number of problems with this provision. Who will these lay people be? Will they be people who are not members of the legal profession but who have some general expertise, interest or understanding of the profession so that they will have an input of substance to make or will their presence be merely cosmetic? Will it be necessary for a lay person who wishes to be a member of the disciplinary committee to be a member of the political party in Government when the appointments are made.

To put it crudely, will the Government of the day, whatever their political shape, appoint party hacks who have no particular expertise to the committee? If this is the case and a genuine mistake is made in appointing an inappropriate lay person to the committee, it is curious that the President of the High Court cannot decide that they should be removed without the Minister's consent. It would seem to me to be in the Minister's interest that he does not play a role in that regard. The President of the High Court will be able to remove a member of the disciplinary committee who is a solicitor without any prior sanction or consent from the Minister for Justice. I do not think the Minister should have any role to play if the President of the High Court is of the view that a lay person should be removed from the disciplinary committee. I do not know the rationale behind allowing the Minister to play that role.

Section 17 deals with inquiries by the disciplinary committee into the conduct of solicitors. I referred to this point in a general way, but I want to make one specific point. I wish to refer the Minister to section 17 (3) (b) (i) which provides that a report of the disciplinary committee can be furnished to the High Court where there is an opinion as to the fitness of a solicitor to practice or otherwise. It would seem to be common sense to provide that whatever report is being submitted to the High Court should also be made available to the solicitor who is the subject matter of the report. If this is not the case I believe there will be considerable legal or constitutional difficulties with the operation of this section.

Part IV deals with the protection of clients. I welcome the provision which will, in effect, result in an obligation being imposed on all solicitors to maintain indemnity insurance. Most solicitors do so but just as there is an obligation on drivers to maintain third party insurance there should be an obligation on all solicitors to have indemnity insurance.

With regard to the indemnity fund, I wish to raise an issue which relates to the professional practices of other professions across the water, in other parts of Europe and elsewhere. We have little legislation in relation to professional people in this area, other than the legislation we now have in respect of solicitors.

The point I am making is whether there should be an upper limit as to what any individual can get out of the indemnity fund. This is a very specific issue. The UK Financial Services Act provides that £50,000 is the upper limit which can be paid in compensation. I do not think that would be an appropriate limit in relation to solicitors' services but I am worried that an unlimited open-ended compensation sum could be paid. I am worried that this fund could be literally wiped out by one huge claim, thus creating difficulties at a later stage in the context of another claim which might subsequently be made. Will the Minister consider whether there should be an upper limit on the sum which can be paid under the indemnity fund? Perhaps a sum of £250,000, or a higher or lower figure, would be appropriate. It would be wrong not to raise that issue.

I said I would not delay the House by welcoming specific provisions but I make an exception in the case of section 34, the effect of which is that newly qualified solicitors cannot practise on their own for a period of three years. In other words, for three years after a person qualifies they must be in practice with someone else. A person also cannot be a partner during that period. There has been adverse comment on the section: it has been suggested that it is not fair to prevent newly qualified solicitors setting up practice on their own, having regard to the difficulty newly qualified solicitors currently have in obtaining employment. However, it is a wise provision not to allow newly qualified solicitors to practise on their own because, no matter how well they have done in the law society course and no matter what experience they had in the practice to which they were apprenticed, experience is essential in the practice of law. I have been a lawyer for 17 years and it is very rare that a week goes by without my learning something new about an aspect of law. The provision is an important protection for clients and in the years to come solicitors might see it as a protection against themselves.

I have already dealt at length with my worries about the area of legal education. Section 43 deals with that matter and, as I said at the start, there should be a joint legal studies course for the profession, solicitors and barristers. Section 62 of the Bill deals with costs, aspects of which are important in that a solicitor is required to advise their clients, in writing, about what are known as "party and party costs" and "solicitors and own clients costs". That is very wise because currently a good solicitor warns his client as to what will happen in relation to costs. If it is intended to deduct costs from damages that may be awarded, the client should be made aware of it and indeed sanction it beforehand.

There are two issues which create problems in this area. The first is the suggestion that a small number of solicitors in the litigation area take large sums of money out of damages awards made in favour of their clients. Obviously, that practice must be stopped, although I believe only a small number of solicitors is involved. Usually what happens is that many solicitors take a civil case on board for clients who have very little money and cannot afford to pay legal fees. At the conclusion of the case, perhaps having carried it through their practice for two years, the solicitors deducts fees from the award made for damages. At present if the client is unwilling to agree to that, the position as I understand it is that taxation can take place before the county registrar of the Master of the High Court, the correct fees to be charged can be determined and, in the intervening period, a solicitor can exercise a lien over at least a portion of the moneys pending the discharge of his bill. The position in regard to the solicitor's lien should be clarified when this section becomes operational, for the sake of the client and the solicitor. It is technical but it is important and it certainly plays a current role within the legal profession.

Section 62 (2) has given rise to some discussion, although there has been surprisingly little public discussion of the Bill. This section basically imposes a ban in law on a solicitor agreeing with a client that if a client is awarded damages or gets funds at the end of a case, the solicitor will get a percentage of the amount in fees. It is ruling out the possibility of percentage payments. There can be difficulties in this area if members of the legal profession seek to charge excessive fees by way of percentages but that, of course, can currently be controlled. That is why I am not sure that the Bill has a true perspective of how the law operates. If I brought a court case on behalf of someone tomorrow morning as a result of which they were awarded £200,000 damages and I told them that I was taking 25 per cent in fees, it would mean that my client received £150,000 and that I received £50,000. If I behaved in that way the client would be entitled to go to the Taxing Master of the High Court to have the costs taxed. If I had taken excessive fees I would have to repay them.

There is another practice at present in the legal profession which is of concern and which would be barred by section 62 (2). There are what appear on the surface to be "no hope" cases or cases which give rise to huge difficulties, which the person affected by the difficulties involved is entitled to bring to defend their rights but cannot afford to do because they lack the funds to meet the costs involved. When I refer to a "no hope" case I do not mean that lawyers should be encouraged to litigate cases through the courts which will not succeed. That should never happen. However, what I describe as a "no hope" case would be one of huge legal complexity where you cannot tell the client that there is a 60 or 70 per cent chance of success. Cases of this kind involve huge expense to the client and there is no guarantee of the outcome.

Over the years any legal firm working in the area of litigation has, from time to time, dealt with individuals who had a problem. Such individuals have been badly treated in an area of their lives and it appears they have legal rights. However, the case is complex and may result in substantial expenses being incurred, for example, medical and engineering reports, involving expense, may have to be obtained. The client cannot even meet the expenditure which the solicitor would have to pay to allow the case to be properly prepared. Some solicitors will not handle those cases but others will take them on while recognising that the client cannot afford to pay any fees. The solicitor takes the case on the basis that, if it is successful, he will charge the full fee but, if not, that will be the end of it. The solicitor recognises that there is a principle worth pursuing and a possibility that the case will succeed. The extent to which they can proceed may not be quite clear and—while I cannot personally recall ever doing this in my legal practice I know of cases where it happened — it may be agreed on a percentage basis that if the case succeeds the solicitor will take 10 per cent of the damages, which will meet all their fees. It may be the case where nobody can be quite sure if a jury will award the person involved in civil litigation £20,000 or £200,000, but the true legal costs for processing the case should be in the region of £20,000 or £30,000. The solicitor, by agreeing to handle the case on a percentage basis, is in effect saying to the client that if he does not get a great deal of money he will not be charged the full fee. If he is awarded £20,000 he will be charged £2,000 and the solicitor takes the risk of losing out on all the time that had gone into the case. However, if the client is awarded £200,000 this means that the solicitor will get £20,000, which should cover the full fee.

The point I want to put across — and I may be doing it rather badly — is that situations may arise where it is in the client's interest to make this agreement of a percentage fee. In my view, if the percentage fee is excessive, we must have resort to the taxing master of the High Court. This section rules out this type of arrangement entirely and by doing so may close the door to somebody being able to vindicate their legal rights. By entering into such arrangements people have not only been able to vindicate their rights but have been substantially successful. There have been some very controversial cases which made newspaper headlines over the years. Such cases have taken weeks, not days, in our courts, where it was very obvious that the person taking the case could not have afforded to proceed with litigation if an arrangement had not been reached with the lawyer whereby the lawyer would not be paid unless the case was successful. I am not going to list the cases I am aware of because it may be invidious to the people involved. However, the Department should be aware of these cases because in some cases the State was the defendant and lost.

I am just pointing out that this is an important issue to be addressed. It is hugely important to ensure that no lawyer enters into an arrangement with a client which binds the client into paying excessive amounts in costs, but we should not close the door on arrangements that allow people who cannot normally afford to do so to vindicate their rights in the court in a way that does not put them at financial risk if they lose. This is an important point. I hope the Minister will have another look at this provision. Within the legal profession there is a diversity of views on it.

I want to raise a question on the issue of advertising. The Law Society are concerned that there should not be fee advertising. They argue that if a lawyer advertises he can do a particular job for a specific sum of money and if this is not in line with the actual cost of doing the job corners will be cut and the work will not be properly completed, whereas those who do the job properly but charge a little more may be pushed out of the market. I am not sure if I agree with that viewpoint. We all know that the general public is a good deal more intelligent than we credit them and when people are offered bargains they are often suspicious as to the nature of the product. A great deal of work in the legal profession does not derive from advertising and in my experience advertising has not made a huge impact on the volume of work a solicitor gets. Most of the work derives by word of mouth and the reputation of the solicitor. Nevertheless, I may be wrong, and the Law Society are concerned about solicitors specifying an exact fee for an exact type of legal work. However, I would not be as greatly concerned about this as the Law Society.

If lawyers advertise, especially after this Bill is enacted, that they guarantee a specific job can be done for a specific fee, while this may be possible in the conveyancing and probate areas it is certainly suspect in litigation. If they give that guarantee for litigation, the guarantee should carry a "Government Warning" because no one can guarantee what the costs incurred in litigation will be. People may come to grief because they have not told the lawyers the full facts of their case; they may have a good case, but the judge does not accept they have a good case; or perhaps the lawyers may not have done the necessary preparatory work properly. I would be very concerned about advertising guaranteed fees for litigation work, because I do not think it can be done.

In section 63, section 71 of the principal Act is amended by inserting a number of subsections. Subsection (4) allows the Law Society to prohibit advertising which, among other things, "is in bad taste," or "is contrary to public policy". I would love to know what is bad taste in the context of advertising by the legal profession. Will the solicitors profession engage in "Benetton" type advertisements on the hoardings? Will that be in bad taste and contrary to public policy? I have huge difficulties in working out what is bad taste. I can understand the problem with fee advertising. Is there a suggestion that solicitors will pose naked in full frontal for these advertisements saying: "Come and see us some time"? What relevance has this particular provision? Some of the provisions of this Bill are so esoteric as to be beyond belief; nevertheless it has been devised by legal minds, so I should not be confused by it. Sir, I think some of this gobbledegook could be taken out. I have difficulty with it. I suppose it would be in bad taste if a solicitor said: "Come to me and not Joe Bloggs because he is a lousy solicitor and I am good". Is that in bad taste? It is probably defamatory. I do not see why we need these prosaic provisions in this section.

I will now deal with sections 73 and 74. As I have gone through the Bill I have not been all that charitable about some of the views that the Law Society have expressed, but at this stage I may surprise you by agreeing with the Law Society's very serious reservations about sections 73 and 74. In these sections the Bill seeks to confer powers on banks and trust corporations to undertake probate and conveyancing work. There was a similar provision to give building societies power to deal with probate work in the building societies legislation which came before the House when I was spokesperson on the environment. I do not think it is too uncharitable to say the only reason this provision appeared in the building societies legislation was because the section had been copied from a similar section in the English legislation and nobody thought of putting the line through it. On Committee Stage we put the line through it and it was recognised that it was not appropriate for building societies to undertake probate work. In my view it is inequally inappropriate that banks and trust companies undertake probate work.

We seem to have the view that in some areas of expertise the legal profession should not have a monopoly but that other institutions in our society which have huge powers in other areas should have additional powers extended to them. Probate work requires real legal training and expertise. It is one of the areas you learn about as a solicitor in training. You learn about succession laws, whether you are doing an academic course or a practice course and you learn probate and the practice of probate. It is beyond me what merit there is in extending these powers to banks and trust companies to undertake this type of work. I cannot understand it coming especially from a Government, some of whom were around when the Building Societies' Act was passed, who took probate work out of the Building Societies' Bill but now include it in this Bill.

The banks exercise a huge cartel in this country in a number of areas. Currently, I have a question down to the Minister for Industry and Commerce asking him to investigate the cartel the banks are running in their trustee departments in the context of operating trusts. Trusts can be very simple things, they do not need to involve the wealthy: you may have, for example, a person who is not fully able to manage their own affairs; moneys may be put on trust to guarantee them an income, to protect the capital and to ensure they have security for the rest of their lives. Those kinds of arrangements are put in place, not only by the very wealthy; but by relatives of people who have reasonable sums of money and who need protection.

The fees charged by the banks for doing trustee work are utterly and totally outrageous in a number of cases for the amount of work they have to do. I am aware of cases where banks operated trusts where, for example, there were leasehold premises. In one such case a sum of £7,500 rent per year was sent by bank draft from a very good tenant — a respectable company — to the bank in four quarterly instalments and the bank sent the money out in four quarterly instalments to the person who was the beneficiary of the trust. The bank had nothing else to do with the business from one year to the next. The bank charged £1,000 per year for providing that service. That was outrageous.

From investigations I have carried out, as a solicitor, on behalf of clients I am satisfied that the four major banks are operating a cartel in their trustee departments. There is no price competitiveness, they are charging the same rates for the work they do. They are operating in controlling a trustee cartel in their banking departments. I hope the Minister for Industry and Commerce will investigate that. In this Bill we are suggesting that the trustee departments of banks be given probate work with no control over the fees they will charge. They will not even be referrable to the Master of the High Court for the fees they will charge, despite our putting in place such control for solicitors. I can see no merit in the banks doing this sort of work.

When you are doing probate work you will often have to distribute funds to a number of people who are beneficiaries under a will — the funds may be small or large. If they are large funds, the beneficiaries may want independent advice as to how to invest their moneys, first, to protect the capital and, second, to generate maximum possible interest. The trustee companies of the banks and the banks themselves will have a vested interest in selling their financial product to beneficiaries under the wills in respect of which they are administering probate. Vulnerable people will put moneys on deposit with banks at rates that are a good deal less than they may get elsewhere from other financial institutions who can offer them the same degree of security as the banks. The banks would be exercising a form of monopoly in this area. Usually, that is dangerous. Everything I have seen in the way the banks operate their trustee departments indicates to me that this should not be allowed happen. This is not just a law society objection. I have not seen the law society raise this as an objection.

I recognise that solicitors have a vested interest in saying that the solicitor's profession keep probate and assert it on the basis of solicitors' qualifications and legal experience. That is a valid argument in any case and is one I fully accept, but no one has adverted to this problem which is a huge one. Any decent solicitor doing probate work at present who distributes funds to beneficiaries under a will — pursuant to the directions in a will — will often have beneficiaries seeking advice about investment and will get the best possible professional advice from a diversity of sources which present options to the people concerned, and will do so in conjunction with talking to independent financial advisers, through an expertise which has developed in recent years. The banks will do it on the basis: "we must get the funds into the bank to generate business for us." That is giving the banks even greater monopoly operation.

It is in the interests of the general public that banks do not start conducting probate work. God help us if banks were to be given probate and conveyancing work and then we had a bank strike. What would happen then? Whatever one may say about the legal profession — and some of the things I have said will not necessarily endear me to all of my colleagues in the solicitors' profession, but I am well used to that — they do not go on strike. If banks are doing probate work and there is an extended bank strike and if we have the type of bloody mindedness that is being displayed by management during the current bank dispute and the sort of obstinacy that is being displayed by the IBOA — there are two sides to this dispute — what will happen to the probate work? Will, for example, a widow whose husband has died have the sorting out of his estate held up and huge difficulties created by a bank strike?

Let us assume I have completed the purchase of a new house and the bank is doing my conveyancing work and in two days time I am expecting to complete the sale of my old house, the bank has me on a bridging loan and in the middle of it they go on strike. They will not complete the sale of my old house and I remain on bridging finance for seven to ten weeks. Will I have to pay the bank extra interest because they ceased providing me with a legal service? There is a huge conflict of interest here. It is not in the interests of the general public that the banks do probate work. Neither, for a very particular reason, is it in the interests of the general public that the banks do conveyancing work.

Section 74 seeks to give the banks conveyancing work. There can be very substantial conflict of interest in that area as well. For example, it may suit banks to start selling endowment policies to their clients because they get a kick back from the insurance companies when a client who wants to buy a house is raising a mortgage but the client's financial circumstances may be such that there is no great benefit in his obtaining an endowment mortgage — he or she may be better with a simple straightforward mortgage — will the bank tell them that? Will the bank get the conveyancing fees on the one hand and the kick back from the insurance company on the other for selling an endowment mortgage? What about the position of a husband and wife? Until recently at any rate, if you were buying a house — let us assume it was in joint names — and you signed the mortgage document, the wording in some of these mortgage documents was such that the wife was not only agreeing to the house going as security for the mortgage but often she was agreeing to the house going as security for practically every other type of borrowing the husband might engage in through the bank, not just on existing accounts but on future accounts. Indeed, there have been court cases in England — I think I am right in saying we have had a similar type court case here not so long ago — where it was said the banks cannot hold a wife bound by these mortgage agreements in which she seems to be signing the house up as security not merely for existing loans but for all future loans, including loans, unknown to her, that might be raised by a husband. When people are signing documentation about mortgages and loans they need to get advice, independent of the financial institution providing the loan, so that they know what they are committing themselves to. It would be dangerous to give the banks conveyancing work because, again, they have no expertise in this area. The proposal is designed to give the banks a total monopoly and this could prove detrimental to the interests of the customer.

I agree with everything said by my colleague, Deputy Sean Barrett, who was then Fine Gael spokesperson on Justice, about the conveyancing and probate provisions and I hope I have given some additional reasons as to why they are dangerous and are not in the public interest. These reasons have nothing to do with the legal profession trying to preserve a monopoly. Nevertheless, in an area where legal expertise is required, is there anything wrong in saying that it should be done by a lawyer? How many Members, who have no medical training, would offer to perform an operation tomorrow morning because the Oireachtas has said we could do so? Training is required if one is to do some things in this world correctly and it is in the interests of the general public that people have that training. It is also in their interests that the service provided is not provided in circumstances where there are conflicting interests.

I wish to advert to three issues and my colleague, Deputy Allen, may wish to raise one of them. I assume that the intent of the Bill is to ensure that solicitors provide a good service to those who require their help. One of the problems, however, is that there is a contradiction in that, on the one hand, the Government are trying to improve the legislation and, on the other, they are abdicating their responsibilities in this area.

There are currently 15 law centres operating here which are designed to provide legal services for those who cannot afford to pay for them but not one of them is operating on a normal basis at present. They are only able to provide a fire brigade service in emergencies. We have been told that it is unlikely that the law centres in Dublin, apart from emergency cases, will be able to take on new clients until the beginning of next year.

I was in Cork earlier this week where there are two excellent law centres but tomorrow morning, as a result of the position in which they find themselves, if a woman with a family law problem, who finds herself in a difficult marriage, requires advice and help she will be put on a waiting list and may get an appointment to see someone in three to four months time. While this is better than the position in Dublin it is still not good enough. The law centres are understaffed and overworked. They are peopled by dedicated solicitors who are working beyond the hours they are required to work and who have an extraordinary commitment to their clients. They need more staff and solicitors. This has been stated time and again by the Legal Aid Board.

The State is in breach of its obligations under the European Convention on Human Rights and fundamental freedoms by not providing the legal service which it was adjudicated it has to provide in the Josie Airey case. It will not be too long before someone else takes the State to the European Court because of this. It gives me no satisfaction to say this.

Rather than playing games with the law centres I hope the Minister, when he comes to reply to the debate, will tell us he will provide the extra staff required by those law centres. He should proceed by way of appointing solicitors and then administrative staff. The centre I visited in Cork had four solicitors and three administrative staff — secretaries, telephonists. No law firm could possibly operate in that way. We are not talking about legal staff only but also about auxiliary staff to provide a proper backup service.

The Government have failed to provide the solicitors required and as a result those in difficult marriages who are on long waiting lists will find themselves facing an emergency. The wife who is in difficulty and looking for legal help in a calm way may find herself three or four months later, while on a waiting list, in the law centre as a battered wife needing emergency help. Not only are we delaying in providing legal advice, we are ensuring that those in difficult circumstances will find their difficulties becoming more serious. This is not good enough.

There is another problem in Cork in that the criminal legal aid service is not functioning. The dispute there, which goes back to last summer, has been ignored by the Department. Solicitors operating the service in Cork told the Department a long time ago that they had reached the stage where it was no longer economic for them to operate it. They pointed out they were losing money by taking a criminal law case and asked the Department to revise the fee schedule which had not been revised for a considerable period. They are now on strike. If this strike was taking place in Dublin somebody would have done something about it a long time ago but because it is taking place in Cork it is being ignored even though it has serious implications.

Currently, ordinary criminal cases in Cork cannot be processed not just in the District Court but also in the Circuit Criminal Court. Indeed, there are people on the streets of Cork whose cases should have been heard a long time ago. If those cases had been processed they might be in jail but instead they are out on the streets and some of them are committing more offences. I predict, through this Department's neglect, that charges in serious cases will be struck out. There is a real danger that if the Department do not solve this problem within a short time we might find that people accused of incest, rape or murder will have the charges dismissed by the judges on the basis that we had gone beyond the stage they are constitutionally required to wait further for their trial to take place.

The Healy and Foran case in 1976, which my partner in my office dealt with, established that someone charged with a criminal offence who could not afford to pay for a lawyer had a right to legal aid. We need to solve this dispute in Cork and it can be solved simply. If the Minister was willing to confirm to the solicitors on the criminal legal aid panel in Cork that within three months he will complete a review of the fee structure, provide for the necessary increases and back date those increases to the date of the announcement, it is my view that the solicitors would start to work the criminal legal aid scheme. I ask the Minister to listen carefully to what I am saying. There is a way in which the dispute can be resolved and it is inevitable it will be resolved and that the fees payable will be increased as they have not been revised for a long time. In the meantime I do not want the dispute to fester as to hear of cases being struck out with the result that people who should be properly convicted are out on the streets with the risk of further offences, of a horrendous nature, being committed.

At the outset I said we should be dealing with a Bill which addresses the entire legal profession and not the solicitors profession alone. What I am now going to say may be regarded as special pleading but I should emphasise I am not looking for the job. One of the anomalies since the 1971 Act was passed is that while solicitors can appear in the higher courts they cannot be appointed as judges in those courts. The view has been expressed for some time that appointments to the courts, be it the District Court, Circuirt Court, High Court or Supreme Court, should be based on ability and capacity. I do not understand, in the context of our legislation why we have not provided an enabling power to allow solicitors to be appointed to the High Court and the Supreme Court based on terms similar to those on which barristers can be appointed to those courts.

The solicitors' profession is a branch of the legal profession which has a great deal to offer in this area. It is in the public interest that we widen the pool of people from which we can choose members of the Judiciary. That may not be an issue that can be appropriately addressed in this way, although I feel it could be if the Minister wished. On the other hand I have no doubt that the Minister will tell me that this is something that should be addressed in a Courts Bill and not a Solicitors Bill. It is particularly relevant to the Bill we are dealing with and I hope the Minister will respond to what I have said in relation to this.

I hope the comments I have made are regarded as constructive and helpful in the processing of this Bill. I hope the Minister will take on board at least some of what I have said. I hope that when we come to Committee Stage of the Bill we will deal with it constructively and openly and with a degree of flexibility, because at the end of the day this Bill has nothing to do with party political rivalries or the politics of this House. It is a Bill about righting what we perceive to be wrong with our legal profession and what is anachronistic in our laws relating to the legal profession. The only thing that we on this side of the House want to do is to get them right. If I have said some things today that are unexpected or a little controversial it is because I personally feel that there has not been enough public discussion or controversy about this Bill. It should get greater public attention and if we can stimulate some degree of public debate on these issues we are doing a service that needs to be done.

In order to provide continuity in the debate I propose to take up the theme of the latter part of Deputy Shatter's speech, with which I find myself in considerable agreement. I refer specifically to sections 73 and 74. I have a certain historical interest in this matter. In 1965 I was engaged in a similar process steering through the Succession Act, particularly section 30, where we provided for the first time for banks to act as executors or administrators of estates. That has worked well and I am not aware of any problems that have arisen. However, I cannot for the life of me see why we should, on foot of what is alleged to be in the interests of the consumer, extend the right of the banks to act as administrators or executors into the professional business of probate and administration of estates where they would create for themselves a virtual monopoly in that area. What we are discussing follows on a recommendation of the Fair Trade Commission and is supposedly in the interests of the ordinary person in this country. This, however, will add to the monopoly that already exists. Banks will be in a position to create hidden costs and will have their own agenda.

I am glad the Minister has said he will have an open mind about this matter. He indicated that he would listen with particular interest to the debate on sections 73 and 74 with a view to subjecting the whole matter to more careful examination on Committee Stage. He was very wise to say that, because those sections will need to be radically changed in the interests of the ordinary person seeking to establish probate of a will or estate.

There are 3,500 practising solicitors in this State at the present time. That is a remarkable figure. There is one advantage to that in that it guarantees a highly competitive environment. There are other sections in the Bill which are designed to make the whole profession more commercially orientated and these I welcome. They highlight the contradictory nature of sections 73 and 74, which are attempting to take this work away from this competitive arena of 3,500 solicitors and to put it into the maw of a few major corporations, the banks with their trustee departments and their exclusive concentration on matters over which they have particular power that may not be good for the customer. They have knowledge of a client's estate. They know the funds involved. They would have a monopoly in regard to the financial aspects of estates on which there would be probate or administration. They would be able to pick and choose the more lucrative estates and charge whatever they liked. The solicitors profession, on the other hand, is subject to specified statutory costs that are set out in regulations and understood by themselves and the public and which they cannot exceed. The Minister is now proposing to take the administration of estates out of the hands of the solicitors, who already operate on a system of cost control under statutory regulation and hand it over to the banks, where the State would have no control in regard to costs. The banks have their own hidden agenda and can do what they like with a customer committed to them in one way or another in the context of whatever financial arrangements exist between a bank and its customer. These are the facts.

I am very glad that the Minister indicated earlier on that he would have an open mind in this situation. The proposal in section 73 of the Bill is to allow banking companies and trust corporations to prepare wills and to take instructions for a grant of probate or administration for reward. This is being introduced for the first time and on foot of a recommendation from the Fair Trade Commission established by this House to bring in consumer recommendations. Here they are recommending that we remove from the legal profession this huge area of legal work, which with conveyancing amounts to 70 or 80 per cent of the legal work in the State, and hand it over to a few banking institutions with their hidden agenda in regard to costs and their relationship with clients. To say that this is in the interests of consumers and fair trade is daft. When one rationalises, it is clear that the position that exists already under section 30 of the Succession Act is quite adequate. It is a very advanced position at the time. Although it was against the wishes of the legal profession, I thought it was legitimate to allow the banks to act as executors or administators. When the section was drafted it never entered anybody's mind that it would be proposed to extend it to the actual preparation of wills and to the execution of documents in relation to wills or the administration of estates. This gives the bank total control of a client's interest in all financial dealings arising out of an estate to be administered.

I support the point made by Deputy Shatter. At the moment solicitors do not charge for acting as executors. Banks are entitled to act as executors under the Succession Act but we are now giving them additional powers under section 73 so that they will be in the business of making profits and they will be able to concentrate on administering large estates. Because of their banking business they would know the amount of money involved. They will have an inside track with regard to picking the lucrative wills to probate and there will be no statutory control. The field is wide open to charging fees such as we saw in the recent debate on the Irish Sugar Company. We saw there what can happen when teams of financial advisers get together and decide on an inside track trading arrangement. We saw the sort of professional fees they can charge and how they can inflate a financial assessment or projection of the value of shares for the benefit of their clients, themselves and their advisers. We are going to create that sort of scene now for similar-type financial institutions who will not be controlled by regulation or otherwise in regard to fees and so on. I strongly advise the Minister, in the interests of having a competitive environment to benefit the ordinary citizen, to reconsider this. The people are far better served in the competitive environment that exists and we should not deliver them under section 73 into the hands of anonymous financial institutions which should be curbed by legislation rather than encouraged.

The same arguments apply to section 74 which empowers banks to provide conveyancing services. It might be said that all we are doing here is extending to banks a facility already enjoyed by the building societies. There is a conflict of interest here which could benefit banks in a hidden way with regard to mortgages. This was referred to by Deputy Shatter. Most people have to have recourse to banks or building societies for mortgages. There will not be a public scale of charges for this. If a bank is now allowed to do conveyancing work in addition to providing mortgages, the client is bound hand and foot to the bank under section 74 with regard to ordinary transfers of property. The client in those circumstances will not have any independent legal or financial advice on which he can rely with regard to simple transfers of property. Those matters should be examined closely by the Minister between now and Committee Stage. If the Minister rids himself of the idea that this is a case being made on behalf of solicitors, he will amend the Bill. This case is being made to protect the public from the banking institutions who have a monopoly in a huge range of areas. We want to prevent that monopoly from encroaching further on people into an area which is already being dealt with professionally in a competitive manner with State control as regards costs and so on.

Apart from sections 73 and 74 the Bill is very welcome. I welcome particularly sections 15, 16 and 17 which deal with the appointment of an independent adjudicator on complaints about the law society's handling of complaints against solicitors. There has inevitably been criticism of the fact that the law society have themselves acted as the sole adjudicator in such circumstances. The feeling was that the society in judging one of their own members was not as independent as they should have been in making an assessment as to culpability or otherwise. This Bill enables the Minister to appoint an independent adjudicator to investigate complaints about the law society's handling of these matters.

What kind of person should be appointed as adjudicator? He must not have been a practising solicitor or barrister.

Perhaps the Minister should elaborate on that. Section 15 empowers him to make such an appointment. It is a most welcome innovation.

Another excellent provision enables the appointment by the President of the High Court of up to five lay people to the disciplinary committee. Section 17 grants power to the same committee to impose limited sanctions on solicitors; more serious sanctions would be a matter for the High Court. All these provisions are welcome and should remove the frustration of people whose only recourse has been to the Incorporated Law Society.

Another aspect which I welcome relates to the education of solicitors and to legal education in general. I refer to sections 43 and 45. Section 43 deals with the Law Society's obligations and functions in relation to the education of solicitors. I am glad that the Minister is very strongly of the view that something positive should be done in this area. Despite my strictures on the Fair Trade Commission, I agree with their recommendation that the whole profession should move towards a common training for solicitors and barristers. The two systems should be more closely linked. It is unsatisfactory to have law schools in colleges with different standards and examinations operating in an unco-ordinated way in the training and education of lawyers as well as two professional bodies, the Bar Council and the Incorporated Law Society, also engaging in professional education. There is no uniform system of education and training for the legal profession. This is totally at variance with what is happening in the profession as a whole where there is greater interdisciplinary contact at home and abroad and reciprocity in regard to professional qualifications as between Ireland and other EC and non-EC countries. All this farsighted movement is taking place in the internationalisation of the profession, who have a key integral role to play in international business and trading. With all this forward movement it is ludicrous to see this horse-and-buggy approach to the education system in the profession. To that extent the Fair Trade Commission are right to be concerned.

The professional bodies and the universities are engaged in discussions about the required reforms. We all know that. The Minister has acknowledged it in section 43, which enables the Incorporated Law Society to join with other bodies in providing joint or common examinations, with courses leading, in appropriate cases, to a joint or common qualification. That is largely an enabling section and I would like to see it strengthened on Committee Stage. I do not doubt the efforts of the Law Society, the Minister and the Department to make progress in this area; but I have some reservations in regard to the academic institutions. More teeth is required in this section. I am aware from the Minister's speech of his good intentions — and I know of the good intentions of the Department and the Law Society — but greater effort is necessary on the part of the academic institutions. There is a clear need in this country for a uniform system of legal education and training, with the universities, third level institutes and the two professional bodies concerned working together to decide on training as between solicitors in the area of office work and administration and barristers in the area of courts and advocacy. Up to a certain point there should be a clear movement towards a common system, but some divergence is needed in that at some stage one must decide whether one will be an advocate or a solicitor.

There is provision in the Bill for a crossover from solicitor to barrister after a period of three years. I suggest that the Bar Council should be approached with a view to making similar arrangements for crossover from barrister to solicitor. We should proceed along those line rather than provide for an immediate statutory unification of the professions. There is not much point in doing that until the education and training systems are rationalised and a sensible crossover arrangement is made between the two professions. There are differences between the jobs of barrister and solicitor but they are not so different that they cannot have a similar education and training programme and that there cannot be a rational crossover between one branch of the profession and the other. It is along those lines that we should proceed rather than impose an artifical stamp on one profession without carefully considering the matter.

We will achieve our goal if the universities, third level institutes and the two professional bodies agree a uniform system of training and education as well as a crossover arrangement from one branch to the other. Rational benefits to the public would result from adopting that course. However, the enabling proposals under section 43 may not be sufficient to achieve this. I know that the law society are a progressive organisation and that they will go along with the Minister's proposal; but as I have said, my reservations relate to the academic institutions concerned. I had experience, as Minister for Education, of dealing with those bodies and I believe that it is in this area that the delays and difficulties will arise. Therefore, the section will require more teeth if we are to achieve the desired results.

Section 45 provides for interchange between the two branches of the profession, which is desirable. It relates to the unification of the training and education system and facilitates movement in that direction, which is to be welcomed.

I also welcome section 46, which provides for reciprocity of lawyers not just between Ireland and the EC countries but between Ireland and the rest of the world. It is desirable that there be reciprocity between Irish lawyers and those practising in EC countries, America and elsewhere. There should be recognition of qualifications so that an interchange of jobs is possible. That would be of substantial benefit to many Irish people working in the legal profession abroad who may wish to come home and, similarly, to Irish people at home who may wish to practise in the legal profession in other countries. That type of interchange is welcome and is in accordance with the globalisation of the legal profession as an integral part of world commercial life.

There are many more aspects of this important Bill which need to be considered on Committee Stage. It is essential that the legal profession have a properly organised training and education system which caters for the modern world of the future. It is clear, not just in Ireland but throughout the world, that the legal profession is becoming a fundamental part of modern business. People cannot conduct modern commercial business, with all its complexities, without lawyer intervention and advice, which is designed to prevent fraud and misunderstanding and to ensure that buyers and sellers are facilitated, contracts are validated and that the process of trade and commerce proceeds in a proper way. In the context of modern business and commerce, lawyers play an increasingly important role. It is very important that legislation provide for this important branch of the legal profession. In so far as possible we should consider the legal profession as a whole. This brings me back to the point referred to by Deputy Shatter that the legal profession should be considered in terms of its contribution to society as a whole.

Even though this Bill is a Solicitors Bill, and solicitors are important to the whole legal process, barristers, courts and the whole administration of justice must also be considered. This is no longer an exclusive area but one that permeates all aspects of life, particularly commercial life, in that it is very important that there be honesty and probity in regard to dealings. There can be no dealings, transaction or flow of business, internally or, more important, externally, without a profession that is soundly rooted in standards of integrity and regard for the public interest. This Bill is a substantial step in that direction. Apart from what I have just said in relation to the proposed transfer of probate and conveyancing matters to the banking institutions, provided for in section 73 and 74, which I feel very stronly about, I welcome the Bill.

I give a qualified welcome to the Bill. I shall set out my views in relation to various sections in a more detailed way on Committee Stage.

Since coming into the House in 1981 I have encountered many problems in the areas of health and education which result in much hardship because of the present economic climate and the cutbacks that are taking place. However, the area in which I have detected the most exploitation and corruption is that of the legal profession. It is very easy for the professional bodies representing lawyers to say that people like myself indulge in solicitor bashing. That allegation was recently made in the Sunday Independent of 29 December 1991 by Noel Ryan, Director General of the Incorporated Law Society, when he responded to an article written by Mark Smith. The article referred to set out many of the problems experienced by the public and gave information on the proposed legislation. Because the journalist had views which were contrary to those of the Incorporated Law Society, the easy hand-out response given was that he was involved in solicitor bashing.

I have often been accused of being a solicitor hater. I hope that I do not hate anyone. However, I have seen more human misery, with people taken to the verge of insanity because of the treatment to which they have been subjected, and more corruption in the area of the legal profession than in any other area. I first raised the issue of abuse by members of the legal profession in 1982 after a very close friend of mine in Cork was evicted from his family home, where he had lived for more than 20 years, because of what I termed at the time to be collusion by a solicitor and his friend, a court judge, to have that man and his family evicted from their home. I was present at the sheriff's eviction of that man after that collusion at the highest level. A bent decision deprived that man of his house. As a Member of the Dáil, I was unable to do anything about that. I was not even able to raise the matter in the House, because I was told that all was in order. It was as a result of that experience that I took a personal interest in this issue. I felt that if such a thing could happen in Ireland, I had until then been living in some kind of a cocoon.

At that time I made public statements about the fact that people have very little recourse to action when a problem with the legal profession arises. The number of letters I received as a reaction to those statements far outweighed the correspondence received in reaction to any other public statement I have made in my life as a TD. People recounted problems of negligence, mismanagement and corruption in relation to the legal profession. The average lay person has no idea of what to do when faced with such problems. People are told that they can take a problem to the courts. Of course, that is a matter of having the necessary resources and of being able to engage a solicitor.

Back in the early 1980s people going to the Law Society might as well have gone to some other body, because at that time the Law Society was not interested; they denied the existences of a problem. The hidden problem unravelled, both within this House and as a result of articles written by fearless journalists, and eventually the Law Society had to accept that they has a serious problem in that many of their members were abusing their privileged position, abusing the public and using the systems of the State for their own benefit. The public were literally helpless, because the Law Society was a trade union on the one hand and a representative body of lawyers on the other hand; yet the society was the only organisation to which the public could go. If people decided to take their problems to the courts they faced high costs and had to play the lawyers who were wronging them at their own game — they would be swallowed up in the jungle that our court system is when concerned with complaints against the legal profession.

Before being elected to the Dáil I also was a victim, not of a dishonest solicitor but of an incompetent solicitor. I suffered a financial loss and as a lay person, I was also at a loss to know what to do. Most lay people do not know of the existence of the Law Society and do not have a clue what to do when faced with mismanagement or incompetency.

As I said, the problem in relation to the legal profession unravelled slowly. My own party and the Labour Party were in Government at the time and I put a fair amount of pressure on the Department of Justice, through the Minister of the time, to find some solution to the problem. When Deputy Alan Dukes was Minister for Justice I had several meetings with departmental officials at which I outlined my views. At the time I understood that legislation was, as they say in Civil Service sectors, at an advanced stage of preparation. That was back in 1985. I give this Bill a qualified welcome because it has had a long incubation period. I believe that it is seriously flawed in relation to specific issues that I shall deal with on Committee Stage. I hope that the Bill does go through the Dáil now. The Second Stage debate has been before us off and on for the past two months now.

We hope to get it finished today, with the co-operation of Opposition Deputies.

I shall certainly co-operate in every way I can. The Bill has been treated as some kind of a fill-in. Even at this stage it is accorded no great urgency. Second Stage debate has been scheduled for Fridays or at the end of a day's business. I have been left with the impression that, now that the Bill has been presented for Second Stage debate, the Minister has discharged responsibility and has left it to the Dáil for the Whips to do the best they can with it. Ample time having been given for Second Stage discussion, I hope that ample time will also be given on Committee Stage for Deputies to go through the Bill's many sections. I am a great believer in the committee system — and I hope that that system is introduced to the Dáil — but I trust that assigning this Bill to a special committee of the House is not another way of putting the legislation on the back burner. I would prefer to see its provisions teased out in this House over a three- or four-week period rather than have the Bill assigned to a committee who might sit on it for perhaps 12 months. I may be wrong but it would be my hope that, if the Bill is assigned to a committee, they would work diligently on it over a short period so that we could have Report and Final Stages passed and the Bill enacted as quickly as possible. I do not stand here today to engage in solicitor-bashing.

It sounds awfully like that.

Deputy Taylor will have his say in a moment. Two lawyers have spoken already; possibly there will be a third to follow me. Rather I speak with the benefit of the experience and knowledge gleaned from the many people who have contacted me, giving the impression that the Incorporated Law Society and the profession is a closed, self-protective one very sensitive to and objecting to any criticism of their performance.

That is just not true. The Deputy should adhere to facts and not refer to broad generalities.

Deputy Taylor will have his chance shortly. I have had personal experience of every dirty trick. If Deputy Taylor wishes I will give him plenty of detail in a moment.

If Deputy Taylor wishes to rise on a point of order, he is entitled to do so but he knows he is not entitled to interrupt Deputy Allen while he contributes.

I would hope that any Member who speaks in this House represents the public, not himself or his profession.

Of course, absolutely.

I hope so. I hope any such Member speaks as a public representative and not as a member of any profession or professional body. It has been my impression that all too often members of the legal profession, of all parties, have kept the question of law reform to themselves and whenever people like myself outside the profession attempt to raise issues, it is resented. Nonetheless we have a duty to do so. People would want to make up their minds whether they are public representatives or representatives of a profession. I will say no more on that for the moment.

Deputy Shatter dealt at length with the impasse in relation to the free legal aid position nationwide. I cannot allow this opportunity to be missed without appealing to the Minister to endeavour to bring a conclusion to the dispute continuing between the Incorporated Law Society and his Department in regard to free legal aid because, if there is not an immediate conclusion, the consequences will be horrendous for the Cork city area. While requesting the Minister to endeavour to bring about a solution acceptable to both sides, I do not think the performance of the Southern Law Association in my city can go without criticism, all of whose members are members of the Incorporated Law Society and should be subject to the rules and regulations of the Incorporated Law Society. Yet they decided unilaterally to take strike action, leaving the courts in chaos, leaving criminals loose on the streets of Cork — I am sure the Minister and the Garda will so confirm; indeed I see the Minister of State, Deputy O'Dea, nodding in agreement — who, if this dispute is not settled, will remain loose within the community. That is grossly irresponsible action on the part of so-called responsible practitioners of the law.

Having been critical of the Southern Law Association I must be critical of the Department also because this matter is not receiving due attention. I ask the Minister to take Deputy Shatter's suggestion in good faith — that the Department would consider guaranteeing that a decision would be taken in regard to fees and revised structures of the scheme within three months, which might satisfy members of the Southern Law Association who are holding the people of Cork to ransom. Here again the resentful attitude of practitioners of the profession is an indication of the type of criticism and treatment public representatives are subjected to when they speak on issues relating to the law and its implementation. When I spoke about the matter recently in Cork I was subjected to a public rebuke on the part of Mr. Justice Murphy of the Circuit Court for daring to comment on the role of the hard-working, hard-pressed solicitors in the courts there. Surely such criticism should be a two-way exercise? I thought the Leas-Cheann Comhairle was becoming somewhat disturbed——

No, the Deputy has freedom in this House to express himself in any fashion he regards as appropriate as long as it is not contrary to Standing Orders, and what he is saying is not contrary to Standing Orders.

Therefore I appeal to the Minister to bring about a successful solution to a nationwide problem which is particularly serious in Cork. While giving this Bill a qualified welcome I will be expressing my views in more detail on Committee Stage. I contend its provisions are flawed in that they do not deal at all with the two professions; while dealing with solicitors it totally ignores the fusion of the two professions. Even though, in this Bill, there is an attempt to render solicitors more accountable, there is nothing done to bring barristers to some element of accountability for their actions.

While congratulating the Minister on his appointment it would be my hope he would devote his energies to law reform, becoming ever more involved in that issue. Too frequently in the past successive Ministers for Justice have dealt with the issue of security in prisons and so on while the overall area of law reform has been neglected. Therefore, I see urgent need for a Minister to deal exclusively with law reform, particularly since we have witnessed how this country has paid the price of its omission in recent times since, every time a business scandal occurs, we discover the laws obtaining are inadequate. Indeed this House appears to be incapable of dealing with such problems, and the matter has to be the subject of a public inquiry, the costs of which are enormous. I will not go into that aspect; suffice it to say the taxpayer has paid a hefty price for the lack of any real law reform in recent years.

This Bill has had a long incubation period. Its drafting has continued within the Department since the early eighties, the necessity for which has been brought about by continuous demands for changes in the law relating to solicitors. Since being elected to this House I have received persistent complaints about the manner in which solicitors deal with their clients and businesses. For example, such complaints have ranged from ones about mismanagement to what I would term "criminal activity" on the part of a small percentage of solicitors. Nonetheless I believe the vast majority of solicitors are hard-working, honest, diligent people. The problem is that the profession, as a whole, is not prepared to accept criticism and ill-prepared to accept changes they perceive as undermining their authority.

Unfortunately, in the early days, the Incorporated Law Society responded to such criticism in an arrogant, aggressive manner. It is only in recent years, because of the weight of evidence and strength and volume of public opinion, that they have moderated their views. The arrogant attitude adopted by the Incorporated Law Society was such that criticism of one solicitor was interpreted as a criticism of the entire profession. I am unhappy about the continued policy of self-regulation, the basic principle underlying the provisions of this Bill, because, despite safeguards in the Bill to protect the public interest, no powerful group, not alone self-regulating but controlling the legal system, can offer the public adequate safeguards. The Bill is flawed because of the retention of that self-regulation principle. As a public representative I have come across many cases of mismanagement, negligence, dishonesty, and corruption, indeed what I might describe as highway robbery, in the solicitor-client arrangement, which has come to my notice which I have been obliged to highlight. I shall deal with that in greater detail later.

During the early eighties the Incorporated Law Society arrogantly rejected any complaints against their members. The situation became so bad during the mid-eighties that an association, the Victims of the Legal Profession, was set up. Eventually the Incorporated Law Society, overwhelmed by the weight of evidence of abuse and corruption, were dragged almost screaming to the negotiating table with the Department of Justice to discuss amendments to the Solicitors Act. They totally rejected the suggestion that there was anything wrong in the profession at that time.

The Incorporated Law Society have been half-hearted and lukewarm in their dealings with cases alleging misbehaviour by their members. Cases of mismanagement and negligence were not dealt with by the Law Society and clients and members of the public who made approaches to the Law Society were informed that if they wished to take civil action against a solicitor they had the right to do so. However, they were not advised at that stage how they could go about doing this. In the absence of the society's panel of solicitors at the time the public were relatively helpless against this powerful group. It was only in 1983-84 that the Law Society's so-called panel of solicitors was set up. This panel was set up in response to complaints by people that they did not know how to take a civil action against a solicitor. I will deal later with the effectiveness of that panel.

Despite the setting up of the panel system, I sincerely believe that the public are still relatively helpless in taking civil actions against solicitors. I wish to set out the theory of the system and how it works in practice. People who have complaints about their solicitors can do two things: they can go to court or write to the Law Society. If they write to the Law Society they will be told that if a solicitor has misbehaved they will investigate the matter. If a solicitor has been negligent the person is advised that he has to take the matter to the courts. This is where the major problem arises. Despite what we think, it is still relatively difficult for a person to take a solicitor to court.

The Law Society make available a panel of solicitors from which the individual can choose. Usually the person selects a solicitor from outside the city or town in which they live. My monitoring of the performance of that panel has not impressed me. People are invited to visit their solicitors. I know people in Cork who have been forced to visit solicitors in Limerick, Dublin and other towns. A person who works in a 9 to 5 job and who gets three or four weeks holidays a year may be able to visit that solicitor once or twice only. If this person feels he is getting nowhere fast he will give up. If he wishes to pursue the case he will either have to give up his job or take time off. A person who is not articulate and competent in setting out his case in writing does not have a hope. In many cases people who have to keep coming back to their solicitors give up. This is how the system works in practice in many cases.

I admit that the panel system has worked in a number of cases. However, from my experience it has failed in more cases than it has worked. People give up their cases because they are led on by the new solicitor. They are eventually told it would take much money to bring the solicitor against whom they had made the complaint to court and that if they failed they would be in big trouble. People can be intimidated by the financial implications involved. In addition, there is often an arrangement between solicitors, which is denied by them. If, for example, I wish to sue a solicitor I will have to engage a solicitor and a barrister to bring the case to court. Very often the solicitor being sued engages a colleague to defend him and there is a quid pro quo arrangement. If the solicitor loses the case it will not cost him much apart from the judgment against him — the legal costs will be very small. If he wins the case his legal representative will make a killing.

This is what I term a legal jungle into which the public are very loathe to enter. I hoped this Bill would provide for the setting up of an arbitration body to look at the question of negligence outside the court system. The Minister should give his views on this point. The problems boil down to two issues — negligence and the difficulty in bringing a case to court. I will deal later with the issue of misbehaviour.

Part III deals with complaints against solicitors. Section 8 will give new powers to the Law Society to impose sanctions on solicitors found to have been guilty of mismanagement. This is in contrast to the former powers contained in the Solicitors' Act under which the Law Society could only deal with cases of misconduct. The ineffective system of dealing with complaints against solicitors to date has been addressed by the appointment of an independent adjudicator to investigate complaints about the way the Law Society handle complaints by members of the public against solicitors. I am not happy with the Minister's decision to appoint an independent adjudicator. I agree with the sentiments expressed by previous speakers, particularly Deputy McCartan, that the needs of the public can only be served fully by the appointment of an Ombudsman. This issue must be addressed on Committee Stage. The Minister's decision to appoint an adjudicator will not go far enough to deal with the realities and the problems which I know exist. I had hoped the Minister would be more specific when dealing with this problem. For example, the terms of reference of this adjudicator are vague. We will have an opportunity to discuss them in more detail on Committee Stage. I ask the Minister to change this section.

As the Incorporated Law Society will pay the adjudicator's salary and expenses, the question must be asked: will the adjudicator be independent? There is an old saying that he who pays the piper calls the tune. I worry about this principle in this instance. As solicitors will pay his salary and expenses, I am worried that clients will really be the ones who pay without having any influence. The inclusion of this section has been brought about solely by the reluctance and failure of the profession to live up to their moral responsibilities to the public to date.

Section 16 deals with the appointment of five lay members, nominated by the Minister, to the disciplinary committee of the High Court to represent the interests of the general public. This committee will be appointed by the President of the High Court and will be responsible for conducting inquiries into allegations of misconduct against solicitors. I ask the Minister when replying to the debate to set out in more detail the type of nominees he will appoint. They will certainly need to be courageous people who will not be intimidated by the legal jargon and superior attitude of their legal colleagues on the committee.

I welcome the provisions in section 21 which will force the Law Society to publish on an annual basis information on the nature of complaints about the conduct of their members and the outcome of their investigations. This report must be published in such a way that the public will be in a position to judge and monitor the performance of the Law Society.

The Minister in his speech said that where serious loss arises as a result of alleged negligence by a solicitor the client affected could seek redress through the courts. One must not under-estimate the difficulties the public will experience in getting a case through our courts system as they will be competing against the very practitioners of the law. It will be a case of the innocent embarking on a journey through a legal jungle. Last week I met a person who brought a case, which I was monitoring, before the law society. He described his meeting — he did not have a solicitor to represent him — with this group of solicitors as being like entering a snake pit. That expression describes the situation.

I referred earlier to the problems which people have in obtaining the services of a solicitor for the purpose of taking an action against another solicitor. The Minister acknowledges that the Law Society made arrangements in recent years to assist such people to obtain the services of a solicitor. However, I do not agree that this arrangement has worked well and I have already given examples in this regard.

Section 61 imposes a statutory obligation on the Law Society to maintain a register of solicitors who are prepared to act for any person who is unable to engage the services of a solicitor to take proceedings against another. We must not underestimate the problems which people will still have despite the improvements claimed by the Minister in this section. As I said, people have been sent from solicitor to solicitor and have eventually given up because they were simply played out, in terms of time and resources, by members of the panel.

Section 62 deals with one of the areas of major abuse in recent years, namely, the client-solicitor arrangement — an area where there is highway robbery, week in and week out, in regard to people who have a legal problem and who do not have resources. They go to a solicitor because they cannot get legal aid and compromise themselves. I hope that something will be done about this area. I raised questions in regard to this matter for many years in this House and it is only over the last 12 months that the Minister's predecessor, Deputy Burke, agreed that the client-solicitor aspect must be tackled head on.

I will give an example. A person will engage a solicitor to take a case to court on his behalf, the case is heard and an award of £20,000 plus costs is made. That individual never sees the cheque sent to the solicitor; he gets a cheque from the solicitor's own account. He might receive £16,000, £17,000 or £19,000, and there is often a reduction on the award made in spite of the fact that the solicitor got a judgment. When the person asks about the rest of the money he is told that the case had to be discussed with a doctor or an engineer, who supplied reports which were not covered in the damages awarded.

Legislation must be introduced which will impose on the legal profession an obligation to have a written contract outlining the details of the arrangement between the client and the solicitor from the first day. Perhaps there will be an arrangement that 10 per cent of the cost will be paid to the solicitor, maybe a "no foal, no fee" arrangement; but whatever arrangement is arrived at should be in writing. There should not be total exploitation of a person because he does not have the resources to take his case to court. However, I have serious reservations about the "no foal, no fee" arrangement because that too is exploitation. Of course where a person does not have any resources it is better than nothing, and while it contains an element of exploitation it is better than the existing system in which there is no contract and the person does not know what obligations he has to his solicitor. The Minister must tackle this problem and we will do so on Committee Stage. I know that the Minister is open to suggestions and willing to make changes.

I want to read a letter written in 1990 by Catherine Brennan, solicitor, of the Incorporated Law Society, to a man in Cork city in response to a complaint he made, on my advice, about a solicitor who had stopped £4,000 out of an award made to him even though damages had been awarded by the court and the insurance company had already paid the damages to the solicitor. I will not name the solicitor involved, although he deserves to be named; indeed, he deserves to be struck off. However, I have confidence that the Minister will do something about this corrupt system. I could name the solicitor under the privilege of the House but it does not need to be done at this stage. There is an introductory paragraph acknowledging receipt of correspondence and the letter continues:

I enclose a copy of letter dated August 1990 which the Society received from the above solicitor. You will note that the solicitor maintains that the sum of £4,000 was the solicitor/client aspect of his charges and that you were well aware of this aspect and, furthermore, that you were well aware that you were liable for this fee.

You will note that you returned to his office having cashed a cheque for £8,000 and that you discharged the agreed solicitor and client liability for the sum of £4,000. I enclose herewith copy bill of costs which the Society have received from the solicitor and we understand that you have received directly the original of this bill.

I confirm that the Society itself has no power to ajudicate upon solicitors' bills. If a client is dissatisfied with the charges being made by a solicitor the remedy is to seek taxation of the bill of costs. This involves submitting the bill to a taxing master who is an independent expert on solicitors' charges and whose offices are in the Four Courts in Dublin. The taxing master sets a date to hear the matter and will adjudicate upon the bill and determine whether the charges made by the solicitor are reasonable in the circumstances. Both you and your solicitor will have an opportunity to make representations concerning the bill at taxation. There are time limits involved in a taxation, which is a technical procedure, and you may wish to consider consulting another solicitor before proceeding to taxation.

I also wish to refer to solicitors refusing to deal with members of the public except through a solicitor. I had an example of this last evening: a solicitor refused to deal with a member of the public and insisted that he hire a solicitor to communicate with him. It is unacceptable in this day and age. That man has been forced to hire a solicitor in relation to a mickey mouse matter. It is certainly a cosy arrangement for solicitors. I will now quote the remainder of the letter which I read earlier:

You should consult another solicitor before proceeding to taxation. You should also note that if the taxing master reduces the bill by less than one-sixth you will be liable for the cost involved in taxation which will amount to approximately 5 per cent of the tax bill. I hope that this has clarified the position and that if you require further assistance you will contact the society.

In this man's case the tax involved would amount to £1,000. This means that the Law Society are advocating and supporting an exploitation system and that there are no powers to stop this exploitation despite ministerial comment on it.

I hope that the Bill will seal this whole area of exploitation, because it is happening, day in, day out, all over the country and many people do not know that it exists. People have been refused a breakdown of their bill of costs; they have been told it is not a matter for them. It is only in the last four or five years that people questioned solicitors and have become aware of their rights. As a result of newspaper articles people have become aware of the fact that they have rights and are getting the courage to question their solicitors. It is about time this whole area was sealed. Will the Minister comment on this practice? I have evidence to back up my allegations. I ask the Minister to take the necessary steps to ensure that the Law Society outlaw this irregular practice which is exploiting the most needy. People who can afford to pay for litigation do not have to enter into an agreement with their solicitor on the percentage of the award to be taken in costs.

I am labouring this point, but I have personal experience of the distress arising from this arrangement. Only two months ago we had to arrange to bring a girl back from England to confront her solicitor in Cork. She and her father were awarded separate damages and had subsequently gone to live in England. Her solicitor was refusing to hand over the cheque for damages until she had conceded in writing that she owed him approximately £5,000 because of the contractual arrangement they had entered into. It was only when the solicitor was confronted in person that a settlement was reached. To their credit the Law Society took a firm line in this case as they were appalled by this episode. The solicitor had thought the girl would sign away approximately £5,000 in order to get her hands on the money she was entitled to. I hope solicitors who do this sort of thing are struck off the register when this Bill is enacted.

I have tabled questions to the Minister previously in this area as I have come across many examples of exploitation. Many of the examples of exploitation showed that the client was helpless and dependent on the solicitor, who terrorised and intimidated those who dared question the level of fees they were being charged. I hope the Minister will insist that the solicitor must enter into a written contract outlining the financial arrangement between the solicitor and the client and that he will insist that all cheques that come from insurance companies or others are seen by the client before they are lodged in the solicitor's account. That is another story — we could go on all day and I could tell stories about solicitors depositing client's cheques for months on end and drawing the interest on them. This is an area that needs to be examined. We should establish a procedure whereby a settlement cheque should be paid directly into a client's account instead of the present arrangement. I believe that in most practices there is an account where the client's cheques are deposited and that this earns substantial interest.

I agree with the Minister's sentiments as set out in section 62 and I support any moves to formalise arrangements between clients and solicitors. On Committee Stage I would like to go through this section in detail. I may table amendments to it, in order to ensure that the abuses in this area are sealed off and that we copperfasten the rights of the client.

I welcome the changes introduced in section 28 which will put a limit on the scope of the statutory compensation fund and will ensure that the fund is available to clients and solicitors only, as some of the financial institutions had been exploiting the fund when they incurred losses as a result of undertakings by solicitors. The use of this fund by financial institutions was against the principle of the fund. Even though financial institutions may have made losses as a result of faulty business undertakings by themselves, they nevertheless exploited the fund.

I will comment on the monopolies created by the Solicitors Act, 1954. Generally speaking, I welcome the Minister's cautious move in this area. While I have reservations about giving more power to the banks, because of their poor track record in the past, Deputy Shatter has outlined the situation as he sees it; but I welcome the break up of monopolies. At the same time I am not satisfied that removing the monopoly in this case will benefit the consumer. The area of probate is a minefield in the absence of updated legislation on land title and family rights and there are also pit falls in conveyancing. I appreciate the Minister's reluctance to take the same road as they did in Britain when they legislated to allow lay people to do conveyancing for profit. There is for and against that argument, but in my opinion in the absence of up-to-date modern legislation this would be anti-consumer.

I must comment on an aspect of advertising by solicitors which causes me great concern. In recent times some advertisements have taken the line of encouraging members of the public to make personal injury claims, even of a trivial nature. This impinges on employment creation and some employers at present are reluctant to create new jobs because of the implications of doing so for their employer's liability insurance. I believe a package of reform is urgently needed to stem the growing number of insurance claims, the lengthy and costly court proceedings and the increasing insurance premiums which are putting Irish business at a competitive disadvantage. I will quote from an article in Inside Business, which says:

Irish business paid out over £247 million in insurance premiums for 1990, an increase of over 6 per cent on the previous year, more than twice the predicted rate of inflation for 1991.

They state that out of that £422 million was paid back in compensation awards to Irish business; 92,045 claims were made against and on behalf of Irish business in 1990 as opposed to 74,958 new claims in 1989, which is a 20 per cent increase in claims in that year. The latest figures I have are for 1990, and in 1990 the insurance companies paid out £813 million which was a 20 per cent increase over the previous year of 1989. Employers liability insurance alone is now costing over 2 per cent of the payroll bill. Is it any wonder that employers are reluctant to create new jobs? I will now quote from Inside Business of December 1991:

Irish motor premiums are among the highest in Europe—

The Chair may wonder how relevant this is but I am going to develop the argument——

and liability premiums have seen tremendous growth over the past few years, jumping by a massive 281 per cent from £58 million to £163 million between 1983 and 1990. However, a spokesman for the Irish Insurance Federation claims that this is indicative of an increase in business, as well as an increase in premiums.

Employers liability premiums alone currently stand at close to 2 per cent of the payroll per annum...

Further proof of this is evident in the comparison between liability premiums of Ireland and the UK. Irish newsagents are paying far higher public liability premiums than their UK counterparts, says Joe Holmes, secretary of the National Federation of Retail Newsagents.

"We have 30,000 members in Ireland and the UK, and as part of the membership fee, public liability cover is supplied for those whose business consists of a minimum of 80 per cent newsagency trade. In the UK, the cost of this is £10, but in Ireland it costs £500. This is because of the claims history of this country, and the fact that awards are so high. It's getting almost as bad as the situation in America. We've had cases where claims were awarded to members of the public for incidents that shop managers weren't even aware of."

And these awards for personal injury are among the highest in the EC, and up to 59 per cent above the average payment, according to a recent survey by London solicitors, Davies Arnold Cooper...

These statistics, combined with lengthy and sometimes archaic court procedures and an increasing propensity on the part of the Irish public to litigate all add up to increasing insurance premiums, with a further increase likely on liability premiums in the near future, according to the Irish Insurance Federation.

Mr. Noel Ryan, director general of the Incorporated Law Society, believes there is a real need to overhaul the way in which litigation is dealt with. He said:

The Law Society is concerned that litigation procedures should be more straightforward and that delays should be reduced. It is well known that the listings system in the High Court is inefficient. Litigators just can't predict when their cases will be coming up, so that you can get them hanging around the Four Courts for days, waiting to be heard. This can cause enormous expense, especially when professional witnesses have to be called in ...

The Fair Trade Commission, in a recent report on restrictive practices in the legal profession, recommended that consideration should be given to the possibility of dealing with personal injury actions in a tribunal which would be less formal and less costly than a formal court hearing.

I hope, in dealing with this legislation, the Minister will take steps to implement a promise made by his predecessor, Deputy Burke, to introduce a court and court officers Bill — I am not sure if it has been published — which would include the establishment of a court of civil appeal with very limited right of further appeal to the High Court in personal injury claims; an extension to the powers of the Taxing Master in an effort to reintroduce a degree of control on legal costs in personal injury actions and to give power to the Master of the High Court for the introduction of pre-trial procedures. According to a spokesman for the Department of Justice work on this Bill is well advanced and should be submitted for Cabinet approval in the near future.

One element left out of this is the practice that has increased in recent years of what I term "ambulance chasing". People are being encouraged, at the drop of a hat, to take cases against companies, local authorities and so on. The most flippant cases are being pursued to the limit. I am not sure how this can be dealt with but I ask the Minister to refer to it in his response. There is a danger that the opening up of the advertising code will encourage more litigation here. This practice of "ambulance chasing" is anti-jobs, and against the common good. It is a deplorable, unpatriotic and immoral attitude by some members of the profession and has grave consequences for taxpayers. I have given the implications for job creation. Any jobs forum which may be set up, regardless of the involvement, must look at the questions of the courts, litigation and employer and public liability. We do not have a hope of increasing our job numbers unless this factor is dealt with.

I can relate only the experience of Cork Corporation, of which I am a member. We have been stung over and over again by members of the public who, I submit, have been aided and abetted by unscrupulous solicitors in the area who have entered into conspiracies — I use that word intentionally — to defraud the local authority of much needed funds. The situation has become so serious that Cork Corporation's public liability insurance bill became so prohibitive that it now has to self insure. This year the fund is so high that it has brought Cork Corporation to the brink of financial collapse and dissolution which almost happened before last Christmas. The amount of money we set aside as a local authority was £4 million but we have reduced the amount this year to a level which some people have said is dangerously low. This shows the extent of the problem in relation to the litigation conscious public aided, encouraged and abetted by some of the profession. The problem of Cork Corporation's public liability funds has been brought about by the activities of a group of solicitors in the area whom I described as "ambulance chasers". Any steps by the Minister to root out this irresponsible practice would be welcomed and supported by me.

I am not going to deal in depth with the question of legal education. I read a number of excellent articles on the subject recently. However, I should like to refer to one article which appeared in The Sunday Tribune in December 1991 and ask whether this article by the President of the Incorporated Law Society, Mr. Bourke, represents present day thinking. The Incorporated Law Society say they will co-operate with the Minister in opening up legal education while my interpretation of that article was that the President advocated the closing of ranks. I would support any moves by the Government to open up the profession to the ordinary people of this country and not make it the elitist profession it has been down through the years. This statement by their president was an attempt to bring the profession back to one of elitism.

An article in The Sunday Press on 24 March 1991 by Joe Christle, European Law Director of Legal Studies at the College of Commerce, Rathmines dealt with the Fair Trade Commission report on restrictive practises in the legal profession. He said the report showed an attitude of intellectual snobbery and elitism to the whole question of opening up education. Any moves in this area should ensure that everybody of certain standards has a chance of entering that profession.

Any fusion of the professions would be good for the consumer, the public and the taxpayer. It would result in more accountability to the public than the present passing of the buck between solicitors and barristers — barristers, in my view as a lay person, are not accountable. The era of the wigs and gowns must disappear and there must be a demystification of the Bar Council which has been incestuous and reactionary and an opponent of any change in that area. The Bill ignores this whole issue and I consider that a serious flaw.

I would like to deal in more detail with the question of complaints of misbehaviour — I referred to this earlier — where the only courses of action open are either to take the case to court or refer the complaint to the Incorporated Law Society. I shall refer to two detailed case histories which highlight the inadequacies of the present system despite the changes that are to be made. I quote first from a letter written to the same Mr. Bourke and I will not name the area so as not to identify the person concerned. The letter reads:

My complaint to the Law Society has been given very unsatisfactory treatment. I was impressed with your statement that the society must be seen to be accountable for the way it deals with legitimate complaints. It is heartening to find at last that there seems to be a recognition by the Law Society that there exists a problem with the complaints procedures and there is very little confidence in them. Your predecessor, Mr. Mahon, seemed lamentably complacent in this regard. One gets the impression that during your term of office you will be interested in bringing about an improvement in the situation.

I wonder if you appreciate that when a lay person makes a complaint to a body as august as the Law Society there is immense stress involved. Not only does one have a certain sense of inadequacy at articulating one's grievances but there is a great feeling of being up against it; "taking the devil to court" so to speak. It must be one of the rarest, if not unique, occasions when one cannot engage a solicitor to professionally make one's case. Few people would put themselves through such an unpleasant ordeal without serious cause. It follows that there must be a considerable number of legal clients with legitimate complaints who because of the inherent imbalance in the system will either not attempt at all to seek redress or will lose heart at an early stage in the process. Rogue solicitors will flourish in such circumstances.

Let me give another example to show what has been going on, as outlined in a letter which was written by somebody living in Dublin to a Government Minister but not the Minister for Justice. It concerns the Fair Trade Commission report of a study into restrictive practices in the legal profession. I will not read the first paragraph so as not to identify the person concerned. I quote:

While I do worry that this submission might be seen as some form of personal crusade, it is necessary to outline our experiences in order to underline the necessity for change. I have not named the firm of solicitors involved as that might inhibit the circulation of this letter within your Department.

In May 1987, my wife and I sought legal advice on problems of nuisance relating to unauthorised use of buildings close to our back garden boundary wall. It was recommended to us that an application be made to the High Court under section 27 of the Local Government Planning and Development Act, 1976, to prohibit the continuance of the development or unauthorised use. We took this advice and proceeded with our case.

Things moved along rather slowly and by December 1987, we were being told that it was unreasonable to want to have the factory moved. At this stage we had signed affidavits and exhibits in our solicitors' office, a planning application had been detected by us and objections had been lodged against the proposal. We had come under strong pressure to provide a "shopping list" of items which in our view would minimise the effects of the factory, and our suspicions had been aroused.

We did not believe that the planning application for the retention of the plastics factory would be successful. Not only was the use to be retained unauthorised, it was actually forbidden by a condition which stated that the building shall not be used for any manufacturing purpose. We later learned that the sum of £760 required to be paid before the commencement of the development in accordance with condition No. 3 was never paid, and there were no fire hydrants on the site. In spite of all this, Dublin County Council granted permission for retention of change of use in February 1988.

The case had been adjourned several times in the High Court before this, but we had never been requested to attend the Court. At a consultation on 26/2/88 it was suggested that the case be adjourned generally with liberty to re-enter pending the outcome of an appeal to An Bord Pleanála, and we agreed to this. We indicated at the meeting that we would handle the appeal ourselves.

We received a bill for £5,490.94 from our solicitors on 18/3/88.

On 6th April 1988, I had a meeting with another solicitor in the practice. I told him that I was not happy with the way the case was being handled and I asked him to take the case over. He agreed to this and requested a payment of £2,000 on account. I said that I had a cash flow problem, but I would see what I could do. It was clear that we could not deal properly with our appeal to An Bord Pleanála and cope with hassle from solicitors at the same time.

On 27/7/88 I sent them a cheque for £1,000.

A second cheque for £1,000 was sent with a covering letter on 7/10/88, and receipt was acknowledged in a letter dated 11/10/88.

On the 6/12/88 they wrote to me again in that letter, inter alia, asked for the second instalment of £1,000. When I informed them that I had asked my bank to clarify the situation, they wrote back and stated that they had overlooked the fact that I had already discharged the sum of £2,000 in full and apologised for the oversight.

I now started a review of our file.

Noting in a letter dated 3/12/87, that the evidence of the engineer was paramount, I wrote to the solicitors and requested a copy of his report, which had been promised in earlier correspondence. I received a copy of an affidavit sworn by the engineer and was told that his report was contained in the body of his affidavit.

We could not understand why the engineer's affidavit had been sworn in another solicitor's office and we started to get very concerned about our position.

I wrote a letter of complaint to the solicitors on 16/1/89 and listed the main reasons for our reservations about the way the case had been handled. Their reply was rather abusive and seemed intended to intimidate us, and it confused many of the issues we had raised. However, the answer to the question that bothered us most was given on page 9, where it stated that they could not take their own clients affidavits.

Since we had never been to any other commissioner for oaths I made a complaint to the Law Society on 8/2/89, and sent a copy of the file to them.

The day before I wrote to the Law Society I wrote to the solicitors and informed them of my intention. Their response was to send their papers to a legal cost accountant to prepare a formal bill of costs.

In their reply to the Law Society they stated "Mr. X" swore two affidavits. One appears to have been sworn before Mr. Clancy of Baggot Street and the other affidavit was sworn before a Mr. Noel Sheridan.

We wrote back to the Law Society on 6/3/89 and said that this was completely without foundation, and since we could not be aware of their contents we asked for copies of these affidavits for inspection.

The Law Society wrote back on 20/3/89 with copy affidavits as requested.

On 21/3/89 the solicitors sent a Copy Bill of Costs drawn by their legal Cost Accountants to us.

In our reply to the Law Society dated 31/3/89, we pointed out that the two affidavits received were not authentic and we did not know either of the commissioners of oaths and had not been to their offices. It was also pointed out to the Society that changes from the draft affidavits had been made to one affidavit and the second affidavit did not state where in Baggot Street the affidavit was alleged to have been sworn.

In their reply to the Law Society the solicitors stated: As to the Affidavit that was sworn by the other Commissioner for Oaths we previously stated that the signature "appeared" to be that of a Mr. Clancy.

May I draw your attention to a Standing Order. There is a convention that if it can be avoided names should not be mentioned. Persons or officials outside the House should not be referred to if it can be avoided.

The whole thing would be meaningless unless I put some names in.

Acting Chairman

I think you have gone far enough in mentioning names.

The letter goes on:

We previously stated that the signature "appeared" to be that of a Mr. Clancy. We have checked the list of Commissioners for Oaths in Baggot Street. We cannot locate a Mr. Clancy but then the signature is indecipherable and it may not have been sworn by a Mr. Clancy at all. They also stated that if we did not pay their bill that they would be issuing proceedings for recovery of same. The Law Society in their letter dated 28/4/89, seemed to indicate acceptance of this explanation when they stated "the Society trusts that this has clarified the further queries raised by you in your recent letters to the Society".

While we regarded the issue as misconduct on the part of the solicitors, the Law Society choose to regard it as possible negligence and stated "You will note that the Society are empowered to investigate complaints of misconduct on the part of solicitors. However, the Society do not have the power to adjudicate upon issues of negligence which can only be determined by a court of law."

The Society suggested that we obtain and be guided by the advice of a solicitor since proceedings were being taken for the recovery of fees.

This left us in a very difficult position. If we paid the Bill or completed the Requisition of Tax Form, we felt that it would be hard to sustain our complaints and would prejudice the outcome of any future action against the solicitors. Apart from this, we were not happy with the contents of the bill, as there were references in the bill to matters which never took place. The bill included the sum of £62.50 for the release of documents from the Irish Permanent Building Society which I had paid, and the affidavit of credits was wrong as it did not include this payment by us. In addition, the bill included a charge for 10 hours time spent answering our letter of complaint to them.

When we pointed out in our letter dated 27/4/89 that the sum of £62.50 had been already paid, we were informed in their reply of 28/4/89: "If you wish to dispute the amount of the bill, the proper procedure is to complete the Requisition to Tax Form and return it to us." We completely reject the notion that clients must go through the elaborate procedure of Taxation to rectify solicitors accounting errors, since the responsibility is on them to submit accurate accounts. There were also discrepancies between the two bills that had been submitted to us.

The solicitors did take proceedings against us and we had to engage another solicitor to help deal with the situation.

We were never fully informed about what was going on in our case and did not even know the case file number, so I continued on and off with my own investigation as time allowed. My findings in the Central Office in the Four Courts were very disturbing indeed.

Two files had been opened in our case.

The files were numbered 100MCA/1987 and 7MCA/88, and there was no cross reference to indicate the existence of a second file when I inspected them.

File No. 100MCA/1987 contained: The Notice of Motion Affidavit of letter writer dated 28/10/87; Affidavit of Engineer dated 28/10/87; Affidavit of Respondents dated 13/11/87; Affidavit of letter writer dated 27/1/88.

The first two affidavits mentioned were not date stamped to indicate when they were filed, and no affidavit of Dolores Mongey was contained in the file although both bills received included filing charges for same. File No. 7MCA/88 only contained: Affidavit of Engineer dated 5/2/88.

This affidavit was supplemental to his affidavit sworn on 28/10/87.

In his supplemental affidavit the engineer states in effect, that a wall which he had clearly described in his first affidavit had not been constructed.

On 10/4/90, I wrote again to the Law Society and informed them of my findings. I finished up by requesting that the matter be referred to the Disciplinary Committee, with a request for them to hold an inquiry into the conduct of the solicitors in question.

The Law Society did not reply to this letter but simply passed it on to the clerk to the committee, who wrote directly to me. It was clear from this letter of 26/4/90, that the Society had not requested an inquiry, and the onus of preparing and specifying the allegations of misconduct in an affidavit was to be our task, with further expenses to be incurred by us.

At this stage we were facing court proceedings, so we had to let the matter rest for the time being.

We were taken into the Circuit Court and the case was heard ... We lost the case, and in fact did not have any real chance of success. We were told that we could not raise questions about the bill because we had not gone to taxation. We were also advised that the Judge would not allow the Court to be used as a forum to make allegations against the solicitors. We were clearly in a no win situation. To avoid responsibility for any inaccuracy in the Bill of Costs the solicitors asked the Judge to have the bill sent to taxation, and this request was granted. We did not see the evidence presented, but the Court was completely misled by the solicitors who also claimed in court that we owed money to our previous solicitors. This was completely untrue and without foundation, and was clearly intended to damage our credibility. We were now faced with the problem of paying the bill and all costs relating to the Circuit Court action.

Shortly after this I heard about the Fair Trade Commission report ... and I went and got a copy of the report.

As a lay person, I think that the Commission brought out a very good report. The information contained ... and the Manner of presentation offers ordinary people the opportunity of learning something about legal matters and procedures. Having so much information compiled and contained in one publication was a considerable feat, and the Commission must be complimented on a job well done. Indeed, had this report been available to us earlier it would have been of great assistance to us.

In the light of our experiences, I would like to suggest areas where changes must be made and a review of procedure must be considered.

Before I go any further I would say that this man is unique in that he is able to put his point in writing. In my opinion the majority of people could not put a case like this together. The letter continues:

(1) No solicitor should be allowed to issue proceedings for fees while complaints against that solicitor are under investigation by the Law Society.

(2) Security and procedure within the Central Office at the Four Courts should be examined by the Department of Justice.

How can files contain items which are not date stamped to show when they were filed?

How can two files be opened on the same case?

(3) The whole Disciplinary Procedure should be reviewed since the present mechanisms do not give the complainant any reason to expect impartiality or satisfaction.

I would support him there. Somebody described it to me as a snake pit. He continues:

(4) The manner in which investigations are to be conducted must be clearly defined.

The Law Society are bound by statute to maintain an alphabetical list of solicitors referred to as the roll. Solicitors must apply each year for a practising certificate, and the form of application must be completed and signed by the applicant personally. It is clear that the Society never consulted the roll to see if they could locate the mysterious Mr. Clancy mentioned in the last paragraph on page 3 of this letter. When I delivered my last letter dated 10/4/90 to the Society I asked to see the register of solicitors at reception. There were only four solicitors named Clancy practising in Dublin City, and one of them was in a practice in Baggot Street. It seems that the Law Society simply pass letters from one party to the other without any attempt being made to check the details submitted, because in this case they could have located Mr. Clancy and compared his signature against the one on the affidavit.

(5) Where the Disciplinary Body are aware of the fact that a certain line of action proposed or undertaken by one of their members is illegal or irregular, this information must be conveyed to the complainant.

In our case, the Law Society were aware of the fact that the solicitors were issuing proceedings for fees. They were also aware of the fact that all of the work had not been properly done by the solicitors (para. 17.37).

(6) Provision must be made to allow the client have the file inspected by another solicitor to obtain a second opinion, without the requirement to settle his account first.

Any such provision would encourage solicitors to take more care with their work, and would actively discourage shoddy work or dishonesty.

(7) Solicitors should be obliged by law to send to their clients, certified copies of all affidavits taken in any particular case.

(8) Where the Law Society suggest that a complainant should consult another solicitor, they should include in that correspondence a list of solicitors who would be willing to act in such a situation.

(9) Clients should be able to have direct access to the barristers in their particular case.

Many good reasons for this are presented in para. 9.6, but in addition to these there are situations where the client may wish to check the barrister's reaction to advice given in isolation by the solicitor.

(10) The very existence of the taxation procedure allows solicitors to submit accounts without due care and consideration, and some reform is needed in this area.

At taxation, charges for items of work which were not carried out are simply struck out. In normal commercial dealings this might be regarded as a sharp practice or even fraud, and where discrepancies are pointed out by a client, it is reasonable to expect that any errors would be corrected, rather than telling that client to have his bill taxed.

(11) The legal profession should not be allowed to charge clients for dealing with any client's complaints.

If professional fees are charged against clients who complain the likely effect would be to restrict the number of complaints registered, and hide the amount of dissatisfaction which now exists with the standard of service provided.

(12) Since lawyers have always to act in the best interests of their clients and should not participate in any deception or sharp practice, any deviation from this position must only be regarded as misconduct.

(13) Since lawyers have an overriding duty to the court not to be involved in deception or suppression or in any conduct which might mislead the court, proper procedures for ensuring compliance with these duties must be provided.

In a few recent cases it became clear that adherence to the above mentioned duty was not always evident, but where a situation clearly demonstrates that one or both parties are misleading the Court, some form of investigation should automatically follow.

(14) Where a report from a professional witness is required, this report should be a formal report and should not be contained in an affidavit. Apart from any other consideration, affidavits are normally drawn up by the lawyers in the case, and this can obscure the matter of responsibility for the contents of the affidavit. I feel that a greater degree of responsibility attaches to a formal report, which must be accurate in its entirety and is not open to future amendment at the writer's discretion.

Where a supplemental affidavit is provided to amend a report contained in an earlier affidavit, the impact of any such report is dramatically reduced. Yet, the client can be required to pay in full for this impaired service.

(15) The legal profession should be required to give some indication of the scale or manner in which fees are to be assessed in any given case, before the case is undertaken....

(16) Lay persons must be included in all disciplinary bodies...

(18) Judges should undergo special training and should be regularly assessed.

(19) Judges should be appointed by an independent body, well removed from the political arena.

(20) Every effort must be made to reduce the high level of legal costs and every recommendation that aims to accomplish this should be carefully examined.

I reckon that over the last number of years I received over 1,000 letters of complaint about misconduct from members of the public. Few people have the ability to put their case in writing in a way that can be taken seriously.

Everyone in this country is answerable for their actions except judges. They are the one group who are protected from the demands of natural justice in the course of their day's work. Why is that? They are considered to be beyond reproach. They make mistakes and affect peoples' lives. A person may go to a higher court but judges are the one group who are not held responsible for their actions. The Minister might take up that point.

I hope this Bill gets a speedy passage into law. I presume there will be many amendments on Committee Stage and that we will have an opportunity then to deal with the proposals in more detail. I congratulate the Minister on introducing this Bill which opens up discussion on this whole issue. I will be able to address my reservations about the Bill on Committee Stage. My arguments will be made in good faith and at the end of the day we will do justice to the people we represent.

I congratulate the Minister and the Minister of State on their efforts and on their preparedness to accept the need to redress certain objectionable practices and issues in the legal system. However, the situation the Bill purports to address is peripheral and it refers to the operation of the system and deals with no more than the manifestation of human frailties which creep into every profession. All that is commendable and necessary, but in so far as it seems to accept the perpetuation of the ritualistic goings on in our courts, I must question it. Why do we we not attempt to change the whole system which, in every layman's view and in the view of some of the professional people, is no longer relevant to the times in which we live? This system comes to us from the last century and earlier centuries. I do not know of any other area where what was regarded as appropriate two centuries ago is considered appropriate to the times we live in. I am referring here to government, to religion and other institutions.

Today our legal system is a nonsense. Professional legal people will admit that the legal system is not about sense or reason or justice, but about allowing for the payment of moneys to professional people who can indulge in what they themselves say is gamesmanship. The law can explore every avenue to create a doubt as to the guilt of any person who comes before the courts. That is not an illegal exercise or something which should be rejected as being entirely damaging or unacceptable, except when one realises that it is paid for by the people.

Every day I get reminders from constitutents and others that they cannot understand the legal process. I would have some slight reservations about the points made by Deputy Allen but I accept absolutely the spirit of what he said. There is no other area which has been so pedestalised. Nobody is expected to question it, not even a public representative. If I query the exorbitant fees demanded by that profession amounting to £1,750 per day, I am told that I am being offensive to the profession and that it is not my entitlement. It is even suggested that what I am doing is against the law. It may be, but it is not against the demands of my profession that require of me to criticise, castigate and reject anything which is not in accordance with sense, rhyme and reason.

In the short time available to me I will not wander over the whole legislation but I will isolate one or two points to endeavour to prove my case. We have what is called the right to silence. I may see a person commit a crime and injure a citizen and I may be prepared to testify to what I have seen, but that person, having been brought to the Garda barracks, must be told that he is not obliged to say anything. He is the person who has committed the crime, who has attacked a lady in the street, injured her and taken her bag. Everybody knows it, including the gardaí and the solicitor who presently will be brought in. We then have to suffer the exercise where the requirement of the legal profession is that the solicitor should pursue all avenues in order to create some doubt as to whether the person who caused the injury to the other citizen is guilty. Everybody knows he is guilty.

The position is worsened when one realises that it is the unfortunate victim who has to pay for the exericse. The taxpayers pay for all. Legal people make the case about the need for free legal aid but I do not accept that. Unfortunately in the times in which we live nothing is free, not even the grace of God. You have to earn it. Somebody has to pay for everything. How can we say, especially in times of limited resources, that there should be a system which will allow a person who is known to have committed a crime not to prejudice his own interest, not to give evidence against himself — in short, not to admit to the truth? One would not need to be a legal man qualified in the legal gymnastics which are theirs to show that the system, contrary to what it purports to do — that is, to ensure that no innocent person will ever be proven guilty — proves that a guilty person can be innocent. We should ponder that. That is what the legal system in this country is doing, day after day. Legal men are acquiring great reputations for this. You can be guilty but he will get you off. I meet that attitude every day of the week. Is this what we want?

I will not refer again to the unfortunate Waterford case where, not withstanding the fact that the father of the unfortunate girl admitted in his statement that he was her father, a legal man could, because of the licence given to him, require another legal man to acquit the father who was before the court as the accused and dismiss the unfortunate victim with no redress. That is what we should be talking about there. It is an important matter if a practitioner is to embezzle £2,000 or £3,000, but I will live with that in a system which is calculated to do what is right and proper and in accordance with natural justice, rather than a system which allows the perpetuation of ritualistic nonsense which has become quite a liability on the people and on our limited resources. Right to silence, how are you. It is a right given to some other person to be paid to speak for you so that a doubt can be created and you can move scot-free from the court and continue next day to indulge in crime against your neighbour.

I remember at school being impressed on learning of some ancient orator who kept repeating "Cartago delenda est”. Whatever about Carthage, something must be destroyed. The present legal system has to be replaced. I do not want reformation of peripheral matter. I want a revolution, the thing turned on its head. The practices which we have to tolerate are such that before very long, if we do not discharge our duties towards the people whom we represent, they will rise up in a fashion which we will not be able to contain and reject this appalling nonsensical situation.

In the pursuit of my profession defending the people, looking for justice and the employment and fair distribution of resources, I criticise a profession who can say that, because of the scarcity of qualified people, they can demand and must get £1,750 per day ad infinitum for a certain exercise which extends over a period of five months to prove what everybody already knew, that there had been a scandal and a scam. At the same time we must come in here on some other day and try to justify the fact that some unfortunate person such as a widow is obliged to exist on £55 per week. Simultaneously we must accept that she or her late husband had to contribute by way of income tax to the fund out of which her learned representative gets £1,750 a day, amounting to a total of £250,000. If I or the Cathaoirleach or Deputy Doyle should take issue with those people we are told we run the risk of libelling them. When we pursue that to its destination, what will happen? I or some other person will find themselves making a case against the same profession that I am criticising.

We are told that nobody should be the adjudicator of something affecting himself or herself. However, if in criticising this profession we are, in their opinion, harsh and unreasonable, or if we say something that is prejudicial to them, even though every day of the week they say things that are prejudicial to us, we will have to answer not to some impartial body but to representatives of that same profession. It amazes me that such an appalling, unfair and unjust system has been protected for so long. From now on at every opportunity I will endeavour to revolutionise that system and to put an end to the nonsense before the people take their own unwelcome action.

We are told that this is a profession where one benefits from one's background, where certain qualifications are required, whether of family, character or educational qualifications, and that the system is best if there are representatives of all the people who have to avail of the service. On those criteria it is remarkable that I cannot recollect a member of any family in the village where I was reared, which has become part of greater Dublin and is bigger than the cities of Limerick or Galway, being considered as having the educational or the background requirements necessary for this profession. That is because the system enjoys a protection not given to any other profession, a system where nepotism operates and where the son or daughter of a practitioner is more likely to gain admission than are those who do not boast of the same pedigree.

That practice is acceptable in a family business, but considering that the education of this profession has been paid for by the taxpayer, particularly the PAYE taxpayer, it is an appalling reflection on us as well as on the profession that they do not accept people from different backgrounds, people from areas which hitherto have not been represented. One might say that the discipline is such that one would need intelligence and a certain manipulation of words. The people I am talking about have these qualifications. They have the intellect and the capacity as well as the integrity required of this profession, but only certain people avail of the golden eggs. We should not allow this system to continue. Some of the wings of the golden goose have to be plucked.

I was heartened recently to hear some of the practitioners in this profession, Deputy Pat McCartan and Deputy Tom Enright, acknowledge how preposterous, ludicrous and unacceptable is the system which provides for the right to silence. The scarce resources of this country are applied to an unfair and unjust exercise which creates doubt as to the guilt of the person on trial, thereby bring into question the innocence of the person against whom the crime is committed.

As I said previously, the Minister of State is one of the snowdrops of hope in the matter of redressing the unacceptable system of application of our laws. Both he and the Minister are men of sense and reason, men who have knowledge of the affairs of the world. The Minister of State, Deputy O'Dea, has demonstrated that as a legal practitioner he has the highest qualifications. I hope that he will accept the merit of the case I am endeavouring to make. There is not much point in dealing with the periphery of a system when the heart of the system is in such a terrible condition.

I promised that I would not speak at any great length and I do not intend to do so, but before concluding I would refer to the debate that has commenced in respect of the Constitution and matters relating to abortion. Some years ago we agonised in search of a formula which, whether it be right or wrong, represented the view of the people of Ireland. It is the people who are the final arbiters, the primary legal practitioners, the raison d'être of everything. However, learned judges have decided that what was accepted by the people and by us is not law and we now have to review the matter. I am happy to do that, although the ghost of what has happened to date haunts me. I know that as sure as day follows night, irrespective of consensus or of a formula being accepted by everybody, whether by way of referendum or otherwise, unless we change this system some learned judge may decide that it is not in accordance with his interpretation of law and another referendum will be necessary.

I am not arguing for or against this case. I am arguing the merits of what should be. Is it right that any one person removed from this House, removed from the people of Ireland, should, because of the traditional licence given to his or her profession, give a judgment which affects everybody and which is not in accordance with the wish or the will of the people who introduced the law? Maybe there are aspects of this matter that are not obvious to me. I do not claim to have any more than the normal quota of reason or intelligence enjoyed by anyone else but in all conscience, I must argue — here I repeat what has been said before: that the finger should not be pointed at the vast majority of the practitioners — against the system that allows practitioners do what they do, allows them demand the kind of financial rewards they are demanding. We are told that it is a question of supply and demand. The Attorney General had no one else he thought could do the job.

However, I know of countless numbers of young people who, if ten years ago had been given the opportunity to practice law, would have been available and would have been happy to do it for much less than the £1,750 per day ad infinitum, for the attitude towards them of, “take any day you like, certify your work and we accept it”. We can no longer in safety accept that system. We must apply ourselves with all possible haste to examining the essence of the system, if it has any essence at all. We know, from talking to members of the Garda or to people in the news media who go to the courts, that in some cases the system has become a joke, a very expensive joke, a very unfair joke. That is an extraordinary admission. To me it is not entertainment. It should not be humourous, funny or burlesque. It is a very important business. There are huge resources left aside so that right can be done, and we should remember that rather than attending to the cosmetics.

If a boy or girl from my constituency applies to enter the profession he or she has to compete against the sons and daughters of practitioners, people who have been part of the profession for many years. If someone wants to lodge an appeal because for certain reasons he or she was not accepted, the appeal has to be made to the Incorporated Law Society or a High Court judge. Why is there not a neutral person to whom an appeal can be made, as is the procedure in other instances? That is especially important in matters such as an appeal against a decision relating to entry to the profession; matters that are not legal. I think it was Deputy Shatter who made the point that one could perhaps justify the system of not bringing in a non-legal person to adjudicate on some legal matter. I can accept that. However, in the matter of judging whether a young person has the character or the educational qualifications to be apprenticed as a solicitor, I consider that such people as representatives of this House, for example, people such as the Cathaoirleach, Deputy Doyle or Minister of State O'Dea, albeit he has the professional qualification, should be the adjudicators. In other words, that people who are neutral should be the ones to adjudicate. That is an aspect on which I shall endeavour to table an amendment to the Bill when the time comes. Is there any other area — apart from what I mentioned before in relation to public representatives — in which a person who has been shown to be insensitive to the huge earnings of those great people or who is considered to prejudice someone's interest in his or her capacity to earn another £1,750 per day must make a case to representatives of the professsion who seek and get such an amount? There is no parallel for that procedure in this country or in any other country. The position is similar in relation to the perceived suitability of an apprentice. Is there any other profession, be it in the church, the commercial world or anywhere else, in which someone who feels that he or she has been injured in respect of being rejected as being non suitable has the only court of appeal available to him or her made up of representatives of the profession who made that adjudication?

I hope — as everybody else who presumes to address this great House hopes — that there would be justification in what I say. Before I say something I think it out as best I can and I say it only when absolutely convinced of the merits of what I am saying. I can defend the case I am making. I should hate to be a member of the Incorporated Law Society, I should hate to be a member of the High Court, who could try to convince me of the justice of a position that allowed them to adjudicate on an appeal that has rejected somebody from joining the legal profession. If what is done in this regard is not to protect élitism, nepotism and injustice, I do not know what is.

A Chathaoirligh, tá mé buíoch gur éist tú liom, nár chuir tú isteach orm agus go bhfuair mé an deis roinnt de mo chuid tuairimí a chur os comhair an Tí. Arís agus arís eile, caithfimid smaoineamh ar an eagóir — the injustice that exists where, sight in summary, my daughter, your son, is attacked in public outside by some person who is operating against everything we regard as desirable and when that person, the culprit, is then apprehended my daughter and I, or you and your son, out of your resources, must pay a legal representative to try to establish that the culprit was innocent and the victim was guilty. If that is not a nonsense I do not know where nonsense lies. I think the word "nonsense" should be changed and a more suitable word for the operation found.

Following discussions with our esteemed Minister of State and his Minister, I shall look to table an amendment to the modus operandi of admitting or rejecting aspirants to the profession. I will avail of every opportunity to vacate the office I hold in this House to address myself to this issue — and this is the third occasion I will have done so — because I contend there is nothing in greater need of redress, of revolutionising, of changing root and branch than the legal system that operates in this country and that operates in England. It does not operate to the same degree in Scotland and does not operate under the Napoleonic code. While not contending that is perfect, it does have greater affinity with national justice and with reason than that which operates here. I am talking about the profession itself, the practice and the cost of it, from which I must dissociate myself at every opportunity given me.

Arís, mo bhuíochas, a Chathaoirligh, agus tá súil agam go nglacfaidh an Teach go bhfuil méid áirithe nó beagán, ar a laghad, den fhírinne san méid atá ráite agam.

First, I should like to wish the Minister of State, Deputy O'Dea, well in his new portfolio.

I want to say something about two issues raised by Deputy Tunney who has just spoken. First, the high fees paid certain members of the legal profession. I concur with his remarks in this respect in that I find it difficult to understand how such fees are calculated or earned, especially at a time of such high unemployment in the State generally.

The second matter to which I want to refer is the recent decision of the Supreme Court. As Deputy Tunney said, we all agonised when a member of the Supreme Court in an obiter dictum advanced as his view that there was no need for any amendment, that the Constitution itself protected the life of the unborn. The same Lordship, in his judgment, was very critical of us legislators in recent times for not having introduced legislation after the relevant referendum had been put to the electorate and accepted, even though another eminent High Court judge said there was no scope for such legislation. I find it difficult to understand how some legal decisions are reached.

The provisions of the Bill before the House contain extensive changes in the law relating to solicitors, which branch of the legal profession has played a very important part in the social life of our people. People often speak of their family solicitor in the same manner as they speak of their family doctor. Practising solicitors will get to know a particular family and attend to their legal needs. Indeed it is usual for a solicitor, or firm of solicitors, to handle the legal business of a family for generations. It is vital that a family can communicate confidentially with a professional in the knowledge that high standards will be adhered to. Solicitors have a very special relationship with their client and frequently have control over their clients' moneys.

This Bill is a major reforming measure and has been introduced to better protect the interests of clients and solicitors and to promote high standards within the legal profession because the very nature of a solicitor's work often involves handling large amounts of clients money. Regrettably, on rare occasions in relation to the numbers of solicitors practising, this has led to dishonesty on the part of a small number of solicitors, causing serious financial problems for their clients and sometimes rendering them almost bankrupt. Therefore, one may well argue that adequate safeguards are essential to protect the interests of clients and solicitors alike. It is my clear understanding that the vast majority of solicitors are hard working, honest professionals. If some moneys have been misappropriated by some solicitors, that amount, in proportion to the overall amount handled by them as a body, is very small. In addition, the numbers of solicitors found to have been involved in dishonest practice is miniscule compared with the total numbers practising here.

I must concur with the former Minister for Justice when he said it is in the interests both of the public and the profession that adequate statutory provisions be put in place to prevent as far as possible acts of dishonesty on the part of any member of the profession and to deal speedily and effectively with such incidents as and when they arise. The former Minister for Justice, presenting this Bill to the House, said he was conscious of the need to strike a balance between the demand for legislation affording adequate protection to members of the public needing to consult and instruct solicitors while at the same time providing a framework that would afford members of the solicitors profession maximum latitude to provide the range of services the public require.

One must question whether the Minister has struck that balance. Looking at the Bill in its entirety I am struck by the extent to which the legal profession is being held out as a body of people against whom a range of sanctions is needed. I shall attempt to deal with some of these sanctions. For example, section 8 deals with the power of the Incorporated Law Society to impose sanctions for inadequate services. That raises two questions. The first is whether "inadequate" should include alleged errors of judgment on the part of a solicitor while acting as an advocate in court. I understand that barristers are protected against actions brought for negligence in the course of their carrying out their duties as advocates. Therefore it would seem only appropriate that similar protection be afforded solicitors, particularly since they have been criticised for their failure to avail of their right to act as advocates in the higher courts.

If solicitors are liable to be reprimanded or penalised by the Incorporated Law Society arising out of the manner in which they act as advocates, I predict that will restrict even more the extent to which solicitors will act as advocates in the Circuit Court, the High Court and the Supreme Court. On the other hand, if it is intended that the Incorporated Law Society would not be expected to entertain complaints of this kind, which would not be sustainable in the case of barristers, then it would appear to be fair both to solicitors and the Incorporated Law Society that this Bill should include a provision that a solicitor should not be subjected to any sanctions for complaints arising out of his work as an advocate. Such provision would eliminate unnecessary complaints being submitted to the Incorporated Law Society and, in turn, protect the Incorporated Law Society from complaints about their decisions in that regard.

The Incorporated Law Society are required to determine whether a complaint has been well founded and, among other things, decide to what extent a solicitor's costs should be reduced, whereas at present the matter of costs is determined by the taxing of a bill of costs. It would seem only reasonable that such procedure be followed on a finding by the Incorporated Law Society of inadequacy, when all that would be required would be the presentation of the findings of the Incorporated Law Society to the taxing master who would take them into account in assessing the fees properly payable to the solicitor. It would appear that the proposal in section 8 is that the Incorporated Law Society will determine the amount of costs payable to a solicitor and, if taxation subsequently arises, the bill to be taxed will be limited to the sum fixed by the society. This means that, first, a client can have his or her bill reduced by the Incorporated Law Society and may seek to have it further reduced by the taxing master. On the other hand, the solicitor, on having his bill reduced by the Incorporated Law Society, is not given the liberty of having his bill reviewed by the taxing master. Therefore a client is given two bites of the cherry whereas the solicitor is not.

In effect, this means that a client is afforded a right of appeal to the taxing master whereas the solicitor is not afforded such right; he is forced to appeal to the High Court to decide something which should have been decided in the first instance by the taxing master. This appears to me to represent an altogether unnecessary lack of natural justice, which could be avoided either by having such bill determined by the taxing master rather than by the Incorporated Law Society or, alternatively, allowing the full bill to be referred to the taxing master if the solicitor or client require the bill to be taxed following a determination by the Incorporated Law Society.

Section 13 provides that the Law Society may require an inadequate solicitor or a solicitor who overcharges to contribute up to £1,000 to the Law Society towards the cost of investigating a complaint. Such a contribution is not mandatory and it is clearly meant to apply to cases in which a solicitor is blatantly or recklessly at fault as opposed to borderline cases. This raises questions about what will happen when a client proves to the Law Society that he has a genuine complaint which should be investigated but it is ultimately found that the complaint is unfounded or even vexatious. Should such a person not also be required to make some contribution towards the cost of the investigation? Perhaps the complainant could pay a deposit when making the complaint which could be refunded if the complaint is found to be genuine. While vexatious or unfounded complaints may not be made very often it would seem prudent to provide for some disincentive in respect of such complaints. In any case, there seems to be something wrong with a provision which will give the Law Society the possibility of financial benefit if they hold against a solicitor but no possibility of financial benefit if they hold against the person making the complaint.

Section 15 provides that the Minister may require the Law Society to establish, maintain and fund a scheme for the examination and investigation by an independent adjudicator of any written allegation or complaint by a member of the public against the society concerning their handling of a complaint made to them by any person about a solicitor. This independent adjudicator is colloquially known as a legal Ombudsman. His function is to investigate complaints against the Law Society. It seems a little odd that the society should be responsible for appointing the person who will investigate complaints against them. The only limitations placed on the appointment is that the Minister's consent has to be obtained and that the person appointed should not be a solicitor or barrister.

If the legal Ombudsman is to be independent in the exercise of his functions he should also be seen to be independent. We should ensure, as a first step towards achieving this, that he is not appointed by the Law Society, a society he will investigate. If the adjudicator is paid by the society obviously the public will look with a jaundiced eye on any decisions made in favour of them. As a consequence, the adjudicator may be inclined to be unduly critical of the society in order to show he is not influenced by the fact that he has been appointed and paid by them. In any event, the public, the society and the adjudicator will not be well served by the provisions in this section.

The adjudicator should be appointed by the Minister and paid by the State. I do not see why he cannot be appointed as an assistant in the office of the Ombudsman, Mr. Michael Mills, with special responsibility for the Law Society. The Ombudsman could do with another assistant in his office. As it seems that the adjudicator will not work full-time he should be given additional duties as an assistant to the official Ombudsman.

Section 34 provides that a solicitor shall not, without the written consent of the Law Society, for a prescribed period following his admission as a solicitor carry on business as a sole practitioner except in partnership with a solicitor who has been in continuous practice as a solicitor for more than three years. This poses the question: what will happen to a solicitor who is not allowed to practise on his own and who cannot get employment in a solicitor's office because the market is over-supplied with solicitors? Will he have to take his place on the dole queue or is it another anti-employment scheme to encourage emigration? Is it proper or constitutional to deprive these people of the opportunity to work, particularly having regard to the fact that sections 73 and 74 provide that some solicitor services can be provided by people who are not qualified solicitors?

Section 63 (2) and (5) make it clear that not only are solicitors not to be prohibited from advertising their fees but they cannot be stopped from quoting fees which are lower than the standard scale applied. Presumably scaled fees were introduced originally to ensure there would be no price war, which would have been regarded as unethical, between solicitors. If this prohibition is removed a price war between solicitors would be unseemly and unedifying in the eyes of the public, in the same way as a price war between dentists would be regarded as unprofessional. The practice of fee cutting as a form of competition between solicitors will mean that solicitors' overheads will have to be cut. This will lead first to a reduction in the number of staff employed at the lower levels, the cutting of corners by reducing expenditure, not only on specialist services but also on basic office equipment, library expenditure and so on. This will lead ultimately to an inferior service to the client and an increase in the number of claims against solicitors for negligence or fraud. I should point out that it is not the larger firms who will suffer. The solicitors who will suffer will be those starting off in private practice, when they are finally allowed, under the restrictive provisions in the Bill, to enter the market place. Allowing solicitors to reduce fees in individual cases is one thing but to encourage an advertising war between solicitors based on fees is an ill advised proposal which deserves further consideration.

Section 65 provides that the Law Society, with the agreement of the Minister, may provide for the sharing of fees between a solicitor and a person who is not qualified to practise as a solicitor arising from a partnership or agency agreement between them. This suggests that solicitors will be encouraged to enter into commission or other financial relationships with engineers, doctors, insurance brokers, auctioneers and other professionals. This raises questions about the giving of independent advice by a solicitor to clients. Can such independent advice be given if a solictor has a vested interest in recommending that a client should use a particular service with which he has financial connections? We live in an age where hidden profits are frowned upon and regarded as an abuse of a position of trust, such as that held by a solicitor. This section appears to give legitimacy to such hidden profits and encourage what might be described as less than straight dealings with the public. The Minister, when drawing up the regulations, may find some solution to the obvious scope for abuse contained in this section. He should consider including a provision which would provide that if a partnership or agency agreement is not disclosed to the client then the solicitor's services should be deemed to be inadequate under section 8.

Section 72 (2) provides that a practising barrister or non-practising solicitor may carry out conveyancing work while in the employment of another person. One or two points arise from this provision. Section 51 provides that a solicitor employed by another person in connection with the provision of any legal service shall be deemed to be a practising solicitor and must, accordingly, hold a practising certificate. This would seem to imply that there is no possibility of a non-practising solicitor being employed for legal work by another person. This appears to have been overlooked in section 72 (2) which envisages that a non-practising solicitor may be employed for legal work by another person. If it is the intention that a non-practising solicitor may be employed to carry out conveyancing work without being obliged to take out a practising certificate then this should be specifically stated so that there will be no apparent conflict between the two sections.

Even if this apparent defect is corrected, I would still have reservations about the intention of the section. It would be a little naïve for us to think that a non-practising solicitor who is allowed to carry out conveyancing work while employed by another person will never, while in such employment, be asked to give his opinion on legal matters which are not related to conveyancing or to assist in drafting a contract which is not related to conveyancing. This section is totally unrealistic in this respect. It is also notable that this subsection envisages a non-practising solicitor being allowed to carry out conveyancing work without the aid of a practising solicitor who would, presumably, be more familiar with current practice and legislation and subsequent pitfalls. Under section 34 of the Bill a qualified practising solicitor is not allowed to carry out such work as a sole practitioner although he may have just completed a course on all the recent developments in the field and, no doubt, is more in touch with the subject than a non-practising solicitor. Such a provision might be worthy of Alice in Wonderland but it is not appropriate to a serious Bill of this nature which has consequences for the legal profession and the general public.

Section 73 provides for the preparation of wills and the administration of estates by banks and trust corporations. It is well established in the legal profession that solicitors make more money from wills which they do not prepare than from wills which they draw up. The reason, of course, is that a will drawn up by an unqualified person is likley to be defective and may well finish up being challenged or interpreted in the courts. Accordingly, this provision might be in the interests of the legal profession but it is not in the interests of the public. It should be reconsidered, to provide that such work should be carried out by solicitors in the employment of the banks or trust corporations. The same comments apply to the administration of estates, this area is becoming more complex as time goes by. It seems peculiar that the Bill should ignore the question of the protection of the public in this respect. Having gone to so much trouble to make other provision for the protection of solictiors' clients, perhaps the subtle message in the Bill is that if you want protection you deal with solictors and that if you deal with anyone else you do not get any protection. If this is the intention of the Bill it should be spelled our clearly.

Section 74 provides for banks and building societies to revive conveyancing services, apparently without the aid of a solicitor, practising or not. It has frequently been said that the biggest investment a person makes is the purchase of a house. Solicitors have built up years of professional expertise in this field and it will become more complex with the passing of time. It is difficult to understand why unqualified people should be let loose on the public as if there was nothing more complicated involved than selling tins of beans across a counter. It is obvious, even to a layman, that the landlord and tenant law, contracts, stamp duties and stamp law are all involved in conveyancing and the buying and selling of property. It seems ludicrous to suggest that the public interest will be best served by having such matters dealt with by an unqualified person.

Section 74 (4) refers to the maximum rate of fees which can be charged by banks while section 63 concentrates on permitting solicitors to charge less than the scale fee. It is envisaged that bank charges must be controlled while solicitors are expected to engage in a cut-price war. Why?

Section 74 (12) states that a bank providing conveyancing services shall maintain separate accounting records and prepare accounts in respect of each year showing the cost to the bank of providing the services ... and shall so provide and charge for the services that the income from the provision of the services is no less than sufficient to meet all costs properly attributable to the provision of the services taking one year with another. Presumably, that is an effort to level the playing pitch and to make banks act in the same way as solicitors. It is not clear if a proportion of the bank's advertising expenses is effectively included in such charges, particularly advertising referring to conveyancing services, directly or indirectly. Inviting people to apply for loans to buy houses might not, strictly speaking, be advertising conveyancing services but it is obvious that if a customer talks about a house loan it will be suggested that he or she uses the services of the bank in connection with the conveyancing aspect of the transaction. While it would not be admitted, there would clearly be an implication that if you use a bank's conveyancing service your chances of a loan will be greatly improved. In those circumstances any suggestion of a level playing field is a non-starter.

The advertising aspect will in any case be difficult to control as advertising will refer to a multitude of services, not just to conveyancing. It will be difficult to apportion it precisely. I hope the Minister will take into account some of the ideas I put forward when he replies to Second Stage of the Bill. I welcome the fact that a special committee of the House will deal with Commitee Stage of this Bill. I have always felt that Dáil Éireann should have more committees to deal with legislation as it is a far more effective way of meeting the needs of Bills on Committee Stage.

In my contribution I hope I will not go over well ploughed ground. I know that many of the legal practitioners in this House are aware of the shortcomings of the present procedures and the advantages to be gained from reform. They are able to give a legal interpretation of the Bill but Deputy Tunney, as a layman, made a great contribution. Of course, lay people see the Bill from a different perspective and might be able to take a broader view because it does not impinge on their training and professionalism which, naturally, conditions everybody. Solicitors are rightly defending their position and I will preface my remarks by saying that the majority of solicitors and practitioners of law have a tremendous commitment to their work. They perform an incredibly important task on behalf of their clients in extraordinarily sensitive — and indeed survival — cases because we place our confidence in them. They will present the case on our behalf and, I hope, win it or at least demand justice on our behalf. In that regard I know that the Minister of State at the Department of Justice, Deputy O'Dea, listened intently to Deputy Tunney's contribution.

I suppose we all feel that there is still a very long tradition of almost anachronism and ritual within the legal profession which sometimes seems to get in the way of practical, everyday circumstances. As in the case of this House, we are also impatient with the procedures of the law. While I very much welcome the reforms in the Bill, the implementation and interpretation of justice — all the practitioners of law will agree, not just the clients — the reform of the courts, their improvement and refurbishment must be a continuation of the reforms started in this Bill.

It may appear to the majority of the population that solicitors demand their fees before the consultation but I am aware that many solicitors, particularly those engaged in an office practice do a great deal of almost free civil legal aid. They use some of the fees from their more affluent clients to subsidise "no hope" cases, as Deputy Shatter described them this morning, or "risk cases" where there is a real case in justice but where one runs a real risk of the judgment going against the client. I believe if this practice, which goes on in many, many offices throughout the country, did not obtain there would be even greater denial of justice to people who have not got the money or the confidence to take a case when justice calls out for the case to be taken. It is important that we acknowledge this work and I pay tribute to the many solicitors who in a very hidden way carry out a subsidised practice. I am very aware of this because of the number of women who have talked to me about the family law cases, home protection or personal protection cases which have been taken on in a very compassionate way by solicitors because we do not have a network of qualified solicitors operating a network of centres throughout the country.

While Members would have huge criticism of any deviant or unjust behaviour on the part of legal practitioners, and would take a very strong view on such behaviour, we must acknowledge the good work done by the profession. It must be remembered that the legal profession, no more than the medical profession, have great obligations to their clients, who depend on their skills and advice. Clients may be very vulnerable and how the lawyers behaves may affect how they perceive justice and how they will continue to live the rest of their lives. They will perceive justice and society by the way they have been treated under the law. This places a very big responsibility on the legal profession. As the Hippocratic oath is supposed to motivate and commit all those in the medical profession, I would like to think that the legal profession are committed to at least attempting to wrest justice from the jaws of what sometimes appear to be the negative animal that is the court system. This must of itself often lead to great frustration such as the frustration we as legislators suffer sometimes because of the lack of progress that can be made here. Many legal practitioners suffer the same sense of frustration because of the lack of reform of the law. That is why this Bill is so welcome.

I join with my colleagues on every side of the House when we will again welcome one of the great initiatives of this House, the setting up of special committees on an all-party basis to deal in depth with complex legislation which has great implications for the public and in respect of which anomalies could have very serious consequences. As Deputy Tunney in his passionate contribution said, the law can sometimes seem to be an ass and almost deny the very motivation for which it was set up. That is all the more reason that every time we attempt to reform the law it must be simplified and clarified and the language must be such that the normal man or woman in the street is aware that this is for them and about them. We must ensure that it is not elitist jargon for a cosy few in the law library wearing antiquated clothes and who may sometimes make esoteric decisions that the ordinary citizen cannot even begin to understand. The sooner we strip the procedures of law to the bone and make it the idealistic profession that it should be, the better.

I may be covering old ground in some of the points I will be making but the Minister and his advisers may grasp the importance that all sides of the House attach to certain areas that we bring to notice time and again. I believe the enactment of this Bill will be welcomed by solicitors. It must be tremendously embarrassing and annoying to them when one of their colleagues behaves outrageously and causes great hardship to others. This undermines the profession and creates a total lack of confidence in it. There have been cases recently where large sums of money have been misappropriated by eloping lawyers, who are not here to answer to their peers or to their clients. Their behaviour not only undermines the profession but shocks the community. The citizens are asked to abide by the law but when the rules are broken by the practitioners it is very damaging to the profession. For that reason all the legal penalties should be available in such cases. I do not think I would go as far as Deputy Roche when he suggested that not alone should action be taken against legal practitioners who break the rules or engage in shoddy work to the extent that they are found guilty of malpractise, but that their names should be published. In this country we seem to have a horror of names being published in some instances but what we are trying to say, and Deputy Roche is quite right when he points out that other people who break the law and are brought before the courts are not only punished by the law but may have their case published. In think that in cases where the behaviour complained of is excessive this may need to be done so that the profession are not perceived as an in-group who can look after their own even when they offend at a very high level and so that they are seen to be subject to the same rigours of the law as are people in other professions when they break the law.

We place great confidence in the legal profession not only in terms of confidentiality but also in terms, perhaps of investing a great part of our income. For that reason we need to look very seriously at breaches because the profession must not only be seen to be honourable but to be acting honourably as well.

With regard to the introduction of an independent adjudicator to consider complaints about the Incorporated Law Society's handling of complaints against solicitors, I do not need to remind the House of the various anecdotes, stories and frustrations in this regard and the real sense of injustice which people have experienced down through the years by feeling that their solicitor or even their barrister has betrayed them. This can have very serious consequences, but if they believe that the Law Society that is supposed to adjudicate and administer justice among their own is not seen to be doing that then it adds not merely a layer of injustice but a layer of cynicism and a lack of confidence in the whole profession which everybody in the profession should take very seriously.

I would ask, as have other Deputies, if it might be more efficient to have an ombudsman for legal services, which might be part of a larger ombudsman's office — as suggested by Deputy Doyle — or an independent agency? It is very difficult for the law society to be objective and independent in so far as they administer the admission, training and setting of professional standards of their own members and also protect them against unfair criticism or allegations of malpractice. It is almost schizophrenic then to expect the same society to be as motivated, as objective and as committed to the protection of the client. There is a public perception that that is a conflict which might lead them not to have the same confidence in an adjudicator within the society, independent and all as that adjudicator might be, who has to rely on the advice of members of the society rather than the advice of professionals outside the parameters of the society. That is something we need to look at. This is a very acceptable and desirable reform and if we are to put it in place let us do so as favourably and as positively as possible.

I welcome the fact that lay persons would be involved in whatever disciplinary committee would be examining these allegations of professional misconduct because, as I said in the earlier part of my speech, lay people have a contribution to make which could be clouded by professionals. In our own professions sometimes we do not see the wood for the trees.

The issue of public confidence was referred to by Deputy Tunney. The citizens of the State are the recipients of justice and they should have some contribution to make in regard to policing that justice. It is important that we would have lay persons on that committee. May I add, as I never let an opportunity slip, that when such lay persons are being appointed to the disciplinary committee, or the other agency within the Ombudsman's office, we should not think in male terms alone. Because of the lack of legal representation and protection for women in this country there is a different experience and a powerlessness to be reflected by women members of such a committee than would be the case if it were an all-male forum. I do not make this request for sexist or quota reasons. We are making a valid point, as women, particularly as regards how the law affects women in this country and indeed in all other countries.

It is of the utmost importance that we set up a panel of solicitors who would be willing to take action against members of their own profession. One does not know how exaggerated this is. With regard to the legal and medical professions there is a perception in this country — and in other countries as well — that no matter how unfairly a patient or a client has been treated, there will be a coming together of the profession in an old boys' network to defend, to justify and to ensure that that profession is not brought into disrepute. In this context we are talking about people who are vulnerable and who place their trust — and their lives in the case of the medical profession — in the skills and advice of practitioners both in the legal and medical professions. The least we can expect is that a case can be brought where there is not a ganging up of the whole profession to ensure that somebody from the outside — a mere patient or a mere client — does not break through their well heeled and well protected circle. In justice, we need to have an independent panel of solicitors who are prepared to take civil actions for persons against other solicitors. That is one of the most important reforms introduced. We must remember it would be of tremendous help to solicitors because — as in other professions — it is neither desirable nor popular to be seen to take an action against one of your own peer group. There is a tremendous sense of group identity and loyalty which we all experience. We must ensure that we build in the right supports and protection for practitioners who are willing to take action against somebody who has offended and, perhaps, broken the rules and laws of the profession.

The explanatory memorandum shows the extraordinary depth and breadth of what the Bill is taking on. Sections 73 and 74 deal with the granting of power to banks and trust corporations to provide conveyancing and probate services. I do not wish to go over all the ground covered by Deputy Shatter, Deputy Lenihan and many others but it is ironic at a time when we are insisting that criteria and regulations, including penalties, be introduced to cover solicitors and legal practitioners such as a ceiling on fees, that the banks are being allowed to provide services which form a large part of the work of the legal profession. I hope most members of the public will at some stage have to contact a solicitor in connection with such services as conveyancing work in connection with a mortgage, advice on making a will if they have goods and chattels and the taking out of probate. I am not referring to large land owners who regard conveyancing work and the taking out of probate as a business matter but rather the people who will never have to contact a solicitor except in connection with the services I mentioned.

In relation to the proposal to permit banks carry out conveyancing and probate work it must be pointed out that the banks act as a cartel. There is, therefore, a danger in cases where a person asks the bank in which they have placed their wealth to do conveyancing work in connection with a mortgage — a solicitor is not interested in how a person conducts their life — that the bank may take action against the person with regard to the mortgage or the deeds of the house.

The banks may be outraged that I should consider such a thing may happen, but profits are of paramount importance to such groups. People are always vulnerable, unless they are very wealthy, in regard to the services provided by the banks. It is not in keeping with the spirit of the Bill to allow those who enjoy this monopoly provide conveyancing services having regard to the fact that they will not cash a cheque without first charging an exorbitant fee. I cannot see the sense in, on the one hand, laying down standards and criteria in regard to fees for the legal profession and, on the other, allowing the banks to provide these services even though they charge service charges. I do not believe this will be acceptable.

However, I understand the motivation behind this move and do not want to give the impression that all services, in particular those which would not be considered complicated or legalistic, should be provided only by skilled legal practitioners. I only wish there was a more amiable and understanding agency we could hand them to rather than the banks. I do not think that is the answer.

I would like to refer to a matter I consider to be important, the question of admission to the legal profession as a solicitor. There is a perception that the criteria used in assessing applicants for apprenticeship to the legal profession are tightly controlled and that entry is confined to a small number of people, preferably those, as others have said, whose father or grandfather before them were members of the legal profession.

While this practice is both elitist and discriminatory it is also damaging because if people of the same background are accepted, generation after generation, and are on the inside track we will end up with people who think alike. Certainly, they will have no insight, understanding or experience of the problems facing the people they will have to deal with, particularly if they are appointed judges and must hand down penalties.

We have, therefore, to encourage young people — I would actively encourage them to do this even if it means discriminating positively in their favour — who come from other backgrounds to apply to join the legal profession. If we manage to break down this barrier, as Deputy Tunney said, there will be an infusion of new blood and new thinking into the profession. The practice of law might be made more sensible by permitting people who work at the coalface, who are streetwise and know what is happening to enter the profession. The legal profession need this and would be all the better for it.

I am concerned so about the apprenticeship system. The standards are laid down by the Law Society and it is very easy to control the membership of the profession in that a person must seek an apprenticeship in an established firm of solicitors. This is a powerful way of controlling not only the membership but who may become a member of the profession.

I would also like to see the rights of apprentices recognised by the legal profession which is not known for its good working conditions. Apprentices are used and exploited and are told that they should be grateful because when they become practitioners they will in turn be able to treat apprentices in the way they were treated. I am not saying that this is the case in all law firms but, putting it at its kindest, there is a perception, based on the experience of those who have gone through this system, that the legal profession would not win an "employer of the year" competition. I demand that the profession set an example.

I am glad that citizens from outside this State who wish to have their qualifications registered and recognised here or who wish to come here to qualify do not have to have a qualification in the Irish language. In 1992 in an area where the use of incredibly subtle and certain language that must be so accurate is required I believe there are very few practitioners who would pass the Irish test but would feel competent to represent a client in an important case totally through Irish. There are very many people who have a love and knowledge of Irish who would be enthused at the idea of a panel of Irish speaking solicitors, barristers and journalists for those citizens who have every right to demand that their cases be heard through Irish and be represented fully. However, we must be practical and realistic. For most of the people of this country and for most of the practitioners of law, it is an absolute cosmetic exercise. I feel very strongly about this because I know that some of the brightest and most highly skilled remedial teachers of emotionally handicapped children and so on are not recognised in this country because they do not have this compulsory Irish. I know this is a debate for the education paper but, while we are looking at admission to the legal profession, let us be practical and do something about that. We should not overload our Irish students. However, for those who wish to work through Irish, and I know we need a certain number of them, I support them all the way. They should be acknowledged and rewarded and be on a special panel, and the rest should be realistically looked at.

We should also look at the whole area of the standard of work within solicitors' offices. It is very skilled work. It is incredibly pressured at times. While they may not be legally qualified themselves, the staff in solicitors' offices who provide the service, who produce the incredible documentation that is required of them and the accuracy of which is so vital, should be rewarded and acknowledged as well. Some of the most highly skilled staff who work under such pressure with the most demanding of conditions can be very badly paid. What they do requires skill and a tremendous knowledge of what they are processing. Yet the gap between what they are paid and what is paid to the qualified solicitor making the case is immense. I would like to see far more democracy and a greater recognition of the legally unqualified staff who are highly qualified in other skills. I would like to see them paid in a way that reflects the really valuable work they do.

Finally, how could I possibly talk about solicitors and legal representation and hopefully justice for all without placing on record the demand there is for free civil legal aid. I would like to see at least one law centre in every principal country town and private practitioners on contract to deal with the workload. We should give statutory authority to the free legal aid board itself. The fact that we have not done so is a measure of our lack of commitment as legislators to the free legal aid system. Perhaps the Minister of State, Deputy O'Dea, will be the person to introduce that.

In the interests of democracy and fair play and the model of justice we would like to see reflected by the legal profession, there should be a look at the two branches of the profession. There may have been a time when the type of elitism that exists was acceptable. Now it is not practical or acceptable and I believe the majority of the legal profession themselves would like to see that whole area looked at with a view to being far more flexible. I was amazed to hear Deputy Shatter say here today that a solicitor, no matter how qualified, expert and experienced cannot be appointed to the higher courts. They could be some of the most qualified people, the most broadly experienced, and that is the kind of expertise we need on the bench. While we are looking at reform I would like to look at that whole area. Deputy Tunney called for a revolution from the centre in regard to the basics of justice and criminal law. I would ask for a revolution from the centre regarding training, qualification, admission and reward for everybody who works within the legal profession. We should get rid of the elitism and the cosy little groupings that seems to engage more in keeping people out than in admitting people so that out of this first piece of reform will come a raft of reform. I would like to believe that that will be motivated and energised from within the legal profession itself.

This legislation is an attempt to modernise the legal profession, to make it more competitive and responsive. The legal profession in this House is probably the one profession that transcends political barriers. About 95 per cent of the legal profession are decent, honourable hard working people who do their utmost and give an excellent service to the community. I will come back to that point later.

Anybody who is feeling ill and wants to visit a consultant or a local GP will go to the person they know will do the best job. That brings me to the question of fees. Legal fees should not necessarily be applied to a scale but should take into account the degree of professional competence. Perhaps everybody likes to feel that they are as highly qualified as the next person and as entitled as the most qualified to charge the highest fee, and I will say more about that later. A number of matters were raised in this House recently regarding the legal profession and these require attention. Questions have been raised as to, for instance, costs. I cannot understand why fees should be based on the amount of money involved by way of compensation etc. I know how the legal profession justify it, but I cannot understand it. Whether the sum of money or damages involved is £100 or £1 million, right should assert itself and it should be the undying wish of all concerned to achieve the objective of ensuring that right prevails.

Debate adjourned.
The Dáil adjourned at 4 p.m. until 2.30 p.m. on Tuesday, 7 April 1992.