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.