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

I move amendment No. 115:

In page 51, before section 52, but in Chapter 1, to insert the following new section:54.—Where the complaint relates to a solicitor and the Authority considers that the complaint or a part of the complaint would constitute fraud or dishonesty on the part of the solicitor, if substantiated, the Authority may—

(a) proceed to carry out an investigation under Part 5*,
(b) refer the matter to the Complaints Committee, or
(c) request the Law Society to carry out an investigation under the Solicitors Acts 1954 to 2013.".

This is a series of further amendments. Section 54 deals with complaints relating to fraud and dishonesty and is thus very important. It enables such fraud and dishonesty complaints to be dealt with expeditiously in their own right and in the public interest.
Government amendment No. 117 deals with the complaints committee. The cluster of amendments relating to a new Chapter 2 deals with the consideration of complaints for the complaints committee. As such, it develops many of the sections dealing with the complaints procedures currently in the Bill as published. Section 56 provides that the authority will establish a committee, to be known as the complaints committee, for the purpose of considering and investigating complaints referred to by the authority. A key change from the published Bill is that the requirement for the approval of the Minister for the appointment of members of the committee has been removed.
Another key change is an increase in membership of the committee from 16 to 27 members so as to prevent any backlog of complaints developing, and so there is not an undue pressure or amount of work imposed on a small number of members. The Law Society would nominate eight members where it would previously have nominated three members, and the Bar Council would nominate four members where it would previously have nominated three members. The greater increase in the Law Society nominations reflects the reality that there are significantly more solicitors than barristers in the State, at a ratio of five to one.
It is also envisaged that the complaints committee may act in divisions of five members as well as divisions of three members. Each divisional committee will have a majority of lay members, one of whom will be the chairperson. Where a complaint relates to a solicitor, the divisional committee comprises three members, with one member being a solicitor. Where a complaint relates to a solicitor and a divisional committee comprises five members, two of the members will be a solicitor. Where the complaint relates to a barrister the same ratio will apply regarding barrister composition of the divisional committees.
We have made a slight amendment to section 56(4), dealing with the appointment of the lay members of the complaints committee. The lay members will be persons independent of the legal practitioners' professional bodies and will have an expertise in or knowledge of the provision of legal services; the maintenance of standards in a profession, including those regulated by a statutory body; the investigation and consideration of complaints relating to services; and the interests of consumers of legal services.
Government amendment No. 118 develops section 57, dealing with the investigation of complaints. When referring a complaint to a divisional committee, the authority will now prepare a summary of the complaint which will be furnished to the divisional committee. The divisional committee will also furnish the legal practitioner with a copy of the complaint and request his or her response unless the legal practitioner has already been furnished with a copy of the complaint. Where the divisional committee receives an explanation from the legal practitioner concerned indicating that the act or omission did not constitute misconduct, it must furnish a copy of the explanation to the complainant, inviting the complainant to furnish his or her observations on the explanation of the legal practitioner. Where the response of the legal practitioner does not satisfy the divisional committee that the act or omission did not constitute misconduct and where the legal practitioner does not furnish a response within the period specified in the notice, the divisional committee will take such steps as it considers appropriate to investigate the complaint.
Section 57(6) deals with investigating a complaint. The divisional committee will have regard to information furnished to it by the authority and may by notice in writing to the complainant do one or more of the following: require the complainant to verify, by affidavit or otherwise, anything contained in the complaint; request the complainant to supply to the committee such information or documents relating to the complaint as it may require; and require the legal practitioner, the subject of the complaint, to supply the committee with such information or documents as it may require.
The divisional committee may now require the complainant and the legal practitioner to appear before the committee for the purpose of investigating the complaint. The complainant and the legal practitioner may be represented by a person of their choice before the divisional committee. The costs of such representation will be borne by the person who requested it. Another new feature contained in section 57(11) is that if a complaint is withdrawn when it is being investigated by the divisional committee, the committee may decide that no further action be taken or may proceed as if the complaint had not been withdrawn. Like section 51(4) of the published Bill, the amendments of section 57(12) provide that where the divisional committee determines that the act or omission does not constitute misconduct it shall advise the complainant and the legal practitioner in writing, setting out the reasons for its determination.
Government amendment No. 119 is next. As in the published Bill, if the divisional committee determines that the act or omission which is the subject of the complaint constitutes misconduct but that such conduct is not of a kind that needs to be referred to the legal practitioners' disciplinary tribunal, the divisional committee can issue a direction to the legal practitioner under section 58. We have extended the number of sanctions that the committee may specify, taking account of the existing regime and submissions received. For example, there may be a direction that the legal practitioner take such other action in the interest of the client as the committee may specify; or a direction to the legal practitioner to pay a sum not exceeding €5,000 as compensation for any financial or other loss suffered by the client in consequence of any such inadequacy in the legal services provided or purported to be provided by the legal practitioner, provided that any such payment made in compliance with the direction shall be without prejudice to any legal right of the client.
It is now open to the complaints committee to issue one or more of the measures contained in section 58(5)(a) to (i). Where the legal practitioner complies with each such direction the complaint shall be considered determined. It is also open to the complaints committee under section 58(6)(a) and (b) to caution, admonish or reprimand the legal practitioner in respect of the act or omission the subject of the complaint, or direct the Law Society, in the case of a solicitor, to impose a specified restriction or condition on the practising certificate of the legal practitioner concerned. In the case of a barrister, the divisional committee may direct the chief executive of the authority to impose a specified restriction or condition on the legal practitioner concerned in respect of his or practice as a barrister.
It is now provided that the legal practitioner must consent to the sanction in writing on the advices of the Office of the Attorney General. A recent case involving the disciplining of a medical practitioner by the Medical Council held that the High Court would be the only body empowered to issue such a sanction. The divisional committee will therefore notify the legal practitioner of the precise measure it proposes to take. The notification will indicate that unless the legal practitioner concerned furnishes to the divisional committee his or her consent in writing to the imposition of the specified measures within 21 days of the notice, the divisional committee will apply to the legal practitioners' disciplinary tribunal for the holding of an inquiry into the complaint by the tribunal under this part. Where the divisional committee does not receive the written consent within 21 days, it shall apply to the legal practitioners' disciplinary tribunal for the holding of an inquiry by it into the complaint in so far as the committee has not found that the complaints are unfounded or that the act or omission concerned does not constitute misconduct.

Where the divisional committee considers that the act or omission, the subject of the complaint, constitutes misconduct of a kind that is more appropriate for consideration by the legal practitioners' disciplinary tribunal, it has the discretion to make an application to it in respect of the matter for the holding of an inquiry under section 60. In determining whether it would be more appropriate for the complaint to be considered by the tribunal, the complaints committee shall have regard to the extent of the misconduct which was disclosed and the cost of the investigation of the complaint by the complaints committee.

I appreciate that there is a substantial amount of information in that, but I considered it appropriate to go through the detail of what is proposed and the modalities or mechanics of how the new architecture will operate in practice. The time has been used well to flesh out in greater detail matters that were originally dealt with in more brevity in the original Bill and to address any issues of concern that arose from the submissions we received.