I want to raise some points on section 13. As I understand this section — and I have no particular argument with what it provides — it seems to imply that, following an investigation of a complaint, a determination or a direction is given under the Act, a solicitor may be required to contribute £1,000 towards the contribution, or £1,000 payment towards the fees of the society or costs of the society. I want to clarify this. As I understand when the society receives a complaint it can make a direction to a solicitor to produce the file or the papers and then the society might investigate the complaint and discover it is groundless. My interpretation of his section is that, where a direction has been given to produce files or papers and even where it is discovered that a complaint is groundless, the society could require the solicitor to pay a sum not exceeding £1,000. I want the Minister to clarify that because it would appear that that is not a reasonable provision.
The second issue I wish to raise is a difficult one but I think it should be raised and I would not be doing my duty in the context of teasing out the implication of this Bill for everyone concerned if I did not raise it. There is an assumption here that if a complaint is made against a solicitor which, when investigated, is proved groundless, or, let us say, when a complaint is investigated it is discovered that the person who made the complaint is either malicious or has personality difficulties and there is no real valid complaint against the solicitor at all, the society has to investigate it — and that does happen and anyone who works in the legal profession would know of such happenings. What will the position be of that solicitor against whom it is held the complaint was groundless? I am raising that particularly because there is an assumption that if a complaint is made against a solicitor the solicitor hands over the file. It does not do the solicitor any harm once the complaint is found to be untrue or to have no basis but the reality is a solicitor faced by a complaint from a malicious client may not only suffer great emotional distress, may he lose considerable time in setting out the work he has done for his client and defending himself in front of the Law Society.
This is equivalent to a doctor who has an allegation of malpractice made against him. A solicitor so confronted may feel the need to protect his position by seeking representation. Indeed, in front of the Law Society committee a solicitor may decide he wants to be represented by a colleague in the legal profession — a solicitor or counsel because the solicitor may be too emotionally distraught by allegations made or feel he or she is too close to what is happening to deal with it properly.
Throughout this Bill there is one assumption we should confront. There is an assumption that most solicitors are hookey and out to fiddle their clients. In fairness, Deputy Allen, myself and others today have made the point that we accept there is a problem with the minority of solicitors and they need to be dealt with because they are creating a huge problem for the legal profession, as the profession knows to its cost, in the context of complaints being made against the profession's funds, where some of these gentlemen leave the country. I carry no can for those people but I am concerned about the position of the solicitor who under this system is the recipient of a complaint that is malicious who may lose a number of weeks' work in his practice because he is under stress, who has to incur expense or rely on the goodwill of colleagues to represent him and is found to have dealt in a satisfactory way with the complainant's legal affairs.
Should this legislation not allow for some penalty to be imposed on a complainant whose complaint after full investigation is found to be vexatious? There is an assumption in section 8 or section 9 that the society does not have to conduct an investigation when a complaint is made if it deems the complaint vexatious and frivolous. The assumption is that, almost on its face, the society will be able to adjudge complaints vexatious and frivolous. The society will receive many complaints which may seem extremely impressive from the manner in which they are made against the solicitor and it is only at the conclusion of a full investigation and a determination that the society will discover that the complaint was vexatious and frivolous. At that stage, some of the damage will have been done to the person who is the subject of that complaint.
I do not believe we should put in place a system where someone who makes a valid complaint which is then investigated and the society feel that what occurred should not have happened but as it was not particularly serious they may feel that there is a conflict of evidence and they cannot reach a determination. I am not suggesting that people who make complaints and who were not successful in establishing the facts in full of their complaint should be financially penalised. What I am suggesting is that when the Law Society reaches a decision that a complaint was vexatious or made out of malice there should be a penalty imposed or, if the society cannot impose a penalty on the complainant because he is not a member of the society, it should be able to make a report to the President of the High Court who should be able to determine whether a financial penalty should be imposed.
In that context I come back to the case I mentioned earlier in which a person is currently suing a variety of solicitors through the High Court for events that happened many years ago — and I think suing the Law Society as well. As I understand it the person has not been successful in the interim stages. If such a person sought to malign a number of solicitors there could be open season to bring consecutive complaints against the Law Society which, on their face, may sound impressive but could tie up the Law Society's investigative procedures and the solicitors involved for a long time. There would be nothing in this legislation to prevent a repetition of a series of complaints by someone who had been represented by five or six solicitors over a period of years, all of whom had done their best but, at the end of the day, they were being maligned by the person they sought to assist.
I particularly want to emphasise again that I am not talking about the generality of complaints but about the small number of individual complaints made by people out of malice or who may be unwell and decide they are going to take a case against someone who some years earlier was of help to them. If we allow for a fine to be imposed on a solicitor — and I have no objection to that — who has behaved improperly to the extent of his being required to pay some of the society's costs, we must make provision for the other side of this problem.
