Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I move amendment No. 98:

In page 46, before section 45, but in Chapter 1, to insert the following new section:

"CHAPTER 1
Preliminary

45.--(1) An act or omission of a legal practitioner may be considered as constituting misconduct where--

(a) the act or omission involves fraud or dishonesty,
(b) the act or omission is connected with the provision of legal services, where the legal practitioner has fallen short, to a substantial degree, of the standards reasonably expected of a legal practitioner,
(c) the act or omission, where occurring otherwise than in connection with the practice of law, would justify a finding that the legal practitioner concerned is not a fit and proper person to engage in legal practice,
(d) the act or omission consists of an offence under this Act,
(e) the act or omission, in the case of a solicitor, consists of an offence under the Solicitors Acts 1954 to 2013,
(f) the act or omission, in the case of a legal practitioner who is a barrister, is likely to bring the barristers’ profession into disrepute,
(g) the act or omission, in the case of a solicitor, constitutes a material breach of the Solicitors' Accounts Regulations,
(h) the act or omission, in the case of a legal practitioner who is a solicitor, is likely to bring the solicitors’ profession into disrepute,
(i) the act or omission in the case of a legal practitioner who is a managing legal practitioner of a multi-disciplinary practice (within the meaning of those terms under Part 7) consists of a failure by him or her to comply with his or her obligations under this Act as a managing legal practitioner,
(j) the act or omission consists of the commission of an arrestable offence,
(k) the act or omission consists of the commission of a crime or offence outside the State which, if committed within the State, would be an arrestable offence,
(l) the act consists of issuing a bill of costs which is grossly excessive,
(m) the act consists of a contravention of section 118(1).

(2) In determining whether the act or omission referred to in paragraph (l) of subsection (1) should be considered as constituting misconduct, the Authority, the Divisional Committee, the Disciplinary Tribunal or, as the case may be, the High Court, may have regard to:

(a) the amount by which or the extent to which the amount claimed in the bill of costs was found to be excessive;
(b) whether in the particular circumstances of the legal services performed the amount of the bill of costs appears to be unconscionable; and
(c) whether or not a Legal Costs Adjudicator has found the costs charged to be grossly excessive.

(3) In this section "arrestable offence" has the same meaning as it has in the Criminal Law Act 1997.".

We come to the provisions dealing with professional misconduct by legal practitioners. Amendment No. 98 makes several amendments to section 45, which sets out the types of acts or omissions of a legal practitioner that may be considered as misconduct. Most notably, misconduct now comprehends a bill of cost which is grossly excessive. In determining whether the bill of cost is grossly excessive, the authority, the divisional committee, the disciplinary tribunal or the High Court may have regard to the following:

(a) the amount by which or the extent to which the amount claimed in the bill of costs was found to be excessive;
(b) whether in the particular circumstances of the legal services performed the amount of the bill of costs appears to be unconscionable; and
(c) whether or not a Legal Costs Adjudicator has found the costs charged to be grossly excessive.

Other amendments to this section provide that the failure of a managing legal practitioner of a multidisciplinary practice to comply with his or her obligations under the Act may constitute misconduct.
We have also included a subsection under which, in the case of solicitors, an act or omission that constitutes a material breach of the solicitors' accounts regulations may now amount to misconduct. In addition, if an act or omission consists of an offence under the Bill, it may constitute misconduct.
Finally, we have also inserted a new subsection (m): "the act consists of a contravention of section 118(1)." Where a legal practitioner who has accepted instructions to appear in court on behalf of a client who is in custody withdraws from the client's case without obtaining permission from the court before which the client is next scheduled to appear, this may now constitute misconduct.
I would like to turn to Opposition amendments Nos. 99, 102, 108, 110 and 112, if the Chair would permit me to group these together with the solicitors' group. All of these amendments, from my reading of them, are taken from the Bar Council's submission of March 2012. I am opposing these amendments, which have previously been considered, as they were included in the Bar Council's submissions and were so considered. In essence, the amendments seek to provide for supervised self-regulation and run counter to current Government policy as expressed in the Bill and its provisions for independent regulation of the legal profession, including a regime to deal with professional conduct and discipline. Essentially, these amendments hark back to the era when it was proposed that a legal services ombudsman was all that was required and that there would be oversight, but that the professional bodies would continue to self-regulate rather than be subject to independent regulation. It is the independence that is important.
Turning to Opposition amendment No. 100, which relates to legal executives, the Bill does not make any provision regarding the role or status of legal executives, nor is any such provision envisaged. While I recognise that there may be additional benefits and efficiencies to be found for consumers and for the legal services sector in a more developed role for legal executives, such matters will need to be considered separately on their own merits while others may come to be considered in due course by the new legal services regulatory authority. The Bill deals with solicitors and barristers as legal practitioners and will not be extended beyond that in its scope.
Regarding Government amendment No. 101, section 46 provides that misconduct complaints on or after the coming into operation of this part will be made to the authority. Subsection (3) provides that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined shall be disregarded in reckoning any period of time for the purpose of any limitation period in respect of the making of an application for adjudication on a bill of costs under Part 9.
Concerning Government amendment No. 103, section 47 provides that the authority may make regulations regarding the making of complaints to the authority under this Act and the procedures to be followed by the authority and the complaints committee in investigating complaints.
I now want to refer to Opposition amendment No. 104, which was also contained in the Bar Council's March 2012 submission. I am opposing this amendment. In essence, the Government's amendments set out detailed provisions regarding how complaints regarding inadequate services, excessive fees and misconduct will be processed and investigated by the new legal services regulatory authority, the complaints committee and the legal practitioners' disciplinary tribunal.

On amendment No. 105, section 48 provides that the authority may make regulations prescribing the fee, if any, payable in respect of making a complaint. I assure Deputies that it is not intended that any such fee be a disincentive to the public in their making of complaints.

I am unable to accept amendment No. 106, in the name of Deputy Finian McGrath, on the grounds that it represents a watering down of the authority's power to expect and enforce co-operation and compliance by legal practitioners with the authority and essentially shifts that regulatory oversight power to the High Court in a way that I cannot accept.

Amendments Nos. 107 and 108 relate to section 47, which sets out the criteria for the admissibility of complaints of misconduct. It has been slightly amended from the admissibility of complaints section which was in the published Bill by the admissibility of complaints regarding inadequate services. A complaint under this Part will not be considered by the authority if, in the opinion of the authority, it is deemed to be frivolous or vexatious or if it is without substance or foundation or does not satisfy the other criteria prescribed in the section. Where the authority determines that it will not consider a complaint, it will have to notify the complainant in writing setting out the reasons and also notify the legal practitioner. On determining under this section that it will consider a complaint, the authority shall proceed to investigate the complaint subject to the resolution and complaints provisions that we discussed earlier.

Amendment No. 109 provides for the creation, along with the admissibility procedures, of a new preliminary review of complaints section, namely, section 50, which will enable the authority to conduct a preliminary review of the complaint to determine whether or not the complaint is admissible and whether it is an appropriate complaint to be dealt with by the authority offering assistance in resolving the matter - section 51 - or whether the complaint should be sent to the complaints committee.

I hope I have explained all the amendments that I have proposed and responded to the amendments tabled in the names of Opposition members.