Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

We have discussed in detail the inspection issues. This is the situation where the Law Society under the oversight of the legal services regulatory authority will retain its existing investigative, protective and disciplinary powers in the financial regulation of solicitors under the Solicitors Acts. The Law Society will continue to oversee implementation of the solicitors' accounts regulations, to carry out routine financial inspections of solicitors, to investigate financial infringements and prosecute them before the newly set up Legal Practitioners Disciplinary Tribunal.

Part 5 of the Bill deals with complaints and discipline. They relate mainly to procedures, into which I have gone in some detail, to be followed by the authority in dealing with such issues. Amendment No. 50 inserts a new section 40 which includes various definitions.

Amendment No. 51 is an important provision which specifies what is meant by misconduct by legal practitioners in the context of this legislation. I did say earlier that an act of omission by a legal practitioner could be considered to be misconduct, of which there is a definition. The list of reasons has been discussed with the professional bodies and it includes: fraud and dishonesty; breaches of the solicitors Acts; offences under this Bill; inadequate service; excessive costs; the commission of an arrestable offence; behaviour likely to bring the solicitors’ profession into disrepute; and behaviour likely to bring the barristers’ profession into disrepute.

Subsection (2) sets out the manner in which the complaints or disciplinary tribunal established under the Bill or the High Court in considering a matter of excessive costs can determine whether an act or omission should be considered as constituting misconduct. It is very important, consumer friendly and necessary to have it in the legislation. We often hear from individuals that certain acts were not carried out or followed through. The Bill deals with that issue.

Amendment No. 52 concerns the making of complaints under the Bill. It defines the three main reasons a person may complain to the authority: the act or omission of the legal practitioner constituted misconduct; the legal services provided by the legal practitioner were inadequate; and the amount of costs sought by the legal practitioner was excessive.

Subsection (2) provides that from the commencement of the Bill complaints may be made only to the authority. That is a major change in regulation. This gives the authority responsibility for the handling of all complaints against legal practitioners.

Subsection (3) makes it clear that where a report or an interim report of an inspector under Part 3 is received by the authority, an officer of the authority may make a complaint in respect of the legal practitioner.

Subsection (4) is a key provision which provides that where the Law Society, following an investigation under the solicitors Acts, considers an act or omission of the legal practitioner constitutes misconduct, it must notify the authority. It has to bring any investigation where this is found to the attention of the authority and give its views on the circumstances such that the matter shall be deemed to be a complaint made by the Law Society. However, subsection (5) provides that subsection (4) shall not apply where the matter either constitutes a breach of, or is related to, an act or omission which constitutes a breach of the solicitors' accounts regulations.

Under subsection (6), the authority is required to notify the Law Society of any complaint received about a solicitor. That is extremely important.

Amendment No. 53 inserts a new section 43 which provides guidance on the referral of complaints by the professional bodies to the authority. It lays out the procedures they are to follow in sending complaints to the new regulatory authority. The section provides that following commencement of the Part where a client of a barrister makes a complaint to the Bar Council, the Honourable Society of the Kings Inns or the Law Society, it shall be referred to the authority and the client shall be deemed to be the complainant.

Amendment No. 54 is a technical provision on the making of a complaint to the authority, that the period beginning on the making of a complaint to the authority and ending two months after the complaint is determined under this Part shall be disregarded in reckoning any period of time for the purposes of any limitation period in the making of an application for adjudication of a bill of costs under Part 10. That gives some leeway for the complaint to be considered rather than counting the time from the moment the complaint is made.

Section 45 provides that where a complaint is withdrawn but the authority considers it to be in the best interests of the public to do so, the authority may proceed or continue to deal with the complaint under this Part. This is quite important because if there is a public interest issue, even though the complaint is withdrawn, the authority can proceed to deal with it.

Amendment No. 56 is a key provision that gives the authority the power to make regulations regarding the making of a complaint and the procedures to be followed by the authority and the complaints committee in investigating such a complaint.

Amendment No. 57 is a standard provision which relates to fees for the submission of complaints and which provides that the authority may, by regulation and with the consent of the Minister for Public Expenditure and Reform, prescribe fees for the making of a complaint and circumstances where they may be refunded. How it handles complaints is dealt with in amendment No. 58.

Amendment No. 59 deals with the point Senator Denis O'Donovan raised about the fact that not all complaints received by the authority will be worthy of further investigation. This provision gives legislative standing to the principles on the admissibility of complaints received by the authority. The section lists a number of instances wherein the authority may determine that a complaint is inadmissible such as complaints that are vexatious or without substance or foundation. There has to be a clear way in law for the authority to deal with such complaints. Other instances arise where the act or omission to which the complaint relates is the same subject matter of a complaint previously determined under the Bill; the act or omission of a solicitor to which the complaint relates is substantially the same as a complaint previously determined by the High Court or the Law Society; the act or omission of a solicitor to which the complaint relates was the subject of criminal or civil proceedings in which a final determination was made by the court in favour of the solicitor. The section goes into the detail of the range of situations that will guide the legal services regulatory authority in dealing with a complaint. The authority may defer consideration of a complaint until a final determination, including any appeal, rehearing or retrial in civil or criminal proceedings, has been made. I am sure people will see that this makes absolute sense.

There is a section that allows the independent authority to request the Law Society to investigate any matter relevant to a complaint against a solicitor. Section 50 permits the authority, the complaints committee or the Legal Practitioners Disciplinary Tribunal to request, in relation to a complaint against a solicitor, that the Law Society carry out an investigation under the Solicitors Acts into any matter relevant to the complaint. The section further provides that the Law Society shall comply with the request and within one month of receiving the request furnish the authority with an interim report on the matter, together with an indication of when the final report will be available. The section makes it clear that any interim or final report of the Law Society shall be admissible in proceedings under this Part.

I have gone into a lot of detail on this section, but it is very important to be aware of what we are trying to do. It is a question of oversight and giving confidence to the public that there is a fair and equitable regime in place for complaints and disciplinary issues and that all of the detail has been covered in respect of instances of fraud or dishonesty, breaches of the Solicitors Acts, inadequate service, excessive costs and so forth that can now be dealt with by an independent body. There is also a role for the Law Society and the Bar Council, but this is an independent body which will deal with these issues.Obviously, the compensatory fund will remain with the Law Society.