Vol. 3 No. 2
I welcome the Minister for Justice, Equality and Law Reform and his officials to the meeting. The Select Committee is resuming consideration of Committee Stage of the Bill on amendment No. 11, which was moved but on which no decision was made.
SECTION 1.
I was dealing with the definition of advertisement in the Bill. I am concerned that the definition is so broad that a solicitor involved in litigation who writes an article, makes a statement for publication, gives a lecture, participates in a seminar or conducts an interview could be seen as acting contrary to the Bill's provisions. I do not object to the general principle of the Bill but the broad definition of advertisement is contrary to the constitutional right to freedom of expression as it constitutes curtailing the rights of a solicitor in a manner that is contrary to the public interest. A solicitor engaged in civil litigation who writes an article for a newspaper, perhaps highlighting a particular injustice and describing the legal rights and entitlements of individuals in regard to that issue, could be subject to complaint under this provision and be accused of advertising. A solicitor involved in civil litigation of general public interest, who is asked to broadcast on radio or television to explain the background of the case and its implications for the people could find him or herself in difficulties under the provisions of this Bill.
The section is too broad, is contrary to the Constitution and is at variance with the European Convention on Human Rights. Its implications have not been given adequate consideration outside of a particular focus in 1998 when the Bill was published. It has not been given consideration by the Incorporated Law Society as to its implications for its individual members. If it remains unchanged, the President would be justified in referring it to the Supreme Court for pronouncement on its constitutionality.
I urge the Minister to accept this amendment to delete certain parts of that subsection of the Bill. He will not do that and I will not withdraw the amendment because its implications are not being taken seriously. This is a provision that would be applauded by President Mugabe of Zimbabwe who would think it a good thing that lawyers not be allowed to broadcast on the issue of people's rights and their entitlement to go to court. It is an extraordinary provision which is out of sync with the Bill's supposed intentions. I attach no ill will or motive to the Minister but do not believe it was given the examination it deserves, and its possible broad application, in the manner I describe, has not been adequately considered by the Minister, the Law Society or the solicitors' profession. If the implications were more widely understood, there would be uproar. I will put it to a vote.
The Minister indicated on the last occasion that he would consider this for Report Stage as he would not have had an opportunity to deal with it before then.
I have no insight into the jurisprudential preferences of Mr. Mugabe, but I cannot accept this amendment. The definition of advertisement is a general one, meaning any communication which publicises or promotes a solicitor, and the matters mentioned in subsections (a) to (c) are but examples of what it includes. Clearly, an article or statement for general publication can be an advertisement under any understanding of that word. Merely deleting the reference from the illustrative list of what constitutes an advertisement does not mean that such an article or statement is not one. The definition is a general one.
Deputy Shatter has concerns about this section, which he also expressed in the debate last Tuesday. In those circumstances, although I do not agree with him, I am asking the Attorney General for advice as to whether or not the Bill could have the effect of prohibiting the publication of articles, the giving of interviews and so forth, on legal issues by solicitors because, as I explained on many occasions, it is not my intention to close down the Law Society Gazette or suppress any material concerning legal matters. If the Attorney General should advise that an amendment is necessary, I will table it on Report Stage. I cannot be more reasonable, given that I fundamentally disagree with Deputy Shatter.
On the basis of the Minister's fundamental disagreement and the fact that the committee is supposed to be legislating from time to time and not merely deferring everything to Report Stage which produces an extremely truncated debate in the House, likely to be guillotined, I will not withdraw the amendment.
I move amendment No. 12:
In page 5, between lines 35 and 36, to insert the following:
"(b) any electronic address or any information provided by the solicitor that is accessible electronically,”.
I move amendment No. 13:
In page 5, to delete line 37.
This is a similar issue and I dealt with it in my previous comments. A solicitor who makes a presentation, delivers a lecture, participates in a seminar or conducts an interview will violate the provisions of this legislation. It is a completely bizarre proposal which has not been given adequate consideration. I am opposed to it and I am pressing the amendment. While I know the Minister has a majority of members and that should we have a more formal vote than a voice vote we will automatically lose, I protest against this provision, which is completely crazy.
I do not accept the Deputy's concerns in this matter and even if they are valid, the amendment does not address them. To do so would mean excluding these means of communication explicitly. A private interview in which a solicitor discusses legal issues would not be regarded as something which promotes him or her in relation to bad solicitor practice - the words of the Bill. On the other hand, there is little point in imposing restrictions on the kind of in-your-face advertising in which some solicitors have been engaging while at the same time providing that it is in order for them to continue with the same kind of advertising as long as they do it in the form of presentations, lectures, seminars and interviews. However, in deference to the Deputy's concerns, which are related to his concerns about amendment No. 11, to which I have referred, I will obtain the advice of the Attorney General on this point also.
In the context of the section - we are dealing with paragraph (c), it reads in effect, having read paragraphs (a) and (b) - which are other aspects - that an advertisement means any communication, whether oral or in writing, or other visual form, whether produced by electronic or other means, which publicises or otherwise promotes a solicitor in relation to his or her practice and includes any presentation, lecture, seminar or interview. In that context, in so far as any solicitor involved in civil litigation might do an interview about a matter relevant to civil litigation, how is, unless solicitors do television interviews with brown paper bags over their heads, no matter what the subject is, the interview immune from being interpreted as one which promotes a solicitor in relation to his or her practice? That is the reason this provision is wrong, dangerous and contrary to public interest and the reason I have tabled the amendment to delete the reference to presentations, seminars, lectures and interviews. If the Incorporated Law Society saw fit to advertise that it was holding a seminar on civil litigation to which it was inviting members of the public or voluntary groups interested in a particular topic and then advertised the names of the solicitors concerned, those solicitors, if they made a presentation or conducted the seminar, could find themselves in difficulty under this legislation.
I move amendment No. 14:
In page 5, line 43, to delete "includes" and substitute "means".
This amendment refers to advertisements at inappropriate locations. Under the Bill such locations include hospitals, clinics, doctors' surgeries, funeral homes and cemeteries. The idea that any solicitor would advertise his or her wares in a cemetery I find quite extraordinary.
One never knows.
In Georgia.
Perhaps. It would be extremely difficult to take seriously.
Not if they were at death's door.
The purpose of this proposal is to exclude advertising at inappropriate locations. Needless to say I regard it as highly inappropriate for a solicitor to urge people in a cemetery to consult him or her. It would be equally inappropriate for a consultation to take place in a hospital clinic, doctor's surgery or funeral home. My amendment seeks to define the term "inappropriate locations" as meaning these places, not simply including them. I ask the Minister to accept it. If he does not, I ask him to list the other places he regards as inappropriate, apart from hospitals, clinics, doctors' surgeries, funeral homes and cemeteries. Does he envisage other locations as inappropriate which should fall under this provision?
I understand the Deputy's point. It is correct to say that the places listed do not comprise all the places that would come under the term "inappropriate". That is intentional. The Deputy asked for an example. A crematorium might be such a location.
That is a burning issue.
If I were to accept the Deputy's amendment as tabled, I would be excluding that possibility and I know he would not wish me to do so.
I assume a funeral home would fall within it. I am prepared to agree to see the section amended, without a formal amendment, to include after the words "funeral home," the word "crematorium" or "cemetery". I formally propose we make that amendment. Having given us that example, is there any other less macabre one the Minister might suggest for inclusion?
I could become even more imaginative, but because the situation has descended to the macabre, I will not. I will consult the parliamentary counsel to see if it is——
Exhaustive.
Yes.
In relation to the section, there is an express prohibition on a solicitor publishing or causing to publish an advertisement on a series of phrases, one of which states that an advertisement cannot be published at an inappropriate location. If the legislation does not define what an inappropriate location is, how can this work in practice? This is a serious point. How will it work in practice?
The Minister has promised to tease the matter out further.
I will consult the parliamentary counsel as we could be arguing about it to and fro all night.
I propose we include the word "crematorium" in the definition.
Is that agreed? I do not know if this is possible without an amendment.
It has happened.
I would not like an original idea of mine excluded——
Do we have agreement——
I would be concerned that this does not become a dead issue.
I move amendment No. 15:
In page 6, subsection (1), line 3, to delete "Solicitors Act, 1954" and substitute "Principal Act".
I move amendment No. 16:
In page 6, subsection (1)(b), line 13, to delete “Solicitors Act, 1954” and substitute “Principal Act”.
I move amendment No. 17:
In page 6, subsection (2), line 16, to delete "Solicitors Act, 1954" and substitute "Principal Act".
Amendment No. 44 is related to amendments Nos. 48 and 50 and is consequential on amendment No. 18. All four may be discussed together.
I move amendment No. 18
In page 6, line 21, to delete "this Act" and substitute "those provisions".
The existing commencement provision——
The Minister should read slower.
I did not realise anyone was listening.
Every word.
The existing commencement provision at section 8 of the Bill is to the effect that the Act should come into operation three months after its passing or on such earlier date as may be fixed by ministerial order. The Bill as passed by the Seanad and read a Second Time in the Dáil, while miscellaneous in nature, was mainly concerned with advertising by solicitors together with a number of limited changes on disciplinary matters. With the amendments I have tabled, however, the Bill has a number of new provisions and, following Committee Stage, it will have three main elements - the provisions on advertising which, for the most part, were already in the Bill; new measures designed to strengthen the disciplinary machinery which applies to solicitors; and a section to provide a basis in primary legislation for the full implementation of the EU directive on lawyers' establishment. As Deputies may be aware, the deadline for the implementation of that directive was 14 March 2000 and the relevant section of the Bill needs to commence on the passing of the legislation. It is appropriate that the remainder of the Bill should commence as soon as possible by ministerial order and that is my aim. Amendment No. 48 provides for these new commencement arrangements. Amendment No. 18 is consequential on amendment No. 48.
Amendment No. 44 inserts a new section dealing with Directive 98/5/EC, the lawyers' establishment directive. The 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. An EU lawyer availing of the directive is required to register with the competent authority in the host state and must comply with the rules of conduct of the relevant professional body in that state. The rights to practice include the right to practice in partnership with host state lawyers, advise on home state law, host state law, European law and international law and generally to undertake activities reserved to host state lawyers. European lawyers may register with the Law Society or the Bar Council depending on whether they wish to carry on the activities of a solicitor or barrister, provided that a barrister from England, Wales or Northern Ireland and an advocate from Scotland registers with the Bar Council and a solicitor from the UK with the Law Society. A lawyer will be required to practise under his home state title which must be expressed in such a way as to avoid confusion with the professional titles of the host state.
Deputies will note references in the definitions contained in the new section 9 to the European Economic Area, that is, Iceland, Liechtenstein and Norway, in addition to the European Union. It is intended that this directive, relating as it does to the free movement of persons, will be extended to the entire EEA in due course by a decision of the EEA joint committee. The new section will apply to lawyers from the non-EU-EEA countries as soon as the application of the directive to the EEA becomes binding on us.
The section also refers to the agreement between the EEC and Switzerland on the free movement of persons which was signed in 1999 but has not yet come into force. This agreement applies the directive as between the EU states and Switzerland and will, accordingly, allow a Swiss lawyer to become established here and practise under home state title and an Irish solicitor or barrister to go to Switzerland on the same terms.
Why do we need a provision in primary legislation to cover the implementation of this directive rather than rely solely on ministerial regulations under the European Communities Act? While implementation will be achieved by ministerial regulation, I have been advised that such regulations may not be immune to challenge on constitutional grounds in the absence of a provision in primary legislation for the following reason. Article 15.2.1° of the Constitution provides that the legislative powers of the State are vested exclusively in the Oireachtas. However, so far as the transposition of EU law is concerned, this provision is effectively qualified by Article 29.4, which provides that nothing in the Constitution shall invalidate laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or the communities.
Article 6.3 of the directive gives discretion to member states to require lawyers in certain circumstances either to take out professional indemnity insurance or to become a member of a professional guarantee fund. We propose to exercise that discretion in the interests of ensuring that members of the public are given equal protection against negligence or dishonesty whether they are dealing with an Irish qualified or a European lawyer. However, I am advised that this requirement is not necessitated by the directive within the meaning of Article 29.4 of the Constitution and, therefore, the protection given by that Article may not apply. Consequently, in accordance with Article 15.2.1° provision is now being made in this amendment in subsection (2)(a) of this new section to enable me to make regulations under the European Communities Act, 1972, in respect of indemnity insurance and membership of a professional guarantee fund. Subsection (2)(b) provides that regulations under the European Communities Act may also provide that a disciplinary regime applicable to barristers and solicitors should also apply to EU lawyers availing of rights under the directive.
I do not believe that constitutional considerations of the type I outlined in relation to the discretion afforded to member states in terms of indemnity insurance and contributions to a guarantee fund require the provision in subsection (2)(b) to be included in the Bill. Provisions under disciplinary jurisdiction are necessitated by the directive and could be implemented by ministerial regulations without being referred to in primary legislation.
However, the Law Society has asked me to include this provision in the Bill as it considers it the safest course in the interests of ensuring completeness and certainty. In my view, inclusion of the subsection will remove a ground which might be used by a European lawyer who has been subjected to disciplinary proceedings to challenge the proceedings in court and thereby delay them. The amendment is a substitute for a previous version. There is no real change of substance involved. Close examination in consultation with the Parliamentary Counsel has suggested the need to change the definition of competent authority and member state lawyer compared with the version which appeared in the numbered list of amendments circulated on 4 December 2001.
Amendment No. 50 is a technical amendment to the Long Title to reflect the fact that with the making of amendment No. 44, the Bill will facilitate the implementation of Directive 98/5/EC which enables a lawyer to practise his or her profession on a permanent basis in a member state other than that in which the qualification was obtained. The Long Title will also refer to the European Economic Area and the Swiss Confederation to which the directive will apply when the relevant measure is taken in the case of the EEA and when the Swiss Confederation agreement is in force in the case of Switzerland.
While the fullest consideration has been given to these amendments in my Department and in the Office of the Attorney General, I want to avail of the time between now and Report Stage to consider the terms of the amendments further in consultation with the professional bodies involved. I may table amendments on Report Stage.
I move amendment No. 19:
In page 6, to delete lines 22 and 23 and substitute the following:
"4.-The Act of 1960 is hereby amended in section 3 (as amended by section 24 of the Act of 1994)".
Amendment No. 23a is related to amendment No. 20. Amendments Nos. 20 and 23a may be discussed together by agreement.
I move amendment No. 20:
In page 6, line 30, after "person" to insert "(other than a client)".
Section 4 of the Bill changes the definition of misconduct on the part of a solicitor by inserting a new paragraph (d) as set out in that section. That provides that it will be misconduct for a solicitor in the course of his or her practice to have any connection with a person who is acting or has acted as a solicitor, although unqualified, while pretending to be a solicitor or who has violated the prohibition on unqualified persons preparing certain documents. However, paragraph (d)(i), as drafted, could have the effect of including in the definition of misconduct the actions of a solicitor whose association with the person in question amounts solely to that of a normal solicitor client relationship. I am sure Deputies will agree that all members of the public, irrespective of their past or present actions, have the right to engage the services of a solicitor.
Accordingly, amendment No. 20 excludes from the concept of misconduct the association a solicitor has with the person who is his or her client. However, paragraph (d)(ii) makes it misconduct for a solicitor to accept instructions from such a person to provide legal services to any other person. Following acceptance of this amendment, the phrase “such a person” will not include a client of the solicitor.
We do not want to allow a person who has contravened the relevant provisions of the solicitors Acts to be able to introduce business to a solicitor when this would otherwise be misconduct merely because he has resorted to the stratagem of becoming a client of that solicitor. Hence the additional amendment No. 23a. This will have the effect that it will be misconduct for a solicitor to accept instructions from a person to provide legal services to another person where the person giving the instructions has been or is in breach of the relevant provisions of the Acts, regardless of whether that person is a client of the solicitor.
I move amendment No. 21:
In page 6, line 32, after "acted" to insert "(whether before or after the commencement of the Solicitors (Amendment) Act, 2001, but subject to such time parameters as are prescribed by the Society, if any)”.
This is an amendment to section 4 which amends section 3 of the 1960 Act to insert the new sub-clause:
"(whether before or after the commencement of the Solicitors (Amendment) Act, 2001, but subject to such time parameters as are prescribed by the Society, if any)”.
The intention of the amendment is to allow the Law Society to prohibit solicitors from entering into arrangements with people who have contravened any of the Solicitors Acts from 1960, including contraventions before the passing of the Bill. It makes the provisions more comprehensive. Will the Minister inform me if this is an acceptable way to proceed?
The effect of the Deputy's amendment would be to provide that it would be misconduct on the part of a solicitor to associate with a person who has acted as a solicitor, although unqualified, and has pretended to be a solicitor, etc, if the contravention of the other party took place before or after the commencement of the Bill, but within certain time parameters which could be prescribed by the Law Society. My intention is that having a connection or association of the type described in the section will amount to misconduct on the part of a solicitor only if the other party acts in contravention of sections 55, 56, etc, after the commencement of the Bill. I do not see a need to introduce an element of retrospection and I understand the Law Society is also of this view.
I am reluctant to accept the Deputy's formulation relating to time parameters to be prescribed by the society. This would introduce a note of uncertainty as to what the effect of the provision would be by leaving it up to the Law Society with no indication of the criteria it should use in prescribing the time parameters referred to. I cannot accept the amendment.
While I am not wedded to the formula of words I have used in so far as leaving the time parameters to the Law Society is concerned, it struck me as the right way to go. If the Minister wants to prescribe set parameters, I do not have any difficulty with that. It struck me as important that we deal with arrangements that occurred prior to the enactment of the Bill, which has been a long time happening, and which contravene the spirit of section 4 as agreed. Why would that not be in accordance with the Minister's wishes?
We checked with the Law Society on this and it did not ask for it. It is satisfied with how things stand.
It does not mean it is right.
No, it does not, but it means it has a fair chance of being right.
The change is not being sought and retrospection of this nature would be unfair.
I move amendment No. 22:
In page 6, lines 35 and 36, to delete "Solicitors (Amendment) Act, 1994" and substitute "Act of 1994".
I move amendment No. 23:
In page 6, lines 36 and 37, to delete "Solicitors Act, 1954" and substitute "Principal Act".
I move amendment No. 23a:
In page 6, to delete lines 39 and 40 and substitute the following:
"(ii) accepting instructions to provide legal services to a person from another person whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of those enactments,".
Amendment No. 24 and amendment No. 1 to amendment No. 24 may be discussed together by agreement.
I move amendment No. 24:
In page 6, before section 5, to insert the following new section:
"5.-The Act of 1960 is hereby amended in section 6 (as substituted by section 16 of the Act of 1994)-
(a) by the substitution of the following subsection for subsection (1):
'(1) The President of the High Court shall, from time to time as occasion requires, appoint a tribunal which shall be known as the Solicitors Disciplinary Tribunal (in this Act referred to as the "Disciplinary Tribunal") consisting of-
(a) not more than twenty persons from among practising solicitors of not less than 10 years standing (to be known and referred to in this section as “solicitor members”), one of whom shall be appointed by the President of the High Court to be chairperson of the Disciplinary Tribunal and each of whom shall be appointed after consultation with the Society, and
(b) not more than ten persons, who are not solicitors or barristers (to be known and referred to in this section as “lay members”), who shall be nominated by the Minister to represent the interests of the general public,
for such a period, not exceeding five years, as the President of the High Court may determine, and any such person so appointed shall be eligible for reappointment to the Disciplinary Tribunal.',
(b) by the insertion of the following subsection after subsection (1):
'(1A) At least 40 per cent of the solicitor members and of the lay members of the Disciplinary Tribunal, calculated by rounding to the nearest whole number, shall be men and at least 40 per cent, as so calculated, shall be women.',
and
(c) by the substitution of the following subsection for subsection (6):
'(6) The Society shall pay to each member of the Disciplinary Tribunal, out of funds at the disposal of the Society, either-
(a) the reasonable travelling and subsistence expenses incurred by the member in connection with attendance at meetings of the Disciplinary Tribunal, or
(b) with the consent of the member concerned, an annual sum (the amount of which shall be determined by the Society from time to time and which shall be payable in arrear at the end of each year) in respect of those expenses.’.”.
The amendment changes section 6 of the Solicitors (Amendment) Act, 1960, as substituted by section 16 of the Solicitors (Amendment) Act, 1994. The disciplinary tribunal is being retitled the solicitors disciplinary tribunal in this amendment. This is a change the Law Society asked for and it has merit. The current title, the disciplinary tribunal, does not give any indication of what professional group comes within its remit.
Section 6(1) of the 1960 Act deals with the composition of the disciplinary tribunal appointed by the President of the High Court and provides that the tribunal shall consist of up to ten experienced solicitors, one of whom is appointed by the President of the High Court to be chairperson, and five non-lawyers nominated by the Minister for Justice, Equality and Law Reform to represent the interests of the public. The amendment continues the existing practice regarding appointments to the tribunal but, significantly, doubles the maximum size of the tribunal from 15 to 30. The purpose of the increase in membership is to facilitate the tribunal in coping with an increasing workload and to help bring about a speedy resolution of cases.
Another facet of the amendment is that it provides that at least 40% of the solicitor and lay members must be women and at least 40% men. This reflects long-standing Government policy on gender balance and there are a number of precedents for this in Acts passed in recent years. The reason the gender balance requirement is expressed in percentage terms rather than as a specific number is that the size of the tribunal can vary up to a maximum of 20 solicitors and ten lay persons, although I have little doubt that the maximum number will be appointed.
Section 6(6) of the 1960 Act authorises the Law Society to pay members of the tribunal reasonable travelling and subsistence expenses incurred in respect of their attendances at meetings of the tribunal. That provision is repeated in the new subsection (6)(a), but, in subsection (6)(b), members are given the option of being paid an annual sum in respect of their service to the tribunal in lieu of travel and subsistence expenses.
I move amendment No. 1 to amendment No. 24:
In paragraph (a) of the proposed new section, in the third last line, to delete “five” and substitute “three”.
The proposal is that the new tribunal and appointees to it will serve for a term not exceeding five years as the President of the High Court may determine. As a matter of practice, it is inevitable that all those appointed to it will ultimately serve five year terms. I have no doubt that is something to which the Law Society would agree. It is in the society's interests and those of the public, however, that the members of these committees have the possibility of being changed on a more frequent basis than every five years. The Law Society holds annual elections to its council in which some people retain their seats and some do not. Despite this, there are committees in which the Law Society is involved on which the same people seem to sit for years. I do not criticise that; I am sure they are all very good people. However, there should be a basis for more frequent change, especially as a test of how things are working. The five year period in the amendment is too long and it will become the norm. I propose to substitute it with a three year period and perhaps the Minister will agree to that change.
Given that at least 40% of the solicitor and lay members, calculated by rounding to the nearest whole number, should be men and 40% women, will the Minister clarify what the other 20% will be? Is a specific criteria to be applied?
This is an important section because there is a changing view of accountability in every aspect of public administration. I include the legal profession in that category. There have been dramatic changes in law in recent times relating to the mechanisms by which we hold ourselves as Oireachtas Members accountable. I hope the same will follow for the Judiciary, although the Minister's proposals for reform in that area were stillborn. No doubt he or another Minister will return to that in due course.
I wonder whose fault was that.
We are getting wound up.
I suggest it was careful analysis and good opposition. It is a long time since I was involved in drafting the original amendments to the Bill which appears to have had the slowest passage through the Houses of any legislation I can recall. If I was to start again, I would look more closely at being more radical where mechanisms and processes for complaints are concerned rather than just tinkering with existing arrangements.
I welcome the Minister's provisions in terms of gender balance. I would welcome a broader statement from him relating to accountability in the legal profession because all of us, certainly those of us who hold justice briefs, have complaints referred to us. It is very difficult for lay people to feel there is any alacrity in the processing of complaints about solicitors from members of the public.
I agree with Deputy Shatter's other point. He seeks to have the three years altered to five. However, the net point is that people can be interminably re-appointed. The Bill states that people "shall be eligible for re-appointment". Would the Minister consider on Report Stage an amendment to allow people to be re-appointed only once, so that the maximum term would be ten years? This is long enough for anyone to serve on a committee of this sort. Otherwise a cliquishness might develop on such a committee and practices might bed in. I suggest that the Minister reflects on the proposal that someone should be eligible for re-appointment only once. This would allow a ten year, or if Deputy Shatter's amendment is accepted, a six year term, which is adequate.
This amendment would provide that the maximum term of office of members of the solicitors' disciplinary tribunal would be three years and not five years as at present. While I appreciate the argument that it is useful to change membership at regular intervals and that there are statutory bodies which hold office for a maximum period of three years, I remain of the view that five years is not inappropriate in the present context. I say this because the task of members of this tribunal is complex. Each member is active in conducting inquiries into alleged misconduct, the skills of the members are enhanced by the experience of conducting inquiries and this is particularly true of the lay members. It would create too much discontinuity if we were to replace most, or perhaps all, of the membership every three years. I regret, therefore, that I cannot accept the Deputy's amendment.
However, I take Deputy Howlin's point that a cliquishness can unintentionally develop if people are in the same positions for too long and I would be favourably disposed to his suggestion in relation to people not serving longer than two five year terms. That is worth considering and examining favourably.
The Law Society itself is conscious that every complaint received should be handled in a fair and equitable manner and ultimately can be the subject of review by the High Court. It is to the credit of the society that it is concerned to ensure that the public has confidence in the complaints mechanism. Lawyers are not unique in having a complaints system of their own. These systems are in place in professional bodies such as the Medical Council, the Dental Council and the veterinary and nursing boards.
All of which are coming under pressure now——
They operate in much the same manner——
And it is extremely expensive to prosecute.
——as the solicitors' body and the self-regulatory model for solicitors is not confined to Ireland. It is the norm in many other countries. In general terms it has worked well. It would not be in the interest of the profession itself to have a complaints mechanism which did not deal fairly and equitably with people's complaints because that would bring the profession itself into disrepute. To be fair about it, in general terms the mechanism works well.
I will consider the suggestion that we confine the period of office to two terms. However, because people, in particular lay members, have to learn the ropes it would not be appropriate that they should serve only three years.
My concern is the same as that raised by Deputy Howlin. There could be a never-ending continuity of the same people on this committee which could go on for 15 or 20 years. That is not healthy, no matter how correct the bona fides of the individual members of the committee.
I share the Minister's view that if members of a committee have developed an expertise there is an importance in maintaining a degree of continuity. If the Minister is willing to consider an amendment on Report Stage I will not press my amendment. However, so that we get things right on Report Stage I raise a particular aspect. It is desirable that the same people should not be continually re-appointed for an endless period of years. I would prefer to see two three year terms rather than two five year terms, which would produce ten years of the same membership of the committee, with one or two minor changes. The worst of all worlds would be to have a committee which had the same membership for ten years suddenly changing completely and having to start afresh. I suggest that at the end of the first five year term 50% of the membership should not be eligible for re-appointment and that no one be allowed to serve more than two terms thereafter. This might be inconvenient for the first five year term of the committee but it would provide for continuity.
There are precedents for that system.
This would avoid having everyone with experience being obliged to resign at the end of ten years and the committee having to start afresh with no history of what had occurred in the past.
The precedent is the US Congress, where half the members are re-elected at each election. I am favourably disposed towards this suggestion.
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.
The fine or penalty that will be imposed on a solicitor found to be in breach of the disciplinary code will be €15,000. Is that right?
That is covered in the next amendment.
We will come to it.
In the light of the procedural difficulty with laying out and specifying the procedures and the requirement to give information to the High Court in every case, including a verbatim report on the evidence given and submissions made, what is required in that regard? I imagine some complicated inquiries might take a very long time to conclude. Is it normal or a new imposition for all these inquiries to have stenographers present to produce a verbatim note of the inquiry? It is an extremely costly imposition if it is new in inquiries.
I understand that at present it is not the norm, but having said that, the Law Society states it believes it can be complied with and that the verbatim note can be taken. I accept that it can be a very expensive procedure, as we know from seeking transcripts at times.
Is it envisaged that the Law Society will carry the cost? The production of transcripts of each day's evidence in the High Court incurs very substantial costs.
We have experience from our own work in committees of the enormous costs of verbatim transcripts. How will it be paid for? I know one recent inquiry by the Medical Council required a levy on every doctor in the country. The Minister will be aware of this. If one has very complicated, long inquiries - perhaps it is a requirement to have verbatim accounts - the cost must be considered if stenographers have to be present in every case. Who will bear the cost?
All I can say to Deputies Howlin and Shatter is that this is not an imposition by the Department or the Legislature. It was discussed with the Law Society. In the circumstances, the society would be expected to carry the cost. I said it was extremely anxious that its complaints procedure be as transparent, fair and equitable as possible and that this was to its credit. It would be willing to carry the cost.
I move amendment No. 26:
In page 7, between lines 23 and 24, to insert the following:
"(c) by the substitution of the following subsection for subsection (6):
'(6) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal find that there has been no misconduct on the part of the respondent solicitor, they shall inform the respondent solicitor and the applicant (and, where the Society is not the applicant, the Society) of their finding and the reasons therefor and take no further action in relation to the matter.',
(d) in subsection (9)-
(i) by the substitution of '€15,000' for '£5,000' in paragraphs (b) and (c), and
(ii) by the substitution of the following for 'solicitor.' in paragraph (d):
'solicitor,
and, in making any such order, the Disciplinary Tribunal shall take account of 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 of any order made by the Court under the Solicitors Acts, 1954 to 2001, in respect of the respondent solicitor.’,”.
This amendment repeals and re-enacts, with certain additional requirements, sections 7(6) and 7(9) of the Solicitors (Amendment) Act, 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 inquiry, it finds there has been no misconduct on the part of the solicitor concerned. The first is that it must inform the Law Society of its finding where the application was made directly to the tribunal by a member of the public. The second is that it must give reasons to the society, the respondent solicitor and, where appropriate, the applicant for its finding of no misconduct.
The amendment of section 7(9) of the 1960 Act will have a similar effect to amendment No. 25, which we have discussed. In the latter amendment, the tribunal is required to take account of previous findings of misconduct where the case is serious enough to recommend a stronger sanction to the High Court that is available to the tribunal itself. The present amendment concerns when the tribunal is going to impose one of the more limited sanctions provided for under section 7(9). In deciding on this sanction it will now be required, in accordance with the amendment, to take into account previous findings of misconduct.
The amendment also provides for a change in the maximum amount which the tribunal may order a solicitor in respect of whom there has been a finding of misconduct to pay to the compensation fund or an agreed party. This amount has been changed from £5,000 to €15,000 to reflect the rapid growth of incomes, not solely consumer priced inflation since 1994. The increase in incomes and property values since 1994 must be reflected in the maximum amount which the tribunal can order a solicitor in respect of whom there has been a finding of misconduct to pay to an agreed party and/or the compensation fund.
Wearing my Members' interests committee hat, procedures at the end of an inquiry are fresh in my mind. I am very conscious of an inquiry which, prima facie, is not frivolous but is proven on investigation to be unwarranted. I have come to the view that there should be as little publicity as possible in circumstances where a charge simply does not stand up. Under this section, the Minister is making it a requirement that the society be notified where it is not the applicant. For example, if there was a complaint against a Member of the House for a breach of standards under the Ethics in Public Office Act, 1995, and it was determined not to be vexatious and frivolous and worthy of investigation, but at the end of the investigation it was deemed to be unsubstantiated, the complainant and the person complained of is notified, but the House itself is not notified because that would give publicity to an unwarranted charge. Is there a compelling reason that the society should be alerted if there was an unsubstantiated charge, which would give publicity to something that did not stand up?
In relation to the substitution of £5,000 for €15,000, is there a general provision in law that all fines automatically converted to euro on 1 January? I would like to be assured that some smart lawyer somewhere along the line would not——
Why are you looking to your right?
——find a loophole and say that the penalty is specified in a currency that is no longer legal tender here. Do we need a general provision for that?
Chairman, would it make sense to also discuss amendment No. 27 because they are related?
Yes.
Talking about them separately does not make much sense. I agree in principle with what the Minister is trying to do in the context of the imposition of a penalty on a solicitor who has been found guilty of misconduct, but misconduct not serious enough to produce the possibility of being struck off. I have no objection to the proposal to increase the amount to €15,000 as a payment to be made to either the compensation fund or the injured party. Will the Minister further clarify the circumstances in which he sees payments being made to an injured party rather than to a compensation fund and outline the criteria that will apply in that context and how the tribunal might exercise its discretion?
Like Deputy Howlin, from time to time I receive complaints about the solicitors' profession. I should declare an interest - it is not exactly a secret that I am a solicitor. Some complaints that come to Dáil Éireann are valid. In some cases, one rapidly draws a conclusion about the bona fides of the people writing because of the nature of the correspondence. In one or two cases, one draws other conclusions to which I will not refer here. It is crucial that we modernise the disciplinary procedures of the Law Society and ensure that bona fide complaints are properly addressed, there is seen to be transparency and there are penalties available that seem to make sense in the context of issues that arise.
In galloping in the direction of ensuring the consumer is fully protected - as the consumer must be - this legislation ignores that the solicitor who is the subject of malicious and vexatious complaints may find himself or herself not merely before a disciplinary committee, because a complaint may appear to have some validity, but before a disciplinary tribunal to answer charges. At the end of the process the tribunal, having heard all the evidence available, may determine that the case should be thrown out, but the solicitor, in the course of answering the charges, may incur substantial expense by way of having to seek his or her own representation. Other difficulties may also arise in the context of the time the solicitor has available to look after his or her practice.
On occasions my experience as a solicitor dealing with family law matters has been that if I represent a wife in circumstances where she is being seriously battered and there are allegations that the husband, who has various other problems, is the person responsible, difficulties can arise with frivolous complaints being made. If people do not accept the advice given by a solicitor and ultimately find themselves at the receiving end of court orders relating to the custody of children or barring orders, there is a huge temptation to make a complaint about the solicitor because the solicitor suddenly becomes the enemy. I have seen this in different types of litigation, not just in family law.
There is a need for an efficient procedure, but solicitors, doing their jobs properly and complying with all the rules, are entitled to some degree of protection from the person who makes vexatious and frivolous complaints, but which cannot be so identified until after disciplinary hearings. This Bill does not do that. While the Bill correctly provides for the imposition of penalties on - to use the tabloid term - rogue solicitors, it does not provide any protection to the innocent solicitor who is the subject of complaint. I propose that an additional section 9A be inserted which states:
(9A) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal have found that there has been no misconduct on the part of the respondent solicitor they shall have power to order the complainant to do one or more of the following things-
(a) where it determines the complaint alleging misconduct to be vexatious or frivolous, to direct payment or a sum, not exceeding €5,000, to be paid by the complainant to the solicitor concerned,
(b) to direct that the whole or part of the costs of the Society or the solicitor appearing before them, as taxed by a Taxing Master of the High Court, in default of agreement shall be paid by the complainant.
(9B) A complainant against whom an order is made under subsection (9A) herein shall have the same rights of appeal as are conferred by subsection (11) on a solicitor against whom orders are made under subsection (9)(c) or (d) of this section.
Where there is a vexatious or frivolous complaint, as determined by the disciplinary tribunal, this proposal seeks to ensure that the person who made that complaint effectively faces the hazard of being ordered to pay a sum of €5,000. This penalty is substantially less than the penalty that could be imposed on a solicitor who has been found guilty of misconduct. The person who made the complaint would also face the hazard of having to meet any costs that either the Law Society incurred in processing the complaint or the solicitor incurred by way of legal costs in being represented.
I urge the Minister to give this proposal serious consideration. It is a means of protecting solicitors against frivolous complaints made by malicious individuals. There is not a Member of this House who has not received correspondence that is clearly and identifiably malicious about members of the legal profession just as we have received, on other occasions, correspondencethat raises serious issues that need to be addressed.
This Bill does not provide the protection for solicitors to which they are entitled and, by providing a more sophisticated form of tribunal, which is desirable, further opens the door to malicious and vindictive people targeting a solicitor they feel badly done by for no real reason. I urge the Minister to take this amendment on board and to consider it in the context of the general discussion of the new section he brought forward.
I wish to draw Deputies' attention to a typographical error in the amendment where the word "of" should read "or".
As it is now 7 p.m., I propose that we deal with these amendments.
Is that agreed? Agreed.
I will first deal with Deputy Howlin's point about reporting back to the Law Society. The Law Society has overall authority for the profession and it is important that it knows what is going on in relation to its members. I am not so sure if the comparison drawn with Members of the House is valid in that context; far from it. If a complaint is made against a Member of the House in terms of ethics, it matters little whether the committee examining it would or would not report back to the Houses of the Oireachtas or, for that matter, Winnie the Pooh. I believe it would leak out under the door.
That is not true.
That is my view.
In fairness to the committee, of which I am a member, we keep our business watertight. We have completed investigations of Members of this House, found in their favour and it has never got into the public domain.
I am astounded and I congratulate the Deputy and his committee.
The committee has majority Opposition membership too, uniquely among the committees of the House. It is an important business to get right. In a way, to be proven right and get publicity for it means one half loses anyway. That is the point the Minister is making.
That is also true of a person who, for example, is found not guilty of the most serious offence. In a court of law, the case is published and, in some instances, the argument could be made that damage is done to the individual irrespective of the decision.
We should seek in, for example, sexual abuse cases not to give that notoriety if it is possible legally to do that.
When I was younger and in practice, I recall on one occasion representing a man in relation to an assault charge of which he was acquitted. I remarked to him that he didnot seem to be happy and he replied: "Mr.O'Donoghue, I now have to deal with the harshest judge of all, the general public".
With regard to the question of the euro and the Irish pound, my understanding is that it is at the existing rate of exchange. I do not know how that comes about but the Minister, Deputy McCreevy, may have an idea. My understanding is that it is okay. With regard to whether an individual should be compensated and whether the money should go to a compensation fund, it is a matter for the disciplinary tribunal to decide. I presume it would be related to the degree of loss suffered by the aggrieved party.
I cannot accept Deputy Shatter's amendment. It would make an applicant for an inquiry into the conduct of a solicitor liable to pay up to €5,000 to the solicitor concerned where the tribunal determines that the complaint was vexatious or frivolous. Nobody wants inquiries held into such allegations and I am satisfied that the procedure provided for in my amendments to the same section guards against such inquiries and the consequential waste of time and money to which they would give rise. A key element here is the requirement for the respondent solicitor to be given the opportunity to give his or her observations prior to a decision by the tribunal that there is a prima facie case. It is only after a finding that there is a prima facie case that an inquiry can be held. Any vexatious or frivolous applications should be weeded out by a decision that there is no prima facie case. Therefore, the problem with which the Deputy seeks to deal will not arise in any significant way.
The second element in the Deputy's amendment would provide that where a complaint to the tribunal is not upheld, the complainant could be ordered to pay the respondent solicitor's costs. This would apply even in cases where the complaint was not frivolous or vexatious. I do not agree with this idea. I do not want to expose genuine applicants to what they might see as the risk of a significant award of costs against them, a risk they might well decide not to take. The committee will know there is a degree of public mistrust of the disciplinary machinery which applies to solicitors. While I do not share this feeling, we must be careful not to erect what might be seen as an extra barrier to the bringing to account of solicitors when they might have something to answer for.
If a solicitor has to undergo an inquiry by the tribunal and it turns out the complaint was vexatious or frivolous, which ideally should not happen with the procedures provided for in the Bill, or if a complaint against the solicitor is not upheld, it is natural that he or she should wish to be recompensed. However, I do not believe, for the reasons I have outlined, that this would be in the public interest and, in those circumstances, I must reject Deputy Shatter's amendment.
I disagree with the Minister. It is important that procedures are accessible to allow complaints to be made. The amendment deals with two things. Where a complaint ends up before a disciplinary tribunal and, at the end of the hearing, is deemed to be vexatious and frivolous, a minor penalty could be imposed. I do not see that acting as a barrier to people with bona fide complaints proceeding with them. If somebody has a bona fide complaint, there is no possibility that it will be found to be vexatious and frivolous. It is only in the vexatious and frivolous circumstance where that arises, not in any other.
Second, and in that context, it is a discretionary power conferred on the disciplinary tribunal to order a sum up to €5,000. It is not compulsory and it is not the maximum that need be ordered but it provides some degree of protection against a vexatious and frivolous complaint finding its way to a full hearing before the disciplinary tribunal.
Deputy Howlin raised the issue of a hearing taking place with an outcome where the complaint is not said to be vexatious or frivolous but there is a determination that somebody has not been found guilty of misconduct. The complaint is unwarranted. It is not vexatious and frivolous but it is ultimately seen to be without substance and not proved. Currently, in the context of every type of civil action in the courts, where proceedings are brought and somebody does not succeed in proving their case, the courts have discretion to make an order for costs against the person who has incurred expense unfairly because a case has been brought against them which has not been successful.
This amendment confers a discretion, not an obligation, on the disciplinary tribunal to make an order for costs which may, as the Minister knows in the context of orders for costs, relate to all or a portion of costs incurred by an individual. It happens from time to time that complaints are made against solicitors - they appear before the disciplinary committees of the Law Society at present and are represented by other members of the legal profession - where those complaints are found ultimately not to be well founded and no finding of misconduct is made. It is not unreasonable that there be an element of protection which allows a discretion with regard to the issue of costs properly incurred to defend one's good name and reputation.
This committee has found itself involved in court proceedings in the High Court and Supreme Court where one of the issues has been the right of access to representation to defend one's good name and reputation. In the context of a member of the legal profession, one of the greatest challenges that could be made to one's good name and reputation is to be brought before a disciplinary committee or tribunal with an allegation of misconduct. Where that occurs not only should one be entitled to representation, but if the allegations are unfounded, the tribunal that hears those allegations should be entitled, by way of discretion, to make a determination on costs. That is not erecting barriers, it is ensuring that if someone's good name and reputation is on the line and one's professional capacity to continue the work which one is professionally qualified to undertake is placed at risk, there is discretion vested in the tribunal which hears the issue to make orders for costs, which is not unreasonable. Perhaps the Minister would clarify the extent to which he has considered the position in other disciplinary tribunals and the possibility of such orders being made.
I have to consider this from the perspective of the general public. There is a degree of mistrust in terms of investigations by the society's disciplinary committee into the activities of members. That mistrust is misplaced but it exists. In those circumstances I have a genuine feeling that if we were to insert a provision of the type suggested by Deputy Shatter, the general public would say that a barrier was being erected between them and the redress they might seek. I understand precisely what Deputy Shatter is saying. I fully accept that frivolous or vexatious claims are made against solicitors and perhaps against Members of this House who are solicitors more than any other solicitor because they are in the public eye. I know that many of these claims arise. The difficulty with this provision is that the public would regard it as a barrier.
I have said that claims of a vexatious or frivolous nature should not arrive at the disciplinary stage of hearings for the reason that it is necessary that the case at least should be established to a prima facie degree. I accept that some fish will escape the net and some claims will be found to be vexatious or frivolous. However, on balance, while I recognise that unquestionably frivolous or vexatious claims are made, I have the feeling that the general public would regard such a provision as a unnecessary barrier that might have the effect of deterring some people from bringing a claim which might not be vexatious on the basis that the small man cannot beat the big man. In framing legislation such as this in particular, it is fundamentally crucial that we examine the matter from the point of view of the small man or woman.
Hear, hear.
In doing that, I fear that while I may be expressing what I would describe as a gut reaction, it is the right one.
Are there sanctions in place within the remit of the more high profile Flood and Moriarty tribunals on the bringing of vexatious complaints?
I am not aware there are.
It is not a charging forum but an investigative one.
On the subject of people of a diminutive stature and the Minister's claim to protect the small man, there is an assumption running through this legislation that any solicitor against whom a complaint may be made would be an individual of vast experience and extraordinary wealth who would have no difficulty confronting it. There are many newly qualified, young solicitors who spend seven or eight years of their lives trying to acquire a qualification who could become the object of a complaint under this legislation. They may not have the financial wherewithal to recruit counsel to defend themselves and it may turn out that the complaint made is vexatious and malicious and that may not be clear until the conclusion of a hearing. The Minister seems to be saying that he thinks there is merit in what I am saying but because of prejudice that exists he is not willing to address the issue.
The Minister said repeatedly that it should not get to that stage unless there is a prima facie case.
It should not, but there is no reason to believe that it may not get to that stage on occasions because complaints can be made and persuasive arguments can be given, but until there is a formal hearing no one may know what is the truth of the matter. I am not withdrawing my amendment.
I am minded to the Minister's view that we should not be seen to put up any barriers. People here in particular - we all know this from our clinics - have almost a fear of the law. Many people who are vulnerable trust their solicitors, particularly in relation to property matters, and occasionally they are badly dealt with. We should not put any more barriers in place than the fear people have of the law. It is like taking on a game on someone's field. The only way to deal with the matter is through a tribunal or the courts. That is the domain of people who know the law. If one is not a legal person, it is a terrifying experience to take that on. I would be loathe to imbalance further that imbalanced equation, although I recognise the merit of providing some sort of compensation to people who are unwarrantedly put to a major expense. There is a mechanism in place to filter out vexatious and patently unwarranted charges at the start. If there is a prima facie case that needs to be investigated, then that needs to be done. There is a cost in doing that.
I move amendment No. 27:
In page 7, between lines 23 and 24, to insert the following:
"(c) by the insertion of the following subsections after subsection (9):
'(9A) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal have found that there has been no misconduct on the part of the respondent solicitor they shall have power to order the complainant to do one or more of the following things-
(a) where it determines the complaint alleging misconduct to be vexatious or frivolous, to direct payment or a sum, not exceeding €5,000 to be paid by the complainant to the solicitor concerned,
(b) to direct that the whole or part of the costs of the Society or the solicitor appearing before them, as taxed by a Taxing Master of the High Court, in default of agreement shall be paid by the complainant.
(9B) A complainant against whom an order is made under subsection (9A) herein shall have the same rights of appeal as are conferred by subsection (11) on a solicitor against whom orders are made under subsection (9)(c) or (d) of this section.’.”.
A motion re the proposed approval by Dáil Éireann of a proposal to the Treaty of Amsterdam, the proposed Council decision concerning Ireland's request to take part in some of the provisions of the Schengen acquis, has been referred to the joint committee for consideration and must be referred back to the Dáil no later than 27 February 2002. We must arrange to meet to discuss the motion before 27 February. The Minister of State will be available next Tuesday evening, 26 February, to meet the joint committee.
There are two resolutions we need to deal with, one on the Schengen acquis. Is the other matter the fourth Protocol to the Treaty of Amsterdam?
Did we deal with that?
Two matters have been referred to the joint committee today.
There is a time slot available on Tuesday, 26 February at 5.15 p.m. or immediately after the Order of Business to deal with this matter, if that is agreeable? Is that agreed? Agreed.
Is it to deal with the Schengen acquis only?
That is what I have before me, but there may be another matter of which I am not aware.
I have been reminded that the other matter was passed to the Joint Committee on European Affairs.
I thank the Minister, his officials and members for their co-operation.
In the interest of progressing the Solicitors (Amendment) Bill and given that I do not know how long we will need to discuss the Schengen acquis next week, should we agree that when we complete the motion we will continue to deal with the Solicitors (Amendment) Bill up to 7 p.m. next Tuesday with a view to seeing if we can bring it to a conclusion, if the Minister is available to do that?
Yes, I should be able to do that. We dealt with amendment No. 27 and there are a further 23 amendments. It is possible that if we move it a bit we could get it done on Tuesday but——
Subject to Private Members' time and other arrangements it may be possible to go beyond 7 p.m. None of us knows now what is happening in Private Members' time but I would be happy to go at least to 7.30 p.m. provided I am not involved and subject to Deputy Howlin being free also.
If we can do that, it should be possible to have the Bill passed by the Houses of the Oireachtas by Easter.
I thank committee members for their co-operation.
