Solicitors (Amendment) Bill, 1998 [Seanad]: Committee Stage.

I welcome the Minister for Justice, Equality and Law Reform, Deputy O'Donoghue, and his officials.

NEW SECTIONS.

Amendments Nos. 1, 4, 5, 15, 16, 17, 19, 22, 23, 39 and 42 and related and will be discussed together.

I move amendment No. 1:

In page 3, before section 1, to insert the following new section:

1.-In this Act-

'Act of 1960' means the Solicitors (Amendment) Act, 1960;

'Act of 1994' means the Solicitors (Amendment) Act, 1994;

'Disciplinary Tribunal' means the Solicitors Disciplinary Tribunal established by section 6(1) (as substituted by this Act) of the Act of 1960, and references to the Disciplinary Tribunal in the Acts of 1960 and 1994 shall be construed as references to the Solicitors Disciplinary Tribunal;

'Minister' means the Minister for Justice, Equality and Law Reform;

'Principal Act' means the Solicitors Act, 1954.".

These are primarily drafting amendmentsproviding for the insertion of a standard interpretation of the provisions in the Bill. The purpose is partly to obviate the need to repeat the full titles of the Act referred to in the provisions of the Bill. Amendments Nos. 4, 5, 15, 16, 17, 19, 22, 23, 39 and 42 are consequential on amendment No. 1.

Amendment agreed to.

I move amendment No. 2:

In page 3, before section 1, to insert the following new section:

2.-Section 49(1) (as substituted by section 61 of the Act of 1994) of the Principal Act is hereby amended by the substitution of the following paragraph for paragraph (q):

(q) the solicitor has failed to satisfy the Society that he or she should be issued with a practising certificate or a practising certificate not subject to specified conditions, having regard to all the circumstances, including, where appropriate-

(i) the financial state of the practice,

(ii) the number and nature of complaints made to the Society, either alleging misconduct by the solicitor or under section 8 or 9 of the Solicitors (Amendment) Act, 1994, within the preceding two practice years, or

(iii)the need adequately to protect or secure the interests of the solicitor's clients.'.".

The new section 2 as introduced by this amendment will amend section 49 of the Solicitors Act, 1954, as substituted by section 61 of the 1994 Act. The section deals with a wide range of situations in which the Law Society issues, subject to specific conditions, or refuses to issue, a practising certificate. The amendment repeals and re-enacts paragraph (q) and section 49, subsection (1) of the Solicitors Act, 1954. Its purpose is to better protect clients and solicitors by extending the circumstances by which the Law Society may either refuse to issue a practising certificate or issue a practising certificate subject to conditions. At present paragraph (q) allows the society to refuse to issue a practising certificate unconditionally where a 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 provided for in the amendment. First, paragraph (q)(ii) covers cases of the Law Society’s concern at the number and nature of complaints made to it about a solicitor during the preceding two practising years. It has become apparent that the existing provision is inadequate in cases where a series of specific complaints are made against a solicitor. The solicitor may deal with each complaint as it is notified to him or her by the society to the satisfaction of the particular client. However, the constant series of complaints and their nature may be more than sufficient reason for one or more conditions to be attached to the issuing of a practising certificate or for the society to refuse to issue a certificate.

Second, paragraph (q)(iii) of the amendment covers cases where the society has concerns about the need to protect adequately or secure the interests of a solicitor’s clients. In either case a solicitor must be given an opportunity to satisfy the Law Society regarding the circumstances of the case, and he or she will, as at present, have a right of appeal to the High Court.

I move amendment No. 1 to amendment No. 2:

In subparagraph (ii) of the paragraph proposed to be substituted for paragraph (q) of section 49(1) of the Principal Act, in the first line, after “of” to insert “valid”.

I have no difficulty in principle with the amendment proposed by the Minister, but I have one concern. In the context of paragraph (q)(ii), in so far as it will allow the Law Society to withhold the granting of a practising certificate, there is a reference to having regard to “the number and nature of complaints made to the Society, either alleging misconduct by the solicitor or under section 8 or 9 of the Solicitors (Amendment) Act, 1994, within the preceding two practice years.” The amendment I am proposing is to insert before “complaint” the word “valid.” That would mean the number and nature of valid complaints made to the society would be considered. Numbers of complaints rather than validity of complaints, as the Minister is proposing, could have a fundamental impact on a solicitor.

I do not know if the Minister can provide statistics indicating the number of vexatious or frivolous complaints made against practising solicitors. Some such complaints are made by clients. On occasion complaints are made against solicitors by people against whom they have acted on behalf of a client. From time to time a person who has lost out in litigation blames the solicitor who acted for the other party, and the Law Society receives complaints in this context. I am aware that in the family law area, when sisters act for wives who have been the victims of violent husbands and succeed in having them barred from the family home or getting custody of a child, it is not unknown for the husband against whom the solicitor acted to make a complaint to the Law Society. In the issuing of certificates the society should be able to have regard to the number of complaints received by any individual practising solicitor, but it would be quite wrong if the volume of complaints was,simpliciter, taken into account. There should be a provision regarding the validity of the complaints.

I can give a theoretical example of what might otherwise occur - I do not know if it has happened in the past. If a person felt locked out in litigation or that a solicitor had not represented them properly in dealing with a conveyancing transaction or other area of the law and they decided to target the solicitor in some form, it might ultimately be the view of the Law Society if the complaint was investigated that the solicitor had behaved perfectly correctly. However, if a person gets ten, 15 or 20 people to write to the society to complain about the same matter, even if the complaint was not valid, the society would have discretion not to issue a practising certificate due to the volume of complaints and the provision in this section. I am not saying the society, or members of its committee, would behave improperly in any way. Nevertheless there is a possibility of a wrong being done to an individual solicitor in circumstances where people decided to wrongly target him or her for something they allege was done improperly when in fact it was done correctly. I suggest the Minister give serious consideration to the amendment to his amendment by the addition of the word "valid."

The amendment to the amendment seeks to insert the word "valid" in my amendment before "nature" in order that paragraph (q)(ii) would require the Law Society to have regard to the number and nature of valid complaints made against a solicitor in deciding whether to issue a practising certificate. This change is not necessary since the nature of complaints clearly encompasses whether they are valid, as well as their seriousness. It is not possible to envisage that the society would be dissatisfied with a solicitor and consider not granting him or her a full practising certificate if the only factor at issue was whether one or more complaints were valid.

Amendment to amendment, by leave, withdrawn.
Amendment No. 2 agreed to.

I move amendment No. 3:

In page 3, before section 1, to insert the following new section:

3.-The Principal Act is hereby amended in section 66 (as substituted by section 76 of the Act of 1994) by the substitution of the following for subsection (11):

'(11) An authorised person who attends pursuant to subsection (10) of this section at a place of business of a solicitor shall inform the solicitor or any clerk or servant of the solicitor of the purpose of the attendance as specified in that subsection, except where the Society reasonably consider that to do so could prejudice the exercise of any of the Society's functions as so specified, and may in pursuance of that purpose require the solicitor or any such clerk or servant to do one or more than one of the following:

(a) to make available for inspection all or any part of the solicitor’s accounting records;

(b) to furnish such copies of those records as the authorised person deems necessary to fulfil the said purpose;

(c) to give such written authority addressed to such bank or banks as the authorised person requires to enable the authorised person to inspect any account or accounts opened, or caused to be opened, by the solicitor at such bank or banks (or any documents relating thereto) and to obtain from such bank or banks copies of such documents relating to such account or accounts for such period or periods as the authorised person deems necessary to fulfil the said purpose.’.”.

This amendment amends section 66 of the Solicitors Act, 1994, as substituted by section 76 of the 1994 Act. This section deals with accounting requirements for solicitors. Regulations made by the Law Society under section 66 prescribe the duties of a solicitor with regard to maintaining bank accounts for clients' moneys and the keeping of accounting records and provide for the appointment of authorised persons to inspect solicitors' accounts. The purpose of the amendment, which repeals and re-enacts section 66(11), is 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 solicitor's offices where the society reasonably considers that such disclosure could prejudice the exercise of the society's functions.

The Law Society, which requested that this amendment be included in the Bill, believes the existing obligation to inform a solicitor of the purpose of attendance by an authorised officer in all circumstances is an undue restriction on the society's investigative function which could operate to the detriment of the proper discharge of its regulatory responsibilities in ensuring solicitors comply with the regulations on moneys and accounts. As Deputies will note, the society's view that disclosureof the purpose of the authorised officer'sattendance could prejudice the exercise of the society's function must be one which is reasonable.

Amendment agreed to.
SECTION 1.

I move amendment No. 4:

In page 3, line 7, to delete "Solicitors Act, 1954," and substitute "Principal Act".

Amendment agreed to.

I move amendment No. 5:

In page 3, line 10, to delete "Solicitors (Amendment) Act, 1994" and substitute "Act of 1994".

Amendment agreed to.

I move amendment No. 6:

In page 3, between lines 13 and 14, to insert the following:

"(a) suggests that no fees or costs are payable unless a case is successful,”.

This amendment deals with advertising based on the premise of "no win, no fee" and seeks to include the words "suggests that no fees or costs are payable unless a case is successful" in the list of prohibitions. It would prohibit advertisements which suggest that no money is payable unless the outcome of the case is successful. This kind of advertising has caused difficulties for people. There are difficulties in regard to the proliferation of cases taken, sometimes on a speculative basis, and the accusation of "ambulance chasing" by certain solicitors. The amendment would be an addition to the Bill.

Amendment No. 6 seeks to prohibit "no foal, no fee" advertising by solicitors in regard to claims for damages. I rejected a similar amendment during Committee Stage in the Seanad. Therefore, I do not propose to accept this amendment.

When preparing the Bill the question of "no foal, no fee" advertising was considered. The Bill addresses that issue. In this regard I direct the attention of Deputies to section 1 of the Bill as passed by the Seanad, particularly paragraphs (h) and (i) of subsection (2) which are to be inserted in section 71 of the Solicitors Act, 1954. Paragraph (h) prohibits advertising which “expressly or impliedly refers to claims or possible claims for damages for personal injuries, the possible outcome of claims for damages for personal injuries, or 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 the provision of the kind contained in the amendment is not necessary in light of the clear provisions contained in the Bill. These provisions will prohibit "no foal, no fee" advertising in personal injuries cases. That means there is no need for the amendment and, therefore, I do not propose to accept it.

I wish to raise a question of a practical nature with the Minister. Over the years people who have not qualified for civil legal aid but have very valid reasons for claiming damages in respect of alleged wrongs inflicted on them or their children have been represented by solicitors and counsel in the High Court and Supreme Court in circumstances where their solicitor and counsel may have agreed that if they were unsuccessful they would not press for fees. These people would never be represented without that type of assistance. Many people have successfully asserted constitutional claims or recovered very substantial damages, sometimes in paraplegic injury claims, who would not have been able to go to court with any peace of mind if they inevitably had to pay fees to their lawyers if they were unsuccessful.

It is important to tease out this issue because it affects many people. I presume the provision contained in the Bill prevents people from advertising "no foal, no fee" type litigation but it does not prevent a solicitor who is approached by a needy litigant with a proper case from saying to that litigant: "Well, look, we appreciate the justice of your position. We know you are not in a position to afford to pay for legal counsel, but nevertheless we will represent you. Should you be successful, we would expect fees to be paid. Should you not be, we would not." On the assumption that what is proposed here does not interfere with that concept, I want to raise a particular issue with the Minister. Let us assume seven or eight people have suffered serious personal injuries as a consequence of negligence by the State. Let us take it a stage further and assume a large number of people contracted serious illnesses due to the alleged negligence of the blood bank. If a firm of lawyers had the type of conversation I just described with one person, issued proceedings in circumstances different from the current circumstances, which excludes the current tribunal, and entered into this sort of arrangement with the client and if the client made it known to other people who were equally affected by the same alleged negligence and whose health was equally impaired, could this be regarded as implicitly advertising? If a law firm or solicitor, for example, agreed to act for a succession of clients who had similar claims arising out of similar incidents on a "no foal, no fee" basis and if it became known they were doing this, in the absence of traditional advertising on television or newspapers but simply by word of mouth, could they be in breach of the provision in section 1(2)(h)? If, for example, their acting on behalf of people became known and newspaper articles were written referring to the fact that Joe Bloggs and Company, Solicitors, were representing ten people who allege certain negligence and are looking for damages and personal injuries, could they in those circumstances find themselves in breach of this provision?

I want to address the issue raised by the Minister. He acknowledged that he wants to deal with "no foal, no fee" advertising which encourages people to take their chances in a way which is unhelpful to the maintenance of justice and results in litigation which very often clogs up the courts system. This sometimes raises people's expectations of windfalls which are unreal. It would be a good thing if we did not have that type of advertising. Section 1(2) deals with prohibiting advertisements by solicitors which are in bad taste, would reflect unfavourably on other solicitors, would bring the solicitors' profession into disrepute and so on.

I want to add the "no foal, no fee" case which I outlined. The Minister said the matter is dealt with in paragraph (h). I am not certain that is the case but I am willing to accept the argument if he can tell me that the type of advertising I am referring to is expressly covered. What is not at issue is people taking pro bono cases and giving advice pro bono - many do that anyway, which is good. Even taking a case on a “no foal, no fee” basis would not be prohibited under the Bill. What is suggested is that a solicitor would not be able to publish the fact - in other words, trawl for business.

Perhaps we will adjourn for the vote before the Minister replies. If the Minister is agreeable, the meeting will adjourn until next Tuesday.

I agree to that.

I thank the Minister and his officials. The secretariat will liaise with the Minister's office and the party spokespersons regarding the next meeting.

The Select Committee adjourned at 4.20 p.m.