Paudge Connolly (Cavan-Monaghan, Independent)

I welcome the opportunity to contribute. When I first saw the Bill on the Government's legislative programme, I thought it had very little to do with me but then I recalled my own experiences and those of people who have attended my clinics. My experience of solicitors is generally positive. The Bill provides for the setting up of an office of legal services ombudsman, a development that is long overdue but welcome. The only recourse an individual has currently is to pursue a complaint through the Law Society or the Bar Council. Nobody I know who has taken a case to either body has won. Generally, the circle closes and Joe Bloggs is excluded even when he has a genuine complaint. It is sad that such a comment applies to one of the alleged noble professions.

I recollect one case involving a constituent who visited my clinic, which illustrates clearly why an ombudsman is needed. The individual and his wife were thrifty and they had decided to buy a site and build a house. When buying the site, they did more than most people do by ensuring the surveyor they employed was bonded so that if there was a problem with the work, they had a fall-back. They were able to take out an insurance policy to that effect. The house was eventually built and, following a short period, cracks began to appear in the block work. A number of the cracks were between two and three inches wide and one could place a closed fist in them. The house is dangerous and the walls are falling apart.

They contacted their surveyor and solicitor to establish who was at fault and against whom they could lodge a claim. It appeared that the surveyor was at fault because he had not adequately checked the laying of the foundation. He visited the site one day, dug his heel in the ground and said it looked okay. He left and presumed everything would be okay but that was not the case. The foundation was laid on a bog and if it had been dug 18 inches deeper, it would have been very solid. The building resembled a doll's house and it was built by a hard working, house proud couple. Other surveyors visited the house and the bonded surveyor put up his hands and accepted 100% liability.

There was no contest. The surveyor felt the project could go ahead and he offered an apology. It was not the builder's fault as he built the house immaculately. The foundation was faulty and everything went wrong from there on.

The insurance cover was for £250,000, which is a lot of money. In 1999 it was more than was needed to buy a site and build a house. However, there was a rider in the insurance policy which meant that the legal fees would have to be taken from the £250,000. One would presume, in an uncontested case where the surveyor accepted he was 100% to blame, that the legal fees would be low, perhaps £15,000 for both legal teams. In that event, the client would at worst be left with £235,000 to rebuild his dream house. However, the system in place at present left this man with £80,000 to rebuild his house because 68% of the claim was used to pay legal fees.

This result has had a serious psychological effect on the man, his wife and their young child. These effects pass through a family. One does not have a situation where a husband suffers while a wife does not, and vice versa; the consequences will pass on to a child to some extent. The man was left with just £80,000. He has tried to argue that this is not right but every sharp practice in the book has been used to fatten the claim. He has tried the Legal Aid Board and the Bar Council and he will next be referred to the Taxing Master, but the lawyers involved are so good at what they do, they can easily demonstrate that they carried out work on the case. When one has a milking cow, one can keep milking until the cow falls down, if one likes. That is what happened in this case.

The man was told he could reopen the case but the solicitor would have to retain junior and senior counsel to begin the process, and would then have to find experts in the area to ensure that one surveyor would agree with another surveyor, despite the straightforward nature of the case. It was this man's experience that prompted me to speak on the Bill.

The ombudsman's function will be to act in a supervisory or oversight capacity in regard to the response of the Law Society and Bar Council to complaints by clients of solicitors and barristers. The situation is a shambles. It is a self-governing system which is not working. All it takes is the occasional bad apple to tinge the whole barrel. Perhaps the entire system is wrong, which allows opportunities to arise. The legal affairs ombudsman will make a major contribution to the development of fair, effective, quality, user-friendly legal services.

I have no doubt this office will become a reality but when it does so, will the ombudsman have retrospective powers? If so, how far back will those powers go? Will there be a statute of limitations after a certain number of years or will it be an open book? Will the ombudsman have to wait for a file to build up? I have no doubt that as soon as the office is open, the ombudsman will be flooded with applications.

The legal professions are a major element in the proper functioning of our society. From time to time, we all find it necessary to avail of their services. However, if a poor person who has done nothing wrong tries to defend himself in court, the judge is generally dismissive of any attempt to explain. That is not good enough. Judges have come through the legal system, which they want to uphold and protect. I am not sure this is always of benefit to the individual. House conveyancing is another area where one does not necessarily need a solicitor as it can be dealt with by members of the public on a one-off basis.

The law plays a fundamental role in the way we structure our lives. Legal practitioners such as barristers and solicitors are the key players in this regard. We are in the midst of a type of global restructuring of both legal and professional services, which will have a major implication for the legal profession. Technology is pushing this trend. One can now sit in a law office in Dublin and instantaneously link with lawyers in Beijing and investment bankers in Singapore with regard to a project in Cape Town. That may not be the norm but such instances arise. New technology allows people to work easily across distances and develop different models. However, we live in a dangerous world, filled with opportunity. The world is becoming a smaller place — a global village — and the number of people doing deals in advertising, the purchase of property and the purchase of business across the globe is increasing.

The only time the ordinary Joe Soap deals with a solicitor is when he is at his most vulnerable, such as when buying a house, making a will or following a bad accident. These are generally one-off events, not of the type one would discuss with a neighbour. The solicitor is privileged in that it is old hat for him or her but it is a new, nerve-wracking experience for the Joe Soap. However, irrespective of the price of a house, the solicitor is in a privileged position and can charge a percentage of the house price with a minimum door-latch opener charge for starters. This is the type of sharp practice we are up against and which is rife in the legal profession. There is no shortage of sharks swimming in the water of legal malpractice and abuse.

A classic example of sharp practice came before us recently with regard to double charging by a solicitor during a redress board case. It was only because the media became aware of the case that the individual involved won. While my recollection may not be completely accurate, I understand a settlement was made without the solicitor admitting he had double-charged. This type of practice cannot be allowed to continue.

I agree with Deputy Cuffe that many people have been hard done by at the hands of unscrupulous members of the legal profession — I do not paint them all with the same brush — particularly in regard to the work of the Residential Institutions Redress Board. It was bad enough for those involved to have suffered what they did but when the State accepted it owed them compensation, the legal profession saw them as a soft target to be milked. The lawyers were paid once but that was not enough; they made sure they would be paid a second time. The representation of these individuals left much to be desired and the despicable abuse of their position has brought the legal profession into disrepute.

An aggrieved complainant to the Law Society or Bar Council, who may be dissatisfied with the way these bodies dealt with a matter, can resort to the ombudsman to investigate the grievance. This type of office has already been functioning in other jurisdictions. Experience has shown that an ombudsman and associated team has dealt efficiently and fairly with all complaints. It is reassuring that if it is working in other jurisdictions, I do not see why we cannot introduce the same template here and work with the same type of vigour.

Thus far the office has been fair, independent and proactive in providing a service to complainants, individual lawyers and professional bodies. In serving an increasingly diverse society, the ombudsman will be required to recognise, respect and value diversity in striving to serve the interests of people from all sections of society.

The legal services ombudsman would act in the manner of an advocate for the client's or consumer's interest in the regulatory framework attaching to the legal profession. Complaints about professional bodies would have to be investigated efficiently and effectively by the ombudsman's office. There has been talk here about an ombudsman and an ombudsman's team, but I have no doubt there will be no scarcity of work for the ombudsman and associated team.

The ombudsman's office will have to ensure impartial investigation and redress where appropriate. Its aim will have to be the application of best practice in the handling of complaints by the legal professional bodies, with a view to raising the standards of services for consumers.

The ombudsman's office effectively would be involved in the shaping of the future regulation of legal services in this country. Clients may be deeply frustrated or aggrieved because they may feel the professional body did not investigate a complaint properly, or perhaps at all. This is one of the difficulties.

On investigating a complaint, one is hit with the potential cost. It is almost a case of allowing sleeping dogs lie. The first action a solicitor will take in investigating a major complaint is to bring in barristers, perhaps a couple of senior counsels and a junior counsel.

See this speech in context