Conor Lenihan (Dublin South West, Fianna Fail)

This Bill provides, for the first time, for the establishment and functions of a legal services ombudsman. Extensive regulation of barristers and solicitors lies, respectively, with the Bar Council and the Law Society. A fundamental part of the regulation is concerned with the maintenance of high professional standards and the investigation of claims that those standards have not been met in particular cases. The procedures put in place by both branches of the legal profession to address complaints of poor professional performance or misconduct have evolved over many years. The legal services ombudsman is intended to oversee the operation of the complaints systems of the professional bodies in order to strengthen the mechanisms for dealing with complaints against both barristers and solicitors.

Both the public and the practitioner must have confidence that the professional bodies operate systems to process and determine complaints in a fair and effective manner without undue delay. The complaints systems of the two professional bodies are designed to give an aggrieved client access to redress when a practitioner fails to provide an acceptable legal service while also protecting the practitioner from unwarranted or malicious claims.

All practising barristers must comply with the Bar Council's code of conduct which was updated and improved in 2006. Complaints against barristers by members of the public are dealt with under the Bar Council's disciplinary code. A client may make a complaint about a barrister who has failed to maintain proper professional standards, has committed professional misconduct or has brought the profession into disrepute.

The complaints against barristers are made to the Bar Council's professional conduct tribunal comprising barristers and lay persons. The complaints are handled in private and may be dealt with by way of an oral hearing. If a complaint goes to an oral hearing, both parties are invited to attend and both may be legally represented. The tribunal's decision may be appealed by either party to a three member appeal board, chaired by a High Court judge with the two other members nominated by the Bar Council and the Attorney General. Where there is a finding of misconduct against a barrister, the disciplinary code prescribes penalties ranging from an admonishment to a fine to disbarment.

The Solicitors Acts 1954 to 2008 regulate the solicitors' profession. In particular, Part III of the Act of 1994 makes detailed provision for the investigation of complaints against solicitors. Complaints to the Law Society generally fall into two broad categories, complaints of misconduct and complaints of inadequate service or excessive fees. There may of course be a degree of overlap between these categories. The society's complaints and client relations committee, which includes lay members, determines complaints lodged directly to it by members of the public.

Complaints of misconduct against solicitors may be made by clients to the society or the Solicitors Disciplinary Tribunal. Where a complaint of misconduct has been made to the society in the first instance, it may be referred by the society to the tribunal and such complaints would then be liable to attract the heavier end of the scale of sanctions. The Solicitors Disciplinary Tribunal is an independent statutory tribunal appointed by the President of the High Court to investigate complaints of misconduct against solicitors under the 1994 Act. Members of the tribunal are appointed by the President of the High Court and include lay persons. The tribunal performs a pivotal role in the solicitors' disciplinary process and this is the tribunal which dealt with recent high profile cases.

The Law Society may refer complaints to the tribunal and every client of a solicitor has a right to make a direct application to the tribunal. The tribunal has limited judicial powers and its primary function is to establish by evidence and documents the facts of a complaint and to decide whether misconduct is proven. Where there is a finding of misconduct, the tribunal can impose a sanction on the solicitor ranging from admonishment to a direction to pay restitution of a sum not exceeding €15,000 to any aggrieved party. In more serious cases the tribunal may refer its finding and recommendation to the President of the High Court, who ultimately will decide on the nature of the sanction to be imposed on the solicitor. The powers of sanction available to the High Court range up to striking the solicitor off the roll. If either party is unhappy with a decision of the tribunal, this may be appealed to the High Court. Approximately 1,700 complaints against solicitors and 20 against barristers are made per annum. There are over 8,000 practising solicitors and more than 2,100 practising barristers.

The Government recognises that further measures are necessary to enhance confidence in the complaints systems of the two professions and that is the purpose of the Bill. The ombudsman will oversee the handling by the Law Society and the Bar Council of three classes of complaint against solicitors and barristers, namely inadequate services, excessive fees and misconduct. The key function will be to provide a form of appeal for clients of solicitors and barristers who are dissatisfied with the outcome of a complaint made to the Law Society or Bar Council.

I now refer to the specific provisions of the Bill. Sections 4 and 5 provide for the establishment of the ombudsman and his or her appointment by the Government on the nomination of the Minister for Justice, Equality and Law Reform. Specified persons not eligible for appointment include practising barristers or solicitors, members of the Law Society, members of the Bar Council or benchers of the Society of King's Inns.

Under section 6, the period of office of an ombudsman will not exceed six years. The person appointed may be re-appointed for a second or subsequent term. Standard provision is made for the manner in which the ombudsman may resign from office, the circumstances in which the Government may remove the ombudsman from office and the circumstances in which a person ceases to hold the office of legal services ombudsman.

The general functions and powers of the ombudsman under section 9 are to receive and investigate complaints, review the procedures of the Bar Council and the Law Society for dealing with complaints made to them by clients of barristers and solicitors, assess the adequacy of the admission policies of the two professional bodies and improve public awareness of their complaints procedures.

Standard provisions are made in section 11 for the appointment of staff to the office of the ombudsman and for the engagement of professional and other advisers and the delegation to a member of the staff of certain functions assigned to the ombudsman.

The office of the legal services ombudsman will be funded entirely by means of a levy on the two professional bodies and Part 3 of the Bill makes detailed provision in this regard. It is necessary to provide for advance funding from the Exchequer which will be recouped from the two professional bodies. Section 12 provides for such advances. Section 13 makes standard provision for financial accounting and audit matters by the ombudsman, including audit by the Comptroller and Auditor General and the presentation of the audited accounts to the Minister and the Houses of the Oireachtas.

Section 14 requires the ombudsman to make various periodic reports to the Minister, including an annual report on the performance of the functions of the office and a report on its effectiveness and the adequacy of its functions within two years of its establishment. The ombudsman may also make a special report to the Minister on a matter of particular gravity or in other exceptional circumstances. The ombudsman is required to make a special report on any other matter if so requested by the Minister. All reports will be laid before the Oireachtas and published.

Under section 15, the ombudsman is also required to produce an annual report on the adequacy of the admission policies of the legal professions. The report must specify the numbers admitted annually to legal practice for the year in question and an assessment as to whether the numbers admitted are consistent with the public interest in ensuring the availability of legal services at a reasonable cost. Again, this report will be laid before the Oireachtas and published.

Sections 16 and 17 provide for the appearance of the ombudsman before the Committee of Public Accounts and other committees of the Houses of the Oireachtas.

Provision is made in section 18 for various publications to be privileged for the purposes of the law of defamation, namely, any matter in a report of the ombudsman laid before either House of the Oireachtas and publications by the ombudsman directed to particular persons or bodies.

Section 19 provides for the payment each year of a levy to the Minister by the Bar Council and the Law Society to meet the approved expenses of the ombudsman. These expenses equate to the full operating costs and administrative expenses of the ombudsman in the preceding year and comprise salaries, superannuation, office accommodation and related costs and legal costs incurred in issuing or defending legal proceedings. The Bar Council and the Law Society will each be liable to pay 10% of the approved expenses and the remaining 80% will be paid pro-rata by the two bodies according to the relative numbers of complaints made to the ombudsman in regard to barristers and solicitors. Provision is made for other matters pertaining to the levy, including late payment.

Section 20 empowers the Minister to make regulations to provide for various matters related to the levy. There are substantive provisions on the ombudsman's functions in regard to complaints, investigations and reviews. A complaint may be made by a client of a barrister or solicitor to the ombudsman concerning the handling by the Bar Council or the Law Society of a related complaint against a barrister or solicitor under section 21. A complaint may also be made by a client of a solicitor to the ombudsman about a decision of the Law Society to make or refuse a grant from its compensation fund. Section 22 provides for the types of complaints which may be made to the ombudsman, including complaints of inadequate investigation and failure to commence or complete an investigation of a related complaint within a reasonable time.

The ombudsman may seek the resolution of complaints in such a manner as he or she considers appropriate and reasonable and the ombudsman may establish and publish procedures to be followed in regard to the receipt and investigation of complaints. The ombudsman must conduct investigations in private. To ensure full co-operation with the investigation of a complaint, the ombudsman has the power to require the provision of information or attendance of any person before him or her as appropriate. In the event that a person fails to comply with a request for information or attendance, the ombudsman may apply to the High Court for an order requiring compliance. Section 27 creates the offence of obstruction of the ombudsman in the performance of his or her functions, which is punishable by a fine not exceeding €2,000 on summary conviction.

The ombudsman has power to issue directions and make recommendations to the Law Society and Bar Council. In particular, following investigation the ombudsman may, if not satisfied that the related complaint was adequately investigated, direct the Bar Council to reinvestigate it under the Bar Council's disciplinary code or direct the Law Society either to conduct a second investigation or refer the complaint to the Solicitors Disciplinary Tribunal for an inquiry on the grounds of alleged misconduct. The ombudsman may make other directions and recommendations to both bodies including that the Law Society make or increase a grant out of its compensation fund. The ombudsman may request the professional body to respond within a specified period to a direction given or recommendation made. In the event of an unsatisfactory response, the ombudsman may make a special report to the Minister which will be published. Provision is made for High Court enforcement of directions made by the ombudsman and for referral of any question of law by the ombudsman to the High Court for determination.

A key function of the ombudsman is to keep under review the procedures of the Bar Council and Law Society for receiving and investigating complaints about barristers and solicitors. Section 32 provides that the ombudsman may examine the complaints procedures of the two bodies, the co-operation of barristers and solicitors with these procedures, the effectiveness of the procedures and the time taken to complete investigations. In addition, the ombudsman may examine random samples of complaints made to the Bar Council and Law Society, complaints relating to specific matters and statistical information, including information on multiple complaints against individual barristers or solicitors. Arising from his or her review, the ombudsman may make written recommendations to the Bar Council and Law Society to improve their complaints investigation procedures and requesting the co-operation of barristers and solicitors with these procedures. If not satisfied with their response to the recommendation, the ombudsman may direct that the recommendation or an amended recommendation be implemented. Where the ombudsman considers it appropriate, in regard to a particular class or classes of complaint, the relevant professional body may be directed to put in place specific procedures to address such complaints.

Full and complete records must be kept by both professional bodies of all investigations and proceedings relating to complaints and must be made available to the ombudsman on request. Legal proceedings may only be commenced against the ombudsman with the leave of the High Court on notice to the ombudsman. Confidentiality of information in the possession of the office of the ombudsman is ensured by section 35 of the Bill which provides that the ombudsman or a member of staff may not, except in accordance with law, disclose any information obtained other than in specified circumstances.

The Bill represents an important part of a series of measures to support the better regulation of the legal professions. The other measures include enactment in July 2008 of the Civil Law (Miscellaneous Provisions) Bill which strengthened and clarified the law on regulatory matters in regard to solicitors and enactment and, also in July 2008, of the Legal Practitioners (Irish Language) Bill 2008 which modernised Irish language training requirements for solicitors and barristers.

I commend the Bill to the House.