Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I put it to the Deputy that central to this issue are conflicts of interest. Central to this issue are certain legal practices that we saw during the boom years. The Deputy referred to some of those who were opposed to this. They were the larger legal practices, as opposed to the mid-range or smaller practices. They were opposed to it because they were doing work representing clients in circumstances in which there were substantial conflicts of interest. Where a conflict of interest exists, it is not always a case of a rogue solicitor. It may simply be a case in which a solicitor is cutting corners and not adequately ensuring that the necessary comprehensive work is undertaken. One of the great difficulties we discovered when the banks collapsed was caused by what we saw many years ago as a great reform. One solicitor was able to represent the purchaser of a property as well as the financial institution providing the mortgage loan. The solicitor could simply write a certificate to the bank to confirm that everything was in order. This was introduced many years ago because people objected to having to incur additional expense in circumstances in which the bank had to engage solicitors. We should bear in mind the disaster this has brought about in the context of the complex difficulties that have arisen for banks which are now owed substantial sums of money in cases in which legal work was not adequately done and the banks have inadequate security through title of property for moneys lent. This is a problem for individual financial institutions and, I understand, it has also resulted in substantial expense for NAMA.

The aim of this is to ensure that we have a proper legal system and that people get independent advice. Any savings made by allowing one lawyer to undertake work where there is a serious conflict of interest must be weighed against the necessity of avoiding general conflicts of interest, the duty upon solicitors to refer additional clients in voluntary transfers for independent legal advice and the security and protection of a person's interests and title to property that derive from separate legal representation. This is crucial, and I hope the Deputy will acknowledge it. Situations such as those to which I refer occurred - I am not being party political - under the noses of the Deputy's colleagues in government. We must acknowledge the lessons of previous litigation in this area and of the property boom, which point to the fundamental need to avoid conflicts of interest in the conduct of conveyancing transactions, be it on the part of solicitors or on the part of their clients, including in cases involving multiple family members or elderly or otherwise vulnerable family members. Substantial litigation has taken place in our courts over the years in which elderly family members have found themselves in difficulties after signing over property to sons or daughters and were at risk of being out on the street or, where a property has been signed over and used to raise additional borrowings, that property is in difficulty and repossession is sought.

It is not simply a cost issue. I would be glad to see real-time monitoring of the costs that are incurred due to the new arrangements. If an issue needs to be addressed it will be addressed, but we will have a more transparent legal cost system when we have enacted the Legal Services Regulation Bill. Given everything I have seen as a lawyer over 30 years and the difficulties I have had to deal with as a constituency representative, I believe it is crucial, in dealing with conveyancing matters - whether people are young or elderly and whether it is within families in which there may be a substantial breakdown in relationships at a later stage - that individuals get independent legal advice. The Deputy referred to the fact that if a person wishes to leave property to three or four children, all of the children must get legal advice. That is not true. If a person is leaving property in the sense of making a will, it is the individual who makes the will who should get legal advice.

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