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

I move amendment No. 119:

In page 51, before section 52, to insert the following new section:58.—(1) Where the Divisional Committee determines that the act or omission the subject of the complaint constitutes misconduct and that such conduct is of a kind that it does not warrant the making of an application in respect of the matter to the Legal Practitioners Disciplinary Tribunal for the holding of an inquiry under section 60, it may—

(a) issue a direction to the legal practitioner concerned to take such measures as are specified in the determination of the Divisional Committee being measures specified in paragraphs (a) to (i) of subsection (5), or
(b) where the legal practitioner concerned so consents in writing take one of the measures specified in the determination of the Divisional Committee being a measure specified in paragraph (a) or (b) of subsection (6).

(2) Where the Divisional Committee issues one or more than one direction in accordance with subsection (1)(a) and the legal practitioner complies with each such direction the complaint shall be considered as determined.
(3) Where the Divisional Committee (with the consent of the legal practitioner concerned) takes one of the measures specified in subsection (1)(b) the complaint shall be considered as determined.
(4) The Divisional Committee shall not make a determination under subsection (1) unless the committee considers it to be a reasonable and appropriate manner of determining the complaint.
(5) The measures referred to in subsection (1)(a) are the following:

(a) a direction to the legal practitioner to perform or complete the legal service the subject of the complaint or a direction to the legal practitioner to arrange for the performance or completion of the legal service the subject of the complaint by a legal practitioner nominated by the complainant at the expense of the legal practitioner the subject of the complaint;
(b) a direction to the legal practitioner that he or she participate in one or more modules of a professional competence scheme and that he or she furnish evidence to the Authority of such participation within a specified period;
(c) a direction to the legal practitioner—

(i) that he or she waive all or a part of any fees otherwise payable by the complainant to the legal practitioner concerned, or
(ii) that he or she refund to the client some or all of any fees paid to the legal practitioner concerned in respect of the legal services the subject of the complaint;

(d) a direction that the legal practitioner take such other action in the interest of the client as the Committee may specify;
(e) a direction to the legal practitioner to comply with (in whole or in part) an undertaking given by the legal practitioner to another legal practitioner or to another person or body;
(f) a direction to the legal practitioner to withdraw or amend an advertisement;
(g) 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 have been 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;
(h) a direction to the legal practitioner to pay to the Authority a sum not exceeding €5,000 by way of contribution towards the costs incurred by the Authority in investigating the complaint;
(i) where the Divisional Committee has determined that the legal practitioner has in the course of the investigation refused, neglected or otherwise failed, without reasonable cause, to respond appropriately in a timely manner, or at all, to a written request from the Divisional Committee and that the Authority has incurred additional costs in relation to the investigation of the complaint in consequence of that refusal, neglect or failure, a direction to the legal practitioner to pay to the Authority a sum not exceeding €2,500 by way of contribution towards those additional costs incurred by the Authority in investigating the complaint.

(6) The measures referred to in subsection (1)(b) are the following:

(a) the issue of a caution, admonishment or reprimand to the legal practitioner in respect of the act or omission the subject of the complaint;
(b) the issue of a notice—

(i) in the case of a legal practitioner who is a solicitor, to the Law Society informing the Law Society of the determination of misconduct by the Divisional Committee and directing the Law Society to impose a specified restriction or condition on the practising certificate of the legal practitioner concerned, or
(ii) in the case of a legal practitioner who is a barrister, to the chief executive of the Authority of the determination of misconduct by the Divisional Committee and directing the chief executive to impose a specified restriction or condition on the legal practitioner concerned in respect of his or her practice as a barrister.

(7) (a) Subject to subsection (8) 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 than under this section, it may make an application in respect of the matter to it for the holding of an inquiry under section 60.
(b) In determining whether it would be more appropriate for the complaint to be considered by the Legal Practitioners Disciplinary Tribunal the Complaints Committee shall have regard to the extent of the misconduct which was disclosed in the course of the investigation of the complaint by the Complaints Committee.
(8) (a) Where the Divisional Committee considers that one of the measures specified in subsection (6) is the appropriate measure to be taken as respects the complaint it shall notify the legal practitioner concerned to that effect and specify the precise measure (including in the case of a restriction or condition to be placed on the practising certificates of the legal practitioner, the precise restriction or condition) it proposes to take.
(b) The notification referred to in paragraph (a) shall 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 issue of the notification, 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.
(c) Where the Divisional Committee issues a notification pursuant to paragraph (b) and does not receive the written consent of the legal practitioner concerned within 21 days to the imposition of the specified measures, 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.”.