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

This is a long series of amendments which relate to a core aspect of the complaints and discipline elements of Part 5 – the legal practitioners disciplinary tribunal.

A new section 64 is inserted by Amendment No. 74. That is providing for the establishment, in law, of the new legal practitioners disciplinary tribunal. Unlike the existing disciplinary framework where each legal profession has its own disciplinary tribunal, the new tribunal will deal, from the enactment of the Bill, with the professional conduct of both solicitors and barristers.

Amendment No. 75 inserts a new section 65 into the Bill. The new section being inserted under this amendment largely replicates the existing section 63 of the Bill. It increases the threshold of membership and that better reflects the combined workload of the existing tribunals under which each panel of three averages ten meetings per year. The initially proposed membership of 16 would have been inadequate to deal with the new disciplinary tribunal's anticipated workload and I would have been afraid that that would have led to a backlog of cases.

Another key change made under this amendment is that each division of the disciplinary tribunal shall be not less than three persons. The existing text of the Bill had provided in addition that each division should not be more than five members. However, having considered this aspect further, it was decided that for the sake of consistency of procedure and fairness all divisions of the tribunal should be of three persons.

Amendment No. 76 is similar to what was in place previously. It corresponds to section 64 of the Bill as passed by the Dáil and Second Stage of which was passed by the Seanad.

Amendment No. 77 inserts a new section 67 which expands the existing two-line provision in the Bill as passed by the Dáil to take account of additional functions - the ones I have outlined - that will now be carried out by the disciplinary tribunal. These will include, for example, appeals from the regulatory authority or from the Law Society to the tribunal in relation to determinations or sanctions, about which we have just spoken, that the complaints committee might put in place.It will also include appeals by a legal practitioner against a determination or sanction made against him or her by the complaints committee. For its part, the complaints committee will also be able to refer matters to the disciplinary tribunal where it considers this appropriate.

Amendment No. 78 inserts a new section. This amendment is necessary to allow for the fact that the legal services regulatory authority and the Law Society will present evidence to the new legal practitioners disciplinary tribunal grounding the contention that there has been misconduct by a legal practitioner. Whereas the legal services regulatory authority will do so in relation to public complaints, including those where it requests a financial report about a solicitor from the Law Society, the Law Society will do so in relation to matters that have come to its attention in overseeing the solicitor accounts regulations. They will deal with different elements.

Section 69 is with regard to the regulations that will need to be made for an effectively functioning disciplinary tribunal, with some slight adjustments to allow leeway for parties besides the regulatory authority and the legal practitioner concerned to make submissions to the disciplinary tribunal.

Amendment No. 80 is quite long but is largely the same as its precursor, which is section 69 of the Bill as passed by the Dáil. It contains a suite of supporting powers which enable the legal services regulatory authority to enforce attendance at its hearings, to compel the discovery under oath or affirmation of documents and to sanction obstructive or unco-operative behaviour, including by imprisonment or fine. However, there is one new subsection, which enables the Law Society to come within the remit of the disciplinary tribunal in the prosecution of financial infringements which come to its attention under its retained financial regulatory role.

Amendment No. 81 reflects section 69 of the Bill and sets out the steps to be taken by the disciplinary tribunal in holding an inquiry, with regard to how it deals with witnesses, takes evidence and takes advice. There are new additional provisions in the new version of the section, which cover those cases in which the legal services regulatory authority will make appeals to the tribunal against determinations or sanctions imposed by a division of the complaints committee. In other words, the additions to the original section 69 now found in section 71 are there to facilitate the new and additional appellate functions of the disciplinary tribunal.

Amendment No. 82 inserts a new section 72 into the Bill. This reiterates what was in the Dáil in section 70. It sets out the range of sanctions that can be applied by the legal practitioners disciplinary tribunal. One can see as we go through the Bill that in each case one must describe how each body deals with complaints, the complaints it can handle, the sanctions it can impose and whether there is the possibility of the decisions of one body being appealed by another. This section examines the role of the disciplinary tribunal which, as I have stated, will take over from the two committees which previously dealt with disciplinary issues. We will now have one body, namely, the legal practitioners disciplinary tribunal.

Amendment No. 83 deals with appeals against a decision of the disciplinary tribunal.

Amendment No. 84 relates to appeals to the High Court, and leaves the menu of sanctions that can be imposed through the High Court to a separate section. In its new configuration, the section deals with the High Court’s ability to hear appeals by persons so entitled under the new section 73, which we have discussed.

Amendment No. 85 provides that where the legal practitioners disciplinary tribunal decides to pursue a case for High Court sanction and the legal practitioner takes an appeal against this, the court is first to consider that appeal. In so doing the High Court can either confirm the disciplinary tribunal’s determination that the matter is for sanction before it or determine that the act or omission by the legal practitioner was not misconduct.

The new section inserted by amendment No. 86 mirrors that which was in Bill as passed by the Dáil, and merely sets out how the jurisdiction vested in the High Court under the preceding sections we have discussed shall be exercised by the President of the High Court as he or she may direct.

Amendment No. 87 inserts section 77, which mirrors that previously contained in the Bill save for the fact that it updates relevant references to cite the Court of Appeal rather than the Supreme Court, as would have applied prior to the establishment of the new Court of Appeal, which has been up and running for the past year.

Amendment No. 88 inserts a new section 78 which sets out the way in which orders made by the High Court or determinations made by the disciplinary tribunal are to be furnished to the Registrar of Solicitors in the case of solicitors, and to the Honorable Society of King's Inns with regard to barristers.

Amendment No. 89 is a short provision regarding the various documents involved and the legal privilege that applies.

Amendment No. 90 allows for a High Court order to be made on application of the regulatory authority where it is shown that a legal practitioner or any other person has refused, neglected or otherwise failed without reasonable cause to comply in whole or in part with a determination made by the legal practitioners disciplinary tribunal.

Amendment No. 91 is a transitional provision, and amendment No. 92 makes it clear that the authority in the performance of its functions where a complaint refers to a solicitor may exercise all the powers conferred on the Law Society under the Solicitors Acts.