I move amendment No. 25:
In page 6, to delete lines 43 to 47, and in page 7, to delete lines 1 to 8 and substitute the following:
"5.-The Act of 1960 is hereby amended in section 7 (as substituted by section 17 of the Act of 1994) in the following respects:
(a) by the substitution of the following subsections for subsections (2) and (3):
'(2)(a) Where an application in relation to a solicitor (in this section referred to as the “respondent solicitor“) is duly made under this section, the Disciplinary Tribunal shall-
(i) where the Society is not the applicant, inform the Society as soon as practicable of the receipt of the application, and
(ii) before deciding whether there is a prima facie case for inquiry:
(I) send a copy of the application and of any accompanying documents to the respondent solicitor, and
(II) request that any observations which he or she may wish to make on the application be supplied to the Disciplinary Tribunal within a specified period.
(b) If, after receipt of the respondent solicitor’s observations or on the expiration of the specified period, the Disciplinary Tribunal find that there is no prima facie case for inquiry, they shall so inform the applicant, the Society (where the Society is not the applicant) and the respondent solicitor and take no further action in relation to the application.
(3) If the Disciplinary Tribunal find that there is a prima facie case for inquiry, the following provisions shall have effect:
(a) they shall proceed to hold an inquiry and notify the respondent solicitor and the applicant (and, where the Society is not the applicant, the Society) of the date on which it is to be held;
(b) when holding the inquiry the Disciplinary Tribunal shall-
(i) consider each allegation of misconduct made against the respondent solicitor, and
(ii) make a separate finding in respect of each such allegation;
(c) on completion of the inquiry the Disciplinary Tribunal shall specify in a report (which shall include a verbatim note of the evidence given and submissions made) to the High Court-
(i) the nature of the application and the evidence laid before them,
(ii) the finding made on each allegation of misconduct and the reasons therefor,
(iii) any other matters in relation to the respondent solicitor which they may think fit to report,
(iv) in case they find that there has been misconduct on the part of the respondent solicitor and they have not made, and do not intend to make, an order under subsection (9) of this section-
(I) their opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitor's profession, having regard to their findings, and
(II) their recommendations as to the sanction which in their opinion should be imposed, having regard to their findings, to any finding of misconduct on the part of the respondent solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any order made by the Court under the Solicitors Acts, 1954 to 2001, in respect of the respondent solicitor, and in that case the Society shall bring the report before the Court.’,”.
This amendment is in substitution for the amendment to section 7 of the Solicitors (Amendment) Act, 1960, which is contained in section 5(a) of the Bill, as passed by the Seanad. It has arisen on the basis of detailed consultations with the Law Society of Ireland and the disciplinary tribunal and is one of a number of amendments which I am proposing which are intended to strengthen the disciplinary machinery for the investigation and determination of allegations of misconduct against solicitors.
My aim in proposing amendments to the disciplinary provisions in the Solicitors Acts is to provide as effective a mechanism as can be put in place to deal with solicitors who are non-compliant, whether their misconduct consists of breaches of the provisions on advertising or any other act of misconduct.
The disciplinary tribunal is empowered, under section 7 of the Solicitors (Amendment) Act, 1960, to investigate allegations of misconduct against a solicitor. Either the Law Society itself or a member of the public can make an application to the tribunal where, following an inquiry, the tribunal finds that there has been misconduct it makes a report to the High Court. That report either informs the High Court that the tribunal itself is imposing a sanction or, where the misconduct warrants it, recommends to the High Court that a more serious sanction, such as removal from the roll of solicitors or suspension from practice should be imposed.
The revised amendment repeals and re-enacts subsections 7(2) and 7(3) of the Act of 1960, with the following main changes: (a) the disciplinary tribunal will be required to inform the Law Society, as soon a practicable, of the receipt of an application direct from a member of the public; (b) and the tribunal will be required to give the respondent solicitor an opportunity to submit observations before they decide whether or not 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 partners are notified accordingly. If the tribunal find there is a prima facie case for an inquiry, the respondent solicitor and the applicant are informed of the date of the inquiry; (c) the tribunal will be required to make a separate finding in respect of each allegation of misconduct made against the solicitor and to give reasons for each find; (d) they will be required to include with their report to the High Court a verbatim note of the evidence given and submissions made in the course of its hearings as previously provided for in paragraph (a) of section 5 of the Bill as passed by the Seanad; and (e) the tribunal must have regard to any previous finding of misconduct made in respect of the solicitor when making recommendations to the High Court regarding the sanctions which that court should impose.
I will deal with each of these five new requirements in turn. The first requirement, as set out in subsection (2), imposes an additional obligation on the disciplinary tribunal to inform the Law Society as soon as practicable of the receipt of an application directly from a member of the public. There is no obligation on the tribunal to provide this information for the society at present where a complaint is made directly by a member of the public. As a result, the society may not become aware of the fact that a complaint has been made.
It is considered appropriate that the society, which has overall responsibility for the profession, should be made aware of all complaints made against a solicitor. The tribunal will be obliged to give a respondent solicitor an opportunity to make observations on the application before deciding whether there is a prima facie case against him or her. This provision reflects the decision of Mr. Justice Geoghegan in the Supreme Court in the case of O’Callaghan v. the disciplinary tribunal, Ireland and the Attorney General, delivered on 2 February 2001. While the decision was in favour of the tribunal in the particular circumstances of the case, Mr. Justice Geoghegan said the solicitor must be notified of the complaint and given an opportunity of responding to it, and that notification and any response to it should be before the tribunal before it makes its decision as to whether there is a prima facie case for the inquiry. I understand this practice is followed by the tribunal as matters stand, but it is desirable to reflect this essential element of fair procedure in the Bill, which sets out comprehensively the steps that the tribunal is to take in dealing with an application for an inquiry into alleged misconduct.
The third requirement, as set out in subsection (3)(b) and subsection (3)(c)(ii), imposes an obligation on the tribunal to make a separate finding in respect of each allegation of misconduct made against the solicitor concerned and give reasons for each separate finding. The position at present is that where the society or a member of the public brings a number of allegations of misconduct to the tribunal, and the tribunal enters upon an inquiry in respect of them, the tribunal is not required under existing legislation to make a separate and distinct finding in respect of each allegation of misconduct. It is important that separate details of each finding and the reasons therefor are given. This is because the complainant or the society, as well as the respondent solicitor, will have a right of appeal to the High Court.
The fourth requirement, as set out in paragraph (c) of the new subsection (3), also imposes an obligation on the tribunal to include in its report to the High Court a verbatim note of the evidence given and submissions made to it in the course of its hearings. Because the full transcript of the proceedings is not, under section 7 of the 1960 Act, made available to the High Court, a challenge by way of judicial review by either the applicant or respondent solicitor as to the accuracy of the tribunal’s report could arise. The new provision will eliminate this possibility.
The fifth new requirement, as set out in subsection (3)(c)(iv), imposes an obligation on the tribunal to take into account any previous findings of misconduct made in relation to a solicitor whether by the High Court or the tribunal or its predecessor, the disciplinary committee, in recommending to the High Court a sanction that should be imposed. Where the tribunal makes a finding of misconduct against a solicitor, it has the power to impose a sanction, under section 7(9) of the 1960 Act. It is empowered, for example, to advise, admonish or censure that solicitor and order him or her to pay a sum not exceeding £5,000, which will be changed to €15,000 by amendment No. 26, to the compensation fund of the society and/or an agreed party. In more serious cases, the tribunal is empowered to refer the matter to the High Court, which has the power, inter alia, to strike the name of the solicitor off the role, suspend him or her from practise for a specified period of time or place restrictions on his or her practice.
Under the present law, there is no provision for imposing sanctions or account to be taken of any previous findings of misconduct. The amendment will require the tribunal to take account of previous findings of misconduct when making a recommendation to the High Court with regard to the sanction that should be imposed in the current case. This is in keeping with amendments I will be moving later for account to be taken of previous findings of misconduct when the tribunal is imposing the penalties available to it and when the High Court is deciding on sanctions in the serious category of cases brought before it.