Barry Andrews (Dún Laoghaire, Fianna Fail)

This series of amendments is concerned with the process for investigating complaints against solicitors. For many years the Law Society has investigated allegations of misconduct arising either from complaints made by clients or routine inspections of solicitors' practices. However, there is no express provision in the Solicitors Acts giving the society the power to investigate misconduct on the part of a solicitor. Its power to investigate alleged misconduct is implied in various existing provisions. Amendment No. 10 removes any doubt arising from the absence of an express provision by declaring in the new section 6A(1) that, for the avoidance of doubt, the society has and always had the power to investigate complaints of misconduct against solicitors. Section 6(2) is a standard provision which is made when existing statutory provisions are being amended for the purpose of the avoidance of doubt and where the removal applies retrospectively.

Amendments Nos. 12, 14 and 16 clarify that the Law Society has the power to investigate alleged misconduct by a solicitor, whether a complaint was made to the society by a client of a solicitor or where the alleged misconduct comes to the attention of the society in the course of carrying out its regulatory functions. The amendments remove any possible doubt that the society's powers to investigate misconduct extend to complaints generated internally by the society itself, as well as to complaints made to it by clients.

Section 9 of the Solicitors (Amendment) Act 1994 provides for the receipt and investigation by the society of complaints made by clients of excessive charging of fees by solicitors. The section obliges the Law Society to take all appropriate steps to resolve the complaint by way of agreement between the parties. The effect of amendment No. 15 is to empower the society to continue to investigate a complaint under section 9 and, if justified by the results of this investigation, to proceed with disciplinary sanction against a solicitor for overcharging, notwithstanding the fact that the solicitor and client may have resolved the matter by agreement. Otherwise the public interest would not be served by facilitating the frustration of a Law Society investigation by way of the solicitor coming to an agreement with the client — perhaps by a financial settlement.

Section 19 of the 2002 Act provides for the extension of the solicitors' disciplinary regime to alleged misconduct on the part of apprentice solicitors. Amendment No. 19 replicates for apprentice solicitors the provisions proposed in amendments Nos. 10 and 12. Section 19 of the 2002 Act commenced on 1 January 2003; accordingly, subsection (2) of the new section being inserted by amendment No. 19 provides that the amendment will have retrospective effect to that date.

The Law Society is required by section 7 of the Solicitors Act 1960 to bring the report of the Solicitors Disciplinary Tribunal to the High Court in cases where the tribunal has found that there has been misconduct and where it leaves the question of the sanction to be decided by the High Court. Amendments Nos. 11 and 18 clarify that the society is entitled, on bringing a report of the tribunal to the High Court in regard to a finding of misconduct against a solicitor or against an apprentice solicitor, to make submissions to the court. Currently, the right of the society to address the High Court in such matters is not expressly provided for in the Solicitors Acts, although this has been the practice for many years and the practice is regulated in court rules. Rule 8 provides that the society may seek such an order for sanction as it deems appropriate and reasonable having regard to the findings of the tribunal. Recently, the High Court considered, as a preliminary point, the right of the society to address it on the sanction to be imposed in a particular case. The purpose of amendments Nos. 11 and 18 is to make such an enabling provision and remove any possible future doubt.

Amendment No. 28 adds the Solicitors (Amendment) Act 2002 to the Long Title of the Bill consequent on amendments Nos. 17 and 18.

See this speech in context