Legal Services Regulation Bill 2011: From the Seanad (Resumed)
The Dáil went into Committee to resume consideration of Seanad amendment No. 1:
Section 1: In page 9, line 19, to delete “sections 85 and 87” and substitute “section 85”.
I want to make a small contribution, although I was not part of the overall debate. The point has been made that the amendments do not cover the cost for ordinary people of accessing the courts, which is one of the key issues the troika instructed the Government to deal with. In 2013, I took a case against the Minister for Finance and was advised that a stenographer was required for the days we were sitting in court, and that the State would pay half the cost. The cost for the stenographer for four days was €11,194.80, approximately €3,000 per day. Such a cost is a major restriction on people taking cases they feel have a constitutional basis. We should examine it. I was asked to pay half the cost of the stenographer, €5,597, which is a lot of money to pay up front and restricts people who do not have money from challenging the courts.
A constituent of mine is raising an issue with the legislation. He found himself in a particular adverse situation through the courts. Earlier, Deputy Shatter mentioned citizens' trust and ability to find justice through the courts or, if they do not find justice in the courts, how it is dealt with. I support Deputy Mac Lochlainn's point on the need for a Bill to implement some sort of mediation and provide somebody who is professionally skilled and qualified to be able to assist people through adverse situations in which they find themselves. My constituent has raised the issue asking the Minister to take into account in the new Bill something he feels is not taken account of, namely, some abuse in the legal system. He feels ombudsmen and gardaí are not fit for the purpose of dealing with all the corruption that is part of the culture in the justice system, and he feels the public is aware of it. My constituent was a victim of insider dealing in the courts whereby a case was staged without being put on the day's list.
He attended the case with a barrister. I am not going to mention any names. A famous name in the courts was appointed for the court in an appeal that was then in the master's court. It was the master himself who asked my constituent to leave the courtroom. I remind the House that he was the appellant. My constituent left the courtroom thinking that all the scandal involved in the case was being put to his opponent - a court insider who never had to attend any of the previous Circuit Court or master's hearings. He feels that crucial decisions were hatched behind his client's back in the courtroom. He feels that the Courts Service official or registrar had to turn a blind eye and ear and that this entirely favoured his opponent and the attempted evictor. This is still going on today.
This is important because it relates to the question of how people access the courts. The judge in this case went on to the Supreme Court. Both the judge and the barrister are retired from the courts now. As a consequence of what happened, my constituent's client is facing the prospect of having his home, where he has lived for 70 years, taken from him. The Property Registration Authority has stonewalled the release of a document that is putting this man's residence of 70 years at risk. He has applied four times to see that document. I have made two such applications, but I have received no response whatsoever. The man in question feels that the document is a fraud because it is based on an obsolete out-of-time will that was made before the Succession Act came into force and has been struck down, in effect, by the option that gives the spouse one third of the estate. The claim that was made in the Circuit Court was blunted and not reflected in the 2003 hearing, of which no record exists. It is very strange that this all happened in a court, but there is no actual record of it.
My constituent finally found the DPP file when an assault was made on his house. There was a break-in. It was not handed over to the DPP. The gardaí were thwarted in their efforts to bring the case. My constituent feels there was a hand behind that action. My constituent finally found that the DPP file never arrived. He feels that all of this corruption reached a new high when his client agreed property tax terms before the deadline in 2013. Before he could pay, he was told that the relative in question had paid it in her own name as the registered owner. The sole purpose of this was to blunt the client's plea of adverse possession after 70 years in the house. At least half of that time was spent as the owner of the house. He thought he had pleaded his case successfully through the courts and the master's court at the time.
I am not sure this is entirely relevant.
Yes, but I think it needs to go on the record.
I ask the Deputy to conclude this point as quickly as possible.
All of this was dissolved by the court case in 2003. How would any of the Minister's reforms address such a debacle and make it impossible for it to occur in the courts and in the justice system again? There is another scandal of loopholes. It seems that in some circumstances, solicitors can put registrations through the Property Registration Authority. My constituent believes that some of these registrations are bogus because they did not go through the courts system properly. He feels that this legislation does not even attempt to deal with anything like this. A mediation Bill would possibly be a good step forward in actually dealing with some of these issues in which people find themselves adversely involved.
I ask the Minister to respond to the Deputies' comments that are relevant to the amendments before the House.
I will make a couple of points in response to the various issues that have emerged today. I would say firstly that there is a public interest in having an independent regulator. This Bill provides for better control of costs. It provides for public complaints to be dealt with in an independent fashion. It provides a roadmap for the opening up of our legal services market. All of that is delivered in this Bill. It is very much about the public interest. Obviously, I have been very concerned to ensure the public interest is served by enabling these legislative proposals to become law.
Multidisciplinary partnerships are in their infancy in other countries. There has been very little coverage of their impact to date. They seem to be operating happily alongside traditional models, but they have raised regulatory issues. Risk will need to be properly managed by the regulatory system. I am not stopping multidisciplinary partnerships. I expect to see them happening in Ireland. However, I believe we should do a proper research project first.
I agree with the points that have been made about mediation and costs. I would like to make an important point about this Bill in that context. I think Deputies Mac Lochlainn and Collins will be particularly interested in this. The Bill provides for informal resolution and mediation on several fronts: in resolving complaints, in settling legal cost disputes, in settling consumer issues such as inadequate service and in settling misconduct issues. It is important that the model provided for in the Bill mirrors and anticipates the mediation Bill and creates a culture of informal resolution. I would say that the mediation Bill is very important. We have not been able to get to it due to the heavy legislative workload of the Department of Justice and Equality. It is almost ready for publication.
It is very important that we move ahead in establishing this Bill because it provides for significant independent regulation of legal services and includes a full suite of modern regulatory inspection powers that will stand up to constitutional scrutiny. We are giving the new regulatory authority full powers to oversee all the new business models, which is very important. The Bill has been restructured to give effect to the agreement that the former Minister, Deputy Shatter, made with the Law Society in 2012 concerning the retention by the society of its supervisory powers in relation to solicitors' accounts and compensation funds. The Bill designs and brings forward measures to introduce limited liability partnerships for legal firms. As I said this morning, I have proposed an array of amendments to the Bill. A huge amount is being done.
I assure the House that I was not threatened by anyone. As the Minister with responsibility for this legislation, I had three options open to me. First, I had the option of leaving things exactly as they were in the area of legal services. Deputies can see from the major changes introduced in the Bill that I am not taking that route. Second, I had the option of disregarding the legal advice that certain elements of the Bill posed constitutional risks. Some people would have liked me to disregard that advice so that I would be tied up in lengthy and costly litigation and none of these reforms would be implemented in the near future. Third, I had the option of getting this Bill enacted, thereby creating a direct path to the opening of the market to new legal partnerships as early as next year, laying the groundwork for further reforms and creating an authority with the teeth to ensure the reforms get going and get embedded. That is what I have chosen to do.
The troika came and went, but we continued to work on structural reform to open up the way legal services are provided in this State. We did so in a way that offers choice to legal practitioners and those who avail of their services. It also addresses the cost of doing legal business or enforcing contracts, which was set to become a deepening competitive issue of disadvantage for our economy. There is more work to be done, but a more transparent legal cost structure, involving a legal costs adjudicator, is now embedded in the Bill. Solicitors and barristers will have to lay out what their costs are, while other changes relate to advertising. The various processes in the Bill will ensure we are on the right path in terms of supporting consumers. I have accepted several of the suggestions that came from the Competition and Consumer Protection Commission by proposing changes to Schedule 1 to the Bill. I have been able to incorporate those very good suggestions in the legislation. In addition, the commission will be given an opportunity in 18 months to review how the Bill is working. The new regulatory authority will take careful note of any attempt by any professional body to subvert what is intended in this Bill.
I want to make a few general comments on the Bill. I welcome the fact that we are getting to the concluding stages.
The Deputy should address the amendments we are considering.
I am getting to them. This legislation has been on a long journey. As Deputy Shatter said earlier, it was published in late 2011. The real test of whether the Bill will pass muster is whether consumers will see reductions in legal fees. We need to be conscious that outside the big law houses in Dublin, many of the small and medium-sized practitioners throughout the country and across Dublin have, like many other small businesses, been significantly affected by the recession of recent years. Many solicitors have gone out of business following a downturn in business caused by forces in the economy. Many people who were employed in law firms and solicitors' practices throughout the country have lost their jobs. It is not right to say they are all living high on the hog and that this is an entire gravy train. Having said that, studies that have been produced have shown that some of the larger legal services providers charge excessively high fees. Many of them often charge such fees to the State. We have seen huge reportage of that. It has played out time and again in the Committee of Public Accounts.
I reiterate that we need to be mindful of the needs of small and medium-sized legal practitioners.
An example of this is a solicitor in Kerry who recently told me he used to have a practice of 2.5 solicitors, with the necessary administrative support staff of up to eight, but as a result of the recession he is on his own, working from his house. Many legal practices are now operating from a virtual office, using a shared services call centre to deal with post, administration and answering the phones. There has been a sea change in this regard but fees will be the big one.
I know the Minister has to leave so her colleague beside her might take notes on this matter. Will the new authority deal with a case to which my attention has been drawn recently? That person took an action against the State. It went through the process and came to court but was ultimately settled on the steps of the court, with the State agreeing to pay damages in the order of €100,000 plus legal fees. When he went to conclude his business with his solicitor, his solicitor endeavoured to retain €10,000 of the €100,000 in addition to the fees the State had agreed to pay. In other words, the solicitor was engaged in double charging, something we have seen over the years. He made the Law Society aware of the issue in correspondence but got no satisfaction from the Law Society. The Law Society pointed out that there was no written agreement but the solicitor said there was a verbal agreement and this is now in dispute. The person who brought the case now finds himself in the situation where it is his word as against the solicitor's word and they are left to argue it out between themselves. What does a citizen do in such a situation? They cannot get their hands on an award given by way of settlement because their solicitor is paid fees on one side by the State, through the Taxing Master, while at the same time looking for a slice of the action on the other side.
The Minister made a couple of points on mediation. I know it is not particularly relevant to the passing of this Bill but free legal aid is related to the provision of legal services and this needs to be looked at in the context of mediation. We have free legal aid in criminal cases but we need to have a look at the civil side of things. The criminal legal aid demand uses up the entire amount of the budget but people are coming into our clinics, day in, day out and week in, week out, looking for civil free legal aid.
I welcome the passage of the Bill, whether it is today or tomorrow, and the fact that we will have a new regime. The engagement with both the Bar Council and the Law Society was very detailed and they were right to lobby us. That is what democracy is all about and stakeholder groups should be able to engage with their politicians. Some people mentioned the media reporting of it. It has to be done in an open and transparent fashion. They came and stated their case, as did the association representing legal executives who may not have got entirely what they wanted but who made some progress. We are all happy to engage with stakeholders in the passage of legislation.
I thank Deputy Collins for his support in the passing of this Bill. In answer to his question, the kind of case he describes can be referred if it involves fraud, as can excessive costs, and complaints may be made by a client against a practitioner. Legal adjudication is there to assess costs and, arising from the Bill, far more transparency about costs is intended. A retrospective complaint, such as the one the Deputy described, could go to the legal costs adjudicator. The public will make their complaints about alleged misconduct on the part of solicitors and barristers to the new legal services regulatory authority instead of the Law Society or the Bar Council, as they do at present. That will include the handling of consumer-type complaints about excessive costs, which the regulatory authority will seek to resolve by informal means. This will provide ordinary consumers with an alternative solution to the more expensive process of going through the Taxing Master. However, the charging of grossly excessive fees by a legal practitioner will be dealt with under the conduct regime of the Bill as a matter of misconduct.
The Bill strengthens the position of consumers and there is greater transparency on costs by replacing the Taxing Master with the legal costs adjudicator. There will be independent procedures for complaints, discipline and general complaints and these will now go to an independent body where previously they had been dealt with under the Solicitors Acts within the Law Society while barristers dealt with these cases and published a report once a year. Now there is an independent body for complaints or discipline and this is a major change and a significant step forward.
Seanad amendment agreed to.
Seanad amendment No. 2:
Section 1: In page 9, to delete lines 23 to 27 and substitute the following:
"(3) Section 85 shall come into operation on such day, not later than 6 months after the laying before each House of the Oireachtas under subsection (4) of section 102 of a report referred to in subsection (2) of that section, as the Minister shall appoint by order.".
Seanad amendment agreed to.
Amendments Nos. 3, 55 to 57, inclusive, 101 to 103, inclusive, 229, 231 to 264, inclusive, the amendment to amendment No. 257, 266, 278 and 279 are all related and may be discussed together.
Seanad amendment No. 3:
Section 1: In page 9, between lines 27 and 28, to insert the following:
"(4) The Solicitors Acts 1954 to 2011 and Part 13 may be cited together as the Solicitors Acts 1954 to 2015.".
This group of amendments deals with the transition from the old regulatory system to the new regulatory system provided by the Bill. A decision made by my predecessor, post publication of the Bill, that the society would retain the financial and accounting oversight of solicitors and the associated solicitors' compensation fund has led to a great many amendments to date. The key policy consideration, with which I agree, has been for the new authority and, by extension, the State, not to be responsible or held liable for the solicitors' compensation fund. This change is that the Law Society, subject to the oversight mechanisms of the new regulatory authority, will retain its existing investigative, protective and disciplinary powers regarding the financial regulation of solicitors. This, in essence, represents a co-regulatory split between the Law Society and the authority in respect of solicitors. There will be no equivalent regulatory split in regard to barristers, who will be exclusively and entirely regulated by the authority.
The Law Society already has extensive powers in the Solicitors Acts 1954 to 2011 relating to the financial and accounting oversight of solicitors and within this regulatory framework the solicitors' compensation fund, a multimillion euro fund financed by solicitors themselves from which compensation is paid to clients who have, in effect, been defrauded by solicitors holding their moneys, operates. It makes sense to keep the infrastructure and potential liability associated with the compensation fund in place but with the Law Society subject to the oversight of the LRSA. The credibility and effectiveness of this system and maintaining a visible threat to solicitors depend on the Law Society being able to pursue disciplinary action, including High Court emergency measures, on its own initiative. These are critical factors both in managing the risk of financial misbehaviour by solicitors and in moving quickly to investigation and enforcement. The Law Society has a wealth of experience in the management of these issues. However, the Law Society's activities will be overseen by, and held accountable to, the new authority through a range of mechanisms, namely, a monitor, a monitoring presence, an officer of the authority on the Law Society's regulation of practice committee, the power to obtain reports from the Law Society, provisions to allow for the flow of information between the Law Society and the new authority, and the authority's general power to make recommendations to the Minister for legislative change including where the authority might conclude from its monitoring of the Law Society that these arrangements need to be adjusted legislatively.
The authority will be the approving authority for regulations made by the Law Society. It is important to note that the authority will operate a new, independent public complaints handling system for general professional misconduct by both solicitors and barristers.
As a corollary to the regulatory division of labour between the Law Society and the legal services regulatory authority, several repeals and amendments will be necessary to the Solicitors Acts and these are provided for in this group of amendments.
As I said, we had to wait until the structure of the Bill was absolutely clear before we could deal with all the amendments to the Solicitors Acts. The amendments to those Acts reflect the changes we are introducing in the regulatory system, which must be reflected in the Solicitors Acts.
Seanad amendment agreed to.
Amendments Nos. 4 to 21, inclusive, 24, 25, 27, 30, 45, 54, 58, 148 to 150, inclusive, 152 to 158, inclusive, 160, 161, 166, 175 to 180, inclusive, 184 to 186, inclusive, 190 to 194, inclusive, and the amendment proposed to amendment No. 193, 207 to 210, inclusive, 212, 215 to 221, inclusive, 223, 224, 230 and 267 are related and may be discussed together.
Seanad amendment No. 4:
Section 2: In page 9, between lines 29 and 30, to insert the following:
“ “Act of 1954” means the Solicitors Act 1954;
“Act of 1960” means the Solicitors (Amendment) Act 1960;
“Act of 2002” means the Solicitors (Amendment) Act 2002;”.
This is a large group of amendments. It concerns a range of corrections to wording, spelling, cross-references, section numbers and updates to legislative references and collective citations. While I accept that there is an extent to which these types of amendment must be taken in good faith as a group, that will not prevent or disrupt us from discussing them and those substantial matters of amendment that are before us today. I assure the House that the Department has carefully ensured that all amendments that touch upon substantive policy issues are grouped separately from these.
As one can see from a perusal of this cluster of amendments, they fall into the tidying-up category in respect of the Bill. It is hoped it will be appreciated how difficult it is to maintain correct numbering as we go through the numerous amendments a Bill of this complexity will generate by way of realising its statutory and reform objectives from a whole-of-Bill perspective. While I can explain what each amendment does, I assure the House that the amendments are necessary to ensure coherence and congruity across the Bill and are of no policy import. However, I can provide the details on each amendment if required.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 2: In page 9, between lines 29 and 30, to insert the following:
“ “Act of 1994” means the Solicitors (Amendment) Act 1994;”.
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 2: In page 9, to delete line 30, and in page 10, to delete lines 1 to 4.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 2: In page 10, between lines 12 and 13, to insert the following:
“ “Compensation Fund” means the fund maintained by the Law Society under section 21 of the Solicitors (Amendment) Act 1960;”.
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 2: In page 10, line 13, to delete “Part 6” and substitute “Part 5 ”.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 2: In page 10, to delete lines 14 and 15 and substitute the following:
“ “complaint” means a complaint made under subsection (1) or (2) of section 42”.
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 2: In page 10, line 16, to delete “section 51” and substitute “section 59”.
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 2: In page 10, line 19, to delete “section 62” and substitute “section 64”.
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 2: In page 10, line 22, to delete “appointed under section 30” and substitute “appointed under section 36”.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 2: In page 11, between lines 7 and 8, to insert the following:
“ “legal partnership” means a partnership formed under the law of the State by written agreement, by two or more legal practitioners, at least one of whom is a practising barrister, for the purpose of providing legal services;”.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 2: In page 11, between lines 12 and 13, to insert the following:
“ “limited liability partnership” has the same meaning as it has in Part 8;”.
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 2: In page 11, between lines 14 and 15, to insert the following:
“ “multi-disciplinary practice” means a partnership formed under the law of the State by written agreement, by two or more individuals, at least one of whom is a legal practitioner, for the purpose of providing legal services and services other than legal services;”.
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 2: In page 11, to delete line 29 and substitute the following:
“ “prescribed” means prescribed by regulations under this Act;”.
Seanad amendment agreed to.
Seanad amendment No. 17:
Section 2: In page 11, line 30, after “Society” to insert “, the Honorable Society of King’s Inns”.
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 2: In page 11, line 31, to delete “Minister” and substitute “Authority”.
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 2:
In page 11, between lines 37 and 38, to insert the following:
“ “professional indemnity insurance” means a policy of indemnity insurance to cover claims in respect of any description of civil liability incurred in the provision of legal services by—
(a) a legal practitioner,
(b) a legal partnership, multi-disciplinary practice or limited liability partnership, or
(c) a partner, employee or agent or former partner of a person referred to in paragraph (a) or (b);”.
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 2: In page 12, line 5, to delete “he or she has been” and substitute “he or she, before the date on which Part 5 comes into operation, has been”.
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 2: In page 12, between lines 16 and 17, to insert the following:
“ “Solicitors Accounts Regulations” means—
(a) the Solicitors Accounts Regulations 2001 to 2013,
(b) the Solicitors Accounts Regulations 2014 (S.I. No. 516 of 2014), and
(c) any other regulations made by the Law Society under section 66 of the Act of 1954 or section 73 of the Act of 1994.”.
Seanad amendment agreed to.
Seanad amendment No. 22, the proposed amendment to Seanad amendment No. 22, and Seanad amendments Nos. 23, 26, 28, 29, 31 to 34, inclusive, 38 to 42, inclusive, 66, 83, 145, 195 and 270 are related and may be discussed together.
Seanad amendment No. 22:
Section 6: In page 13, between lines 27 and 28, to insert the following:
“Review of Act
6. (1) The Authority shall—
(a) not later than 18 months after the establishment day and not later than the end of each subsequent 3 year period, commence a review of the operation of this Act, and
(b) not later than 12 months after the commencement of a review under paragraph (a), make a report to each House of the Oireachtas of its findings and conclusions, including such recommendations (if any) to the Minister resulting from that review as it considers appropriate.
(2) Recommendations under subsection (1)(b) shall include such recommendations (if any) for amendments to this Act (including amendments to Part 7), the Solicitors Acts 1954 to 2015 or any instrument made under those Acts, as the Authority considers appropriate arising from its findings and conclusions.
(3) In conducting a review under this section, the Authority shall consult with the Competition and Consumer Protection Commission, professional bodies and such other person as the Authority considers appropriate for such purpose.”.
I move amendment No. 1 to Seanad amendment No. 22:
To insert the following new subsection after subsection (3)
"(4) The Minister shall publish a new Regulatory Impact Analysis of this Act prior to its commencement."
Given that it is so long since the Bill was published, the Minister of State might not recall that a regulatory impact assessment was published at the time of its publication. The purpose of this amendment is to seek the publication of a new regulatory impact assessment, given the number of amendments that have been processed since the Bill was published, to assess how the final product will work vis-à-vis the first draft of the Bill. Perhaps the Minister of State would comment on that.
The publication of a regulatory impact analysis is part of the preparatory process for a Bill being put before the Houses. A 52-page regulatory impact analysis of the Legal Services Regulation Bill was published in November 2013. This document, which ranks among the more substantial regulatory impact analyses prepared on the Bill, sets out the costs, benefits and impacts of three policy options. The third of these options was the establishment of a lean and independent legal services regulator. That was preferred and agreed by the Government.
The development of the Legal Services Regulation Bill has held to this preferred option. The Bill has been developed with relevant Cabinet approvals on that basis and in detailed consultation with relevant stakeholders, where necessary or appropriate. Under the legislative process, the Bill has been further developed and amendments duly made in detailed debate before both Houses and in the Oireachtas Committee on Justice, Defence and Equality, of which the Deputy is a member. The Bill provides for a series of review mechanisms under which remaining key issues will be subjected to public consultations. These consultations will shape and determine how those issues may be dealt with or regulated in the future, including, if necessary, under primary legislation. Multidisciplinary practices are a case in point. The new authority will also have the power to carry out such consultations on relevant matters on its own initiative.
Under an amendment introduced by the Government in the Seanad, the operation of the Legal Services Regulation Bill will be subject to periodic review. The first such review will be held 18 months after the establishment of the new regulatory authority. It will include a review of the levy on legal practitioners and the participation of the Competition and Consumer Protection Commission. These public consultation and periodic review mechanisms built into the Bill, as amended, enable the Bill's objectives, functions and impacts to be analysed on an ongoing basis. They will review and consider the real issues arising in real time under the Bill from when it is enacted. In fact, these new reviews and consultations are among some of the distinguishing features of the Bill.
That covers amendment No. 22. If the Deputy wishes to discuss the other amendments in the group, I will be happy to do so.
I accept what the Minister said, so I will withdraw my amendment.
Amendment No. 1 to Seanad amendment No. 22, by leave, withdrawn.
Seanad amendment No. 22 agreed to.
Seanad amendment No. 23:
Section 7: In page 14, line 6, to delete “with the approval of the Minister given with the consent of the” and substitute “with the consent of the Minister given with the approval of the”.
Seanad amendment agreed to.
Seanad amendment No. 24:
Section 8: In page 15, line 9, to delete “Competition Authority” and substitute “Competition and Consumer Protection Commission”.
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 8: In page 15, line 10, to delete “Human Rights Commission” and substitute “Irish Human Rights and Equality Commission”.
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 9: In page 16, line 27, to delete “as the Minister for Public Expenditure and Reform may” and substitute the following:
“as the Minister with the consent of the Minister for Public Expenditure and Reform may from time to time”.
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 10: In page 17, to delete lines 13 to 22 and substitute the following:
“(c) in the case of a member who is a legal practitioner, his or her name is struck off the roll of solicitors or the roll of practising barristers, as the case may be, or, following the investigation of a complaint under Part 5, he or she is the subject of—
(i) a determination under section 72(1) and the member concerned has not brought an appeal in accordance with section 73(2)(a), or
(ii) a decision of the High Court under subsection (2)(a) or (3) of section 75,
or
(d) he or she—
(i) has a declaration under section 819 of the Companies Act 2014 made against him or her or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or
(ii) is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Companies Act 2014, whether by virtue of that Chapter or any other provisions of that Act,
or”.
Seanad amendment agreed to.
Seanad amendment No. 28:
Section 10: In page 17, line 25, to delete “that Act, or” and substitute “that Act.”.
Seanad amendment agreed to.
Seanad amendment No. 29:
Section 10: In page 17, to delete line 26.
Seanad amendment agreed to.
Seanad amendment No. 30:
Section 12: In page 19, line 32, to delete “referred to in section 38” and substitute “in accordance with sections 38 and 39”.
Seanad amendment agreed to.
Seanad amendment No. 31:
Section 12: In page 19, to delete lines 33 to 39 and substitute the following:
“(d) establish and administer a system of inspection of legal practitioners for such purposes as are provided for in this Act,
(e) receive and investigate complaints under Part 5,
(f) maintain the roll of practising barristers in accordance with Part 9,”.
Seanad amendment agreed to.
Seanad amendment No. 32:
Section 15: In page 23, lines 6 and 7, to delete “with the approval of the Minister for Public Expenditure and Reform, may” and substitute the following:
“with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform may from time to time”.
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 16: In page 23, lines 29 and 30, to delete “as the Authority, with the approval of the Minister for Public Expenditure and Reform, may determine” and substitute “as the Authority may determine”.
Seanad amendment agreed to.
Seanad amendment No. 34:
Section 16: In page 23, between lines 30 and 31, to insert the following:
“(3) Any fees or allowances for expenses due to a consultant or advisor appointed under this section shall form part of the expenses of the Authority.”.
Seanad amendment agreed to.
Acting Chairman (Deputy Bernard Durkan)
Amendments Nos. 35 to 37, inclusive, 43, 44 and 46 to 53, inclusive, are related and may be discussed together by agreement.
Seanad amendment No. 35:
Section 17: In page 23, between lines 32 and 33, to insert the following:
“Legal privilege
17. (1) Nothing in this Act shall compel a person, other than a person to whom subsection (2) applies, to disclose any information or documentation that the person would be entitled to refuse to produce on the grounds of legal professional privilege.
(2) Notwithstanding the relationship between, or rights and privileges of, a legal practitioner and his or her client, a legal practitioner shall, if so requested by a person authorised in that behalf by the Authority, provide the person with any information (in such form as that person may specify) or documentation which is required by the Authority for the purpose of enabling the Authority to discharge its functions under this Act.
(3) Information or documentation provided by a legal practitioner in accordance with subsection (2) may only be used for the purpose of enabling the Authority to discharge its functions under this Act in relation to legal practitioners.”.”.
These amendments relate to the issue of the powers of the authority to inspect legal practices. Sections 30 and 31 have been remodelled into a new Part to better specify the inspection powers of the legal services regulatory authority. The grouping also includes the safeguard protections in relation to legal privilege, which is an essential and long-standing legal right which must be protected, especially with respect to clients. If necessary, I can go through each amendment in detail. Deputies will want to know at the outset, of course, that the legal services regulatory authority will have a full suite of powers to carry out inspections either on foot of a complaint or by way of ensuring compliance with the new Bill, its regulations or any code of practice.
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 17: In page 24, to delete line 10.
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 17: In page 24, between lines 20 and 21, to insert the following:
“(4) If information disclosed in accordance with this section is subject to legal professional privilege, that information may not be used by the persons to whom the information is disclosed as against the client in respect of whom the privilege is vested.
(5) Where any question arises as to whether information is or is not subject to legal professional privilege, or the use to which such information may be put, the client of the legal practitioner asserting such privilege may apply to the High Court for the determination of any matter relating to such information and the use to which such information may be put and the Court may make such orders as it considers appropriate in determining the matter before it.”.
Seanad amendment agreed to.
Seanad amendment No. 38:
Section 23: In page 29, between lines 18 and 19, to insert the following:
“(4) A member of staff of the Authority shall be a public servant.”.
Seanad amendment agreed to.
Seanad amendment No. 39:
Section 24: In page 29, between lines 18 and 19, to insert the following:
“Transfer of staff of Law Society or Bar Council
24. (1) Subject to this section, the Authority may, for the purposes of discharging its functions under Part 5, give appropriately qualified staff of the Law Society or the Bar Council an option to transfer to the Authority.
(2) Where a member of staff referred to in subsection (1) exercises an option under that subsection, the Authority shall request the Minister, with the consent of the Minister for Public Expenditure and Reform, to designate in writing such member to be transferred to the staff of the Authority from such date as may be specified in the designation (in this section referred to as “the effective date”).
(3) A member of staff of the Law Society or the Bar Council designated in accordance with subsection (2) shall become and be a member of staff of the Authority from the effective date and shall become a member of the Single Public Service Pension Scheme from that date.
(4) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, persons transferred by virtue of a designation under subsection (2) shall not be brought to less favourable terms and conditions than the terms and conditions of service relating to basic remuneration to which the person was subject immediately before the effective date.
(5) Subject to subsection (4), the Authority shall determine, in accordance with section 23(2), the terms and conditions of service and the grade of a person transferred by virtue of a designation under subsection (2).”.
Seanad amendment agreed to.
Seanad amendment No. 40:
Section 24: In page 29, lines 20 to 23, to delete all words from and including “(1) The Authority” in line 20 down to and including line 23 and substitute the following:
“(1) The Authority may, with the approval of the Minister for Public Expenditure and Reform, make a scheme or schemes for the granting of superannuation benefits to or in respect of any person appointed chief executive or any person who, on becoming a member of staff of the Authority, does not become a member of the Single Public Service Pension Scheme.”.
Seanad amendment agreed to.
Seanad amendment No. 41:
Section 28: In page 32, to delete lines 30 and 31.
Seanad amendment agreed to.
Seanad amendment No. 42:
Section 28: In page 32, between lines 31 and 32, to insert the following:
“(4) Fees prescribed under Part 8 and paid to the Authority may be used by the Authority to meet the costs it incurs in carrying out its functions under that Part.”.
Seanad amendment agreed to.
Seanad amendment No. 43:
Section 30: In page 33, to delete lines 6 to 26.
Seanad amendment agreed to.
Seanad amendment No. 44:
Section 31: In page 33, to delete lines 27 to 40, and in page 34, to delete lines 1 to 28.
Seanad amendment agreed to.
Seanad amendment No. 45:
Section 34: In page 37, line 38, to delete “2011” and substitute “2015”.
Seanad amendment agreed to.
Seanad amendment No. 46:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“PART 3
INSPECTIONS - LEGAL PRACTITIONERS
Inspectors
36. (1) For the purposes of this Act, the Authority may appoint such and so many—
(a) members of its staff as it thinks fit to be inspectors for such period and subject to such terms as the Authority may determine,
(b) other persons as it thinks fit to be inspectors for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Authority, with the approval of the Minister and consent of the Minister for Public Expenditure and Reform, may determine.
(2) A person appointed to be an inspector under this section shall on his or her appointment be furnished with a warrant of appointment by the Authority and when exercising a power conferred by this Act shall, when requested by any person affected, produce such warrant or a copy thereof, together with a form of personal identification, to that person.
(3) The Authority may revoke any appointment made by it under subsection (1).
(4) An appointment or revocation under this section shall be in writing.
(5) The appointment of a person as an inspector under subsection (1) ceases—
(a) on the revocation of the appointment by the Authority,
(b) in a case where the appointment is for a specified period, on the expiration of that period,
(c) on the resignation of that person from the appointment, or
(d) where the person was appointed under subsection (1)(a), where that person ceases to be a member of staff of the Authority.”.
Seanad amendment agreed to.
Seanad amendment No. 47:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“Inspection on direction of Authority
37. An inspector shall, upon the direction of the Authority, have power to carry out an inspection in accordance with section 38—
(a) for the purpose of an investigation of any complaint made or deemed to be made under this Act, or
(b) to ensure compliance by a legal practitioner with—
(i) any requirements imposed by this Act on the practitioner,
(ii) any regulations made under this Act applicable to the practitioner, or
(iii) any code of practice issued under section 20,
and
(c) for the purpose of the Authority exercising its power under section 42(7).”.
Seanad amendment agreed to.
Seanad amendment No. 48:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“Powers of Inspectors
38. (1) For the purposes set out in section 37, an inspector may—
(a) subject to subsections (2) and (4), enter and inspect any place—
(i) which he or she reasonably believes is being used to carry on the business of a legal practitioner,
(ii) at which he or she has reasonable grounds for believing records or documents relating to the business of a legal practitioner are being kept,
(b) at such place inspect and take copies of any books, records, accounts or other documents (including books, records, accounts or documents stored in non-legible form), or extracts therefrom, that he or she finds in the course of his or her inspection,
(c) require—
(i) any legal practitioner who carries on the business of a legal practitioner in the place concerned, or
(ii) any person at the place concerned, including the owner or person in charge of that place,
to produce to the inspector such books, records, accounts or other documents (and in the case of documents stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s possession or procurement, or under that person’s control, as that inspector may reasonably require for the purposes of his or her functions under this Act,
(d) subject to an order being obtained for such purpose from the High Court under section 39, seize and retain any such books, records, accounts or other documents from such premises and take any other steps which appear to the inspector to be necessary for preserving or preventing interference with such books, records, accounts or other documents,
(e) where there is data equipment on the premises which the inspector reasonably believes is or has been used in connection with the business of the legal practitioner, require any person—
(i) who uses the data equipment or on whose behalf the data equipment is used, or
(ii) having charge of, or who is otherwise concerned with the operation of, such equipment,
to afford the inspector all reasonable assistance in relation to the operation of such equipment and any associated apparatus or material,
(f) subject to an order being obtained for such purpose from the High Court under section 39, to secure for later inspection such data equipment and any associated apparatus or material,
(g) subject to an order being obtained for such purpose from the High Court under section 39, secure for later inspection the place or any part of the place, for such period as may reasonably be necessary for the purpose of exercising his or her powers under this section,
(h) require—
(i) any legal practitioner who carries on the business of a legal practitioner in the place concerned, or
(ii) any person at the place concerned, including the owner or person in charge of that place,
to give the inspector such information and assistance as the inspector may reasonably require for the purposes of his or her functions under this Act,
(i) examine with regard to any matter under this Act any person whom the inspector has reasonable grounds for believing to be—
(i) a legal practitioner who carries on the business of a legal practitioner in the place concerned, or
(ii) employed by a person referred to in subparagraph (i),
and require the person to answer such questions as the inspector may ask relative to those matters and to make a declaration of the truth of the answers to those questions, and
(j) require a legal practitioner who carries on the business of a legal practitioner in the place concerned, or any person duly authorised by the legal practitioner in that behalf, to give such authority in writing addressed to such bank or banks as an inspector requires for the purpose of enabling the inspector to inspect any accounts held by that practitioner at such bank or banks and obtain copies of any documents relating to such accounts.
(2) Subject to subsection (5), an inspector may use reasonable force, if necessary, to enter any place referred to in subsection (1)(a), to exercise his or her powers under this section.
(3) An inspector may enter and inspect a place under subsection (1)—
(a) at any time during normal business hours with or without prior notice to the practitioner where an inspector reasonably believes that the business of a legal practitioner is carried on at that place or records or documents relating to the business of a legal practitioner are being kept at that place, and
(b) at any other time on reasonable notice to the practitioner.
(4) When performing a function under this Act, an inspector may, subject to any warrant under subsection (6), be accompanied by such number of other inspectors or members of the Garda Síochána as he or she considers appropriate.
(5) An inspector shall not enter a dwelling other than—
(a) with the consent of the occupier, or
(b) pursuant to a warrant under subsection (6).
(6) Upon the sworn information of an inspector, a judge of the District Court may—
(a) for the purposes of enabling an inspector to carry out an inspection of a place that the inspector has reasonable grounds for believing is being used for the carrying on of the business of a legal practitioner, or
(b) if satisfied that there are reasonable grounds for believing that information, books, records, accounts or other documents (including information, books, records, accounts or other documents stored in non-legible form) required by an inspector under this section relating to the business of a legal practitioner is or are held in any place,
issue a warrant authorising a named inspector accompanied by such other inspectors or members of the Garda Síochána as may be necessary, at any time or times, before the expiration of one month from the date of issue of the warrant, to enter the dwelling (if necessary by using reasonable force) and exercise the powers of an inspector under subsection (1).
(7) In this Part, “place” shall be construed in accordance with section 29 (inserted by section 1 of the Criminal Justice (Search Warrants) Act 2012) of the Offences Against the State Act 1939.”.
Seanad amendment agreed to.
Seanad amendment No. 49:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“High Court order to exercise certain powers under
section 38
39. The High Court may, on application to it in that behalf by the inspector concerned, make an order authorising that inspector, accompanied by such other inspectors or members of the Garda Síochána as may be necessary, to exercise his or her powers under paragraphs (d), (f) or (g) of section 38(1) where the Court is satisfied it is necessary for the purposes of section 37.”.
Seanad amendment agreed to.
Seanad amendment No. 50:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“High Court direction to comply with inspection
40. (1) Where a person, without reasonable cause, fails, refuses or neglects to comply with a requirement of an inspector in the exercise of his or her powers under any of paragraphs (c), (e), (h), (i) or (j) of section 38(1), the Authority may, on notice to the person concerned, apply to the High Court for an order directing a person to comply with such requirement or requirements as the Authority considers necessary for the purposes of an inspection referred to in section 38.
(2) Where the person referred to in subsection (1) is not the legal practitioner in respect of whose business the inspection is concerned, the Authority shall, at the same time as notifying that person, notify that legal practitioner of the application.
(3) The High Court may make an order in the terms sought by the Authority under subsection (1) or such other order as the Court considers necessary for the purpose of such inspection.”.
Seanad amendment agreed to.
Seanad amendment No. 51:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“Offences
41. (1) A person commits an offence if he or she—
(a) obstructs or interferes with an inspector or a member of the Garda Síochána in the course of exercising a power conferred on him or her by section 38 or a warrant under section 38(5) or impedes the exercise by the person or member, as the case may be, of such power,
(b) removes from a place referred to in paragraph (a) of section 38(1), or deletes, destroys, defaces or conceals, all or any part of his or her books, records, accounts or other documents (including books, records, accounts or other documents stored in non-legible form) with intent to prevent, or interfere with, the exercise of a power of an inspector or member conferred on him or her by section 38, or
(c) fails or refuses to comply with a request or requirement of, or to answer a question asked by, the inspector or member pursuant to section 38, or in purported compliance with such request or requirement or in answer to such question gives information to the inspector or member that he or she knows to be false or misleading in any material respect.
(2) Where an inspector believes, upon reasonable grounds, that a person has committed an offence under this Part, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.
(3) A statement or admission made by a person pursuant to a requirement under paragraph (h) or (i) of section 38(1) shall not be admissible as evidence in proceedings brought against the person for an offence (other than an offence under subsection (1)).
(4) A person who commits an offence under this section is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.”.
Seanad amendment agreed to.
Seanad amendment No. 52:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“Report to Authority in certain circumstances following inspection
42. (1) An inspector shall, where an inspection relates to paragraph (b) or (c) of section 37, prepare and furnish a report in writing to the Authority of the inspection within 21 days of completion of the inspection.
(2) A report prepared under subsection (1) shall, where an inspection relates to paragraph (b) of section 37, include a statement by the inspector as to whether he or she has found evidence of failure to comply with any of the matters set out in subparagraphs (i), (ii) or (iii) of that paragraph.
(3) A report prepared under subsection (1) shall, where an inspection relates to paragraph (c) of section 37, include a statement by the inspector as to whether he or she has found evidence of an act or omission that may constitute misconduct (within the meaning of section 41(1)) on the part of a legal practitioner.
(4) The Authority shall refer the report of an inspector under this section to the officer of the Authority referred to in subsection (4) of section 42 for his or her consideration in accordance with that subsection.
(5) An inspector may, if he or she considers it necessary to do so, make an interim report to the Authority in respect of any matter arising in the course of the inspection being carried out by him or her.
(6) The Authority shall refer an interim report of an inspector under this section to the officer of the Authority referred to in subsection (4) of section 42 for his or her consideration in accordance with that subsection.”.
Seanad amendment agreed to.
Seanad amendment No. 53:
Section 36: In page 38, between lines 7 and 8, to insert the following:
“Admissibility of evidence obtained in course of inspection
43. Any report or interim report prepared under section 42 and any information or documents obtained in the course of an inspection under this Part may be admitted in evidence in any—
(a) proceedings in respect of a legal practitioner under Part 5, and
(b) investigation, inquiry or proceedings under the Solicitors Acts 1954 to 2015 in respect of a legal practitioner who is a solicitor.”.
Seanad amendment agreed to.
Seanad amendment No. 54:
Section 36: In page 38, line 18, to delete “Solicitors Acts 1954 to 2013” and substitute “Solicitors Acts 1954 to 2015”.
Seanad amendment agreed to.
Seanad amendment No. 55:
Section 37: In page 38, to delete lines 21 and 34, and in page 39, to delete lines 1 to 24.
Seanad amendment agreed to.
Seanad amendment No. 56:
Section 38: In page 39, between lines 24 and 25, to insert the following:
“Legal practitioners to have professional indemnity insurance
38. (1) A legal practitioner shall not provide legal services unless there is in force, in respect of such practitioner, at the time of the provision of such services, a policy of professional indemnity insurance which complies with—
(a) where a legal practitioner is a practising barrister, regulations made under section 39, or
(b) where a legal practitioner is a practising solicitor, regulations made under section 26 of the Act of 1994.
(2) A legal practitioner who provides legal services as a partner or employee of a legal partnership, a multi-disciplinary practice or a limited liability partnership shall be taken to comply with subsection (1) where at the time of provision of such services by the legal practitioner there is in place a policy of professional indemnity insurance in respect of that partnership or practice concerned which—
(a) in the case of a partnership or practice which is comprised of practising barristers only, complies with regulations made under section 39 in respect of such partnership or practice,
(b) in the case of partnership or practice which is comprised of practising solicitors only, complies with regulations made under section 26 of the Act of 1994 relating to practising solicitors in such partnerships or practices, or
(c) in the case of a partnership or practice which is comprised of both practising barristers and practising solicitors—
(i) complies with regulations made under section 26 of the Act of 1994 relating to practising solicitors in such partnerships or practices, and
(ii) complies with regulations made under section 39 in respect of practising barristers in such partnerships or practices.
(3) The Authority may approve a group scheme of professional indemnity insurance for legal practitioners who are practising barristers where the scheme is provided under the aegis of a professional body and it is satisfied that the scheme complies with regulations made under section 39 in respect of practising barristers.
(4) Where at the time of provision of legal services, a legal practitioner who is a practising barrister is covered by a scheme approved by the Authority under subsection (3), he or she shall be taken to comply with subsection (1).
(5) A legal practitioner shall not knowingly make a false or misleading declaration of a material nature for the purpose of obtaining professional indemnity insurance.”.
Seanad amendment agreed to.
Seanad amendment No. 57:
Section 38: In page 39, to delete lines 25 to 40, and in page 40, to delete lines 1 to 35 and substitute the following:
“Regulations regarding professional indemnity insurance
39. (1) The Authority shall make regulations in relation to the professional indemnity insurance required to be maintained by—
(a) practising barristers,
(b) legal partnerships, multi-disciplinary practices and limited liability partnerships (in this section referred to as “legal practices”) other than in relation to practising solicitors in such partnerships or practices.
(2) The Authority shall consult with professional bodies before making regulations under this section.
(3) Regulations made under subsection (1) shall specify the practising barristers or legal practice to whom or to which the regulations apply and may specify circumstances in which practising barristers may be exempted from any requirements in relation to professional indemnity insurance in regulations made under this section.
(4) In making regulations under subsection (1) the Authority shall have due regard to the following objectives:
(a) ensuring that the interests of clients of practising barristers and legal practices are protected;
(b) encouraging the provision of legal services of a high standard by practising barristers and legal practices at a reasonable cost;
(c) ensuring that there is adequate consideration given, in setting professional indemnity insurance requirements, to any different levels of risk which may apply in respect of practising barristers or different legal practices;
(d) ensuring, in setting professional indemnity insurance requirements in relation to legal practices, that there is adequate cover in place in respect of each practising barrister and other person in the legal practice concerned in respect of whom such insurance is required to be in place.
(5) Without prejudice to the generality of subsection (1), regulations made under that subsection may—
(a) specify the matters or risks in respect of which insurance is to be maintained by practising barristers or legal practices to whom the regulations apply, and the Authority may specify different matters or risks in respect of which insurance is to be maintained in respect of practising barristers or different legal practices or both,
(b) by reference to a monetary amount, specify minimum levels of insurance which are to be maintained by a practising barrister or legal practice to whom the regulations apply and such amount may be specified by reference to—
(i) a type or category of claim, or
(ii) practising barristers or different legal practices,
(c) by reference to a monetary amount, specify the maximum excess amount which shall apply in respect of the insurance maintained by a practising barrister or legal practice as the case may be, and such amount may be specified by reference to—
(i) a type or category of claim, or
(ii) practising barristers or different legal practices, as the case may be,
and
(d) specify criteria to be met by persons offering such insurance as is required to be maintained and as respects the terms and conditions of such cover.
(6) Regulations made under subsection (1) may provide that the insurance required to be in place shall be considered as meeting the requirement if—
(a) the insurance is provided by an insurer or mutual fund approved by the Authority,
(b) the terms of the policy or other documentation effecting the insurance meet criteria specified in the regulations, and
(c) the wording of terms and conditions of the policy or insurance documentation is in a specified form.
(7) Regulations made under subsection (1) may include such incidental or supplementary provisions as appear to the Authority to be necessary.”.
Seanad amendment agreed to.
Seanad amendment No. 58:
Section 39: In page 41, line 16, to delete “section 38” and substitute “section 39 or section 26 of the Act of 1994, as the case may be”.
Seanad amendment agreed to.
Amendments Nos. 59 to 65, inclusive, 67 to 82, inclusive, and 104 to 144, inclusive, and the amendments to these amendments are related and may be discussed together, by agreement.
Seanad amendment No. 59:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“PART 5
COMPLAINTS AND DISCIPLINARY HEARINGS IN RESPECT OF LEGAL PRACTITIONERS
Construction (
Part 5
)
40. (1) In this Part—
“barrister” means, in relation to a person who is the subject of a complaint under this Part—
(a) a practising barrister, or
(b) a person who, at the time of the act or omission to which the complaint relates, was a practising barrister;
“solicitor” means, in relation to a person who is the subject of a complaint under this Part—
(a) a practising solicitor, or
(b) a person who, at the time of the act or omission to which the complaint relates, was a practising solicitor.
(2) For the purposes of this Part—
(a) the legal services provided to a person by a legal practitioner shall be considered as being of an inadequate standard where, by act or omission of the legal practitioner, the legal services actually provided by him or her—
(i) where the legal practitioner is a barrister, were inadequate in any material respect and were not of the quality that could reasonably be expected of him as a barrister, and
(ii) where the legal practitioner is a solicitor, were inadequate in any material respect and were not of the quality that could reasonably be expected of him or her as a solicitor,
(b) a reference to an amount of costs sought by a legal practitioner in respect of the provision of legal services means an amount of costs specified in a bill of costs issued by the legal practitioner concerned, and
(c) a reference to the resolution of a matter in an informal manner includes a reference to the referral of the dispute concerned to mediation or other appropriate form of dispute resolution.”.
Parts 5 and 6 as passed by the Dáil have been remodelled into a new single Part 6. The amendments in the grouping represent a core policy change since the Bill's inception whereby the Law Society, under the oversight of the new legal services regulatory authority, will retain its existing investigative, protective and disciplinary powers regarding the financial regulation of solicitors under the Solicitors Acts. The Law Society will therefore continue to oversee the implementation of the solicitors' accounts regulations, carry out routine financial inspections of solicitors and investigate any financial infringements and prosecute them before the legal practitioners disciplinary tribunal. In a complaint against a solicitor, the authority, complaints committee or disciplinary tribunal will be able to request the Law Society to carry out an investigation under the Solicitors Acts into the matter relevant to the complaint. The Law Society will have to comply with the request and, within a reasonable time, submit a report on the matter which will be admissible in any disciplinary proceedings. It should be noted that the authority will be solely responsible for the handling of all complaints against legal practitioners.
The three grounds on which a person may make a complaint to the authority are that an act or omission of the legal practitioner constitutes misconduct, that the legal services provided by the legal practitioner were inadequate or that the amount of costs sought by the legal practitioner were excessive. The authority will have the power to seek resolutions to complaints and may invite the complainant and the legal practitioner to make efforts to resolve the issue in an informal manner. Where both parties agree to such an approach, the authority may facilitate efforts to resolve matters either directly or by referring parties to other persons willing to assist with information resolution.
The final important provision of the new Part is one which specifies what is meant by misconduct by a legal practitioner in the context of the legislation.
Seanad amendment agreed to.
Seanad amendment No. 60:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Misconduct by legal practitioners
41. (1) For the purposes of this Act, an act or omission of a legal practitioner may be considered as constituting misconduct where the act or omission—
(a) involves fraud or dishonesty,
(b) is connected with the provision by the legal practitioner of legal services, which were, to a substantial degree, of an inadequate standard,
(c) where occurring otherwise than in connection with the provision of legal services, would justify a finding that the legal practitioner concerned is not a fit and proper person to engage in the provision of legal services,
(d) consists of an offence under this Act,
(e) in the case of a solicitor, consists of a breach of the Solicitors Acts 1954 to 2015 or any regulations made under those Acts,
(f) in the case of a solicitor, consists of an offence under the Solicitors Acts 1954 to 2015,
(g) in the case of a barrister, is likely to bring the barristers’ profession into disrepute,
(h) in the case of a solicitor, is likely to bring the solicitors’ profession into disrepute,
(i) in the case of a legal practitioner who is a managing legal practitioner of a multi-disciplinary practice, consists of a failure by him or her to comply with his or her obligations under this Act as a managing legal practitioner (within the meaning of Part 8),
(j) consists of the commission of an arrestable offence,
(k) consists of the commission of a crime or offence outside the State which, if committed within the State, would be an arrestable offence,
(l) consists of seeking an amount of costs in respect of the provision of legal services, that is grossly excessive,
(m) consists of a breach of this Act or regulations made under it, or
(n) consists of a contravention of section 153(1).
(2) In determining whether an act or omission referred to in paragraph (l) of subsection (1) should be considered as constituting misconduct, the Authority, the Complaints Committee, the Disciplinary Tribunal or, as the case may be, the High Court may have regard to—
(a) the amount by which or the extent to which the amount claimed in the bill of costs was found to be excessive,
(b) whether in the particular circumstances of the legal services performed the amount of the bill of costs appears to be unconscionable, and
(c) whether or not a Legal Costs Adjudicator has found the costs charged to be grossly excessive.
(3) In this section “arrestable offence” has the same meaning as it has in the Criminal Law Act 1997.”.
Seanad amendment agreed to.
Seanad amendment No. 61:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Complaints under
Part 5
42. (1) A client of a legal practitioner, or person acting on behalf of such a client, may make a complaint to the Authority in respect of a legal practitioner where the client considers that—
(a) the legal services provided to the client by the legal practitioner were or are of an inadequate standard, or
(b) an amount of costs sought by the legal practitioner in respect of legal services provided to the client by the legal practitioner was or is excessive.
(2) A person may make a complaint to the Authority in respect of a legal practitioner where the person considers that an act or omission of the legal practitioner constitutes misconduct.
(3) Subject to section 43, on or after the coming into operation of this Part, a complaint applies may be made to the Authority only.
(4) An officer of the Authority, having considered an interim report or a report of an inspector under Part 3, may make a complaint under subsection (2) in respect of the legal practitioner concerned.
(5) Subject to subsection (7), where the Law Society, in the performance by it of its functions under the Solicitors Acts 1954 to 2015, forms the opinion that an act or omission of a solicitor constitutes misconduct, it shall, in such manner as may be prescribed, notify the Authority of its opinion, and such notification shall be deemed to be a complaint made by the Law Society under subsection (2).
(6) Subsection (6) shall not apply where—
(a) the opinion of the Law Society is that the act or omission concerned constitutes a breach of the Solicitors Accounts Regulations, or
(b) the Law Society is investigating, or proposes to investigate, a suspected breach of the Solicitors Accounts Regulations and is of the opinion that the circumstances of the act or omission means that it should be investigated by it as part of the investigation of the suspected breach.
(7) The Authority, on receipt of a complaint that is made in respect of a solicitor (other than a complaint made by the Law Society), shall notify the Law Society of the complaint, which notification shall be accompanied by any documents relating to the complaint that are submitted by the complainant.
(8) Nothing in this section shall be construed as affecting the power of the Authority to investigate an act or omission of a legal practitioner where no complaint has been received by it in relation to that legal practitioner.
(9) This section and section 43 shall not operate to prevent the Authority or a person who is aggrieved by an act or omission of a legal practitioner seeking assistance from another person with a view to resolving the matter to which a complaint relates.
(10) A complaint shall be made in writing and in accordance with this Part and regulations under section 46.
(11) This section is subject to section 49.”.
I move amendment No. 1 to Seanad amendment No. 61:
In subsection (5) of section 42 proposed to be inserted by Seanad Amendment no. 61 to delete “subsection (7)” and substitute “subsection (6)”.
Amendment No. 1 to Seanad amendment No. 61 agreed to.
I move amendment No. 2 to Seanad amendment No. 61:
In subsection (6) of section 42 proposed to be inserted by Seanad Amendment no. 61 to delete “subsection (6)” and substitute “subsection (5)”.
Amendment No. 2 to Seanad amendment No. 61 agreed to.
Seanad amendment No. 61, as amended, agreed to.
Seanad amendment No. 62:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Referral of complaints by Bar Council, Honorable Society of King’s Inns, Law Society
43. (1) The Bar Council or the Honorable Society of King’s Inns shall refer to the Authority a complaint that is made to the body concerned—
(a) by a client, or a person acting on behalf of such a client, of a barrister, and
(b) in respect of an act or omission of the barrister to which subsection (1) or (2) of section 42 applies, that occurred on or after that date on which this subsection comes into operation.
(2) The Law Society shall refer to the Authority a complaint that is made to it—
(a) by a client, or a person acting on behalf of such a client, of a solicitor, and
(b) in respect of an act or omission of the solicitor to which subsection (1) or (2) of section 42 applies, on or after the date on which this subsection comes into operation.
(3) Where a complaint is referred to the Society under subsection (1) or (2), the Authority shall invite the person who made the complaint to make a complaint under section 42.
(4) Nothing in this section shall be construed as preventing the Bar Council, the Honorable Society of King’s Inns or the Law Society from making a complaint under section 42 in respect of a legal practitioner.”.
Seanad amendment agreed to.
Seanad amendment No. 63:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Limitation period
44. In reckoning any period of time for the purposes of any limitation period in relation to the making of an application for adjudication of a bill of costs under Part 10 which bill of costs is or has been the subject of a complaint under this Part, the period beginning on the making of a complaint to the Authority or, where the complaint is made on the invitation of the Authority under section 43(3), on the making of the complaint referred to in subsection (1) or (2) of section 43, and ending—
(a) on the date on which the complaint is withdrawn by the complainant, or
(b) where the complaint is not withdrawn by the complainant, on the date that is 2 months after the date on which complaint is determined under this Part, shall be disregarded.”.
Seanad amendment agreed to.
Seanad amendment No. 64:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Withdrawal of complaint under Part
45. (1) Where a complaint made in accordance with this Part is withdrawn, the Authority may, notwithstanding the withdrawal, where it considers it to be in the public interest to do so, proceed or, as the case may be, continue to deal with the complaint in accordance with this Part.
(2) The Authority shall notify the complainant and the legal practitioner concerned where it decides under subsection (1) to continue or proceed to deal with a complaint.”.
Seanad amendment agreed to.
Seanad amendment No. 65:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Regulations regarding complaints
46. (1) The Authority may make regulations regarding—
(a) the making of complaints to the Authority under this Part, and
(b) the procedures to be followed by the Authority and the Complaints Committee in investigating complaints under this Part.
(2) Without prejudice to the generality of subsection (1), regulations made under this section may provide in particular for the extension or abridgement by the Authority or the Complaints Committee of any period specified in the regulations for the doing of any thing, where the Authority or the Complaints Committee is satisfied that the extension or abridgement is appropriate and would not cause an injustice to the other parties to the complaint.
(3) The Authority shall, in making regulations under this section, have as an objective that the manner in which complaints may be made, and the procedures to be followed by the complainant, the legal practitioner concerned and the Authority are as informal as is consistent with the principles of fair procedures and that undue expense is not incurred by the complainant or the legal practitioner concerned in relation to the complaint.”.
Seanad amendment agreed to.
Seanad amendment No. 66:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Fees in respect of complaints
47. The Authority may, with the approval of the Minister given with the consent of the Minister for Public Expenditure and Reform, make regulations prescribing the fee (if any) payable in respect of making a complaint under this Part and the regulations may specify the circumstances in which the fee shall be refunded.”.
Seanad amendment agreed to.
Seanad amendment No. 67:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Preliminary review of complaints
48. (1) Where the Authority receives a complaint under this Part, it shall conduct a preliminary review of the complaint to determine whether or not the complaint is admissible.
(2) The Authority, for the purpose of its preliminary review under subsection (1), shall notify the legal practitioner concerned of the complaint, which notification shall request the legal practitioner to respond to the Authority, within such reasonable period as is specified in the notification, with his or her observations on the complaint.
(3) A notification under subsection (2) shall be accompanied by a copy of the complaint and any documents relating to the complaint that are submitted by the complainant.
(4) The Authority, for the purpose of determining whether a complaint is admissible under section 49, may request from the complainant or the legal practitioner further information relating to the complaint.
(5) The Authority, having considered the response (if any) of the legal practitioner to the notification under subsection (2) and any information received under subsection (4), shall in accordance with section 49 determine that the complaint is--
(a) admissible,
(b) inadmissible, or
(c) one to which section 49(6) applies.
(6) The Authority shall notify the complainant and the legal practitioner concerned of its determination under this section and of the reasons for its determination.
(7) Where the Authority makes a determination referred to in subsection (5)(b), it shall take no further action under this Part in relation to the complaint.”.
Seanad amendment agreed to.
Seanad amendment No. 68:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Admissibility of complaints
49. (1) This section applies to a preliminary review conducted under section 48 by the Authority to determine whether or not a complaint is admissible.
(2) The Authority shall determine a complaint to be inadmissible, if in the opinion of the Authority the complaint is—
(a) frivolous or vexatious, or
(b) without substance or foundation.
(3) The Authority shall determine a complaint to be inadmissible where it is satisfied that the act or omission to which the complaint relates is the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that legal practitioner which was previously determined under this Act.
(4) The Authority shall determine a complaint that is made in respect of a solicitor to be inadmissible where it is satisfied that the act or omission to which the complaint relates is—
(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that solicitor which was previously determined under the Solicitors Acts 1954 to 2015—
(i) by the High Court, or
(ii) by the Law Society or any of its Committees or Tribunals,
or
(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the solicitor concerned.
(5) The Authority shall determine a complaint that is made in respect of a barrister to be inadmissible where it is satisfied that the act or omission to which the complaint relates is—
(a) the same or substantially the same act or omission as that which was the subject matter of a complaint in respect of that barrister which was previously determined by the Barristers’ Professional Conduct Tribunal or the Honorable Society of King’s Inns, or
(b) the same or substantially the same act or omission as that which was the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has been made by the court in those proceedings in favour of the barrister concerned.
(6) (a) Where the Authority is satisfied that the act or omission to which a complaint relates is the subject of civil proceedings or criminal proceedings in respect of which a final determination of the issues has not been made by the court in those proceedings, the Authority may defer consideration under this Part of the complaint until the proceedings have been finally determined.
(b) Where the Authority is satisfied that the act or omission to which a complaint relates has been investigated by a court in civil proceedings or criminal proceedings and that a final determination of the issues which are, in substance, the issues involved in the complaint has been made by the court in those proceedings in favour of the legal practitioner concerned, the Authority may decide to take no action or no further action in relation to the complaint.
(c) Proceedings shall not be regarded as finally determined for the purposes of paragraph (a) or (b) until any appeal, rehearing or retrial in relation to those proceedings has been determined.
(7) The Authority shall determine a complaint under section 42(1) to be inadmissible where it is satisfied that the complaint was made more than 3 years after the later of the following:
(a) the date on which the legal services concerned were provided or the bill of costs concerned was issued, or
(b) the date on which the client first became aware, or ought reasonably to have become aware, that it would be reasonable to consider that paragraph (a) or (b) of section 42(1) applied in respect of the legal practitioner concerned.
(8) In reckoning any period of time for the purposes of the limitation period under subsection (6), the period between the date of receipt of a complaint by the body referred to in subsection (1) or (2) of section 43 and the making, on invitation by the Authority under section 43(3), of a complaint under section 42 in respect of the act or omission concerned, shall be disregarded.
(9) Where the Authority does not determine a complaint to be inadmissible under this section, it shall determine the complaint to be admissible.
(10) In this section, “Barristers’ Professional Conduct Tribunal” means the body of that name constituted in accordance with the Disciplinary Code for the Bar of Ireland.”.
Seanad amendment agreed to.
Seanad amendment No. 69:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Authority may request Law Society to investigate matter relevant to complaint
50. (1) The Authority may, at any stage in its investigation under this Part of a complaint in respect of a solicitor, and for the purposes of the investigation, request the Law Society to carry out an investigation under the Solicitors Acts 1954 to 2015 into any matter that is relevant to the complaint.
(2) The Complaints Committee or Disciplinary Tribunal may, for the purposes of its consideration under this Part of a complaint, request the Law Society to carry out an investigation under the Solicitors Acts 1954 to 2015 into any matter that is relevant to that consideration.
(3) The Law Society, on receipt of a request under subsection (1) or (2), shall—
(a) comply with the request, and
(b) within one month of receipt of the request, or such later period as may be agreed between it and the Authority, the Complaints Committee or the Disciplinary Tribunal, as the case may be, provide the Authority, Complaints Committee or Disciplinary Tribunal with an interim report of its investigation and an indication of when its final report will be available.
(4) An interim report and final report of the Law Society referred to in subsection (3) shall be admissible in any proceedings under this Part.”.
Seanad amendment agreed to.
Seanad amendment No. 70:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Authority to facilitate resolution of complaints made under this Part relating to inadequate services
51. (1) Where the Authority determines under section 48 that a complaint to which section 42(1)(a) applies is admissible, or where a complaint is remitted to it under section 53, it shall invite the client and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint in an informal manner.
(2) Where the client and the legal practitioner agree to the Authority’s invitation under subsection (1), and request the Authority to do so, the Authority shall facilitate the resolution of the matter—
(a) by offering its assistance in resolving the matter in an informal manner, or
(b) by identifying to the legal practitioner and the client other persons who are willing to assist in resolving the matter in an informal manner.
(3) Where the Authority, having allowed the client and the legal practitioner a reasonable period to resolve the matter the subject of the complaint in an informal manner, considers that an agreement or resolution between the parties in relation to the complaint is unlikely to be reached in that manner, it may give notice in writing to the client and the legal practitioner (and, where appropriate, any other person involved in attempting to resolve the dispute) that it proposes to determine the complaint in accordance with this section.
(4) Where subsection (3) applies, the Authority shall not determine the complaint concerned earlier than 30 days after the giving of notice under that subsection.
(5) Where—
(a) the client or the legal practitioner does not accept the Authority’s invitation under subsection (1),
(b) the client or the legal practitioner, having attempted to resolve the matter in an informal manner, confirms to the Authority that he or she does not wish to continue to make such an attempt, or
(c) the Authority decides under subsection (3) to exercise its power to determine the complaint under this section,
the Authority shall thereafter invite the client and the legal practitioner to furnish to it, within such reasonable period as is specified by the Authority, a statement setting out their respective positions in relation to the matter the subject of the complaint.
(6) The Authority shall consider any statement furnished to it pursuant to subsection (5) and, where it considers that the legal services provided by the legal practitioner were of an inadequate standard, and that it is, having regard to all the circumstances concerned, appropriate to do so, the Authority may direct the legal practitioner to do one or more of the following:
(a) secure the rectification, at his or her own expense or at the expense of his or her firm, of any error, omission or other deficiency arising in connection with the legal services concerned;
(b) take, at his or her own expense or at the expense of his or her firm (which shall not exceed €3,000), such other action as the Authority may specify;
(c) transfer any documents relating to the subject matter of the complaint to another legal practitioner nominated by the client, subject to such terms and conditions as the Authority may consider appropriate having regard to the existence of any right to possession or retention of any of the documents concerned vested in the legal practitioner to whom the direction is issued;
(d) pay to the client a sum not exceeding €3,000 as compensation for any financial or other loss suffered by the client in consequence of the legal services provided by the legal practitioner to the client being of an inadequate standard.
(7) Where the client or the legal practitioner is aggrieved by a direction made by the Authority under subsection (6) or its failure to make such a direction he or she may by notice in writing given not more than 30 days after the Authority has notified the parties to the complaint of its decision under subsection (6), seek a review by a Review Committee established under section 53 of the direction or the failure.
(8) Any payment made by a legal practitioner pursuant to a direction referred to in subsection (6)(d) shall be without prejudice to any legal right of the client.”.
Seanad amendment agreed to.
Seanad amendment No. 71:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Authority to facilitate resolution of complaints made under this Part relating to excessive costs
52. (1) Where the Authority determines under section 48 that a complaint to which section
42(1)(b) applies is admissible, or where a complaint is remitted to it under section 53, it shall invite the client and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint in an informal manner.
(2) Where the client and the legal practitioner agree to the Authority’s invitation under subsection (1), and request the Authority to do so, the Authority shall facilitate the resolution of the matter—
(a) by offering its assistance in resolving the matter in an informal manner, or
(b) by identifying to the legal practitioner and the client other persons who are willing to assist in resolving the matter in an informal manner.
(3) Where the Authority, having allowed the client and the legal practitioner a reasonable period to resolve the matter the subject of the complaint in an informal manner, considers that an agreement or resolution between the parties in relation to the complaint is unlikely to be reached in that manner, it may give notice in writing to the client and the legal practitioner (and, where appropriate, any other person involved in attempting to resolve the dispute) that it proposes to determine the complaint in accordance with this section.
(4) Where subsection (3) applies, the Authority shall not determine the complaint concerned earlier than 30 days after the giving of notice under that subsection.
(5) Where—
(a) the client or the legal practitioner does not accept the Authority’s invitation under subsection (1),
(b) the client or the legal practitioner, having attempted to resolve the matter in an informal manner, confirms to the Authority that he or she does not wish to continue to make such an attempt, or
(c) the Authority decides under subsection (3) to exercise its power to determine the complaint under this section,
the Authority shall thereafter invite the client and the legal practitioner to furnish to it, within such reasonable period as is specified by the Authority, a statement setting out their respective positions in relation to the matter the subject of the complaint.
(6) The Authority shall consider any statement furnished to it pursuant to subsection (5) and, where it considers that the amount of costs sought by the legal practitioner in respect of legal services provided to the client by the legal practitioner was or is excessive, and that it is, having regard to all the circumstances concerned, appropriate to do so, may direct the legal practitioner to do one or more of the following:
(a) refund without delay, either wholly or in part as directed, any amount already paid by or on behalf of the client in respect of the practitioner’s costs in connection with the bill of costs;
(b) waive, whether wholly or in part as directed, the right to recover those costs.
(7) Where the client or legal practitioner is aggrieved by a direction made by the Authority under subsection (6) or its failure to make a direction, he or she may by notice in writing given not more than 30 days after the Authority has notified the parties to the complaint of its decision under subsection (6) seek a review by a Review Committee established under section 53 of the direction or the failure.
(8) Where a bill of costs which has been the subject of complaint under section 42(1)(b) has subsequently been adjudicated, then—
(a) where the Authority has given a direction under subsection (6), the direction shall cease to have effect, or
(b) where the Authority has not given a direction under subsection (6), it shall not proceed to investigate such a complaint or otherwise apply the provisions of this section.
(9) Where the Authority has notified a legal practitioner under section 48(6) that a complaint under section 42(1)(b) in respect of a bill of costs issued by the legal practitioner is admissible, the legal practitioner shall not—
(a) issue or cause to be issued civil proceedings (whether on his own behalf or on behalf of any other person or persons), or
(b) if already issued, proceed further with civil proceedings,
in respect of the amount (or any part thereof) of a bill of costs without the written consent of the Authority before the Authority has determined the matter under subsection (6) unless, on application by that legal practitioner, on notice to the Authority, a Court orders otherwise.
(10) Where pursuant to this section a dispute regarding a bill of costs between the client and the legal practitioner is resolved, the client shall not thereafter be entitled to seek adjudication of the bill of costs under Part 10 unless such adjudication forms part of the resolution.
(11) The determination under this section of a complaint shall be without prejudice to any legal right of the client.”.
Seanad amendment agreed to.
Seanad amendment No. 72:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Review Committee
53.(1) The Authority shall establish a Review Committee to consider reviews requested by complainants or legal practitioners in relation to determinations of the Authority under section 51 or 52.
(2) The Review Committee shall be composed of 3 persons, 2 of whom shall be lay persons and one of whom shall be a legal practitioner.
(3) The member of the Review Committee who is a legal practitioner shall—
(a) in a case where the complaint relates to a solicitor, be a solicitor, and
(b) in a case where the complaint relates to a barrister, be a barrister.
(4) A person shall be eligible to serve as a member of a Review Committee established under this section if he or she is eligible to serve as a member of the Complaints Committee established under this Part.
(5) The Review Committee shall consider reviews requested and, having given both the client and the legal practitioner an opportunity to make a statement in writing to it as to why the determination of the Authority under section 51 or 52, as the case may be, was incorrect or unjust, determine the review by—
(a) confirming the determination of the Authority,
(b) remitting the complaint to the Authority, with such directions as the Review Committee considers appropriate or necessary, to be dealt with again under section 51 or 52, as the case may be, or
(c) issuing one or more than one of the directions to the legal practitioner that the Authority is authorised to issue under section 51(6) or 52(6) as the case may be.
(6) Any payment made by a legal practitioner pursuant to a direction referred to in subsection (5) shall be without prejudice to any legal right of the client.”.
Seanad amendment agreed to.
Seanad amendment No. 73:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Appeal to High Court from determination of Review Committee
54.(1)
Where a Review Committee determines a review under section 53, the client or the legal practitioner concerned may, within a period of 21 days of the notification of such determination or direction to him or her, apply to the High Court for an order directing the Review Committee to rescind or to vary such determination and on hearing such application the Court may make such order as it thinks fit.
(2) Where no application under subsection (1) is made within the period specified in that subsection, the determination of the Review Committee shall become absolutely binding on the client and legal practitioner immediately upon the expiration of such period.
(3) Where an application has been made by a legal practitioner under subsection (1), the Authority may apply to the High Court and the Court may dismiss the application of the legal practitioner if it is satisfied that such application has no merits and has been made purely for the purposes of delay.
(4) Where a legal practitioner, in respect of whom a determination of the Review Committee is binding, without reasonable excuse refuses, neglects or otherwise fails to comply with such determination, he or she shall be guilty of an offence and be liable on summary conviction thereof to a Class B fine.”.
Seanad amendment agreed to.
Seanad amendment No. 74:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Authority to offer assistance in resolving matter in dispute where it appears that conduct could constitute misconduct
54. (1) Where the Authority decides under section 48 that a complaint under section 42(2) is admissible, and that the act or omission of the legal practitioner to which the complaint relates, if the complaint were substantiated, would constitute misconduct within the meaning of section 41(1)(b), it shall invite the complainant and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint in a prompt manner in accordance with guidelines published by the Authority pursuant to section 57.
(2) The agreement by the complainant and the legal practitioner to make efforts to resolve the matter the subject of the complaint shall not prevent the Authority continuing with its consideration or investigation of the complaint.
(3) Notwithstanding subsection (2), where the Complaints Committee, the Disciplinary Tribunal or the High Court is satisfied that an act or omission of a legal practitioner the subject of a complaint has been resolved or that proper effort was made by the legal practitioner concerned to resolve the matter in accordance with this section, the Complaints Committee, Disciplinary Committee or the High Court, as the case may be, shall, in determining the appropriate sanction (if any) that should be imposed upon the legal practitioner, give due regard to the efforts to resolve the matter made by the legal practitioner concerned.”.
Seanad amendment agreed to.
Seanad amendment No. 75:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Resolution of complaint by mediation or informal means-additional provisions
55. (1) No answer or statement made, in the course of attempting to resolve a complaint in the manner specified in section 51, 52 or 54, by—
(a) the complainant, or
(b) the legal practitioner who is the subject of the complaint,
may be used in any disciplinary, civil or criminal proceedings or communicated to any person other than the persons participating in the attempt to resolve the complaint.
(2) Any costs arising from an attempt to resolve a complaint in the manner specified in section 51, 52 or 54 shall be borne equally by the parties to the complaint unless the parties agree otherwise.”.
Seanad amendment agreed to.
Seanad amendment No. 76:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“56. An agreement by a legal practitioner who is the subject of a complaint to attempt to resolve the complaint in the manner referred to in section 51, 52 or 54 shall not be taken as an admission of any allegation of an act or omission by the legal practitioner to which paragraph (a) or (b) of section 42(1), or of misconduct insofar as such misconduct consists of an act or omission of the legal practitioner that the legal services provided by the practitioner were, to a substantial degree, of an inadequate standard.”.
I move amendment No. 1 to Seanad amendment No. 76:
To delete the section 56 proposed to be inserted by Seanad amendment number 76 and substitute the following:
“56. An agreement by a legal practitioner, who is the subject of a complaint, to attempt to resolve the complaint in the manner referred to in section 5, 52 or 54 shall not be taken as an admission—
(a) of any allegation contained in a complaint made under paragraph (a) or (b) of section 42(1) regarding the legal practitioner, or
(b) of any allegation of misconduct referred to in section 42(2).”.
Amendment No. 1 to Seanad amendment No. 76 agreed to.
Seanad amendment No. 76, as amended, agreed to.
Seanad amendment No. 77:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Guidelines for resolution of complaints by mediation or informal means
57. The Authority shall prepare and publish guidelines in relation to the resolution of complaints by informal means and those guidelines may—
(a) set out the process whereby a determination can be made in respect of whether a complaint can be resolved by informal means,
(b) provide for the recording of the manner in which a complaint was resolved and of the terms of any agreement between the complainant and the legal practitioner the subject of the complaint,
(c) outline the steps to be taken (including notice to the Authority, the complainant, the legal practitioner concerned, where applicable, and the Complaints Committee) if the complaint cannot, in the opinion of the person attempting to do so, be resolved by informal means, and
(d) contain any other matters that the Authority considers necessary or appropriate for facilitating the resolution of the complaint by informal means.”.
Seanad amendment agreed to.
Seanad amendment No. 78:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Authority to refer complaints relating to misconduct to Complaints Committee
58. The Authority shall refer a complaint under section 42(2) to the Complaints Committee where the client and legal practitioner concerned do not succeed in resolving a matter in accordance with section 54.”.
Seanad amendment agreed to.
Seanad amendment No. 79:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Establishment and membership of Complaints Committee
59. (1) The Authority shall establish a committee, to be known as the Complaints Committee, for the purpose of considering and investigating complaints referred to it by the Authority under section 58.
(2) A member of the Complaints Committee shall—
(a) hold office for a period of 4 years from the date of his or her appointment, and
(b) be eligible for reappointment as a member of the Complaints Committee, provided that he or she does not hold office for periods the aggregate of which exceeds 8 years.
(3) The Complaints Committee shall be appointed by the Authority and shall consist of not more than 27 members of whom—
(a) the majority shall be lay persons,
(b) not fewer than 8 shall be persons nominated by the Law Society, each of whom has practised as a solicitor for more than 10 years, and
(c) not fewer than 4 shall be persons nominated by the Bar Council, each of whom has practised in the State as a barrister for more than 10 years.
(4) In appointing lay persons to be members of the Complaints Committee the Authority shall ensure that those members are persons who—
(a) are independent of the professional bodies, and
(b) have expertise in or knowledge of—
(i) the provision of legal services,
(ii) the maintenance of standards in a profession (including those regulated by a statutory body),
(iii) the investigation and consideration of complaints relating to services, or
(iv) the interests of consumers of legal services.
(5) The Complaints Committee shall act in divisions of not less than 3 members and not more than 5 members (in this Act referred to as a “Divisional Committee”).
(6) A Divisional Committee shall consist of an uneven number of members.
(7) Each Divisional Committee shall have a majority of lay members.
(8) The chairperson of each Divisional Committee shall be one of the lay members of that Divisional Committee.
(9) The chief executive shall make arrangements for the provision of such administrative and secretarial support to each Divisional Committee as he or she considers necessary.
(10) Subject to subsections (6) and (7), where a complaint relates to a solicitor—
(a) in a case where the Divisional Committee consists of 3 members, one of the members of the Divisional Committee shall be a solicitor,
(b) in a case where the Divisional Committee consists of 5 members, 2 of the members of the Divisional Committee shall be solicitors.
(11) Subject to subsections (6) and (7), where a complaint relates to a barrister—
(a) in a case where the Divisional Committee consists of 3 members, one of the members of the Divisional Committee shall be a barrister,
(b) in a case where the Divisional Committee consists of 5 members, 2 of the members of the Divisional Committee shall be barristers.”.
Seanad amendment agreed to.
Seanad amendment No. 80:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Investigation of complaints
60. (1) A Divisional Committee shall consider and investigate complaints made under this Part referred to the Complaints Committee by the Authority.
(2) Where the Authority refers a complaint to the Complaints Committee, the Authority shall furnish to the Divisional Committee concerned—
(a) a copy of the complaint and any documents relating to the complaint that have been submitted by the complainant, and
(b) a summary of the complaint.
(3) On receipt of the documents referred to in subsection (2), the Divisional Committee shall—
(a) request the legal practitioner to whom the complaint relates to furnish to the Divisional Committee, within such reasonable period as is specified by the Divisional Committee, his or her response to the complaint, and
(b) unless the legal practitioner has already been furnished with the documents concerned, furnish a copy of the documents referred to in subsection (2) to him or her.
(4) Where, in the opinion of the Divisional Committee, the response of the legal practitioner under subsection (3) indicates that he or she is not in agreement to the issuing of a direction under section 61(1)(a) or the taking of a measure under section 61(1)(b), the Divisional Committee shall furnish a copy of the response to the complainant inviting him or her to furnish observations to the Divisional Committee in relation to the response of the legal practitioner within such a period as may be specified by the Divisional Committee.
(5) Where—
(a) the response of the legal practitioner under subsection (3) does not satisfy the Divisional Committee that it should not issue a direction under section 61(1)(a) or take a measure under section 61(1)(b), or
(b) the legal practitioner does not furnish a response within the period specified in the notice,
the Divisional Committee shall, subject to the provisions of this Part, take such steps as it considers appropriate to investigate the complaint.
(6) For the purposes of investigating a complaint in accordance with subsection (1), the Divisional Committee—
(a) shall have due regard to information furnished to it by the Authority, the complainant and the legal practitioner,
(b) may, by notice in writing to the complainant, do one or more of the following:
(i) require the complainant to verify, by affidavit or otherwise, anything contained in the complaint;
(ii) request the complainant to supply to the Committee, within a reasonable period specified in the notice—
(I) such information relating to the complaint as is specified in the notice, or
(II) such documents relating to the complaint as it may require;
(iii) require that information requested under subparagraph (ii) be verified by affidavit or otherwise;
and
(c) may, by notice in writing to the legal practitioner the subject of the complaint require him or her to do one or more of the following:
(i) verify, by affidavit or otherwise, anything contained in his or her response under subsection (3);
(ii) supply the Committee, within a reasonable period specified in the notice, with—
(I) such information relating to the complaint as is specified in the notice, or
(II) such documents relating to the complaint as it may require;
(iii) require that information requested under subparagraph (ii) be verified by affidavit or otherwise.
(7) The complainant concerned shall comply with a notice issued to him or her by the Divisional Committee under subsection (6)(b).
(8) The legal practitioner concerned shall comply with a notice issued to him or her by the Divisional Committee under subsection (6)(c).
(9) The Divisional Committee may, having had due regard to—
(a) information furnished to it by the Authority,
(b) any information or documents provided to it by the complainant or the legal practitioner concerned under this section,
(c) any response furnished to the Divisional Committee by the legal practitioner concerned pursuant to this section, and
(d) any observations furnished by the complainant under subsection (4),
require the complainant and the legal practitioner to appear before the Committee for the purposes of the investigation of the complaint.
(10) The complainant and the legal practitioner may be represented by a person of their choice for the purposes of their appearance before the Divisional Committee and the costs of such representation, if any, shall be borne by the person who requested such representation.
(11) Where a complaint is withdrawn when it is being investigated by the Divisional Committee, the Committee may—
(a) decide that no further action be taken in relation to the matter the subject of the complaint, or
(b) proceed as if the complaint had not been withdrawn and, where it does so, shall notify the Authority, the complainant and the legal practitioner concerned of the fact.
(12) Where the Divisional Committee determines that the act or omission does not warrant the issuing of a direction under section 61(1)(a) or the taking of a measure under section 61(1)(b), it shall so advise the complainant and the legal practitioner in writing, giving reasons for the determination.
(13) The Divisional Committee shall make reasonable efforts to ensure that—
(a) the complainant is kept informed of all decisions made by the Committee in relation to the complaint concerned,
(b) the Committee acts expeditiously, and
(c) complaints referred to it are processed in a timely manner.”.
Seanad amendment agreed to.
Seanad amendment No. 81:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Power of Divisional Committee to specify measures
61. (1) Where the Divisional Committee, following an investigation under section 60, considers that the act or omission the subject of the complaint is not one to which subsection (7) applies, but determines that it warrants the imposition of a sanction under this section, it may—
(a) subject to subsection (9), issue a direction to the legal practitioner concerned to take such measures as are specified in the determination of the Divisional Committee, being measures specified in paragraphs (a) to (i) of subsection (5), or
(b) where the legal practitioner concerned so consents in writing, take the measure specified in the determination of the Divisional Committee, being a measure specified in subsection (6).
(2) Where the Divisional Committee issues one or more than one direction in accordance with subsection (1)(a) and the legal practitioner complies with each such direction, the complaint shall be considered as determined.
(3) Where the Divisional Committee (with the consent of the legal practitioner concerned) takes a measure specified in subsection (1)(b), the complaint shall be considered as determined.
(4) The Divisional Committee shall not impose a sanction under subsection (1) unless the Committee considers it to be a reasonable and appropriate manner of determining the complaint.
(5) The measures referred to in subsection (1)(a) are the following:
(a) a direction to the legal practitioner to perform or complete the legal service the subject of the complaint or a direction to the legal practitioner to arrange for the performance or completion of the legal service the subject of the complaint by a legal practitioner nominated by the complainant at the expense of the legal practitioner the subject of the complaint;
(b) a direction to the legal practitioner that he or she participate in one or more modules of a professional competence scheme and that he or she furnish evidence to the Authority of such participation within a specified period;
(c) a direction to the legal practitioner—
(i) that he or she waive all or a part of any fees otherwise payable by the complainant to the legal practitioner concerned, or
(ii) that he or she refund to the client some or all of any fees paid to the legal practitioner concerned in respect of the legal services the subject of the complaint;
(d) a direction that the legal practitioner take such other action in the interest of the client as the Committee may specify;
(e) a direction to the legal practitioner to comply with (in whole or in part) an undertaking given by the legal practitioner to another legal practitioner or to another person or body;
(f) a direction to the legal practitioner to withdraw or amend an advertisement;
(g) a direction to the legal practitioner to pay a sum not exceeding €5,000 as compensation for any financial or other loss suffered by the client in consequence of any inadequacy in the legal services provided or purported to have been provided by the legal practitioner, provided that any such payment made in compliance with the direction shall be without prejudice to any legal right of the client;
(h) a direction to the legal practitioner to pay to the Authority a sum not exceeding €5,000 by way of contribution towards the costs incurred by the Authority in investigating the complaint;
(i) where the Divisional Committee has determined that the legal practitioner has in the course of the investigation refused, neglected or otherwise failed, without reasonable cause, to respond appropriately in a timely manner, or at all, to a written request from the Divisional Committee and that the Authority has incurred additional costs in relation to the investigation of the complaint in consequence of that refusal, neglect or failure, a direction to the legal practitioner to pay to the Authority a sum not exceeding €2,500 by way of contribution towards those additional costs incurred by the Authority in investigating the complaint.
(6) The measure referred to in subsection (1)(b) is the issue of a notice—
(a) in the case of a legal practitioner who is a solicitor, to the Law Society informing the Law Society of the decision of the Divisional Committee to impose a sanction under subsection (1)(b) and directing the Law Society to impose a specified restriction or condition on the practising certificate of the legal practitioner concerned, or
(b) in the case of a legal practitioner who is a barrister, to the chief executive of the Authority of the decision of the Divisional Committee to impose a sanction under subsection (1)(b) and directing the chief executive to impose, in accordance with Part 10, a specified restriction or condition on the legal practitioner concerned in respect of his or her practice as a barrister.
(7) (a) Subject to subsection (8), where the Divisional Committee considers that the act or omission the subject of the complaint is of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal than under this section, it may make an application in respect of the matter to it for the holding of an inquiry under section 71.
(b) In determining whether it would be more appropriate for the complaint to be considered by the Legal Practitioners Disciplinary Tribunal, the Complaints Committee shall have regard to the gravity of the concerns raised and matters disclosed in the complaint and in the investigation under this section.
(8) (a) Where the Divisional Committee considers that a measure specified in subsection (6) is the appropriate measure to be taken as respects the complaint, it shall notify the legal practitioner concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be imposed on the practising certificate of the legal practitioner or on the legal practitioner in respect of his or her practice as a barrister, the precise restriction or condition) it proposes to take.
(b) The notification referred to in paragraph (a) shall indicate that, unless the legal practitioner concerned furnishes to the Divisional Committee his or her consent in writing to the imposition of the specified measures within 21 days of the issue of the notification, the Divisional Committee will apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry into the complaint by the Tribunal under this Part.
(c) Where the Divisional Committee issues a notification pursuant to paragraph (b) and does not receive the written consent of the legal practitioner concerned within 21 days to the imposition of the specified measures, it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry by it into the complaint in so far as the Committee has not found that the complaint is unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section or an application under subsection (7) to the Disciplinary Tribunal.
(9) In issuing a direction specified in paragraph (c)(ii), (g), (h) or (i) of subsection (5), the Divisional Committee shall have regard to the means of the legal practitioner concerned.
(10) The Divisional Committee shall notify the Authority of its determination under subsection (1).”.
Seanad amendment agreed to.
Seanad amendment No. 82:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Appeal of determination of Divisional Committee
62. (1) Where the Divisional Committee issues a direction under section 61(1)(a) to a legal practitioner, the legal practitioner may, within a period of 21 days of the date of such issue, appeal to the High Court against either or both of the following:
(a) the determination of the Divisional Committee under section 61(1), or
(b) the direction.
(2) The Authority may, within a period of 21 days of the notification under section 61(9) of the determination of the Divisional Committee under section 61(1), appeal to the High Court against one or more than one of the following:
(a) where a direction is issued under section 61(1)(a)—
(i) the determination of the Divisional Committee under section 61(1), or
(ii) the direction;
(b) a failure of the Divisional Committee to make an application under section 61(7).
(3) The High Court, on an application under subsection (1) or (2), may—
(a) in an appeal to which subsection (1)(a) or (2)(a)(i) applies—
(i) confirm the determination of the Divisional Committee under section 61(1), or
(ii) set aside the determination of the Divisional Committee under section 61(1),
and
(b) in an appeal to which subsection (1)(b) or (2)(a)(ii) of section 62 applies, may—
(i) confirm the direction concerned,
(ii) set aside the direction, or
(iii) set aside the direction and impose another sanction that the Divisional Committee could have imposed under section 61(1),
and
(c) in an appeal to which subsection (2)(b) applies, affirm or set aside the decision of the Divisional Committee not to make an application under section 61(7).”.
Seanad amendment agreed to.
Seanad amendment No. 83:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Publication of reports by Authority relating to its functions under this Part
63. (1) The Authority shall publish, in such manner as the Authority considers appropriate, a report on the performance of its functions under this Part.
(2) A report referred to in subsection (1) shall include information in respect of the relevant reporting period of—
(a) the number and type of complaints received by the Authority under this Part during the relevant reporting period,
(b) the general nature and outcome of those complaints,
(c) the number of complaints referred to the Complaints Committee in the relevant reporting period, and
(d) the outcome of those complaints which were considered by the Complaints Committee during the relevant reporting period including—
(i) the sanction imposed by the Complaints Committee,
(ii) where a sanction was imposed, the nature of the act or omission that was the subject of the complaint,
(iii) the measures taken by the Complaints Committee, and
(iv) where the Complaints Committee made a determination under section 61(1), and where the Authority considers it appropriate, the name of the legal practitioner concerned.
(3) A report published under subsection (1) shall be published by the Authority at intervals no greater than 6 months.”.
Seanad amendment agreed to.
Seanad amendments Nos. 84 to 100 inclusive and the amendments thereto are related and may be discussed together.
Seanad amendment No. 84:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Establishment of Legal Practitioners Disciplinary Tribunal
64. There shall stand established a body to be known as the Legal Practitioners Disciplinary Tribunal to consider applications brought before it under section 67 and to perform the other functions assigned to it by this Act.”.
Seanad amendment agreed to.
Seanad amendment No. 85:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Membership of Disciplinary Tribunal
65. (1) The Disciplinary Tribunal shall be appointed by the President of the High Court on the nomination of the Minister and shall consist of not more than 33 members of whom—
(a) the majority shall be lay persons,
(b) not fewer than 6 shall be persons, nominated by the Law Society, each of whom has practised in the State as a solicitor for more than 10 years,
(c) not fewer than 6 shall be persons, nominated by the Bar Council, each of whom has practised in the State as a barrister for more than 10 years, and
(d) at least 40 per cent, calculated to the nearest whole number, shall be men and at least 40 per cent, as so calculated, shall be women.
(2) One of the persons appointed under subsection (1) shall be appointed as chairperson of the Disciplinary Tribunal.
(3) The Minister shall ensure that those lay persons nominated to be members of the Disciplinary Tribunal are persons who are independent of the Government and the professional bodies and have knowledge of and expertise in one or more than one of the following:
(a) the provision of legal services;
(b) the maintenance of standards in a profession (including those regulated by a statutory body);
(c) the investigation and consideration of complaints relating to services;
(d) commercial matters;
(e) the interests of consumers of legal services.
(4) The Disciplinary Tribunal shall act in divisions consisting of—
(a) an uneven number of members,
(b) a majority of lay members, and
(c) not fewer than 3 members.
(5) The chairperson of each division of the Disciplinary Tribunal shall be one of the lay members.
(6) Where a complaint relates to a solicitor, the division of the Disciplinary Tribunal hearing the inquiry shall include at least one solicitor.
(7) Where a complaint relates to a barrister, the division of the Disciplinary Tribunal hearing the inquiry shall include at least one barrister.”.
Seanad amendment agreed to.
Seanad amendment No. 86:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Chairperson of Disciplinary Tribunal
66. (1) The person appointed as chairperson of the Disciplinary Tribunal shall, where the person is a legal practitioner, have practised as a barrister or solicitor for not less than 10 years.
(2) The term of office of the chairperson shall be 5 years, and the chairperson may be appointed for a second term not exceeding 5 years.
(3) The chairperson shall retire on attaining the age of 70 years.
(4) The chairperson shall be appointed by the President of the High Court from the persons nominated by the Minister for membership of the Tribunal.”.
Seanad amendment agreed to.
Seanad amendment No. 87:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Applications to Disciplinary Tribunal
67. The Disciplinary Tribunal may hear the following applications that are brought to it in accordance with regulations under section 69(1):
(a) an application by the Complaints Committee under subsection (7) or (8)(c) of section 61;
(b) an application by the Law Society under subsection (6) or (7)(c) of section 14A of the Solicitors (Amendment) Act 1994.”.
Seanad amendment agreed to.
Seanad amendment No. 88:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Presentation of case to Disciplinary Tribunal
68. (1) The Authority, or a person appointed to do so on its behalf, shall, in an application referred to in paragraph (a) of section 67, present the evidence to the Disciplinary Tribunal grounding the contention that misconduct by the legal practitioner concerned has occurred.
(2) The Law Society, or a person appointed to do so on its behalf, shall, in an application referred to in paragraph (b) of section 67, present the evidence to the Disciplinary Tribunal grounding the contention that misconduct by the solicitor concerned has occurred.”.
Seanad amendment agreed to.
Seanad amendment No. 89:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Regulations relating to Disciplinary Tribunal
69. (1) The Disciplinary Tribunal may make Regulations, consistent with this Act, regulating—
(a) the making of applications to the Disciplinary Tribunal under this Act, and
(b) the proceedings of the Disciplinary Tribunal under this Act.
(2) Regulations made under subsection (1) may make provision for the parties, other than the Authority, and the legal practitioner concerned, who may make submissions to the Disciplinary Tribunal.
(3) The Disciplinary Tribunal, in making regulations under subsection (1), shall have as objectives that the manner of making applications, and the conduct of proceedings, be as informal as is consistent with the principles of fair procedures, and that undue expense is not likely to be incurred by any party who has an interest in the application.
(4) The Disciplinary Tribunal may consider and determine an application to it under this Part on the basis of affidavits and supporting documentation and records where the legal practitioner, and the Authority consent.”.
I move amendment No. 1 to Seanad amendment No. 89:
To delete subsection (2) of the section 69 proposed to be inserted by Seanad amendment number 89 and substitute the following:
“(2) Regulations made under subsection (1) may make provision for—
(a) the procedures to be followed in relation to the matters referred to in subsection (1), and
(b) the parties, other than the Authority, the complainant and the legal practitioner concerned, who may make submissions to the Disciplinary Tribunal.”.
Amendment No. 1 to Seanad amendment No. 89 agreed to.
Seanad amendment No. 89, as amended, agreed to.
Seanad amendment No. 90:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Powers of Disciplinary Tribunal as to taking of evidence, etc.
70. (1) The Disciplinary Tribunal shall, for the purposes of any inquiry under this Part, have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action, in respect of—
(a) the enforcement of the attendance of witnesses and their examination on oath or on affirmation,
(b) the compelling of the production of documents, and
(c) the compelling of the discovery under oath or under affirmation of documents, and a summons signed by a member of the Disciplinary Tribunal may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production and the discovery under oath or under affirmation of documents.
(2) The Disciplinary Tribunal may require the Authority and the legal practitioner concerned to submit in writing an outline of the evidence expected to be given by each of the witnesses whom they propose to have summoned to attend the hearing.
(3) The Disciplinary Tribunal may, if of opinion that the evidence expected to be given by any witness whom it is proposed to have summoned to attend the hearing is irrelevant or does not add materially to that proposed to be given by other witnesses and that accordingly the attendance of the witness at the inquiry is likely to give rise to unnecessary delay or expense, so inform the Authority or the legal practitioner concerned, as the case may be, and bring to the attention of the Authority or legal practitioner the provisions of subsection (4).
(4) On the completion of the inquiry the Disciplinary Tribunal, whether or not it has acted in accordance with subsection (3), may, if of opinion that the attendance of any witness summoned at the request of the Authority was unnecessary and thereby involved the witness in avoidable expense, by order direct that the Authority or the legal practitioner concerned, as the case may be, shall pay a specified amount or amounts not exceeding €1,000 to the witness in respect of the expense incurred, and the witness may recover the sum or sums from the Authority or legal practitioner, as the case may be, as a simple contract debt.
(5) Before making an order under subsection (4), the Disciplinary Tribunal shall notify in writing the Authority or the legal practitioner concerned that it proposes to do so and shall consider any representations that may be made to it in writing by the person concerned within 14 days after the notification.
(6) The Authority or the legal practitioner concerned in respect of whom an order has been made under subsection (4) may appeal to the High Court against the order within 21 days of the receipt by him or her of notification of the making of the order, and the Court may make such order on the appeal as it thinks fit.
(7) If a person—
(a) on being duly summoned as a witness before the Disciplinary Tribunal, without just cause or excuse disobeys the summons,
(b) being in attendance as a witness before the Disciplinary Tribunal, refuses to take an oath or make an affirmation when required by the Disciplinary Tribunal to do so, or to produce or discover under oath or under affirmation any documents in his or her possession or under his or her control or within his or her procurement required by the Disciplinary Tribunal to be produced or discovered under oath or under affirmation by him or her, or to answer any question to which the Disciplinary Tribunal may require an answer,
(c) wilfully gives evidence to the Disciplinary Tribunal which is material to its inquiry which he or she knows to be false or does not believe to be true,
(d) by act or omission, obstructs or hinders the Disciplinary Tribunal in the performance of its functions, or
(e) fails, neglects or refuses to comply with the provisions of an order made by the Disciplinary Tribunal,
the person shall be guilty of an offence.
(8) A witness before the Disciplinary Tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.
(9) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 6 months or to both, or
(b) on conviction on indictment, to a fine not exceeding €30,000 or to imprisonment for a term not exceeding 2 years or to both.
(10) Section 13 of the Criminal Procedure Act 1967 shall apply in relation to an offence under this section as if, in lieu of the penalties specified in subsection (3) of that section, there were specified therein the penalties provided for by subsection (9), and the reference in subsection (2)(a) of that section to the penalties provided for in subsection (3) of that section shall be construed accordingly.
(11) A reference in this section and section 71 to the Authority shall be deemed, in the case of an inquiry the application for which was made by the Law Society under section 67(d), to include a reference to the Law Society.”.
I move amendment No. 1 to Seanad amendment No. 90:
In subsection (4) of the section 70 proposed to be inserted by Seanad amendment number 90, in the third line of that subsection, after “Authority” to insert “or the legal practitioner concerned”.
Amendment No. 1 to Seanad amendment No. 90 agreed to.
Seanad amendment agreed to.
Seanad amendment No. 91:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Inquiry by Disciplinary Tribunal
71. (1) Where the Disciplinary Tribunal receives an application referred to in section 67 for the holding of an inquiry, it shall arrange a date for the hearing and notify in writing the legal practitioner and the Authority.
(2) An inquiry under this section shall be conducted by way of oral hearing and, subject to subsection (3), shall be heard in public.
(3) Where the Disciplinary Tribunal is satisfied that it is necessary to do so in the interests of justice, it may direct that the hearing of the inquiry or any part thereof be held otherwise than in public.
(4) The legal practitioner concerned and the Authority may be represented at any hearing before the Disciplinary Tribunal by a legal practitioner.
(5) Witnesses appearing before the Disciplinary Tribunal shall give evidence on oath or on affirmation.
(6) The legal practitioner concerned and the Authority shall have an opportunity to examine every witness giving evidence to the Disciplinary Tribunal.
(7) If the Tribunal considers that, for the purposes of the inquiry, it requires the advice or assistance of an expert in respect of any matter, it may, subject to such terms and conditions as it may determine, appoint such number of persons having expertise in relation to the matter concerned as it considers necessary to provide it with such advice or assistance.
(8) Having conducted the inquiry, the Disciplinary Tribunal shall make a determination whether or not, on the basis of the evidence properly before it, each act or omission to which the inquiry relates constitutes misconduct and, in that event, make a determination as to whether the issue of sanction should be dealt with pursuant to subsection (1) or (2) of section 72.
(9) A determination referred to in subsection
(9) shall—
(a) be in writing,
(b) specify the reasons for the determination,
(c) specify the sanction (if any) to be imposed, and
(d) be notified to the legal practitioner, and the Authority.”.
Seanad amendment agreed to.
Seanad amendment No. 92:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Sanctions following finding of misconduct by Disciplinary Tribunal
72. (1) Where, pursuant to the holding of an inquiry under section 71, the Disciplinary Tribunal makes a determination under section 71(9) that there has been misconduct on the part of a legal practitioner and determines that the issue of sanction should be dealt with pursuant to this subsection, the Disciplinary Tribunal may, subject to subsections (3) and (4), make an order imposing one or more of the following sanctions on the legal practitioner:
(a) an advice;
(b) an admonishment;
(c) a censure;
(d) a direction that the legal practitioner participate in one or more modules of a professional competence scheme and furnish, within a specified period, evidence to the Disciplinary Tribunal of such participation;
(e) a direction that the legal practitioner concerned—
(i) waive all or a part of any costs otherwise payable by the complainant to the legal practitioner concerned in respect of the matter the subject of the complaint,
(ii) refund all or any part of any costs paid to the legal practitioner concerned in respect of the matter the subject of the complaint;
(f) a direction that the legal practitioner arrange for the completion of the legal service to which the inquiry relates or the rectification, at his or her own expense, of any error, omission or other deficiency arising in connection with the provision of the legal services the subject of the inquiry, as the Disciplinary Tribunal may specify;
(g) a direction that the legal practitioner take, at his or her own expense, such other action in the interests of the complainant as the Disciplinary Tribunal may specify;
(h) a direction that the legal practitioner transfer any documents relating to the subject matter of the complaint (but not otherwise) to another legal practitioner nominated by the client or by the Authority with the consent of the client, subject to such terms and conditions as the Authority may deem appropriate having regard to the circumstances, including the existence of any right to possession or retention of such documents or any of them vested in the legal practitioner or in any other person;
(i) a direction that the legal practitioner pay a sum, not exceeding €15,000, as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party;
(j) a direction that the whole or a part of the costs of the Disciplinary Tribunal or of any person making submissions to it or appearing before it, in respect of the inquiry be paid by the legal practitioner concerned (which costs shall be assessed by a Legal Costs Adjudicator in default of agreement);
(k) where the legal practitioner is a practising solicitor, a direction that a specified condition be imposed on his or her practising certificate;
(l) where the legal practitioner is a practising solicitor, and the misconduct concerned consists of a breach of the Solicitors Accounts Regulations, a direction that he or she pay a sum not exceeding €15,000 to the Compensation Fund;
(m) where the legal practitioner is a practising barrister, a direction to the chief executive of the Authority directing him or her to impose a specified restriction or condition on the legal practitioner in respect of his or her practice as a barrister.
(2) Where, pursuant to the holding of an inquiry under this Part, the Disciplinary Tribunal makes a determination under section 71(9) that there has been misconduct by a legal practitioner and determines that the issue of sanction should be dealt with pursuant to this subsection, the Disciplinary Tribunal shall make a recommendation to the High Court that the Court make one or more than one of the orders specified in section 75(7).
(3) Where the Disciplinary Tribunal under subsection (1) makes an order imposing one or more of the sanctions specified in paragraphs (g), (i), (j) or (l) of that subsection, the aggregate amount of the sums to be paid by the legal practitioner under the order concerned shall not exceed €15,000.
(4) In making an order referred to in subsection (3), the Disciplinary Tribunal shall have regard to the means of the legal practitioner concerned.”.
Seanad amendment agreed to.
Seanad amendment No. 93:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Persons who may appeal determination of Disciplinary Tribunal and matters in respect of which appeal may be brought
73. (1) Where the Disciplinary Tribunal makes a determination under section 71(9) that the act or omission concerned does not constitute misconduct, the Authority may appeal that finding to the High Court.
(2) Where the Disciplinary Tribunal makes a determination under section 71(9) that the act or omission concerned constitutes misconduct and deals with the issue of sanction under section 72(1), an appeal may be brought to the High Court—
(a) by the legal practitioner concerned as respects the determination of misconduct or the sanction imposed, or
(b) by the Authority as respects the sanction imposed.
(3) Where the Disciplinary Tribunal makes a determination under section 71(9) that the act or omission concerned constitutes misconduct and deals with the issue of sanction under section 72(2), the legal practitioner concerned may appeal that determination to the High Court.
(4) Where the application to the Disciplinary Tribunal was brought by the Law Society, a reference in this section to the Authority shall be construed as including a reference to the Law Society.
(5) An appeal under this section shall be brought within the period of 28 days of the date on which the notification under section 71(9)(d) of the determination concerned was sent to the person making the appeal.”.
Seanad amendment agreed to.
Seanad amendment No. 94:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Appeals to High Court from Disciplinary Tribunal
74. (1) The High Court shall determine an appeal brought in accordance with section 73 in accordance with this section and any rules of court made in relation to such appeals.
(2) Each party who was a party participating in the inquiry of the Disciplinary Tribunal shall be entitled to appear and make submissions in connection with the matter under appeal.
(3) In an appeal under section 73(1), the High Court may—
(a) confirm the determination of the Disciplinary Tribunal, or
(b) allow the appeal, and—
(i) impose a sanction which the Disciplinary Tribunal could impose pursuant to section 72(1), or
(ii) consider, in accordance with that section, the imposition of a sanction under section 75.
(4) In an appeal under section 73(2)(a), the High Court may—
(a) confirm the determination of the Disciplinary Tribunal, or
(b) determine that the act or omission the subject of the inquiry does not constitute misconduct.
(5) In an appeal under section 73(2)(b), or where the High Court makes a confirmation under subsection (4)(a), the Court may—
(a) confirm the sanction imposed under section 72(1), or
(b) impose a sanction which the Disciplinary Tribunal could have imposed under section 72(1), or
(c) consider, in accordance with that section, the imposition of sanction under section 75.”.
Seanad amendment agreed to.
Seanad amendment No. 95:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Consideration of matter by High Court where referred by Disciplinary Tribunal
75. (1) Where the Disciplinary Tribunal makes a recommendation to the High Court under section 72(2) and the legal practitioner concerned appeals in accordance with section 73(3) against the determination of misconduct, the Court shall first determine the appeal.
(2) In an appeal under section 73(3), the High Court may—
(a) confirm the determination of the Disciplinary Tribunal, or
(b) determine that the act or omission the subject of the inquiry does not constitute misconduct.
(3) Where—
(a) the legal practitioner concerned does not appeal under section 73(3) the determination of the Disciplinary Tribunal,
(b) the High Court confirms under subsection (2) the determination of the Disciplinary Tribunal, or,
(c) the High Court makes a decision referred to in subsection (3)(b)(ii) or (5)(c) of section 74,
the Court shall, having considered (where applicable) the recommendation of the Disciplinary Tribunal under section 72(2) and given each party who was a party participating in the inquiry of the Disciplinary Tribunal an opportunity to appear to make submissions in connection with the matter, decide upon the sanction to be imposed on the legal practitioner.
(4) The sanction referred to in subsection (3) may be—
(a) one or more of the sanctions which the Disciplinary Tribunal could impose under section 72(1), or
(b) the making of an order under subsection (6).
(5) Before imposing a sanction under subsection (3), the High Court may, if it thinks fit, remit the case to the Disciplinary Tribunal to take further evidence for submission to it and to make a supplementary report, and the Court may adjourn the hearing of the matter pending the submission to it of such further evidence and the making of such supplementary report.
(6) In imposing a sanction under subsection (3), the High Court shall take account of any finding of misconduct on the part of the legal practitioner concerned previously made by the Disciplinary Tribunal and not rescinded by the Court and of any order made by the Court under this Act or under the Solicitors Acts 1954 to 2015.
(7) The Court, under this subsection, may by order direct one or more than one of the following:
(a) that the legal practitioner be censured or that he or she be censured and required to pay an amount of money to the Authority or, in the case of a legal practitioner who is a solicitor, to the Compensation Fund, as the Court considers appropriate;
(b) that the legal practitioner be restricted as to the type of work which he or she may engage in, for such period as the Court considers appropriate and subject to such terms and conditions as the Court considers appropriate;
(c) that the legal practitioner be prohibited from practising as a legal practitioner otherwise than as an employee, and subject to such terms and conditions as the Court considers appropriate;
(d) that the legal practitioner be suspended from practice as a legal practitioner for a specified period and subject to such terms and conditions as the Court considers appropriate;
(e) where the legal practitioner is a barrister, that the Authority, in accordance with Part 9, strike the name of the person off the roll of practising barristers and inform the Chief Justice and the Honorable Society of King’s Inns of the fact;
(f) where the legal practitioner is a solicitor, that the name of the solicitor be struck off the roll of solicitors;
(g) in the case of a legal practitioner to whom a Patent has been granted, that the Authority make an application referred to in section 148(2) in respect of that grant;
(h) that the legal practitioner do one or more than one of the following:
(i) take, at his or her own expense, such other action in the interests of the complainant as the Court may specify;
(ii) pay a sum as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party;
(iii) pay the whole or a part of the costs of the Disciplinary Tribunal or of any person making submissions to it or appearing before it, in respect of the inquiry concerned (which costs shall be assessed by a Legal Costs Adjudicator in default of agreement);
(i) where the legal practitioner is a solicitor:
(i) that a specified bank shall furnish any information in its possession that the Law Society may require relating to any aspect of the financial affairs of the practice of the solicitor;
(ii) that the solicitor shall swear an affidavit disclosing all information relating to or contained in accounts, held in his or her own name or in the name of his or her firm or jointly with third parties with any bank within a specified duration of time, to be fixed by the Court;
(iii) that the solicitor make restitution to any aggrieved party the Court thinks fit;
(iv) on the application of the Law Society or the Authority, that the solicitor swear an affidavit (within a specified duration of time to be fixed by the Court) disclosing all information as to his or her assets either then in his or her possession or control or within his or her procurement and, if no longer in his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets;
(v) that the solicitor make himself or herself available before the Court on a specified day and at a specified time for oral examination under oath or under affirmation in relation to the contents of any affidavit of assets sworn by him or her pursuant to subparagraph (iv);
(vi) on the application of the Law Society or the Authority and where it is shown that the conduct of the solicitor or of any clerk or servant of that solicitor arising from that solicitor’s practice as a solicitor has given or is likely to give rise to the making by the Law Society of a grant or grants out of the Compensation Fund, direct that the solicitor shall not reduce his assets below a certain specified amount or value unless the Court otherwise directs;
(vii) on the application of the Law Society or the Authority, the delivery to any person appointed by the Law Society or Authority of all or any documents in the possession or control or within the procurement of the solicitor arising from his practice as a solicitor;
(viii) either—
(I) that no bank shall, without leave of the Court, make any payment out of an account in the name of the solicitor or his firm, or
(II) that a specified bank shall not without leave of the Court, make any payment out of any account in the name of the solicitor or his or her firm;
(ix) that the solicitor shall not attend at the place of business of his or her practice as a solicitor unless otherwise permitted by the Court;
(x) that the solicitor shall not represent himself or herself as having, or hold himself or herself out as having, any connection with his or her former practice as a solicitor, or permit any other person to so represent that solicitor, unless otherwise permitted by the Court.
(8) In making an order under subsection (6), the Court may, in addition—
(a) make such order as to costs incurred in the proceedings before it and the Legal Practitioners Disciplinary Tribunal as the Court thinks fit;
(b) make an ancillary order in relation to the matter which the Court thinks fit.
(9) In this section, “Patent” has the same meaning as it has in Part 12, and includes a Patent granted in the State before the coming into operation of this section.”.
I move amendment No. 1 to Seanad amendment No. 95:
In subsection (4)(b) of section 75 proposed to be inserted by Seanad Amendment no. 95 to delete “subsection (6)” and substitute “subsection (7)”.
Amendment No. 1 to Seanad amendment No. 95 agreed to.
Seanad amendment No. 95, as amended, agreed to.
Seanad amendment No. 96:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Exercise of jurisdiction of High Court under
sections 74
and
75
76. The jurisdiction vested in the High Court by sections 74 and 75 shall be exercised by the President of the High Court or, if and whenever the President of the High Court so directs, by an ordinary judge of the High Court for the time being assigned in that behalf by the President of the High Court.”.
Seanad amendment agreed to.
Seanad amendment No. 97:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Appeals to Court of Appeal
77. The Authority or the legal practitioner concerned may appeal to the Court of Appeal against an order of the High Court made under section 75 within a period of 21 days beginning on the date of the order and, unless the High Court or the Court of Appeal otherwise orders, the order of the High Court shall have effect pending the determination of such appeal.”.
Seanad amendment agreed to.
Seanad amendment No. 98:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Orders made by High Court or determinations made by Authority
78. (1) A copy of every decision or order made by the High Court under section 74 or 75 and any determination made by the Disciplinary Tribunal under sections 71 and 72 shall be furnished to the registrar of solicitors in the case of an order relating to a practising solicitor or and to the Honorable Society of King’s Inns in the case of an order relating to a practising barrister.
(2) Where an order—
(a) striking the name of a legal practitioner who is a solicitor off the roll of solicitors,
(b) striking the name of a legal practitioner who is a barrister off the roll of practising barristers, or
(c) suspending a legal practitioner from practice,
is made by the High Court under section 74 or 75, the Authority shall as soon as practicable thereafter cause a notice stating the effect of the operative part of the order to be published in Iris Oifigiúil and shall also cause the notice to be published in such other manner as the Authority may consider appropriate.
(3) Where a matter is determined by the Disciplinary Tribunal in accordance with section 72(1) and the time for lodging an appeal has expired the Authority shall arrange for the publication of—
(a) the determination,
(b) the nature of the misconduct,
(c) the sanction imposed, and
(d) the name of the legal practitioner concerned.
(4) Where the High Court makes a decision under—
(a) section 74(3)(b),
(b) section 74(4) (other than section 74(4)(b)),
(c) section 75 (other than section 75(2)(b)),
the Authority shall arrange for the publication of—
(i) the decision,
(ii) the nature of the misconduct,
(iii) the sanction imposed, and
(iv) the name of the legal practitioner concerned.”.
I move amendment No. 1 to Seanad amendment No. 98:
In subsection (1) of section 78 proposed to be inserted by Seanad Amendment No. 98, in the second last line to delete “and”.
Amendment No. 1 to Seanad amendment No. 98 agreed to.
Seanad amendment No. 98, as amended, agreed to.
Seanad amendment No. 99:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Privilege (
Part 5
)
79. The following shall be absolutely privileged:
(a) complaints made to the Authority under this Part and documents created or furnished to the parties entitled to receive them under this Part;
(b) proceedings and documents associated with an inquiry held by the Disciplinary Tribunal under this Part;
(c) a report made by the Disciplinary Tribunal to the High Court in accordance with this Part;
(d) a notice authorised by section 78 to be published or communicated.”.
Seanad amendment agreed to.
Seanad amendment No. 100:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Enforcement of order of Disciplinary Tribunal under this Part
80. (1) Where, on application by the Authority in circumstances where the matter is not otherwise before the High Court, it is shown that a legal practitioner or any other person has refused, neglected or otherwise failed, without reasonable cause, to comply in whole or in part with a direction, determination or order to which subsection (4) applies, the Court may by order direct the legal practitioner or other person, as the case may be, to comply in whole or in part as may be appropriate, with the direction, determination or order.
(2) An application by the Authority pursuant to subsection (1) shall be on notice to the legal practitioner or other person concerned unless the High Court otherwise orders.
(3) An order of the High Court under subsection (1) may contain such provisions of a consequential nature as the Court considers appropriate.
(4) This subsection applies to the following—
(a) a direction of the Authority under section 51(6) or 52(6);
(b) a determination of a Review Committee under section 53(5);
(c) a direction of a Divisional Committee under section 61(1)(a);
(d) an order of the Disciplinary Tribunal under section 72(1).”.
Seanad amendment agreed to.
Seanad amendment No. 101:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Transitional provisions in relation to solicitors
81. (1) Where, before the date on which this subsection comes into operation, a complaint under section 8 or 9 of the Solicitors (Amendment) Act 1994 has been received by the Law Society, then, notwithstanding the amendment by this Act of the Solicitors Acts 1954 to 2011, the provisions of those Acts shall continue to apply to the complaint as if those amendments had not been made.
(2) Where, on or after the date on which this subsection comes into operation—
(a) a complaint is made under section 42(1) in respect of a solicitor, and
(b) the act or omission to which the complaint relates occurred before that date,
the complaint shall be dealt with under this Part and this Act shall apply accordingly.
(3) Where, on or after the date on which this subsection comes into operation—
(a) a complaint is made under section 42(2), in respect of a solicitor, and
(b) the act or omission to which the complaint relates occurred before that date,
the complaint shall be dealt with under this Part and this Act shall apply accordingly, subject to the modification that “misconduct” shall, for the purposes of the complaint, be deemed to have the meaning it has under section 3 of the Solicitors (Amendment) Act 1960 as if the amendment of that section by section 158 had not been made.”.
Seanad amendment agreed to.
Seanad amendment No. 102:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Transitional provisions in relation to barristers
82. (1) Where, on or after the date on which this subsection comes into operation, the Benchers of the Honorable Society of King’s Inns disbar a person for an act or omission of the person that occurred before that date, the Honorable Society of King’s Inns shall notify the Authority of the disbarment, which notification shall be accompanied by a report of the act or omission concerned.
(2) The Authority, on receipt of a notification and report under subsection (1), shall examine the report and, where it considers that the act or omission of the person constitutes misconduct, shall make an application to the High Court for the making by it of an order under this section.
(3) An application under subsection (2) shall be on notice to the person concerned and the Honorable Society of King’s Inns.
(4) The High Court, on an application under subsection (2), having considered the report under subsection (1) and given the Authority, the persons concerned and the Honorable Society of King’s Inns an opportunity to appear and to make submissions in connection with the application, decide whether to impose a sanction on the person.
(5) The Court, under this subsection, may by order direct one or more than one of the following:
(a) that the person be restricted as to the type of work which he or she may engage in, for such period as the Court considers appropriate and subject to such terms and conditions as the Court considers appropriate;
(b) that the person be suspended from practice as a barrister for a specified period and subject to such terms and conditions as the Court considers appropriate;
(c) that the Authority, in accordance with Part 9, strike the name of the person off the roll of practising barristers and inform the Chief Justice and the Honorable Society of King’s Inns of the fact.”.
Seanad amendment agreed to.
Seanad amendment No. 103:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Authority may appoint monitor for purposes of section 14C of Act of 1994
83. (1) The Authority may appoint such and so many members of its staff as it thinks fit to perform the functions of a monitor under section 14C of the Act of 1994.
(2) The Authority may, at any time, request a report from a monitor in relation to the performance by him or her of his or her functions referred to in subsection (1).”.
Seanad amendment agreed to.
Seanad amendment No. 104:
Section 40: In page 41, between lines 22 and 23, to insert the following:
“Power of Authority under
Part 5
82. The Authority, in the performance by it of its functions under this Part in relation to a complaint made as respects a solicitor, may exercise any power conferred on the Law Society under the Solicitors Acts 1954 to 2015.”.
Seanad amendment agreed to.
Seanad amendment No. 105:
Section 40: In page 41, to delete lines 26 to 34.
Seanad amendment agreed to.
Seanad amendment No. 106:
Section 41: In page 41, to delete lines 35 to 38, to delete page 42, and in page 43, to delete lines 1 to 9.
Seanad amendment agreed to.
Seanad amendment No. 107:
Section 42: In page 43, to delete lines 10 to 14.
Seanad amendment agreed to.
Seanad amendment No. 108:
Section 43: In page 43, to delete lines 15 to 37, and in page 44, to delete lines 1 to 7.
Seanad amendment agreed to.
Seanad amendment No. 109:
Section 44: In page 44, to delete lines 8 to 43, and in page 45, to delete lines 1 to 23.
Seanad amendment agreed to.
Seanad amendment No. 110:
Section 45: In page 45, to delete lines 24 to 40, and in page 46, to delete lines 1 to 5.
Seanad amendment agreed to.
Seanad amendment No. 111:
Section 46: In page 46, to delete lines 6 to 41, and in page 47, to delete lines 1 to 3.
Seanad amendment agreed to.
Seanad amendment No. 112:
Section 47: In page 47, to delete lines 8 to 36, and in page 48, to delete lines 1 to 11.
Seanad amendment agreed to.
Seanad amendment No. 113:
Section 48: In page 48, to delete lines 12 to 23.
Seanad amendment agreed to.
Seanad amendment No. 114:
Section 49: In page 48, to delete lines 24 to 40.
Seanad amendment agreed to.
Seanad amendment No. 115:
Section 50: In page 49, to delete lines 1 to 5.
Seanad amendment agreed to.
Seanad amendment No. 116:
Section 51: In page 49, to delete lines 6 to 39, and in page 50, to delete lines 1 to 23.
Seanad amendment agreed to.
Seanad amendment No. 117:
Section 52: In page 50, to delete lines 24 to 34.
Seanad amendment agreed to.
Seanad amendment No. 118:
Section 53: In page 50, to delete lines 35 to 38, and in page 51, to delete lines 1 to 24.
Seanad amendment agreed to.
Seanad amendment No. 119:
Section 54: In page 51, to delete lines 25 to 34.
Seanad amendment agreed to.
Seanad amendment No. 120:
Section 55: In page 51, to delete lines 35 to 41, and in page 52, to delete line 1.
Seanad amendment agreed to.
Seanad amendment No. 121:
Section 56: In page 52, to delete lines 2 to 9.
Seanad amendment agreed to.
Seanad amendment No. 122:
Section 57: In page 52, to delete lines 10 to 23.
Seanad amendment agreed to.
Seanad amendment No. 123:
Section 58: In page 52, to delete lines 26 to 36, and in page 53 to delete lines 1 to 28.
Seanad amendment agreed to.
Seanad amendment No. 124:
Section 59: In page 53, to delete lines 29 to 37, to delete page 54, and in page 55, to delete lines 1 to 25.
Seanad amendment agreed to.
Seanad amendment No. 125:
Section 60: In page 55, to delete lines 26 to 39, to delete page 56, and in page 57, to delete lines 1 to 44.
Seanad amendment agreed to.
Seanad amendment No. 126:
Section 61: In page 58, to delete lines 1 to 19.
Seanad amendment agreed to.
Seanad amendment No. 127:
Section 62: In page 48, to delete lines 22 to 26.
Seanad amendment agreed to.
Seanad amendment No. 128:
Section 63: In page 58, to delete lines 27 to 37, and in page 59, to delete lines 1 to 19.
Seanad amendment agreed to.
Seanad amendment No. 129:
Section 64: In page 59, to delete lines 20 to 34.
Seanad amendment agreed to.
Seanad amendment No. 130:
Section 65: In page 60, to delete lines 1 to 3.
Seanad amendment agreed to.
Seanad amendment No. 131:
Section 66: In page 60, to delete lines 4 to 7.
Seanad amendment agreed to.
Seanad amendment No. 132:
Section 67: In page 60, to delete lines 8 to 25.
Seanad amendment agreed to.
Seanad amendment No. 133:
Section 68: In page 60, to delete lines 26 to 37, to delete page 61, and in page 62, to delete lines 1 to 12.
Seanad amendment agreed to.
Seanad amendment No. 134:
Section 69: In page 62, to delete lines 13 to 40, and in page 63, to delete line 1.
Seanad amendment agreed to.
Seanad amendment No. 135:
Section 70: In page 63, to delete lines 2 to 41.
Seanad amendment agreed to.
Seanad amendment No. 136:
Section 71: In page 64, to delete lines 1 to 26.
Seanad amendment agreed to.
Seanad amendment No. 137:
Section 72: In page 64, to delete lines 27 to 40, and in page 65, to delete lines 1 to 4.
Seanad amendment agreed to.
Seanad amendment No. 138:
Section 73: In page 65, to delete lines 5 to 38.
Seanad amendment agreed to.
Seanad amendment No. 139:
Section 74: In page 66, to delete lines 1 to 34.
Seanad amendment agreed to.
Seanad amendment No. 140:
Section 75: In page 66, to delete lines 35 to 39.
Seanad amendment agreed to.
Seanad amendment No. 141:
Section 76: In page 67, to delete lines 1 to 5.
Seanad amendment agreed to.
Seanad amendment No. 142:
Section 77: In page 67, to delete lines 7 to 36.
Seanad amendment agreed to.
Seanad amendment No. 143:
Section 78: In page 68, to delete lines 1 to 9.
Seanad amendment agreed to.
Seanad amendment No. 144:
Section 79: In page 68, to delete lines 10 to 21.
Seanad amendment agreed to.
Seanad amendment No. 145:
Section 80: In page 68, line 33, to delete "for Public Expenditure and Reform".
Seanad amendment agreed to.
Seanad amendments Nos. 146, 147, 151, 159 and 162 to 165, inclusive, are related and may be discussed together.
Seanad amendment No. 146:
Section 80: In page 69, to delete lines 25 and 26 and substitute the following:
"(ii) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, members of the Law Library, and
(iii) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, not members of the Law Library.".
These amendments deal with the levy that will be imposed on all legal practitioners to fund the annual operating costs and administrative expenses of the new legal services regulatory authority and the new legal practitioners disciplinary tribunal. The process is very well advanced so these amendments today are only minor tidying-up amendments in order to perfect the relevant Part. The Part provides that the Law Society will be responsible for paying to the authority an annual levy on behalf of solicitors. The Bar Council will be responsible for paying the levy on behalf of its members, and those barristers who are not members of that body will be individually responsible for paying the levy directly to the authority. The levy will be divided fairly and proportionately between the three categories of legal practitioner.
How it is proposed that the Law Society and Bar Council will levy a solicitors' or barristers' practice? Will it be per registered solicitor or barrister practising or based on turnover? What will the rationale be?
The calculation ratio is that 10% of the expenses incurred by the authority and the tribunal in their disciplinary-related functions will be apportioned to the Law Society and 10% to all practising barristers, whether or not they are members of the Law Library, while the remaining 80% will be apportioned in proportion to the expenses incurred in the consideration and investigation of complaints in respect of the three categories of legal practitioner. The expenses incurred by the authority in fulfilling its functions other than those relating to complaints will be apportioned pro rata between the three groups.
A levy assessment notice shall be sent at the end of each financial year to the relevant professional bodies or individuals, as the case may be, specifying the total due to be paid and the breakdown of the final tally and how it is achieved. The initial set-up costs for the new bodies will be paid by the Exchequer on a recoupable basis.
Seanad amendment agreed to.
Seanad amendment No. 147:
Section 80: In page 69, to delete lines 32 and 33 and substitute the following:
"(b) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, members of the Law Library, and
(c) complaints in respect of barristers who were, at the time of the act or omission to which the complaint relates, not members of the Law Library.".
Seanad amendment agreed to.
Seanad amendment No. 148:
Section 80: In page 70, line 6, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 149:
Section 80: In page 70, line 9, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 150:
Section 80: In page 70, line 13, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 151:
Section 80: In page 70, to delete lines 15 to 21 and substitute the following:
"calculated under paragraph (b) of subsection (4), of those expenses that were incurred by the Authority in the consideration and investigation of complaints in respect of each category of legal practitioner referred to in subparagraphs (i), (ii) and (iii) of that paragraph;".
Seanad amendment agreed to.
Seanad amendment No. 152:
Section 80: In page 70, line 23, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 153:
Section 80: In page 70, line 25, to delete "the number of barristers" and substitute "the number of practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 154:
Section 80: In page 70, line 26, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 155:
Section 80: In page 70, line 30, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 156:
Section 80: In page 70, line 31, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 157:
Section 80: In page 70, line 33, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 158:
Section 80: In page 70, line 37, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 159:
Section 80: In page 70, to delete lines 40 to 42, and in page 71, to delete lines 1 to 3 and substitute the following:
"consideration of applications brought before the Tribunal that concerned complaints in respect of each category of legal practitioner referred to in paragraphs (a), (b) and (c) of that subsection.".
Seanad amendment agreed to.
Seanad amendment No. 160:
Section 80: In page 71, line 9, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 161:
Section 80: In page 71, line 12, to delete "barristers" and substitute "practising barristers".
Seanad amendment agreed to.
Seanad amendment No. 162:
Section 80: In page 71, to delete lines 21 to 24 and substitute the following:
"subsection (4)(a)(i) that was incurred in the consideration and investigation of complaints in respect of each category of legal practitioner referred to in subparagraphs (i), (ii) and (iii) of paragraph (b) of subsection (4),".
Seanad amendment agreed to.
Seanad amendment No. 163:
Section 80: In page 71, to delete lines 29 to 32 and substitute the following:
"brought before it concerning complaints in respect to each category of legal practitioner referred to in paragraph (a), (b) and (c) of that subsection,".
Seanad amendment agreed to.
Seanad amendment No. 164:
Section 80: In page 72, lines 2 to 4, to delete all words from and including "The levy" in line 2 down to and including "directs" in line 4 and substitute the following:
"The levy referred to in subsection (1) shall be collected and retained by the Authority to be used to meet the costs it incurs in carrying out its functions under this Act".
Seanad amendment agreed to.
Seanad amendment No. 165:
Section 80: In page 72, between lines 21 and 22, to insert the following:
"(14) For the purposes of subsections (4) and (5)—
(a) a barrister is not a member of the Law Library at a given time, if, at that time, his or her name is on the roll of practising barristers, where the entry concerned specifies that he or she is not a member of the Law Library, and
(b) a barrister is a member of the Law Library at a given time, if, at that time, his or her name is on the roll of practising barristers, where the entry concerned does not include the specification referred to in paragraph (a).".
Seanad amendment agreed to.
Seanad amendment No. 166:
Section 84: In page 74, line 8, to delete "barrister" and substitute "practising barrister".
Seanad amendment agreed to.
Seanad amendment No. 167:
Section 84: In page 74, to delete lines 9 to 15 and substitute the following:
" "limited liability partnership" means a relevant business in respect of which an authorisation, granted under section 109, is for the time being in force;
"relevant business" means—
(a) a partnership of solicitors, or
(b) a legal partnership.".
Seanad amendment agreed to.
Seanad amendment No. 168:
Section 85: In page 74, to delete lines 16 and 18, and substitute the following:
"Legal partnerships and professional codes
85: (1) Subject to this Part, a legal practitioner may provide legal services as a partner in, or an employee of, a legal partnership.
(2) A professional body shall not, through its professional codes or otherwise, prevent or restrict a legal practitioner who is a member of that body from working with, or otherwise doing business with, a legal practitioner providing legal services in a legal partnership in accordance with subsection (1).".
Seanad amendment agreed to.
Seanad amendment No. 169:
Section 86: In page 74, line 20, to delete "providing legal services" and substitute "providing legal services as a practising barrister".
Seanad amendment agreed to.
Seanad amendment No. 170:
Section 87: In page 74, to delete lines 23 and 35, and substitute the following:
"Multi-disciplinary practices and professional codes
87: (1) Subject to this Part, a legal practitioner may provide legal services as a partner in, or an employee of, a multi-disciplinary practice.
(2) A professional body shall not, through its professional codes or otherwise, prevent or restrict a legal practitioner who is a member of that body from working with, or otherwise doing business with, a legal practitioner providing legal services in a multidisciplinary practice in accordance with subsection (1).".
Seanad amendment agreed to.
Seanad amendment No. 171:
Section 88: In page 74, between lines 25 and 26, to insert the following:
"Complaints under
Part 5
in respect of legal practitioners in limited partnerships, multidisciplinary practices and limited liability partnerships
88: For the avoidance of doubt, nothing in this Part shall be construed as preventing a person making a complaint to the Authority under Part 5 in respect of a legal practitioner who provides a legal service as a partner or employee of a legal partnership, a multidisciplinary practice or a limited liability partnership.".
Seanad amendment agreed to.
Seanad amendment No. 172:
Section 88: In page 74, line 35, to delete "in such form as may" and substitute "in such form and subject to such fee (if any) as may".
Seanad amendment agreed to.
Seanad amendment No. 173:
Section 89: In page 75, to delete lines 2 to 17, and substitute the following:
"Legal partnership to have professional indemnity insurance
89: A legal partnership shall not provide legal services unless there is in force, at the time of the provision of such services, a policy of professional indemnity insurance which complies with regulations made under section 39 and section 26 of the Act of 1994 (if applicable).".
Seanad amendment agreed to.
Seanad amendment No. 174:
Section 90: In page 75, line 27, to delete "in such form as may" and substitute "in such form and subject to such fee (if any) as may".
Seanad amendment agreed to.
Seanad amendment No. 175:
Section 91: In page 76, lines 6 and 7, to delete "section 74(3)(b)(iii)" and substitute "section 75(7)(c)".
Seanad amendment agreed to.
Seanad amendment No. 176:
Section 91: In page 76, line 10, to delete "section 74(3)(b)(iv)" and substitute "section 75(7)(d)".
Seanad amendment agreed to.
Seanad amendment No. 177:
Section 91: In page 76, line 15, to delete "subparagraph (v) or (vi) of section 74(3)(b)" and substitute "paragraph (e) or (f) of section 75(7)".
Seanad amendment agreed to.
Seanad amendment No. 178:
Section 91: In page 76, line 19, to delete "himself" and substitute "himself or herself".
Seanad amendment agreed to.
Seanad amendment No. 179:
Section 91: In page 76, line 22, to delete "practice" and substitute "practise".
Seanad amendment agreed to.
Seanad amendment No. 180:
Section 91: In page 76, to delete lines 27 to 29 and substitute the following:
"(h) a person who—
(i) has a declaration under section 819 of the Companies Act 2014 made against him or her or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or
(ii) is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Companies Act 2014, whether by virtue of that Chapter or any other provisions of that Act;".
Seanad amendment agreed to.
Seanad amendment No. 181:
Section 91: In page 76, line 36, to delete "undischarged bankrupt" and substitute "undischarged bankrupt in this or another jurisdiction".
Seanad amendment agreed to.
Seanad amendment No. 182:
Section 91: In page 76, to delete lines 37 to 39.
Seanad amendment agreed to.
Seanad amendment No. 183:
Section 91: In page 77, between lines 10 and 11, to insert the following:
"(6) A person who contravenes subsection (4), and is not the subject of an order under subsection (5), commits an offence.
(7) A person who commits an offence under subsection (6) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.".
Seanad amendment agreed to.
Seanad amendment No. 184:
Section 91: In page 77, line 14, to delete "Solicitor’s Act 1954" and substitute "Act of 1954".
Seanad amendment agreed to.
Seanad amendment No. 185:
Section 91: In page 77, line 19, to delete "his or her" where it firstly occurs.
Seanad amendment agreed to.
Seanad amendment No. 186:
Section 91: In page 77, line 20, to delete "Solicitors (Amendment) Act 1994" and substitute "Act of 1994".
Seanad amendment agreed to.
Seanad amendment No. 187:
Section 92: In page 78, line 2, to delete "shall take all reasonable action" and substitute "shall, within a period of 14 days, take all reasonable action".
Seanad amendment agreed to.
Seanad amendment No. 188:
Section 92: In page 78, between lines 5 and 6, to insert the following:
"(5) Where a managing legal practitioner fails, within the period referred to in subsection (4)—
(a) in accordance with paragraph (a) of that subsection, to ensure compliance as referred to in that paragraph, or
(b) to remedy any defaults in accordance with paragraph (b) of that subsection, he or she shall, within 7 days of the expiration of that period, notify the Authority of such failure.
(6) A managing legal practitioner who fails to notify the Authority in accordance with subsection (5) commits an offence.
(7) A person who commits an offence under subsection (6) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.".
Seanad amendment agreed to.
Seanad amendment No. 189:
Section 96: In page 79, to delete lines 36 to 40, and in page 80, to delete lines 1 to 12, and substitute the following:
"Multi-disciplinary practice to have professional indemnity insurance
96: A multi-disciplinary practice shall not provide legal services unless there is in force, at the time of the provision of such services, a policy of professional indemnity insurance which complies with regulations made under section 39 and section 26 of the Act of 1994 (if applicable).".
Seanad amendment agreed to.
Seanad amendment No. 190:
Section 99: In page 82, line 9, to delete "Supreme Court" and substitute "Court of Appeal".
Seanad amendment agreed to.
Seanad amendment No. 191:
Section 99: In page 82, line 11, to delete "Supreme Court" and substitute "Court of Appeal".
Seanad amendment agreed to.
Seanad amendment No. 192:
Section 100: In page 82, line 30, to delete "services" and substitute "legal services".
Seanad amendment agreed to.
Seanad amendment No. 193:
Section 100: In page 83, line 19, to delete "maintained by a legal practitioner" and substitute "maintained (or cause to be maintained) by a legal practitioner".
I move amendment No. 1 to Seanad amendment No. 193:
In the text proposed to be inserted by Seanad Amendment no. 193 to delete "cause" and substitute "caused".
Amendment No. 1 to Seanad amendment No. 193 agreed to.
Seanad amendment No. 193, as amended, agreed to.
Seanad amendment No. 194:
Section 100: In page 83, line 29, to delete "himself" and substitute "himself or herself".
Seanad amendment agreed to.
Seanad amendment No. 195:
Section 100: In page 86, to delete line 4 and substitute the following:
"(c) the circumstances and manner in which a barrister may hold clients’ monies and the mechanisms to be applied for the protection of clients’ monies which may be so held.".
Seanad amendment agreed to.
Seanad amendment No. 196:
Section 106: In page 87, between lines 13 and 14, to insert the following:
"Chapter 3
Limited Liability Partnerships
Limited liability partnership and professional codes
106: A professional body shall not, through its professional code or otherwise, prevent or restrict a legal practitioner who is a member of that body from working with, or otherwise doing business with, a legal practitioner providing legal services as a partner in, or as an employee of, a limited liability partnership.".
Seanad amendment agreed to.
Seanad amendment No. 197:
Section 106: In page 87, between lines 13 and 14, to insert the following:
"Liability of partner in a limited liability partnership
107. (1) A partner in a limited liability partnership shall not, by reason only of his or her being a partner or being held out as being a partner in that partnership, be personally liable directly or indirectly, by way of contribution or otherwise, for any debts, obligations or liabilities arising in contract, tort or otherwise of—
(a) the limited liability partnership,
(b) himself or herself,
(c) any other partner in that limited liability partnership, or
(d) any employee, agent or representative of that limited liability partnership.
(2) Subsection (1) shall not apply to a partner in a limited liability partnership to the extent that—
(a) the debt, obligation or liability referred to in that subsection is incurred as a result of an act or omission of the partner involving fraud or dishonesty, and
(b) that act or omission—
(i) was the subject of a finding of misconduct under Part 5, or
(ii) constituted an offence of which the partner was convicted.
(3) Subsection (1) does not affect the liability of a partner in a limited liability partnership in respect of a debt, obligation or liability incurred by that partner for a purpose not connected with the carrying on of the business of the limited liability partnership.
(4) Subsection (1) shall not apply to a partner in a limited liability partnership to the extent that the debt or obligation referred to in that subsection relates to any tax (within the meaning of section 960A of the Taxes Consolidation Act 1997).
(5) Subsection (1) does not affect the personal liability of a partner in a limited liability partnership for any debt, obligation or liability referred to in that subsection where the debt, obligation or liability was incurred by reason of an act or omission of the partner which occurred prior to the date of authorisation to operate as a limited liability partnership notified under section 109(6).
(6) The Partnership Act 1890 shall apply to limited liability partnerships to the extent that it is not inconsistent with this Chapter.".
Seanad amendment agreed to.
Seanad amendment No. 198:
Section 106: In page 87, between lines 13 and 14, to insert the following:
"Property of partnership
108: (1) Section 107 shall not operate to prevent or restrict the enforcement against the property of a limited liability partnership of any debt, obligation or liability.
(2) The transfer of any partnership property out of the joint ownership of some or all of the partners in a limited liability partnership for the benefit of any one or more of those partners shall constitute a conveyance for the purposes of section 74 of the Land and Conveyancing Law Reform Act 2009 and section 7 of the Bankruptcy Act 1988.".
Seanad amendment agreed to.
Seanad amendment No. 199:
Section 106: In page 87, between lines 13 and 14, to insert the following:
"Application for limited liability partnership
109: (1) A relevant business shall not operate as a limited liability partnership unless authorised by the Authority to so operate under this section.
(2) An application for authorisation to operate a relevant business as a limited liability partnership shall be made to the Authority.
(3) An application under subsection (2) shall be in such form and be accompanied by—
(a) such information, and
(b) such fee (if any), as may be prescribed in regulations made under section 114.
(4) Subject to subsection (5), where the Authority receives an application in accordance with subsection (3) and the Authority is satisfied that the relevant business has professional indemnity insurance in place which complies with regulations made under section 39 in relation to limited liability partnerships and under section 26 of the Act of 1994 (if applicable), the Authority shall authorise a relevant business to operate as a limited liability partnership.
(5) An authorisation under subsection (4) is subject to the condition that the limited liability partnership has professional indemnity insurance in place which complies with regulations made under section 39 in relation to limited liability partnerships and under section 26 of the Act of 1994 (if applicable) at all times in respect of that partnership.
(6) An authorisation given by the Authority under subsection (4) shall be in writing and shall have effect from such date as is specified in the notice.
(7) A limited liability partnership shall, as soon as practicable after receipt of the authorisation under subsection (4), notify its clients and creditors of the fact that it is operating as a limited liability partnership and setting out the information prescribed in regulations made under section 114(2)(c).
(8) A limited liability partnership shall—
(a) conduct the business of the partnership using a name that ends with either the expression "limited liability partnership" or the abbreviation "LLP",
(b) use the name referred to in paragraph (a) on all contracts, invoices, negotiable instruments, orders for goods and services, advertisements, invitations to treat, websites or any other publication published in any format by or on behalf of the limited liability partnership, and
(c) comply with any obligations imposed on limited liability partnerships by or under this Act.
(9) The Authority shall make a decision under subsection (4) not later than 60 days after receipt of an application which complies with subsection (3).".
Seanad amendment agreed to.
Seanad amendment No. 200:
Section 106: In page 87, between lines 13 and 14, to insert the following:
"Authority to maintain register of limited liability partnerships
110: (1) The Authority shall establish and maintain a register (in this section referred to as the "register") of limited liability partnerships.
(2) The Authority shall enter the following details in the register in relation to a limited liability partnership:
(a) the name and address of each of the partners in that partnership;
(b) the full name of the partnership and address at which the partnership ordinarily carries on business;
(c) the date on which the authorisation is to take effect under section 109(6);
(d) details of any order under section 112 suspending an authorisation issued under section 109, the period for which the suspension is to operate and any conditions imposed by the High Court under that section;
(e) details of any order under section 112 which revokes an authorisation issued under section 109.
(3) If a particular entered in the register is incorrect, the limited liability partnership to which the particular relates shall, as soon as may be after becoming aware of its being incorrect, inform the Authority thereof accordingly.
(4) The Authority shall, upon becoming aware that any particular entered in the register is incorrect or has ceased to be correct, make such alterations to that register as it considers necessary.
(5) The Authority shall record in the register the date from which an authorisation stands revoked under subsection (2) or subsection (3) of section 113.
(6) The Authority shall make the register available for inspection free of charge to members of the public in such form and manner as it thinks appropriate.".
The amendment was discussed with amendment No. 1.
It relates to the maintenance of a register by the legal services regulation authority. Is that correct?
It has been discussed with amendment No. 1 but we will allow a clarification.
The Minister of State will no doubt correct me if I misunderstood the position. My principal concern is whether there is an obligation on the legal practitioner to register with the authority as opposed to the authority having to police those who are involved in legal practice. What is the position?
The amendment relates to limited liability practices. Subject to appropriate fees, the legal services regulation authority will operate a system of authorisation and registration of partnerships which wish to become limited liability practices. The authority will also maintain a publicly available register of these practices. Protection will be provided for the consumer in the form of an obligation on firms to have substantial professional indemnity insurance cover. The authorisation to operate as a limited liability practice will be subject to the existence and maintenance of such insurance. Where the correct insurance is not in place, the liability will fall. This is provided for in section 109(4) and (5) and inserted by amendment No. 199, which is the amendment the Deputy had in mind.
While I agree in principle with the Minister of State on this matter, I do not know how an ordinary layperson will understand much of the language used in the amendments and the text of the Bill. While the Minister of State will not agree with me, from reading through the Bill and listening to the very good debate in the Seanad last week, specifically the salient points made by the Minister and Senator Sean Barrett, with whom I sometimes disagree, I am concerned that the Oireachtas always encounters serious difficulties when it tries to regulate the professional classes. The Minister and Minister of State both referred to the Bill as being balanced and favouring the consumer, rather than being simply a draft by the legal professions. That is my principal concern. I thank the Minister of State for the explanation provided.
The consumer has been at the centre of the thinking of the Minister and Department. The Law Society will maintain the roll of solicitors, while the legal services regulatory authority will maintain the roll of practising barristers.
Seanad amendment agreed to.
Seanad amendment No. 201:
Section 106: In page 87, between lines 13 and 14, to insert the following:
“Power of Authority to issue direction for failure to comply with statutory requirements
111. (1) Where the Authority reasonably believes that a limited liability partnership is contravening or has contravened subsection (8) of section 109 it may, in accordance with this section, give a direction in writing to that partnership to do or refrain from doing such acts as are specified in the direction.
(2) Where the Authority proposes to issue a direction under subsection (1), it shall send the limited liability partnership a notice in writing—
(a) setting out the nature of the contravention that the Authority reasonably believes to be occurring or to have occurred and the reason it so believes,
(b) setting out the measures that it proposes to direct the limited liability partnership concerned to take in order to bring such contravention to an end, and
(c) inviting the limited liability partnership to make observations within such period as is specified in the notice in relation to the belief of the authority referred to in paragraph (a) or the measures proposed under paragraph (b) or both.
(3) The Authority may, having considered any observations made by the limited liability partnership under subsection (2) within the time specified in the notice, give a direction in writing to the partnership, directing it to take such measures within such period as may be specified in the direction, as the Authority considers necessary to ensure compliance by that partnership with any requirements under section 109(8).
(4) A limited liability partnership may, not later than 21 days after the giving of a direction under this section by the Authority, appeal that direction to the High Court.
(5) An appeal under subsection (4) shall be on notice to the Authority.
(6) The High Court, on hearing an appeal under this section, may—
(a) confirm the direction concerned, or
(b) where it considers that the direction is oppressive, unreasonable or unnecessary, revoke or vary the direction.”.
Seanad amendment agreed to.
Seanad amendment No. 202:
Section 106: In page 87, between lines 13 and 14, to insert the following:
“Application to High Court for order in respect of failure to comply with direction under
section 111
112. (1) Where a limited liability partnership fails to comply with a direction under section 111, the Authority may apply to the High Court for an order—
(a) requiring the partnership to comply with the direction,
(b) suspending the authorisation issued under section 109, or
(c) revoking the authorisation issued to that partnership under section 109.
(2) An application under subsection (1) shall be on notice to the limited liability partnership concerned.
(3) The High Court, on hearing an application for an order under subsection (1) may make an order—
(a) directing the limited liability partnership to comply with the direction under section 111, or
(b) setting aside the direction.
(4) The High Court, on hearing an application for an order referred to in subsection (1)(b), may make an order suspending the authorisation issued under section 109 to the limited liability partnership concerned for such period as is specified in the order and subject to such conditions (if any) as the Court may specify.
(5) The High Court, on hearing an application for an order referred to in subsection (1)(c), may make an order—
(a) suspending the authorisation issued under section 109 to the limited liability partnership concerned for such period as is specified in the order and subject to such conditions (if any) as the Court may specify, or
(b) revoking the authorisation issued under section 109 to the limited liability partnership concerned.
(6) The jurisdiction vested in the High Court under this section shall be exercised by the President of the High Court or, if and whenever the President of the High Court so directs, by an ordinary judge of the High Court for the time being assigned in that behalf.
(7) The Authority or the limited liability partnership concerned may appeal to the Court of Appeal against an order of the High Court made under this section not later than 21 days from the date of the making of the order and, unless the High Court or the Court of Appeal otherwise directs, the order of the High Court shall have effect pending the determination of such appeal.
(8) Where an order is made by the High Court under subsection (3) or (4), the Authority shall as soon as practicable thereafter cause—
(a) a notice to be published in Iris Oifigiúil stating the effect of the order, and
(b) such notice to be published in such other manner as the Authority may consider appropriate.”.
Seanad amendment agreed to.
Seanad amendment No. 203:
Section 106: In page 87, between lines 13 and 14, to insert the following:
“Ceasing to operate as a limited liability partnership
113. (1) Where a limited liability partnership intends to cease operating as a limited liability partnership it shall notify the Authority in writing of its intention and the date on which it intends to cease to so operate.
(2) An authorisation issued to a limited liability partnership under section 109 shall stand revoked from such date as is specified in a notification given to the Authority in accordance with subsection (1).
(3) An authorisation issued to a limited liability partnership under section 109 shall stand revoked from such date as the limited liability partnership ceases to have professional indemnity insurance in place as required by that section.
(4) A notification under subsection (1) shall be in such form and accompanied by such fee (if any) as may be prescribed by regulations made under section 114.”.
Seanad amendment agreed to.
Seanad amendment No. 204:
Section 106: In page 87, between lines 13 and 14, to insert the following:
“Regulations on operation of limited liability partnerships
114. (1) The Authority shall make regulations in relation to the operation and management of limited liability partnerships.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for—
(a) the form of application for authorisation under section 109,
(b) the information to accompany any application for authorisation under section 109, including the name and address of each of the partners in the relevant business making the application and the full name of the partnership and the address at which the partnership ordinarily carries on business,
(c) the information (including the standard of such information) to be provided by a limited liability partnership to its clients and creditors as to the nature and effect of limited liability partnerships,
(d) the information to be provided by a limited liability partnership to the Authority for the purposes of enabling the Authority to ensure compliance by that partnership with any requirements imposed on such partnerships by or under this Act, and
(e) the fee to accompany an application under section 109 or a notification under section 113.”.
Seanad amendment agreed to.
Seanad amendment No. 205:
Section 106: In page 87, between lines 13 and 14, to insert the following:
“Disapplication of section 3 of
Registration of Business Names Act 1963
107. Section 3 of the Registration of Business Names Act 1963 shall not apply to a limited liability partnership.”.
Seanad amendment agreed to.
Seanad amendment No. 206:
Section 106: In page 87, between lines 13 and 14, to insert the following:
“Amendment of section 27 of
Companies Act 2014
108. Section 27 of the Companies Act 2014 is amended by the insertion of the following subsection after subsection (3):
“(3A) Subsection (1) as it relates to the use of the word ‘limited’, or any abbreviation of that word, shall not apply to a limited liability partnership (within the meaning of the Legal Services Regulation Act 2015).”.”.
Seanad amendment agreed to.
Seanad amendment No. 207:
Section 108: In page 88, to delete line 13.
Seanad amendment agreed to.
Seanad amendment No. 208:
Section 108: In page 88, line 14, to delete “section 74(3)(b)(v)” and substitute “section 75(7)(e)”.
Seanad amendment agreed to.
Seanad amendment No. 209:
Section 108: In page 88, line 21, to delete “section 74(3)(b)(iv)” and substitute “section 75(7)(d)”.
Seanad amendment agreed to.
Seanad amendment No. 210:
Section 111: In page 90, line 15, to delete “arbitration;” and substitute “arbitration, mediation or conciliation;”.
Seanad amendment agreed to.
Seanad amendments Nos. 211, 213, 214, 222, 225 to 228, inclusive, and 274 to 276, inclusive, are related and may be discussed together.
Seanad amendment No. 211:
Section 114: In page 93, to delete lines 23 and 24 and substitute the following:
“(8) The register of determinations shall be available for inspection without payment, during office hours by any person who applies to inspect it, and on a website of the Courts Service.”.
Part 10 dealing with legal costs has been well developed for some time. As such, the amendments proposed today are, in the main, only technical enhancements to what is already in place, rather than substantive policy changes to the Part. While I can discuss in detail each amendment, if necessary, Deputies may appreciate a brief overview. The purpose of Part 10 is to introduce an enhanced legal costs regime that will bring greater transparency to how legal costs are charged by legal practitioners along with a better balance between the interests of legal practitioners and those of their clients. A key reform under this Bill is that the current functions of the Taxing Master will be assumed by the new office of the legal costs adjudicators when adjudicating a disputed bill of costs. In all, the House will find this Part to be a significant reforming measure that is in the interests of consumers, transparency and competition. I ask Deputies to support this group of amendments.
Seanad amendment agreed to.
Seanad amendment No. 212:
Section 118: In page 95, line 35, to delete “section
115” and substitute “section 117”.
Seanad amendment agreed to.
Seanad amendment No. 213:
Section 121: In page 96, line 40, to delete “person.”,” and substitute “person.”.
Seanad amendment agreed to.
Seanad amendment No. 214:
Section 121: In page 96, after line 40, to insert the following:
“8A. Each Legal Costs Adjudicator shall, in respect of the discharge of his or her functions and exercise of his or her powers, be subject to the general direction of the Chief Legal Costs Adjudicator.
8B. The hours of attendance and sitting times for oral hearings of the Chief Legal Costs Adjudicator and of each Legal Costs Adjudicator shall be regulated by the Chief Legal Costs Adjudicator.”,”.
Seanad amendment agreed to.
Seanad amendment No. 215:
Section 121: In page 99, to delete lines 19 to 22 and substitute the following:
“(c) has a declaration under section 819 of the Companies Act 2014 made against him or her or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,
(d) is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Companies Act 2014, whether by virtue of that Chapter or any other provisions of that Act,”.
Seanad amendment agreed to.
Seanad amendment No. 216:
Section 121: In page 99, line 23, to delete “(d) is sentenced” and substitute “(e) is sentenced”.
Seanad amendment agreed to.
Seanad amendment No. 217:
Section 121: In page 99, line 25, to delete “(e) is removed” and substitute “(f) is removed”.
Seanad amendment agreed to.
Seanad amendment No. 218:
Section 123: In page 101, line 13, to delete “barrister” and substitute “practising barrister”.
Seanad amendment agreed to.
Seanad amendment No. 219:
Section 123: In page 101, line 32, to delete “barrister” and substitute “practising barrister”.
Seanad amendment agreed to.
Seanad amendment No. 220:
Section 123: In page 102, line 17, to delete “solicitor” and substitute “practising solicitor”.
Seanad amendment agreed to.
Seanad amendment No. 221:
Section 123: In page 102, line 18, to delete “barrister” and substitute “practising barrister”.
Seanad amendment agreed to.
Seanad amendment No. 222:
Section 125: In page 103, line 30, after “explanation” to insert “in writing”.
Seanad amendment agreed to.
Seanad amendment No. 223:
Section 125: In page 104, line 22, to delete “solicitor” and substitute “practising solicitor”.
Seanad amendment agreed to.
Seanad amendment No. 224:
Section 125: In page 104, line 23, to delete “barrister” where it firstly occurs and substitute “practising barrister”.
Seanad amendment agreed to.
Seanad amendment No. 225:
Section 126: In page 104, line 30, to delete “14 days” and substitute “21 days”.
Seanad amendment agreed to.
Seanad amendment No. 226:
Section 137: In page 113, line 2, after “functions of” to insert “the Chief Legal Costs Adjudicator or of”.
Seanad amendment agreed to.
Seanad amendment No. 227:
Section 137: In page 113, line 4, after “functions of” to insert “the Chief Legal Costs Adjudicator or of”.
Seanad amendment agreed to.
Seanad amendment No. 228:
Section 137: In page 113, line 5, after “she were” to insert “the Chief Legal Costs Adjudicator or”.
Seanad amendment agreed to.
Seanad amendment No. 229:
Section 146: In page 117, to delete lines 29 to 33 and substitute the following:
“(ii) professional independence; and
(iii) one or more of the following:
(I) a proven capacity for excellence in the practice of advocacy;
(II) a proven capacity for excellence in the practice of specialist litigation; or
(III) specialist knowledge of an area of law;”.
Seanad amendment agreed to.
Seanad amendment No. 230:
Section 148: In page 118, line 27, to delete “section 74(3)(b)(vii)” and substitute “section 75(7)(g)”.
Seanad amendment agreed to.
Seanad amendment No. 231:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“PART 13
AMENDMENTS OF SOLICITORS ACTS 1954 TO 2011
Amendment of section 3 of Act of 1954
150. Section 3 of the Act of 1954 is amended by the insertion of the following definition:
“ ‘the Authority’ means the Legal Services Regulatory Authority;”.”.
Seanad amendment agreed to.
Seanad amendment No. 232:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 5 of Act of 1954
151. Section 5(1) of the Act of 1954 is amended by the substitution of “may, with the approval of the Authority, make” for “may make”.”.
Seanad amendment agreed to.
Seanad amendment No. 233:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 47 of Act of 1954
152. Section 47(8) of the Act of 1954 is amended by the substitution of “Authority” for “Minister”.”.
Seanad amendment agreed to.
Seanad amendment No. 234:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 48 of Act of 1954
153. Section 48(3) of the Act of 1954 is amended by the substitution of “Authority” for “Chief Justice” in both places where it occurs.”.
Seanad amendment agreed to.
Seanad amendment No. 235:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 49 of Act of 1954
154. Section 49 of the Act of 1954 is amended—
(a) in subsection (1)(q)—
(i) by the substitution, in subparagraph (ii), of “years,” for “years, or”,
(ii) by the substitution, in subparagraph (iii), of “clients, or” for “clients.”, and
(iii) by the insertion of the following after subparagraph (iii):
“(iv) the number and nature of complaints made to the Authority in respect of the solicitor under section 42 of the Legal Services Regulation Act 2015, within the preceding two practice years;”,
(b) by the insertion of the following after subsection (1)(q):
“(r) he has failed to comply with a notice issued to him under section 60(6)(c) of the Legal Services Regulation Act 2015 by the Complaints Committee of the Authority;
(s) he has failed to comply with a direction issued to him under section 61(1)(a) of the Legal Services Regulation Act 2015;
(t) he has been convicted of an indictable offence;
(u) he has contravened the Solicitors Acts 1954 to 2015;
(v) he has contravened the Legal Services Regulation Act 2015 or regulations made under it.”,
and
(c) by the insertion of the following after subsection (7):
“(8) The Society, where it has reason to consider that a solicitor may not be fit to carry on the practice of a solicitor having regard to the state of his physical or mental health, may, for the purposes of subsection (1)(p), direct that the solicitor be examined by a registered medical practitioner nominated by the Society.
(9) In subsection (8), ‘registered medical practitioner’ means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007.”.”.
Seanad amendment agreed to.
Seanad amendment No. 236:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 66 of Act of 1954
155. Section 66 of the Act of 1954 is amended in subsection (1) by the substitution of “the Authority” for “the President of the High Court”.”.
Seanad amendment agreed to.
Seanad amendment No. 237:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 71 of Act of 1954
156. Section 71 of the Act of 1954 is amended in subsection (8) by—
(a) the deletion of “Notwithstanding paragraph (d) of subsection (2) and subsection (3) of this section;” and
(b) the deletion of “, whether an advertisement or otherwise,”.
Seanad amendment agreed to.
Seanad amendment No. 238:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 3 of Act of 1960
158. Section 3 of the Act of 1960 is amended by the insertion of the following definitions:
“ ‘Authority’ means the Legal Services Regulatory Authority;
‘misconduct’ shall be construed in accordance with section 41 of the Legal Services Regulation Act 2015, in so far as that section relates to solicitors;”.”.
Seanad amendment agreed to.
Seanad amendment No. 239:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Solicitor shall not have connection, accept instructions, from certain persons
159. The Act of 1960 is amended by the insertion of the following after section 3:
“3A. A solicitor shall not, in the course of his or her practice as a solicitor, other than where permitted to do so under the Legal Services Regulation Act 2015—
(a) have any direct or indirect connection, association or arrangement with any person (other than a client) whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of section 55 or 56 or section 58 of the Principal Act, or section 5 of the Solicitors (Amendment) Act 2002, or
(b) accept instructions to provide legal services to a person from another person whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of the enactments referred to in paragraph (a).”.”.
Seanad amendment agreed to.
Seanad amendment No. 240:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 7 of Act of 1960
160. Section 7 of the Act of 1960 is amended in subsection (1) by the substitution of “made by the person before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation, or made by the Society” for “or by the Society”.
Seanad amendment agreed to.
Seanad amendment No. 241:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 9 of Act of 1960
161. Section 9 of the Act of 1960 is amended by the substitution of “Law Society” for “Disciplinary Committee” in each place where it occurs.”.
Seanad amendment agreed to.
Seanad amendment No. 242:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 10 of Act of 1960
162. Section 10 of the Act of 1960 is amended by the insertion of the following after subsection (4):
“(5) The Law Society shall inform the Authority of the making of an order, or the refusal of an application, under subsection (3).”.”.
Seanad amendment agreed to.
Seanad amendment No. 243:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 14 of Act of 1960
163. Section 14 of the Act of 1960 is amended—
(a) in paragraph (e), by the substitution of “application,” for “application, and”,
(b) by the insertion of the following after paragraph (f):
“(g) the making of a complaint under Part 5 of the Legal Services Regulation Act 2015 to the Authority and documents created or furnished to the parties entitled to receive them under that Part,
(h) an interim report and final report, referred to in section 50 of the Legal Services Regulation Act 2015, of the Society of an investigation carried out by it in compliance with a request under that section, and
(i) proceedings and documents associated with an inquiry held by the Legal Practitioners Disciplinary Tribunal under Part 5 of the Legal Services Regulation Act 2015.”.”.
Seanad amendment agreed to.
Seanad amendment No. 244:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 17 of Act of 1960
164. Section 17 of the Act of 1960 is amended—
(a) in subsection (1)—
(i) by the substitution, in paragraph (a), of “Act” for “Act, and”,
(ii) by the substitution, in paragraph (b), of “Act, and” for “Act,”, and
(iii) by the insertion of the following after paragraph (b):
“(c) a copy of any decision or order made by the High Court and any determination made by the Legal Practitioners Disciplinary Tribunal under Part 5 of the Legal Services Regulation Act 2015 in relation to a complaint under that Part in respect of a solicitor,”,
(b) in subsection (3)—
(i) by the substitution, in paragraph (b), of “Disciplinary Committee, and” for “Disciplinary Committee.”, and
(ii) by the insertion of the following after paragraph (b):
“(c) on a file to be termed File C, there shall be entered each decision or order made by the High Court under section 74 or 75 of the Legal Services Regulation Act 2015 and any determination made by the Legal Practitioners Disciplinary Tribunal under section 72 of the Legal Services Regulation Act 2015, in relation to a complaint under that Part in respect of a solicitor.”,
(c) in subsection (4), by the substitution of “File A, File B or File C” for “File A or File B”, and
(d) in subsection (5)(a), by the substitution of “File A, File B or File C” for “File A or File B”.”.
Seanad amendment agreed to.
Seanad amendment No. 245:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 24 of Act of 1960
165. Section 24 of the Act of 1960 is amended by the substitution of “Authority” for “President of the High Court”.”.
Seanad amendment agreed to.
Seanad amendment No. 246:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 31 of Act of 1960
166. Section 31 of the Act of 1960 is amended in subsection (2) by the substitution of “Authority” for “President of the High Court”.”.
Seanad amendment agreed to.
Seanad amendment No. 247:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 2 of Act of 1994
167. Section 2 of the Act of 1994 is amended by the insertion of the following definition:
“ ‘Authority’ means the Legal Services Regulatory Authority;”.”.
Seanad amendment agreed to.
Seanad amendment No. 248:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 8 of Act of 1994
168. Section 8 of the Act of 1994 is amended—
(a) in subsection (1), by the substitution of “Where the Society, before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation,” for “Where the Society”, and
(b) in subsection (8), by the substitution of “Authority” for “President of the High Court”.”.
Seanad amendment agreed to.
Seanad amendment No. 249:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 9 of Act of 1994
169. Section 9 of the Act of 1994 is amended—
(a) in subsection (1), by the substitution of “Where the Society, before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation,” for “Where the Society”, and
(b) in subsection (2), by the substitution of “basis, or to the Chief Legal Costs Adjudicator for adjudication under Part 10 of the Legal Services Regulation Act 2015.” for “basis.”,
(c) in subsection (3)—
(i) by the substitution of “basis, or to the Chief Legal Costs Adjudicator for adjudication under Part 10 of the Legal Services Regulation Act 2015,” for “basis,” and
(ii) “taxation, or to the Chief Legal Costs Adjudicator for adjudication under Part 10 of the Legal Services Regulation Act 2015.” for “taxation.”,
and
(d) in subsection (7), by the substitution of “Authority” for “President of the High Court”.”.
Seanad amendment agreed to.
Seanad amendment No. 250:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 10 of Act of 1994
170. Section 10 of the Act of 1994 is amended by the substitution of “made, before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation, to the Society -” for “made to the Society -”.
Seanad amendment agreed to.
Seanad amendment No. 251:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 14 of Act of 1994
171. Section 14 of the Act of 1994 is amended in subsection (1)—
(a) by the deletion of “whether as a result of a complaint or otherwise,” and
(b) by the insertion of the following after paragraph (a):
“(aa) a matter for the purposes of compliance with a request under section 50 of the Legal Services Regulation Act 2015,”.”.
Seanad amendment agreed to.
Seanad amendment No. 252:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 14A of Act of 1994
172. The Act of 1994 is amended by the substitution of the following for section 14A:
“14A. (1) For the avoidance of doubt, it is hereby declared that the power of the Society to investigate alleged misconduct by a solicitor may be exercised whether or not the Society receive—
(a) a complaint in relation to the solicitor, or
(b) a request under section 50 of the Legal Services Regulation Act 2015 for the investigation into any matter that is relevant to a complaint under Part 5 of that Act in relation to the solicitor.
(2) The Society shall, in addition to exercising its power referred to in subsection (1), conduct an investigation in compliance with a request under section 50 of the Legal Services Regulation Act 2015 for the investigation into any matter that is relevant to a complaint under Part 5 of that Act in relation to the solicitor.
(3) Where the Society, following an investigation, considers that the act or omission the subject of the investigation is not one to which subsection (6) applies, but determines that it warrants the imposition of a sanction under this section, it may—
(a) in accordance with section 61 of the Legal Services Regulation Act 2015, issue a direction to the solicitor concerned to take such measures as are specified in the determination of the Society, being measures specified in respect of solicitors in subsection (5) of that section, or
(b) where the solicitor concerned so consents in writing, take the measure, being the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015, specified in the determination of the Society.
(4) Where the Society issues one or more than one direction in accordance with subsection (3)(a) and the solicitor complies with each such direction, the complaint shall be considered as determined.
(5) Where the Society (with the consent of the solicitor concerned) takes the measure specified in subsection (3)(b), the complaint shall be deemed to be determined.
(6) (a) Subject to subsection (7), where the Society has commenced its investigation on or after the date on which the Legal Services Regulation Act 2015 comes into operation, and it considers that the act or omission the subject of the investigation is of a kind that is more appropriate for consideration by the Legal Practitioners Disciplinary Tribunal than by it, it may make an application in respect of the matter to it for the holding of an inquiry under section 73 of the Legal Services Regulation Act 2015.
(b) In determining whether it be more appropriate for the matter to be considered by the Legal Practitioners Disciplinary Tribunal, the Society shall have regard to the gravity of the concerns raised and matters disclosed in the complaint and in its investigation.
(7) (a) Where the Society considers that the measure specified in section 61(6)(a) of the Legal Services Regulation Act 2015 is the appropriate measure to be taken as respects the finalisation of its investigation, it shall notify the solicitor concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificate of the solicitor, the precise restriction or condition) it proposes to take.
(b) The notification referred to in paragraph (a) shall indicate that unless the solicitor concerned furnishes to the Society his or her consent in writing to the imposition of the specified measures within 21 days of the issue of the notification, the Society will apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015.
(c) Where the Society issues a notification pursuant to paragraph (b) and does not receive the written consent of the solicitor concerned within 21 days to the imposition of the specified measures, it shall apply to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015 into the matter, in so far as the Society has not found that the concerns giving rise to its investigation of the matter are unfounded or that the act or omission concerned does not warrant the imposition of a sanction under this section or an application under subsection (7) to the Legal Practitioners Disciplinary Tribunal.
(8) The Society shall notify the Authority of its determination under subsection (3).”.”.
Seanad amendment agreed to.
Seanad amendment No. 253:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Monitor appointed by Authority may attend committee meetings
173. The Act of 1994 is amended by the insertion of the following after section 14B:
“14C. (1) Where a committee is investigating an act or omission of a solicitor to which section 42(5) of the Legal Services Regulation Act 2015 applies, a monitor may attend and observe any meeting of the committee in relation to the investigation.
(2) The Society shall inform the Authority of the time and place of a meeting referred to in subsection (1).
(3) In this section—
‘committee’ means any committee of the Society to which the powers or functions of investigating alleged misconduct by a solicitor has been delegated;
‘monitor’ means a person appointed by the Authority under section 83 of the Legal Services Regulation Act 2015 to perform the functions of a monitor under this section.”.”.
Seanad amendment agreed to.
Seanad amendment No. 254:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 22 of Act of 1994
174. Section 22 of the Act of 1994 is amended by the insertion of “or the Legal Practitioners Disciplinary Tribunal” after “Tribunal” in both places where it occurs.”.
Seanad amendment agreed to.
Seanad amendment No. 255:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 26 of Act of 1994
175. Section 26 of the Act of 1994 is amended—
(a) in subsection (1)—
(i) by the substitution of “The Society may, with the consent of the Authority, make regulations” for “The Society may make regulations”,
(ii) in paragraph (a), by the substitution of “solicitor,” for “solicitor, or”,
(iii) in paragraph (b), by the substitution of “as a solicitor, or” for “as a solicitor.”, and
(iv) by the insertion of the following paragraph after paragraph (b):
“(c) by a solicitor arising from his practice as a solicitor in a legal partnership, multi-disciplinary practice or limited liability partnership (within the meaning of the Legal Services Regulation Act 2015).”,
(b) by the insertion of the following new subsection after subsection (1):
“(1A) In making indemnity regulations under subsection (1), regard shall be had to the objective of ensuring, in relation to solicitors in a legal partnership, multi-disciplinary practice or limited liability partnership referred to in paragraph (c) of that subsection, that there is adequate indemnity against losses in place respect of each solicitor and other person in such partnership or practice concerned who is required to be covered.”.
(c) in subsection (5), by the substitution of “the Authority” for “the Minister”, and
(d) by the deletion of subsection (6).”.
Seanad amendment agreed to.
Seanad amendment No. 256:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 35 of Act of 1994
176. Section 35 of the Act of 1994 is amended by the substitution of “Society and to the Authority,” for “Society,”.”.
Seanad amendment agreed to.
Seanad amendment No. 257:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 38 of Act of 1994
177. Section 38 of the Act of 1994 is amended in subsection (1)—
(a) by the substitution of “the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015,” for “the Solicitors Acts, 1954 to 1994,”, and
(b) by the insertion of “or the Authority” after “Society”.”.
I move amendment No. 1 to Seanad amendment No. 257:
To delete the section 177 proposed to be inserted by Seanad amendment number 257 and substitute the following:
“Amendment of section 38 of Act of 1994
177. Section 38 of the Act of 1994 is amended—
(a) in subsection (1)—
(i) by the substitution of “the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015,” for “the Solicitors Acts, 1954 to 1994,”, and
(ii) by the insertion of “or the Authority” after “Society”,
and
(b) in subsection (2) by the substitution of “the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015,” for “the Solicitors Acts, 1954 to 1994,”.
Amendment No. 1 to Seanad amendment No. 257 agreed to.
Seanad amendment No. 257, as amended, agreed to.
Seanad amendment No. 258:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 58 of Act of 1994
179. Section 58 of the Act of 1994 is amended—
(a) in subsection (1), by the substitution of “Where a solicitor fails to comply with any provision of the Solicitors Acts 1954 to 2015 or the Legal Services Regulation Act 2015, or with any regulations made thereunder or with any conditions specified in a direction relating to a practising certificate under section 59 of this Act, or has been convicted of an indictable offence and sentenced to a term of imprisonment, and the Society are of the opinion that such failure to comply or, as the case may be, such conviction and sentence is serious and warrants the making of an application under this section” for “Where a solicitor fails to comply with any provision of the Solicitors Acts 1954 to 1994, or with any regulations made thereunder or with any conditions specified in a direction relating to a practising certificate under section 59 of this Act, and the Society are of the opinion that such failure to comply is serious and warrants the making of an application under this section”, and
(b) by the substitution of the following for subsection (3):
“(3) Any application made by the Society pursuant to subsection (1) shall be without prejudice to the right of the Society under—
(a) section 7 of the Act of 1960 to apply to the Disciplinary Tribunal for an inquiry into the conduct of the solicitor concerned on the ground of alleged misconduct, or
(b) section 14A to make an application to the Legal Practitioners Disciplinary Tribunal in respect of the conduct of the solicitor concerned for the holding of an inquiry under section 71 of the Legal Services Regulation Act 2015.”.”.
Seanad amendment agreed to.
Seanad amendment No. 259:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 59 of Act of 1994
180. Section 59(2) of the Act of 1994 is amended by the substitution of “section 49(1)(c) to (v)” for “section 49(1)(c) to (p) (as substituted by this Act)”.”.
Seanad amendment agreed to.
Seanad amendment No. 260:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 1 of Act of 2002
181. Section 1 of the Act of 2002 is amended by the insertion of the following definition:
“ ‘the Authority’ means the Legal Services Regulatory Authority;”.”.
Seanad amendment agreed to.
Seanad amendment No. 261:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 5 of Act of 2002
182. Section 5 of the Act of 2002 is amended by—
(a) the substitution of the following paragraph for paragraph (b):
“(b) which, if published or caused to be published by a solicitor, would contravene regulations made under section 158 of the Legal Services Regulation Act 2015.”,
and
(b) by the substitution of the following subsection for subsection (2):
“(2) In subsection (1), ‘advertisement’ has the meaning assigned to it by section 158(8) of the Legal Services Regulation Act 2015 with the substitution, where appropriate, of ‘a person who is not a solicitor’ for ‘a legal practitioner’.”.”.
Seanad amendment agreed to.
Seanad amendment No. 262:
Section 148: In page 120, between lines 3 and 4, to insert the following:
“Amendment of section 19 of Act of 2002
183. Section 19 of the Act of 2002 is amended—
(a) by the substitution of “Legal Practitioners Disciplinary Tribunal” for “Disciplinary Tribunal” in each place in which it occurs, and
(b) by the substitution of the following for subsection (7):
“(7) In this section, ‘misconduct’—
(a) means, in relation to an act or omission that occurred before the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation—
(i) the commission of an offence under section 55, 56 or 58 of the Principal Act or of an arrestable offence (within the meaning of the Criminal Law Act 1997),
(ii) conduct outside the State which constitutes an offence under the law of the jurisdiction concerned and which, if that conduct took place within the State, would constitute an arrestable offence (within that meaning), or
(iii) any other conduct which, if engaged in by a solicitor, would tend to bring the solicitors’ profession into disrepute,
and
(b) in relation to an act or omission that occurred on or after the date on which Part 5 of the Legal Services Regulation Act 2015 comes into operation, shall be construed in accordance with section 41 of that Act, in so far as that section relates to solicitors.”.”.
Seanad amendment agreed to.
Seanad amendment No. 263:
Section 148: In page 120, between lines 5 and 6, to insert the following:
“Immunity
150. (1) Neither the Authority nor a member, or member of staff, of the Authority shall be liable in damages in respect of any act done or omitted to be done by it or him or her in the performance, or purported performance, of its or his or her functions under Part 3 or 5, unless the act or omission concerned was done in bad faith.
(2) The State shall not be liable in damages in respect of any act done or omitted to be done by the Authority or a member, or member of staff, of the Authority in the performance, or purported performance, by the Authority or such member of its, his or her functions under Part 3 or 5, unless the act or omission concerned was done in bad faith.
(3) Neither the State nor the Authority shall be liable in damages in respect of any act done or omitted to be done by the Law Society in the performance, or purported performance, by the Law Society of its functions under Part 5 or the Solicitors Acts 1954 to 2015.
(4) In this section—
‘Authority’ includes a Review Committee established under section 53, the Complaints Committee and the Disciplinary Tribunal;
‘member of staff’ includes an inspector appointed in accordance with section 31(1)(b).”.
Seanad amendment agreed to.
Seanad amendment No. 264:
Section 148: In page 120, between lines 5 and 6, to insert the following:
“No indemnification of Compensation Fund
151. (1) The State shall not indemnify the Compensation Fund in respect of any liability of that Fund howsoever arising and, accordingly, no public moneys shall be paid into that Fund for any purpose or be otherwise used to meet any liability of that Fund.
(2) This section shall apply whether or not the moneys standing to the credit of the Compensation Fund are sufficient to meet the liabilities of that Fund.
(3) In this section “public moneys” means moneys charged on or issued out of the Central Fund or the growing produce thereof or provided by the Oireachtas.”.
Seanad amendment agreed to.
Seanad amendment No. 265:
Section 151: In page 120, to delete lines 31 to 38, and in page 121, to delete lines 1 to 10, and substitute the following:
“Barrister in employment may provide legal services to his or her employer
151. (1) A barrister whose name is entered on the roll of practising barristers in accordance with Part 9 may—
(a) take up paid employment, and
(b) as part of that employment, provide legal services to his or her employer, including by appearing on behalf of that employer in a court, tribunal or forum for arbitration.
(2) A professional body shall not, through its professional codes or otherwise, prevent or restrict a barrister who is a member of that body from working with, or otherwise doing business with, barristers providing legal services in accordance with subsection (1).
(3) In this section “employment” includes part-time employment.”.
Seanad amendment agreed to.
Seanad amendment No. 266:
Section 153: In page 121, between lines 16 and 17, to insert the following:
“Amendment of Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
153. Section 60 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 is amended in subsection (2)—
(a) in paragraph (d), by the insertion of the words “who is a member of the Law Library” after “barrister”, and
(b) by the insertion of the following paragraph after paragraph (d):
“(da) in the case of a designated person who is a barrister who is not a member of the Law Library, the Legal Services Regulatory Authority;”.”.
Seanad amendment agreed to.
Seanad amendment No. 267:
Section 153: In page 121, line 34, to delete “Part 6” and substitute “Part 5”.
Seanad amendment agreed to.
Seanad amendments Nos. 268, 269 and 277 are related and may be discussed together by agreement.
Seanad amendment No. 268:
Section 155: In page 122, to delete lines 9 to 41, to delete page 123, and in page 124, to delete line 1.
These amendments delete the existing sections 155 and 156 along with the existing Schedule 2 relating to whistleblowers and protected disclosures. This follows advices received and detailed consultation with the Department of Public Expenditure and Reform, which has policy responsibility for this area.
The reason for proceeding in this way is that these matters were dealt with centrally under the Protected Disclosures Bill 2014, which has been enacted since it was envisaged these measures would be in this Bill. The Protected Disclosures Act was not in place when the Legal Services Regulation Bill was originally published in 2011. It has been decided to rely on the new and comprehensive whistleblower protections in line with the Government decision to discontinue a sector-by-sector approach to whistleblowing as well as the need to ensure no confusion or cross-cutting between parallel regimes. The 2014 Act is understood to be comprehensive for these purposes.
Seanad amendment agreed to.
Seanad amendment No. 269:
Section 156: In page 124, to delete lines 2 to 33.
Seanad amendment agreed to.
Seanad amendment No. 270:
Section 158: In page 126, to delete lines 14 to 40, and in page 127, to delete lines 1 to 30 and substitute the following:
“Advertising of legal services
158. (1) No professional code shall operate to prevent—
(a) a legal practitioner from advertising his or her legal services,
(b) a legal partnership, a multi-disciplinary practice or a limited liability partnership from advertising their legal services, or
(c) a group of legal practitioners, who share a facility, premises or cost of practice, from advertising themselves as such a group.
(2) The Authority may make regulations in relation to the advertising of legal services, including in relation to the information that may be contained in advertisements published or caused to be published by legal practitioners in relation to legal services they provide and any areas of law to which those services relate.
(3) Before making regulations under subsection (2), the Authority shall consult, in such manner as it considers appropriate, with—
(a) a professional body, the members of which will be subject to the regulations when made, and
(b) such other interested parties, including legal practitioners who are not members of a body referred to in paragraph (a) who will be subject to the regulations when made, as the Authority considers appropriate.
(4) Regulations made under subsection (2) may not restrict the advertising of legal services unless such restriction is—
(a) necessary for—
(i) the protection of the independence, dignity and integrity of the legal profession, and
(ii) an overriding reason relating to the public interest,
and
(b) non-discriminatory and proportionate.
(5) Without prejudice to the generality of subsection (2), regulations made under that subsection may—
(a) specify the category or categories of legal practitioner to whom such regulations apply,
(b) make provision in relation to advertisements that may be published or caused to be published by or on behalf of a legal practitioner, including provision in respect of their content and size,
(c) provide for the manner in which the Authority is to determine whether any particular advertisement published or caused to be published by a legal practitioner is in contravention of this section or any regulations under this section, and
(d) restrict the publication by or on behalf of a legal practitioner of any advertisement which in the opinion of the Authority—
(i) is likely to bring the legal profession into disrepute,
(ii) is in bad taste,
(iii) reflects unfavourably on other legal practitioners,
(iv) is false or misleading in any material respect,
(v) is published in an inappropriate location,
(vi) subject to subsection (7), expressly or impliedly solicits, encourages or offers any inducement to any person or group or class of persons to make claims for personal injuries or seek legal services in connection with such claims.
(6) A legal practitioner shall not publish or cause to be published an advertisement which does not comply with regulations made under subsection (2).
(7) Nothing in subsection (5)(d)(vi) shall be taken to authorise the Authority to impose a restriction on the inclusion in an advertisement published by or on behalf of a legal practitioner of the words “personal injuries” as part of the legal services provided by the legal practitioner.
(8) In this section—
“advertisement” means any communication (whether oral or in written or other visual form and whether produced by electronic or other means) which is intended to publicise or otherwise promote a legal practitioner in relation to the provision by him or her of legal services, including any—
(a) brochure, notice, circular, leaflet, poster, placard, photograph, illustration, emblem, display, stationery, directory entry, article or statement for general publication,
(b) electronic address or any information provided by the legal practitioner that is accessible electronically,
(c) audio or video recording, or
(d) presentation, lecture, seminar or interview,
which is so intended but excluding a communication which is primarily intended to give information on the law;
“inappropriate location” means a hospital, clinic, doctor’s surgery, funeral home, cemetery, crematorium or other physical location of a similar character.”.
Seanad amendment agreed to.
Seanad amendments Nos. 271 to 273, inclusive, and 280 are related and may be discussed together by agreement.
Seanad amendment No. 271:
New Section: In page 127, after line 30, to insert the following:
“PART 15
CLINICAL NEGLIGENCE ACTIONS
Clinical negligence actions
159. (1) The Civil Liability and Courts Act 2004 is amended by inserting the following Part after Part 2:
“PART 2A
CLINICAL NEGLIGENCE ACTIONS
Interpretation of Part 2A
32A. (1) In this Part—
‘clinical negligence’ means anything done or omitted to be done in the provision of a health service by a health service provider in circumstances which could give rise to liability for damages for negligence in respect of personal injury or death;
‘clinical negligence action’ means an action for the recovery of damages brought—
(a) by or on behalf of a person alleging that he or she, or a deceased person of whom he or she is a personal representative, has suffered personal injury or death as a result of clinical negligence, and
(b) against the health service provider alleged to have committed the act or omission giving rise to liability or any other person alleged to be liable in respect of that act or omission;
‘health service’ means—
(a) the carrying out of a clinical investigation, diagnosis, procedure, treatment or research,
(b) the provision of clinical advice or information, or
(c) the provision of clinical care;
‘health service provider’ means a person whose name is on—
(a) the register of medical practitioners,
(b) a register maintained by the Dental Council,
(c) a register maintained by the Optical Registration Board,
(d) a register set up under section 13(1) of the Pharmacy Act 2007,
(e) a register maintained under section 46 of the Nurses and Midwives Act 2011, or
(f) a register maintained by any health and social care profession which has been designated for the purposes of the Health and Social Care Professionals Act 2005 and which the Minister has prescribed by regulations;
‘pre-action protocol’ means the pre-action protocol mentioned in section 32B.
Pre-action protocol
32B. (1) There shall be a pre-action protocol relating to clinical negligence actions.
(2) The pre-action protocol shall include requirements that must be complied with by the parties to clinical negligence actions before such actions are brought.
(3) The Minister shall by regulations make provision specifying the terms of the pre-action protocol.
(4) Before making regulations under subsection (3), the Minister shall consult—
(a) the Minister for Health,
(b) the State Claims Agency,
(c) any such bodies involved in the regulation of persons providing legal services as the Minister considers appropriate,
(d) any such bodies involved in the regulation or training of persons providing health services as the Minister considers appropriate,
(e) any such bodies representative of the interests of patients as the Minister considers appropriate, and
(f) any such other bodies as the Minister considers appropriate.
(5) The Minister shall, in making regulations under subsection (3), have regard to the desirability of—
(a) encouraging the early resolution of enquiries or allegations relating to possible clinical negligence,
(b) promoting timely communication between persons who are enquiring into or making allegations about possible clinical negligence and those whom they consider may be liable in respect of it,
(c) reducing the number of cases in which clinical negligence actions are brought,
(d) facilitating the early identification of the issues in dispute in clinical negligence actions, and
(e) encouraging the early settlement of clinical negligence actions.
(6) The terms of the pre-action protocol specified by regulations under subsection (3) shall in particular include provision relating to—
(a) the disclosure of medical and other records relating to persons enquiring into or alleging possible clinical negligence (including charges for disclosure),
(b) the giving of notifications of enquiries into, and allegations of, possible clinical negligence, the acknowledgment of notifications of enquiries and the giving of responses to notifications of allegations,
(c) the specification of the time at or within which records shall be disclosed and notifications given and acknowledged or responded to,
(d) the form of, and particulars to be included with, requests for disclosure or notifications of enquiries or allegations and acknowledgments of and responses to such notifications,
(e) the disclosure of material relevant to allegations and responses, and
(f) agreements to submit issues for resolution otherwise than by a court.
Powers of court
32C. The court in which a clinical negligence action is brought, on hearing the action, may do any of the following:
(a) direct that the action shall not proceed any further until steps which are required by the pre-action protocol to have been taken by any of the parties have been taken;
(b) order that a party who has not complied with a requirement of the pre-action protocol pay the costs, or part of the costs, of the other party or parties (including, where appropriate, on an indemnity basis);
(c) if an award of damages is made in favour of the plaintiff but the plaintiff either has not complied with a requirement of the preaction protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or greater than that awarded, order that the plaintiff shall be deprived of interest on all or part of the award or that all or part of the award shall carry interest at a lower rate than it otherwise would;
(d) if an award of damages is made against a defendant but the defendant either has not complied with a requirement of the preaction protocol or has rejected an offer to settle made in accordance with the pre-action protocol for an amount equal to or less than that awarded, order that the defendant pay interest on all or part of the award at a rate higher by no more than 10 percentage points than the rate for the time being standing specified under section 26 of the Debtors (Ireland) Act 1840.
Apology not to constitute admission of liability or invalidate insurance
32D. (1) An apology made in connection with an allegation of clinical
negligence—
(a) shall not constitute an express or implied admission of fault or liability, and
(b) shall not, despite any provision to the contrary in any contract of insurance and despite any other enactment, invalidate or otherwise affect any insurance coverage that is, or but for the apology would be, available in respect of the matter alleged.
(2) Despite any other enactment, evidence of an apology referred to in subsection (1) is not admissible as evidence of fault or liability of any person in any proceedings in a clinical negligence action.”.
(2) The amendment made by subsection (1) does not apply to clinical negligence actions where the cause of action accrues before the coming into operation of that subsection.”.
Amendments Nos. 271 and 273 insert an important new Part 15. They deal with pre-action protocols in medical negligence cases. I am pleased that it has been possible to include this part in the Bill. It provides the statutory basis for the introduction of what is termed "pre-action protocol", which will take the form of ministerial regulations. The pre-action protocol will set out the steps to be followed and the obligations on all relevant parties in respect of the handling of inquiries into and allegations of clinical medical negligence.
As Deputies will be aware, this legislative step has been called for from a wide variety of interested parties, including patient advocacy groups. This is good for the consumer. There have been many sad and difficult cases. It has also been called for by medical professionals and the Judiciary for many years.
The expert working group on medical negligence litigation and periodic payments was established by the President of the High Court with terms of reference that included the examination of the current system within the courts for the management of claims for damages arising out of alleged medical negligence, to identify any shortcomings within the system and the making of such recommendations as may be necessary to improve the system and eliminate shortcomings. The group published its report in March 2012. I am pleased that, without further delay, the implementation of many of the working group reforms and key recommendations is taking a major step forward today. The insertion of a ministerial regulation with powers in a primary statute, such as the Legal Services Regulation Bill, means the scope and purpose of the regulations as well as any legal technical matters are set out, while the detail of what is to be done is left to the regulator.
Much groundwork has been done in terms of consultation with interested parties. This has come about because we recognise that medical or clinical negligence claims are placing a major burden on patients who believe they are victims of medical negligence. It also places a major burden on the medical professionals, who must handle such claims almost exclusively within the adversarial context of legal proceedings with all the attendant shortcomings. It also places a major burden on the courts, which have to hear the claims, some of which are discovered at a late stage to have been unsupported by the necessary evidence thus leading to delays and inefficiencies. It was against this background that a pre-action protocol was called for in the interests of all parties. The pre-action protocol will set out in a step-by-step manner the procedures to be followed for the aggrieved recipients of health services as well as the medical practitioners concerned, starting from the inquiry stage and featuring all the way to court proceedings, where necessary.
I call on Members to support this pre-action protocol to encourage the early resolution of inquiries of allegations relating to possible clinical negligence and to promote good non-adversarial communication between the parties with a view to reducing the need to go to court.
Of course, access to the courts will still be available to parties where it is warranted. However, the pre-action protocol will ensure that a full disclosure of all relevant information, grounds of complaint and supporting evidence will be made clear at an early stage, thus reducing significantly the likelihood of court adjournments, which are a key factor in the high cost of litigation in this country. I believe this will have knock-on effects for the efficiencies of courts, a point many Senators and Deputies have raised. Many have referred to the need for greater efficiencies in our courts and the various initiatives that would make a difference in this regard. It could also lead to the possible lowering of insurance costs in the medical sphere to the benefit of all consumers. Therefore, from a consumer point of view, this new section will be helpful for some people in very difficult situations. It has been sought for a long period.
Seanad amendment agreed to.
Seanad amendment No. 272:
New Section: In page 127, after line 30, to insert the following:
“Other amendments of Civil Liability and Courts Act 2004
160. (1) Section 8 of the Civil Liability and Courts Act 2004 is amended—
(a) in subsection (1), by substituting “Subject to subsection (3), where” for “Where”,
and
(b) by inserting the following subsection after subsection (2):
“(3) This section does not apply to a clinical negligence action within the meaning of Part 2A.”.
(2) Section 17 of the Civil Liability and Courts Act 2004 is amended—
(a) in subsection (1), by substituting “Subject to subsection (6A), the” for “The”, and
(b) by inserting the following subsection after subsection (6):
“(6A) This section does not apply to a clinical negligence action within the meaning of Part 2A if an offer to settle the claim had, before the bringing of the action, been made by any party to the action in accordance with the pre-action protocol.”.
(3) The Civil Liability and Courts Act 2004 is amended by inserting the following section after section 17:
“Pre-action offers of settlement in clinical negligence claims
17A. (1) In a case of an action to which section 17 does not apply by virtue of subsection (6A) of that section, a copy of the offer of settlement shall be lodged in court by, or on behalf of, the party by which it was made.
(2) The terms of the offer of settlement shall not be communicated to the judge in the trial of the clinical negligence action until after he or she has delivered judgment in the action.
(3) The court shall, when considering the making of an order as to the payment of the costs in the action, have regard to—
(a) the terms of the offer of settlement, and
(b) the reasonableness of the conduct of the party by whom the offer was made in making the offer.
(4) This section is in addition to and not in substitution for any rule of court providing for the payment into court of a sum of money in satisfaction of a cause of action or the making of an offer of tender of payment to the other party or parties to an action.”.
Seanad amendment agreed to.
Seanad amendment No. 273:
New Section: In page 127, after line 30, to insert the following:
“Amendments of Statute of Limitations (Amendment) Act 1991
161. (1) The Statute of Limitations (Amendment) Act 1991 is amended—
(a) in section 3, by substituting the following subsection for subsection (1):
“(1) An action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of—
(a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, or
(b) otherwise, 2 years,
from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”,
(b) in section 4(1), by substituting “the period so specified” for “2 years”,
(c) in section 5(1), by substituting “the period specified in the said section 3 from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period so specified” for “2 years from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period specified in the said section 3”, and
(d) in section 6—
(i) in subsection (1), by substituting “the relevant period” for “2 years”, and
(ii) by inserting the following subsection after subsection (1):
“(1A) In subsection (1) ‘the relevant period’ means—
(a) in the case of a clinical negligence action within the meaning of Part 2A of the Civil Liability and Courts Act 2004, 3 years, and
(b) otherwise, 2 years.”.
(2) The amendments made by subsection (1) do not have effect where the date of accrual of the cause of action, or the date of knowledge of the person concerned as respects that cause of action, is before the coming into operation of that subsection.”.”.
Seanad amendment agreed to.
Seanad amendment No. 274:
Schedule 1: In page 128, line 9, to delete “matters:” and substitute “matters, where applicable:”.
Seanad amendment agreed to.
Seanad amendment No. 275:
Schedule 1: In page 128, to delete lines 10 and 11 and substitute the following:
“(a) the complexity and novelty of the issues involved in the legal work;”.
Seanad amendment agreed to.
Seanad amendment No. 276:
Schedule 1: In page 128, to delete lines 16 to 19 and substitute the following:
“(e) the urgency attached to the matter by the client and whether this requires or required the legal practitioner to give priority to that matter over other matters;”.
Seanad amendment agreed to.
Seanad amendment No. 277:
Schedule 2: In page 129, to delete lines 1 to 42, to delete pages 130 to 132, and in page 133 to delete lines 1 to 18.
Seanad amendment agreed to.
Seanad amendment No. 278:
Schedule 3: In page 134, between lines 6 and 7, to insert the following:
|
1954, No. 36
|
Solicitors Act 1954
|
Section 71(2), (3), (4), (5), (6) and (10).
|
Seanad amendment agreed to.
Seanad amendment No. 279:
Schedule 3: In page 134, to delete line 7 and substitute the following:
|
1994, No. 27
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Solicitors (Amendment) Act 1994
|
Sections 68 and 74
|
Seanad amendment agreed to.
Seanad amendment No. 280:
Title: In page 9, line 12, after “counsel,” to insert “to provide for matters relating to clinical negligence actions,”.
Seanad amendment agreed to.
Agreement of Seanad amendments, other than amendments Nos. 61, 76, 89, 90, 95, 98, 193 and 257, is reported to the House. A message will be sent to Seanad Éireann acquainting it that, first, Dáil Éireann has agreed to amendments Nos. 1 to 60, inclusive, 62 to 75, inclusive, 77 to 88, inclusive, 91 to 94, inclusive, 96, 97 and 99 to 192, inclusive, 194 to 256, inclusive, and 258 to 280, inclusive, made by Seanad Éireann to the Legal Services Regulation Bill 2011, and, second, Dáil Éireann has agreed to amendments Nos. 61, 76, 89, 90, 95, 98, 193 and 257, with amendments thereto, to which the agreement of Seanad Éireann is desired in each case. Is that agreed? Agreed.
The amendments are mostly technical amendments and one full section is repeated, but in fact a particular sentence needs to be inserted into the amendments.
I thank the Acting Chairman for taking us through all of the amendments and my colleague, the Minister of State, Deputy Murphy, for supporting me in the passage of the Bill today. I take this opportunity to express my thanks to Members of the House, the Seanad and the joint committee, which did a lot of work on the Bill. They have all helped to bring it to its final stage. I want to pay particular thanks to my predecessor, Deputy Alan Shatter, who, as Minister, launched the Bill and steered it through Committee Stage in the Dáil. Many people have put a significant amount of work into this very complex and comprehensive Bill over a long period of time, as we heard during the course of the debate today.
I thank in particular the staff of the Department of Justice and Equality who have done Trojan work on this Bill, with all its complexities. Conan McKenna, Richard Fallon and Clare Dowling, who have joined me here today, worked in a painstaking and detailed way over months and years. I also thank the many drafters in the Office of the Attorney General who did likewise and the Attorney General for her support throughout the developments in the Bill and the very complex issues we had to deal with in the transition the Bill represents to an independent regulatory authority.
This is a major transition. It moves us into a system of independent regulation of legal services in this country for the first time and it also introduces independent opportunities to examine complaints and disciplinary issues within legal services, which is extremely important.
Many people were involved in the development of the Bill. The parliamentary draftsmen were very patient in working with the detailed amendments we had to bring forward. Sometimes there were amendments to amendments because so many technical elements needed to be worked through in the Seanad and Dáil. I thank the Bills Office for its support in getting this complex Bill through the Houses.
Today, we discussed why we are enacting the Bill. Its purpose is to create a statutory regulator of all legal practitioners for the first time in the history of the State. The existing regime has no statutory regulation of barristers and there is nowhere other than professional bodies to which the public and clients can go with complaints. The professional bodies provided a large amount of detail to us, which was necessary because there will be a transition from the work they are doing. We needed a large amount of detail from them on the work they had been doing for decades. As I said, this is a major transition.
The Bill provides for complaints about legal practitioners, from whatever source, including clients, to be dealt with by an independent statutory body for the first time. I repeat what I said earlier, that is, that this Bill introduces new business models to increase competition in legal services. There are a series of measures to deal with the costs in the legal services market. The Bill will benefit consumers because there will now be an independent body. There will be an independent pathway, greater clarity regarding costs and pre-action protocols for medical negligence cases. There will shortly be a choice of various business models for the provision of legal services. The market will open up in a way which it has not to date because of the availability of new business models.
There is an outline of the work programme which the legal services regulatory authority will have to undertake in the years ahead. There are provisions to examine legal training. There will be further opportunities through new competitive practices and a greater range of partnerships once research has been done. For the first time limited liability partnerships will be available, which will be helpful in terms of competition. Once the Bill is enacted and the authority established, consumers will be provided with greater clarity about costs. They will be able to go into a practice where a solicitor and barrister or barrister and barrister work together.
I have no doubt that, given the changes in the market we have seen internationally, this is the beginning of new models in this country. It is inevitable that we will see a range of adaptation around those models in the years ahead.
I again point to the important provisions we have introduced regarding barristers who are employees representing their employers.
There is a very strong provision in regard to professional associations. There can be no interference in the establishment of these new models. The legal services regulatory authority will have a very strong oversight role when it comes to the development of new models. As I have already outlined, it will be involved in the general oversight of legal services, but also oversight when it comes to discipline and complaints.
I again thank all those involved in the development of the Bill. I look forward to it coming into law and being implemented. We will now move on to the appointment of the CEO and board, which will have a lay majority, another important point. The Bill will benefit consumers.
I thank the Competition and Consumer Protection Commission for its recommendations. We are fulfilling the vast majority of the recommendations in its report. We made some recent changes to the Bill to improve the schedule of costs, something it recommended. I look forward to the coming into being next year of the legal services regulatory authority.
Seanad amendments reported.
Sitting suspended at 5.10 p.m. and resumed at 7.30 p.m.
