Conor Lenihan (Dublin South West, Fianna Fail)

Each of these amendments relates to the Law Society's powers of investigation into alleged misconduct either by solicitors or by apprentice solicitors.

The Law Society has, for many years, investigated allegations of misconduct by solicitors arising either from complaints made by clients or as a result of its own routine inspections of solicitors' practices. However, there is no express provision in the Solicitors Acts giving to the Law Society the power to investigate misconduct on the part of a solicitor. The Law Society's power to investigate alleged misconduct is implied in various existing provisions, including sections 10 and 14 of the Solicitors (Amendment) Act 1994, which give the society powers, for the purposes of such an investigation, to require the production of documents and to attend at a solicitor's place of business to inspect documents.

Amendment 9 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 Law 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.

Amendment 13 clarifies that the Law Society has the power to investigate alleged misconduct by a solicitor whether a complaint was made to it by a client of a solicitor or where the alleged misconduct comes to its attention in the course of carrying out its regulatory functions. Breaches of the Solicitors Acts may come to the attention of the Law Society during routine inspections of solicitors' practices. The purpose of the amendment is, therefore, to formalise the position. By way of example, inquiries under the Law Society's solicitors' accounts regulations may disclose conduct which constitutes a breach of the Solicitors Acts and which warrants full investigation under the Act's disciplinary provisions.

Amendment No. 13, therefore, removes any possible doubt that the Law Society's powers to investigate misconduct extends to complaints generated internally by the society itself, as well as to complaints made to it by clients of solicitors. In other words, it provides clarity and allows the society, where it comes into possession of evidence of what might be construed as malpractice or misconduct, to engage in fulsome investigations.

On amendment No. 14, section 9 of the Solicitors (Amendment) Act 1994 provides for the receipt and investigation by the Law Society of complaints made by clients in respect of excessive charging of fees by solicitors. The section obliges it to take all appropriate steps to resolve complaints by way of agreement between the parties. In the event that a solicitor issues a bill of costs that is excessive but subsequently settles the matter by agreement with the client, there is no statutory power available to the Law Society to treat the solicitor's actions as a case of misconduct. It is necessary 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, as I have stated. 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.

That is not entirely fanciful, as Senator Regan can imagine, being a practising lawyer himself. The client and solicitor could conspire, with one of the parties doing well financially from it. It would thwart the public interest investigation of an issue where a serious aspect of misconduct occurs.

Section 19 of the Solicitors (Amendment) Act 2002 provides for the extension of the solicitors' disciplinary regime to alleged misconduct on the part of apprentice solicitors. Amendment No. 18 replicates for apprentice solicitors the provisions proposed in amendments Nos. 9 and 13 for solicitors. Section 19 of the 2002 Act commenced on 1 January 2003, hence subsection (2) provides that the amendment will have retrospective effect to that date.