From listening to the comments of previous speakers one would think that the Bill should deal not only with the role of the Incorporated Law Society but the whole court system. If that were to be the case I envisage it would run to 300 sections.
This Bill is solely concerned with the profession of solicitors. I urge the Minister, and his officials, to take on board the comments of Opposition spokespersons, and particularly the points raised by the Bar Council and the Incorporated Law Society in their joint submission to the Minister for Justice in September 1993. It refers to many aspects that concern solictors in trying to enhance the service they deliver to the public. The topics covered in the submission include the role and importance of the court service in the administration of justice; the principal shortcomings of the existing service; delays in court; courthouse accommodation and facilities; family law cases; rationalisation of courthouse venues; information technology; pleading systems and pre-trial procedures in the High Court; the listing system in the High Court; the need for additional resources; the management of the court services and the judicial commission. That gives a flavour of how broad the judicial system is. Many of the comments made would more properly relate to legislation the Minister is introducing in response to the many requests in that joint submission.
The explanatory memorandum states:
The purpose of the Bill is to effect a major reform of the law relating to solicitors. New procedures for dealing with complaints against solicitors, and increases in the Law Society's powers to intervene in solictor's practices and in the High Court's supervisory functions over the profession will give greater protection to solicitors' clients.
An impression has been created that the Law Society should not support the Bill but why should not the Law Society support the updating of outdated legislation? The Law Society, as the body governing the profession, is unique in that it is obliged to maintain a compensation fund, unlike many other bodies that represent professions such as architects or engineers. The experience of the Law Society is that existing legislation does not meet modern day needs and it lobbied effectively to have the control which it exercises strengthened so that clients and their property are fully protected. During its investigation it found that its hands were tied in certain respects in admonishing and penalising solicitors who had committed misdemeanours. In the past 20 years the Law Society policed the profession because this function was entrusted to it. It has discharged this role fearlessly. It is conscious of the poor public image of the profession.
I do not know of any profession where the organisational body has moved against its own members and taken away their means of livelihood. Every year several solicitors are debarred and many others are penalised. This has to be done as the compensation fund has to be protected. The impression created by some Members is that the solicitors' profession is a cosy club for gentlemen. While that may have been the case 20 years ago, the profession has changed since then. There has been a substantial increase in the number of practising solicitors and far from what Members suggest a substantial number of solicitors entering the profession come from a non-legal background. Over 80 per cent of the 4,200 practicising solicitors are in one and two man practices which in the main were established in the past 20 years. A very high percentage of these solicitors have a non-legal background and entered the profession in spite of obstacles in securing an apprenticeship and in establishing themselves in practice. It is not the easy ride that Deputy Gilmore has tried to convey. I have found the comfort of being a TD and receiving a cheque through the PAYE system at the end of the month a great deal more consoling than being a solicitor in the one man practice I established in 1978.
I would no longer describe law as a profession but as a business where one takes risks as in any other business.
The outlay in the first few years is considerably greater than income but solicitors are increasingly taking the risk. While I am not here to defend them I cannot allow sweeping statements to be made tarnishing all solicitors with the one brush as a bunch of rogues and villains. Most members of the profession are honourable and want to provide a competent and efficient legal service. Fortunately this is recognised by their clients.
While the profession may not support certain provisions, the Bill should make a contribution to enhancing the image, status and reputation of the profession which provides a high quality legal service which is client orientated and represents good value for money. The profession has changed. The number of solicitors has increased dramatically and now stands at an all time high of 4,200. They are providing employment for approximately 16,000 secretarial and clerical staff.
Some of the tasks which were traditionally carried out by solicitors are now also carried out by accountancy firms, particularly the provision of tax advice and advice on the formation of companies. As a result of increased competition, greater public awareness of civil remedies and the increased number of claims the profession is now much more business orientated.
The Law Society has also changed to meet the challenges being faced by the profession. Twenty years ago there was a perception that it was a cosy gentleman's club, the rules of which were drafted solely for the benefit of its members, but this has changed radically and the society is now making a conscious effort to be more transparent in its dealings with the public and the media.
This is comprehensive legislation and I welcome most of the new provisions contained in it, particularly section 8 under which the Law Society will have the power to impose sanctions for inadequate services. This is long overdue as the Law Society was handicapped in investigating cases of misconduct. It has to be acknowledged that a small number of solicitors provided inadequate services. I also welcome the additional powers given to the Law Society in section 9 to impose sanctions for charging excessive fees. Despite increased competition advantage was taken of clients and excessive fees charged. I am pleased that the Law Society will have a role to play in investigating cases where it is alleged excessive fees have been charged. It is also welcome that the person being investigated will have to meet the costs of the Law Society in investigating the case up to a level of £1,000.
I welcome the establishment under section 15 of the office of the independent adjudicator. While the Law Society may not support this provision as the costs of the office will have to be borne by the society, the independent adjudicator will have an important supervisory role to play. This should restore the confidence of the public in the investigation of complaints. There is a perception because complaints are investigated by members of the Law Society that they will not be fully investigated. Reference has been made to the difficulty encountered in getting one solicitor to sue another. This is an innovative provision and should be welcomed. It should lead to greater transparency and openness.
I welcome section 16 under which up to five lay people may be appointed to the disciplinary tribunal. Many of these provisions have already been implemented by the Law Society. For instance, there are two lay members on its disciplinary committee to ensure complaints are investigated properly and fully.
I welcome section 26 under which the Law Society may make regulations requiring professional indemnity insurance. Ninety-nine per cent of solicitors have this insurance cover, which is mandatory if a solicitor handles building society loans. This is a valued protection. This adds to the running costs of a solicitor's office which are increasing and have to be recovered by way of fees.
The rules which apply when a sole practitioner ceases to practice and under which their accounts are frozen should tighten the law. Because sole practitioners account for 57 per cent of practices it is right and proper that these rules are being updated to ensure that clients will continue to be protected if a solicitor dies or ceases to practice.
Section 68 relates to charges to clients for services rendered by solicitors. In future a solicitor will have to provide in writing the particulars of the actual charges or, where this is not possible, an estimate, and where neither is possible the basis on which the charges are to be made. Where the legal service involves contentious business the solicitor will have to notify the client of the circumstances in which he may be obliged to pay costs to any other party and the circumstances in which his liability to meet the charges made by the solicitor will not be fully discharged by the amount of the costs recovered. The practice of acting on the basis that the solicitor will receive a specified percentage or proportion of the award will be prohibited except where it relates to debt collection or liquidated damages. The proposal that a flat fee be charged was opposed by the Law Society on the grounds that it contravened the offence of champerty. That was not supported by the Law Society but it crept in in the case of the solicitor and client fee. Now any solicitor and client fee can only be deducted if there is an agreement in writing, and that written agreement must include an estimate by the solicitor of the costs that might reasonably be recovered on a party basis in the event of the client being successful.