Charles Flanagan (Laois-Offaly, Fine Gael)

Last evening, I made the rather obvious point that a certain momentum has been building up for reform in this area over the past number of years. I acknowledge a significant element of public disquiet in so far as the handling of complaints is concerned with regard to speed, transparency and accountability. A perception exists that matters are not as independent as they might be.

This issue formed part of an independent report of the Competition Authority published towards the end of 2006. It pointed to a pressing need to introduce reform in this area and provided the impetus for debate on the subject of regulation of the legal profession and of the provision of legal services to the citizen. This topic has been aired extensively in the print media and on the local and national airwaves. It has also been the subject matter of conferences for interested parties. This debate is ongoing. It is a healthy process which helps clarify the role and responsibilities of professionals engaged in the provision of legal services, the Bar Council and the Law Society.

The issue of regulation versus representation is also raised and a significant body of deep blue water is required between the two. One cannot act as an advocate or representative on one hand and objectively engage in a process of regulatory vigilance on the other. It is generally accepted this conflict existed and needed to be addressed. Such a difficulty arose not only in the legal profession, but also with regard to accountants, dentists and doctors. It is important to have an element of independent oversight to ensure the interest is not vested in a way that gives rise to a perception on the part of the public that matters are not being dealt with in an open way.

The 2006 Competition Authority report pointed to a need for new legislation. It made 29 recommendations, including empowering consumers by requiring the Law Society and the Bar Council to actively provide useful and accessible information to consumers about their rights and about key features of legal services, such as how legal fees are determined. This was assisted by a legislative initiative through the 1994 amendments to the Solicitors Acts which provided for an onus on the part of the legal practitioner to provide, in so far as feasible, an estimate of the costs involved. This is a requirement and has the force of law. To my mind, it has brought about welcome changes.

Another recommendation of the Competition Authority report is to extend access to barristers for legal advice to all members of the public without the necessity to engage the services of a solicitor. Further recommendations are to allow barristers to form partnerships, solicitors to form limited partnerships and to require solicitors whose clients wish to switch to another solicitor to hand over the client's file to the new solicitor in a prompt manner.

This latter issue gives rise to serious complaints and it is difficult for the public to understand the delays involved or the manner in which documentation, which may be the property of the legal adviser but nevertheless pertains to the person to whom the legal service is being provided, is dealt with. It is important the profession ensures a strict requirement that where an alternative legal firm becomes involved in a case, all the necessary papers are made available in a prompt manner and in a way which ensures the consumer of the service is not left in a position of disadvantage.

There is no doubt that the reputation of legal professionals as a whole has been damaged by a number of recent high profile events involving certain members of the profession. It is unfortunate that a small number of individuals have succeeded in damaging the reputation of the legal profession as a whole. Having practised law myself for many years, I know a great many solicitors and barristers who, without exception, carry out excellent work in an honourable manner and professional way and engage in the use of the highest possible standards. It is a cliché to state that bad apples turn up from time to time in every profession but unfortunately this is what has happened and the legal profession is not immune to such practices.

It is important that individuals who have brought the legal profession into disrepute are subject to due process and held accountable for their actions. If a myth or perception exists that people operate outside the law or that the law favours people with certain status or in certain categories of society, then it should be exposed as such. The sooner particular matters are dealt with comprehensively, the better. If criminal proceedings are to follow, let them take their course. It is essential that legal practitioners, no matter who they are or what professional qualifications they hold, are held accountable for their actions if public faith in the legal profession is to be maintained and not tarnished. It is important and absolutely essential that they be held accountable for their actions if public faith in the legal profession is to be maintained and not tarnished. Notwithstanding the rarity of such cases involving the recent high profile Dublin issues, these incidents have underlined the need for change and the urgency in proceeding with this legislation. The Bill is a good start in introducing constructive changes.

The establishment of the legal services ombudsman office follows on a long line of ombudsman offices and our experience has been positive, happy and satisfactory over the years. Emily O'Reilly, the current Ombudsman, is widely respected for the objective and professional manner in which she carries out her duties and responsibilities. Recently she was appointed as a leading light in the ombudsman association for the UK and Ireland. That is the measure of the esteem and standing in which she is held by her colleagues. Her predecessor, Michael Mills, who died recently, was from my county. I pay tribute to him for his great pioneering work as Ireland's first Ombudsman. He had the opportunity to define the role of the office, which he did with considerable skill. The recent creation of the positions of Press Ombudsman and the Garda Síochána Ombudsman Commission reflect the widely held belief that the post of ombudsman easily facilitates independence, impartiality, professionalism and expediency in dealing with matters in a way that can provide the best service to the citizen.

As I have stated in the past regarding other ombudsman posts, it is essential the legal services ombudsman's office is well resourced if it is to function in an efficient manner. The Bill proposes to place part of the burden of costs on the Law Society and the Bar Council with the Government making up the rest if there is a shortfall. It is crucial the Government honours its commitments in this regard and facilitates the smooth and efficient operation of the office. While it may be too early to pass judgment, the indications from the office of the recently established Press Ombudsman and the office of the Garda Síochána Ombudsman Commission, which was established 12 months ago, are that they are moving in a satisfactory direction from a public service point of view. Failure by the Government to honour its commitments would make a mockery of the creation of the post and it would undermine the spirit of the proposed legislation.

On the matter of costs, the Bill requires the Bar Council and the Law Society to pay an annual levy to fund the ombudsman's office. Each association will be liable to pay 10% of the approved expenses of the office and the remaining 80% will be paid pro rata according to the number of complaints made to the ombudsman regarding barristers and solicitors. This is an interesting proposal and I hope it will operate smoothly in practice. We will have an opportunity to monitor progress by dint of the requirement on the ombudsman to report to us. I greatly welcome the provision in respect of the responsibilities of the ombudsman to report to the Oireachtas.

Unfortunately, myself and my colleagues in Opposition sometimes find ourselves fighting a rearguard action to maintain the integrity and uphold the central importance of this Assembly in the face of repeated Government attempts to enforce total Executive dominance over the Parliament. The Ceann Comhairle witnesses this on a daily basis and it is an issue to which we must return with seriousness in the context of the consequences of the Lisbon treaty, under which the scrutiny by national parliaments of laws will require greater vigilance on the part of the House. It is important to ensure the committees are equipped with resources, legal advisers and specialists, particularly in the complex area of EU law. I look forward to returning to this matter next week because this anti-democratic trend has been highlighted in recent years by the creation of a host of quangos and authorities without any measure of accountability and by the Government press conference being substituted for accountability to the Legislature. The proposals contained in the Bill, which require the ombudsman to make regular reports to the Oireachtas and the Minister, are welcome.

Not only will the ombudsman be empowered to deal with complaints, under section 9 he or she will be required from time to time to make submissions in respect of entry to the legal profession. That will empower him or her in a way that no other ombudsman is sufficiently empowered currently. The ombudsman will be required to assess the adequacy of admissions policy of both the Bar Council and the Law Society and to promote public awareness of the complaints procedures of the two bodies, which is important. There is not much point in setting up an ombudsman's office if people are not aware of its existence. The office will have to be properly and adequately funded from an early date because information is knowledge and if people do not know about the office, they will not use its services.

The Law Society and the Bar Council had a number of concerns regarding the report of the Competition Authority, which recommended extreme changes to current practice in certain contexts. Both bodies made submissions to the authority's proposals with the Law Society submission being particularly lengthy. However, both have shown a willingness in the context of the authority's report, which contained unpalatable recommendations, to embrace change and both arms of the profession have welcomed the Bill. The Law Society stated recently it unreservedly recognised the system can be improved and welcomed the legislation to introduce an ombudsman, together with the non-lawyer majority on the society's complaints and client relations committee. It is often overlooked in media reportage that this committee comprises an independent lay majority, which gives a lie to the myth that the society is a closed shop controlled by vested interests.

The Bar Council described this Bill as "a progressive step in improving access to justice and the administration of justice". The Law Society recently took the initiative of providing all of its members with a comprehensive document entitled, Solicitors' Terms and Conditions of Engagement. The document prepared by the society's guidance and ethics committee reflects the spirit of the proposed legislation, which must be acknowledged. There is a clear responsibility on members of the profession to engage with their clients from an early stage to set out in considerable detail not only the costs involved but also the difficulties that might arise. The ethics committee of the Law Society has made recommendations as to how difficulties that unfortunately arise can be avoided. The document states that:

The business of solicitors' firms is to sell legal services. As with any business, the owners hope that members of the public who come to do business with the firm will have a good experience and a satisfactory result, so that they will recommend the firm to others and the business will thrive. This is more likely to happen if both parties are clear about the service that is being offered.

Often when difficulties arise between a solicitor and a client, this may be because there is a gap between the client's expectations of the level of service that was to be provided by the solicitor and the solicitor's intentions in that regard.

This document spells out in a comprehensive way the importance of the letter of engagement in the early stages from the solicitor to the client. The document states:

A letter of engagement formally sets out the terms and conditions on which the solicitor's firm will carry out work for the client. It should define the relationship between the client and the solicitor and will then form the basis of the contract between them.

So the manner of the difficulty can lead to the origin of the contract between the two parties. The document also states:

It is important that the client is clear about the role of the solicitor — what it includes as well as what it excludes — and that there is agreement between the solicitor and the client as to the extent of the solicitor's duties. It may be obvious to the solicitor, but if a client has not dealt with a solicitor before, they may simply not know what to expect.

So this letter of engagement will help to ensure there is no gap between the expectations of citizens or the consumer and the reality of what is being offered in terms of the provision of the service. It is also interesting to note that the document recommends the letter of engagement be set out in plain language. This is a difficulty that has arisen and continues to arise from time to time in a way that is unacceptable. Much of the documentation can be couched in legal jargon which is not easily understood by the client. I often wonder whether this gap between members of the profession and members of the public is evident in such a way as to ensure that both parties are not on an even keel and that the playing pitch is not even. I would go further and say this is probably one of the reasons why, for example, in the hallowed halls of the Four Courts, barristers still dress in a manner which can often be off-putting to members of the public and can in many ways be a disconcerting experience. It is important the letter of engagement is written in plain language and is capable of being easily understood by the client.

The Law Society has offered a precedent which is a simple statement of the terms and conditions on which the business will be done by a firm. If that matter is subjected to a dispute, the letter can be used as a way to resolve the difficulty. The letter has been approved by the National Adult Literacy Agency in respect of its clarity and the plain English used and is a sample of best practice. This initiative by the Law Society is welcome. The clarity brought about by such an initiative fits in well with the present reform agenda and I hope similar initiatives will be taken in the future.

This Bill will offer the member of the public who has a complaint an opportunity to deal with an office that is entirely independent and that will be resourced in such a way as to ensure there are no delays or backlogs, that the service can be speedy and efficient and that, more than anything, the service can be fair and impartial. Along with colleagues, I look forward to monitoring the office of the ombudsman, receiving the report of that office and ensuring that if there are problems of the type that might not immediately be apparent, the matter can be revisited at some stage in the future in the event of amending legislation being necessary. It is very important in the provision of legal services that the confidence of the public be maintained.

Regrettably, particularly in light of some recent high-profile cases involving a minority, this public confidence has been dented. This Bill is an essential step in restoring and maintaining confidence in a profession that has suffered from the actions of less than a handful of practitioners. The ombudsman model has served us well and I expect the legal services ombudsman will continue the legacy of fairness and efficiency created and maintained by previous and serving ombudsman office holders. I look forward to examining the setting up of the office, the powers of the ombudsman and the nature of the work when we have an opportunity to go through matters on a line by line basis on Committee Stage. I look forward to contributing at that stage.

See this speech in context