Pat Rabbitte (Dublin South West, Labour)

Recent events have undoubtedly alarmed the public and have done damage to the legal profession. Like Deputy Paul Connaughton, members of the profession I have dealt with have been honourable people. I forget the phrase Deputy Connaughton used but it was to effect that they do not do it for nothing. I am prepared to go along with that too.

Some woeful weaknesses have been shown up in the system. I am not just referring to the few bad apples in the barrel, and they have been fairly dramatic by any standards. If one owes the bank €2,000, one is in trouble but if one owes the bank €2 million, one is in a stronger position. What we have witnessed recently has been dramatic, involving, as it did, two high profile cases in particular. However, there was not only two. We also had a case affecting two lawyers who seemed to be engaged in an extensive tax evasion scam in which they put money offshore and so forth. These developments have conditioned the perception of members of the public and done damage to the reputation of the profession.

In that regard, I referred to the report of the Competition Authority, which should be compulsory reading for those interested in reform in this area. However, I could also make reference to a speech to the Law Society in University College, Cork, by the Master of the High Court, Mr. Edmund Honohan SC, in which he stated that "no spinning" by the Law Society could disguise the "systemic failure" of self-regulation of solicitors. What was now needed, he added, was a "robust agency" to deal with rogue solicitors, most of whom, he said, must now realise they have been let down by a few rogue, negligent solicitors. Let us be clear that the Bill does not provide for the "robust agency" he recommended.

The Master of the High Court also stated:

It is the status of the solicitor as officer of the court that makes the solicitor's undertaking the gold standard of contractual obligations... When an officer of the court undertakes, he puts his official status on the line. A solicitor who defaults on an undertaking damages the entire profession.

Mr. Honohan's views in this matter are hotly contested by the Law Society of Ireland. The Joint Committee on Justice, Equality, Defence and Women's Rights had an opportunity to hear representatives of the Law Society on these matters and members had a useful exchange of views with them. Ultimately, however, the matter hinges on the question of regulation versus representation and whether one organisation can perform both these roles. There is a great deal of confusion surrounding this question. For example, I have a copy of a speech delivered by the president of the Law Society of Ireland, James McGuill, on 7 December last in which he stated:

Let me make another principle clear. Opinion-formers and other commentators assume that the legal profession supports self-regulation. I don't. We don't.

These comments were given considerable mileage in newspapers which ran stories to the effect that Mr. McGuill had spoken out against self-regulation. He did not do anything of the kind. The text of his speech shows he used language which seems to indicate he is against self-regulation but this is only because of his perception that the existing arrangement is not self-regulation. The current arrangement is, however, one of self-regulation. Later in his address, Mr. McGuill stated:

We don't, and won't, promote self-regulation. As we have pointed out repeatedly, it is fundamentally misleading to describe the current system of regulation of solicitors in Ireland as "self-regulation".

Even though it is acknowledged in terms of the common language used by most people that the system we have is one of self-regulation, the president of the Law Society of Ireland has stated it is not self-regulation because some outside elements are involved. As everyone else accepts, the system is still essentially one of self-regulation. The nuance of what Mr. McGuill said was, therefore, missed in the media. This is not the only place in which the media missed the nuance of certain comments. For example, I have a copy of a report from The Irish Times in which the former Taoiseach, Deputy Bertie Ahern, is quoted as stating in the Dáil:

I am not satisfied that self-regulation, as it has been operated over the years, is the best model. . . Total self-regulation does not provide the impression that the public interest is best served in a transparent way, notwithstanding the fact that the overwhelming majority are doing a good job.

While I agree that the overwhelming majority are doing a good job, the comment that self-regulation is not the best model is testament to the extraordinary skill of the former Taoiseach who had a habit of saying something and allowing a nuanced message to go abroad, in this case that he was opposed to self-regulation. Later, he also implied the Government would do something about it. As so often in the case of the former Taoiseach, one had to read the small print to learn that this was not what he meant. The purpose of the Bill his Government introduced was not to end self-regulation but to establish an office of legal ombudsman with the duties described in the Bill. While I welcome this step, albeit against the background of my comments, it is more modest than ending self-regulation.

A great many people worry about the acquiescence of the House to the concept of self-regulation by the professions and note the scams that have taken place in recent years in the financial industry and business, including the beef industry. These could not have happened without the acquiescence, negligence or complicity of professionals. Whether in the accounting or legal profession or some other profession, many people profoundly question whether self-regulation is acceptable.

Although the Government invoked the assistance of the Competition Authority in examining the legal profession, scant regard has been paid to the authority's conclusions. The authority concluded that "the legal profession is in need of root and branch reform reflecting the important need to create a modern system of regulation that is proportionate, accountable, transparent, flexible and reflects the needs of consumers". The Ceann Comhairle was an honourable member of the honourable profession. I do not believe any Member would question the Competition Authority's description of the current position. Its recommendations are not generally included in the Bill, however. For example, it recommended the establishment of a legal services commission which would be "an independent, transparent and accountable body, involving a wider group of stakeholders than the current model of self-regulation." The former Minister did not take on board this view. It would be helpful to hear from the new Minister the reason this recommendation was not taken on board, given that he failed to do so in his address to the House last night.

I have long since been persuaded that when it comes to writing persuasive English, Irish civil servants have no competitors in the western world. They are much better, even than civil servants in the neighbouring island, at making the most of a rather small reform. Their capacity to exaggerate it and present it in plausible English is limitless and I pay tribute to them. However, I would still like to hear the Minister tell us why the Competition Authority has been thrown out the window. He may state that some modest concessions have been made by the Bar Council and the Law Society, which is true, but we are certainly not going anywhere near what was recommended for this Bill.

We spoke about "recent events", which is a euphemism for the fraud that has been perpetrated on clients and financial institutions by a small number of solicitors, as well as the fraud perpetrated on the taxpayer by those other solicitors who were salting money offshore. As a TD, I am just as concerned by the routine dereliction of duty by some solicitors. Constituents come to me with complaints that would be regarded as minor in this Bill, but they are big complaints from where they are standing. The difficulties they encounter in a few cases with their solicitor can be an impossible mountain for them to climb. They cannot even get their files back from the solicitor. One would need a JCB to get a file back from a solicitor who is not diligently attending to it. Many ordinary people have had this experience with members of the legal profession. It is that routine dereliction of duty that concerns me as much as the few bad apples in the barrel that have recently gained such public notoriety.

An ordinary person with a minor claim that has been negligently attended to will get nowhere with a complaint to the Law Society. Such a person would not know how to access the Bar Library and make a complaint if the Bar Library was involved. I hope that whenever the ombudsman is appointed, he or she will devise a code of practice to deal with the average citizen who is not getting satisfaction or value for money from a member of the legal profession. Up to now, it has been very difficult for a client to get satisfaction in cases of negligence.

The Competition Authority states:

If a client wishes to switch solicitor, for example in response to poor quality of service, the solicitor has the right to withhold the client's file until the client has paid the solicitor's bill, even if the bill is disputed. As a practical matter, full payment may not be possible to achieve in a short space of time and, in the interim, the client is disadvantaged with possibly serious consequences. For example, a consumer who believes that his/her current solicitor is putting his/her case in jeopardy, or is failing to act in a timely manner, cannot take his/her business elsewhere.

This special protection for solicitors against bad debts does not exist for any other profession in Ireland and is an unnecessary restriction on competition between solicitors and on consumers' rights.

Consumers of legal services, especially small infrequent buyers, are in a far more vulnerable position than the solicitor who can self-supply legal services to remedy any injustice he thinks might be done to him. We in this House have all met constituents who believe that their case is not being acted on in a timely manner or is being negligently handled and who feel that they do not owe money as alleged by their solicitor. Even if we intervene, it is extremely difficult to get the file back. I hope that a code of practice will be designed to deal with the average punter who finds himself or herself in that quandary.

The Minister stated last night that the Bill will establish a legal services ombudsman which will oversee the handling by the Law Society and the Bar Council of three classes of complaint against solicitors and barristers, namely, inadequate service, excessive fees and misconduct. I welcome that. If the ombudsman is enabled to discharge his duties in those three areas, this Bill will be worthwhile. We have all experienced it. I challenge even the newest Members of this House to say that they have not encountered one of these causes of complaint. Members talk about it privately among themselves. If redress is to be provided in this Bill, that would be welcome.

I referred to the remarks of the master of the High Court, when he spoke about the gold standard of contractual obligation, which he claimed was the solicitor's undertaking. As Members of the Joint Committee on Justice, Equality, Defence and Women's Rights, we had the opportunity to hear representatives of the Law Society make a well argued and worthwhile submission to us on this issue. This again arises from recent events, in which a couple of solicitors were able to raise a mortgage several times on the same property. They used that gold standard of contractual obligation as a means of levying finance for their own purposes. The key point is that the system of solicitors' undertakings, without which it would be difficult for society to function, is in respect of the solicitor giving an undertaking on behalf of his client, not on behalf of his own business. If we are to permit a situation where a solicitor can resort to that in furtherance of his own private enterprise, we are inviting the kind of difficulty that has become notorious in the media in recent times.

I worry that the Bill does not go far enough to address this central issue. In our society, access to justice is dependent, in most if not all cases, on the consumer resorting to the services of a lawyer. As Deputy Paul Connaughton said, they charge well for it in most cases. In saying that, we should be prepared to acknowledge the lawyers who do tremendous work pro bono on occasion. We should give credit for that, of which there have been exceptional examples. In any event, no one is complaining about lawyers being rewarded for their services like anyone else but about where, as identified in this Bill, excessive fees are charged. There are, on occasion, excessive fees charged and worse, they sometimes do not come to light. What about the abuse of the redress scheme where a small number of solicitors' companies were charging their clients and at the same time taking a percentage from the settlement when it emerged?

See this speech in context