Can we proceed to consideration of amendment No. 4 and amendment 1 to that amendment.
SECTION 2.
I move amendment No. 4:
In page 5, between lines 24 and 25, to insert the following:
"‘bill of costs' includes any statement of account sent, or demand made by a solicitor to a client for fees, charges, disbursements, expenses, remuneration (or profit costs);".
This amendment includes the definition of the term "bill of costs" used in the Bill in the interpretation section. As the term "bill of costs" may have a specific restricted meaning in certain circumstances, for example, in connection with a taxation or adjudication of costs by a taxing master in the courts, it has been felt to be necessary to define the term as including any demand made by a solicitor for fees, charges, disbursements, expenses or remuneration. It is simply a matter of tidying up the drafting and ensuring that that term "bill of costs" which is used throughout the legislation will not be given the restricted meaning which it is understood to have at present.
I move amendment No. 1 to amendment No. 4:
After "(or profit costs)" to insert "provided a reasonable detail is included in any such bill of costs to enable a client to understand the basis upon which the fees are levied and sought".
I think this is a very reasonable amendment. This is another aspect of the whole issue of dealings between solicitor and his client. Are you referring to party and party costs or to solicitor and client fees?
To the latter.
Very often you can see great delay on this whole question of where party and party costs are referred to the taxing master. Somebody can be left waiting who had been advised by the court that he has had been awarded costs but is left wondering what is happening, getting no information and I find this is very unsatisfactory. Also the aspect of solicitor and client fees is vitally important. Deputy McCartan is asking in this amendment that a reasonable detail is included and I believe that is a reasonable proposal.
I take the Deputy's point that it is a reasonable proposal. If Deputy Sherlock looks at section 62, it goes a long way to meet what Deputy McCartan is trying to achieve when he put down that amendment. Section 62 provides that on the taking of instructions by a solicitor to carry out work for a client he has to provide particulars in writing of the detailed basis of the charge. Section 62 (6) relates directly to what Deputy McCartan has in mind. It provides that where a solicitor charges fees to a client arising from contentious business conducted by the solicitor on behalf of that client, he shall show on the statement of account presented to the client details of any cost claimed or received by the solicitor on behalf of the client from any other party or parties in the same proceedings. Those details shall show separately the amount in respect of fees, charges, disbursements, expenses and remuneration or profit costs of that client's solicitor in relation to the matter. From that point of view, section 62 (6) deals with the basis of charge for contentious business, I think that the point Deputy McCartan is trying to achieve has already been met. I am sure Deputies McCartan and Sherlock will welcome the new section 9 of the Bill which I do not want to anticipate debate on now, but section 9 provides that, if a person is overcharged or feels he is overcharged, instead of going through the tortuous procedure of going through a taxing master, employing other lawyers etc., he can make a direct complaint to the Law Society. This is to facilitate members of the public who do not want to go to other lawyers into a quasi judicial situation again. Section 9 deals with the bill of costs i.e., if a person disputes the amount of the bill of costs. If we define the term bill of costs in too much detail it may provide a loophole for the solicitor to avoid allowing the client to avail of the provisions of section 9 by giving him a bill which would not come within the definition or be sufficient to encompass the definition that Deputy McCartan is trying to add on to the basic term which we are defining in as short as possible a manner by virtue of amendment No. 4. In view of the fact that section 62 deals with nearly all of Deputy McCartan’s fears in this regard and in view of the fact that we would not like solicitors to be in a position to avoid allowing the client to avail of the provisions of section 9 I would prefer to let it stand as it is.
I would like to come in briefly on that. While I see what Deputy McCartan and Deputy Sherlock are aiming at, it does give a solicitor, by withholding detail or by not properly drawing up the bill, a loophole through which he could slip and frustrate the very action which Deputies McCartan and Sherlock have in mind. It would be imprudent to press that particular resolution. The Minister has indicated that when you take section 62 and the new section 9 into account they would achieve the same benefit.
The thing that puzzles me about the Minister's amendment is why it refers to disbursements. In other words if a solicitor has laid out money and paid out disbursements on behalf of a client and furnishes a bill to that client seeking to recover — not for work he has done, but for money he has paid out for that client — why should a bill of that nature have to be subject to being referred to the Law Society for examination and thereby give an excuse to the client to delay refunding to the solicitor what that solicitor has disbursed for him. The solicitor does work and has profit costs that is fair enough. It very frequently happens that a client will say "pay the doctor the £100 for that medical report" or "pay out on my behalf" and the solicitor does so. Very often those amounts paid out for a client, disbursements, are actually paid out of the solicitor's pocket. Those payments can amount to quite substantial amounts on occasion. As a certain point in time the solicitor decides he wants to get that money back that he has paid out of his own pocket for the client so he sends a bill for it. Is the Minister saying here now that when the client gets that bill he can say "I will send this for examination by the Law Society instead of refunding what has been paid out for me"? That seems to be grossly unfair and grossly inappropriate.
I have read section 62 and subsection (6) would appear to cover the points to some extent. In the amendment Deputy McCartan says that:
"detail is included in any such bill of costs to enable a client to understand the basis upon which the fees are levied and sought".
That is the reasoning to get this inserted. It is a bill of costs which enables the client to understand its basis. I listened to Deputy Taylor's comment and may I just make the point that it is very fine where a solicitor is entitled to disbursement of funds which they have paid out for legal costs. We also have a situation where some solicitors, not all, where they can see that there is a good chance of winning a case have no hesitation in going to the bank and opening accounts. In one occasion we saw where a joint account was opened between the solicitor and the client. Those situations do not happen frequently but they happen.
What of it?
Right, but it is very important in such circumstances that the client would get a bill that would set out all the details and be easily understood. That is what we are asking.
I would like to refer to a point made by Deputy Taylor. He regarded as abnormal or in some way objectionable the right of a client to make a query about a disbursement. It is not beyond the bounds of possibility that a solicitor would be imprudent in making disbursements and perhaps encourage a friend or relative or close associate in another profession to send in an inflated bill so it would be entirely appropriate that a client would have the right to query even disbursements and payments which had already been made if the client regarded, and had reason to regard, those disbursements as being imprudent and excessive.
In relation to what Deputy Roche said, I fully agree with him. We must understand that it is not in every case that the disbursements made on behalf of a client by a solicitor are a matter of total agreement and of no dispute at all between the solicitor and client. I have often seen cases where there was substantial disagreement on whether the disbursement was properly made or not or whether a disbursement of that amount should have been made or not. I would have to let the definition stand as it is.
If a client disputes a disbursement as having being unauthorised or being excessive, he does not have to pay it. A court, like many other dispute will adjudicate on it. Could the Minister explain how the Law Society is going to adjudicate on or examine the situation as to whether a disbursement was well taken or was adequate or not? That is not their function. If one person, be it a solicitor or anybody else, pays money on behalf of another and that other says that that money was excessive or was unauthorised, that is what the courts are for, they decide whether a contract was there, whether the agency situation was there or whether it was not. Is the Minister then, by this provision, going to give the task to the Law Society, a task which is not appropriate to them, to go in to the whole question of whether a particular disbursement was excessive, was incurred with the knowledge or authority of the client, expressly or implied. How could they possibly do that; that is a matter for a court to decide. There is no obligation on any client who receives a bill from a solicitor to pay it. They can refuse to pay it and very often they do. If they dispute it as being a breach of contract situation like any other breach of contract, our law provides a procedure for dealing with it. We should stick with that. On a separate point, I do not understand the Minister's amendment. I am puzzled when I look at the Minister's amendment as to why the words "or profits costs" are in brackets. I do not understand how that draftsmanship arises. It does not make sense. Perhaps the Minister could explain why the words "or profits costs" are in brackets.
I will take the last point first. I shall have a look at that. It is not immediately clear to me either. On the question of your earlier point, disbursements can often be a substantial part of a solicitor's bill. We are providing in section 9 for an inexpensive and simple way for people to complain if they have been overcharged. At the moment I feel personally — and I speak as a politician — that people are very unhappy with the mechanism whereby they can dispute a bill which they feel is too high. They have to go back to courts, they have to get other lawyers, they have to go before a quasi-judicial tribunal, namely, the taxing master. We are trying to simplify it in section 9. A lot of what Deputy Taylor says is anticipating the debate on section 9 which I do not want to happen because we want to make progress here. We are providing an alternative remedy. We are not ousting the jurisdiction of the taxing master but we are providing an alternative remedy. It is the decision of the Government that, even though people in certain quarters might not like this, we are nevertheless determined to go ahead and do it. That is our decision. We will discuss it and we will debate it on section 9 which is the appropriate place to debate it.
We will deal with section 9, Chairman, when we come to it. We are dealing here with an amendment which the Minister is moving, giving a wide definition to a "bill of costs" for the purposes of section 9 and including the issue of disbursements in it. Section 9 where this definition will come into play and be relevant provides that when the reference is made by the persons at the Law Society, that the Law Society shall "investigate the complaint". You can have a situation on these disbursements where you could have four, five or six witnesses who might be relevant people to give evidence as to whether the expenditure of this disbursement was authorised, as to whether it was reasonable or not reasonable. You would have the equivalent of a full blown court case to determine that issue. Is the Minister saying that the Law Society are going to investigate a matter that could require the sworn testimony of five or six witnesses to determine whether or not that client authorised the disbursement. It is easy to fall into the idea here that we are dealing with a hard done by, impecunious client who is being pressurised. That is the popular kind of aura permeating this Bill, excessively so in my opinion. Whether it is or it is not is only one side of the issue or one side of a solicitor's business. There is another very important side of solicitors business involving big companies or try-on companies or business people and this Bill will apply to them just as much. Now some such company or big businessman carrying on big activities may be running up disbursements or having his solicitor run up his disbursements on all kinds of assurances and promises — lay that out for me and I will do such a thing — and there could be quite substantial disbursements, not by an unfortunate person who knows little about it but by substantial business people and they will be entitled to avail of this procedure. That business person will avail of their responsibilities perhaps for a long time by referring this matter for investigation by the Law Society. How are the Law Society going to investigate it when they do not have power to summon witnesses, to swear witnesses, to take sworn testimony and so on? How can one put that kind of imposition realistically or practically on the Law Society when it is not a court? The Minister is a very practical person and he knows how these things could and would operate. The Law Society would not be in a position to investigate it unless they are given the power to summon witnesses, the power to swear them and to conduct the matter in the manner of a court case. That is what would be required. Otherwise, it is grossly inappropriate to provide for disbursements being a fit subject to be hived off for investigation by the Law Society. Costs — yes that is a different matter. That is a matter for the Law Society though I am not sure if the Law Society as such are experts in costs which is an expert field on its own. Let us leave that aside for the moment, that is arguable at a different level. But to suggest that disbursements, actual money paid out of the solicitor's own pocket, perhaps for a big company or a big businessman and so on, should go for an investigation by a body that is incapable of investigation is entirely inappropriate. I would ask the Minister to reconsider and at least on this definition to drop the word "disbursements".
I would like to make a counterpoint to that. It does strike me that we are again anticipating section 9. If we take a look at section 9 "frivolous" and "vexatious" are in there, so there is the opportunity of remedy if a business or a powerful client is in fact merely trying to persecute or trying to avoid paying what they are due to pay, if they are trying to use this clause. The first group of people who are more likely to get stuck under this clause are the impecunious, the more powerless citizens. I would take the point made by Deputy Taylor that clearly and obviously there would be powerful people who would try to avoid and seem to get away with avoiding their responsibility, particularly to a solicitor who has already made disbursements for them. It does strike me that the exclusion of "frivolous" and "vexatious" and leaving a degree of discretion to the Law Society on these matters which is done in section 9 will actually take on board the very point which Deputy Taylor is making.
I want to thank Deputy Sherlock for backing for me for that period of my absence. So long as the Minister intends to include a definition of a bill of costs for the Bill, I think it should be as comprehensive a definition as is necessary. I understand that the Minister has made reference to the provisions of section 62 which we will get to later in the Bill. I am concerned that if we are to have a definition at all for a bill of costs then it should be as broad as possible and should also include a requirement that any bill of costs would carry with it detail with regard to enabling a member of the public, a client to understand the basis upon which fees are levied. This concern comes directly from experience of listening to people who come to advice centres, and I am sure every Deputy in this room has come across this, of mandatory and peremptory notes being presented to clients saying that they should pay X amount, without any indication as to where or how this figure is arrived at. For example a professional fee of whatever figure is levied without any outline as to the extent to which professional input was required in doing the work.
Another more worrying and regular method of collection of fees by solicitors is at the point of handing over the cheque in the settlement of a claim. All kinds of devices are used where the solicitor will hand the person a cheque on his or her own account with a percentage taken off to allow for other expenses, professional outlays on whatever not recovered from the other side. It is a take it or leave it job. It presents people with a huge difficulty and absolutely no possibility of working their way out of it. Unfortunately I have seen it happen all too often and I have heard of it happen all too often in practice. That type of situation is coupled with a one line receipt perhaps and nothing more. It is most often used in a percentage scenario where the solicitor says I am taking 10 per cent or 20 per cent and it can be higher. I have heard of scandalous cases higher than that. If we are getting into the realm of regulating in this area, then we need to make sure that our definition of bill of costs is a comprehensive and wide one and that it is drafted in such a way as to enable the client understand what exactly they are being charged for and the basis upon which it is being charged.
I missed some of the discussion and for fear of repeating things that have already been said I am not going to do that. This is only the definition section and the Bill at various stages refers to bills of costs. In so far as it makes reference to them, I have no particular problem in there being a definition of that reference. I want to take the opportunity of laying down a marker in relation to this. In the context of the Bill as we go through it and as we go through Part III in particular, there are various amendments that I have tabled to try and make what appears to be the Minister's thought processes in this area, at least workable in a practical sense. In relation to what Deputy Taylor was saying, I would retain a greater degree of scepticism over this than simply having reservations about the role of the Law Society making adjudications on the concept of disbursements.
My difficulty with this Bill — and this difficulty is mirrored by other members of the Committee including the two previous speakers — is that we are all solicitors by profession and there is a danger that people will think we are engaging in some form of special pleading. The difficulty on the other side is that all of this is so technical and involved that people who have not worked in this area will have great difficulty in coming to terms with what the legal provisions here are. I have serious reservations about the Law Society's making any adjudications of any nature with regard to the appropriateness or otherwise of bill of costs levied by solicitors on clients for any work in any area. This Bill seems to have lost sight of the fact that we have legislation which provides for solicitors' bills of cost to be taxed by someone called the Taxing Master of the High Court or by county registrars. Deputy McCartan should be well aware that if a solicitor does present a client with a bill and deducts money at source, it is not a question of take it or leave it because if the lawyer's customer gets rotten service he is entitled to complain. If he is overcharged he is entitled to complain. The customer should know and be aware of the fact that if, in his view, a lawyer overcharges there is an existing procedure to allow for someone with expertise to determine whether bills of costs are appropriate or not, and indeed to require that moneys be repaid where there has been an overpayment.
Where this Bill gets confused is where the Law Society apparently wishes to perform a whole series of different functions, some of which are appropriate in my view to its functions and others are not. As we come through this, I am not sure how the Law Society, indeed what segment, committee or representative of the Law Society, is going to make decisions in relation to bills of costs. Instead of having a straight forward procedure it seems to me that when it comes to dealing with the more substantive issue we are going to have a more complex procedure, that is going to give rise to confusion. Indeed if bills of costs are to be examined by the Law Society, if they happen to be examined by a couple of people who do not have any particular experience of the legal area to which the bill relates, there are going to be some very bizarre decisions reached. There are problems here. I have no problem with the Minister defining bills of costs and it should be noted that disbursements would normally cover — perhaps Deputy Taylor said this — not merely paying fees off to the medical profession for doing medical reports in a civil action. For example, they might also include paying large fees to accountants for doing works in preparation for a variety of different types of court proceedings or for simple legal advice in company law or other business areas, and, most often they will include fees payable to barristers which the Law Society has no jurisdiction over at all, and I am not suggesting they should. But that is why this procedure is faulty because the Taxing Master of the High Court can look at excessive charges of both solicitors and barristers and it is very bizarre now to provide a dichotomy where the Law Society is going to do a double scrutiny of one end of it and the Taxing Master of the High Court is going to be able to look at two ends of it. What the Law Society can say about disbursements to barristers — senior and junior counsel — who charge fees for particular work escapes me. As Deputy Taylor mentioned and I was about to come to it, a very substantial disbursement is in simple stamp duty to the Government levy. In the bills of costs area the greatest barrier to the ordinary person, the person who may feel they have been wrongly dealt with, having a bill of costs independently adjudicated by a Taxing Master or a county registrar is not a barrier in reality presented by the legal profession, it is the barrier presented by Government in the very large stamp duties that are charged for availing of the service. We are not addressing that in this Bill at all, but that would fall into the area of disbursements. Even if you recruit what are known as legal cost accountants, which many Committee members will not be familiar with, but if you recruit them to deal with bills of cost, that is a disbursement.
There are levels within this Bill that, due to the technical background to all of this and the complexity of the way the legal profession operates, and the dichotomy between solicitors and barristers which we are going to have to address as we travel through this, do not make this definition simplistic at all. In conclusion, I take the view that there are three groups of people who are hugely unpopular when popularity polls are taken with the general public. If you want to look at who is bottom of the list in the general publics' level of esteem you will normally find lawyers, Members of the Oireachtas, particularly TDs, they tend to ignore Senators in this context, and an older profession which I will not avert to. Members of the Oireachtas have their own view of what profession that should be. The general public have a different view. As we travel through this Bill I would suggest we do not, even those of us who are members of the legal profession, just for the sake of the cheap headline engage in simple lawyer-bashing and presume that all lawyers that undertake work for clients, maybe this is special pleading, are crooks and out to do their clients. I think the reality is that 95 to 96 per cent of lawyers who do work do it in the hope that they will achieve a good result for their client and in the hope that they will get paid for their work, but are not out to do their client. There is a small percentage of lawyers with whom we have a problem and they are the people we have to address in this Bill. In dealing with a cross issue I would hope we could approach it along those lines. What we need to put in place is a simplistic mechanism to tackle those problems and not layers of bureaucracy and confusion. In my view this is what this Bill is going to produce but the definition of bills of costs is just an adjunct to trying to clarify complex sections in later parts of this Bill that, I suspect, may not in practice greatly help anybody at the end of the day.
Chairman, I am slightly amazed to see two solicitors disagreeing and one agreeing here on this issue because there is a very strong perception by the public that there is a mumbo jumbo within the legal profession that nobody outside of it is allowed to touch. It is sacrosanct — the holy cow. It reminds me a little bit of the plumber who used to charge £1 and 6d for doing a job, 6d for doing the job and £1 for knowing how. It comes to that sort of perception by people in this area.
I see no reason why full accountability should not be given of a bill. If one buys anything in a grocery shop, whatever it is at whatever professional level it is, you know what you get, you pay for what you get and the charges are there. There is a perception, despite the remark by Deputy Shatter that the legal profession do not do such things as "take it or leave it" on bills, that this is not the case — it is a well known fact. There is a story in my area where a man had a serious accident. He fell into a hole and an award was made. When he got the award he looked at what the court had awarded and what he got from the solicitor and he asked "who fell into the hole — you or me?" It is widely accepted that these things are happening. Not only are the costs paid but a huge percentage is taken out on the other side as well, up to 10 per cent in many cases. That is happening to people who do not know what their rights are, who I must say in either ignorance or any other fashion are not aware that the Law Society are there. Even if they are aware they have a slight doubt about the one legal body dealing with the members of its own body. That perception is out there whether it is right or wrong. I think we have seen a lot in the last couple of months of a few members of the society that have gone wrong in many areas, unfortunately clients have been left in a particularly bad state. This is but one of the other things I would like to see added, if the Minister could find a way to doing it, apart from the disbursement argument here in which I think the client is perfectly entitled to see what was paid for what along the line. After all it was in his name that it was being done.
Nobody is disagreeing with what Deputy Davern has said. What I was trying to say is that we need a simplistic procedure. I agree that people should know what they are paying for.
The other item I would like to see included in that explanation is of that awful one you see at the end of the bill, sundry expenses. I fail to see where that one comes in at the end of a huge bill which can be quite a little mountain itself. It is part of the mystery somewhere down the line. I would like to say to the members of the profession here and generally that there is a perception out there that people are not being honestly dealt with. The vast majority of the profession are decent people but at the same time there is a need for the people themselves to know their rights, what exactly they are paying for and what was paid for on their behalf, for the sake of both sides.
Two further speakers are waiting. However as we have spent 30 minutes, if not more, on this amendment to an amendment we will have to endeavour to bring this to some conclusion fairly quickly.
Chairman, I will be brief because Deputy Davern has reflected what I would think in what he said, and in particular in relation to solicitors. There has always been an air of mystique about them as people whom you did not question. Usually in relation to solicitors practices which as I know in rural Ireland, pass down from father to son and some for several generations. These solicitors were looked up to in their local community. In relation to itemising costs etc. I know the Minister when questioned in relation to profit costs stated that he did not quite know what was meant by that, he would check it out. I think what it meant was that, as far as the customer is concerned, he likes to know what he is being charged for and what sort of profit margin is being made at the end of the day by the solicitor. I feel the whole objective is to get rid of this mystique that surrounds the solicitors' profession, which probably has given them a bad name. The whole objective of this amendment is to do that. I would support Deputy Davern in what he says and also Deputy Shatter who mentioned that a customer should know that he has the right to object and how to go about objecting. In relation to a lot of the customers, when they come in contact with solicitors, they are entirely over-awed by this situation and they are unsure of their rights. Where in comparison they can go to builders providers and get different prices, you do not do that with solicitors. If you decide on your family solicitor, you decide on him alone. You do not shop around and see where the cheapest prices are. I would say that if the amendment removes a certain amount of mystique and gives accountability to the solicitors' profession, so much the better.
Mr. Browne (Carlow-Kilkenny)
Chairman as a non-solicitor, with no hang up about solicitors, but I have been dealing with them, I think in the long run if this Bill does not make something simple for the customer as well as the solicitor we are at nothing. Deputy Shatter says that everyone knows about the procedure of complaints, I know nothing about solicitors. If I get a bill, I pay it. Even if he had it broken down, can I argue whether or not he had to pay £350 to senior counsel or to anybody else? I think that if the solicitor's profession itself has not got a standard that can be looked after by the Law Society or some such organisation, the customer is always going to be a victim. How else do we know? If one goes to a doctor, he brings a gang of trainees around you, you are discussed as if you are a vegetable sitting in the bed, you ask questions and he really has not time to answer anything for you, yet you get a bill afterwards for services rendered. How can one break down whether you were over-charged or not? We are all going to be the same way when it comes to getting bills from solicitors or barristers. They will talk away in the corner and come back and tell you what they have decided and who are you to argue with them. If this Bill is not going to make a simple procedure where there are standard fees, it will not always be standard because more work will be done in some cases, but if it is not tied up in a legal sense, the customer will be the loser.
Deputy Shatter said that this definition is merely an adjunct to what is contained in later sections. I think we have got to move on. There is nothing to stop us changing definitions in our consideration of later sections even if we have agreed to them at this stage. We can do it during the passage of this Bill through committee or at Report Stage.
Briefly I will deal with some of the points made. Deputy McCartan made the point about percentage damages and taking money off the cheque before the client receives it. We are trying to deal with that in section 62, and whether what we propose is going to do it adequately or not, well that is what Committee Stage is about, and we will discuss it at that stage.
Deputy McCartan agrees that disbursements should be included in the definition of bill of costs. It is appropriate that they should be and I intend to let that stand.
I did make the point to Deputy Sherlock, who was batting very adequately on your behalf before you came, no disrespect to yourself, that under section 9 it is our intention to provide to a member of the public, who is aggrieved by what he thinks is an excessive bill received from a solicitor, a simple method of complaining about excessive charges. Section 9, as you will note, refers to bill of costs. If we define bill of costs too elaborately we may give solicitors the opportunity to prevent the client availing of the section 9 provision by drawing up a bill of costs that does not exactly come within that definition. Deputy Shatter has expressed scepticism about the whole procedure of the Law Society examining costs, he says the Taxing Master is in place to do this. As Deputies Davern, Browne and Finucane have said the problem we have in real life is that when a person complains about the bill he received from his solicitor, he comes to somebody looking for advice: another solicitor, TD or whatever and he is told that he will have to go back before another quasi-judicial tribunal, namely the Taxing Master of the High Court and he will have to get a solicitor to represent him there. He needs that like a hole in the head. It is the last thing he wants to hear. We are trying to provide a simple mechanism for that aggrieved individual, that he writes to the Law Society and the Law Society can investigate, if it is possible for them to investigate. You will note under section 9, which I do not want to anticipate, that the Law Society will make a determination, only if they find that the costs are grossly excessive. They will not do it for the sake of £50 or £75, it must be grossly excessive. There is also a screening mechanism whereby the Law Society can exclude complaints which they consider frivolous or vexatious. There is also a provision whereby the Law Society are statutorily obliged to try and reconcile the situation between the client and the solicitor. We will deal with section 9 in some detail when we come to it, but I do not think that great difficulties, whether real or imagined, should stand in the way of us trying to do something about this very real problem out there.
Deputy Davern spoke about the question of sundry expenses — that is related to section 9 and to some later sections, particularly section 62, and we will deal with it at that stage.
Shall we move on.
I am happy with what has been suggested. I would have been happier had we included the definition in the way I indicated but in view of what has been said and of the way we are at different ends on this issue, I withdraw my amendment and would support the proposed amendment of the Minister.
Amendment 1 to amendment 4, by leave, withdrawn.
Amendment No. 4 agreed to.
We will proceed to consideration of amendments Nos. 5 and 6 as they are related.
I move amendment No. 5:
In page 5, line 25, to delete "any person who is a successor in title to" and substitute "the personal representative of".
Amendment agreed to.
I move amendment No. 6:
In page 5, line 28, after "will" to insert ",intestacy".
Amendment agreed to.
I have a query. Could I ask the Minister why, in his original circulated list of amendments, he included the words "or other financial institutions" and he sought to delete those words after the word "a bank"? Why did the Minister feel it was not necessary to maintain those words within the definition at this stage?
We have rejigged a definition of "bank" to include other financial institutions by an amendment which I am putting down subsequently.
Have we seen that amendment.
No, the proposed amendment has not as yet been circulated.
The point I wanted to make, and I take it that it is well taken, is that solicitors do use other institutions besides banks for the holding of money.
Yes, that is why we will be amending the definition subsequently.
Will the Minister move amendment No. 7?
I move amendment No. 7:
In page 5, between lines 29 and 30, to insert the following:
"‘client account' means an account opened and kept by a solicitor at a bank for clients' moneys and for moneys of any trust of which the sole trustee is a solicitor with a partner of his or with more than one such person;".
Amendment agreed to.
Amendment No. 8 in the name of an tAire.
I move amendment No. 8:
In page 5, line 31, after "a court or" to insert "tribunal or".
I just welcome that amendment. I raised that specifically at Second Stage on the Bill. I was pleased to see the Minister had tabled that amendment. It never made any sense to exclude tribunals from this provision.
Just to say that it was in deference to Deputy Shatter's comments on Second Stage that we have included this amendment.
Amendment agreed to.
Amendment No. 9 is consequential on amendment No. 15 and they will be discussed together, by agreement.
I move amendment No. 9:
In page 6, to delete lines 5 to 8.
Amendment No. 9 deletes the present definition of documents in the interpretation of the section. A more comprehensive definition of the term is included in a later official amendment, amendment No. 15. Amendment No. 15 incorporates a new section 3 in the Bill which includes an up-to-date definition of the term "solicitor" and an up-to-date definition of the term "documents". Perhaps, if you look at the new definition of solicitor and the new definition of documents, it would be helpful if I just outlined what the present definition is. The present definition of solicitor in the Solicitors' Act, 1954 is and I quote:
"‘Solicitor' means a solicitor of the courts of justice."
This has been criticised as lacking in definition and being imprecise legally. The term "courts of justice" is not used in modern courts legislation. The present definition of documents in 1960 Act is and I quote: "‘documents' includes deeds, wills, papers, gifts of accounts, records, vouchers and correspondence."
I have a couple of queries about this. First could I ask the Minister if he is happy with the actual definition of solicitors, now contained therein. It seems to me to be extremely vague in detail. It says, for example, a solicitor means a person who has been admitted as a solicitor. The question is "admitted" by whom and to what and "whose name is on the roll"— the roll of what? Where do we find a reference to a roll? A reference to a solicitor "includes a firm of solicitors unless the context otherwise requires." As the Minister says, in the 1954 Act there was specific reference to the Courts of Justice Act. Would it not be prudent that we retain in any subsequent definition or the building of a definition, a reference to the grounding Act, if you like, or legislation that establishes, if you like, the jurisdiction of the President of the High Court over the solicitors' profession in terms of the admission to the roll and the maintenance of the roll. I find that definition remarkably vague in detail as to what exactly is being done, who is doing the admitting, what is the roll, etc. In regard to documents, the second aspect of the Minister's amendment, again the 1960s Act helps to illustrate the point I am trying to make. The amendment contained in the 1960 Act is an amendment that reflects all of the technical knowledge that was available at that day and time with regard to documents. In other words as much as we ever thought possible in terms of constructing a document were deeds, wills, papers, books of accounts records, vouchers and correspondence. We have found with the movement of technological expertise and other developments that it can also include other items, electronically or otherwise recorded. The point I want to make here is that I think we should include in a new definition of document, the fact that technology will move on, will never stay at a standstill and we should include in the definition the power of the Minister to change the definition of document by way of regulation rather than bringing it back to amending legislation. Supposing something technological develops, as inevitably it will. We see for example in the last two decades, a movement from the record player to the tape, to the digital compact disc and we are told there is a digital tape somewhere in the offing that is being held back until the market forces dictate. Technology is moving but our definition of documents as provided for here will not accommodate such movement and development. I did not include or suggest this, or circulate amendments to this but I suggest to the Minister that it is something we should say, that "a document includes all the things that are listed or such other item that the Minister may, by regulation provide for" or wording to that effect.
Mr. Browne (Carlow-Kilkenny)
I want to play the role of solicitor at this stage now. You read out the definition of a solicitor in the old times. A solicitor is a solicitor who practices in the law courts or some such thing.
It is a very straightforward line and it says "‘a solicitor' means a solicitor of the courts of justice".
Mr. Browne (Carlow-Kilkenny)
This one says: "‘A Solicitor' means a person who has been admitted as a solicitor". If you do not know what a ham sandwich is and you are told a ham sandwich is a ham sandwich you get in the bar of Leinster House. How do you know what a ham sandwich is? How do you define a solicitor as being a solicitor?
Perhaps by defining a ham sandwich——
I have heard of technology but likening a solicitor to ham sandwich that is——
(Interruptions.)
Mr. Browne (Carlow-Kilkenny)
How can you define a solicitor as being a solicitor? What is a solicitor if you do not know what he is starting off? It does not strike me as being very self explanatory.
Perhaps if you are defining a ham sandwich as a ham sandwich you get in the bar in Leinster House you probably say "a ham sandwich includes a ham sandwich you get in the bar in Leinster House". The point here, and I take what Deputy McCartan says, is that we are introducing this definition by way of amending section 3 of the Principal Act. We are taking out, as it were, the definition of solicitor in the Principal Act which is the Solicitors' Act, 1954 and substituting a new definition. The new definition goes into the 1954 Act as it were and it must be read in the context of the 1954 Act as a whole. Section 9 of the 1954 Act states: "the registrar shall maintain an alphabetical list of solicitors in this Act referred to as ‘the roll'. The registrar shall keep the roll available for public inspection during office hours without payment". Section 10 (1) of the 1954 Act states, "a person who has fulfilled such of the requirements of Part IV of this Act as apply in relation to him may apply to the Chief Justice to be admitted as a solicitor". That is where it comes from basically. In relation to the point that Deputy McCartan makes about documents you will note that the definition is inclusive, it is not exclusive. It includes these things. That means that the definition that is there is not exhaustive. I take your point about electronics. It is something I will look at between now and Report Stage.
Is amendment No. 9 agreed? Agreed.
Amendment No. 9 agreed to.
Amendment No. 9a. 11 is an alternative, 21, 27a, 33a, and 38 are related. Amendment Nos. 9a, 11, 21, 27a, 33a and 38 will be taken together by agreement.
I move amendment No. 9a.
In page 6, between lines 9 and 10, to insert the following:
"‘legal services' includes any services of a legal, financial or other nature provided by a solicitor in connection with that solicitor's practice as a solicitor, and includes any part of such services;".
I am proposing this amendment to include a definition of legal services in the Bill because the services provided by solicitors in recent years may not have been limited solely to the traditional legal area. Solicitors have widened out their area of expertise with the encouragement of the Law Society and many are now involved in the provision of financial advice and services. This is a welcome development as it increases competition in these areas and offers choice to the consumer. In any event it is not always practicable in modern times to make a clear distinction between the provision of traditional legal services and the provision of ancillary services. There will inevitably be a grey area where it becomes difficult to distinguish between legal and other related services. It is essential though that the regulatory and disciplinary powers of the Law Society should be sufficiently wide in scope to deal with the all the services provided by solicitors to their clients. It is possible that solicitors' services may expand further in the years ahead. Accordingly, a wide definition of the term "legal services" is proposed but the definition will make it clear that the services covered by it will be limited to services provided by a solicitor in connection with his practice as a solicitor.
I support the Minister's amendment. I have proposed my own amendments to cover gaps in the legislation. I am happy to withdraw them in favour of this one because I think it covers very adequately the point being made, namely that solicitors simply do not confine themselves to legal advice or indeed to professional assistance. I have seen the work of some solicitors approaching, by and large, property speculation — negotiations in major deals which we read about in the newspapers. A particular solicitor comes to mind immediately. You wonder whether he works as a solicitor at any stage at all or if he is better off in the property market. In addition to that, there have been attempts by the Law Society and I have taken on their point on a number of occasions but not on others as there is a major difference of views between me and the Law Society on this. They are attempting to confine the scope of the Bill in the disciplinary area to the legal as opposed to the professional or, if you like, the broader scope of it. For example, if you look at amendment No. 21 which has been adopted by Deputies Shatter and Taylor, as their amendment, I disagree with that. That, for example, is an attempt to take out the word "professional" in the scope of section 8 and substitute it with the word "legal". A solicitor has to be susceptible in all the investigations of complaints for all of the services that he or she would purport to deliver to the client. They are going to get into the broader issue. The wider issue here, Chairman, is that if one looks at the report of the Fair Trade Commission on the legal profession, they are working towards a broadening of the market and of the element of competition on the delivery of service so that for example, other institutions like banks and building societies can come into certain areas of legal service. The corollary of that is that lawyers can also go off and go into wider areas of service. I am surprised, I have to say, that the Law Society would be arguing for a restriction in this way in the list of amendments of submission they made. They themselves, particularly the solicitors in Dublin, embarked on an auctioneering service where they set up the Dublin Solicitors' Property Service. They recognise that solicitors need not be confined now in the delivery of a singular professional legal service. There is a whole other range of work that they could do. The process is an ever changing one. I remember as an apprentice working in a provincial practice where the solicitor I was apprenticed to provided a wide range of expertise and service to people in the area. I am sure many solicitors who are on the committee here would remember solicitors in times past preparing tax returns. One of the invidious jobs I was given as an apprentice, was to fill out the returns for people who had dividends coming to them from England — English bonds that are nontaxable or on which you can get tax refunds. I cannot remember the specific impact of it. Here was a service that was not in the legal field at all, it was being provided and was expected to be provided. There is a whole range of this. Our legislation must reflect the fact that there are times when the professional service delivered by solicitors can be wide ranging or specific and expert in some ways. To the extent that we are going to provide for a diversity of service then, equally, the legislation should reflect that. That is why I welcome the Minister's amendment. It is a comprehensive one and it takes in all of the various different potential areas of work that a solicitor can — and I hope will — continue to deliver. They are expanding and diversifying in their work rather than contracting or going into any particular corner. I support it. I have not had time in the way you called them out to follow them through but I have illustrated, for example, that I would not be happy with the restricting provision or the approach being taken by the Society and adopted by Deputies Shatter and Taylor of confining the investigative and disciplinary processes to legal functions only. It must be in the broadest possible professional sense. That is the approach I take. I specifically propose one of the amendments which is not taken on board. It is amendment No. 27a which is dealing with subsection (4) (a) . . . where the Society can require a solicitor to refund in whole or in part moneys paid to a solicitor in cost, where they find that there has been overcharging. There I think the word "professional" should be included, as is suggested, to describe the services he has purported to provide. That should include professional services. The point has to be borne in mind that we are, in the investigative process, seeking to police primarily the professional, legal and other services that a solicitor provides. On occasions people can come to solicitors and say that they saw a solicitor issuing a public relations statement on behalf of clients who were aggrieved with a settlement figure that the Government was offering in respect of a pardon that had been issued. I received — but I do not know whether other members did — a press statement that was issued through the solicitor. That is not a professional service, if for argument sake, those people were aggrieved with the content of the statement. We have to look at whether or not that is something that the Law Society should be getting itself involved in, in its policing.
That is precisely the point.
I know it is the other side of the coin, but we are dealing in subsection (4) (a) with the question of the bill of costs and refunds of moneys. I have a different view when it comes to the question of moneys and how it is refunded and dealt with. This needs to be looked at, Chairman, and the Minister's amendment is a good starting point in regard to it.
I must admit I am extremely confused by Deputy McCartan's contribution. He was arguing very forcibly against amendment No. 21 submitted by Deputy Shatter and myself, to delete "professional" and substitute "legal" but when he came to the end of his argument, he gives the argument which supports the grounds for that amendment. In other words that matters outside the legal or possibly the financial area——
I disagree with legal.
The final thrust of your argument was that, where a complaint arises on the PR issue, it would be entirely inappropriate for the Law Society to be involved in that. It is obviously inappropriate for the Law Society to be involved in that kind of situation. It is not a question that a solicitor should not be amenable in some form for anything that he does, any contractual relationship that he sets up with a client for any purpose. It is a question of where the Law Society should be involved in it. The Law Society obviously would be involved in any matter affecting legal advice or legalities or anything of that nature or payments or financial matters. But on issues that a solicitor gets involved in outside that ground, the Law Society would be entirely inappropriate and that is the basis of the suggested amendment, to delete the word "professional" and substitute the word "legal".
Chairman, it strikes me that what Deputy Taylor is saying is that if somebody issues, as Deputy McCartan said a statement on behalf of a client and that that statement may be perceived to be wrong afterwards, he has taken it within his own competency in the legalities of the issue to make that statement. Therefore I would feel that he would be liable for that as well.
He may be liable for it but the question is whether the Law Society is the body to deal with it.
Then on the other hand you must either exclude the previous ones where it says that solicitors should only deal with legal matters and nothing else. You cannot have it both ways. From the point of an outsider — a non legal person and you have got to stick with this right through — if you choose to be involved in all areas then you must be responsible for all areas. The governing body of solicitors is the Incorporated Law Society and the Minister can account for all areas that the solicitors are getting themselves into because what is done is done in the name of a solicitor and the trust in that name is tremendous one. It has to be respected.
Just to clarify my view, because the Minister's definition, with which I am happy, is one that includes a legal, financial — and I suppose the Minister should clarify this — or other nature. To what extent does he suggest that "or other nature" extends to the concept of professional assistance. If a member of the public goes to a solicitor and seeks his assistance in his professional capacity, not necessarily confined to legal work, then the solicitor or his firm should be susceptible to the full investigative and disciplinary matters. For example, where a client says "there is something here which I would like you to do"— it comes to my mind about the issuing of a public press statement for example — that is something that I think a solicitor should not or could not be said to be professionally responsible for and he simply does it as a matter of convenience. If things go wrong in that area I do not see why the disciplinary process should be brought to bear on his shoulders. I am not happy with confining it to legal issues. There is a wider concept of professionalism and professional service beyond the legal service. I am not absolutely sure whether my example of PR work is a good one.
I think it is a very good one.
Well it is an example and I would like the Minister, therefore, to say to what extent he sees legal, financial or other nature going. There is a general principle of construction of legislation that references to formulae like "other nature" are referrable back to the previous wording that is "legal and financial". Is that the extent of the definition that the Minister is talking about or are we getting into a situation where you contend that your amendment provides for any service irrespective of its nature, its complexity or whatever?
It is not a question of the Minister's interpretation if that is what the Minister's amendment specifically says. It says "legal, financial or other nature provided by a solicitor in connection with that solicitor's practice". Anything a solicitor does in connection with the solicitor's practice obviously would come within the bounds of the Minister's definition. I think the example given by Deputy McCartan is an excellent one to illustrate the point we are talking about. Taking the question of the PR press statement, if a solicitor issues such a statement on behalf of a client, that would be a professional and not a legal service provided by the solicitor. If it is going to be suggested that a client would be entitled to complain to the Law Society that such a statement was inadequate because, unless the amendment proposed by Deputy Shatter and myself is acceded to, such a complaint to the Law Society in those circumstances would be open, that seems to me entirely inappropriate. It is not appropriate that the client, if he feels he was wrong done by or the solicitor did not measure up, may not and should not have a complaint in some court or forum. That is not the issue. The issue is whether the appropriate place to go complaining about the inadequacy of that particular service is the Law Society or not. As I said at the outset of this debate, I am a solicitor. If I ran for the Law Society and was elected — which I was not on the one and only time I went forward but if I was — and served as a member of the Law Society and the question was put to me of whether a particular press statement issued by a solicitor for a client was adequate or inadequate, I would not feel it was in any way appropriate for me to start or be capable of examining the adequacy or not of a press statement that a solicitor would put out. We are talking about legal services and matters allied to the legal or financial side. I think the reference to the Law Society in those circumstances is quite adequate to meet the situation of any professional involvement other than on those matters which are not appropriate to the Law Society. They may be appropriate to another forum.
I would ask Members if, prior to intervening, they could indicate that to me because, in fairness to Deputy Browne, he had indicated a while ago that he wanted to contribute.
Mr. Browne (Carlow-Kilkenny)
My contribution will be short. If a solicitor acts as a PRO for some company and he signs his name as John Murphy, PRO, and whatever else, that is one aspect; but if he signs his name as John Murphy, BL., and he is there as a solicitor these are regarded as two different things. I do not know which Deputy McCartan is talking about.
The second one is advertising.
Mr. Browne (Carlow-Kilkenny)
Well if he signs as a solicitor, I cannot see why it is not part of his professional work at that stage. He is sticking his neck out as a solicitor and he should be dealt with as a solicitor.
First of all I want to thank the Members for an interesting and very exhaustive debate. I am pressing amendments Nos. 9a and 33a. It so happens that if the definition of legal services contained in 9a is accepted then we will be accepting amendments Nos. 21 and 38 in the names of Deputies Shatter and Taylor.
You are accepting them.
Yes I will be now that we are incorporating a definition of legal services. On the question of the definition of legal services and what should be covered, I can think of arguments for and against. The fact of the matter is that we have made a stab at it. I agree with Deputy McCartan's point in that we should not confine it strictly to legal work. We should not confine the disciplinary procedure and the right to complaint strictly to legal work in the narrowly understood sense of the word. We have made a stab at defining what we want to include and we have included the phrase "in connection with that solicitor's practice as a solicitor", now that may not be adequate. If anybody else on this Committee feels that we should not confine it to narrow legal work as I understand the concept, can they come up with a better definition to incorporate what we want to incorporate and what should be incorporated. I would like to see that. In the meantime, I shall consult with the Praliamentary Draftsman to see if we can get closer to where the majority of the Committee Members certainly want to get to.
In the context of the speed with which supplementary amendments at this stage seem to be rolling out of the printing press, am I to take it that amendments 21 and 38 when we reach them will be adopted and that there will not be a supplementary series of amendments next week to change that yet again. In fairness to what the Minister is saying, I understand that that is the case but it does have an impact on the working of those sections. I appreciate that what the Minister is saying is that he will come back and look at his own 9(a). We will come back to that at Report Stage. That is fair enough.
If you look again at the definition of legal services——
Yes it will not affect those particular amendments.
The Minister might answer the question I had posited. In the working of his definition does he see that all work undertaken by a solicitor, once a person goes through the door of a law office to stand in front of a solicitor's desk, will be covered by his definition, irrespective of the nature of it.
I am a bit slow to say that all work is covered. The Deputy himself gave the example of a press release. Presumably that press release in the particular case he mentioned was issued for a particular purpose. It was issued on behalf of the client to get the maximum amount of compensation for the client and it was providing a service for the client. It was ancillary to the legal service the solicitor was giving in looking for compensation for that client for which he was paid. I presume that a certain amount of hours went into the preparation of that press statement which would be charged in the usual way. The newspapers that accepted this release, if it was printed, or somebody who was engaged to print it on glossy notepaper, the solicitor had to pay them. The bill would presumably be a disbursement which we have now decided will be within the definition of the bill of costs. My own instinct in regard to all services for which a solicitor charges and which are directly related to legal services being provided for the client is to include them. I take Deputy Taylor's point that PR or publicity might not be something upon which the Law Society would be well able to adjudicate. It is something that I will have to give some more thought to. What I want to cover by definition is every service that is provided by the solicitor which is directly ancillary and related to and enhances the legal service he is providing for the client. It should be covered, if it is possible to cover it.
Chairman, could I ask the Minister to be a bit more clear on this. In his area and my own area, as our constituencies border, a solicitor is going around this week telling people that they should have a solicitor employed to get their "mulder quota" and their back money on it. Their mulder relates to milking cows — certainly different to the dry dock of the legal profession! He is advising people that they should be in. He is not good at cultivating — which is an agricultural area — and he comes out with a publicity statement on this. If clients go to him because of what he has done, surely he should be investigated if he goes wrong with that case afterwards. Many solicitors use the opportunity to publicise their own office. They usually volunteer to make the press statement as well so that they will get the publicity.
I take your point. On the specific case you mentioned, we have an amount of regulations and rules coming from Brussels concerning the actual entitlement to quotas and application for quotas. In fact the entitlement to the "mulder quota" was established by a decision of the European Court of Justice and certainly you would need somebody to be in a position to read that and interpret it and apply the present regulations to it. That would be a legal service. There is nearly a branch of the law in milk quotas at this point in time.
Amendment No. 9a agreed to.
Amendment No. 10 has been ruled out of order. I understand, Deputy McCartan, that you have indicated your intention to table a substitute amendment No. 57b which would bring both amendments 10 and 57b into order and if the Committee is agreeable consideration of the subject matter of these amendments can be deferred until Deputy McCartan's substitute amendment No. 57b is reached the next day. The substitute amendment will be circulated before the next meeting.
I would like to thank you for that. While I propose to revise amendment 57b Deputies will see that I was dealing with the attempt to expand this office of adjudicator into what we are being told it would be, and that is an Ombudsman. The problem that I run into is that in my amendment I propose that the costs of maintaining the office would be in whole or in part levied on the professions. Because I use the words "in part" there are implications for State funding so I am letting members know I intend to remove those words in order to get the issue on the agenda and to discuss and debate the extent of this office. I will be saying that professions must pay the contributions to maintain the office, but for that reason only. I would like to thank you for facilitating me.
Amendment No. 11, has already been discussed with 9a. Is it being moved?
It hasn't been moved yet, Chairman. I presume that it ceases to be relevant in the context of the discussion that we have had on the Minister's amendment No. 9a and I further presume from the Minister's remarks that we are going to come back to the issue again at Report Stage. It would seem to me, subject to Deputy Taylor's view on this, that the appropriate thing is not to move it at this stage and to revert to dealing with the now definition of legal services at Report Stage. We may seek to table further amendments later but first we will wait to see what further thoughts the Minister has on it.
Amendment No. 11 not moved.
I move amendment No. 12:
In page 6, to delete lines 12 and 13. This amendment proposes to delete the definition of the term "financial institution" in section 2 because that term is being removed from the provisions of the Bill by other proposed amendments.
Amendment agreed to.
I move amendment No. 13:
In page 6, to delete lines 14 and 15, and substitute the following:
"‘sole practitioner' means a solicitor who is practising as a sole principal, in a solicitor's practice;".
Amendment agreed to.
I move amendment No. 14:
In page 6, to delete lines 16 and 17.
This amendment deletes the definition of "state sponsored body" from the interpretation section because of the repeal of the National Development Corporation Act, 1986 on which that definition was based. The Draftsman had advised that there was no other suitable statutory definition of the term which appears only in one provision of the Bill, section 67 (5).
Amendment agreed to.
Section 2, as amended, agreed to.
NEW SECTION.
I move amendment No. 15:
In page 6, before section 3, to insert the following new section: 3.—(1) Section 3 of the Principal Act is hereby amended by the deletion of the definition of ‘solicitor' and the substitution of the following definition:
‘"solicitor" means a person who has been admitted as a solicitor and whose name is on the roll and a reference to a solicitor includes a firm of solicitors unless the context otherwise requires or excludes;'.
(2) Section 3 of the Act of 1960 is hereby amended by the deletion of the definition of ‘documents' and the substitution of the following definition:
‘"documents" includes deeds, wills, papers, books of account, records, vouchers, correspondence, files and any documents relating to a trust; and shall be construed to include any documents stored electronically or on film or otherwise;'.".
Amendment agreed to.
Section 3 deleted.