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

I move amendment No. 111:

In page 49, before section 51, to insert the following new section:51.—(1) Where the member of the staff of the Authority who conducted a review of a complaint under section 50* is of the opinion that—

(a) the main substance of the complaint is that the standard of the legal services provided by the legal practitioner concerned to the complainant, has fallen short, to a substantial degree, of the standard reasonably expected of a legal practitioner in the provision of those services and that the act or omission of the legal practitioner, if the complaint were substantiated, is such that the act or omission concerned could constitute misconduct within the meaning of section 45(1)(b)**,
(b) the act or omission on the part of the legal practitioner which is the subject of the complaint does not relate to fraud or dishonesty,
(c) the matter the subject of the complaint is capable of being substantially resolved by the legal practitioner concerned in a prompt manner in accordance with guidelines published by the Authority pursuant to section 55***,

the Authority may invite the complainant and the legal practitioner concerned to make efforts to resolve the matter the subject of the complaint.
(2) The agreement by the complainant and the legal practitioner to make efforts to resolve the matter the subject of the complaint shall not prevent the Authority continuing with its consideration or investigation of the complaint.
(3) Notwithstanding subsection (2), where the Complaints Committee, the Disciplinary Tribunal or the High Court is satisfied that an act or omission of a legal practitioner the subject of a complaint has been resolved or that proper effort was made by the legal practitioner concerned to resolve the matter in accordance with this section, the Complaints Committee, Disciplinary Committee or the High Court, as the case may be, shall, in determining the appropriate sanction (if any) that should be imposed upon the legal practitioner, give due regard to the efforts to resolve the matter made by the legal practitioner concerned.”.

Under the new section 51, the authority may offer assistance in resolving the matter in dispute where it appears that the conduct would constitute misconduct but it is felt by the staff member carrying out the preliminary review that the subject matter of the complaint is capable of being substantially resolved by the legal practitioner concerned in a prompt manner in accordance with the authority's guidelines. It is important to note that the act or omission which is the subject of the complaint cannot relate to fraud or dishonesty, which is to be dealt with separately under the conduct regime. The agreement by the complainant and the legal practitioner to make efforts to resolve the matter does not prevent the authority continuing its consideration or investigation of the complaint. I refer members to section 51(2) in that context. However, if the complaints committee of the disciplinary tribunal of the High Court is satisfied that an act or omission of a complaint has been resolved by the legal practitioner or that proper effort was made by him or her to resolve the matter, then, in determining the appropriate sanction, due regard must be had to the efforts made to resolve the matter.
On amendment No. 113, section 52 provides that no answer or statement by the complainant or legal practitioner in the course of attempting to resolve a complaint under section 51 may be used in any disciplinary, civil or criminal proceedings or communicated to any other person.
On amendment No. 114, which relates to section 53, which provides that the agreement by the legal practitioner to participate in the resolution of the matter under section 51 shall not be treated as an admission of liability. This is to encourage a resolution of a matter, if possible. It is then left to the authority to determine how matters should be dealt with thereafter if a resolution is effected.
On amendment No. 116, section 55 provides that the authority shall prepare and publish guidelines in relation to the resolution of complaints by mediation or informal means. The guidelines may set out the process whereby a determination can be made in respect of whether a complaint can be resolved by mediation or informal means. This allows the authority to give some indication of the approach to be taken by way of guidelines in respect of mediating complaints or their being informally resolved.