Dermot Ahern (Louth, Fianna Fail)

I thank the Deputies from the far side of the House for their contributions. I shall follow on from what Deputy Jim O'Keeffe said in his first few words, as a practising solicitor for more than 20 years, before and during my time in this House. I want to echo Deputy O'Keeffe's words as regards the abhorrence that 95% of the solicitors' profession have for some of the revelations that have taken place in recent times. This is not to say it did not happen over the years. During my time in full-time practice, I was always aware that among the general public the solicitors' profession, which I knew more about, but indeed barristers, too, was self-regulatory. When a complaint was made it was very difficult to get closure, but we have moved on a long way from then. The Law Society and the Bar Council, as the representative bodies of their respective professions, because of the general public outcry and the fact that in general society is much more transparent, have made a strong effort to ensure justice is not only seen to be done, but actually done. Clearly, that is something all Members of this House welcome.

I thank Deputies for their broad welcome for this Bill and the support they have given it. As regards the comments Deputy O'Keeffe has made about the plethora of ombudspersons, there is some justification for looking at this. This is why the Government is reviewing the question of getting some synergies among some of the bodies with similar remits. In this instance, however, particularly given that the office of the legal services ombudsman will be funded by a levy from the profession, it is difficult, quite apart from its remit, to see how it might be subsumed into some other office. Nonetheless, I acknowledge and concur with the sentiments expressed by a number of Deputies on the positive contributions made by the various incumbents of Ombudsman offices in this State. I have used them during my career as a public representative and sometimes encouraged constituents to do so on occasions when I could not obtain definite answers to their queries. A number of Deputies expressed the view that the ombudsman should not be a practising member of the legal profession. Section 5 specifically excludes practising barristers and solicitors from appointment as ombudsman, while also providing that the Government satisfies itself that the person appointed has appropriate experience, qualifications, training and expertise.

The legislation gives the ombudsman a broad set of functions and powers. Deputies were concerned to ensure the Bill would not be toothless and that it would contain adequate power of investigation and enforcement. I draw attention to the general functions and powers of the ombudsman provided for in section 9, which include receiving and investigating complaints, reviewing the procedures of the Bar Council and the Law Society for dealing with complaints made to them by clients of barristers and solicitors, assessing the adequacy of the admissions policies of both professional bodies and promoting public awareness of their complaints procedures.

Part 4 contains the substantive provisions relating to the ombudsman's functions in respect of complaints and reviews. He or she will have an array of powers in the investigation of complaints, including to conduct investigations under section 22, to require persons to provide information and to attend before the ombudsman under section 26, to issue directions or make recommendations to the Law Society or Bar Council under section 27 and to enforce directions through the High Court under section 30. In particular, with regard to complaints against solicitors, on completion of an investigation the ombudsman may direct the Law Society to make an application to the solicitors' disciplinary tribunal for an inquiry into alleged misconduct. In the event of a finding of misconduct, the tribunal may refer its findings and recommendations to the President of the High Court.

Deputy Kenneally raised the issue of the power of the Minister to ensure the Law Society or Bar Council do not default on the payment of the levy to cover the cost of the ombudsman's office. I refer him to section 20(1), which gives the Minister the power to make regulations to ensure payment is made by both bodies. The subsection provides for rules on the collection and recovery of the levy, including the rate of interest on amounts not paid when due. An opportunity is provided for the Minister to intervene if both bodies do not make the levy available.

In addition to his or her powers of investigation of individual complaints, the ombudsman has important general review powers under section 32, which enable him or her to review the procedures of the Bar Council and Law Society for dealing with client complaints. These include powers to examine the compliance of barristers and solicitors with complaints procedures, such random complaints as the ombudsman considers appropriate, the effectiveness of the two professional bodies' procedures, the time taken to complete investigations and complaints relating to particular matters as the ombudsman considers appropriate. Arising from such a review, the ombudsman may make written recommendations to the Bar Council and Law Society to improve their complaints investigation procedures and the co-operation of barristers and solicitors with them. If he or she is not satisfied with the response, the ombudsman may direct that the recommendations be implemented and such directions may be enforced through the High Court.

Section 14 is also an important provision in that it gives the ombudsman the power to submit reports to the Minister on issues that, because of their gravity or other exceptional circumstances, should be the subject of a special report. If these functions and powers prove inadequate, section 14 provides that, within two years of the date of appointment, the ombudsman may submit to the Minister a report on the effectiveness of the office and the adequacy of the functions of the office. The legislation, therefore, affords an early opportunity for change if the ombudsman feels he or she does not have the requisite powers.

I have noted Deputy Flanagan's suggestion that the ombudsman should produce a customer charter. Section 23 provides that he or she may establish and publish procedures on the receipt and investigation of complaints and, in that context, he or she could issue a customer's charter.

Deputies Flanagan and Ó Snodaigh queried the need under section 25 for the ombudsman's investigations to be conducted in private. Because many of these matters are sensitive and owing to the personal or private nature of legal services provided by lawyers to clients I consider, having examined the issue, that it is appropriate that investigations carried out by the ombudsman be conducted in private.

A number of Deputies commented on the levy provisions. The 2006 legislation provided for the costs of the office of the ombudsman to be met entirely by the Law Society and the Bar Council. The levy provisions in the 2006 Bill apportioned the cost of the office of the ombudsman between the Law Society and the Bar Council by reference to the respective numbers of practising solicitors and barristers. This would have imposed a disproportionately high charge on the Bar Council in view of the low numbers of complaints made against barristers. In drafting this legislation, the levy provisions were reviewed to take account of this disproportionate charge with a view to putting in place a fairer charging arrangement.

Section 19 of the legislation provides that the costs of the office of the ombudsman be recouped by way of an annual charge on the Law Society and Bar Council. The annual charge will be calculated by reference to the respective numbers of complaints made to the ombudsman relating to solicitors and barristers subject to a minimum charge on each body of at least 10% of the total annual cost. The minimum charge takes account of the costs of carrying out functions additional to investigating individual complaints, including reviewing the complaints mechanisms and the admissions policies of the two bodies. As a result of these changes, the annual charge will be apportioned between the two professional bodies in a manner that reflects the workload of the ombudsman. This brings more proportionality to the levy provisions.

Deputy Rabbitte raised recent cases, which are before the courts, concerning misuse of property title deeds. Generally solicitors were given the opportunity over the years to provide letters of undertaking, as Deputy Flanagan will be aware from his practice. Such letters are no more than a promise by a solicitor to provide the necessary documentation and anybody who abuses this facility should be brought to justice and censured for breaking the trust they are given in this respect. We are putting significant reform in place, which will ensure solicitors, in particular, are punished if they break that trust in closing transactions on the basis of letters of undertaking.

Not surprisingly, several Deputies raised the issue of legal costs. A legal costs Bill is included in the Government's legislative programme, which was published on 23 September 2008. Work is under way in my Department on preparing the scheme of the Bill, which will provide for reform of the manner in which disputed legal costs are assessed. It will also provide for significant improvements in the quality and quantity of the information that a solicitor is required to provide to clients and the manner in which it is supplied. A further objective is to ensure the litigant has a central role to play in controlling his or her legal costs. This will be a new system for assessment of legal costs, which provides information to the public on the law and on a client's entitlements relating to his or her costs.

Deputies Rabbitte and Flanagan raised the issue of the so-called "solicitor's lien", an established right under common law, whereby a solicitor may retain a client's file pending payment from the client. The Competition Authority viewed this as an unnecessary restriction on switching of solicitors by clients and recommended legislating to extinguish this common law right. The policy underpinning the existence of the lien has been approved by the courts here and in England and Wales. As the law stands, two remedies are open to an aggrieved client. He or she may either apply to court to have the lien set aside or complain to the Law Society, which may set aside the lien pursuant to section 8 of the Solicitors (Amendment) Act 1994. In addition, the society has in place a practice notice since 1996 dealing with the law and recommended practice in this area. I understand that such disputes are invariably resolved without recourse to the courts.

In the event of the lien being extinguished, it is inevitable that some clients would be required to make full or partial payment for legal services in advance in circumstances in which it does not occur at present. While it is legitimate that solicitors will not allow a file out of their possession until they have their costs paid, they take on business without advance payment. As Deputy Charlie Flanagan would concur, were we to extinguish the lien, solicitors would demand payment up front before proceeding. This would cause unnecessary difficulty for clients who may not be able to afford advance payment. We have considered the matter and the best way to deal with it would be to leave the situation as is, particularly given the censure provided for in section 8 of the Solicitors (Amendment) Act. The Law Society may set aside a lien in circumstances of dispute.

Deputy Ó Snodaigh raised the issue of the difficulty in engaging a solicitor to act against another solicitor. While this was the case when I started out, particularly in a small geographic area, and because of the perceived difficulty, the Law Society set up a panel of solicitors who would be available in such circumstances. I am aware of cases taken against solicitors by panel solicitors, an arrangement that has worked well.

The Government's policy of reform of the legal professions is reflected in the enactment this year of the Civil Law (Miscellaneous Provisions) Act, which provides for a number of reforms of regulatory matters in respect of solicitors, including providing for a majority of lay membership on the Law Society's regulatory committees, the publication this year of the Legal Services Ombudsman Bill and the commitment to publish a legal costs Bill.

I assure the House that policy is to ensure the highest standards and best practice are maintained by both legal professions. I commend the Dáil and Members on both sides of the House for their good contributions. I hope the Bill passes as soon as possible.

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