Solicitors Bill, 1954—Committee and Final Stages.

Section 1 agreed to.
SECTION 2.

I move amendment No. 1:—

To delete paragraph (a) and substitute a new paragraph as follows:—

(a) Parts VII and VIII and Section 72 of this Act shall come into operation on the passing of this Act.

Apparently it was intended originally that this Bill should come into operation long before now. It is necessary that the regulations under the Act, under Section 5, should be drafted by the Incorporated Law Society, that they should be approved by the Chief Justice and laid before both Houses of the Oireachtas. It appears to me that there is not sufficient time now to lay the regulations before both Houses of the Oireachtas, if the Oireachtas is to adjourn this week, and I suggest that we should permit the regulations to be studied by the members of the profession before they are accepted or before they become law. If, for instance, the members of this House did not get an opportunity of making representations concerning the regulations made by the Government affecting them, naturally they would be much resented by the members, and accordingly the members of the solicitors' profession as a body should, in my opinion, have an opportunity to study the regulations which affect their activities to such a very large extent.

If the Minister refers to Section 47, he will see that it sets out:—

"A solicitor applying for a practising certificate shall, in person or by his agent, deliver to the registrar a declaration which—

(a) shall be in the form set out in the Third Schedule to this Act or in a form to the like effect approved of by the society...."

If we refer then to the Third Schedule, paragraph (3) (c), it will be noted that the form of application sets out:—

"I have, to the best of my knowledge and belief, complied with the Solicitors' Accounts Regulations

(or)

I have not complied with the Solicitors' Accounts Regulations in the following respects...."

Then, (d) sets out:—

"A copy of the Solicitors' Accounts Regulations now in force is printed in full on the back of this form."

I suggest that the application cannot be in that particular form this year and it is mandatory under that section that the application should be in that particular form. Accordingly I suggest that, unless the regulations can be brought into force before 6th January, Section 47 of the Bill could not apply. I ask, therefore, that Parts VII and VIII and Section 72 should be the only parts of the Bill which should be brought into force now and that the remaining sections should not be brought into force until 6th January, 1956.

I would hope that the Seanad would not adopt the amendment and, indeed, I would hope that perhaps the Senator might withdraw it. The profession have been pressing this Bill for about 15 years and it is, in their opinion, a very urgent matter that it should come into operation as soon as possible. Not only is the council of the Law Society in favour of it, but no representations have been received from any local Bar association—these are the local bodies —suggesting that there should be any adjournment.

The Senator has suggested that the accounts regulations should not come into effect until a year from now, but in fact it would not be the intention that they would be enforced until 5th January, 1956. That has been carefully looked into and it is, I think, quite clear that there is no conflict between the form of the certificate in the Third Schedule and the regulations that will be made. If the amendment were carried, it would have the effect of bringing only parts of the Bill into operation, and would make it extremely difficult to operate it.

I ask the Seanad to allow the Bill to come into operation immediately. I do not know whether the Senator would withdraw his amendment to enable that to be done, but I can assure him that the difficulty he apprehends as to the regulations would not arise in practice.

I would be prepared to withdraw the amendment if the Minister would accept the amendment to Section 5, providing that no regulation shall be made by the council unless it has previously been approved by the society.

That is another question which does not arise now.

This amendment refers to Section 72. I should like to know to whom the £14 mentioned there is to be paid.

With regard to Senator Walsh's reference to the next amendment which deals with the regulations, as the Bill stands the regulations are made by the society, that is to say by the council. The Senator is asking that they should be made by the society in general meeting. I think that would be quite impracticable. The council of the Law Society is a democratically elected body. It consists of some 31 members who are elected by the body at a general election every year. If the members of the council were to act in some way that was not thought proper by the profession as a whole, then the profession could deal very easily with them. As I have said, I think it would be a quite impracticable proposal that the regulations should be made at a general meeting. That would mean a general meeting of the members of the Law Society attended by a couple of hundred people. I suggest that it would be quite impracticable to make regulations under those conditions.

Again, I say that the regulations must be made by a small body. Under the Bill, when it becomes an Act, they are to be laid before both Houses of the Oireachtas, and the council which makes them is composed of the elected nominees of the society. Perhaps the Senator would consider that point.

I did not intend that the general body should make the regulations but simply that they should approve of the regulations which are made by the council.

The amendment dealing with that, Senator, is not under discussion. What we are discussing at the moment is amendment No. 1 to Section 2. Is the Senator pressing the amendment?

I asked a question about the £14 and I have not been told anything about it.

The Senator can raise that on Section 72.

Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 2 put and agreed to.
Sections 3 and 4 agreed to.
SECTION 5.

I move amendment No. 3:—

To add a new sub-section as follows:—

(4) No regulation shall be made by the council unless it has previously been approved by a general meeting of the society.

All that I am asking in this amendment is that these regulations should be approved of at a general meeting of the society. I think that is the democratic way of doing it. These regulations will affect to a very great extent, and in many different ways, the activities of members of the profession. Regulations must be made under Sections 20, 40 and 66 and under No. 19 of the Fifth Schedule. I feel, in view of the fact that these regulations must be laid before both Houses of the Oireachtas, that they should be discussed after they have been drawn up by the general body of solicitors at a general meeting before they come into force.

I have already tried to deal with the point which the Senator has made. I fail to see how regulations could be approved before they have been made. The Senator's proposal reminds me of the Scottish remark: "If you had seen these robes before they were made, you would bless the name of General Wade." It seems to me that the regulations must be made before they can be approved. As I have already pointed out, if the council were to act in some arbitrary way, then the society, as a whole, has its remedy. A general meeting could be called to deal with it. I think that if the Senator's amendment were accepted, it would make the working of the Act extraordinarily cumbersome and, therefore, I would ask the Seanad not to adopt it.

I do not see anything unreasonable about this amendment. It simply asks that, if the council of the Incorporated Law Society makes regulations, they should be approved of at a general meeting of the society. I do not think there is anything unreasonable in asking the House to accept the amendment. Its acceptance will not make the operation of the Bill, when it becomes an Act, any more difficult.

Surely the meaning of the amendment is that a general meeting of the society will make the regulations.

That they will approve of them.

What are they going to approve of? I suggest that this proposal would provide a cumbersome procedure. It means that the council will frame regulations and suggest them to the society. The idea then is, apparently, that if the society does not approve of them, the council will frame other regulations, or is it that a general meeting of the council is to be given a power which, by the way, the Oireachtas is not being given in this case, of amending the regulations? It seems to me to be a more practical method that 30 people should frame the regulations. May I say that in my experience 30 people would represent a very big meeting for the framing of regulations? I think it would be too big. The idea that a general meeting of solicitors who, I presume, would be worse than a general meeting of non-legal people, should get together for the framing of regulations, opens up an appalling prospect.

I think that the Incorporated Law Society is wise in suggesting—and by the way the Minister has agreed to the suggestion—that the regulations should be made by the council of the society. Senator Cox has pointed out that if regulations are made by the council which do not meet with the general approval of the members, there is machinery by which the council can be called together and other regulations made. I think it is far better that, when regulations are to be made, they should be made by a small body. When they are made they must be laid on the Table of both Houses, and if they are not approved of, some action can be taken about them. The proposal in the amendment seems to me to be a peculiarly cumbersome arrangement.

I should like to point out that the amendment has been put down merely for the purpose of enabling the ordinary solicitor to make representations at the general meeting with regard to any regulation which he, as an individual, would regard as in any way cumbersome, wrong or unjust. Accordingly, the council can still make the regulations, but this amendment, if accepted, would give the ordinary solicitor a right of audience. Otherwise, regulations may be made of which the ordinary solicitor has no knowledge until they become an accomplished fact.

There is a general meeting of the Law Society twice a year. Therefore, there can be no question that a member will not have an opportunity of raising any matter that he wishes. I would remind the Senator that this council is composed of solicitors elected by their colleagues from all parts of the country. I think it is quite inconceivable that solicitors, elected by their fellow solicitors from every county in Ireland, are likely to make regulations which would be injurious to the whole body of the members.

I would point out to the Senators that I am in favour of democratic control. That being so, the council of the Law Society have a right to make their own regulations, submit them to their general body which meets twice a year, and if the general body, the same as any other democratic organisation, does not like the rules made by their executive committee they have a remedy. Just the same as Senators and Deputies themselves have to give an account of their stewardship to their electors, so will the council of the Law Society have to give an account to their members. For that reason I do not like to tie them down in connection with it. I am certain that the Law Society will act fairly to all sections.

In answer to the Minister, there will be no general meeting of the society for at least five months and as these regulations must come into force within the next two or three weeks there would not be, as the Minister points out, any democratic method in which the members of the society as a whole would have any knowledge or be entitled in any way to make representations concerning any regulation which has been made.

May one inquire if there is any machinery for calling a special meeting of the society?

There is, under the society's regulations.

In connection with Senator's Hickey's statement, the £14 stamp money is paid into the society in King's Inns under Section 28 of the Stamp Act, 1791. The payment has been going on since the 18th century.

Am I to understand that is not being passed on to the State?

To the Revenue Commissioners.

Then I submit that £1 should be sufficient instead of £14.

Is the Senator pressing the amendment?

Amendment, by leave, withdrawn.
Section 5 agreed to.
Sections 6 to 11, inclusive, agreed to.
SECTION 12.
Question proposed: "That Section 12 stand part of the Bill."

I would like to point out to the Minister that apparently it is mandatory that the Registrar of Deaths should inform the registrar of the society. It might happen that a registrar was not aware of the occupation of a solicitor who had died and accordingly he may not be able to perform the duty that has been cast upon him under this particular section. I thought that the Minister could, on the Report Stage, put "whose occupation is given as a solicitor" after the words "whose name is on the roll." That matter was raised already in the Dáil and that is why I am raising it again on this particular section.

I do not think that it would really give rise to any difficulty. The position is the same as in the case of the Medical Council, the Veterinary Council, and other similar bodies. In practice, I do not think any difficulty whatever arises.

Question put and agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."

There is just one point upon which I do not feel quite satisfied. It is in relation to sub-section (5)—the quorum of the disciplinary committee shall be three.

It has been changed to five. The Senator is looking at an old copy of the Bill.

I am sorry. I was wrongly informed.

Question put and agreed to.
SECTION 14.

I move amendment No. 4:—

In sub-section (1), line 22, to delete "shall" and substitute "may".

The making of an application to the disciplinary committee should not be mandatory in my opinion and the word "may" seems more appropriate than "shall". It is clear that no person should be allowed to make an application against a solicitor unless the solicitor has acted as a solicitor for that particular person or body corporate. I would ask the Minister therefore to insert the word "may" instead of "shall".

This is purely a drafting point. It seems to me that "shall" is the appropriate word and it does not in the least imply that an application must be made at once to remove every solicitor from the roll. All it implies is that when an application is made it shall be made to the disciplinary committee. I think that in that it follows normal drafting practice. If Senator Walsh considers that, he will probably see at once that "shall" is the correct word, otherwise there would have to be applications made immediately to remove everybody.

I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 5:—

In sub-section (1), paragraph (b), line 26, to delete "another person" and substitute "any person or body corporate for whom a solicitor has acted in the transaction of any legal business".

I suggest that the society has a right under the section and that the other person is the person for whom a solicitor acts or a body corporate. The words "body corporate" are not in that section as it stands and for that reason it would appear that it would require a person to make the application.

The Senator has opened up the point that complaints might arise against the solicitor by people who had never been actual clients of a solicitor. There is a very obvious example. If I am acting in a trust estate and if I embezzle the money, the people from whom I embezzle it, the beneficiaries, may never have been clients of mine. They may never have had any contact with me whatever, but I have done them a very grave wrong, and quite clearly they should be entitled to apply to the disciplinary committee against me. I think the Senator has overlooked that to confine applications against a solicitor solely to persons aggrieved who had happened to be clients of his, would be a very great injustice. If frivolous complaints are made by people, they can be dealt with very easily. At the present time applications can be made against a solicitor to the present statutory committee by beneficiaries of people such as I have mentioned. I think it has been overlooked that many complaints may arise from people justly aggrieved who could not possibly be debarred from making a complaint even though they never had actually been clients.

It would appear, therefore, a body corporate and a local authority are still excluded under that section from making an application.

If the Senator refers to Section 64 (3) he will see the words "body corporate" are brought into that particular section:—

"In Sections 55, 58 and 59 of this Act, references to unqualified persons, and references to persons, include references to bodies corporate."

I thought that in view of the fact that Section 14 is not included amongst the three sections mentioned, the words "body corporate" should still be included here.

It is clearly established, and, in fact, it is statutory, that in a statute the word "person" includes body corporate and may include a partnership or bodies of that kind. The word "person" means much more than a single human being. If the Senator refers to Section 64 it provides that—

"a body corporate or director, officer or servant thereof, shall not do any act of such nature or in such manner as to imply that the body corporate is qualified, or recognised by law, as qualified, to act as a solicitor."

That is a wholly different matter, I think. If the Senator will look at it, he will realise that in this section he is not dealing with the word "person" which automatically includes a body corporate.

Amendment, by leave, withdrawn.

I move amendment No. 6:—

In sub-section (1), paragraph (b) (i), line 29, to insert "professional" before "misconduct".

At the moment as the section stands any misconduct ultimately would make a solicitor eligible to be struck off the roll. I suggest that the word "professional" in front of "misconduct" should be permitted because the society have ample opportunity of striking a solicitor off the roll on too many different sections and subsections of this Bill.

It would seem to me that the word "misconduct" should remain as it stands. It would be very difficult indeed to decide what was professional misconduct and what was other misconduct. There may be many matters in which a solicitor may commit serious misconduct even though it would not be professional. He might, for instance, be a trustee of a fund; he might be a director of a company and utter some forgery. We could have many instances even in financial matters in which it would be conceivable that a solicitor would be guilty of very serious misconduct and yet it might be very difficult to see that there was professional misconduct. I would ask that the House allow the general term "misconduct" to stand. Again, the Senator should remember that the people who will judge this will be themselves solicitors just as the people who judge a doctor are themselves doctors.

In view of the later portion of that sub-section which states:—

"(i) that the solicitor has been guilty of misconduct, including conduct tending to bring the solicitors' profession into disrepute"

surely that would meet the Senator's expression of opinion as to the cases he has just cited? If a solicitor acted in a way the Senator referred to, that in itself would be sufficient to bring the solicitors' profession into disrepute. I think that the word "professional" should still be included in the first line of that sub-section.

On the one hand, we are going to limit the word "misconduct" by adding "professional", and then we are going to allow expansion as well. I think that that section would become nonsense if we did that.

That was what I was going to say. If the amendment were accepted the section would simply be meaningless.

Amendment, by leave, withdrawn.

Would the Minister explain sub-section (c) of Section 14, which states:—

"(3) The Chief Justice or any judge of the High Court may, notwithstanding anything contained in this Act, exercise any jurisdiction over solicitors which he might have exercised if this Act had not been passed."

This is a section which has been considered a good deal. What really lies behind it is this. A solicitor is an officer of the court and therefore a solicitor must always be subject to the order of the court in any case in which he is appearing. If I am acting for a client in some case in the High Court I am an officer of the court; therefore I am subject to censure or order by the judge who is presiding. That is common law jurisdiction which is vested in the judge, and it was therefore necessary, I understand, to insert that section to preserve that right. If that was not so, then in the actual hearing of the case the judge could not order a solicitor about as he could order counsel about.

I think it would clarify matters very much, seeing the constitution of the disciplinary committee that is mentioned, if we were told how many members are on this committee.

That information is contained in Section 13, which has been passed.

It consists of not more than ten and not less than seven persons, with a quorum of five. All these persons are, of course, solicitors. At present and in the past there has been what is called a statutory committee which has been appointed each year by the Chief Justice and which consists of about the same number of solicitors.

In connection with Senator Cox's reply, does he agree that it is not necessary to include the Circuit Court judge or district justice in that particular section? Is the Chief Justice or judge of the High Court sufficient?

Solicitors are officially solicitors of the High Court of Justice and therefore are subject to the judges of the High Court. Whether we could really define judges of the High Court, I do not know. I would not like to try.

Sections 14 and 15 agreed to.
SECTION 16.

I move amendment No. 7:—

In sub-section (1), paragraph (b) (iv), line 23, to insert "not less than twenty-one days" after "specified period".

In pleadings in the Circuit Court and High Court a defendant is permitted 20 days to lodge a defence. As the affidavit which may be required under this sub-section may take a considerable time and a good deal of research to prepare by the solicitor engaged, I am bringing in this amendment in order to allow a solicitor at least 21 days to put in an affidavit whether or not he had been struck off the roll or suspended for a time. If in the case of an ordinary simple debt of, say, £55, the Legislature permits ten or 12 days, surely the Legislature should permit 21 days for the solicitors in a case like this?

I think the answer to that is that the periods allowed for statements of claim and defences in actions are not fixed by statute. They are fixed by the regulations made under the statute. In the same way, the periods and times under this Act will be done under the Act and not by the Act itself. The regulations under which the disciplinary committee will have to operate will be regulations made, as the Bill provides at present, by the disciplinary committee. Again, I do not think the Senator need have the slightest uneasiness that reasonable periods will not be allowed. After all, the members of the disciplinary committee are themselves solicitors and they might find themselves the subject of a complaint at any moment, so that it is very unlikely that anyone would draw up regulations which did not provide reasonable time. I myself have been a member of the statutory committee for some time and there has never been a case in which any solicitor was not given a reasonable time when he asked for it.

Very good. I am prepared to withdraw that amendment.

Amendment, by leave, withdrawn.
Section 16 agreed to.
Sections 17 and 18 agreed to.
SECTION 19.
Question proposed: "That Section 19 stand part of the Bill."

When this particular section was drafted the quorum for the disciplinary committee was then three. It has now been increased to five. In that section occurs: "the offence of that person may, by certificate signed by two members of the disciplinary committee...." Would the Minister consider making that three members because of the fact that it would now take at least three members of the disciplinary committee to come to a finding?

I would like to support that suggestion. It does look as if it has been overlooked as a consequential change. It seems reasonable that it ought to be a majority of the quorum that should sign.

I think there is a misunderstanding. This section speaks of the certificate which is issued—the certificate that the disciplinary committee has done so-and-so and which may under this Bill be signed by two members. That does not mean that five were not required in order to pass it.

In view of the fact that this is the only evidence of the finding of the disciplinary committee and that it is necessary for three members of that committee to come to a conclusion, I would press the Minister to accept what I have said.

Every single member of the committee might have been present and might have been unanimous. Are not two sufficient to sign it instead of the whole lot? What difference is there between two out of ten or three out of ten? No difference.

Under the Bill as originally drafted the quorum was to be three and the certificate was to be signed by two, now increased by five, but that is no reason why the certificate should have to be signed by more.

Question put and agreed to.
SECTION 20.

I move amendment No. 8:—

In sub-section (1), line 1, to delete "disciplinary committee" and substitute "society".

I think these rules should be made by the society and not by the disciplinary committee. It seems to me to be putting too much power in the hands of the committee that they themselves should make these rules. It would be preferable and desirable that the rules should be made by the society. As the matter is an important one and as the society is the parent body it should make the regulations.

It seems to me that this is very much the same point we had before. If the word "society" was substituted it would mean the council. I would remind the Senator that whatever rules the committee draw up must under the Bill be approved. They require the concurrence of the Chief Justice. The drawing up of these rules requires a little experience of the kind of work the disciplinary committee does. It seems to me to be more convenient that the disciplinary committee, which understands that kind of work, should draw up the rules. The Bill provides that the Chief Justice must concur. If there was anything wrong or unfair with the rules that the disciplinary committee drew up the Chief Justice would not confirm them.

I will withdraw the amendment.

Amendment, by leave, withdrawn.
Section 20 put and agreed to.
SECTION 21.
Question proposed: "That Section 21 stand part of the Bill".

The same applies to this section where it is a question of the number who shall sign the findings of the disciplinary committee. Again, I suggest that that should be increased from two to three. Senator Cox has already referred to the fact that the previous section only referred to the signing of a certificate, but here the question is one of the findings of the disciplinary committee. It is, therefore, somewhat different from the mere signing of a certificate, and I will ask the Minister to increase the number from two to three on Report Stage.

I am afraid that I am a little bit confused. I really thought that was the point already discussed. The Senator is speaking of sub-section (1) of Section 21? Again this is merely the authentication of the findings. Under the procedure that exists at present the report of the statutory committee is signed only by one person and that is by the president of the statutory committee. That has been the case for the past 60 or 70 years. One signature was thought enough. Now we have two signatures.

The committee in the old days was a very different committee from that which is now being appointed under this Bill. Here the disciplinary committee has tremendous powers over the members of the profession. They do not have to refer the matter to the Chief Justice, who, prior to that, was the person who decided whether or not persons were to be struck off the rolls. It is the disciplinary committee that largely takes the place of the Chief Justice. The Chief Justice has only the right of appeal either by the applicant or by the solicitor. As this is a question of the findings of the disciplinary committee, I respectfully suggest that the findings should be signed by three persons because it will take at least three persons to come to a definite decision.

I wonder if the Senator has given notice of this amendment?

Again, I suggest this is purely a matter of record. Is it to be expected that two members of the committee are to sign some document which is absolutely false? It is merely a certificate that such and such was found. Surely that is merely a matter of record? It is the kind of document which, in court proceedings, is signed by the registrar.

In the District Court, it is the justice who signs the order. As Senator Cox states, it is a matter of record. I suggest, therefore, that the record would be the document which would have to be produced to the Chief Justice on an appeal as to the findings of that disciplinary committee. If that were the case and if it were the only evidence the Chief Justice would have as to the exact findings of that disciplinary committee, I do not see why the Minister should not, on the Report Stage, accept the suggested alteration.

I would ask that the Bill remain as it stands.

An Leas-Chathaoirleach

The Senator asked that the matter might be considered on the Report Stage.

When shall we have the Report Stage?

Question put and agreed to.
Section 22 put and agreed to.
SECTION 23.
Question proposed: "That Section 23 stand part of the Bill."

On this section, I should like to point out that apparently a solicitor can be put on trial twice— unlike the case of an ordinary court where, when a criminal charge is dismissed, it is sufficient to have the defendant declared a free man. Here, the applicant who is dissatisfied with the decision of the disciplinary committee can apply again to the Chief Justice, and the Chief Justice can then have a complete rehearing and decide in a different way from the disciplinary committee. I merely want to put on record that the Incorporated Law Society have agreed to subject their members to a much more severe discipline than the ordinary person would be subjected to.

I should like to put on record that this has been very carefully considered. It is most unlikely that, after the disciplinary body set up by the statute has cleared the solicitor, the Chief Justice would—unless there were some very extraordinary cause or reason—decide otherwise. However, after very long and careful consideration and consultation with the judges and consultation with the Minister, it was felt that this power should remain in the Bill. I know it is not an amendment but, as Senator Walsh wants his remarks on the record, I, too, would like to record that this was not arrived at in any frivolous spirit but was, rather, the result of long consideration and long discussion.

Question put and agreed to.
Sections 24 to 39, inclusive, put and agreed to.
SECTION 40.

I move amendment No. 9:—

In sub-section (4), paragraph (b), line 37, after "solicitors" insert "which is so conducted and of such nature as to secure that persons who pass it have such a knowledge of law and legal practice as is sufficient to enable them act as solicitors".

The House will refer to sub-section (3) (c) and note, in connection with the Irish language examination, that the wording is somewhat similar to that of the amendment, namely, "...for such second examination being so conducted and of such nature..." In the sub-section which I seek to amend—sub-section (4) (b)— there is no such wording. In my view, the section is not complete until the words contained in the amendment are included in the sub-section in question. The meaning then will be that the examination will be an honest one, that questions will not be put in the examination which are unreasonable or too difficult and which may prevent apprentices from passing the examination if they are regarded as fit and proper and if they have a sufficient knowledge of law and its practice.

Surely the Senator does not contemplate that the final examination conducted by the Incorporated Law Society shall be subject to some kind of appeal? To whom? To me, the amendment does not seem to mean anything: I am saying that without offence. It simply says that a final examination for solicitors shall be a final examination for solicitors. It does not mean anything else but that. I did not know what the Senator meant when I first saw the amendment. However, having heard him discuss it, it seems he thinks that the papers set for the final examination should be brought before a court and that the court could say that some of the questions would be too hard. I am speaking as an examiner but not as a solicitor. I do not understand it at all.

I do not suggest that the section as amended should or could be brought before a court any more than the section as it is worded can be brought before a court. I ask that in this sub-section (4) (b) the same words be used in connection with the final examination as are used in sub-section (3) (c) in connection with the Irish examination.

The Irish examination is conducted on quite a different basis. The question of what standard you will adopt in respect of a language is quite a different matter altogether. This purports to be a definition of a final examination. I suggest you could not give one and that you must leave to the Incorporated Law Society the power to decide what they want for a final examination for solicitors.

The wording of sub-section (3) (c), which concerns the Irish examination, is taken from a separate Act which was passed about 1924 and which requires solicitors to pass these examinations in the Irish language, and that Act, being a separate Act, used these words. I think that is the reason why these words were continued in the present section—probably merely just by copying—but I would very strongly support what Senator Hayes has said. It seems to me that it would be merely tautology to say that the responsible professional body is to have a final examination for the profession, and then to add that that final examination should be such as would require sufficient knowledge to enable a person to exercise his profession. I do not know if the College of Physicians or the College of Surgeons would like an Act passed saying that their final examination must be sufficient to enable a person to be a doctor or a surgeon. As Professor Hayes has asked, who can judge? I ask the Senator to withdraw the amendment.

I will do so.

Amendment, by leave, withdrawn.
Question proposed: "That Section 40 stand part of the Bill."

I should like to inquire in connection with this Irish examination, whether the examination comprises written and oral tests?

Written and oral.

On both occasions? There is an Irish examination when the prospective solicitor is commencing his apprenticeship, and also an Irish examination when he is being admitted to the roll of solicitors. Is there a written and an oral examination on both occasions?

There is both a written and an oral examination.

On both occasions?

On both, and I may say that certainly the final one is an extremely difficult or severe examination.

Question put and agreed to.
Sections 41, 42 and 43 agreed to.
SECTION 44.

I move amendment No. 10:—

In sub-section (3), paragraph (b), line 14, to insert "practice and" after "of".

This is the section which relates to the knowledge of legislation in force in the case of a practising solicitor who has for three years held corresponding certificates in Northern Ireland. Each year the difference in practice may become more marked and accordingly I think the word "legislation" may not be sufficient and that the word "practice" should be included.

I ask the Senator to withdraw this amendment. The words "adequate knowledge of the practice in force in the State" would scarcely mean anything. This relates to a person who has obtained a certificate in Northern Ireland and it provides that before he can be admitted here, that is, if reciprocal provisions are made, he would have to pass an examination in the legislation. I would suggest that the word "legislation" there clearly means legislation in the broad sense, in the sense in which the Romans used the word, that is, in relation to the law.

I am prepared to withdraw it.

Amendment, by leave, withdrawn.
Sections 44 to 48, inclusive, agreed to.
SECTION 49.

I move amendment No. 11:—

In sub-section (1), to delete paragraph (g).

The section, as worded, appears to me to be too wide. It would mean that if a solicitor fails to give an explanation, he can be suspended or his certificate can be withdrawn. I suggest that there are sufficient subsections exercising discipline over the solicitor without the necessity for bringing in this sub-section, which relates to "any matter affecting his conduct", for which he fails to give an explanation. I respectfully suggest that that is too wide and should be deleted.

This sub-section is really one of the most important in the Bill, and, in order to understand it, one has to realise something of the solicitors' profession. Solicitors have to do business with one another every day. If something is going wrong with a solicitor, if he is getting short in his payments, if he is misbehaving or conducting cases unfairly or something like that, everybody else in the profession who comes in contact with him gets to know that. In the past, one of the great difficulties has been that there has been no machinery, other than a report to the statutory committee—in future, the disciplinary committee—which really amounted to something like hanging, and very often in the professional death of the solicitor concerned.

What is sought by this section is that the council would have power, if it thinks there is something that would require an explanation on the part of a solicitor, to call on him to give an explanation and, if he does not do so, not to renew the practising certificate of that solicitor. It gives the solicitor a right of appeal to the Chief Justice, so that, if the council were to exercise this power arbitrarily or unfairly, the solicitor concerned could at once go to the Chief Justice to obtain justice and fair treatment.

I have been in practice for a long time and I have been a member of the council of the Law Society for a long time. We all know that the profession of a solicitor is a very difficult one, particularly in this, that not alone has he to handle law but he has to handle business, and he is in the unfortunate position that, of necessity, the money of other people passes through his hands. There have, naturally, been a number of cases in which solicitors have embezzled clients' money and have gone wrong, but I think that, in every one of these cases, it was known to other solicitors beforehand that things were going wrong, and I believe that a great number of these solicitors could have been saved, and their clients saved, if the council at that time had had power to write to the solicitor and ask him: "Would you please explain what is going on?" If that could have been done, I believe that there are a number of people, particularly young solicitors, who would have been saved from ruin.

I certainly think that this section should be preserved. All that it means is that if the council which, after all, is composed of a solicitor's colleagues, thinks that there is something wrong they can ask him to explain. If he fails to explain they can then say that they will not renew his practising certificate. If he thinks there is anything wrong in the decision of the council, he can go at once to the Chief Justice for a reverse of the council. I certainly submit that this is a section which should not be struck out of the Bill. I really think it is a vital section. There is not in it the least danger to a solicitor. Indeed, I think it is a protection for him. I have come across cases myself of personal friends who got into great trouble when they found that they were short in their money dealings and were struck off the roll. I believe that in every one of these cases those concerned could have been saved and everything put right if at an early date the council could have written to them asking: "What on earth are you doing? Will you pull yourself together and put things right?" I would ask the Senator to withdraw the amendment.

I am prepared to withdraw the amendment. The reason why the amendment was put down was because I thought it was unreasonable that a person could be regarded as being guilty until he was proved innocent. In view of Senator Cox's experience and knowledge as a member of the society, I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

In connection with paragraph (i) of sub-section (1) of the section, may I draw the attention of the House to the fact that, a judgment or a decree having been given against a solicitor, it involves the payment of money other than costs? Again, the society may refuse to issue a certificate. I should like to draw the Minister's attention to this: suppose there was a motor accident in which a solicitor was the owner of the vehicle and through some oversight he neglected or defaulted in renewing his insurance policy and a decree for a substantial amount was given against him, there is no provision in the Bill whereby that solicitor would have time to pay the amount of the debt. I appreciate the fact that the Law Society, or the disciplinary committee, would have power to renew his certificate, but I had thought that it would be no harm if in a case like that there was some kind of a stay put on the necessity of cancelling his certificate.

The only answer that I can make to the Senator is this: I ask him to remember that the members of the disciplinary committee and of the council are the professional brothers of that solicitor, and to think that they would act harshly or in some unfair way is, I think, quite wrong. Again, these powers are for the protection of the solicitor and client, and certainly they would not be operated arbitrarily.

The section gives the committee discretionary powers.

Section 49 put and agreed to.
Sections 50 to 57, inclusive, put and agreed to.
SECTION 58.
Question proposed: "That Section 58 stand part of the Bill."

On the section, would the effect of it be that a solicitor, say, in Australia would be debarred from sending a document to a person in the Republic for execution?

I think he would not. These are things which must happen in the ordinary way of business. You have a provision similar to this in force in England. That does not mean that I cannot send a document to someone in England. The Senator has asked if a lawyer in Australia could send a document here to be signed. Of course, he could.

The section refers to "the drawing or preparing of a document relating to real or personal estate or any legal proceeding and to the procuring or attempting to procure the execution by an Irish citizen of a document relating to real or personal estate or movable or immovable property, situate or being outside the State and the United Kingdom."

What really lies behind that provision is this. There have been what are called "heir chasers" in the United States. It very often happens that people of Irish descent who die in the United States leave considerable fortunes and perhaps leave no will. Now, in the United States there are genealogical experts who get after that sort of thing, and if the estate is of any size they very often send over here a power of attorney to the unfortunate heirs to sign, or they may send someone over and try to get them to sign it. The people concerned may be quite ignorant. They may not consult a lawyer and they sign the document under which, let us say, half the estate goes to the genealogical expert for proving their claim.

That has become a notorious abuse. In fact, it became so serious that our own Department of External Affairs has actually set up a section the purpose of which is to try and give advice and guidance to Irish claimants to fortunes abroad. The Law Society has forbidden its members, that is to say, forbidden solicitors to act in connection with powers of attorney of that kind sent from the United States. That, as I have said, has been a very serious abuse. There have been numbers of cases in which people here have been very seriously robbed. If they get a letter from one of these people in the United States saying that an aunt or some other relative has died in Chicago leaving a considerable fortune, those poor people, without obtaining any advice or guidance, sign the document and afterwards find that half the money is gone. It goes to those genealogical experts. It is felt that this section is a very important one if our people are to be protected against that sort of thing.

Question put and agreed to.
Section 59 agreed to.
SECTION 60.
Question proposed: "That Section 60 stand part of the Bill."

This section means that the solicitor who has been struck off the rolls could not be employed by another solicitor without the permission of the society. I think that is very severe. It means that a solicitor is being treated as a sort of ticket-of-leave man because of some default. The only type of employment for which he is suitable is in a solicitor's office and in view of the regulations and this Bill, a solicitor has to be so terribly careful that if he himself takes responsibility for employing a person like that surely that should be enough. There is another section here which makes it necessary for the solicitor who has been struck off the rolls so to inform the solicitor with whom he is being employed and if the solicitor, having that information, is prepared to take the responsibility, I think the onus should be cast on the employer. It should not be necessary to seek the permission of the society before that person can go into that employment, which may be necessary to maintain his wife and family.

I hope the Seanad will not strike out this clause. In the ordinary case, where a solicitor gets into trouble there is really no moral blame. The solicitor is very unlike other people who may embezzle money, in that of necessity the money must come into his hands. It is not like someone who has to forge books or something like that. However, there can be the really black sheep and what this section is intended to protect is that a really black sheep cannot, after he himself has been struck off the rolls, get employment, perhaps from some young and inexperienced solicitor, and start off again under cover of that.

The Law Society considers that this section is absolutely imperative. If such a man can start off again, nominally as an employee but probably as really the guiding spirit of some young solicitor, it will be too late to repair the damage when there has been an embezzlement or something very wrong has been done. I would very strongly urge that this is an essential section.

Again, the solicitors who constitute the council are not going to exercise the power arbitrarily against the ordinary case, which is 99 per cent. of all such cases, where somebody has gone wrong in his accounts, has carried on, has gradually paid off one person out of another person's money, and ultimately crashes. It is imperative that they should have this power where there is a really bad case, because otherwise the solicitor who has been struck off the rolls for something really wrong might easily induce some young solicitor to take him into employment and in two or three months, before things would have been found out, irreparable damage might be done.

He has the right of appeal to the Chief Justice.

Could this mean that a man who is struck off the rolls has no moral right in the capacity in which his business lies? There is a moral question arising, apart from the legal aspect. It seems to me that a solicitor becomes a black sheep by force of circumstances, or something else, and is qualified from the good offices of the society. He goes into a position again, in the vocation for which he is best equipped, and the society follows him to death and will not allow him the right to live. I am just putting up that side of the case, that there is a moral aspect. While I can see that the society must protect the public, it is at the same time doing an injustice to the individual, who may not be as bad as the society believes him to be.

The answer to the Senator is that the section gives a right of appeal to the Chief Justice, so that if the solicitor who was struck off the rolls thought he was unfairly hounded he could apply to the Chief Justice.

And those who would have to inquire into it all belong to his own profession.

Originally they belonged to his own profession, but if they decide against him he can appeal to the Chief Justice, so he has double protection. Furthermore, I would put a question to the Senator that if there were a bad case, how would he be satisfied if he went to some young solicitor and found out afterwards that that place was really being run by someone who had been struck off the rolls?

The liberty of the individual to me is greater than the powers of a society and the right of an individual should transcend everything. It is a very dangerous thing to give a right in an enactment under the law to deprive any man of the possibility of earning his living from any source whatsoever, particularly that source for which he is best qualified. As to the protection of the public, the individual has rights above the public and there is a very grave matter of morals to be discussed on this question. I am not doubting at all that the society means this in the best interests of the people, and I quite agree with the hypothetical question of Senator Cox that if I found out I had used some man who was under cover and had performed a wrong, I would not like it. Before finally deciding, we should find whether an individual himself is greater in importance and whether we should protect the society or not.

I quite appreciate the force of what the Senator has said, but after all there are many similar cases. The drunken driver of a motor bus has his licence taken away for being drunk. That is not considered to be unjust. You must remember that this section can only arise first if the ex-solicitor's fellow solicitors and brothers think it necessary; and secondly, subject to the right of appeal to the Chief Justice. Surely there is no need of further protection in that case. The alternative is that the moment a really black sheep is struck off the rolls, the society no longer has any power over him, he can hide himself in some other office under some other name, and it may be several months before that is all found out and then it is too late.

After all, all legal rights depend ultimately on the courts and on the judges. The liberty of that man to practise is before them. He is protected by the Bill because he can go to the Chief Justice if his own colleagues have turned him down and surely there is no hardship in that.

Senator Cox drew an analogy between the person who has been struck off the rolls and a drunken driver. I am afraid that analogy is not a very good one, because a drunken driver can have his licence restored after 12 months and that is the usual procedure.

So can the solicitor.

But the solicitor who has been disqualified and whose name is put off the roll may never again get any employment. If we examine Section 63, we will see that

"a person who is an unqualified person, by reason of the striking off the roll of his name, his suspension from practice or the suspension of his practising certificate, shall not seek or accept employment by a solicitor in connection with the solicitor's practice without previously informing the solicitor that he is an unqualified person".

In other words, a solicitor who would take on this other solicitor whose name was struck off the roll would not be doing it with his eyes closed. Furthermore, there is then a good difference. When a solicitor is taken on in the employment of another solicitor that other solicitor would have the responsibility for the conduct of his office, and would be responsible for seeing that all moneys would be carefully looked after. I think this section is a bit harsh. It could easily have the effect of depriving a person who had been struck off the roll, of ever again getting any employment, because a terrible bias exists against such a person even if he were thought afterwards to be the best individual in the world.

Would the Senator not think that this section in fact, is in itself contrary to the Constitution?

I certainly would think not. Surely it is necessary in a profession such as the solicitors' profession, to give safeguards to the public? You must remember that I have spoken beforehand on the curious nature of the profession. It is a mixture of law and business dealings —dealings with other people's money, and all sorts of things. It also deals with people's secrets. I think it is vital in the public interest that he should be not merely off the roll of solicitors, but deprived of the power of being consulted as a solicitor, and so I would strongly urge the House not to delete the section. Again I have to repeat what I said several times before. In the first place there has to be a decision by a number of responsible solicitors elected by the profession as a whole, if this man is to be dealt with in this extreme way. Is it very likely that would happen? Would the Medical Registration Council do a thing like that to a fellow member unless there were strong grounds? Solicitors would not do it to a fellow solicitor unless there were very strong grounds.

This is, I think, quite a serious matter because if this possible hole is left, it is possible for a person who is honest in dealing with other people's money to fall short in some way. That is technically embezzlement, even though it might not be a deliberate act. We are trying to protect the public.

It would be much more difficult, and I am sure Senator Cox would agree, for a solicitor to get employment if the employer must first of all make application to the society. If the amendment were accepted, I believe that many of these solicitors would get employment much more readily. I think, for a person who has been struck off the roll, it is such a dreadfully severe matter for him and for his wife and family, that he should for the rest of his life have to seek the permission of the society before he gets employment in the only type of business for which his training suits him. Senator Cox has referred to the fact that a young solicitor may employ such a person and may use him. If any young solicitor does not exercise proper supervision over his office, if he fails to control his office properly, then the society has power under Section 49, sub-section 1 (f) to refuse to renew that young solicitor's certificate. In view of that, and in view of the fact that the solicitor who employs this person, who has been struck off the roll, must take such a serious responsibility, surely an individual solicitor has as much opportunity, and as much knowledge of whether or not he should employ him and take the responsibility of employing a solicitor who has been struck off the roll, as the society.

It might happen with old solicitors. Might I remind the Senators of a certain Uriah Heep in David Copperfield, who performed exactly this achievement of working himself into an old and respectable solicitor's office.

Question put and agreed to.
Sections 61 to 64, inclusive, agreed to.
SECTION 65.
Question proposed: "That Section 65 stand part of the Bill."

In regard to Section 65, I would ask the Minister if he would include on the third line the word "partner". This section only permits a solicitor or his assistant a right of audience in any court. That, in my opinion, would deny the partner in a firm of solicitors from acting in such a capacity.

Under the Construction Act the singular includes the plural, so the word "solicitor" would clearly include a firm of solicitors. I think you will find that under the interpretation of the Act the word "solicitor" includes the partner.

Surely the Senator would agree that it is necessary to include the word "assistant"?

No, no.

If he is in this firm of solicitors he may not be a partner, but an assistant in the firm.

Under the Solicitors Act, if he employs a qualified solicitor as his assistant, that is to say, a person who is not a partner, that qualified solicitor would be an assistant of the acting solicitor, and would appear in court. The point Senator Walsh suggested is that the partner of the solicitor who is acting in a case could not appear in court. My answer is that the opening words "were a solicitor" could be interpreted as meaning that a firm of solicitors and their partner are automatically included by the ordinary rules of construction.

Question put and agreed to.
SECTION 66.

I move amendment No. 12:—

To add a new sub-section as follows:—

The regulations to be made under this section shall not be brought into force until the 1st day of January, 1956.

These are in connection with accounts. Apparently the regulations do not come into force until the 5th January, 1955.

An auditor's certificate will not be required until the year commencing 5th April, 1956.

Can I take it that in view of that the amendment will not be necessary?

It is not necessary.

Amendment, by leave, withdrawn.
Sections 66 to 72, inclusive, agreed to.
SECTION 73.
Question proposed: "That Section 73 stand part of the Bill."

Under sub-section (4) of this section the quorum of the committee is three. I would suggest that the quorum in that case should be five, the same as it is in connection with the disciplinary committee. The disciplinary committee is one of the commitees of the society, and if it is necessary to have five there it might be inconsistent if there were not five in this particular sub-section. Would the Minister agree to increase the quorum from three to five in sub-section (4)?

I would ask that the section might stand as it is. This section merely speaks of ordinary committees of the council. We are no longer speaking of the disciplinary committee or anything of that kind. We are talking about the ordinary committee which the council appoints for education, etc. To make the quorum for such a meeting five would make it unmanagable. The majority of the members of the council do not come from the City of Dublin. It might impose great difficulty and hardship to make five statutory.

Is the Senator satisfied that the disciplinary committee can still be five?

Yes. The disciplinary committee is really not a committee of the council at all. We are speaking here of the committees of the council.

Question put and agreed to.

I am interested in Section 72.

An Leas-Chathaoirleach

I am afraid that we cannot go back on Section 72. That has been disposed of. If the Senator wishes to make a comment on anything contained in the Bill, he may do it on the Fifth Stage, provided it relates to something in the Bill.

Sections 74 to 85, inclusive, agreed to.
SECTION 86.
Question proposed: "That Section 86 stand part of the Bill."

I am anxious to know what are the rights and privileges given under Section 86. I notice that in Section 85 it says:—

"To remove doubt, it is hereby declared that the Attorneys and Solicitors Act, 1870, applies, and always applied, in the State."

Section 86 says:—

"Nothing in this Act shall affect any rights or privileges of persons who are solicitors or assistant solicitors to the Revenue Commissioners or require any such person, or any clerk or officer acting for him, to be admitted or enrolled or to hold a practising certificate."

What are the rights and privileges in question?

Of the Revenue Commissioners?

Of the solicitors.

The position is that the Minister was anxious to protect the practice under which a barrister is for some peculiar reason called a solicitor.

I must say that tradition and custom die very hard. I think it is time we changed that now.

What would happen if the solicitor to the Revenue Commissioners were a solicitor? I know we cannot legislate for the future but suppose he was not a barrister.

I think the answer is that such a person would have no special rights or privileges. Therefore, it is not necessary to protect rights and privileges that do not exist.

Question put and agreed to.
Section 87 agreed to.
Amendment No. 13 not moved.
Section 88 agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill."

What is the import of the section under the Irish Universities Act, 1908, which is being repealed? I see that Section 12 is being repealed.

I am afraid I do not know, but I think the position is that solicitors have to serve a certain term of apprenticeship which is normally five years. You can get a year off that if you get a degree. There is a special provision in this Bill as to the colleges in which you could do that and get the degree.

Question put and agreed to.
Second, Third and Fourth Schedules put and agreed to.
FIFTH SCHEDULE.
Question proposed: "That the Fifth Schedule be the Fifth Schedule to the Bill."

Section 4 of the Fifth Schedule states:—

"A grant may be made out of the fund whether or not the solicitor had a practising certificate in force when the act of dishonesty occurred."

That appears to me to be mandatory. I suggest it should be optional.

Would the Senator state what his objection to it is?

An Leas-Chathaoirleach

On which part of the Schedule is the question raised?

Section 5, which states:

"A grant shall not be made out of the fund unless notice of the loss is received by the society—

(a) in the prescribed manner, and

(b) within the prescribed period after the loss came to the knowledge of the loser."

The idea there is to protect the public. A person who loses money through the embezzlement of a solicitor must bring the matter to the notice of the society within a reasonable period, otherwise a position might arise where a person had lost money through embezzlement and said nothing about it. Other people might then, perhaps, be led into the same trap. It is very important that a person should not be compensated out of the compensation fund unless he himself acts with reasonable celerity in making his case and in doing it in the proper way.

It would mean that the society would have no option. If, through oversight or neglect or because a person was under age, or for some other reason, the applicant failed to make application to the society within the specified period, the society has no power to award compensation.

Again, I think that is a question of the regulations. Obviously, the regulations would provide and give some relief if the person were ill or out of the country or if the matter had not come to his notice.

They are bound by the prescribed period. Once the regulation specifically states the prescribed period, the society would have no discretion to alter the period set down by the regulation, irrespective of what the unusual circumstances might be in connection with the delay in making the application.

That would depend, surely, on the regulations. They might take the form that the prescribed period shall be (a) five years or (b) such longer period as the committee may, in their discretion, fix—or anything of that kind.

The prescribed period is not mentioned here.

Question put and agreed to.
Sixth Schedule and Title put and agreed to.
Bill reported without amendment.

As the date in the Bill is the 6th January, 1955, perhaps the Seanad—since no amendments have been adopted to it—would be agreeable to give the other stages now? I ask for that.

Agreed to take the remaining stages now.

Question—"That the Bill be received for final consideration"—put and agreed to.
Question proposed: "That the Bill do now pass."

I want to ask the Minister a question in connection with Section 72. Sub-section (2) of Section 72 states:—

"For the reference to £80 contained in the First Schedule to the Stamp Act, 1891, under the first of the headings ‘Articles of Clerkship' there shall be substituted a reference to £14."

To whom is the £14 paid?

The Revenue Commissioners collect that money for the King's Inns. Neither the Revenue Commissioners nor the State get any benefit from it.

That is hardly an explanation.

That is a subject which has always been very painful with the solicitors' profession. Centuries ago, solicitors had the right of members of the King's Inns and were subject to the discipline of the benchers. For some reason which has never really been discovered—although long archæological researches have been made—in process of time it came about that, on admission, solicitors paid a heavy stamp duty which went to the benchers —which did not go to the Incorporated Law Society and which was not of any benefit to the solicitors' profession. That was a matter which always perturbed solicitors. Now, to a very large extent, that has been put right and, in future, solicitors will have to pay the greatly abated stamp duty of £14 which will be received by the Minister for Finance. Out of that we know he makes a grant to the King's Inns but solicitors are getting off much better than they used to.

Much better than the barristers.

I move that that be reduced to £1.

An Leas-Chathaoirleach

The Senator cannot move that at this stage.

Question put and agreed to.
Business suspended at 6 p.m. and resumed at 7 p.m.