Select Committee on Legislation and Security debate -
Wednesday, 12 Jul 1995

SECTION 30.

Dr. Woods

I move amendment No. 37:

In page 22, lines 4 to 6, to delete subsection (6).

The purpose of this amendment is to delete subsection (6) which states that any law centre may provide legal aid or advice to more than one party to a dispute provided that each such party is represented by a separate solicitor and, where appropriate, barrister. At present, there is no statutory prohibition on both parties being dealt with in the same law centre. It is dealt with on an administrative basis by the board. This is a matter about which people are concerned because two solicitors from the same office may have to deal with the two parties involved in a dispute. At present, there are many ongoing family law cases and if the divorce referendum succeeds there will be — at least in the early stages — an increased demand for services.

It is almost impossible to avoid a conflict of interests in a case where both solicitors are from the same centre because they will talk to each other at the office. It would be preferable to have solicitors from different centres involved. This is often the case in Dublin where a number of centres are situated. Since there is a panel of solicitors available it should be possible to arrange for use of a private practitioner in one of the cases. People's concerns in this area stem from their perceptions. It is important that the solicitors dealing with family law cases should be seen to be separate by the parties involved. There is real concern about the difficulties for solicitors — acting for both parties involved in one case — who meet regularly at work and have to deal independently with such a case. Solicitors have stated that it is difficult to keep the issues completely separate. It is difficult to deal with family law cases because they involve a major amount of conflict and it would be preferable that the solicitors do not come from the same centre. Arrangements should be made for them to be seen to be coming from different centres or the panel of private solicitors.

Those are my concerns and I would like the Minister to address this issue. He may wish to consider if for Report Stage to see if anything further can be done. Subsection (6) contains a very positive provision that "any law centre may provide legal aid or advice to more than one party to a dispute". I doubt if it is necessary to include that provision. Legal aid or advice should be provided but this could be done by different means. For example, a solicitor from another law centre or the panel might be used for one of the parties. It is, therefore, an issue about which concern has been expressed. I look forward to the Minister's comments and ask him to consider the matter for Report Stage.

Mr. Kenneally

I support the amendment. It is an issue which I also raised on Second Stage. It is very dangerous to go down this road because, inevitably, in any walk of life, people working together tend to talk afterwards about the day's work and so on. Something is bound to be revealed where two solicitors representing different sides to a case are from the same centre. In view of the clerical back-up provided to a law centre, the same typist may type something for both sides. A mistake could be made, for example in sending papers, which could prejdice a person's chances in court. In some of the law centres there may be only two solicitors and one typist, with files lying around the place. In such circumstances, while I do not suggest that a solicitor will go through another solicitor's files, misfiling may occur or other such incidents. It is, therefore, dangerous to proceed on this basis. The position is that in such cases, two different law centres are used. Will the Minister reconsider, given that matters have operated satisfactorily to date? We should continue as heretofore.

Mr. O'Dea

There will be a lack of confidence in the system if both parties have been represented from the same office. It is similar to going to a firm of private solicitors and having one employee representing one side and another employee in the same office representing the other side. There were slight difficulties hitherto in that with few law centres people may have had to travel great distances to another centre to avail of their rights. However, with the proliferation of centres it should not be unduly difficult to arrange for legal aid and advice, either from an alternative centre or to take sombody from the panel, which is the solution proposed by Deputy Woods. Will the Minister carefully consider this proposal?

Mr. Taylor

Section 30 (6) provides that any law centre "may provide legal aid or advice to more than one party to a dispute provided each party is represented by a separate solicitor and, where appropriate, a barrister". The amendment in the name of Deputy Woods would have the effect of requiring that in all cases where both parties are legally aided they should be represented by separate law centres. I am not disposed to accept the amendment because it would not be in the interests of the clients, the efficiency generally of the law centres or the best use of the resources of law centres. It could, for example, mean that applicants for legal aid would have to travel long distances to a law centre other than the centre nearest to them.

Any fears that Deputies may have regarding possible breaches of confidentiality are without foundation. My understanding is that the Law Society has issued no directive or guidelines on the matter in so far as private practice is concerned. It is fair to assume that no specific difficulties have come to notice. There is no rule of law on the matter either. The law centres, as professional agencies, will, where necessary, make arrangements to ensure that where, through its solicitors it represents both parties to a dispute, representation will be on a confidential basis and that that confidentiality will be maintained in each case by the solicitors concerned. I am satisfied that this is the best way to proceed and the best way to use the resources of the board.

There was a reference by Deputy O'Dea and Deputy Kenneally to the posssibility of using the private practitioner's scheme. However, the scheme is limited in so far as the types of cases it handles are concerned. It does not operate across the spectrum of work that the law centres do. In addition, there may not be private paractitioners on the panel in a specific area as they are not in all areas. The key words in this regard are that the law centres ". . . may provide . . ."; there is no compulsion about it. If one of the parties, or one of the spouses, had gone to the law centre at, for example, Portlaoise, and the other spouse did not want to go to the same centre because of that, there is nothing to stop that spouse from going to the next nearest law centre. In many cases that could be some distance away.

Notwithstanding the much increased number of law centres, there could still be considerable distances involved and there would be many cases where the person concerned would not wish to do that. It would, therefore, not be right, and I am sure Deputies would agree that we should not debar such people if, as a matter of convenience to themselves, they were happy, and wished to consult another solicitor in the law centre in the same town, rather than having to travel 80 or 100 miles, and in some cases probably more, to another centre.

It is only an enabling provision. There is no compulsion on anybody, on two people or two spouses from the same town, to go to the same law centre. If they wish to go to different centres they can do so, and will be facilitated. However, if they wish to go to the same centre they should not be debarred from doing so.

Dr. Woods

We are concerned about this. Deputy Kenneally raised the example of what may happen given the clerical assistance in the one centre, especially when computers and word processors are in use. These issues need to be examined and the Minister should consider them for Report Stage. As he has not undertaken to do so, we must press the amendment.

Ms Keogh

Did the Minister refer to the reference made to using somebody from the private panel in his reply? Presumably it is possible for one person to be looked after by the law centre and for somebody to be referred to a solicitor on the private panel.

Mr. Taylor

That is a possibility, provided two conditions are met. The first is that panel solicitors are available and the second is that the specific kind of case involved would be within the category of cases handled by the private panels. There are certain categories of cases that the private panel does not handle at present although this could change in future. In an ideal situation, there would be a choice, but in a case where there was no choice, people should not be sent 100 miles to the next nearest law centre if they are happy to attend the same law centre and see a different solicitor.

Some of the law centres have more than two solicitors, some of them are big practices and most of them have more than one secretary. In any event, it is only an option available if the law centre offers it and if people wish to avail of it. There is nothing to stop them from going to the next law centre if they wish. The heads of the law centres are responsible people and if there was a difficulty with only one secretary or something like that, they would doubtless advise those concerned and leave them to decide. We should not be in the business of forcing them to travel 100 miles. It might be very difficult for them if they were happy to attend——

Dr. Woods

I do not believe that anybody wishes to make people travel those distances.

Mr. Taylor

I am informed that every solicitor in each law centre has a secretary.

Dr. Woods

There did not appear to be any need to include this provision because administratively, matters were dealt with, and, currently, arrangements are being made where they are necessary. However, the provision raises the issue to the point where somebody can say afterwards that the Act allows for any law centre to take this kind of action.

Mr. Taylor

It is by way of giving a right to a client. It would be an ease of a client and not of anybody else; it is not an ease of a law centre.

Dr. Woods

Where there are conflicts there will certainly be a perception problem and I appreciate the difficulties in certain areas. Will the Minister again look at what is being done and if it can be expanded in any way? If not we will have to vote against it.

Mr. O'Dea

I remind the Minister that in the case that the first party to a dispute goes to a law centre they may not be happy if the second party comes in. However, the section enables the law centre to deal with both parties. If the first party is unhappy with the second party coming to the same law centre, they have no choice. I ask the Minister to take account of that in his consideration.

Mr. Taylor

Such a factor would be taken into account by the head of a law centre. There is no compulsion involved in what we are providing here. Deputy Woods is not suggesting we should put in a prohibition, thereby implying it could be done even if the clause was not there specifically allowing it. Nobody is suggesting there should be a prohibition. When we take up that position we envisage there could be cases where it would be appropriate, and to put in a prohibition would cause an unnecessary difficulty to people who would wish to avail of the facility in their own town even though the spouse was a client there.

There is no compulsion about it. It is only an enabling provision. The probability is that it would apply anyway even if that was not there. To make it clear we are specifying it.

Dr. Woods

The Minister mentioned that the Law Society had not expressed concern but I suggest that between now and Report Stage he might consult them.

Mr. Taylor

I agree.

Amendment, by leave, withdrawn.

Amendment No. 38 not moved.

Section 30 agreed to.

Sections 31 and 32 agreed to.