This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, I have arranged for the printing and circulation of the amendments. Senators may speak only once on Report Stage.
Solicitors (Amendment) Bill, 1998 [ Seanad Bill amended by the Dáil ] : Report and Final Stages.
This Bill was passed by the Seanad on 22 October 1998 and since then it has been before Dáil Éireann. The relatively long period during which it was before the Dáil was due, unfortunately but necessarily, to the Government's considerable legislative programme over that period. Due to the importance of this Bill, however, the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, was particularly anxious to secure time for it so that it would be passed during the current Dáil. This took place, I am glad to say, on 28 March and the Bill now comes before this House on Report Stage, having been the subject of extensive amendments in the Dáil.
When the Bill was last considered by the Seanad, its main focus was on dealing with unacceptable advertising by solicitors. It also included miscellaneous provisions relating to disciplinary matters affecting solicitors. As amended by the Dáil, the Bill can be said to have three main elements. First, there are the provisions on advertising. Second, there are extensive and far reaching provisions which improve and make more effective the disciplinary regime for solicitors. Third, section 20 of the Bill as passed by the Dáil, facilitates the transposition into Irish law of the EC Lawyers Establishment Directive.
I will now go through, by reference to the list supplied to Senators, the 42 amendments made by the Dáil. Amendments Nos. 1, 4, 5, 12, 13, 14, 16, 18, 19, 34 and 35 are purely technical and involve changes to how the Solicitors Acts are referred to. For example, the Solicitors Act, 1954, is now referred to as the Principal Act in this Bill.
Amendment No. 2 inserts what is now section 2 of the Bill as passed by the Dáil. It deals with the situation in which the Law Society issues, subject to conditions, or refuses to issue a practising certificate to a solicitor. At present, section 49(1)(q) of the Principal Act allows the society to refuse to issue a certificate unconditionally where the solicitor has failed to satisfy the society that, having regard to all the circumstances, including the financial state of his or her practice, he or she should be issued with a certificate without conditions attached.
Two additional circumstances are explicitly provided for by this amendment. These are situations where the Law Society is concerned about the number and nature of complaints against a solicitor during the previous two practice years and, second, the need adequately to protect the interests of clients. While a solicitor may be able to deal with each complaint satisfactorily when it is notified to him or her by the Law Society, the fact that there are a number of such complaints may be more than sufficient reason for not issuing a practising certificate or for issuing a certificate subject to conditions.
There are circumstances in which the Law Society may need to investigate the manner in which solicitors maintain bank accounts for clients' moneys. The purpose of amendment No. 3 is to obviate the need for the society's authorised investigator to inform the solicitor of the reason for his or her attendance at the solicitor's office where the society reasonably considers that disclosure of the investigator's visit could prejudice the exercise of the society's regulatory functions.
The purpose of amendments Nos. 6 and 9 is to take account of the increasing relevance of the Internet to solicitors' firms, in common with all areas of professional and business life. Amendment No. 6 provides that an advertisement may include, in addition to name, address, telephone number, etc, a reference to the location of information provided by the solicitor that is accessible electronically. In everyday language, this means a website address. Amendment No. 9 changes the definition of "advertisement" by including as examples any electronic address or any information provided by the solicitor that is accessible electronically – in other words, an e-mail address or website.
Amendment No. 7 changes the provision in section 1(5)(c) of the Bill as passed by the Seanad which empowers the Law Society to make regulations to provide that advertisements can include specified information in addition to the infor mation set out in section 1(3)(a) to (d). The amendment provides that this specified information must be of a similar nature to the matters listed in subsection (3)(a) to (d). The provision, as amended, sets out the policy the Law Society is to follow in making the regulations and makes clear that the society does not have an open-ended discretion as to the information it specifies.
Amendments Nos. 8 and 10 were made to overcome concerns that the phrase "which publicises or otherwise promotes" a solicitor in relation to his or her practice, in the definition of "advertisement" in section 1(10) of the Bill as passed by the Seanad, might give rise to a situation in which the definition could include a communication, such as an article in a newspaper giving information on the law, which, while not intended to be an advertisement in the normal sense of the word, could incidentally publicise the solicitor in relation to his or her practice. To deal with this concern, amendments Nos. 8 and 10 make two changes of substance. Amendment No. 8 inserts the words "which is intended" before the reference to publicising and promoting. In other words, the publicising and promotion in relation to the solicitor's practice must be intended and this is to be judged from the actions of the solicitor and all the surrounding circumstances. Amendment No. 10 provides for the exclusion from the definition of "a communication which is primarily intended to give information on the law". The normal bona fide article discussing legal issues is excluded.
Concerns were also expressed about the definition of "inappropriate location" in section 1(10) of the Bill as passed by this House. Senators will recall that the Bill prohibits the publication of an advertisement at an inappropriate location. The term "inappropriate location" was defined to include certain places but the list was deliberately not exhaustive. To provide greater certainty, amendment No. 11 replaces the word "includes" with the word "means" and adds the phrase "other location of a similar character" to the definition, the character in question being that these are places where one would be more likely than usual to encounter persons who might wish to bring claims.
It should be noted also that "crematorium" is added to the list of specific places by this amendment. The amendment achieves the twin objectives of limiting what might be considered to be an inappropriate location to places of a particular kind, without at the same time tying it down to a specific list which might well prove to be inadequate in future circumstances.
Amendment No. 15 is consequential on amendment No. 40 which changes the commencement provision. Amendments Nos. 17 and 20 change the addition to the definition of "misconduct" provided for by section 4 of the Bill as passed by this House. Senators will recall that this section provided that it would be misconduct on the part of a solicitor to have any direct or indirect connection with any person whom the solicitor knows, or upon reasonable inquiry should have known, is acting or has acted in contravention of certain provisions of the Solicitors Acts. As passed by this House, it could have outlawed a normal solicitor-client relationship between a solicitor and such a person. Clearly this would be wrong and amendment No. 17 rectifies the position. Amendment No. 20, however, ensures that it will be misconduct on the solicitor's part if he or she accepts instructions from such a person, regardless of whether the person is a client, to provide legal services to another person. In other words, a solicitor should not accept the introduction of business from a person who has contravened the prohibition on unqualified persons acting as a solicitor or who has pretended to be a solicitor, or who has carried out activities reserved by law to solicitors, but a normal solicitor-client relationship with such a person is fully in order.
Amendment No. 21 renames the "Disciplinary Tribunal" the "Solicitors Disciplinary Tribunal" to clearly indicate the profession coming within its remit. In addition, the amendment doubles the size of the tribunal to cater for an increasing workload and the speedier processing of cases. Members of the tribunal will be appointed for a term of five years, renewable once, in the same proportions as at present, that is, two thirds will be solicitor members appointed by the President of the High Court after consultation with the Law Society and one third will be lay persons who will be appointed by the President of the High Court on the nomination of the Minister. A further new element in this amendment is that it provides that at least 40% of the solicitor members and 40% of the lay members must be women and at least 40% of each category must be men. This reflects long-standing Government policy on gender balance.
The new subsection (6), inserted by this amendment, authorises the Law Society to pay members of the tribunal reasonable travelling and subsistence expenses incurred in respect of their attendance at meetings of the tribunal or to pay members an annual sum in respect of those expenses.
Amendment No. 22 and some of the amendments which follow, notably Nos. 23, 26, 27, 30, 31 and 39, will add considerably to the effectiveness of the disciplinary regime for solicitors. Amendment No. 22 repeals and re-enacts section 7(2) and 7(3) of the Act of 1960, as substituted by the Act of 1994, with the following main changes: the disciplinary tribunal will be required to inform the Law Society as soon as practicable of the receipt of an application direct from a member of the public; the tribunal will be required to give the respondent solicitor an opportunity to submit observations before they decide whether there is a prima facie case. If, on receipt of the solicitor's observations, the tribunal finds there is no case for an inquiry, the parties are notified accordingly. If the tribunal finds that there is a prima facie case for an inquiry, the respondent solicitor and the applicant are informed of the date of the inquiry; the tribunal will be required to make a separate finding in respect of each allegation of misconduct made against the solicitor concerned and to give reasons for each finding; and the tribunal must have regard to any previous finding of misconduct made in relation to the solicitor when making recommendations to the High Court regarding the sanction which that court should impose.
Amendment No. 23 changes two subsections of section 7 of the Act of 1960, as substituted by section 17 of the Act of 1994. The new subsection (6) imposes additional requirements on the disciplinary tribunal in cases where, following an inquiry, it finds that there has been no misconduct on the part of a solicitor. First, the tribunal must inform the society of its finding where the application was made direct to the tribunal by a member of the public. Second, it must give reasons to the society, the respondent solicitor and, where appropriate, a lay applicant for its finding of no misconduct. Section 7(9), after this amendment is made, will require the tribunal, in deciding on the sanction it will impose on a solicitor in respect of whom a finding of misconduct has been made, to take into account previous findings of misconduct. This amendment also provides for a change in the maximum amounts which the disciplinary tribunal may order a solicitor, in respect of whom there has been a finding of misconduct, to pay to the compensation fund or to an aggrieved party. These amounts are being changed from £5,000 to €15,000 to reflect the rapid growth in incomes and not solely consumer price inflation since 1994.
Paragraph (c) of section 5 of the Bill, as passed by this House, provided that an order of the tribunal imposing a sanction on a solicitor shall be served as soon as possible and not later than 21 days after it is made. The disciplinary tribunal indicated to my Department that this time period could prove inadequate. Accordingly, amendment No. 24 changes the time limit of 21 days to 28 days. Amendment No. 25 is purely technical.
The purpose of amendment No. 26, which inserts two new subsections (12A) and (12B) into section 7 of the Solicitors (Amendment) Act, 1960, as substituted by section 17 of the Act of 1994, is to empower the Law Society or any person who has made an application to the disciplinary tribunal to appeal to the High Court against a finding by the tribunal that there is no prima facie case for an inquiry or there has been no misconduct on the part of the respondent solicitor. At present, while the respondent solicitor enjoys a right of appeal against a decision of the disciplinary tribunal to impose a sanction, the right of the society or the lay applicant to appeal is limited to the ground that the sanction imposed by the tribunal is inadequate or that the tribunal, in lieu of making its order, ought to have exercised its power to refer the matter to the High Court, which can impose a more severe sanction than the tribunal.
Section 5(d) of the Bill, as passed by this House, remedied that anomaly in part by affording the Society or the lay applicant a full right of appeal in cases where the tribunal has imposed a sanction itself. However, the new subsection (12A) will result in a situation where the complainant, whether a lay person or the society, will have a right of appeal on all aspects of the tribunal's work and not just the limited and unsatisfactory right of appeal that exists at present. Subsection (12B) stipulates that an appeal must be brought within a period of 21 days after receipt by the appellant of notification in writing of the tribunal's finding.
Amendment No. 27 repeals and re-enacts with certain additional requirements section 8(1)(a) and 8(1)(c) of the Act of 1960 as substituted by section 18 of the Act of 1994. The effect is to require the High Court, when imposing sanctions on a solicitor as a result of a finding of misconduct, to have regard to any previous finding of misconduct made in relation to that solicitor. The sanctions available to the High Court under section 8(1)(a) of the Act of 1960 include removal from the roll of solicitors, suspension from practice, restriction on the extent of practice, monetary penalties or censure. Having imposed a penalty, the High Court may, in addition, take a number of further measures under section 8(1)(c) of the Act of 1960. For example, it may direct that a solicitor make restitution to an aggrieved party.
Amendment No. 28 changes section 15 of the Solicitors (Amendment) Act, 1960, as substituted by section 25 of the 1994 Act. Section 15 deals with the powers of the disciplinary tribunal as to the taking of evidence in the course of an inquiry. The purpose of the subsections being inserted in section 15 by this amendment is to provide a mechanism to ensure that parties to an inquiry do not call witnesses whose evidence is not relevant or does not add materially to the other evidence available to the tribunal. In this way, I hope that witnesses are not put to unnecessary expense or that the work of the tribunal is not delayed. Under the new subsections, the parties to the inquiry can be required to furnish the tribunal with an outline of the evidence to be given by witnesses they propose to have summoned. If the evidence is irrelevant or does not add materially to the evidence to be given by other witnesses summoned to the inquiry, the tribunal can draw the attention of the party to its power under subsection (1C) to require the party to pay the expenses of the witness, up to a maximum of €10,000.
The purpose of amendment No. 29 is to amend the interpretation section of the 1994 Act to provide that the statutory powers which will be available to the Law Society when investigating a complaint from a member of the public will also be available to it when investigating a complaint by its registrar. The powers in question include the power to order a solicitor to produce documents, the power to apply to the High Court for an order compelling the solicitor to respond to correspondence and the power to compel a solicitor to make a contribution towards the cost of an investigation. The second and third of these powers are being provided by amendments Nos. 30 and 31. The amendments also provide that the number of complaints published annually in the gazette of the Law Society under section 22 of the 1994 Act will include complaints made by the registrar to the society. This amendment would be relevant in cases where the registrar becomes aware that an investigation would be warranted to protect the interests of clients though no complaint has been received from a client against the solicitor in question.
The purpose of the new section 10A, inserted in the 1994 Act by amendment No. 30, is to introduce an immediate and effective mechanism for dealing with the problem caused by certain solicitors who impede the investigation of complaints by the Law Society. It empowers the society to make an application to the High Court in cases where the solicitor fails to respond appropriately, in a timely manner or at all to correspondence from the society or fails to attend a meeting called by the society to consider a complaint. The High Court may make an order compelling the solicitor to respond appropriately or attend a meeting within a specified time. The High Court order may also censure the solicitor and require the solicitor to pay a money penalty.
The purpose of amendment No. 31 is to repeal and re-enact with amendments section 12 of the Solicitors (Amendment) Act, 1994, so as to empower the Law Society to impose sanctions on a solicitor who fails to co-operate in the investigation of a complaint and to require that solicitor to make a contribution towards the cost of the investigation. Subsection (1)(a)(i) repeals and re-enacts existing section 12(1) of the 1994 Act. It empowers the society to require payment from a solicitor of a sum not exceeding €3,000, which has been increased from £1,000, by way of contribution towards the costs incurred by the society in investigating a complaint of inadequate services or excessive charges under sections 8 or 9 of the 1994 Act. This provision only applies if the society has made a determination or given a direction under sections 8 or 9 of the 1994 Act.
In contrast, subsection (1)(a)(ii) is a new provision which applies where no such determination or direction of the society exists. This situation may arise where the society considers that the complaint is sufficiently serious to warrant referral to the disciplinary tribunal or where it has not been possible for the society to progress its investigation, and possibly make a determination or give a direction, due to non co-operation by the solicitor in question. The subsection provides that in such a case the Law Society may require a solicitor, who has been the subject of an investigation to pay a sum of up to €3,000 where the society has determined that the solicitor failed to respond appropriately, in a timely manner or at all, to a written request. Subsection (1)(b) extends these provisions beyond complaints about inadequate services and excessive fees to cases of alleged misconduct. It is open to the society to make an application to the disciplinary tribunal if it considers that there has been misconduct. The subsection provides that, in such a case, and prior to any proposed referral to the disciplinary tribunal, the Law Society may require a solicitor, who has been the subject of an investigation, to pay a sum of up to €3,000, where the society has determined that the solicitor failed to respond appropriately, in a timely manner or at all, to a written request.
Subsection (1)(c) empowers the Law Society, in addition to requiring a solicitor to make a contribution towards the costs of an investigation, or in substitution therefor, to issue a reprimand to the solicitor in question and to inform the complainant. This provision applies where the society is of the opinion that the complaint is justified but not sufficiently serious to warrant referral to the disciplinary tribunal or where the solicitor has failed to respond properly to correspondence from the society in the course of its investigation and the society has incurred cost as a result of this.
Amendment No. 32 repeals and re-enacts with amendments section 14(1) and (2) of the Solicitors (Amendment) Act, 1994, so as to extend the circumstances in which the society has power to inspect documents at a solicitor's place of business and to obviate the need for the society's authorised investigator to disclose to the solicitor or any employee of the solicitor the purpose of his or her attendance at the place of business where the society reasonably considers that such disclosure could prejudice the investigation. Section 14(1) of the 1994 Act, as it stands, empowers a person authorised by the society to attend at a solicitor's place of business without notice and to inspect documents for the purposes of investigating alleged misconduct. Subsection (1) of the new provision is intended to remedy two perceived lacunae in this provision. First, there are doubts as to whether the section as currently framed contemplates the investigation of complaints under sections 8 or 9 of the 1994 Act – complaints concerning inadequate professional services or excessive charges falling short of misconduct. Subsection (1)(b) rectifies any problem there may be in this regard. Second, the section as currently framed does not contemplate a situation where the society is aware of a general malaise in a solicitor's practice even though no allegation of misconduct has been made. Subsection (1)(c) is intended to ensure that investigative powers are available to the society in such cases.
Amendment No. 33 will increase the maximum amount which the compensation fund may pay to a client who has been the victim of dishonesty on the part of his or her solicitor from £350,000 to €700,000 and the minimum amount of assets in the fund from £1 million to €2 million. The policy underlying these changes is that regard should be had to the rapid growth in incomes and property values since the enactment of the 1994 Act, and not just consumer price inflation, while taking account of the fact that grants from the fund have for the most part been well below the current maximum of £350,000.
The purpose of amendment No. 36 is to insert a new section in the Bill to enable the disciplinary tribunal to consider an application brought by the Law Society alleging misconduct by an apprentice. Under statutory instrument, the education committee of the Law Society has powers to deal, not alone with the education and examination of apprentice solicitors, but also to inquire into alleged misconduct. The Law Society considers that, in the interests of the apprentice and the society, it is desirable that there is a statutory power to have allegations of misconduct by an apprentice dealt with by the disciplinary tribunal. It is envisaged that this provision would be used rarely and in serious cases. In such cases, it is important that the alleged misconduct is investigated by an independent body such as the tribunal, which can manifestly be seen to be free of any possibility of prior knowledge of the matters complained of. Senators will note that the tribunal's mode of proceeding in an inquiry into the conduct of an apprentice parallels, in general, that which applies in an inquiry into the conduct of a solicitor. At the conclusion of the inquiry and if there has been a finding of misconduct, the tribunal gives its opinion in its report to the High Court as to whether the apprentice is, by reason of the findings, a fit and proper person to be admitted as a solicitor at all or until such time as the Law Society or the President of the High Court is satisfied as to his or her fitness.
Amendment No. 37 inserts a new section dealing with the Lawyers Establishment Directive, 98/5/EC. This directive, passed by the European Parliament and Council in February 1998, entitles EU lawyers to practice law on a permanent basis in a self-employed or salaried capacity in any other member state under their home state professional title. Senators will note references in the definitions contained in the new section to the European Economic Area and to the Swiss Confederation Agreement. The latter agreement applies the directive as between the EU states and Switzerland and it is intended that the directive will be extended to the entire EEA in due course by a decision of the EEA Joint Committee.
A provision in primary legislation, as distinct from relying on ministerial regulations alone, is needed to implement the directive in Ireland because article 6.3 of the directive gives a discretion to member states to require lawyers, in certain circumstances, to take out professional indemnity insurance or to become a member of a professional guarantee fund and, as this is a discretion and not a requirement, if we were to provide for it by regulations alone, it might not-enjoy the constitutional immunity provided by Article 29.4.7 of the Constitution for measures necessitated by EU law. In addition, subsection (2)(b) states that regulations under the European Communities Act may also provide that the disciplinary regime applicable to Irish lawyers shall also apply to EU lawyers availing of rights under the directive and to Irish lawyers who go to another member state to practise under the directive. Constitutional considerations do not underlie subsection (2)(b) but the Minister has included it at the request of the Law Society who consider it the safest course in the interests of ensuring completeness and certainty.
Amendment No. 38 inserts a new section in the Bill to provide that, for the removal of doubt, a report of a case by a solicitor shall have the same authority as if it had been made by a barrister, for example, if the report is to be cited in court. There is a view that the current common law position is that only reports of cases written by barristers can be cited in court. Section 115 of the UK Courts and Legal Services Act, 1990, contains a similar provision to that of amendment No. 38.
Amendment No. 39 inserts a new section which will increase the maximum fine for summary offences under the Solicitors Acts generally from £1,500 to €3,000. This is the figure which the Attorney General advises is the appropriate maximum on summary conviction. The section increases the maximum fine where conviction is on indictment from £10,000 to €30,000 in line with the general approach which includes raising amounts to reflect the growth in incomes since these amounts were last set in 1994. The existing commencement provision in section 8(2) of the Bill as passed by this House is to the effect that the Act shall come into operation three months after its passing or on such earlier day as may be fixed by ministerial order. However, the Bill is now much extended compared with when it was last before the House.
As I have said, it has three main elements: firstly, the provisions on advertising which for the most part were in the Bill originally; secondly, many new measures designed to strengthen the disciplinary machinery which applies to solicitors and thirdly, the new section 20 to provide a basis in primary legislation for the full implementation of the EU lawyers establishment directive. The deadline for implementation of that directive was 14 March 2000 and section 20 needs to commence on the passing of the Bill. It is appropriate that the remainder of the Bill should be commenced as soon as possible by ministerial order and this will be the aim of the Minister for Justice, Equality and Law Reform.
Amendment No. 40 provides for these new commencement arrangements. Amendment No. 41 is technical in nature, dealing with the collective construction of the Acts, and amendment No. 42 is a technical amendment to the Long Title to reflect the fact that with the making of amendment No. 37, the Bill will facilitate the implementation of the lawyers establishment directive.
I welcome the Minister of State to the House. The number of amendments brought back to the Seanad is considerable and indicative of the times in which we live. They are detailed amendments for checking and tightening up procedures in relation to discipline and how professionals operate. It is a reflection of the times that for a profession which has traditionally been considered highly honourable and where honour was a tenet of operation, we need to legislate to empower the Law Society to be more effective in regulating itself. One would have thought that in a profession such as this self-regulation would be adequate, the fundamental qualities of honour, high-mindedness and professionalism would prevail and there would be no need for legislation. It is a reflection of our times that we need legislation to ensure that professionals act with propriety and that the profession itself can ensure that justice is seen to be done.
Solicitors hold a position of responsibility within society and the quality of the people who enter the profession is very important. There is a need for closer assessment of persons entering certain professions as the points system is not always the best at deciding who is admitted. There should be a character test. Anybody who applies to join the Garda Síochána must undergo a check on himself and his family and a test of his suitability to be a member of the force. That has always been the case and the same should be done in the legal profession. In some instances we have heard of in recent times this could have been useful.
The Bill before us is, in general, very welcome. It disappoints me that it must come before us but it is welcome because it is important that the public, especially clients of solicitors, is protected. Solicitors, more so than barristers, are at the coal-face dealing with the public. It is vital that the public is protected, particularly given the fiduciary relationship between client and solicitor which should not be abused and the particular responsibilities of the profession in relation to property, finance and general advice in a variety of areas. The client needs to be protected and solicitors should be aware of this. No more than in the case of politicians, we are here because of a handful of misdemeanours committed by a very small percentage of the profession. Unfortunately, that is why this legislation is required.
I will not repeat all that the Minister of State has said but some of the amendments are particularly commendable. I welcome the establishment of the solicitors' disciplinary tribunal and the gender balance involved but I am not sure that a proportion of two thirds from the profession is desirable. We might be better off with 50% so that it is not a question of people ruling themselves. I would prefer some balance in terms of the public at large. The provision about gender balance is particularly welcome and I look forward to seeing that in operation to see how effective it proves to be.
As a result of the variety of tribunals we have had over the past number of years, we have seen increasing evidence of misconduct of solicitors acting on behalf of clients, for example in dealing with property or assets. The enabling of representatives of the disciplinary tribunal to enter and search solicitors' offices in certain circumstances is important and welcome. Needless to say, this will not happen very often: it will be the exception rather than the rule. Nevertheless, the fact that the tribunal will have this power should be a disincentive for bad practice.
Amendment No. 22 concerns the rules introduced for the disciplinary tribunal and the way in which it is to conduct its business, which is welcome. The tribunal should do its business expeditiously, professionally and in the shortest time possible. If there is a prima facie case that requires an inquiry, the sooner the inquiry is out of the way and justice is seen to be done the better.
Regarding amendment No. 26, the Minister of State said "At present, while the respondent solicitor enjoys a right of appeal against a decision of the disciplinary tribunal to impose a sanction, the right of the society or the lay applicant to appeal is limited to the ground that the sanction imposed by the tribunal is inadequate". I am not sure what all that means and perhaps the Minister of State will elaborate on this in greater detail.
The compelling powers dealt with in amendment No. 29 are important. These include the power to order a solicitor to produce documents and to apply to the High Court to compel him or her to respond to correspondence and to appear at and co-operate with the investigation. We have heard of situations where the Law Society has become involved and where members of the public and lay people in general have been dissatisfied with the response from the society. If this helps the Law Society to ensure that complaints against solicitors are dealt with in a much more professional way, it is extremely welcome.
Amendment No. 32 deals with the introduction of an immediate and effective mechanism for dealing with the problem caused by certain solicitors who impede the investigation of complaints by the Law Society and is very welcome. Any law professional is not a law unto himself. He is a law officer, in effect, of the State and he has an obligation to his clients and to the State to see that justice is done. For a solicitor to impede or hinder the course of justice is a very serious matter and should be seen as such. Appropriate sanctions should be taken against anybody who attempts to impede or obstruct an investigation. The extension of the circumstances under which the society has the power to inspect documents at a solicitor's place of business is also welcome as it fills gaps which are in the system at the moment.
The increase in the compensation fund from £350,000 to €700,000, and the doubling of the minimum assets in the fund from £1 million to €2 million, is welcome. It seems like a lot of money but we hear of cases involving phenomenal amounts. Solicitors are setting up their own insurance bodies but are having difficulties meeting insurance claims. In the past the Law Society compensation fund was adequate but it now increases dramatically every year as a result of the number of negligence and other misdemeanour claims against solicitors.
Amendment No. 36 gives powers to the tribunal to investigate apprentices. We should be cautious because an apprentice is just learning the trade. It is strange that the Law Society believes there is a need to introduce statutory powers to deal with apprentices. They are not yet qualified practitioners and it is questionable that they should be referred to in the legislation. These are inexperienced people who could be scapegoated for a mishap in a practice. Does the Minister have information from the Law Society that could justify that course of action? It is unwelcome because it deals with those who are young and inexperienced.
Directive 98/5/EC pertaining to amendment No. 44 is interesting. We are obliged to introduce it but how effective can it be and how can it operate? There are different legal systems across the EU. The British and Irish systems are similar but the French legal system is very different. This may not work except in areas of European law. Company and constitutional law differs across the European Union. It is not a practical proposition because of the differences across the EU.
Amendment No. 45 will insert a new section that provides for the removal of doubt – a report of a case by a solicitor should have the same authority as it would had it been made by a barrister. I have wanted to see this happen for a long time. Most solicitors and barristers have similar legal qualifications – they have a primary degree and receive similar training from two different agencies, although some solicitors may have more legal expertise. The division of powers between the two jurisdictions in Blackhall Place and the Kings Inns is needless.
The Minister's amendments are welcome. I regret that we live in a society that demands such legislation but we have a responsibility to protect the public and the Law Society believes these statutory powers are necessary to enable it to regulate its practitioners.
I welcome the Minister to the House. I am impressed with the range and scope of her talents – she can handle many different topics.
I would like to be able to say that things have improved in Irish law since we last saw this Bill in the Seanad in 1998. If anything, things are worse. Last week, I read a John Grisham novel called "The Summons". It is an horrific story concerning what has happened in the United States in the legal world. It deals with ambulance chasers and the other terrible incidences that happen when things go wrong with the law. That is happening in Ireland and it makes this Bill wel come, because it takes some of the steps we hope will do something to protect the law.
There is now an industry of cowboy solicitors who, in pursuit of personal profit, have wrought havoc on the legal system and created a situation which may be unsustainable. The level of personal injury claims that have been made, and the amounts being paid out in respect of those claims, are way out of line in comparison with the experience of other countries. Looking at the United States, however, it is possible to see the trend and where we are likely to end up.
We could argue that this trend is caused by the envy created by economic success. It is a backlash from those who believe they have not shared in the wealth that has been created over the last ten years. When one looks deeply into the situation, however, it is a totally unprincipled act of profiteering by a cabal of solicitors who are exploiting the law to make a quick buck not for their clients, but for themselves. Businessmen are experiencing major problems obtaining insurance cover because of this.
At the heart of the issue is the way solicitors are paid. For that reason I welcome amendment No. 7. The fact that the Minister found it necessary to insert the word "crematorium"– we did not even think of that four years ago when we looked at this Bill – is a reminder of the way things are changing.
Senator Taylor-Quinn is right, there are not many of these solicitors but their numbers are growing and they are becoming more vocal. Most of them work on a no foal, no fee basis, so it costs the client nothing if the injury claim does not succeed. They have nothing to lose so they are chancing their arm but they have everything to gain if a settlement is made. We should consider if the practice of charging legal fees in this way should be banned. We have not done that here, although I would like to have seen such provision in the Bill. We must restore balance.
Amendment No. 17 covers misconduct, an area where the balance at present is all on one side. The people who benefit most are not the clients, but the solicitors. We must ensure we do nothing to inhibit the making of genuine claims as it is right that people who genuinely suffer personal injury are compensated appropriately. However, nobody now considering the position, which will get worse in the future, could possibly argue that all claims are justified.
To be fair, the cowboy solicitors in question are exploiting circumstances which other people have made easy for them. In the past, the courts were much too lenient and trusting of dubious evidence in many personal injury claims. This in turn has led insurance companies into the fatal temptation of settling even when they do not believe their clients are in the wrong because they have justifiable fears that the verdict could go against them. I am not referring to just a few fat cats or big companies that can afford to pay or the faceless insurance companies about which nobody really worries.
The long-term result of this unsustainable position, a point which, I believe, we have reached, is that the community as a whole pays. If an unacceptable cost burden is placed on the community, somebody ultimately must pay and this is done through higher costs and lost competitiveness. As has been amply demonstrated by figures released in recent days, we are already struggling to keep our competitiveness. We play around with that at our peril.
Given the large number of solicitors in the two Houses, it is not easy to say boo to the legal system. Sooner or later, however, our laws will have to face up to the fact that we have allowed a monster to grow in our midst. If we do not slay it when we have time, which is now, it will devour us. I welcome the changes introduced by the Bill and while I am disappointed it has taken four years to reach this stage, the delay has benefited the legislation. I congratulate the Minister for, I hope, enacting this Bill because it is one step, if a small one, in the right direction.
I thank Senators for their consideration of the Bill. Like them, I must remark on the timescale of its passage. I remember speaking on it as a backbencher in the Dáil in 1998 when I quoted extensively from the type of advertising featured in The Golden Pages. Now, four years later, we are addressing a completely different aspect of the same Bill from a different perspective. This shows the type of quality assurance people here are seeking in relation to everything, in particular, the professions. Having discussed the issue earlier as it applies to doctors, we are now considering it in relation to the legal profession.
People place great store by and faith in their solicitor. As Senator Taylor-Quinn stated, people have most contact with solicitors, not barristers. Given their strong reliance on them, it is appropriate that there should be a statutory disciplinary regime in place which is regulated in a proper manner. While I am not implying that all solicitors need it, the regime is necessary not just for the rogue solicitors – cowboy solicitors as they have been described here – but for the good and protection of the profession generally as well as that of clients.
In many different professions and areas of work, we and the professionals themselves tend to look towards self-regulation. The model employed here is the one used in other areas. Two thirds of the disciplinary tribunal will be drawn from the profession with the remaining third drawn from the lay professions. This gives due recognition to the expertise within the profession as well as the independence of the lay people who will be involved.
Senator Taylor-Quinn asked about the right of appeal under amendment No. 26. The amendment extends the limited grounds on which a person making a complaint can appeal and, as such, gives him or her more rights in this regard. It enables people to appeal where there is no prima facie case or where it has been found that there has been no misconduct and thus redresses the current imbalance which is clearly in favour of the other side.
Specific questions were also asked about apprentices. Earlier, I made it clear that this provision will be very rarely used. However, apprentices are given significant responsibility in solicitors' offices. Where there is misconduct, it will be judged in a way that ensures a person does not suffer by virtue of being inexperienced, not properly supervised or being asked to do more than that of which he or she is capable. While these factors will be taken into account, the Law Society was also anxious to ensure apprentices are included where very serious matters arise. Equally, however, it is noteworthy that instead of perhaps ruling that an apprentice can never become a member of the profession, a longer timescale may be imposed. The apprentice is, therefore, being offered protection.
Mutual recognition within the European Union is another interesting issue. It is important that one must practise under the title acquired in one's home country, which makes it easy for other countries to check one's qualifications. This links in to the wider issue of mutual recognition of educational qualifications which we already have in the European Union. Bearing in mind that only two countries have the common law system, the question of how people from these jurisdictions would fare in other European countries is a matter of market demand. Nevertheless, it is important in the context of the recognition of qualifications and professions that it is included.
As Senator Quinn pointed out, despite giving extensive consideration to advertising by solicitors when the Bill was first introduced, we felt it necessary to include an extra word which none of us considered at the time. This shows how quickly society is moving and how alert we need to be to protect people.
Insurance and costs are issues for another day which need to be considered to protect clients and the profession. The Bill originally introduced in 1998 and finally making its passage through the Seanad in 2002 has been considerably improved and expanded in the intervening period. It is a very extensive Bill which will result in a better profession and better protection for clients. I thank Senators for their consideration.
Before we proceed, I hope Members will not mind if I raise the resignation of Senator Tom Fitzgerald, with whom I had many dealings. He was a tremendous Senator who was very popular and thorough. When he spoke on marine matters or his beloved issue of fishing, he brought real knowledge to bear and Ministers from both sides and officials listened carefully. I extend my best wishes to him, Bridie and their family.