SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate

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

SECTION 5.

Minister for Justice, Equality and Law Reform (Mr. O’Donoghue)

I move amendment No. 28:

In page 7, paragraph (c), line 28, to delete “21” and substitute “28”.

Section 7(2) of the 1960 Act, as substituted by section 17 of the Act of 1994, provides that, on the making of an order by the tribunal imposing one of these sanctions available to it under section 7(9), the tribunal shall, as soon as possible, serve a copy of the order on the respondent's solicitor. Section 5, paragraph (c) of the present Bill, as passed by the Seanad, provides that the order shall be served as soon as possible and not later than 21 days after it is made. It is considered desirable to have a definite time limit within which the order must be served. However, the disciplinary tribunal indicated to my Department that an order is often made immediately after the hearing but is subsequently perfected and signed by the chairperson and tribunal members who conducted the hearing and in this context the period of 21 days after the order has been made could prove inadequate. Accordingly, it is proposed in this amendment to change the time limit of 21 days to 28 days.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 29:

In page 7, paragraph (d), line 36, before “the” where it firstly occurs, to insert “by”.

This is a drafting amendment.

Amendment agreed to.

Mr. Shatter

I move amendment No. 30:

In page 7, line 46, to delete "21" and substitute "28".

I await the Minister's response.

Mr. O’Donoghue

I see no reason to accept this amendment which would give solicitors and applicants 28 days rather than 21 days, after service of an order from the tribunal or of the tribunal's report on the inquiry whichever is the later, in which to appeal to the High Court. Twenty-one days is fully adequate. I am not aware of any problems arising from the existing 21 day limit provided for in section 7(11) of the 1960 Act, as amended.

Amendment put and declared lost.

Acting Chairman (Ms McGennis)

Amendment No. 31 and amendment No. 1 to amendmentNo. 32 may be taken together by agreement.

Mr. O’Donoghue

I move amendment No. 31:

In page 7, line 53, to delete "order.'." and substitute the following:

"order.",

and

(e) by the insertion of the following subsections after subsection (12):

'(12A) The Society or any person who has made an application under subsection (1) of this section may appeal to the High Court within the period specified in subsection (12B) of this section-

(a) against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of the respondent solicitor, or

(b) against a finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in relation to an allegation of misconduct (whether or not there has been a finding by the Disciplinary Tribunal of misconduct in relation to any other such allegation), and the Court may-

(i) confirm the finding concerned,

(ii) where the appeal is under paragraph (a) of this subsection, make a finding that there is a prima facie case in relation to the allegation of misconduct concerned or, as the case may be, one or more than one of such allegations and require the Disciplinary Tribunal to proceed to hold an inquiry under subsection (3) of this section in relation to such allegation or allegations, or

(iii) where the appeal is under paragraph (b) of this subsection, rescind or vary any finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in relation to an allegation of misconduct and, in relation to that solicitor, by order do one or more than one of the things specified in section 8(1)(a) (as substituted by the Act of 1994) of this Act.

(12B) An appeal against a finding of the Disciplinary Tribunal under subsection (12A) of this section shall be made within a period of 21 days after the appellant has been informed of the finding.'.".

The purpose of this amendment which inserts two new subsections, 12(a) and 12(b), into section 7 of the Solicitors (Amendment) Act, 1960, as substituted by section 17 of the Act of 1994, is to involve the Law Society or any person who has made an application to the disciplinary tribunal to appeal to the High Court against a finding by the tribunal that (a) there is no prima facie case for an inquiry or (b) that there has been no misconduct on the part of the respondent’s solicitor.

At present while the respondent's solicitor enjoys a right of appeal against a decision of the disciplinary tribunal to impose a sanction on the right of the society. The right of the lay applicant to appeal is limited to the ground that the sanction imposed by the tribunal is inadequate so that the tribunal in lieu of making its order ought to have exercised its power to refer the matter to the High Court, which can impose a more severe sanction than the tribunal can.

Section 5(d) as it stands, rectifies that anomaly in part by affording the society or the lay applicant a full right of appeal in cases where the tribunal has imposed a sanction itself. Notwithstanding that amendment, it would remain the position but for this amendment that neither the society nor the lay applicant would have a right of appeal against a finding by the tribunal that (a) there is no prima facie case for inquiry and (b) there has been no misconduct on the part of the respondent’s solicitor.

The purpose of the proposed subsection (12)(a) is to provide for such a right of appeal. The subsection empowers the High Court on hearing the appeal to confirm the finding of the tribunal in cases where a tribunal has found that there is no prima facie case for an inquiry to order the tribunal to hold an inquiry or to send or vary any finding of the tribunal that there has been no misconduct by the respondent’s solicitor and impose a sanction itself under section 8(1)(a) of the Act of 1960, as substituted by section 18 of the Act of 1994.

Subsection (12)(a) will result in a situation where the complainant, whether a lay person or the society, will have a right to appeal on all aspects of the tribunal’s work and not just the limited and unsatisfactory right of appeal that exists at present.

Acting Chairman

I am sure Deputy Shatter will be happy with that response.

r. Shatter

I move amendment No. 1 to amendment No. 31:

In the last line of the amendment, to delete "finding.'." and substitute the following:

"finding.

(12C) Where, on determining an appeal brought by any person to the High Court under subsection (12A) of this section where such appeal is from a finding of the Disciplinary Tribunal as provided for in subsection (12A) (a) or (b) of this section, should the High Court uphold the finding of the Disciplinary Tribunal, the Court shall have power to order the appellant to do one or more of the following things-

(a) where it upholds a finding on the Disciplinary Tribunal that this is no prima facie case for inquiry into the conduct or the respondent solicitor to direct payment or a sum, not exceeding €5,000, to be paid by the appellant to the solicitor concerned,

(b) to direct that the whole or part of the costs of the Society or the respondent solicitor is taxed by a Taxing Master or the High Court, in default of agreement shall be paid by the appellant.’.”.

This amendment is similar to an previous one I raised. There is no point in repeating what I said.

Amendment to amendment No. 31, by leave, withdrawn.

Amendment agreed to.

Section 5, as amended agreed to.

NEW SECTIONS.

Mr. O’Donoghue

I move amendment No. 32:

In page 8, before section 6, to insert the following new section:

6.-The Act of 1960 is hereby amended in section 8 (as substituted by section 18 of the Act of 1994)-

(a) by the substitution of the following for ’penalty;’ in subsection (1)(a)(i)(V):

'penalty;

and, in making any such order, the Court shall take account of any finding of misconduct on the part of the respondent solicitor previously made by the Disciplinary Tribunal (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;',

and

(b) by the substitution of the following for ’Court.’ in subsection (1)(c)(viii):

'Court;

and, in making any such order, the Court shall take account of any finding of misconduct on the part of the respondent solicitor previously made by the Disciplinary Tribunal (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 relates to section 8 of the Act of 1960, as substituted by section 18 of the Act of 1994. As I indicated, the disciplinary tribunal is empowered to investigate allegations of misconduct against a solicitor. If when following an inquiry the tribunal finds there has been misconduct, it makes a report to the High Court. That report either informs the High Court, or the tribunal imposes a sanction or a more serious case is recommended to the High Court.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 33:

In page 8, before section 6, to insert the following new section:

"7.-The Act of 1960 is hereby amended in section 15 (as substituted by section 25 of the Act of 1994) by the insertion of the following subsections after subsection (1):

'(1A) The Disciplinary Tribunal may require the applicant and the respondent solicitor to submit in writing an outline of the evidence expected to be given by each of the witnesses whom they propose to have summoned to attend the inquiry.

(1B) The Disciplinary Tribunal may, if of opinion that the evidence expected to be given by any such witness is irrelevant or does not add materially to that proposed to be given by other witnesses and that accordingly the attendance of the witness at the inquiry is likely to give rise to unnecessary delay or expense, so inform the applicant or respondent solicitor, as the case may be, and draw his or her attention to the provisions of subsection (1C) of this section.

(1C) On the completion of the inquiry the Disciplinary Tribunal, whether or not they have acted in accordance with subsection (1B) of this section, may, if of opinion that the attendance of any witness summoned at the request of the applicant or respondent solicitor was unnecessary and there by involved the witness in avoidable expense, by order direct that the applicant or respondent solicitor, as the case may be, shall pay a sum or sums not exceeding €10,000 to the witness in respect of the expense, and the witness may recover the sum or sums from the applicant or respondent as a liquidated debt.

(1D) Before making an order under subsection (1C) of this section, the Disciplinary Tribunal shall notify the applicant or respondent solicitor that they propose to do so and to consider any representations that may be made to them in writing by the person affected within 14 days after the notification.

(1E) The applicant or respondent solicitor in respect of whom an order has been made under subsection (1C) of this section may appeal to the High Court against the order within 21 days after being notified of the receipt by him or her of notification in writing of it, and the Court may make such order on the appeal as it thinks fit.'.".

This amendment proposes changes to section 15 of the Solicitors (Amendment) Act, 1960, as substituted by section 25 of the 1994 Act.

Mr. Shatter

I move amendment No. 1 to amendment No. 33:

In the proposed subsection (1C), in the seventh and eighth lines, to delete "a sum or sums not exceeding €10,000 to the witness in respect of the expense" and substitute "the reasonable expenses incurred by the witness as certified by the Disciplinary Tribunal".

I await the Minister's response.

Mr. O’Donoghue

The Deputy's amendment would have the effect of removing the maximum of €10,000 in respect of the expenses which the tribunal can order a party to pay for a witness when such a witness is summonsed unnecessarily. This could have the unintended consequence of making a lay applicant afraid to go to the tribunal or prosecute his or her case as well as possible.

The power being conferred in the tribunal in my amendment is entirely new. We should proceed cautiously and refrain from appearing to erect hurdles in the path of members of the public who feel they have a grievance against a solicitor. I cannot, therefore, accept the Deputy's amendment on this occasion.

Mr. Shatter

Will the Minister give a translation of that?

Acting Chairman

The Minister could have said there was no chance.

Mr. Shatter

I think so. I will not press the amendment, as I am anxious that we progress the Bill.

Amendment to amendment No. 33, by leave, withdrawn.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 34:

In page 8, before section 6, to insert the following new section:

"8.-Section 2 of the Act of 1994 is hereby amended by the insertion of the following subsection:

'(2) References in sections 10, 10A (as inserted by section 9* of the Solicitors (Amendment) Act, 2001), 12 (as substituted by section 10** of that Act) and 22 of this Act to complaints made to or received by the Society include references to any complaints made to the Society by the registrar alleging a breach of any provision of the Solicitors Acts, 1954 to 2001, or any order or regulation made thereunder, and those provisions of this Act shall have effect accordingly.’.”.

The purpose of this new section is to amend the interpretation section of the Solicitors (Amendment) Act, 1994 to provide that the statutory powers that should be available to the Law Society when investigating a complaint from a member of the public will also be available to it when investigating a complaint made to it by its own registrar.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 35:

In page 8, before section 6, to insert the following new section:

"9.-The Act of 1994 is hereby amended by the insertion of the following section after section 10:

'10A.-(1) Where, in relation to a complaint made to the Society alleging misconduct by a solicitor or a complaint under section 8(1) or 9(1) of this Act, it appears to the Society that the solicitor concerned is obstructing the investigation of the complaint by the Society by refusing, neglecting or otherwise failing, without reasonable cause-

(a) to respond appropriately in a timely manner, or at all, to correspondence from the Society in relation to the complaint,

(b) to attend a meeting convened by the Society at which the complaint would be considered,

the Society may apply to the High Court for an order compelling the solicitor to respond appropriately within a specified time to such correspondence or to attend such a meeting.

(2) An order under subsection (1) of this section may provide for censuring the solicitor and requiring the solicitor to pay a money penalty and for such matters of a consequential nature as the Court considers appropriate.

(3) Where an order under subsection (1) of this section requires a solicitor to pay a money penalty, the order shall operate as a judgment against the solicitor in favour of the Society, and the money penalty, when recovered, shall be paid into the Compensation Fund.

(4) In subsection (1) of this section, "meeting convened by the Society" includes a meeting convened by a committee to which functions of the Society which may be performed by the Council have been delegated pursuant to section 73 (as amended by the Act of 1960 and this Act) of the Principal Act.'.".

The purpose of this new section is to introduce an immediate and effective mechanism for dealing with the problem caused by certain solicitors who impede the investigation of complaints by the Law Society.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 36:

In page 8, before section 6, to insert the following new section:

"10.-The Act of 1994 is hereby amended by the substitution of the following section for section 12:

12.-(1)(a) Following an investigation of a complaint made to the Society against a solicitor under section 8(1) or 9(1) of this Act, the Society may-

(i) in case the Society have made a determination or given a direction under either of those sections, require payment by the solicitor of a sum not exceeding €3,000 to the Society by way of contribution towards the costs incurred by the Society in investigating the complaint, or

(ii) in any other case, if the Society have made a determination that the solicitor has in the course of the investigation refused, neglected or otherwise failed, without reasonable cause, to respond appropriately in a timely manner, or at all, to a written request from the Society and that the Society have incurred costs in consequence of the refusal, neglect or failure, require payment by the solicitor to the Society of a sum not exceeding €3,000 by way of contribution towards those costs,

and the solicitor shall comply with any such requirement.

(b) Paragraph (a) (other than subparagraph (i)) of this subsection shall apply in relation to a complaint made to the Society alleging misconduct by a solicitor as it applies in relation to a complaint referred to in that paragraph.

(c) Where, in relation to a complaint made to the Society alleging misconduct by a solicitor or a complaint under section 8(1) or 9(1) of this Act, the Society-

(i) are of opinion that the complaint is justified but is not of sufficient seriousness to warrant an application being made to the Disciplinary Tribunal under subsection (1) of section 7 (as substituted by section 17 of this Act) of the Act of 1960,

(ii) have made a determination that the solicitor has in the course of the investigation refused, neglected or otherwise failed, without reasonable cause, to respond appropriately in a timely manner, or at all, to a written request from the Society and that the Society have incurred costs in consequence of such refusal, neglect or failure,

the Society may, in addition to or in substitution (in whole or in part) for requiring payment by way of contribution towards the costs incurred by the Society as provided for in subparagraph (i) or (ii) of paragraph (a) of this subsection, issue to the solicitor a reprimand in writing in such terms as the Society deem appropriate and reasonable and so notify the person from whom the complaint was received.

(2) Subject to any order made under section 11(1) of this Act, the Society may recover any sum the payment of which has been required by the Society by way of contribution under subsection (1) of this section as a liquidated debt payable to the Society.'.".

The purpose of this amendment is to repeal and re-enact with amendment 12 of the Solicitors (Amendment) Act, 1994, to empower the Law Society to impose sanctions on a solicitor who fails to co-operate in the investigation of a complaint and to require that solicitor to make a contribution towards the cost of the investigation.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 37:

In page 8, before section 6, to insert the following new section:

"11.-The Act of 1994 is hereby amended in section 14 by the substitution of the following subsections for subsections (1) and (2):

'(1) Where it appears to the Society, whether as a result of a complaint or otherwise, that it is necessary for the purpose of investigating-

(a) alleged misconduct by a solicitor,

(b) a complaint against a solicitor under section 8(1) or 9(1) of this Act, or

(c) the capacity of a solicitor engaged in the provision of legal services adequately to protect or secure the interests of the solicitor’s clients, for an authorised person to attend with or without prior notice at the place or places of business of the solicitor, an authorised person may so attend at that place or places.

(2) An authorised person who attends under subsection (1) of this section at the place or places of business of a solicitor-

(a) 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 investigation, and

(b) may in pursuance of that purpose require the solicitor or any such clerk or servant to make available to the authorised person for inspection such specified documents or categories of documents in the possession or under the control or within the procurement of the solicitor as the authorised person deems necessary to fulfil that purpose (whether or not such documents or any of them relate also to other matters).’.”.

This new section repeals and re-enacts with amendments subsections (1) and (2) of section 14 of the Solicitors (Amendment) Act, 1994.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 38:

In page 8, before section 6, to insert the following new section:

"12.-The Act of 1960 is hereby amended-

(a) in subsection (6) of section 21 (as substituted by section 29 of the Act of 1994) of the Act of 1960 by the substitution of ’€700,000’ for ’£350,000’, and

(b) in subsection (2) of section 22 (as substituted by section 30 of the Act of 1994) of the Act of 1960 by the substitution of ’€2,000,000’ for ’£1,000,000’.”.

This amendment will increase the maximum amount which the compensation fund may pay to a client who has been the victim of dishonesty on the part of his or her solicitor.

Amendment agreed to.

SECTION 6.

Mr. O’Donoghue

I move amendment No. 39:

In page 8, line 1, to delete "Solicitors (Amendment) Act, 1994," and substitute "Act of 1994".

Amendment agreed to.

Section 6, as amended, agreed to.

SECTION 7.

Acting Chairman

Amendment No. 41 is cognate to amendment No. 40 and they may be taken together by agreement.

Mr. Howlin

I move amendment No. 40:

In page 9, subsection (1)(a), line 3, after “has” to insert “(whether before or after the commencement of this Act)”.

This amendment relates to a previous amendment which provides that the Law Society can seek civil remedies against people who have contravened the Solicitors Act, including contravention, before the passing of the present Bill. We debated that net point earlier.

Mr. O’Donoghue

I cannot accept this amendment. It is not necessary and it would be somewhat disproportionate to give the Society power to seek an order against someone of the basis that the person had contravened the provision long before the Act came into operation.

Amendment, by leave, withdrawn.

Amendment No. 41 not moved.

Mr. O’Donoghue

I move amendment No. 42:

In page 9, subsection (1), line 12, to delete "Solicitors Act, 1954" and substitute "Principal Act".

Amendment agreed to.

Section 7, as amended, agreed to.

NEW SECTION.

Acting Chairman

Amendments No. 43 and amendments Nos. 1 to 7, inclusive, to amendment No. 43 may be taken together by agreement.

Mr. O’Donoghue

I move amendment No. 43:

In page 9, before section 8, to insert the following new section:

"8.-(1) The Society may make an application to the Disciplinary Tribunal to hold an inquiry into alleged misconduct by an apprentice.

(2)(a) On such an application the Disciplinary Tribunal, before deciding whether there is a prima facie case for inquiry, shall-

(i) send a copy of the application and of any accompanying documents to the apprentice, and

(ii) request that any observations which he or she may wish to make on the application be supplied within a specified period.

(b) If, after receipt of the apprentice’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 apprentice and the Society 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 apprentice and the Society of the date on which it is to be held;

(b) when holding the inquiry under this section the Disciplinary Tribunal shall-

(i) consider each allegation of misconduct made against the apprentice, and

(ii) make a separate finding in respect of each such allegation;

(c) if the Disciplinary Tribunal find that there has been no misconduct on the part of the apprentice, they shall take no further action in relation to the matter and so inform the apprentice and the Society;

(d) if the Disciplinary Tribunal find that there has been such misconduct, they shall notify the apprentice and the Society of their finding and 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 apprentice which they may think fit to report,

(iv) their opinion as to the fitness of the apprentice, having regard to their finding or findings, to be admitted as a solicitor either at any time or until the apprentice has satisfied the Society or the President of the High Court as to such fitness.

(4)(a) The apprentice may appeal to the High Court against a finding of the Disciplinary Tribunal that there has been misconduct on his or her part within 21 days after being notified of the finding.

(b) The Society may appeal to the High Court-

(i) against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of the apprentice, or

(ii) against a finding of the Disciplinary Tribunal that there has been no misconduct on the part of the apprentice in relation to an allegation of misconduct (whether or not there has been a finding of misconduct by the Disciplinary Tribunal in relation to any other such allegation), within 21 days after being notified of the finding.

(c) The High Court may make such order on an appeal under this subsection as it thinks fit. (5) The High Court, on consideration of the report of the Disciplinary Tribunal, may by order-

(a) declare that the apprentice is or is not a fit and proper person to be admitted as a solicitor, and

(b) make such other provision in relation to the matter as it may think just, including provision for review of its order on application to the President of the High Court by the Society or the apprentice.

(6) The Disciplinary Tribunal shall have such of the powers given to them under the Solicitors Acts, 1954 to 2001, as are necessary to enable them to perform the functions conferred on them by this section.

(7) In this section, 'misconduct' means-

(a) the commission of an offence under section 55, 56 or 58 of the Principal Act or of an arrestable offence (within the meaning of the Criminal Law Act, 1997),

(b) conduct outside the State which constitutes an offence under the law of the jurisdiction concerned and which, if that conduct took place within the State, would constitute an arrestable offence (within that meaning), or

(c) any other conduct which, if engaged in by a solicitor, would tend to bring the solicitors' profession into disrepute.".

The purpose of this new section is to enable the disciplinary tribunal to consider an application brought by the Law Society alleging misconduct by an apprentice. At present the tribunal is confined to considering allegations against a solicitor.

Mr. Shatter

I move amendment No. 1 to amendment No. 43:

In subsection (2)(a)(i) of the proposed new section, in the second line, to delete “apprentice, and” and substitute the following:

"apprentice,

(ii) send a copy of the application and of any accompanying documents to the person to whom the apprentice is apprenticed (hereinafter called 'the master'), and".

The procedure proposed - with which I agree - in the Bill will for the first time allow for disciplinary proceedings to be brought where there is an allegation against a solicitor's apprentice. This is a new provision. What is now proposed is defective.

I tabled a number of amendments to the Minister's proposal which are of some importance. I will outline their general purpose. It seems that if disciplinary proceedings are brought against an apprentice and if a complaint is made against an apprentice, the person who is the apprentice's master, to use that arcane language that is still used today, should be informed of complaints made, should be kept informed of the procedures and should be entitled to attend at a disciplinary hearing. It seems that the person should also be entitled to be informed of the outcome of what occurs.

The manner in which the proposed section deals with the apprentice is as if the apprentice is a solicitor and not in the position of someone who is expected to report to the person to whom they have been apprenticed. This series of amendments is designed to deal with this particular issue. It requires that where an application is being brought to the disciplinary tribunal, a copy of any accompanying documents must be given to the person to whom the apprentice is apprenticed, including the master. The disciplinary tribunal must have regard to the observations, if any, of the master. Other technical amendments are suggested to ensure the master is given an opportunity to be heard and to be kept informed of the outcome.

Amendment No. 7 to amendment No. 43, which deals with the issue the Minister was previously opposed to addressing, provides for penalties where there is a vexatious or frivolous complaint. In the interest of the Minister taking on board the rest of these amendments, I will not push amendment No. 7 to amendment No. 43. It seems bizarre that a disciplinary proceeding could be brought against an apprentice without the master of the apprentice being privy to what is occurring, having access to the documentation or participating in the procedure. This is a particularly serious issue and I hope the Minister will give the amendments the consideration to which they are entitled. If this area is not addressed, an apprentice could continue operating in a practice at a time when serious allegations were made against him or her without the master knowing it.

Mr. O’Donoghue

The effect of the Deputy's amendments, apart from his amendment No. 7 to amendment No. 43, would be to make the apprentice's master an integral part of the inquiry into the alleged misconduct of the apprentice, which is precisely what the Deputy said. However, this is not warranted because it is the apprentice, and only the apprentice, who is being investigated. For example, why should there be any need to seek the observations of the master on the issue of whether there is a prima facie case?

Mr. Howlin

Could the Minister take it a little slower? This is a serious issue.

Mr. O’Donoghue

The misconduct may be related to the commission of a serious criminal offence which is in no way connected to the master. It is necessary as part of fair procedure to seek the apprentice's observations since he or she is the subject of the society's application, but that is as far as it goes. However, depending on the circumstances, there can be a role for the master in the inquiry. The master may, for example, be a witness before the tribunal, either called by the apprentice or the society, and in this way anything relevant that may be contributed by him will be available to the tribunal. Beyond that, there is no need for the exaggerated role these amendments confer on the master and, therefore, I cannot accept them.

The Deputy's amendment No. 7 to my amendment No. 43 is not acceptable to me either. He seeks to give the tribunal and the High Court power to award up to €5,000 to the apprentice, payable by the complainant, where the complaint was frivolous or vexatious and-or to direct the payment of the apprentice's cost by the complainant. I point out to Deputy Shatter that the new section proposed by me in this amendment does not give power to all and sundry to apply to the disciplinary tribunal for an inquiry into an apprentice's conduct. Only the law society is given that power. I expect one consequence of this would be that we can be assured that frivolous or vexatious applications will not be put forward.

Mr. Shatter

I am not pushing amendmentNo. 7 to amendment No. 43. I will withdraw it.

Mr. O’Donoghue

That is it?

Mr. Shatter

I want this legislation enacted, but I will not act as a rubber stamp. This has not been properly thought out either by the society or the Department. If an apprentice is working in a solicitors firm, he or she is under the supervision of the master to whom he or she is apprenticed. Normally, he or she works under their master's supervision. When the time comes for an apprentice to be given his or her parchment by the Law Society, the society will normally expect a report from the master to confirm that the apprentice met the required standards of those working in the legal profession. It is bizarre to suggest that an apprentice could be the subject of a complaint before a disciplinary tribunal which could hold a hearing into alleged misconduct relating to the manner, presumably, in which the apprentice dealt with an issue on behalf of a client of the firm within which the apprentice was working under the supervision of his or her master and that the master would not be privy to the fact that it is an issue.

It leaves it open to the apprentice, for fear of the master taking a particular view pending the outcome of a disciplinary tribunal, not to make the master aware of a complaint. It allows a complaint to be dealt with and processed by the society without any certainty that the apprentice's master would be informed of what is occurring. It is the wrong way to deal with this issue and I cannot understand the logic of it.

This is not to suggest the master would become the butt of the complaint, but one is talking about an unique relationship which the Law Society requires between apprentices and their masters. These serious amendments are designed to ensure that where an apprentice is the subject of a complaint, the person under whom he or she works within the legal practice is aware of it. The person is given an opportunity to make such observations as are relevant to the tribunal and it is not left simply to the discretion of the tribunal or the apprentice to determine whether that individual should be called as a witness. The person is given an opportunity to make observations. The observations might be of assistance or to the detriment of the apprentice, but in the context of ensuring standards within the legal profession, I do not understand why the Minister is so adamantly opposed to this other than perhaps it is a case of the usual departmental knee-jerk reaction to amendments tabled by Opposition Deputies. This is a serious issue.

Wearing my legal hat, over the years I have had apprentices in my law firm apprenticed to me. If a complaint was made against an apprentice in my law firm, and if I was the master of that apprentice, I would want to be made aware of the nature of the complaint. I would also want to be entitled as of right to know the progress made by the Law Society or its disciplinary tribunal in dealing with the complaint made. I would be entitled to know that. In the context of solicitors being responsible ultimately for negligence or other acts of those in their employment and solicitors being required to maintain insurance cover in these areas by the Law Society, I am entitled to that information. The Minister is dismissing this amendment without adequate thought or understanding the importance of what is being proposed.

Mr. O’Donoghue

It is important to point out that there can be misconduct by an apprentice which has nothing to do with the office. These matters would include, for example, the commission of a criminal offence or any other matter which would lead to bringing the profession into disrepute. These matters need not be related to the office. In so far as matters are related to the office, it would be fair to assume that the master would be well aware of any complaint in relation to the performance or non-performance by the apprentice during the course of his or her office work. Otherwise, one could not make the argument that the office was run with any degree of efficiency. As far as I can see, it is clear and straightforward. If Deputy Shatter wants us to make it abundantly clear that matters relating to the office should be reported to the master and that he should be kept informed at all times of what is happening in regard to the apprentice, which is a logical consequence of what is here, I am happy to consider that and to make that clear.

Mr. Shatter

If the Minister will consider that for Report Stage, I will not press the amendments. However, this issue needs to be given greater consideration and to be addressed.

Acting Chairman

Is Deputy Shatter withdrawing his amendments?

Mr. Shatter

I will withdraw the amendments and re-enter them on Report Stage if the Minister does not address the issue.

Amendment No. 1 to amendment No. 43, by leave, withdrawn.

Amendments Nos. 2 to 7, inclusive, to amendment No. 43 not moved.

Mr. O’Donoghue

I move amendment No. 44:

In page 9, before section 8, to insert the following new section:

"9.-(1) In this section-

'Compensation Fund' means the fund maintained by the Law Society of Ireland under sections 21 and 22 of the Act of 1960, as substituted by sections 29 and 30 of the Act of 1994;

'competent authority', in relation to a member state lawyer, means-

(a) where the member state lawyer-

(i) proposes to pursue the professional activities of a barrister under his or her home professional title and either-

(I) is authorised to pursue the professional activities of a barrister or an advocate under that title in the United Kingdom of Great Britain and Northern Ireland, or

(II) is authorised to pursue professional activities in any other member state,

(ii) is, by virtue of regulations under section 3 of the European Communities Act, 1972, pursuing the professional activities of a barrister under his or her home professional title,

the General Council of the Bar of Ireland,

(b) where the member state lawyer-

(i) proposes to pursue the professional activities of a solicitor under his or her home professional title and either-

(I) is authorised to pursue the professional activities of a solicitor under that title in the United Kingdom of Great Britain and Northern Ireland, or

(II) is authorised to pursue professional activities in any other member state,

(ii) is, by virtue of regulations under section 3 of the European Communities Act, 1972, pursuing the professional activities of a solicitor under his or her home professional title,

the Law Society of Ireland;

'corresponding EEA measure' means any measure or decision taken by the Joint Committee under the EEA Agreement and having an effect corresponding to that of the Directive;

'Directive' means Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a member state other than that in which the qualification was obtained and includes any corresponding EEA measure and a measure which is in force by virtue of the entry into force of the Swiss Confederation Agreement;

'EEA Agreement' means the Agreement on the European Economic Area signed in Oporto on 2 May 1992, as adjusted by the Protocol to that Agreement done at Brussels on 17 March 1993;

'home professional title', in relation to a lawyer, means the professional title used in the member state in which the lawyer acquired the right to use that title;

'member state' means a member state of the European Union (other than the State) and-

(a) on the State being required to implement a corresponding EEA measure, includes a state (other than a member state of the European Union) which is a contracting party to the EEA Agreement, and

(b) on the entry into force of the Swiss Confederation Agreement, includes the Swiss Confederation;

'member state lawyer' means an individual who-

(a) has the right to practise the profession of lawyer in a member state, and

(b) is pursuing, or proposing to pursue, the professional activities of a barrister or solicitor under his or her home professional title;

'Swiss Confederation Agreement' means the Agreement between the European Community and its member states, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, done at Luxembourg on 21 June 1999; and

references to regulations under section 3 of the European Communities Act, 1972, are to regulations under that section as amended by section 4 of the European Communities (Amendment) Act, 1993, or any subsequent enactment, and as extended by subsection (2).

(2) Regulations under section 3 of the European Communities Act, 1972, may-

(a) authorise, subject to the Directive, the competent authority concerned to require member state lawyers to take out professional indemnity insurance in accordance with its rules and, if they are pursuing the professional activities of solicitors, to contribute also to the Compensation Fund, and

(b) provide that the rules of a competent authority governing professional practice, conduct and discipline and, as appropriate, the provisions of enactments and regulations made thereunder relating to solicitors, including any of those rules or provisions containing sanctions for breaches thereof, shall have effect, with any necessary modifications, in relation to-

(i) member state lawyers pursuing by virtue of the regulations the professional activities of barristers or solicitors under their home professional titles, and

(ii) barristers or solicitors pursuing professional activities in a member state as if they were doing so in the State.".

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 45:

In page 9, before section 8, to insert the following new section:

10. "For the removal of doubt, a report of a case made by a solicitor shall have the same authority as if it had been made by a barrister.".

This new section provides that for the removal of doubt, a report of a case by a solicitor shall have the same authority as if it had been made by a barrister, for example, if the report is to be cited in court. There is a view that the current common law position is that only reports of cases written by barristers can be cited in court. If this is so, it is a position which would be very much out of date, given that since 1971 solicitors have had the right of audience in all courts. When the Courts and Court Officers Bill, 2001, becomes law before Easter, solicitors will become eligible for direct appointment to the superior courts.

Mr. Howlin

When will this happen?

Mr. O’Donoghue

Before Easter. Section 115 of the UK Courts and Legal Services Act, 1990, contains a similar provision to the proposed new section 10.

Mr. Shatter

The Minister vaguely referred to the view that a report of a case by a solicitor may not have the same authority as a barrister's report. Is this the view of the Office of the Attorney General or the Bar library? I am curious to discover who holds this view. Are the people who hold this view the same people who think solicitors and barristers should not act jointly as advocates in the courts? The Minister should clarify from where this view emanates. Has there been a case relatively recently, for example in the past 50 years, of a court delivering a judgment that a report of a law case by a solicitor lacks authority and the court should not have regard to it?

Mr. Howlin

I do not want to open an appalling vista, as there is great merit in the Minister's proposal.

Mr. O’Donoghue

I am glad Deputy Shatter considers 50 years to be relatively recent, as I am not contemporaneous with 50 years, to use a word he favours. Having said that, I do not wish to ascribe opinions to organisations, outside bodies or individuals, as Deputy Shatter has asked me to do. I am not aware of the feelings of others in relation to the matters he has mentioned. I can say, however, that my information is that the society of which Deputy Shatter is a revered member holds the view I originally expressed.

Amendment agreed to.

Mr. O’Donoghue

I move amendment No. 46:

In page 9, before section 8, to insert the following new section:

11."(1) The following provisions of the Solicitors Acts, 1954 to 2001, are hereby amended by the substitution of ’€3,000’ for ’£1,500’:

(a) paragraph (b) of section 55(2) (as amended by section 63 of the Act of 1994) of the Principal Act;

(b) section 56(2) (as amended by section 64 of the Act of 1994) of the Principal Act;

(d) subsection (3) of section 63 (as substituted by section 21 of the Act of 1994) of the Principal Act;

(e) subsection (16)(a) of section 66 (as substituted by section 76 of the Act of 1994) of the Principal Act;

(f) subsection (4) of section 8 (as substituted by section 18 of the Act of 1994) of the Act of 1960;

(g) subsection (4)(a)(ii) of section 15 (as substituted by section 25 of the Act of 1994) of the Act of 1960;

(h) subsection (2)(a) of section 19 (as substituted by section 27 of the Act of 1994) of the Act of 1960;

(i) subsections (4) and (7) of section 20 (as substituted by section 28 of the Act of 1994) of the Act of 1960; and

(j) sections 11(5), 15(14) and 78(15)(b) of the Act of 1994.

(2) The following provisions of those Acts are hereby amended by the substitution of '€30,000' for '£10,000':

(a) paragraph (a) of section 55(2) (as amended by section 63 of the Act of 1994) of the Principal Act;

(b) paragraph (b) of section 58(2) (as substituted by section 77(a) of the Act of 1994) of the Principal Act;

(d) subsection (4)(a)(i) of section 15 (as substituted by section 25 of the Act of 1994) of the Act of 1960; and

(e) section 78(15)(a) of the Act of 1994.

(3) Section 64(2) of the Principal Act is hereby amended by the substitution of '€3,000' for 'one hundred pounds' and for 'twenty-five pounds'.".

This amendment would increase the maximum fine for summary offences under this Act from £1,500, with one exception, to €3,000. In case everyone is getting excited, the exception relates to section 64(2) of the principal Act, which has not been amended since 1954, before my time. The maximum fine for bodies corporate purporting to be solicitors will increase from £100 to €3,000 and for directors of such a body corporate from £25 to €3,000, a figure advised by the Attorney General as an appropriate maximum on summary conviction. I trust Members of the committee will not object, as they have great respect and love for the Attorney General.

Amendment agreed to.

Mr. Shatter

I move amendment No. 47:

In page 9, before section 8, to insert the following new section:

"8.-For the removal of doubt a solicitor or solicitors may together with a barrister or barristers appear and act together as advocates in any proceedings.".

As the Minister is aware, solicitors have had a right of audience in the superior courts since 1971 and the reality is that some solicitors exercise that right. The Minister will be familiar with the phenomenon of a barrister, on occasions, acting for a client and, on other occasions, two barristers or two or three senior counsel, plus a junior counsel, acting for a client. In the debate on amendment No. 45, the Minister said some people think reports of judgment produced by solicitors may not have the authority of barristers' reports. I propose my amendment to draw attention to the fact that whereas solicitors can act as advocates in the superior courts, there does not seem to be any particular rule. Barristers feel inhibited in jointly acting as advocates with solicitors.

I put it to the Minister that as it is appropriate that two or three barristers may together act as an advocate in complex cases, there is no reason a barrister and a solicitor should not jointly act as an advocate. As amendment No. 45 was accepted to remove doubt, this amendment is equally tabled to remove doubt. I have not been able to find any legislation indicating a difficulty with this, but there seems to be a difficulty in practice. It is in the interest of the consumers of the legal profession that solicitors and barristers should jointly act as advocates, where appropriate, and I ask that this amendment be accepted.

Mr. O’Donoghue

Under section 17 of the Courts Act, 1971, solicitors have the right of audience in all courts. I am not aware of any doubt in relation to their right to advocate in any proceedings, either by themselves or together with barristers. Deputy Shatter has already blazed a trail in that regard and he even left some smoke behind. I knew a man who went to see a film two or three times to see if John Wayne would shoot the Indian on the second or third occasion. I have no great problem with those who cry o solo mio, but I am not so sure that one can sing a duet if one’s partner refuses to sing, be it from the same hymn sheet or another. The difficulty with this amendment, as I read it, is that there is no legal provision preventing Deputy Shatter’s proposal from happening, for example, to prevent solicitors and barristers appearing together as advocates in any proceedings. I do not think I can legislate to force barristers to do so, as that would demand consultation with the Bar Counsel, as a matter of courtesy. There is no law preventing what this amendment seeks, so I am not disposed to accepting it.

Mr. Shatter

Can I draw to the Minister's attention to the fact that there is no law requiring barristers to wear wigs, but because it is an anachronistic practice that the Law Library seems incapable of addressing, legislation was passed in 1995 making clear that it was a discretionary option? There is no law preventing solicitors acting jointly as advocates with barristers, but a restricted practice operates whereby some members of the Bar disapprove. Others may be quite happy to act jointly with solicitors as advocates in appropriate cases, but because of the disapproval of their fellows they feel it may be an unwise thing to do, just as not wearing a wig was seen as unwise before 1995.

Acceptance of this amendment by the Minister would contribute to the modernisation of the legal profession. If he says there is no law prohibiting it, there is no reason it should not be taken on board. It is no different, in reality or in principle, to amendment No. 45. It is extremely difficult to identify any particular law justifying amendment No. 45, other than a vague feeling that the reporting of cases by solicitors may not have the same authority as if it was done by barristers. The previous amendment was adopted "for the removal of doubt" and I ask the Minister to accept this proposal in that light. Given that solicitors have been allowed to act as advocates in the superior courts since 1971 and that the Minister has proposed in the Courts and Court Officers Bill to allow solicitors to become High Court and Supreme Court judges, and presumably to act jointly in that regard when there is a divisional sitting with colleagues from the Bar library, there is no basis for not agreeing to this proposal. My amendment will not upset anyone except those committed to restrictive practices and I urge the Minister to accept it. There is no basis for not accepting it. It can only be in the interest of the public in terms of the current manner in which the courts system works and it may ultimately spare the public costs and save money. I urge the Minister to accept the amendment as there is no philosophical or ideological basis for not doing so. There is no reason any particular group should have a veto on the acceptance of this amendment.

Mr. O’Donoghue

I have no philosophical or ideological difficulty with Deputy Shatter's proposal. I said at the outset that I was not disposed towards making it an imperative. On a more detailed reading of the amendment, it is clear that it would not change anything as it does not even make it an imperative. The amendment states, "For the removal of doubt a solicitor or solicitors may together with a barrister or barristers appear and act together as advocates in any proceedings." That is the current situation. I look forward to the day when, under the Courts and Court Officers Bill, we see solicitors on the superior courts. I have no doubt there are several solicitors who could make a fine contribution to those courts. However, this amendment would not change anything. In view of that and the fact that there is no law preventing this measure, I do not see the point in accepting the amendment.

If, for example, this were to be an imperative, it would make sense. However, the difficulty with that is it would require consultation with the Bar Council. I would not dare to introduce legislation regarding any organisation unless I had, at the very least, paid it the courtesy of discussing the matter with it. That would be the case whether it concerned the Law Society or the Bar Council.

Acting Chairman

The client foots the bill. Solicitors are usually the first point of contact and they seem to head off and employ junior and senior counsels. I make that point genuinely and not facetiously. We might be able to consider a publicity campaign or whatever to allow non-legal people to know they do not need this plethora of senior counsels and barristers.

Mr. O’Donoghue

I suggest we examine this matter again on Report Stage.

Mr. Shatter

I am happy to come back to this issue another day, but there are two issues I wish to raise. The rationale the Minister gave for not accepting the amendment could have been given for not tabling amendment No. 45 in the first instance. The logic is the same. As the Minister correctly observed, this amendment does not make anything compulsory, but it sets out the position for the removal of doubt. The Minister said the amendment would not change anything.

I should make a declaration of interest in that I am a solicitor and I wish to bring to the Minister's attention an event in which I was involved. I wish to illustrate to him how the amendment can bring about change. About two years ago I made a courteous and pleasant inquiry of the then chairman of the Bar Council as to whether it had a ruling which would prevent a junior counsel acting jointly as advocate in a major case with a solicitor, namely, me. I could not get a reply for about 12 months after which the chair of the council changed.

I finally received a reply about 18 months after my original letter which informed me that the Bar Council was turning down my application to become a senior counsel, an application which was never made in the first place. The reason for my query was that I was aware of a number of junior counsels who had no difficulty acting jointly as an advocate with a solicitor in High Court proceedings, but who felt they were constrained by the way they would be viewed by some of their peers if they did so. When I sought a reasonable response as to the position I found it impossible for 18 months to get the Bar Council to address the issue.

I finally wrote to the Bar Council and pointed out that I had no interest in becoming a senior counsel and asked if someone could please reply to my query, but 12 months later, I am still waiting for a reply. A restrictive practice is in operation and I would be happy to provide the Minister with the correspondence. The restrictive practice is that some members of the Bar Council are anxious to prevent junior counsels acting jointly as advocates with solicitors. This is wrong in the context of the Courts Act, 1971, and the Minister's proposals under the Courts and Court Officers Bill. A measure such as that proposed by the amendment would provide protection for junior counsels who are willing to so act in cases and possibly save clients the expense of hiring a senior counsel. This is a specific issue which needs to be addressed.

We are not going to finish the Bill today and I am happy to give the Minister time to think about this issue. The amendments have been around for some time and the Minister may be able to confirm that this amendment was tabled, I think, three or four months ago. He has had a lot of time to follow it up. I am happy to put this off until another day to give the Minister more time to follow it up. However, I am not going to withdraw the amendment on the basis of coming back to it on Report Stage.

Mr. O’Donoghue

We are dealing with amendment No. 47 and only amendment No. 49 remains. Deputy Shatter's amendment refers to the removal of doubt, but that presupposes there is a doubt. There is no doubt.

Mr. Howlin

Then what is the difficulty accepting it?

Mr. O’Donoghue

The amendment proposes to remove a doubt which does not exist.

Mr. Howlin

If the principle of joint advocacy being allowed is not contested, what is the difficulty in inserting the amendment in the Bill? The argument that it adds nothing is neither here nor there. If it does not do damage to the concept the Minister thinks is there already, then he should accept it.

Mr. O’Donoghue

That would be a poor statutory framework.

Mr. Howlin

We have just done so regarding amendment No. 45. The Minister's argument, and we can reread the record, is that there is no difficulty with solicitors having the same authority as barristers. However, we should declare that to be the position in case someone has a different opinion.

Mr. O’Donoghue

That would make for a poor statutory framework. Were we to proceed on the basis that legislation would not change anything we could be here forever enacting legislation which meant nothing. That is not the intention of legislation. I always thought legislation was meant to change things which are, or are not, in existence. I always considered legislation to be for change.

There is no doubt what Deputy Shatter is advocating is already the position. He says he had difficulty regarding a junior counsel and that the Bar Council replied to him 18 months later refusing him an application for a position for which he had never applied. Before Christmas I pointed out that Deputy Rabbitte became the first Irishman to refuse an invitation he did not receive in the first instance. However, I have never heard of someone being refused a position for which he or she never applied. This is also a first.

Mr. Shatter

There is a first for everything.

Mr. O’Donoghue

There must be, but this is an extraordinary situation. I suggest that Deputy Shatter takes up the matter with the Bar Council to see why it is writing such frivolous letters. If it has done so then that is an extraordinary position for it to adopt.

It is not for me to tell the Bar Council how to do its business and, in the same way, this amendment would not change anything. If DeputyShatter is concerned about the fact that, for example, there is no clarity regarding solicitors acting on their own or together as advocates with barristers, then I will examine that to see if some clarity can be brought to the matter. It would not be my intention to exclude solicitors from the kind of proceedings Deputy Shatter envisages. However, the amendment, as presented, changes nothing. I am prepared to examine this issue in the context of the philosophy which underlies the Deputy's argument.

Mr. Shatter

I am not going to withdraw the amendment. Deputy Howlin has a difficulty and, in fairness, we agreed to adjourn at 7 p.m. It will not take long to complete the Bill. The Opposition has facilitated the Minister and I would expect him to do likewise regarding this amendment. I want to give the Minister time to think that over because what is being proposed is not unreasonable. I have set out clearly a real difficulty that exists. I would inform the Minister that the experience I have given relating to myself has been replicated by other solicitors.

SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate - Tuesday, 26 Feb 2002

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

SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 26 Feb 2002