Solicitors (Amendment) Bill, 1994: Second Stage.

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

Minister of State at the Department of Justice (Mr. O'Dea)

This Bill amends and extends the Solicitors Acts, 1954 and 1960, and provides for related matters. It is 40 years since the principal legislation, the Solicitors Act, 1954, relating to the solicitors' profession was enacted. The Solicitors (Amendment) Act was made necessary mainly as a result of a Supreme Court decision that disciplinary powers conferred on the Law Society by the 1954 Act were unconstitutional.

This Bill is a product of a thorough assessment of the experience of the basic legislation in practice. The Bill also recognises developments in the legal services field and changing conditions under which legal services are provided by solicitors to their clients. It also represents a major reworking of the Solicitors (Amendment) Bill, 1991 which lapsed following consideration by a special committee on the dissolution of the 26th Dáil.

The Bill introduces major reforms and is intended to provide a modern legislative framework for the solicitors' profession. Many of my predecessors have signalled their intention to introduce legislation amending the Solicitors Acts. For my own part, I am happy to have the opportunity to bring this legislation before the House. In addition, the Bill meets the commitment in the Programme for a Partnership Government to provide greater protection for clients of solicitors. It also take account of a number of recommendation made by the former Fair Trade Commission.

The Bill proposes a wide-ranging reform of the law relating to solicitors involving almost every aspect of the regulatory framework of the profession. It provides for four broad categories of reform. The first of these ensures that clients of solicitors are better protected by the law in their dealings with solicitors. Second, it requires the profession to maintain the highest standards of conduct and a strict disciplinary system. Third, it provides for more competitive conditions regarding the provision of legal services. Finally, it updates the training and educational arrangements for solicitors. Of course, these broad objectives are in many ways complementary. For example, clients clearly stand to benefit from a tightening of standards of conduct in the profession.

The first major area of reform relates to the rights of the consumer of legal services provided by solicitors. My main concern is to ensure that the client's interests are fully protected in the client/solicitor relationship. This aspect of the Bill, perhaps more than any other, is driven by changing circumstances, especially in the legislative area, since the inception of the principal legislation 40 years ago.

Consumer's rights per se were not generally recognised in legislation of that period. Today, however, there is in place a substantial body of what I would refer to broadly as consumer law. It is entirely appropriate that the legislation regulating solicitors' conduct and practice builds on and contributes to the development of consumers' rights in law.

The Bill contains many consumer driven measures. Solicitors' clients will have the right to redress where a solicitor provides inadequate services or where charges for services are excessive. For the first time solicitors will have to be fully insured against damages awarded to clients arising from civil liability claims against their solicitors. The Bill increases the power of the Law Society and of the High Court to intervene in the practice of a solicitor in the interests of clients. Solicitors will have to provide clients with clear information regarding the cost of their services while percentage charging is being prohibited.

One of the most significant provisions is the setting up of a scheme for the investigation of complaints by an independent adjudicator regarding the Law Society's handling of complaints about solicitors. The Bill was introduced against a background where there had been persistent public concern about the way in which complaints concerning solicitors are dealt with by the Law Society. The setting up of an office of independent adjudicator is an innovative approach to this problem and will, I am confident, do much to restore public confidence in complaints handling procedures.

With regard to disciplinary matters, the supervisory powers of the Law Society and of the High Court are enhanced. New tighter controls with heavy sanctions where client's funds are not handled in accordance with regulations are also being introduced.

To improve the competitiveness of solicitors' services, the Bill contains new initiatives regarding advertising of legal services and the provision of probate services. In addition, Part V of the Bill updates and streamlines the training and educational provisions of the existing legislation, amending extensively the Law Society's functions in this area.

I now propose to elaborate on some of the details of the Bill. Section 8 gives the Law Society new power to impose sanctions on solicitors who are found to have provided inadequate or shoddy services. The society will be empowered to limit the cost which a solicitor may recover from a client, or require a solicitor to refund costs paid by a client and to rectify any error at the solicitor's own expense arising from the inadequate services. Under section 9, the society will be empowered to order solicitors to refund fees paid by their clients or to waive the right to recover costs where those solicitors have been found to have charged excessively. These are practical and accessible measures which will provide a speedy and inexpensive remedy for many complaints against solicitors and they do not affect the client's right to seek redress through the courts.

The Law Society is empowered under section 10 of the Bill to require a solicitor to produce any documents relating to a complaint made against him or her which the society is investigating. This is intended to facilitate investigations under sections 8 and 9. Under section 12, the society will have new powers to enable it to recover from a solicitor some of the costs which it may incur in investigating complaints made under sections 8 or 9 of the Bill. To ensure fairness in the law, the new powers being conferred on the society by sections 8, 9, 10 and 12 may be appealed by solicitors under section 11.

In recent years public confidence in the manner in which complaints about solicitors are handled has reached a very low ebb indeed. There is widespread dissatisfaction about the profession's complaints procedures. What is needed is an effective and transparent system for dealing with complaints against solicitors. In response to this, section 15 provides for the setting up of an independent adjudicator to investigate complaints about the society's handling of complaints against solicitors.

The adjudicator will have wide powers, including the power to fully reinvestigate the original complaint made to the society about a solicitor if he or she is dissatisfied with the society's investigation of any complaint made to it. The adjudicator may also direct the society to reinvestigate a complaint if he or she is not happy with the society's original investigation.

The Minister's consent will be required for the appointment of the adjudicator who, it is specifically provided, will be independent in carrying out his or her functions. Additionally, the adjudicator must not be a practising solicitor, a member of the society or practising barrister. I am satisfied that the independence of the adjudicator is further ensured by the requirement to report annually to the Minister. These annual reports of the adjudicator will be laid before both Houses of the Oireachtas.

I am aware that the society is opposed to the funding of the adjudicator scheme. I have little sympathy with that viewpoint. The introduction of this new complaints apparatus has become necessary because of the failure of the solicitors' profession to live up to the responsibilities of self-regulation. That failure should not give rise to a cost on the taxpayer. The profession itself should bear the cost involved and section 15 provides precisely for that.

To further enhance public confidence in the profession's disciplinary system, section 16 provides for the appointment, for the first time, of up to five lay members nominated by the Minister to the disciplinary committee of the High Court to represent the interests of the general public. This committee, which from now on will be known as the disciplinary tribunal, is appointed by the President of the High Court and is responsible for conducting inquiries into allegations of misconduct against solicitors.

Section 17 empowers the disciplinary tribunal to impose limited penalties where it finds that a solicitor has been guilty of misconduct. This will enable the tribunal to dispose of some less serious cases of misconduct without involving High Court proceedings which are necessary under the present legislation. This was a course recommended by the Fair Trade Commission and I am satisfied that it will improve the efficiency of disciplinary procedures. I referred earlier to the Supreme Court decision in the "Solicitors' Act" case that powers conferred on the Law Society by the 1954 Act were unconstitutional. I am advised that the new powers being conferred on the disciplinary tribunal under section 17 will not breach the constitutional requirements laid down in that case. The tribunal's new powers include directing a solicitor to pay up to £5,000 to the compensation fund and to pay up to £5,000 as a restitution to an aggrieved party.

Section 18 extends the existing powers of the High Court to impose penalties on solicitors where the disciplinary tribunal reports a finding of misconduct against a solicitor. Section 22 will oblige the Law Society to publish information annually on complaints received about solicitors and the outcome of investigations by the disciplinary tribunal of complaints alleging misconduct. This move improves the transparency of these procedures. I hope that making this information generally available will help to restore public confidence in the manner in which the Law Society handles complaints.

In the past, funds were not always available to meet the cost of damages awarded to clients arising from negligence on the part of their solicitors. Section 26 addresses this by enabling the Law Society to require all solicitors to be covered by indemnity insurance against losses arising from civil liability claims. The vast majority of practising solicitors are, in fact, covered by professional indemnity insurance but this provision constitutes an important additional safeguard. Practising solicitors also will be required under section 54 to satisfy the Law Society that they are complying with the indemnity insurance requirements before practising certificates are issued to them. This question of solicitors' insurance is an urgent matter and the Law Society has assured me that it will introduce the necessary arrangements under section 26 as quickly as possible.

The Law Society can intervene in a solicitor's practice in limited circumstances. Experience has shown that the grounds for intervention should be extended to protect the interests of clients. Under the provisions of sections 31 and 32 the Law Society will be empowered to intervene in the practice of a sole solicitor who has died or who is incapable of managing his or her affairs through illness, or because of an accident, or who is adjudicated a bankrupt, or who abandons his or her practice. In such circumstances, the society will be empowered to take whatever action it deems necessary in the interests of the clients. Where the conduct of a solicitor is likely to give rise to the payment of grants out of the compensation fund, the High Court may authorise the society to sell that solicitor's practice under the provisions of section 33.

Section 28 extends the society's powers to apply to the High Court for an order to freeze bank accounts where it believes that a solicitor has been guilty of dishonesty. It also gives the society a new power to apply for an order to freeze the assets of a solicitor.

Section 37 restricts newly qualified solicitors from setting up in practice, without the consent of the Law Society, as sole practitioners for a period of up to three years following qualification. A newly qualified solicitor will be able to enter a partnership but only if a prospective partner has been engaged fulltime in the provision of legal services for at least three years. Clients stand to benefit from this provision, the purpose of which is to ensure that young solicitors develop sound practice habits during this period.

Issues relating to solicitor and client costs are addressed in section 68. I am particularly concerned that this Bill ensures maximum transparency in this aspect of solicitor/client dealings. Clients should be informed in advance about a solicitor's charges or likely charges for providing legal services. As it stands it is quite usual for clients to be left in the dark about the cost of the solicitor's services. There can be great uncertainty and often it is only when the business is over and done with that clients learn of the full liability to their solicitors. I feel sure that Senators will agree that this situation badly needs to be changed. Not all legal business lends itself to a ready calculation of actual charges in advance; I have in mind especially contentious matters. However, section 68 offers a very flexible structure for providing statements of charges, and solicitors should have little or no difficulty in complying with it. Solicitors will have to provide clients, at the outset, with particulars in writing of the actual charges or, where this is not possible, an estimate or, if neither is possible, the basis on which they will be charged for legal services.

In contentious business, such as personal injury actions, solicitors will also be required to inform clients where they will be liable to pay additional costs to the solicitor over and above those recovered from the losing party. When the contentious business is disposed of, solicitors will be required to provide clients with details of the legal services provided, damages and costs recovered and, separately, the charges for the solicitor's services.

I am confident that this section alone goes a long way towards assisting clients in their dealings with solicitors. Section 68 ensures that the client gets the maximum information possible, at the outset and at the conclusion of business, about the costs of a case and the costs of dealing with solicitors.

I mentioned earlier that this Bill will prohibit percentage charging. I want to explain the case for this provision. The practice among solicitors of deducting a substantial premium — often 10 per cent or more — from the damages awarded to their clients in personal injury cases, over and above the costs payable by the losing party, is apparently widespread. One objection to this practice is that clients have no way of knowing what they will eventually have to pay as the charge is based on a fixed percentage of an unknown quantity of damages. In any event, party and party costs — that is the costs that the losing party pays the successful party — should normally cover most if not all of the necessary costs incurred by the successful client's legal representatives.

Section 68, therefore, prohibits solicitors from deducting an amount from clients' damages without the prior agreement in writing of the client. The section also prohibits solicitors from charging costs to their clients on the basis of a percentage of any damages that may be awarded to a client. Again, this provision will help the client to decide what he or she is getting into when taking a legal action.

Section 76 faces up to the difficult issue of serious dishonesty in the solicitor's profession. Senators will not need me to tell them that the reputation of the profession has been harmed by a small number of solicitors who have misappropriated or absconded with clients' funds. That is both unfortunate and regrettable. Solicitors are often entrusted to handle very large amounts of money belonging to their clients. That is in the nature of the work that solicitors are required to do. But that is not, of course, any excuse for dishonesty on the part of the solicitors. On the contrary, this should establish a special relationship of trust between solicitors and their clients, and in fact the law recognises that there is a fiduciary relationship between solicitor and client.

This special relationship of trust is abused by solicitors who misappropriate their clients' money. I must first stress my belief that the vast majority of solicitors are hard working and honest professionals. It is a fact that the money misappropriated by dishonest solicitors is very small in comparison with the total amount handled by the profession in its dealings with the public.

There is a problem here nevertheless, and I know that the society is as determined as I am to tackle this abuse. To deal with this problem, section 76 creates criminal offences for breaches of a number of new requirements in relation to the handling by solicitors of clients' moneys. Solicitors will be required to keep clients' funds in bank accounts prescribed by the society and to maintain an accurate record of transactions involving those funds. The society will also be empowered to enforce these provisions. A maximum fine of up to £10,000 will apply where these requirements are breached and I am confident that strict enforcement of these provisions will make significant inroads into this problem.

Section 76 provides for a quick and more effective system of dealing with such cases of dishonesty as they arise. The major impact of this section will be to act as a significant deterrent against abuse involving clients' moneys.

Section 73 obliges the society to make regulations with the concurrence of the High Court requiring solicitors in general to maintain clients' funds in deposit accounts or to pay them the interest on such moneys. The Law Society has already taken action in this area but I am convinced it is appropriate in the public interest to make statutory provision for these matters.

Section 29 of the Bill dealing with the compensation fund will also benefit the clients of solicitors although perhaps less obviously than some of the provisions to which I already referred. The fund is maintained by the Law Society to compensate for losses arising from dishonesty on the part of solicitors. The Bill introduces two major changes in the provisions governing the compensation fund. The first concerns section 21 of the 1960 Act which provides that any person suffering loss can be compensated from the fund. A Supreme Court decision in 1989 interpreted this as giving access to the fund to financial institutions incurring loss as a result of undertakings given by solicitors. Section 29 of the Bill will limit the scope of the compensation fund to clients of solicitors only, an important refinement. It was not the intention in drawing up the 1960 Act that financial institutions engaged in large financial transactions, in pursuit of their own business and relying on undertakings from solicitors, should be able to claim against the compensation fund if the solicitors default in circumstances where the financial institutions are not clients of the solicitors.

Banks and other financial institutions have always relied on solicitors' undertakings for purely business reasons and without any expectation that they would be entitled to have recourse to the compensation fund. They are in a very strong position to protect their own interests. These institutions should not have to rely on the fund as a form of insurance considering the resources at their disposal and the expertise available to them in deciding whether to accept a solicitor's undertaking.

The second change affecting the compensation fund is the application of a cap or maximum grant limit of £350,000 in respect of a claim made on the fund. I am satisfied that this limit will provide more than adequately for the vast majority of claims for compensation made against the fund by private individuals and small businesses whom the fund was primarily designed to protect.

Nevertheless, if a claim in excess of £350,000 arises, section 29 provides that the society may grant an amount in excess of £350,000 in cases of grave hardship. I am also empowered to increase the cap of £350,000 in line with inflation. I should point out that I have set the cap at a level well in excess of the maximum amount that has ever been paid in respect of a claim on the fund by a non-corporate client of a solicitor. I am satisfied there is a compelling case for this cap.

Without these amendments, there would be the continuing risk of large financial institutions lodging claims against the fund of the order of perhaps several millions of pounds. Such huge claims would, inevitably, deplete the fund and it would become impossible for the Law Society to make good losses suffered by clients of solicitors for whom the fund was designed to protect in the first place.

Regulations made by the Law Society in 1988 permit solicitors to advertise their services, subject to certain general limitations, including a prohibition on specifying a fee for services. Section 69 provides for the removal of that restriction and prevents the Law Society from prohibiting fee advertising by solicitors for any specified legal charge.

The society is not happy about this provision. One objection to it is that clients are not in a position to assess in advance the quality of the service being offered and are likely to be misled if they make decisions solely on price. This is not a valid objection.

First, the Bill gives the society powers to deal with false and misleading advertising. Secondly, I have more faith in consumers than perhaps the society has. Consumers make important financial decisions for themselves in relation to services and products on a day-to-day basis. Users of legal services are accustomed to making decisions about the quality of services offered by solicitors who have advertised their services since 1988 although fee advertising continues to be prohibited by the society. Price is clearly a key factor that consumers take into account but there are also other factors such as the reputation of the supplier, dependability and quality of service. Withholding information about the price of the service denies the consumer the opportunity of making the optimal choice.

I am not suggesting that it would be possible to advertise the prices of all services provided by solicitors. I have already touched on this point in relation to the information that a solicitor will have to provide to a prospective client at the outset of business. However, there are services of a more routine and predictable nature which will be suitable for price advertising, such as conveyancing and probate. There is no evidence to suggest that price advertising in England has had the dire consequences predicted by the society. In fact it is understood to have resulted in substantial reductions in costs, particularly in the area of conveyancing.

The society also suggests that price advertising is likely to expose the public to the risk of shoddy work from unscrupulous solicitors. However, they are very much in the minority and I take it that the society is not suggesting otherwise in its objections to this provision. The Oireachtas has delegated to the society the responsibility to maintain a high general standard of professional conduct under the Solicitors Acts. Moreover, sections 8 and 9 of the Bill give the society new and additional powers to deal with shoddy or inadequate services while the Bill generally strengthens the society's regulatory functions.

The society, therefore, will have sufficient powers to deal with false or misleading advertising and to crack down on unscrupulous solicitors who provide less than quality services to their clients. No doubt the society will deal vigorously with any such cases that may arise.

While I am confident that the consumer stands to benefit from fee-advertising, I am aware that concerns have been expressed about this provision in the Bill and I accept that they are genuinely held. Therefore, I have decided to include in the Bill a failsafe provision which will allow the experience of fee-advertising to be reviewed over time. This will enable the society to prohibit fee-advertising in respect of given services but only with the consent of the Minister where she is satisfied that prohibition is in the public interest.

Section 78 opens up will-making and probate services to competition from credit unions. I am a proponent of greater competitiveness in the provision of services generally as I believe that invariably the consumer stands to benefit. In relation to the relatively specialised services such as those in question, however, we should proceed very cautiously down this road. It is reasonable to allow credit unions to compete with solicitors for this business as they are generally small organisations operating at local or community level and function on an nonprofit making basis for the benefit of their members. They should be enabled to provide will-making and probate services subject to the comprehensive safeguards in section 78. One of these is that credit unions will not be allowed provide these services until they are subject to the scheme of investigation of complaints provided for in section 79 of the Bill, or a similar scheme.

The Solicitors Acts contain restrictions on the organisation of solicitors' practices. Incorporation by solicitors, multidisciplinary practices involving solicitors and members of other professions and multi-national practices involving Irish solicitors and lawyers from other jurisdictions are not permitted under the Acts.

Clients may benefit from changes in the structure of working arrangements in the profession. I do not think that we should rule out the possibility of future developments in these areas and, accordingly, sections 70 and 71 enable the Law Society to bring forward regulations — which will require the concurrence of the Minister — to provide for these new forms of working arrangements.

Incorporation by solicitors is currently prohibited which may be over restrictive nowadays. The professions in England, Wales and Scotland are no longer prohibited from engaging in such working arrangements. Similarly, inter-professional marketing developments here may dictate the pace of development of multi-disciplinary practices involving solicitors. Developments in the EU and further afield suggest that movement towards multi-national practices may be inevitable. Again, both multi-disciplinary and multi-national practices are permitted in England and Wales. These sections are framed so that the Minister will have sufficient powers to ensure that the interests of clients are adequately protected, if such new working arrangements are ultimately introduced.

Part V of the Bill contains the final major area of reform. It provides for a number of significant changes relating to the education and training of solicitors. The subject of legal education is currently being debated by both branches of the legal profession. The central issue here is rationalisation of the present system, including resources and the structure of legal training.

An advisory committee on legal education and training comprised of representatives from the Law Society, the Bar, the universities, IBEC, ICTU, the Union of Students in Ireland and the Higher Education Authority is currently considering proposals for rationalisation. The Minister is also represented on that committee which is chaired by the Honourable Mr. Justice Ronan Keane. I hope to see progress in this area before too long. Section 49 of the Bill provides that the Law Society may join with other bodies in holding examinations leading to a joint or common qualification. This has been designed to anticipate arrangements for joint vocational training which I hope will result from rationalisation of the current position. I expect, in time, that suitable use will be made of these new provisions.

Changes in admission requirements for intending solicitors, which were introduced by the Law Society in 1989, have resulted in a large increase in the number of students being admitted to the society's law school. Since then, law graduates no longer have to sit the society's entrance examination once they have passed exams in certain subjects prescribed by the society as part of their degree course.

There is a problem, at present, for intending solicitors seeking admission to the society's law school in obtaining apprenticeships. Apprenticeship is a prerequisite for entry to the society's law school and, ultimately, to the profession. There are a number of provisions in the Bill which will assist the profession in providing apprenticeships.

Section 47 allows a solicitor to have two apprentices instead of one and to have an apprentice for every two assistant solicitors. Section 42 reduces the period of apprenticeship from a maximum of five years to a maximum of two years. Section 44 reduces the minimum period of continuous practice required before a solicitor may take on an apprentice from seven to five years and section 53 enables the society to make regulations providing that apprenticeships may be served in Northern Ireland, England and Wales.

I am confident that the cumulative effect of these provisions will be to ease the pressure on obtaining apprenticeships. This will allow many well qualified graduates to get a foot hold in the profession. In particular, increasing the number of apprentices which a solicitor can have will allow a solicitor with the capacity and the work to take on extra employees.

Section 51 of the Bill will facilitate freer interchange between the barristers' and solicitors' professions and was a course recommended by the Fair Trade Commission. This section provides for exemptions from the society's examinations for barristers wishing to be admitted as solicitors. It reduces from a maximum of five years to a maximum of three years the period of practice at the Bar required by such persons. I sincerely hope that the Bar Council can reciprocate to enable practising solicitors to move more easily into the other branch of the legal profession.

Part VI of the Bill strengthens the control of the Law Society over the issue of practising certificates. Section 61 extends the grounds upon which a practising certificate can be refused or issued subject to conditions, while section 59 empowers the society to give a direction imposing conditions on a current practising certificate. In addition, section 58 allows the society to apply to the High Court where the society considers there has been a serious failure on the part of a solicitor to comply with the Solicitors Acts or with conditions imposed on a practising certificate. The court may suspend a solicitor's practising certificate in such circumstances.

Part VII contains a number of miscellaneous provisions. I will mention section 67. From time to time in the past, members of the public have experienced considerable difficulties in engaging the services of a solicitor to take an action against another solicitor. The Law Society can, and does, make arrangements to assist persons contemplating actions against solicitors, but I think it is more appropriate in the public interest to ensure that adequate statutory arrangements are in place to cater for this situation. Accordingly, section 67 of the Bill requires the society to maintain a register of solicitors who are prepared to act for any person who is unable to find a solicitor to take civil proceedings against another solicitor. The society will also be required to take reasonable steps to assist a person to obtain the services of a solicitor for such purposes.

The main challenge posed in formulating these proposals was the need to strike a balance between protecting the public in their dealings with solicitors and providing for a regulatory framework giving the solicitors' profession latitude to provide a range of high quality legal services. I am confident that this Bill gets that balance right.

This Bill is, more than anything else, a blueprint for reform which provides for the needs of clients of solicitors while, at the same time, revitalising the profession as it faces changing conditions now and in the future. The proposals in the Bill are consistent with the overall policy of self regulation by the profession. However, that policy of self regulation needs to be counterbalanced and supplemented with safeguards to protect the public interest. This Bill provides for such safeguards. Many provisions in the Bill call for change and innovation on the part of solicitors. I am confident that this old and honourable profession will adapt to the changes proposed in the Bill and will continue to prosper.

I look forward to an interesting and lively debate on the many issues which arise and I will be happy to provide further explanation to Senators of any particular provisions they may wish to raise.

Mr. Neville

While I welcome the legislation I have been aware for some time that there has been cause to introduce changes in the law relating to solicitors and a Bill was produced in 1991 to do this. The Bill is too limited in its objectives. We need a root and branch reform of the legal profession and legal operating systems to bring them up to standards of efficiency achieved in other areas of business and the professions. While the Bill before the House contains many important changes, it is difficult to understand why the Government should confine reform to only one aspect of the legal environment and totally disregard the rest. The entire legal arena needs urgent and radical reform.

The public perception of the legal area is not healthy. The public perceives the legal environment in which we operate to be antiquated, clumsy, inefficient and inadequate in serving the people. It is a fact that the vast majority of those who operate the legal system are honourable, decent, honest people who do an important job as well as they can on behalf of their clients. Solicitors are not merely members of a profession acting for private clients but are also officers of the court. They handle trust money and property for their clients. The public interest requires from the members of that profession, both individually and as a professional body, high standards of efficiency, integrity and, above all, honesty. For these reasons, the Bill before the House must seek to regulate the general affairs of the legal profession and also safeguard the public interest.

I wish to deal with the efficiency — or, more correctly, the inefficiency — of the court system. As a layman, I am often amazed to see court rooms at 10 a.m. full of solicitors, barristers, gardaí, witnesses and so on waiting for a case to be called. It appears that there is no proper listing system and, consequently, everybody arrives at 10 a.m., resulting in an enormous waste of man hours by the legal profession and others. I have been obliged to appear as a witness and have left my work to give evidence of two minutes duration and had to wait for several days to do so. This approach adds to the overall cost which is funded by the taxpayer. Surely, in this age of highly trained public servants and computer technology, we could have a more simplified and efficient system.

Another issue of which I have had experience is the changing of barristers at the last moment in a case. It is not unusual for a barrister to return a brief to a solicitor at very short notice. This can occur after a case has been in a solicitor's office for several years. To the client, it is a most important matter in their lives and often they have built up a relationship with a barrister. However, a different individual may be asked to take the brief at the very last moment. He or she will not know the client and the client will be grossly disillusioned by the change in personnel and will inevitably feel insecure as a result of the change. Whatever the reason for this, changes must be made to prevent such a situation occurring. It does nothing for the image of the legal profession to allow it to continue.

I wish to speak about the training and appointment of judges. It is difficult for the public to understand the considerable variation in thinking and determining of levels of sanctions between judges, up to and including High Court level. Those wishing to serve as judges in our courts should undergo some training prior to appointment and guidelines should be set to determine the suitability of individuals to serve in this capacity. Judges should also have the benefit of in-service training. Many areas of law require great sensitivity, such as the family law area. I do not see why a solicitor should not be considered for appointment to any court provided he or she is a suitable candidate.

A barrister, in assessing the chances of success of a case with a solicitor and clients, will often take into account which judge will hear the case. There should be a means to prevent this from occurring. I am only too aware of the divergence in sentences imposed by different judges for similar offences. This even applies to breaches of the Road Traffic Act. Such differences have recently become obvious.

I compliment the Law Reform Commission on its work. It has produced excellent reports over the years, but unfortunately many are gathering dust on the shelves of the Department of Justice. Why do we have an excellent body such as the Law Reform Commission many of whose recommendations are not followed? The Law Reform Commission is capable of producing legislation to progress its recommendations and the Government should encourage it to publish Bills embodying many aspects of its reports. Any changes the Government may wish to make subsequently could be introduced on Committee Stage. This would mean that changes in our laws would occur more quickly than through the present system. Many of our criminal laws are out of date and, as Fine Gael has suggested for many years, the Government should set up a criminal law reform commission to deal specifically with this area of law.

Another area of concern which I raised in the House on a number of occasions is the work of the Land Registry. I regard delays in the Land Registry as nothing short of appalling. This has nothing to do with the excellent staff who man the Land Registry office and who work in antiquated conditions. Systems should be updated and staff should be trained to deal with them. Staff in the Land Registry work hard and do excellent work in extreme conditions.

It has been shown over and over again that changes in the Land Registry would not alone lead to greater efficiency but would be self-financing. Delays in having land registered can have serious effects on the economy and can cause a great deal of extra expense and annoyance to the individuals concerned.

On the general principles of the Bill before the House, I refer to the report of the Fair Trade Commission published in March 1990, which states that the commission considers that there is a fundamental requirement that the public should have available an adequate supply of legal service of sufficient quality with a wide degree of choice among practitioners, delivered efficiently at a reasonable price. It accepts that it is in the public interest that suppliers of legal services should maintain a high standard of competence, conduct, integrity and independence for the protection of the consumers. That is a useful and fundamental statement of our concerns in dealing with legislation for legal services and the legal profession generally.

Members will note the Fair Trade Commission refers to an adequate supply of legal services. I am disappointed that the Bill deals only with solicitors. Other groups apart from solicitors are involved in the due process of law. Why are barristers, including Senior Counsels excluded from the Bill? Do we have a three tier system of legislation? This Bill will effectively deal with the lowest rank in the legal profession and leave the other two tiers alone. Why do we not extend the legislation to all those involved in the legal profession? The many ills in relation to the administration of justice about which we hear so much from clients and solicitors in the legal profession, are not confined to complaints from solicitors only. This legislation should extend to all involved in the legal area.

Do we need two separate groups of lawyers? Is the public interest best served by continuing the existing professions? It is a strict rule of the Bar Council that in almost all cases, except where an opinion is sought or where professionals such as accountants are allowed access to barristers for briefing, a barrister must not accept a brief except on the instructions of a solicitor. What is the logic in continuing such a practice? Why should the Bar Council be allowed to dictate this approach? Surely these matters should be laid down by legislation and not by an independent body?

The Restrictive Practices Commission believes that no rule should limit direct access. It recommends that whether or not a solicitors is involved, there should be a direct contractual relationship between a barrister and a client.

The Bill provides for the public to make complaints and take proceeding against solicitors, something which we welcome. Why should barristers be free from such remedy? Is it time the unnecessary differences between the two branches of the profession were eliminated and to consider the fusion of these professionals into one profession of lawyer which would include training as well as practising law? This process would be helped by the appointment of solicitors to the bench of every court up to the Supreme Court.

I suspect that one of the reasons the Bar Council clings to the out dated practice of wearing wigs and gowns is to continue the distinction between barristers and solicitors and to keep the latter out of the High Court. Since solicitors are considered capable of arguing their case as far as the Supreme Court, as they have since the Courts Act, 1971, they should be allowed to sit on the bench of the same court. It would further the unification of the professions if the restrictive practice of access to barristers via solicitors was eliminated.

On numerous occasions in this House I raised the wearing of wigs and gowns by barristers in court. The Minister has frequently commented on this during discussions on Bills in this House. Although he promised to take action if the Bar Council did not do so, yet none has been taken.

Mr. O'Dea

Not yet.

Mr. Neville

Barristers continue to wear wigs and gowns in court. It is interesting to note the views of the Fair Trade Commission in this regard. The commission does not believe that the wearing of wigs, in particular, adds to the formality and solemnity of the court, but the reverse. It considers wigs to be anachronistic, unnecessary and possibly intimidatory. In so far as they convey a degree of anonymity to barristers, the commission considers this to be contrary to its recommendations concerning a closer relationship between barrister and client. Wigs differentiate between barristers and solicitors in court and may inhibit solicitors from representing their clients more frequently. The commission also stated that since both judges and barristers wear wigs, this may convey the impression of an association and a community of interest between the two. The commission stated that it would be a sensible move towards a more modern profession if barristers no longer wore wigs. I invite the Minister to comment on this.

Concern has been expressed about the dual role of the Law Society, which is both a trade union association representing solicitors and a body which has been conferred with certain duties to protect the public. Surely there is a conflict of interest? The Law Society worked in favour of solicitors in the past and there is no indication that there will be any change in the future although the independent adjudicator provisions will help in this area. The role of the protector of lawyers' clients should be taken from the Law Society and given to an independent body with the right to hear complaints against solicitors and barristers. The duality of roles is not in the public's interest and is causing increasing concern, even among solicitors.

Part III deals with disciplinary matters. It is to be welcomed because it provides for the investigation of complaints about inadequate services, not just in relation to possible negligence but also complaints about shoddy work and clients not receiving notice of excessive fees charged by solicitors. The appointment of lay members to the disciplinary tribunal is also welcome. The tribunal will have the power to summons witnesses, take evidence and impose sanctions in cases of misconduct. There is also provision for the publication of information on complaints received by the Law Society which will help to protect the clients of solicitors.

I ask the Minister to comment on the cost of the new measures contained in the Bill. What is the envisaged cost of the redress where there are complaints to the new adjudicator and complaints about the negligence of solicitors and who will bear this cost? Will it be the Law Society or will the Government provide funding? If the profession is allowed to be self regulatory, there is surely a case to be made for the profession funding the protection of members' clients.

I welcome the provision in Part IV which contains additional proposals for the protection of clients. This includes compulsory indemnity cover for solicitors against civil liability and a new power for the Law Society to intervene in the interest of clients where a solicitor is guilty of dishonesty or a sole practitioner ceases to practise, dies or abandons his or her practice.

Part V deals with the educational requirements of solicitors. It should be compulsory for all solicitors to take practice management training on a regular basis as insufficient education on how to properly manage a practice is provided for solicitors in the pre-qualifying stages. A solicitor's practice is essentially a business. Many lawyers may be extremely efficient in dealing with the legal aspects of their firms but can be ignorant about the management of a practice and clients' accounts. This can lead to shoddy workmanship and negligence claims. Compulsory business management training should be necessary for solicitors in the pre-qualifying stages of their training. This is particularly important for the management of a client's money and the proper functioning of a credible solicitor's office.

Part VII contains miscellaneous provisions including the computerisation of the roll of solicitors and a requirement that the Law Society maintain a register of solicitors prepared to act against other solicitors. This is an important measure because many solicitors would refuse point blank to take an action against a colleague.

The requirement on solicitors to give clients some indication of litigation costs is welcome. Litigation is very expensive and its cost is not helped by the delays caused by a badly funded and inefficient court system. Delays caused by administrative deficiencies and an inadequate team of Circuit Court and High Court judges undermine the administration of law and contribute to the high cost of litigation. We must not ignore the impact of the inherent deficiencies in the administration of the court system as they also affect the efficient conduct of commerce and industry. If we correct the deficiencies in the court system and impose proper control on solicitors in respect of costs, we should solve many of the problems.

Many people are extremely upset about legal fees because they have not been made aware of them by their solicitors. Legal costs are extremely high and put enormous pressure on people who do not have access to free civil legal aid. The cost of litigation should be raised at the first interview with the solicitor and solicitors should not shy from discussing fees at an early stage.

A solicitor should be compelled to inform clients about the cost and the possibility and implications of losing the case. Only one person can win a civil case and a client who loses is often presented with a large bill. Solicitors should inform their clients of this, discuss whether it is worth going to court and explore the possibility of negotiating a settlement. Section 68 goes a long way towards controlling this area and we look forward to teasing it out on Committee Stage.

Mrs. McGennis

I welcome the Bill. It is overdue but positive and reforming legislation. I hope it is the beginning and not the end of a reform in this area as further reform is necessary. The legal profession is an integral part of our system of justice and a very influential grouping in their own right. However, the influence wielded by any group in Irish society should not render it immune from the introduction of new legislation and the demands of a changing society. I am not convinced that the legal profession has adapted to changing times and that is precisely why this legislation is so welcome.

Most of us have required the services of a solicitor or barrister at some stage. This is often an uncomfortable business and I advise anyone who has found a good solicitor or barrister to cherish him or her. We have all heard horror stories about people who had to engage the services of a solicitor or barrister when they were at their most vulnerable and needed people to represent them in a capable fashion. Bad representation and shoddy workmanship present a tremendous cost to the consumer.

The legal profession surrounds itself with language, codes of dress and arcane rituals which intimidate and confuse lay people. As Senator Neville said there is room for further reform in these matters. Unfortunately, the rituals and language contribute to an unequal relationship between the solicitor and the client. The client is often reluctant to ask the solicitor questions because of a lack of knowledge.

I have on occasion been involved with constituents during or after court cases where they believed that the barrister or solicitor had not represented them properly. This was not because of shoddy workmanship but because they were not listening to the points made by the client before the case and did not ask the questions which would have assisted the case. For that reason I welcome the setting up of the disciplinary tribunal on which there will be lay representation, it is a step in the right direction. I ask the Minister to consider further relaxing the situation.

As a member of a committee in the Four Courts I suggested to barristers and judges sitting on the committee that lay people are best equipped to represent themselves, particularly in family law cases. The learned gentlemen were horrified at my suggestion that the people with the best knowledge of their own circumstances should be permitted to come into court. This is true in family cases and I presume the law allows it but it does not happen very often.

Parties to family law cases, men and women, have said to me that they believed their point was not listened to and decisions were handed down which were grossly unfair and unjust to them. They believed the same decision would not have been made if they had been allowed to present their case. The people affected are capable of putting their own case but the legal profession underestimates their ability. I ask the Minister to consider this point.

Senator Neville mentioned the insistence of members of the legal profession on wearing wigs and gowns. This was raised in the other House and I know the Minister has referred to it on many occasions. While we might regard it as rather quaint, it is a badge of elitism we can well do without. The garb only serves to compound the public perception of the legal profession as distant and removed. If nuns are able to doff the habit without inhibiting their work in the community I do not see why the legal profession cannot follow suit. As Senator Neville said, the insistence on the continued wearing of wigs and gowns is to distinguish barristers from solicitors in courts. It also establishes a link between judges and barristers, this is wrong. I support Senator Neville's comments that there is a case to be made for appointing solicitors to the bench.

The establishment of the profession of lawyer, as distinct from the dual system of solicitor and barrister, is another proposal which probably has widespread support but does not form part of this legislation — although from some of the Minister's comments it may be put forward at a later date. Solicitors can argue a case to Supreme Court but I do not think it is done often. If they can do so, I do not see the need for the dual system. I hope the Minister will tackle that matter. Lawyers should represent people in court and, where possible, people should be able to represent themselves.

The legal profession, like many others, surrounds itself with impenetrable jargon and this has contributed to the gap between the client and the offerer of the service. It is understandable that they use such jargon — all professions have jargon — but only to a degree. There comes a point where jargon becomes more of a hindrance than a help, and it becomes a real and active barrier to better understanding on the part of the consumer. In terms of changing or adapting this language, it is up to the legal profession itself to make the necessary changes. I hope it will act accordingly.

At a time when many public bodies and professions are changing, the legal profession cannot be seen to set itself apart. A case in point is the medical profession which used to be associated with the use of jargon and the exclusion of client or patient from a relationship. That has changed dramatically and those who visit their GP or have occasion to use consultants in hospital have found that when they ask a question they get a reply in layman's language. That is not yet the position with many members of the legal profession. They will have to change but if they do not, the Minister will be forced to make further changes to the law.

The language and presence of the legal profession and the Judiciary in court is not client oriented — it is a game. I have attended court on a few occasions and it appeared that what was being played out was a game between the judge and the barristers who were representing the clients. The game seemed to revolve around who was the smarter and which of the barristers could make the most impressive point to the judge. The ordinary person involved felt it had nothing to do with right or wrong or the merits of their case. Because to the nature of our justice system cases hinge on precedent and quoting previous cases of law. That is probably correct to a point but justice must not only be done, it must be seen to be done, and in many cases it is not so perceived by the client. This legislation is client oriented and the users of the service will welcome it.

I have noted that the legal profession is over-sensitive to any perceived criticism. This should not be so. Nobody should be over-sensitive to positive and constructive criticism. All professions must change with the times and, above all, become more accessible to the members of the public they serve. I support Senator Neville's point that a contract should exist between barrister and client. It is unacceptable that a barrister should be briefed only by a solicitor and that no contract is formed between the client and the barrister.

I labour the point because it is worth repeating — clients often feel that the barrister they meet for five or ten minutes goes into court not knowing the intimate details of the case. It may not help them to put the legal points but if they had a feel for the person they are supposed to represent, the client would at least feel they are being served properly. While there is no accountability by barristers to the people they represent, there will always be shortcomings in the relationship between barrister and client.

I understand the consumer rights argument. The Programme for Government contains a range of commitments with regard to consumer protection and many of these commitments have already been acted upon. No one group can remain removed from this process, and that includes solicitors and barristers.

Changes are proposed in relation to the Law Society. It is seen as the trade union for solicitors and to have it as a watchdog — as was the position to date — over solicitors constituted a conflict of interests. Furthermore, on the one occasion I made a complaint the Incorporated Law Society it refuse to take any action. There was no further recourse; there is no other court of appeal for anyone who has a justifiable complaint and makes it to the Incorporated Law Society. It is the final arbiter.

The appointment of an independent adjudicator as provided for in this legislation is vital and is one of the most important and welcome aspects of the Bill. It is the first time the client has been acknowledged as a consumer and not just an object between solicitor and barrister who has no rights as to how he is represented. The decision in the legislation to publish information on complaints received will make practitioners more alert. No group can be seen to be above the law and above complaint. I particularly welcome the appointment of lay persons to the tribunal. It further strengthens my call for increased representation by people in certain courts.

The Minister referred to the increased controls over solicitors who abscond with clients' funds. Such cases are often highlighted in the media and there is a need to prevent this. I have been informed of cases where pensioners have seen accountants or solicitors walk away with their life savings. These people need to be protected. However, such cases are in the minority. The cases about which I have received complaints have more to do with shoddy representation. The client or the consumer has had little redress.

It was important that the Minister did not just give additional powers to the Law Society or set up the tribunal because without the proviso that a solicitor would be available to take a case against another solicitor it would have been futile. I know of a case where a solicitor who was approached to take on a case which another solicitor had not dealt with properly discovered that a complaint had been made to the Law Society and decided not to take on the case. It is a vital safeguard for the consumer that there is a panel of solicitors willing to take cases on behalf of people who have not been represented properly. This is positive and I welcome it.

The courts system needs a major overhaul sooner rather than later. A huge amount of the time of members of the Garda Síochána, the public and the legal profession is wasted hanging around, waiting to see what time they will be called, if at all. It is not sensible to call all cases at 10.30 a.m. or 2 p.m. I accept that the workload of the courts is extremely heavy but I do not accept that there is no way around the problem of everybody being called to the courts at 10.30 a.m. This needs to be addressed if we are to continue to focus on the fact that this is a service and not just something people might get at the discretion of others. The service that is offered needs to be improved.

The Minister referred to the education and training aspects of the Bill, which are most welcome. The change in the length of time during which apprenticeships may be offered will increase the number of apprenticeship places available. Many students are finding it difficult to secure an apprenticeship and this welcome change will help. Perhaps I am over optimistic but the Minister appears to suggest that in time there will be a common system of representation, in terms of lawyers only.

The point about solicitors advertising has received much criticism, some of which is warranted. There is a suggestion that the bulk of solicitors who advertise deal with compensation claims, so called "ambulance chasing" solicitors. This has brought the profession into disrepute. However, it exists and if a person has a valid claim they are entitled to seek legal advice. I have always had a problem with the manner in which those cases are taken on a 10 per cent "no foal no fee" basis. The Minister is tackling this issue and that is worthwhile.

Regarding the question of charges, it is vital that anybody using a service or going for a consultation for a service should have some idea of what it is likely to cost. If one goes to any professional for a service, one must know the cost involved in order to know if one can meet it. The only exception is if one requires medical treatment but one has insurance which will cover the cost. It is ridiculous for somebody to pluck a fee out of the sky.

However, I have a particular problem with the Incorporated Law Society's reluctance to allow people to advertise a fee for services. The Minister specifically referred to this when he said that the society also suggests that price advertising is likely to expose the public to the risk of shoddy work from unscrupulous solicitors. Whatever about unscrupulous solicitors, if it has a problem with that, it should deal with it. This exudes an air of superiority. People take weighty decisions daily, such as the purchase of a home. Is there a suggestion that we are not capable of making a decision on the basis of somebody offering a cheap service, which is obviously what one will receive, or a much more expensive service?

The legal profession should not feel threatened by this Bill. The vast majority of the profession carry out their duties to the best of their abilities but nothing should be taken for granted. The strengthening of controls, established in this Bill, is most welcome. It allows for greater answerability and more protection for consumers. That is the direction in which all legislation should go.

The process of reform must be ongoing. The legal profession can help themselves and the Minister has stated that on many occasions by being pro-active in changing the ways and means of how they carry out their business. However, if they are not seen to change as time and consumers dictate, it will most assuredly be time for further legislation.

Ms Honan

I welcome the Minister to the House. On behalf of the Progressive Democrats, I welcome the introduction of this Bill. Its purpose, as the explanatory memorandum outlines, is to effect major reform of the law relating to solicitors. This is to be welcomed because the legal profession has come in for much criticism of late from the public.

The measures introduced in the Bill allow for procedures to deal with complaints against solicitors, which are of great concern to the public. When dealing with many professionals, ordinary members of the public feel they are at a distinct disadvantage due to their lack of knowledge of the system in relation to, for example, legal matters or, as Senator McGennis said, the medical profession. When dealing with professionals, if one does not have a great knowledge of the profession involved, one can be intimidated. Many lay people would be concerned about taking up issues with their solicitor in relation to how the case is dealt with and the costs they are charged. The reforms introduced in the Bill are most welcome from that point of view. Many of the provisions are in favour of the consumer, and that is also to be welcomed. The balance is tilted in favour of the public.

The Bill also introduces measures to increase the Law Society's powers to intervene in solicitors' practices and increases the High Court's supervisory functions over the legal profession. This is an area of concern to the public. These measures are welcome. The provisions in the Bill in relation to the Law Society's function regarding the education and training of solicitors and the changes that have been introduced are very important.

This legislation originated in 1984 when the then Minister for Industry and Commerce requested the Restrictive Practices Commission, which became the Fair Trade Commission, to undertake a study under section 12 of the Restrictive Practices Act. It was to look into certain professional bodies and practices which were deemed to be very restrictive, those which curtailed or limited employment opportunities and practices which led to increased costs to the consumer. The comprehensive report was published in April 1990. As the Minister said, a Bill was introduced in the 26th Dáil but lapsed with the fall of that Dáil. The legislation has been updated and this Bill is a result of that work.

As previous Senators have stated, it is regrettable that we are only dealing with one area of the profession, although the Bill is quite detailed and that is welcome. In common with other Senators, I would like reforms of other areas of the legal profession and we look forward to the Minister introducing reforms in those areas.

Central to the report of the commission was that the Incorporated Law Society or the Bar Council should be requested to delete certain clauses from their rules or codes of conduct, failing which a restrictive practices order could be introduced which would make such clauses illegal. It also provided that a legal ombudsman should have powers to prosecute solicitors on behalf of clients.

Part III of the Bill deals with disciplinary matters and it will be welcomed by the public because it provides for the investigation of complaints by the public about inadequate services. We are not just talking about negligence but also shoddy work and complaints about clients not receiving adequate notice of the details of the fees that are charged by their solicitor.

Another important aspect of the Bill is the appointment of lay members to the disciplinary tribunal and it confers powers on that tribunal to summon witnesses, take evidence and impose sanctions in the case of misconduct. All these provisions are welcome. The Bill also provides for the publication of information on complaints received by the Law Society. There are many measures contained in the Bill but the main priority is the protection of the client as a consumer of a solicitor.

Part IV of the Bill contains proposals for the protection of clients, including a welcome provision for compulsory indemnity cover for solicitors against civil liability claims. It also contains a new power for the Law Society to intervene in the interests of clients where a solicitor has been found guilty of dishonesty, where a sole practitioner ceases to practice, where he dies or abandons his or her practice or where he becomes insolvent or is declared bankrupt.

The proposal to cap payments from the compensation fund caused some controversy. The Minister has increased the sum of £250,000, the figure in the Bill when drafted, to £350,000. That is a welcome change. I also welcome the fact that financial institutions cannot claim from this fund; it is specifically for solicitors' clients. The financial institutions are well aware of their rights and have access to appropriate advice when dealing with solicitors.

I also welcome the provision in section 9 that in exceptional circumstances the cap can be extended for cases of hardship. That is an essential provision. The Law Society was concerned that without a cap on the fund there would be no protection against extremely large claims. It was also concerned that the fund would become unsustainable in terms of the contributions which individual solicitors would be obliged to make.

Part V of the Bill deals with educational requirements for solicitors. It is a welcome provision. That area required examination. Senator Neville said that many solicitors do not appear to have management training; the Minister said in the Dáil that it would be important for solicitors to have some management practice training. Solicitors are dealing with large sums of money and, due to shoddy workmanship, they may give rise to claims for negligence, although some of my colleagues would be of the opinion that in many cases where solicitors make off with clients' money the solicitors are well aware of what they are doing and are not ignorant of practice.

Management training is important because solicitors deal with substantial amounts of clients' money. The Law Society should make it compulsory for solicitors to occasionally take courses related to management practice. I also welcome the provision precluding solicitors from going into sole practice until they have been qualified for at least three years. It is important that young solicitors acquire the necessary experience before they establish their practices.

Part VII of the Bill refers to miscellaneous provisions such as the computerisation of the roll of solicitors and the requirement on the Law Society to maintain a register of solicitors who are prepared to take actions for clients against other solicitors. This is an important provision because in the past I have dealt with people who found it extremely difficult to get solicitors to act for them in actions against other solicitors. Many members of the public feel vulnerable when they are dealing with the legal profession and it is essential that somebody is seen to be on the consumers' side when they run into problems. As the Minister said, most solicitors are hard working and honest but, unfortunately, since the public can be badly affected by a small minority, these provisions are welcome.

The requirement for solicitors to tell their clients the expected costs of the litigation in advance is welcome. Many people are shocked at the size of the legal bill when they are obliged to pay costs. Most people who go to court are optimistic about winning their cases. Many do not envisage having to pay the legal fees. Legal costs can be substantial and can be a shock to clients. It is worth pointing out that not all the costs involved are attributable to the solicitors' or barristers' fees; they are also attributable to the delays in our justice system. There is a shortage of judges in the Circuit and High Courts and there is a large backlog of cases. This can contribute to the size of legal costs. Perhaps the Minister would look at that problem with a view to improving the efficiency of the court system. That might result in a small reduction in legal costs. It is not a major cause of high legal fees but it deserves consideration in that context.

Legal costs are prohibitive particularly for people who do not have access to free legal aid. As Senator McGennis said, the only other large costs people incur when dealing with professionals are medical costs, and many of those can be covered by insurance. It is important to introduce measures that would reduce legal costs for ordinary individuals.

The section dealing with advertising of fees has proved to be controversial. As a person who believes in competition, I should not be opposed to this provision. I was pleased to hear the Minister say that even though the Law Society objects to it, he believes that people do not make decisions based on price only and that the reputation, dependability and quality of service would also be taken into consideration by the public. People are not fools. However, this measure has resulted in substantial reductions in costs particularly in other countries. I support the provision for that reason.

I welcome the fail-safe provision which will allow a periodic review of our experience of advertising of fees. This will enable the Law Society to prohibit fee advertising in respect of given services but with the consent of the Minister. My only concern is that the advertising we have seen thus far from the legal profession has not been great. Much of it is of the ambulance chasing variety which almost encourages people to take actions against insurance companies and local authorities. We have had several discussions in this House about the high cost of insurance, the amount of damages awarded for claims and the consequent effect on society in general. I am concerned that a small minority of solicitors might unscrupulously advertise fees and encourage people to take such cases. However, the safeguards introduced by the Minister are welcome.

When this Bill was first introduced consideration was given to extending will making and probate services to banks and other institutions. I welcome the fact that credit unions will be allowed to provide such services. However, the Minister's safeguards in this area are also welcome. Many of us in our experience of dealing with banks are familiar with the pressure they can exert on their clients to avail of the services of their insurance companies. It has given some of us cause for concern so the extension of this provision to credit unions is welcome.

This Bill is welcome. Its reforms will ensure that clients of solicitors are better protected by the law in their dealings with solicitors. It also requires the legal profession to maintain the highest standard of conduct and a strict disciplinary system. I support the Bill.

Ms Gallagher

I welcome this opportunity to discuss the Solicitors (Amendment) Bill, 1994. I note with interest the use throughout the Bill of the male gender when referring to the profession. The parliamentary draftsman should note that there have been more female than male entrants to the profession in recent years. I am aware that we passed legislation recently which made gender terms applicable to both sexes but, where possible, such legislation should state "him and her".

This Bill has received much attention to date from the media, the Law Society, the Bar Council, consumers' organisations and many individuals. Many years have passed since the legal profession was given an overhaul. The discussions conducted since this Bill was introduced have been welcome in awakening the practitioners and public to the need for change. Every professional body should examine how it operates from time to time. The proposed legislation has caused the Law Society to look at itself and examine ways in which it can effect beneficial change. However, we should be wary of change for the sake of change or change as a result of lobby groups which operate in many spheres of the legal profession. I wish, therefore, to express caution and concern regarding certain aspects of the Bill.

As a practising solicitor I welcome the Bill's provisions in sections 8 to 15 for the investigation of complaints. It damages all solicitors when a consumer of a legal service gets a raw deal; when a client feels he or she was not provided with a proper legal service or overcharged for it. The individual with cause for complaint must have a procedure by which the wrong can be rectified or compensated for in an appropriate fashion.

At present the individual can complain to the Incorporated Law Society which then raises the matter with the solicitor concerned, giving her an opportunity to explain her actions. The Law Society relays that response to the complainant who may again reply. I have seen this procedure in operation and have heard complaints about it; people have said it is inadequate, cumbersome, time consuming, unfair and often unproductive. We know the maxim that justice must not only be done but be seen to be done.

I, therefore, welcome the provision of a complaints procedure in a statutory format. We all need to know that a channel is open to us as consumers by which we can hope to redress wrongs. The procedures outlined in the Bill and the powers given to the Law Society, courts and individuals to effect these procedures appear to be adequate and workable. I hope they are implemented and thus show the public that the law protects them from the wrongs or neglects of solicitors they have retained.

I especially welcome the sanctions imposed against those few solicitors who tend to charge excessive fees. It often seems to be the poorer or less educated client who bears the brunt of the unscrupulous solicitor who overcharges for services, while shrewd business people can negotiate fees. I welcome the protection this Bill will provide for the more innocent consumer of legal services.

It is annoying that, because certain solicitors tend to overcharge, the profession as a whole has a bad name. In smaller firms, work is done for which no fee is charged or collected. Much of a solicitor's average working day can be taken up in dealing with telephone queries, once off letters to deal with client's problems and miscellaneous matters for which a fee is never charged. In a town practice one cannot afford to alienate potential clients; therefore, work is unpaid and not every solicitor makes a huge amount of money. It is unhelpful and unfair to tar all solicitors with the same brush on the fees issue.

Also, because of vastly increased competition in the profession, many solicitors find it hard to make ends meet, particularly those who do not own a practice and people starting out after many years of expensive college education and poorly paid apprenticeships. That said, one hopes the sections of the Bill which provide a procedure for complaints will not only benefit the public but give them a wider perception of the problems of the legal profession.

The procedure for complaints should be totally independent of the profession. However, section 15 of this Bill requires the Law Society "to establish, maintain and fund a scheme for the examination and investigation by an independent adjudicator of any written complaint". Is it perhaps rather too clever of the State to introduce major and significant reforms and changes in legislation and then require solicitors to run and pay for it themselves? It is unfair that solicitors have to pay for a watchdog. If it is agreed by all that a complaints procedure is necessary to protect our citizens, the State should pay for it, as it pays for the Ombudsman and other institutions.

More importantly, the best way to protect legal clients is to provide for an independent legal ombudsman, paid by the State. That would eliminate the Law Society's power to determine clients' complaints. Lay people know nothing of the Law Society, the Bar Council and other organisations for legal eagles; therefore, they are naturally wary of approaching such a body or a person appointed by such bodies with a complaint. Again, justice must not only be done but be seen to be done.

The Minister for Justice should reexamine these provisions and consider appointing an independent legal combudsman to effect the new procedures. This would greatly improve how the profession is perceived and the effectiveness of the complaints procedure.

Previous legislation provided that a complaint must be brought within five years of the event giving rise to it. Section 15 (4) (f) of this Bill, however, allows an individual a further three years to raise the complaint with an adjudicator. In essence, a complainant will be able to wait many years before raising a concern and follow a solicitor for eight years to deal with it. Information and documents may then be missing, practices may have changed and other factors altered, yet a complainant can pursue a solicitor for a potential eight or nine years. Is that time provision necessary? It should be greatly reduced.

Section 15 (11) requires the adjudicator to obtain the prior written authority of a client in possession of documents needed to deal with a complaint. However, it does not appear to provide for the client refusing to co-operate. What would happen in such circumstances? Perhaps that should be provided for in the section.

Having raised those queries, I generally welcome the protections for our citizens in the Bill. The penalties and disciplinary actions which may be taken against the offending solicitor will cause the profession to take heed of the Bill when implemented. The resulting increase in the quality of service and the ways in which solicitors deal with the initial complaint made directly to them will be vastly improved as a result of the legislation.

Another bone of contention in the legal field is the capping of awards. It is ironic that while legislation such as this gives protection to our citizens, it also considers reducing their rights by limiting compensation awards. This is giving with one hand and taking with another. How can we say that, no matter how appalling the injuries and consequential loss suffered by an individual, the independent Judiciary can only award up to a maximum sum deemed and determined by legislation?

The shrewd lobbyists of the insurance industry have argued that compensation must be limited if insurance costs are to be reduced. This is untrue and unfair. When people suffer injury through no fault of theirs and have their claim litigated, the court should have full power to determine the compensation warranted and should not be fettered by restraints won by greedy insurance groups. The capping of awards is unjust to the victims of accidents and should be scrapped.

Furthermore, some insurance firm bosses have admitted that limiting awards will not reduce our insurance costs. How would it, since so much of the cost is caused by uncontested and easily settled claims, huge administrative costs and the ever large profits for insurance company shareholders? We should not be blinded by the empty promise of reduced insurance costs by taking this step and thus penalising the unfortunate victim who will be adversely affected.

The Bill also contains provisions on education and recruitment to the legal profession, the solicitor's profession in particular. Many of the changes are welcome and appear to ease entry but all is still not well. For the first time, solicitor friends of mine are unemployed as a result of the vast increase in the numbers entering the profession. This has happened to them after seven years of education and training. My office receives applications for apprenticeships every week.

This is a practice owner's paradise. Such solicitors can choose to employ a solicitor at a low salary, or take on an apprentice — this Bill now provides that they can employ two, who will be paid a pittance. While the Law Society recommends certain levels of pay to apprentices, they cannot rely on this. As many apprentices are seeking an office where they can gain the experience necessary to qualify as a solicitor, the solicitor owning the firm may feel free to offer paltry pay as he knows the students are almost begging for the opportunity to be hired. While the opening up of the profession may facilitate legal partners to hire their sons and daughters, I am concerned that it will work against those without connections. Brains and ability are no longer the only requirements needed to qualify as a solicitor. One now needs to know someone in the profession who is in a position of authority and one also needs money so that they can live on the shameful pay apprentices are given. This worries me greatly and I am disappointed the Bill does not protect the apprentice or make entry into the profession easier for those without money or connections.

Having read the Bill and listened to the earlier debates, I stress that many of the problems experienced by clients are out of the control of the solicitor involved. However, solicitors suffer the brunt of the complaints, many of which relate to the court procedures necessary to effect legal services. It is not the solicitor's fault that a case can be arbitrarily adjourned by a judge and left to the next term many months later. This matter is often out of the solicitor's hands. We must examine the court procedures, the legislation covering them and the administration of our legal system. I am pleased the Department of Justice is considering these matters. I hope legislation will at least be drafted in the next term to deal with some of these shortcomings in the legal procedures which are the main cause of complaint from consumers.

It is good that this legislation arises from the complaints of various individuals and is providing protection which they justly deserve. The same protection is also necessary in relation to barristers. It must be remembered that barristers are often, and necessarily, more distant from clients who perhaps only meets them on the morning of the court. Although one does not dare to question their barrister, it should be done. Barristers need to be regulated in the same way as solicitors. The fault lies with many people, yet only solicitors are targeted. I am anxious to see the same protection given to consumers of legal services from barristers as well as solicitors. The same protection should be given to the consumers of all professional services. This should be considered and we should not point the finger at the unfortunate solicitor who is closest to the client.

The profession welcomes the Bill. Many decent solicitors do an honest day's work and help people whenever they can. It is not always easy for them, especially when they suffer the brunt of the complaints and when people have an unfair perception of them. This Bill will address many of the problems, an unfair perception of them. This Bill will address many of the problems.

Mr. Cosgrave

I welcome the Minister to the House. The Fine Gael group support the general terms of this Bill, which was introduced after much work by the Minister and some of his predecessors. The fact that the principal legislation was approximately 40 years old suggests that its provisions should be reviewed.

This Bill is intended to safeguard clients, to guarantee the consumers' rights and to deal with other related matters. The Minister said that the vast majority of the members of the solicitors profession are decent, hard working people who have their clients' best interests at heart. Unfortunately, like other professions, it is not without a few bad apples. Problems have arisen, some of which have been notorious. This Bill seeks to protect a client's rights. We are all aware of instances where clients' money was misappropriated. The gazette of the Law Society regularly publishes the list of payments made to various firms after damage has been done. The question of professional indemnity insurance also arises. From my experience, we could not carry on without it. However, some solicitors do and, as Senator Gallagher knows, we will all suffer as a result.

I welcome the fact that the client will be better protected, particularly non-business people whose court award from an estate may have been misappropriated. It is important to look after such people. Usually the person who is well versed in business does not suffer greatly, although some companies lost out.

Many complaints have been made about the profession in regard to delays or a lack of knowledge of the system. Delays occur in the various court systems. It takes time for some court cases to be heard. For example, it would be negligent of a solicitor to proceed with a serious accident case before one knew how the person would recover. There are delays and problems in the operation of the Land Registry Office and there is a two tier system as regards registry of deeds and registered land. This means that one must go to different buildings in the city, depending on what county one is dealing with. This creates problems. There are also delays in the probate and revenue offices.

The Law Society needs to improve its systems. The little details which annoy clients result from the non-performance of bodies which are outside the direct control of solicitors.

The courts system must be considered. Great improvements have been made in certain areas. Many practical aspects must be considered when appearing for a client in some district courts. To be fair, facilities in many buildings have been improved but in some local courthouses almost the only place and time it is possible to talk to a client is in the local convenience or outside in the rain. This is not good enough.

At times in other courts the solicitor is with the clients, the barrister comes along at the last minute and so many people are in the building it is like Croke Park on All-Ireland day. It is not always possible to hear as the acoustics are very bad, and barristers or solicitors mumble to the judge. The client is left with a very bad impression. Barristers and solicitors attend regularly but the client is only there on that day and does not necessarily think he is getting a fair deal. We are all aware of overcrowded courthouses which must be improved although some have greatly improved their system. They have waiting and consultation rooms and telephones but I am sure the Minister is only too well aware that some of them still leave much to be desired.

It is very important that the whole question of how complaints are dealt with is seen to be above board and that the response is adequate, regardless of whether the complaint is serious or trivial. As Senator Gallagher said, the present complaints system has achieved results in many cases, but in regard to some, people felt there was an element of the Law Society looking after its own and that their complaint was not treated in a sufficiently serious manner.

The whole question of the appointment of the adjudicator or the Ombudsman must be examined. There have been queries in relation to funding the adjudicator. It is necessary to look at similar bodies to see where they get funding for this office. I know the Law Society has reservations about the question of funding and some people are concerned that if the Law Society pays for it, the independence of the adjudicator might be compromised. Perhaps when the Minster is replying he might expand on this and also give us more information in relation to when the office might be set up.

Senator Gallagher mentioned the capping of awards and I agree with her. We must oppose the compensation mentality and what is known in the United States as "ambulance chasing". However, in relation to very serious cases there is a balanced, fair system. It is possible to get a rough idea on hearing the extent of a person's injuries and on reading the medical report and prognosis as to how much compensation a victim will be awarded. It would not be fair to value different parts of the anatomy at certain levels. Other factors must often by taken into consideration in different cases. There may be shock, disturbance and mental anxiety. It is not possible to value a certain injury at a certain amount across the board.

In recent weeks and months many cases have been dismissed by members of the Judiciary. There is a question of accidents being set up and people developing a stiff neck weeks after an accident where there has been no serious injury. Some people were almost making an industry out of it. Accidents have frequently occurred at particular round-abouts in the country and in some cases they were minor but certain individuals were manufacturing claims. Indeed solicitors and doctors may have been involved and this whole question must be examined.

I support the basic thrust of this overdue Bill, and I am glad the Minister introduced it. We have to root out people who have overcharged clients or misappropriated money and deal with them severely.

To improve the system it is important to realise that solicitors are not the only people at fault. Other improvements in the system can and should be brought about.

The sister profession has been mentioned and changes are required there. Perhaps in his reply the Minister will indicate what changes, if any, he sees being brought about. There was a mention of a fusion of the professions. Many people would prefer to retain the system with the proposed improvements. We must see how areas of the legal system can be improved. We must improve the whole area of the court system and investigate delays. Some of these people might be in court only once in their lives and they want to see an efficient system.

The system is not efficient. We have overcrowded courts with too many cases listed at the one time. We do not have a satisfactory system in relation to remands and adjournments. Members of the gardaí have to appear in court as witnesses. Perhaps a better system could be looked at. We will have the opportunity on Committee Stage to tease some of the sections out further. We on this side of the House welcome by and large the contents of the Bill as do most members of the profession. We want a more efficient and just profession from the solicitors' point of view and, more importantly, from the point of view of consumers. I welcome the Bill.

Mr. Roche

Like most other Members I welcome the Bill. I also welcome the fact that after 40 years a profession is being dragged kicking and screaming into the latter part of the 20th century. As the Minister and other speakers said, in the last 40 years a great deal has changed in Ireland, not least the relationship between the citizen and authority, whether private or public. The profession was a rather sleepy one 40 years ago. Competition was a word that very seldom entered the vocabulary but all that has changed. The profession is now highly competitive. There has been a huge influx of young talented people into the profession and there is even talk now of a glut of solicitors. That is not the only change. The Irish people have become more demanding, more litigious and less willing to tolerate incompetence. A major change has occurred between the profession and the citizenry.

The Bill is long overdue. Its predecessor was introduced to the Dáil in December 1991 but collapsed in November 1992 after a special committee had spent some time considering it. The Bill is welcome in that it is a reforming measure putting much needed structures in place. The Minster has outlined the four main categories of reform in it. It protects the clients of what has been a self governing profession, which will re-establish standards of conduct and discipline, will provide for more competition, although sometimes competition is not always what it is cracked up to be, and will update training and education for solicitors.

The Minister recognises that changing circumstances have largely determined the focus of the Bill, and that there should be a specific focus on the relationship between the solicitors' profession and the citizen, especially when a complaint arises.

In terms of consumer protection, the Bill make considerable strides. It provides for full insurance for damages by solicitors which is welcome. There is a clear system of redress for excessive charging, which is also welcome. Many members of the profession who operate on the right side of the dividing line between right and wrong will welcome this provision.

The powers to intervene in a practice in the interests of a client are clearly detailed and are welcome. Solicitors must provide up front information to their clients on costs. That is client and consumer oriented and will not cause any problems for the great bulk of solicitors who operate properly. It will, however, cause problems for some solicitors.

The core of the Bill for the consumer is the establishment of a system for investigating complaints against solicitors. Under the scheme envisaged an independent adjudicator is to be appointed and funded by the Law Society with the approval of the Minister. Annual reports will be made by the adjudicator to be presented to the Minister and laid before the Houses of the Oireachtas.

Clearly the proposals are a major step forward. They are innovative, new and progressive. However, it would have been preferable if the Bill went a step further and appointed an independent Legal Affairs Ombudsman. This is a drum I have been beating for a number of years. The Minister is aware that I was vociferous on this matter in the Dáil as far back as April 1992 and in the Oireachtas committee established to deal with the Solicitors (Amendment) Bill, 1991. On that occasion time allowed me to read into the record of the Dáil the most extraordinary and bizarre case, where, for over 11 years, a person has been scandalously rooked by a number of solicitors and the Law Society has responded with nothing but a snow job. Unfortunately time constraints today do not permit me to read the case into the record, but it is cited in the Official Report, 2 April 1992; Vol. 418, col. 511. Two years later this horrific case continues and the lady is still suffering at the hands of a solicitor and at the hands of the Law Society.

A complaint mechanism must possess certain objective criteria if it is to be fully successful. The mechanism must be competent and physically capable of handling complaints. It must have the authority to go to the heart of the matter, to subpoena witnesses to appear before it. It must also have the power to compel adherence to its findings. The complaints mechanism must be physically and psychologically accessible, and above all it must be financially accessible. It must also be independent of the source of complaint in this case, the profession complained of. Finally, the mechanism must be appropriate for the culture in which it is to operate.

While the complaint device created is innovative and welcome, it suffers from a number of major shortcomings. A Legal Affairs Ombudsman would be infinitely better than the measure proposed. An ombudsman should be appointed by the Houses of the Oirechtas and funded by way of a bounty charged over the profession. I differ with Senator Gallagher in that I do not believe taxpayers should bear the cost of fixing up messes in any self-appointed profession or self-regulating profession. An independent ombudsman would possess all of the characteristics which I have outlined.

The problem with the independent adjudicator arises under a number of specific headings. While doubtless the person appointed will be competent, the capacity of the adjudicator to handle complaints will depend on the level of support the office receives. However, there is a more fundamental flaw. I am gravely concerned that the process of investigation envisaged would appear to suggest that the adjudicator will not have an independent capacity to undertake an investigation. Rather, when the adjudicator is unhappy with how the Law Society has handled a case, he or she will refer the case back to the Law Society for reinvestigation.

I do not wish to be flippant but from my experience of the Law Society, this is the equivalent of requesting Billy Bunter to reinvestigate who broke into the tuck shop. I have categorised in the Dáil cases where the Law Society has not been just grotesquely incompetent, but criminally unwilling to approach the facts of specific cases. I have little faith in the society regarding the issue of complaints.

The biggest single problem with complaints against the legal profession is the perception in society in general that the Law Society deals with every complaint by means of a snow job. The Dáil Official Report, 2 April 1992; Vol. 418, col. 511 records details of a tragic case which has been before the Law Society whose record is, to say the least, highly questionable.

In spite of the publicity this case received in 1992, it is still ongoing. The lady in question has now been reduced to circumstances where she is effectively living in one bedroom on the charity of friends. It is appalling, scandalous that a woman in her 70s should be reduced to this after 11 years and three separate referrals to the Law Society. Despite the publicity, this and other cases have been allowed to languish. It does nothing to elevate in the public view a profession which, by and large, is operated by competent, careful, and caring people. The number of rogue solicitors are infinitely outweighed by the number of good solicitors.

Another problem is that the adjudicator's authority will in effect be the authority of the Law Society, which is frequently the subject of complaint. The complaint mechanism envisaged will also fail the test of accessibility. People do not have sufficient confidence in the Law Society to be willing to take cases to it. If a case has to go through the Law Society, to the adjudicator and back to the society for re-examination, and the society quite correctly and properly finds in favour of the solicitor, as it must in many cases, people will not believe the society and the finding will not be credible.

The public is suspicious of the Law Society which is viewed as an interest group, more concerned with the interests of its members than those of the public. This may be an unfair judgment, but it is the case. People frequently reach unfair judgments about professions, for example the public view of our profession is fairly jaundiced.

An adjudication by the Law Society which finds for a solicitor is inevitably viewed as suspect, defensive and biased. Reinvestigation by the society on the instruction of the adjudicator is no more likely to instil confidence. The independence of an adjudicator appointed by the Law Society will be subject to public suspicion. The mechanism is flawed by being out of sympathy with Irish complaints procedures which favour dealing with an individual rather than an institution. This complaint mechanism is oriented towards institutions.

While the intentions of the adjudication process in the Bill are good, it contains certain flaws. Could the Minister, even at this late stage, take those comments on board? My criticisms go back to the very drafting of this Bill wherein I would like to see provision for the appointment of an independent ombudsman for legal affairs, in addition to similar appointments for other liberal professions. No profession in the current day and age can be trusted to be the adjudicator both of its own standards and of complaints against its members.

This Bill represents progress on a great number of fronts but the mechanism for the appointment of an adjudicator is one which in four or five years time will lack support and confidence. We will inevitably move towards the appointment of a legal affairs ombudsman. While I commend the Minister for what is positive in the Bill, I am concerned about the adjudication mechanism. I hope the Minister will give an undertaking, either in this House or the Lower House, to scrutinise the adjudication mechanism closely over the next three to four years. There should be some process whereby both Houses of the Oireachtas can examine how efficient the mechanism has been, with a view to moving on to a more independent system.

Mr. Sherlock

The debate on this Bill goes to the very heart of our understanding of democracy and to our commitment, if any, to equality of opportunity before the law. Nearly 20 years ago in Cork, an organisation was set up styling itself the clients of the legal profession. It later moved to Dublin where an office was established in Arran Quay. Everyone thought that the new organisation would herald the cleaning up of the legal profession but, unfortunately, it faded away even though the people concerned were really committed. It demonstrated, however, that there were many complaints about the legal profession. It appears that the organisation disappeared because the legal profession gave a commitment to put its house in order, but obviously that never happened.

This country prides itself as a democracy with the rights of its citizens guaranteed in a written Constitution and our laws democratically enacted by a freely elected Legislature, but no living democracy can be criticised or circumscribed by laws and the Constitution alone. The law is only as good as its application which, in this country, leaves much to be desired. The message from within the legal system is that in order to win in court you must have top lawyers, and to have top lawyers you must be rich. Alternatively, to qualify for free legal aid one must be accused of a crime. The first law of the Irish legal system is that if you cannot pay you cannot win. That is a simple fact. When the average citizen goes to court they are putting their house at risk, which is why so many suffer injustice rather than pursue their legal rights through the courts. For the vast majority, legal rights only exist in theory.

Members described their experiences with the law and we have all had such experiences. Clients of the legal profession who have received little or no satisfaction need to be helped. I know of fairly large compensation cases where bank accounts were opened in the joint names of both solicitor and client, and the solicitor's fees could reach any amount. I have not gone into the Bill in great detail but solicitor's fees is one area that needs to be seriously examined. I understood that there was a scale of fees but the solicitor and client fees are something else. I gave up advising people to write to the Incorporated Law Society two or three years ago because it was frustrating. Even though I thought some people had very good cases, it did not seem to make any difference. I hope that this legislation will do something to rectify that, although I have my doubts.

On the question of appointing an independent adjudicator to enquire into the Law Society, why has the Minister not conveyed the public's dissatisfaction directly to the Law Society instead of appointing an adjudicator to tell the society what it should do in order to give satisfaction to clients? That may be putting it bluntly but that is the way I see it. The penalties for solicitors who engage in shoddy practice are not severe enough. Tougher penalties are the only cure because we have left things go too far.

When a person comes to the High Court with their family they are worked up because they have been waiting so long for the case to come to court. Very often they are pressurised to accept a settlement outside the door of the courthouse, and they walk away without even knowing what the settlement was. In the last 12 months that happened in two cases that I am aware of. The families concerned were frustrated and were not even invited into the court to hear what the judgment was.

The entire legal system is in need of fundamental reform. The legal profession is a closed shop operating the most outrageous restrictive practices. It needs to be opened up. The cost of law is excessive and needs to be subjected to competition in the marketplace. If the Bill is to serve people's interests it must be radically changed to allow for appointing a legal ombudsman with full powers, lifting the time limit within which com-house pensation claims can be made, lifting the cap on compensation claims, easing access to the legal professions and establishing a system of licensed conveyancers who may compete with solicitors. Section 78 opens up will-making and probate services to competition from credit unions.

The Minister said that he is a proponent of greater competitiveness in the provision of services. He said that one of the safeguards in the Bill is that "credit unions will not be allowed to provide these services until they are subject to the scheme of investigation of complaints which is provided for in section 79 of the Bill or a similar scheme". I would like the Minister to elaborate on this. I welcome this change wholeheartedly. Many people now deal with credit unions and have confidence in them. This is a great opportunity for them when making wills. Frequently people never think of going to solicitors to make wills and this may result in disputes within families. Legislation is long overdue and I rely on the Minister to make whatever changes are necessary and to see that whatever is adopted by way of legislation will be implemented.

Mr. Cassidy

I welcome the Bill. I listened attentively to the magnificent contributions which have already been made. The contribution of the previous speaker, who like me comes from rural Ireland, was a commonsense one. Legislation and amendments to it are necessary to deal with changes which occur over the years. I listened with great interest to the Senators who are members of the legal profession. I am fully aware that, as in other industries, there is a top income earner in the profession and probably two thirds who are not earning much money as practising solicitors.

In Castlepollard we are fortunate to have a very renowned solicitor who has practised there for over 45 years and a young man who has practised there for seven or eight years. They give a great community service, are involved in the community and are personal friends of most of the people who live there. Unlike the last speaker, I know many people who have placed their trust in their local solicitor when making their wills and can rely on them. Only a very small percentage of solicitors, probably less than 0.1 per cent of the profession, have misconducted themselves and given the profession a name which it does not deserve. Most solicitors I know are decent, upstanding men and women, upholders of the law and custodians of the courts. They give a valuable community service to the country in general.

As a public representative, I find it difficult to understand how conveyancing and probate work can be so time consuming and lengthy. I used to have a friend, who passed to his eternal reward in 1982, who cut the timescale on such work down to almost a week. I fail to see how it takes some solicitors six to eight months to process such cases. I know that the Land Registry office is a major problem. Some very good people work there but something will have to be done about the problems there. As a public representative with a large constituency, the Minister would know that there is a major problem in this office at present. It can take from six to eight months to have land registry folios changed or additions made to them. Perhaps these problems can be dealt with after the summer recess by the Department involved.

I am delighted that section 67 provides for the drawing up of a list of solicitors who will be willing to provide services to any persons who are not satisfied with the services they have received from their own solicitors and want to take legal action against them. It is extremely difficult, particularly in rural Ireland, to have a solicitor taken to court. I am delighted to see that such a list will be in place.

Due to the increasing number of large claims being made against the owners of establishments such as bars, hotels and theatres, insurance companies will not provide cover for the first £10,000 of such claims. It is not unusual for owners to have to set aside £40,000 to £50,000 a year for insurance. If they do not do so, they could easily find themselves with five or six claims being made against them for sprained ankles, or elbows which have been hurt as a result of being hit against doors. Often it is one or two solicitors in large towns or cities who handle these cases. I do not know how the problem of solicitors canvassing for such business and taking a percentage of claims can be tackled. This is a major problem for people who run businesses such as hotels and give much employment. Even small hotels employ about 50 people. Such hotels are significant businesses, particularly in rural Ireland. They cater for weddings, conferences, dinner dances and so on. Insurance is becoming a major problem which must be tackled, particularly when one considers the difficulties in which a major insurer in London has found itself over the last two or three years.

I listened attentively to Senator Gallagher, who said she wanted the position of male and female in legislation addressed. I am all for equality. At one stage this morning there were three female and two male Senators in the House, which was a great balance. Over the last 12 years there has been great improvement in the membership of the House in this regard.

I add my voice to the call for an independent legal ombudsman, not just from the point of view of accuracy but also that of public perception. I would have total confidence in a person from the legal profession being appointed to this position. Not alone must the profession be just and fair but it must be seen to be so. I welcome the Bill and look forward to its passage.

Mr. Enright

There are many excellent proposals in this Bill and the approach contained in it is to be welcomed. The Minister of State has shown an even hand in the preparation of this legislation. Irrespective of the attitude taken to a Bill of this kind, there can be an accusation of a partisan approach. However, I feel the Bill has been given very serious consideration by the Minister and the Government.

The solicitors' profession, in general, has also welcomed the majority of the provisions in the Bill. There are some matters about which solicitors would be concerned but, overall, the contents of this Bill are broadly welcomed by the Law Society and the profession.

As the Minister of State is aware, I am a solicitor so it is difficult to make comments——

Mr. Sherlock

There is a conflict of interest?

Mr. O'Dea

The Senator is anticipating the ethics Bill.

Mr. Enright

I will be perfectly frank in what I have to say on this matter. Although the Law Society has been criticised on many matters, in general it has tried to regulate the conduct of solicitors and introduced a number of regulations. With regard to the misappropriation of clients' moneys by solicitors, it is one of the few bodies which has made sure that the money is repaid to clients. It is important that anybody who has money misappropriated is fully compensated.

The second matter, which is one about which the Minister of State has been very emphatic and has received considerable support from the Law Society, is in regard to professional indemnity. It is essential that in the event of negligence, shoddy work or errors being made in the bringing or processing of any claim or in conveyancing that professional indemnity is provided to protect solicitors' clients. In common with all insurance premia, that cost is rocketing. I am not sure of the amount at present but it is very high for people who have no claims against them, running into thousands of pounds each year. No solicitor should be entitled to practice unless they have professional indemnity and the Law Society is very careful about that. It is essential for that to be waterproof in this Bill.

Other Ministers should try to extend such indemnity to a broad range of other bodies. Some sections of the accountancy profession have professional indemnity while others do not. Some life assurance firms and so on are covered by professional indemnity in the event of misappropriation or errors and so on while others are not. The Minister of State should try to ensure that this indemnity is applied across the board.

There is quite an extensive provision in the Bill on investigating complaints by clients against solicitors. In general, the Law Society welcomes such complaints and tries to deal with them. Many solicitors feel that the Law Society is over rigorous. Listening to Senator Sherlock, perhaps the public thinks that the Law Society is not strict enough. However, the Minister has to try to strike a reasonable balance on this. The section states that where a complaint is investigated and a finding is made against a solicitor, he has to make a contribution towards the cost of the investigation, which is to be welcomed.

Senator Cassidy referred to delays in the Land Registry office. Many of the complaints against solicitors are in regard to delays. Senator Sherlock made a point about delays in the hearing of High Court cases. At present, the delay in Dublin is running between two and three years and it may be even longer in Cork. I have never attended a sitting of the High Court in Cork but I believe that the delay there is in the region of three to four years.

I can understand people's frustration at having to wait that length of time for a case to be heard. When they go into a solicitor's office and are told that the case has been set down and will be heard in three years time, they normally do not believe the solicitor. While the Minister of State is trying to bring about improvements in the legal profession, he should also try to do something about the long delays in the hearing of High Court cases.

The Minister of State is also aware that these delays are now extending into the Circuit Court. Sadly, family matters are now taking up a considerable amount of time in the District Court, Circuit Court and even in the High Court. Other types of cases can be dealt with reasonably expeditiously by a judge but most judges try to take their time in the hearing of family cases. It is essential to examine how these matters can be redressed so that long delays will not continue.

I agree with Senator Cassidy's reference to the delay in getting Land Registry maps. I have had many dealings with the Land Registry and rarely, if ever, have I met such a courteous staff. The Cathaoirleach will recall, as he was involved, that some months ago there was a closing date for the filling in of area aid forms. It was almost like Custer's last stand in the Land Registry Office with the staff under siege as public representatives, solicitors and members of the public looked for maps. It provides an excellent service and makes a profit, but moneys must be reinvested to improve working conditions and to bring about an overall improvement in the Land Registry Office.

The Minister spoke about new initiatives in relation to advertising legal services and the provision of probate services. I find many advertisements offensive, advertising is not wise or good and may result in people spending money on useless cases which should never have seen the light of day. It does not benefit anybody.

In the past the legal profession brought cases for those without money to pay for them and I hope that will continue. The question of advertising must be carefully considered and this area should not be abused. There is a danger that members of the legal profession will place advertisements, which they are not able to stand over. People might believe they have a case, although it may be unwise to take it.

It was proposed that banks and building societies should be allowed to become involved in conveyancing and probate but I am glad that proposal has been withdrawn. It would have been dangerous for them to become involved in this area because there would have been a conflict of interest. A bank manager or someone in a building society would already know about a person's dealings, whether they owed them money, etc., and they would be able to exert influence over that person when making a will and direct where and when to make particular payments.

I, like most people, have a high opinion of credit unions. There has been a lot of talk about a third banking force and I worry that if, in future, there is a third banking force and credit unions — which conduct their business in a competent manner — are involved, it would be able to offer probate services. This would be unhealthy and unwise and I ask the Minister to look at that again.

Most points have been well covered this morning. I look forward to Committee Stage in the autumn. I would like to ask the Minister a number of questions, particularly on section 68, in relation to supplying clients with charges in writing and writing to clients about the beneficiaries of a will, but we will deal with that in detail on Committee Stage.

Minister of State at the Department of Justice (Mr. O'Dea)

I thank Senators for their positive contributions which have given me food for thought. Senators McGennis and Neville raised the issue of the efficiency of the court system. There is no doubt that many of the costs in the legal profession and the reason legal charges appear high is because of what it costs the legal profession in time and man hours to hang around courts, etc. We must speed up the process and make it more efficient.

I am delighted to tell the House that the Minister for Justice will introduce proposals in the Lower House in the autumn to deal with that issue. I do not want to anticipate or announce these proposals but they will deal with the powers of the taxing master, give extra powers to court officers and will enable medical reports, lists of witnesses, etc., to be cleared in advance. Many aspects of a case will be agreed before the hearing comes up.

I agree with Senators who said the Bill relates only to one branch of the legal profession and does not deal with the Bar. The only legislation to regulate the legal profession relates to one branch — solicitors. We are building on that in this legislation. If we were to legislate for the Bar, we would have to start from the ground up. Nobody should be under any illusion in that regard — I would love to regulate the Bar legislatively, but I would need to be given a mandate by the Government to do that. If the Government wishes to give me such a mandate, I look forward to discharging it.

Senators Neville and Honan raised a question about the appointment of judges. They will be aware that as part of the law and order package, the Minister for Justice obtained Government approval for the appointment of an additional judge to the District Court, the Circuit Court and the High Court to address delays in hearing criminal cases. The necessary legislative provisions to implement these appointments will form part of the new court and court officers Bill being prepared in my Department.

Senators McGennis and Neville raised a question about the appointment of solicitors as judges of the superior courts. Senators know that solicitors may be appointed judges of the District Court. Strictly speaking, that matter is outside the ambit of the Bill, but is being considered in the context of legislation being prepared, namely, the court and court officers Bill. I have no objection to solicitors being appointed to the superior courts. While I would favour such a move, other considerations must apply. It is being actively considered and if it is to be done, it will be done in the court and court officers Bill, which will be introduced in the next session.

Senator Neville raised the question of the Law Reform Commission's reports. I deny his contention that these reports do not see the light of day or become law. A lot of the law on the Statute Book at present originated in reports of the Law Reform Commission although we do not always legislate exactly along the lines proposed by the Law Reform Commission. The Department of Justice, the Government or the Law Reform Commission do not have a monopoly on wisdom. I have made changes to legislation which came directly from a report of the Law Reform Commission as a result of reasonable arguments put forward by members of Senator Neville's party who proved wiser than the law Reform Commission in what it proposed. The same applies to the Government; it too must change proposals of the Law Reform Commission.

Senators Neville, McGennis and others raised the issue of wearing wigs and gowns and I accept what they said. The dispensing of the wearing of wigs by barristers would go a long way towards making the profession more meaningful, relevant and, as Senator Neville said, less intimidatory. There is also the problem of a perceived connection between judges and barristers because they both wear this item of clothing. I have been in touch with the Bar Council about this and it told me it would set up a dress committee to consider whether there should be some alteration to the mode of dress.

That dress committee was to consider the matter and report back with its recommendations to the full Bar Council. I will make inquiries this afternoon to find out if a recommendation has been made and, if so, what it is. I will communicate with Senator Neville in that regard. If something is not done shortly, I will ask my Department to look at the Rules of Court to see if the Government can change this despite the wishes of the Bar Council. It will be a matter for the Government, I am not empowered to take that decision unilaterally, but I recommend that it be changed and that the wearing of wigs be dispensed with.

Much of the debate centred on the independent adjudicator. The ombudsman for the public service — a subject about which Senator Roche would know quite a bit because he was one of those who originally recommended the creation of the office — deals with the public sector and areas such as Government Departments, health boards, local authorities and so on. Any private profession is self-regulated. Some private professions, including the insurance business, banks and other financial institutions which are self-regulating, have taken it upon themselves to appoint an ombudsman to whom an aggrieved party can appeal a decision of the institution or insurance company.

If there is any interference by the Law Society in the functions of the adjudicator, the adjudicator is statutorily bound to put that in his or her report to the Minister. It will be discussed in the Oireachtas and Members can be assured that if the adjudicator has cause for complaint, he or she will not have cause for complaint a second time.

We have also provided that the adjudicator will not be a practising barrister or a practising solicitor. This further underpins the concept of independence. It has been suggested to me that while it is right that the Law Society should have to pay, it should be done differently. The suggestion was that the Government would appoint the adjudicator who would be paid out of public funds from the Department of Finance and the Law Society would then repay the Department of Finance. However, the reality would still be that the Law Society was paying the piper and providing the money. Can one seriously suggest trying to fool the public with some sleight of hand to make them believe that the person is not being paid by the Law Society but by the Department of Finance? If the Department of Finance is paying them and recovering the exact cost from the Law Society, the reality is that the Law Society is still paying. I prefer to deal with reality rather than create illusions.

I am satisfied that the adjudicator will be independent and that the introduction of the adjudicator system will be a substantial improvement or radical innovation. We are going to keep it under review and if the adjudicator or the appointment of the adjudicator is not seen to be fully independent or is not improving the situation we will move very quickly to change it. However, I am confident that the appointment of the adjudicator will prove to be a radical innovation which will make the situation infinitely better than it is at present.

Senator Roche said he would like to see a mechanism in place whereby we can review the performance of the adjudicator. I have the perfect mechanism here. The adjudicator has to report to the Minister each year and the Minister has to lay his or her report before each House of the Oireachtas. Rather than just have the Department of Justice review the situation each year, I have gone much further and established a mechanism whereby both Houses of the Oireachtas and each and every Member of both Houses will be in a position to review the operation of the adjudication system each year.

Section 68 has been welcomed and I look forward to teasing out the technicalities of the section on Committee Stage, as Senator Enright suggested. Section 67 has also been welcomed. The Law Society is given specific powers to prohibit advertising which is in bad taste, is likely to bring the profession into disrepute, is false or misleading or is contrary to public policy. This provision gives the Law Society adequate powers to restrict undesirable advertising which I agree would not be in the public interest.

Solicitors in the United Kingdom have been able to advertise fees since 1988 and this has not resulted in the catastrophe envisaged by the Law Society and Senator Gallagher. It is impossible to be scientifically accurate about these things but the information available to us would suggest that it has given rise to greater price competition and, in fact, resulted in a general decrease in the level of fees particularly for routine matters such as probate and conveyancing.

Senator Gallagher also mentioned the shortage of apprenticeships. I am aware of this problem and have made provision for it. All a government can do is include provisions in legislation which will make it easier for solicitors who wish to take on apprentices to do so, and this is what we have done. We cannot force solicitors who do not wish to take on apprentices to employ people. We would then be forcing people in the private sector to add to their staff and a government cannot do that.

Senator Gallagher also wants minimum wages for apprentices. While I want apprentices to be properly paid, we do not want to get into a logical fallacy. On the one hand we talk about the unwillingness of many solicitors to take on apprentices which results in a glut of people who need apprenticeships while at the same time suggesting that solicitors should pay a minimum wage to apprentices. One provision would contradict the other. Requiring solicitors to pay apprentices a minimum wage is a further disincentive to taking on apprentices. It takes us further away from our purpose which to take more people off the waiting lists and into apprenticeships.

Senator Gallagher also raised the issue of capping compensation awards. My colleague, the Minister of State at the Department of Enterprise and Employment with responsibility for Commerce and Technology, Deputy Brennan, proposes to introduce some legislation in this area. I would fully support that legislation and I will be glad to debate the matter with anybody who wants to.

I have some experience in this area and I have come to the conclusion that the single greatest factor in the cost of insurance in this country is the level of awards. If we compare the cost of car insurance, public liability insurance and other types of insurance with the premia charged in other EC member states, even one with a comparable legal system such as the United Kingdom, we will find that it three to five times more expensive here. I have done some research in this area and I have been driven to the conclusion that the single greatest problem is the cost of awards. Regardless of any constitutional difficulties there may be in this area, something has to be done to protect employment, stimulate the economy to create more jobs and reduce unnecessary costs in business. I encourage my colleague Deputy Brennan to move ahead on the matter as quickly as possible.

The cap on the amount payable from the compensation fund is to prevent the depletion of the fund. If unlimited claims were made on the compensation fund, once a certain number of awards had been made, others entitled to payment would have to wait a year or two or would be forced to accept payment by way of instalment over five years or so. A bird in the hand is worth much more than two in the bush. No award in excess of £250,000 has ever been made to those entitled to claim, namely, non-corporate clients of the legal profession. Following the Dáil debate I increased the sum to £350,000 and it will increase in line with inflation. The Minister has the power to increase the award by way of regulation.

There are many other things I want to say but I will give Members the opportunity to take a break. I thank Senators for their contributions and take on board many of the points they made. I do not have a closed mind on the Bill and the debate this morning has certainly given me food for thought between now and Committee Stage.

Question put and agreed to.

Seanad Éireann debate -
Wednesday, 6 Jul 1994