Solicitors (Amendment) Bill, 1998: Committee Stage.
SECTION 1.
I move amendment No. 1:
In page 4, subsection (2), between lines 6 and 7, to insert the following new paragraph:
"(k) expressly or impliedly creates the impression that no fee whatsoever will be payable by a person unless the person is successful in a claim for damages.".
Section 1 refers to certain conditions for solicitors advertisements. They must not bring the profession into disrepute, must not be in bad taste, must not reflect unfavourably on other solicitors or profess a superior knowledge to other solicitors, must not be false or misleading and they must be published in an appropriate location.
This amendment proposes that an advertisement must not create the impression that no fee will be payable by the client unless he or she is successful in a claim for damages. It relates to the "no foal, no fee" practice. The impression is conveyed in some advertisements that there is no downside to taking a legal action, that it is similar to backing a horse which does not win and getting one's money back. This is grossly misleading. In cases where there is a doubt or ones which are fought by a local authority or a supermarket — Senator Quinn said his has fought successful claims — a person could be liable for full costs.
The Law Society is concerned about the "no foal, no fee" concept. Hopefully this amendment will strengthen the Bill as it would help avoid creating the impression that no fee will be payable unless the case is successful. That must be stamped out. There is a possibility in every case that it may be lost and a person could be liable for costs. My amendment will strengthen this section.
I support this amendment which is appropriate in the context of this legislation which discourages the practice of misleading or false advertising. As regards personal injury claims or portfolio claims, whether for Army deafness or social welfare benefits — as happened in the mid-1980s — the case is almost certainly won. Solicitors get a considerable fee knowing there is little danger they will lose a case.
It is important that this matter is dealt with specifically although it is probably covered in section (1)(2)(j) which covers anything which is contrary to public policy. The "no foal, no fee" practice, as distinct from this legislation, is a good one. Lawyers should have the flexibility, if a low earner or an unemployed person approaches them with a genuine grievance, to take the case and see it through on the basis that it is worthwhile and that there is a 50-50 chance of winning it. The general practice must be preserved. However, as regards this legislation which specifically deals with improper inducements, it should be discouraged.
The effect of amendment No. 1 would be to prohibit "no foal, no fee" advertising by solicitors in claims for damages. At present, the Law Society's 1996 advertising regulations deems advertising which uses the words "no foal, no fee" or similar words which indicate that clients will not be required to pay the solicitor's fees unless they are successful in their action, to be in bad taste, false and misleading.
Under the regulations, the advertisements should make clear that clients may be liable for expenses incurred by the solicitor and for the legal costs of other parties to the proceedings. On Second Stage, Senator Cosgrave said the words "no foal, no fee" or other words of similar import act as an inducement to persons to engage in personal injuries litigation. I appreciate the basis of the amendment tabled by Senators Cosgrave and Manning. However, in the course of the preparation of the Bill, the question of such advertising was considered and the Bill addresses the matter.
In this regard, I direct the House's attention to section 1, in particular paragraphs (h) and (i) of the new subsection (2) which is to be inserted in section 71 of the Solicitors Act, 1954. Paragraph (h) prohibits advertising which:
expressly or impliedly refers to—
(i) claims or possible claims for damages for personal injuries,
(ii) the possible outcome of claims for damages for personal injuries, or
(iii) the provision of legal services by the solicitor in connection with such claims, .
Paragraph (i) prohibits advertising which:
expressly or impliedly solicits, encourages, or offers any inducement to any person or group or class of persons to make the claims mentioned in paragraph (h) of this subsection or to contact the solicitor with a view to such claims being made,
The advice available to me is that provision of the kind contained in amendment No. 1 is not necessary in the light of the clear provisions contained in the Bill. Those provisions will prohibit "no foal, no fee" advertising in personal injuries cases. On that basis, there is no need for the amendment. Moreover, it will be open to the Law Society to make regulations which would cover the details of this and other prohibitions on advertising in the Bill.
The concept of "no foal, no fee" is a misnomer. If a client loses a personal injury claim he or she will in all probability still be liable for the expenses incurred in the case — medical expenses, engineers' expenses etc. He or she will normally also have to pay the fees and expenses of the defendant to the action, as the costs normally follow the result of the case. It is often completely misleading to suggest that there will be no expense incurred when a client loses a case. This legislation will ensure this matter is dealt with categorically and clarified once and for all.
I thank Senator Cosgrave for raising the issue. I trust what I said will help clarify the matter. In the circumstances, I do not propose to accept the amendment.
Many solicitors outlay a great deal of money on cases. The cost of an average case, including the cost of medical reports, engineers' reports etc., is considerable. Solicitors, on instruction, must make a value judgment on whether a person has a case. Sometimes one gets only one side of the story and a person may feel he or she is in the right. Subsequent research, evidence or an abstract from a Garda report may clarify the case and indicate a probable outcome.
I am sure the Minister would have first hand knowledge that many offices take on such clients and could be considerably out of pocket on individual cases, perhaps by more than £600, particularly where medical, engineering or other specialised reports had to be obtained. As to the first consultation being free, if the first thing a solicitor says to a person arriving in his office is that he needs money up front he would probably lose the client, because not everyone can produce a certain sum in the expectation of an award 18 months or two years later.
I hope members of the legal profession continue to take on cases, as has been the practice. In this case, however, we are dealing with using certain forms of advertising to create an impression that there is no downside and that one cannot lose. There are certain cases which a client is unlikely to lose, but how much damages he will win is another matter. In other cases, it may be a matter of which witness is believed, or further evidence may be provided by witnesses and a solicitor may not receive the full picture from his first instructions.
This provision is important because the section must deal with the glossy brochures which seem to indicate there is no downside. I will, therefore, press the amendment.
As the Minister said, section 1(2)(h) and its various subparagraphs cover the matters mentioned in the proposed section 1(2)(k), but the amendment would put the matter beyond doubt. Paragraph (h) is rather tentative — it mentions "possible claims", "the possible outcome of claims", etc. — but the amendment is much more specific. Perhaps the Minister could clarify whether paragraph (h) covers anything other than "no foal, no fee" cases, because the amendment would be a clearer substitute for it and no one would be in any doubt about how to present an advertisement. Providing in legislation that one could not state that no fee whatsoever would be payable is as clear as can be, whereas the Minister's wording is tentative and its import is unclear. While the Minister states that paragraph (h) covers every eventuality, the amendment would clarify matters.
Section 1(2)(h) provides that a solicitor may not publish or cause to be published an advertisement which expressly or impliedly refers to various matters relating to personal injury damages, and section 1(2)(i) provides that no inducement can be offered to any person or group or class of persons to make the claims mentioned in paragraph (h) or to contact the solicitor with a view to such claims being made. In other words, paragraph (i) specifically refers to the items listed in paragraph (h).
Amendment put.
The Committee divided: Tá, 9; Níl, 21.
Tá
- Coghlan, Paul.
- Coogan, Fintan.
- Cosgrave, Liam T.
- Costello, Joe.
- Doyle, Avril.
- Jackman, Mary.
- Manning, Maurice.
- Ross, Shane.
- Ryan, Brendan.
Níl
- Bonner, Enda.
- Cassidy, Donie.
- Chambers, Frank.
- Cox, Margaret.
- Cregan, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Gibbons, Jim.
- Glynn, Camillus.
- Hayes, Maurice.
- Keogh, Helen.
- Kett, Tony.
- Kiely, Daniel.
- Lanigan, Mick.
- Leonard, Ann.
- Mooney, Paschal.
- Moylan, Pat.
- Ó Murchú, Labhrás.
- Ormonde, Ann.
- Walsh, Jim.
Tellers: Tá, Senators Coogan and Jackman; Níl, Senators T. Fitzgerald and Keogh.
Amendment declared lost.
Section 1 agreed to.
SECTION 2.
Government amendment No. 2:
In page 6, subsection (1), lines 1 and 2, to delete "section 56 (which prohibits an unqualified person from pretending to be a solicitor)" and substitute "sections 55 and 56 (which prohibit an unqualified person from acting as or pretending to be a solicitor)".
This is a technical drafting amendment. Section 2 makes it clear that the controls on solicitors relating to personal injury provided for in section 1 apply also to non-solicitors. Section 2(1) as it stands would operate without prejudice to section 56 of the Solicitors Act, 1954, which makes it an offence for an unqualified person to pretend to be a solicitor. The amendment specifies that section 2 would operate without prejudice to section 55 of the Solicitors Act, 1954, which makes it an offence for an unqualified person to act as a solicitor.
I support this amendment. Obviously it has been confirmed that unqualified people tend to broker, act as a go-between or entice in relation to possible claims. I hope this amendment will strengthen the Bill.
Amendment agreed to.
Government amendment No. 3:
In page 6, subsection (1) (b), line 13, to delete "the Solicitors (Amendment) Act, 1998” and substitute “section 1 of this Act”.
This is a drafting amendment substituting the words "section 1 of this Act" for the words "the Solicitors (Amendment) Act, 1998” since the words “this Act” are selfexplanatory. There is no need for the full reference to the Solicitors (Amendment) Act, 1998, as is currently in section 2 (1) (b).
Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 4:
In page 6, line 21, to delete "commencement" and substitute "passing".
This amendment proposes that sections 1 and 2 shall not apply to advertisements published not more than three months after the "passing" rather than "commencement" of the Bill. Section 6 states "This Act shall come into operation 3 months after its passing or on such earlier day as may be appointed by order of the Minister for Justice, Equality and Law Reform". As specific times are given in the Bill, effectively sections 1 and 2 would not come into operation for six months.
If we regard the prohibition of misleading and false advertising and other items listed in the section as an important and urgent matter now, why should we wait six months for it to come into operation? It is important now and should be represented by immediate action rather than inserting the caveat that nothing will happen until three months after commencement of the Act. Once the Act is passed it should go into operation straightaway. Section 6 (2) states that the "Act shall come into operation 3 months after its passing". This is not desirable and undermines the purpose of the legislation. It questions what we are doing. Will this enable solicitors to run misleading advertisements for six months? Are we saying it is all right for them to do it now and that they can keep doing it for this period, even though it will be prohibited in the future? Why not prohibit it immediately and take the advertisements out of the Golden Pages or other publications carrying these improper and inappropriate advertisements? It is unnecessary to add another three months in section 3 to the three months mentioned in section 6, thereby undermining the thrust and urgency Senators expressed on Second Stage.
I understand where Senator Costello is coming from but I wonder about the practical aspects, particularly in a publication like the Golden Pages. People have probably already entered into commitments in relation to the 1999 edition of the Golden Pages. I presume that if the 1999 edition is published carrying such advertisements we are stuck with them. It is unrealistic to think——
That is 14 months; the Bill mentions six months.
This Bill may be passed and signed in the next week. There are practical aspects in that people may have entered into advertising commitments or contracts for next year. The reality is that if one looks up the Golden Pages next September, he will still see this type of advertisement. It is not practical as people may have paid for next year's advertisement some months ago and may be contractually bound and they may not be able to get a refund. How does the Minister see this working in practical terms?
Section 3 provides that it will apply to advertisements published three months after the date of commencement. The amendment provides that the Bill should apply to advertisements which are published three months after the date of its passing. Under provisions in section 1 which will become section 71(5) of the Solicitors Act, 1954, the Law Society will be required to make regulations in relation to the control of advertising. These regulations will require the Minister's consent. The issue of making regulations as allowed under the Bill was the subject of discussions between my Department and the Law Society while this Bill was being prepared. On the basis of those consultations, I am satisfied that a reasonable time frame in which the making of regulations can be accomplished is provided for in the Bill.
Under section 6 (2) the Bill will come into operation three months after its passing or on such earlier day as may be appointed by ministerial order. By a combination of section 3 and section 6 (2) the legislation will begin to apply to advertisements published a maximum of six months after the date the Bill is passed. Alternatively, assuming preparation of the regulations can be accommodated in a shorter time frame and the Bill is brought into force by a commencement order, it could apply to advertisements published on an earlier date.
I am satisfied this is a reasonable basis on which to proceed. The amendment could result in the process being unduly shortcircuited. That leverage on the Law Society is not necessary. Accordingly, I am not disposed to accept this amendment.
Senator Cosgrave said it was probable that we would be stuck with advertisements inserted in journals within the next six months. If the position is not resolved within six months that is true. This would shorten the amount of time which would be available to people to insert advertisements in journals, etc. It is true that advertisements which are published in journals in the interim will be with us for some time but they will be become illegal within six months of the passing of the legislation.
The Minister's statement has confused the matter further. If the intention of extending the period for operation of the legislation was to facilitate solicitors who have already entered into contracts, then the period should be such as to cover the calendar year. With regard the Golden Pages, its calendar year is from January to December and a new edition is published the following year. Anyone who would have contracted at this point or would have sought publication of such advertisements would have already entered into such contracts. The period of six months is neither fish nor fowl; it is a limbo period. Six months is also the maximum length of time which leaves no scope for the Minister to extend it. It may become operational before six months but it must become operational after six months.
The Minister should also remember that the word is "publication", not "insertion". The term "publication" means the actual publication as distinct from seeking to insert something in a publication. If there is another six or eight months outstanding on a contract for publication, solicitors could find themselves aggrieved by what would effectively be a breach of contract and then they would be able to take an action in that respect. Either the Minister makes provision for that eventuality or he brings it into operation straightaway. A six months period does not seem to serve any useful purpose. It sounds like a figure that has been pulled out of the air. I wonder why the Minister decided to insert three months here, to insert three months at the end of the legislation for the coming into operation, and allow time for the coming into operation of this section, which gives a cumulative of six months. Is it related to any purpose, publication or contract? What is the rationality for this measure?
I will preface my remarks by stating that all advertising is not banned by this legislation, only advertisements of the kind which are specified by it which most people will support. The whole question of contracts being entered into, to which Senator Costello referred, is one of considerable interest and needs to be clarified. Let us say the Law Society regulations will be ready in three weeks, I am enabled to sign the commencement order for the legislation and it will not come into effect until three months thereafter. Any advertisement published in the meanwhile will not be caught by the legislation but an advertisement not published in the meanwhile but contracted for and published subsequent to the coming into place of the legislation would be caught by this legislation. In those circumstances the kind of situation envisaged by the Senator does not arise. It is the publication of the advertisement which is the important point not the date of the contract, otherwise we could have all sorts of contracts entered into up to the year 2001 and we would be unable to catch those advertisements by means of this legislation.
If the Law Society's regulations are ready in a matter of weeks or less than the three month period, I will sign a commencement order for the legislation as soon as possible but that is the best I can do.
Amendment put and declared lost.
Section 3 agreed to.
SECTION 4.
I move amendment No. 5:
In page 6, line 33, after "has" to insert "at any time during the previous 3 years (or such longer prior period as the Society may decide in the particular circumstances of the case)".
This section deals with misconduct and anyone having direct or indirect connection, association or arrangement with any person whom the solicitor knows or upon reasonable inquiry should have known is a person who is acting or has acted in contravention of section 56. Effectively this means that a person who has ever contravened section 56 of the Principal Act or section 2 of the Bill is banned forever from having any association with solicitors. It is a total blanket ban. My amendment seeks to introduce a level of flexibility where the ban would only operate for three years with an option of extending the ban if it was warranted. The Minister's absolute ban seems harsh and it might be better to allow some degree of flexibility.
Section 4 provides in part that any solicitor who acts with an unqualified person whom the solicitor knows to be acting in contravention of the Solicitors Acts shall be guilty of misconduct under those Acts including provisions in the Bill. The effect of the amendment would be to limit the effect of that section 4 provision to cases where the unqualified person in question has acted in breach of the Solicitors Acts within the previous three years with the qualification that the Society may extend that period in a particular case.
Section 7 of the Solicitors Act, 1960, as inserted by section 17 of the Solicitors (Amendment) Act, 1994, empowers the disciplinary tribunal to conduct an inquiry into alleged misconduct by a solicitor upon the application of a lay person or the society itself. The disciplinary tribunal which is appointed by the President of the High Court is independent of the Law Society. In a case where the application is made by the Law Society the Senator's amendment will have the effect of interfering with the independence of the tribunal. If the application were made by a lay person the disciplinary tribunal would have to adjourn its proceedings to enable it to consult with the society to ascertain the law to be applied in relation to the case in question. Again, that procedure interferes with the independence of the operation of the tribunal. The amendment is flawed and, therefore, I cannot support it.
Amendment, by leave, withdrawn.
Government amendment No. 6:
In page 6, line 34, to delete "section 56" and substitute "section 55 or 56 or section 58 (which prohibits an unqualified person from drawing or preparing certain documents), as amended by the Solicitors (Amendment) Act, 1994,".
This is a technical drafting amendment. The Solicitors (Amendment) Act, 1960, is amended by the Solicitors (Amendment) Act, 1994. This amendment specifies what constitutes misconduct by a solicitor under those Acts.
Section 4 of the Bill extends that definition of misconduct to include breaches of the advertising provisions in the Bill. The section also prohibits a solicitor from acting in association with a person whom he or she knows to be pretending to act as a solicitor in contravention of section 56 of the Solicitors Act, 1954.
In addition this amendment prohibits a solicitor from acting in association with an unqualified person who is acting as a solicitor in contravention of section 55 of the Solicitors Act, 1954, or is acting in contravention of section 58 of the 1954 Act which prohibits an unqualified person from drawing or preparing certain documents.
Amendment agreed to.
Section 4, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 7:
In page 6, between lines 40 and 41, to insert the following section:
5.—The Solicitors (Amendment) Act, 1960, is hereby amended in section 7 (as substituted by section 17 of Solicitors (Amendment) Act, 1994)—
(a) in subsection (3)(b), by the substitution of the following subparagraph for subparagraph (i):
‘(i) embody their findings in a report (which shall include a verbatim note of the evidence given and submissions made) to the High Court, specifying therein the nature of the application and the evidence laid before them and any other matters in relation to the solicitor (hereinafter referred to in this section as the "respondent solicitor") which they may think fit to report;'
(b) by the substitution of the following subsection for subsection (5):
‘(5) The Disciplinary Tribunal shall, as soon as possible after their report has been prepared, serve a copy of it on—
(a) the respondent solicitor either personally or by sending it by registered post to the respondent solicitor's last-known residence or place of business,
(b) the Society by sending it to the Society by registered post, and
(c) any person other than the Society who has made an application under subsection (1) of this section either personally or by sending it by registered post to the person's last-known residence or place of business.",
(c) by the substitution of the following subsection for subsection (10):
‘(10) On the making of an order under subsection (9) of this section, the Disciplinary Tribunal shall as soon as possible serve, in the manner provided for in subsection (5) (as substituted by theSolicitors (Amendment) Act, 1988) of this section in relation to service of their report, a copy of the order on the respondent solicitor, the Society and any person other than the Society who has made an application under subsection (1) of this section.’, and
(d) the substitution of the following subsection for subsection (11):
‘(11) (a) A respondent solicitor in respect of whom an order has been made by the Disciplinary Tribunal under subsection (9) of this section, or
(b) without prejudice to subsection (12) of this section, the Society or any person other than the Society who has made an application under subsection (1) of this section,
may, within the period of 21 days beginning on the date of the service of a copy of the order or of the report, whichever date is the later, appeal to the High Court to rescind or vary the order in whole or in part, and the Court, on hearing the appeal, may—
(i) rescind or vary the order, or
(ii) confirm that it was proper for the Disciplinary Tribunal to make the order.'.".
Amendment No. 7 has arisen on the basis of consultations between my Department and the Law Society. It amends section 7 of the Solicitors (Amendment) Act, 1960, as amended by section 17 of the Solicitors (Amendment) Act, 1994. Section 7 of the 1960 Act sets out the procedures to be followed by the Disciplinary Committee of the Law Society when inquiring into the conduct of a solicitor against whom misconduct has been alleged.
As I pointed out on Second Stage, such allegations may be investigated by the disciplinary tribunal and may be found by the tribunal to be misconduct within the meaning of the Solicitors Acts. The 1994 Act gives the disciplinary tribunal power, by way of order under section 7(9) of the 1960 Act, where they have found a solicitor guilty of misconduct, to advise, admonish or censure that solicitor and to order him or her to pay a sum not exceeding £5,000 to the compensation fund of the Society. In addition it has the power to refer the matter, by way of report of its findings, to the High Court, which has the power, inter alia, to strike the name of the solicitor off the roll, suspend the solicitor from practice for a specified period of time or place restrictions on the solicitor's practice.
The amendment is designed to strengthen the disciplinary tribunal's procedures; it rectifies certain procedural problems in relation to the preparation and service of documents by the tribunal; it makes a verbatim recording of proceedings of the disciplinary tribunal mandatory; it provides for wider service of documents — that is, the tribunal's report to the High Court and the tribunal's order under section 7(9) of the 1960 Act — to parties to the proceedings; and it amends the law governing appeals against an order of the tribunal.
Under the law as it stands the disciplinary tribunal is not required to keep a verbatim record of its proceedings. The tribunal is only required, on completion of its inquiry into alleged misconduct by a solicitor, to embody its findings in a report to the High Court. The report is required to only specify the nature of the application and the evidence laid before the tribunal and any other matter which the tribunal thinks fit to report. Because the full transcript of the proceedings are not made available to the High Court it leaves open the possibility of challenge, by way of judicial review, by either the applicant or respondent solicitor, as to the accuracy of the tribunal's report. New subsection (3)(b)(i) which it is now proposed to insert in section 7 of the 1960 Act makes it mandatory for the tribunal to include with its report to the High Court "a verbatim note of the evidence given and submissions made" to the tribunal in the course of its hearings. This will eliminate the possibility of challenge as to the accuracy of the tribunals report and minimise delays in the production of the tribunal's report and in the proceedings before the court.
With regard to the service of documents in proceedings before the disciplinary Tribunal, the tribunal is at present only required to serve a copy of its report to the High Court and its order under section 7(9) of the 1960 Act on the respondent solicitor. I am satisfied, in the interests of ensuring that all parties before the tribunal are dealt with equitably and that the tribunal's proceedings are seen to be open and transparent, that the Law Society, the applicant and the respondent solicitor in the proceedings should be served with the tribunal's order and report simultaneously. New subsections (5) and (10) which it is now proposed to insert in section 7 of the 1960 Act provide for this.
The new subsection (11) which it is proposed to insert in section 7 of the 1960 Act provides for amendment of the law relating to appeals to the High Court against an order of the tribunal in two ways. First, it provides that the Law Society and applicant in the proceedings before the tribunal shall have the same right of appeal against the order of the tribunal as the respondent solicitor has currently. At present the society or the applicant, under section 7(12), may only appeal in respect of the adequacy of the sanction imposed by the disciplinary tribunal or on the basis that in lieu of making an order the tribunal should have referred the matter to the High Court. I am satisfied, in the interest of equity, that the society and applicants should have the same right of appeal as the respondent solicitor.
Second, new subsection (11) provides that the period of appeal will run 21 days from the "date of service of the order or the report, whichever is the later" in place of the present provision which provides for the period of appeal to run 21 days from "the date of service of the order" only. The tribunal's report, which contains the tribunal's findings and the evidence presented to it, is of singular importance in any appeal and of particular relevance to the parties contemplating an appeal against an order of the tribunal. In view of the fact that the appeal period of 21 days is relatively short and that, in some cases, the tribunal's report may not be ready for some time after the issue of the order, I am satisfied that, in order for the parties to fully assess the tribunal's findings, the date of appeal should run from the date on which the full particulars of the tribunal's findings and its order are available to all the parties.
I am glad to take the opportunity presented by this Bill to provide for the matters contained in this amendment. They will help to improve generally the procedures of the disciplinary tribunal and I wish to put on the record of the House my thanks to the Law Society for highlighting the matters in question.
Senators Cosgrave and Manning have proposed two amendments to my amendment No. 7 and, subject to the permission of the Cathoirleach, it might be helpful if I were to say something in that connection at this stage. They are proposing that, in the fourth line of paragraph (b) of amendment No. 7, the words "and not later than 21 days" be inserted after the word "possible" and that in the fifth line of paragraph (c) of the amendment the words "and not later than 21 days thereafter" be inserted after the word "possible". My amendment provides that the disciplinary committee shall furnish the parties to the proceedings before it with a copy of its report of the proceedings and a copy of its order "as soon as possible" after they are available. The effect of the amendments proposed by the Senators would be to require the disciplinary tribunal to serve its report and order on the parties as soon as possible but not later than 21 days after they are available. The purpose of these amendments is to set a time limit on the service of documents on the parties. I consider that the time limit being proposed by the Senators is reasonable and I propose to accept the amendments.
I move amendment No. 1 to amendment No. 7:
In the fourth line of paragraph (b) after "possible" to insert "and not later than 21 days".
I thank the Minister for his explanation of the section and also for accepting the amendment.
I welcome the Minister's amendment because this is an important new section. It introduces the Disciplinary Tribunal of the Incorporated Law Society. It is important that a professional organisation be seen to have its own code of conduct and that it be operating effectively. The purpose of this section is to streamline the operation of the disciplinary code of practice and introduce certain important elements — ensuring that verbatim reports are provided inserting a timescale — I agree with the amendment inserting a limit of 21 days which the Minister has now accepted — the registration by post and the entitlements of the respondent solicitor also within a specific period of time to go to the High Court and ensure that he or she gets justice if there is a grievance in that respect.
I asked the Minister on Second Stage if the Law Society was capable of policing and monitoring its own affairs and was is really necessary for us to introduce legislation to compel the profession to carry out its business in an appropriate, civil, dignified and responsible fashion. The Minister replied that the Law Society needed those extra powers which are being introduced in sections 1 and 2 but, arising from this legislation, the disciplinary procedures will be streamlined by the Law Society. That is very appropriate.
Amendment No. 1 to amendment No. 7 agreed to.
I move amendment No. 2 to amendment No. 7:
In the sixth line of paragraph (c) after "possible" to insert "and not later than 21 days thereafter".
Amendment No. 2 to amendment No. 7 agreed to.
Amendment, as amended, agreed to.
Government amendment No. 8:
In page 6, between lines 40 and 41, to insert the following new section:
"6.—The Solicitors (Amendment) Act, 1994, is hereby amended in section 23—
(a) by the substitution of the following subsection for subsection (1):
‘(1) Where, on the completion of an inquiry by the Disciplinary Tribunal held under section 7(3) of the Act of 1960, the Disciplinary Tribunal have—
(a) made an order under section 7(9),
(b) served on the Society a copy of the order pursuant to section 7(10), and
(c) sent to the Society a copy of their report pursuant to section 7(5),
of that Act, then, subject to subsection (2) of this section, the Society may arrange to publish the order or notice of the making of the order and its effect, together with a summary of the report, in such a manner as the Society thinks fit.',
(b) by the substitution of the following subsection for subsection (2):
‘(2) Where, on the completion of an inquiry by the Disciplinary Tribunal held under section 7(3) of the Act of 1960, the Disciplinary Tribunal have made an order under section 7(9) of that Act, or order, or notice of the making of the order and its effect, or any part of the report of the Disciplinary Tribunal or other detail of the inquiry, shall not be published by the Society until a period of at least 21 days beginning on the date of the service of a copy of the order or of the report, whichever date is the later, shall have elapsed or until any application made under subsection (11) or (12) of section 7 of the Act of 1960 has been determined by the High Court, and thereafter the notice of the meeting of the order shall not be published if the Court rescinds the order of the Disciplinary Tribunal or, in the case of an application made under the said subsection (12), the Court orders that one or more of the aforementioned documents shall not be published.', and
(c) by the insertion of the following subsection after subsection (3):
‘(4) References in subsections (1) and (2) of this section to provisions of section 7 of the Act of 1960 are to those provisions as substituted by this Act and, where appropriate, by theSolicitors (Amendment) Act, 1998.’.”.
This amendment has arisen also on the basis of consultations between my Department and the Law Society. It amends section 23 of the Solicitors (Amendment) Act, 1994, to allow the Law Society to publish a summary of the disciplinary tribunal's report on its finding in a case against a solicitor for alleged misconduct. At present, section 23 of the 1994 Act provides that the Law Society may, on receipt of an order from the disciplinary tribunal, publish the order of notice of the making of the order and its effect. Such publication must not take place until 21 days after the making of the order or until an appeal to the High Court against the order has been determined.
The publication of the disciplinary tribunal's order, or the making of the order and its effect, has undoubtedly a certain deterrent effect on solicitors. However, publication of the order, which often contains no more than the sanctions imposed by the tribunal or its effect, may not in all cases make clear the nature of the misconduct of which the solicitor has been found guilty or the significance of the misconduct. Consequently, the deterrent effect of publication can be diminished.
On the other hand, the disciplinary tribunal's report specifies the nature of the complaint against the solicitor, the evidence which is presented to it in the course of its inquiry into the complaint and its detailed findings. The view of the Law Society, with which I agree, is that more disclosure should be made of the findings of the disciplinary hearings against solicitors. Publication of such hearings will give rise to greater transparency and could also have a greater deterrent effect than simple publication of details of the penalty imposed on a solicitor.
Amendment agreed to.
Section 5 agreed to.
SECTION 6.
I move amendment No. 9:
In page 7, between lines 12 and 13, to insert the following new subsection:
"(2) Subsections (5) and (6) of Section 71 of the Solicitors Act, 1954 as inserted by section 1 shall come into operation on such day as the Minister for Justice, Equality and Law Reform by order made on the request of the Society, appoints.".
Will the Minister indicate the discussions that have been taking place between his Department and the Law Society on the question of appropriate regulations? While many advertisements are inappropriate, there are other aspects to advertising which do no harm, for example, the use of big hoardings by some firms, especially in the suburbs.
What timescale does the Minister envisage for the implementation of the provisions in the Bill? It is important that regulations are acceptable to Members. If there are to be guidelines, especially with regard to advertising, a number of factors will have to be considered. There have been many discussions between the Department and the Law Society, which have gone well. Has the Minister seen draft regulations and when does he expect them to be implemented?
Section 1(5) as it stands requires the Law Society to make regulations to give effect to the restrictions on advertising by a solicitor which are contained in the Bill. By virtue of section 6(2) the maximum time limit for the coming into operation of section 1(5) is three months after the passing of the Bill. The Law Society, with whom my Department has consulted, has not indicated any difficulty with that timeframe. The intention of the legislation is to remove that maximum time limit and to enable the Law Society determine when section 1(5) will come into operation. This would mean the society could decide when restrictions on advertising will come into effect.
Section 1(6) enables the Law Society to make regulations with the Minister's consent to prohibit the advertising of charges or fees where the Minister is satisfied the making of such regulations is in the public interest. The Law Society would have discretion to do so at any time, provided the Minister agrees. The effect of the amendment would be to provide that the section would come into operation only following the making of a commencement order by the Minister on the request of the society. Given that the powers vested in the Law Society under section 1(6) are discretionary rather than mandatory, I cannot see the benefit to be gained by allowing it to exercise a right of veto over the commencement of subsection (6). Again, under this amendment the society would decide the operative date for the provision in the Bill. For these reasons, I cannot accept the amendment and I do not believe anybody could expect me to accept it.
The introduction of legislation is a matter for the House, which then, in this instance, devolves power to the Minister of the day to sign the commencement order. Nobody would expect it to be proper for a body outside the Oireachtas to exercise an effective right of veto on the implementation of legislation passed by this House. That would fly in the face of all democratic tenets.
There has been a considerable level of consultation with the Law Society on this legislation. These consultations have been comprehensive and we have been as open as we could with the society. The drafting of the regulations is a discretionary matter for the society and it is for the society to bring them forward in due course. I have not seen the draft regulations but I am aware they are being prepared. I gave an undertaking to Senator Costello that if they were ready earlier than the stated time limit of three months I would not be found wanting in signing the commencement order for the legislation, which would then come into play three months thereafter.
The Law Society generally regulates the solicitors' profession very well. I do not believe any other profession is as well regulated. When this legislation is passed the regulation of the solicitors' profession will be greatly strengthened and there will be a far greater level of transparency in regard to disciplinary proceedings. In addition, I believe undesirable practices that have developed as a result of allowing solicitors advertise, which was opposed by the Law Society, will assist the public and the profession.
I cannot agree more with the Minister. What he said is very appropriate. I disagree with my colleague, Senator Cosgrave, whose amendment would effectively give a veto to the Law Society on when the measures would be introduced. That would not be appropriate, although I understand he is trying to tease out the problems related to the timescale.
Regarding the introduction of these measures, does the timescale take into account advertising contracts entered into or is it all or nothing? If advertising has been paid for which will extend beyond the introduction of these measures, does that mean it will have to be stopped after the measures come into effect? Advertisements in the Golden Pages are published on an annual basis. This means advertising arranged by solicitors for 1999 and contractual arrangements for its publication must be ended. There could be implications in that for the Minister and the taxpayer.
Nonetheless, I would like to see a maximum time limit introduced. I hope the matter can be resolved through consultation with the Law Society and agreed regulations made. The enactment of this legislation would allow for greater transparency and accountability and improved practices in the law profession.
I accept what the Minister said and will not press my amendment. I am glad to hear there has been ongoing discussion. It is important the regulations are introduced as soon as possible. I presume there will be a transitional period for their introduction because people may have entered into advertising contracts, such as with CIE, to have advertisements on buses for six months of 1999. People may have already entered into an advertising contract with a magazine and money may have been paid. Short of giving the money back, publishers of such magazines will be contractually bound to publish the advertisements. The Minister should accept a transition period in which no new advertisements would be placed but contracts already entered into would be fulfilled. Senator Costello mentioned the Golden Pages which is published on an annual basis. If people place advertisements in the 1999 Golden Pages, there is not much that can be done. It is important that people who find themselves in this position are not penalised or subject to disciplinary measures. Will the Minister elaborate on that?
I am anxious this legislation comes into effect at the earliest possible date. The Law Society will have three months to put in place its advertising regulations as per the legislation. I encourage the society to introduce them at the earliest possible date because I wish to sign the commencement order as soon as possible.
When the regulations are in place after the commencement order, it will be three months before the legislation takes effect. It is possible in the interim for a person to enter into a contractual arrangement for the publication of an advertisement deemed illegal under the legislation. It will be covered by the legislation if it is published subsequent to the same coming into effect. Any advertisement in contravention of the legislation and published after it comes into effect will be subject to its provisions, irrespective of when the contract was signed. It is possible for a solicitor to enter into a contract with the Golden Pages to carry an advertisement contravening the legislation prior to its coming into operation. If it is published prior to the legislation coming into effect, it will not be subject to its terms, but it will be if it continues to be published after that. If an advertisement were published in the Golden Pages prior to the legislation coming into effect, we would be left with it until the calendar year after the year of publication. I am sure all Members agree the course I am adopting is the most pragmatic. It was never intended that the legislation would ban all advertising by solicitors, but ban undesirable advertising. It is to be hoped that, because of the legislation, such advertising will become a thing of the past.
The Minister has not clarified the matter. What will happen if the advertisement has been contracted but not published? What will happen if a solicitor has already entered into a contract to have an advertisement in the 1999Golden Pages? The legislation seems specific and clear on the matter but, it deals only with advertisements which are published. Even if the contract were entered into and the advertisements agreed, the legislation specifically prohibits their publication. That would mean the solicitor in question must be breaking the law, irrespective of when he entered into the contract. If the contract was entered into before it, one could say to that solicitor that once the legislation has been passed by both Houses of the Oireachtas he would have due notice or that the regulations were being made by the Law Society. However, somebody who, in good faith, entered into this form of advertising beforehand, surely has a case. The Minister should tease it out. Perhaps he would agree that, before the Bill goes to the other House, it could be looked at again in relation to how this will be dealt with. It seems to create some anomalies as regards how solicitors will cope with advertising or with the contractual arrangements and the various bodies with whom they deal. What is considered misleading advertising under this legislation was not misleading when they entered into the contract. While we all want to ensure the legislation comes into play as soon as possible, will the regulations operate on an all or nothing basis or will some flexibility be introduced?
As I said before, once the commencement order for the legislation is signed, the provision of the legislation will come into effect three months thereafter. From the passing of the Act, the Law Society will have three months to have its regulations ready. Let us say that it will take the full three months, then the commencement order is signed and the Act comes into effect. Three months thereafter, any publication which is put in place will be caught if the advertisement is in contravention of the Act.
It is possible in the interim that somebody would enter into a contract, for example, to have advertisements placed next July. That advertisement would be caught by the Act——
They will have already entered into a contract.
——even if they have already entered into a contract, because the publication of the advertisement would take place more than three months after the coming into effect of the Act. In the meantime, an advertisement in any publication which is in place prior to the period, which is three months after the commencement of the Act, would not be caught by the legislation. It is the date of publication of the advertisement which counts, not the date of the contract. That is of considerable importance. Otherwise people could enter into contracts from now until eternity and we would not be in a position to have those advertisements subjected to the terms of the legislation.
Senator Costello said it seemed to him that a person who enters into a contractual obligation to have an advertisement published after the period in question — that is, three months after the coming into effect of the Act — might have a statable case. My answer is that there has to be a cut off point. At some point we have to say this is the period and after that any such advertisement will be caught by the terms of the Act. The period which has been allowed under the legislation and which was given very deep consideration, is more than reasonable. Everybody has the opportunity of knowing precisely where they stand. It is not as if this legislation is being kept under wraps or that nobody knows it is going through the Oireachtas. Those who are affected by the legislation know it is before the Oireachtas.
They would have known that for some time.
I am not suggesting that solicitors should be given any greater laxity than the Minister. In fact, my amendment was to restrict it further. However, I want to tease out the implications of what will happen. The wording of the legislation says it should not apply to advertisements that are published. What about the question of continuity? Somebody could have entered into a 12 month or two year period for advertising. When the three months' grace after the commencement of the Act has passed, the advertisement is already locked in, but the continuity of its publication is there. It is not an initial publication but a continuous one. What is the situation concerning a continuous publication already entered into? These advertisements were published last year and part of the agreement was that they would be published in the same form this year. In three months time that will be all right, but after that period has elapsed the legislation says it will be illegal for such advertisements to be published. How does the Minister get around that point?
The most practical example we could take is the Golden Pages, which has been adverted to on a number of occasions. Let us say that a person enters into a contract with the Golden Pages to provide that there will be an advertisement in breach of the terms of this legislation — it would not, in other words, be in accord with this legislation — and the individual enters into the contract for three years——
——if the advertisement is published within a period of three months of the commencement of the Act, then that advertisement is not caught by the legislation and that publication is not caught by the legislation. However, in the new Golden Pages for the following year, a different publication to the previous one although the advertisement may be the same, that advertisement — because it was not published within a period of three months of the commencement of the Act — is caught by the legislation.
Let us take Senator Costello's example. If a person entered into a contract with the Golden Pages two or three years ago to place an advertisement for three years, clearly, this year's advertisement, if published in the Golden Pages within a period of three months of the commencement order, is not caught by the legislation. However, any subsequent advertisement, because it would be in a new publication published subsequent to the period of three months after the coming into operation of the Act, would be caught by the legislation. I trust that sets out the actual position.
The Minister should have joined the Jesuits.
There was a definite play on words there.
Amendment, by leave, withdrawn.
Amendment No. 10 not moved.
Question proposed: "That section 6 stand part of the Bill."
The Minister has indicated that discussions have taken place but when does he expect the Act will be in operation? Will it be from the new year or sooner? Does the Minister see that timescale being adhered to? Does he see any difficulty allowing for certain discussions which must take place under regulation?
I see no inhibition in having this legislation in place early in the new year provided that the Law Society comes forward with its regulations and it must do this within a period of three months. The commencement order must then be signed and a further three months would pass before the advertisements covered would be caught by the legislation. If the Law Society comes forward within a matter of weeks with the regulations there is nothing to prevent me signing the commencement order and then the legislation would take effect three months after the date of the commencement order. In short, I anticipate this legislation should be in place in the first quarter of the new year.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
There was a request this morning for an interval of 30 minutes between now and Report Stage.
We will proceed to Report Stage now. Is that agreed? Agreed.
