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

The purpose of the proposed amendment No. 157, which inserts a new section 81 into the Bill, is to provide for what happens in relation to the handling of complaints concerning solicitors in the changeover from the existing complaints regime operated by the Law Society to the new regime to be operated by the legal services regulatory authority, LSRA. These are effectively transitional provisions.

The situation will be as follows. Where the Law Society has received a complaint about a solicitor before the commencement of the relevant provisions of this Act then it will process the complaint via its existing mechanisms and applying the provisions of the Solicitors Acts. Where complaints relating to inadequate services or excessive fees are made in relation to a solicitor on or after the date of commencement of this legislation, even though the complaint relates to an act or omission before commencement, it will be dealt with by the LSRA under the new legislation. It is really important that all disciplinary issues and complaints will now be dealt with by the LRSA, so there will be a completely independent authority dealing with disciplinary issues or complaints about solicitors or barristers. That is a central element of this legislation and its importance.

Where a complaint relates to misconduct, as opposed to inadequate service or excessive fees, and it relates to an act or omission of a solicitor before the commencement of this legislation, it will be dealt with by the new authority but using the old definitions of misconduct from the Solicitors Acts. This is to protect against a situation in which a misconduct complaint about a solicitor regarding something that happened before commencement of this Act would be evaluated against a new definition of misconduct. The new definition cannot be applied retrospectively.

Where a complaint about a solicitor which relates to an act or omission occurring after the commencement of this legislation is received by the authority, it will be processed by the authority under the provisions of Part 5 of this new legislation. When the Bill was first published, we had a Part 5 and Part 6 relating to the handling of disciplinary and complaint issues. They are now all being dealt with under Part 5.

These transitional provisions are complex and rather elaborate, but they are necessary in order to ensure that all of the necessary legalities are taken care of.That is critical in any legislative regime that covers the misconduct of professionals. We are talking here about potential misconduct by solicitors and barristers.

The purpose of amendment No. 158, which inserts a new section 82 is to provide for what happens regarding the handling of complaints concerning barristers in the changeover from the existing complaints regime operated by the Bar Council and partly by the Honourable Society of King's Inns to the new regime, which, as I have said, will be operated fully by the legal services regulatory authority. The transitional provisions concerning barristers are slightly different from those concerning solicitors. This is because complaints regarding solicitors are currently dealt with by the Law Society. The process is currently under a statutory regime set out in the Solicitors Acts. Senators will be aware that five Solicitors Acts have been passed to date.

At present, complaints regarding barristers are handled under the rules of the Bar Council and involve the Honourable Society of King's Inns where recommendations are required to be made regarding serious misconduct leading to disbarment of the barrister, which is handled by the benchers of the society under its rules and long-standing common law. To this extent, by contrast with the regime for solicitors, we have no reference point before the commencement of the new Act for a definition of barrister misconduct. The authority, therefore, cannot deal with complaints about barristers' acts or omissions that will have occurred before the commencement of our new Act. Such complaints will continue to be handled under the existing Bar Council regime, where applicable, and the processes of the Honourable Society of King's Inns where relevant.

The transitional provisions concerning complaints about barristers will be as follows. Disbarment by the benchers of the Honourable Society of King's Inns in respect of pre-commencement misconduct of a barrister will be required to be notified by the society to the new authority, and the new authority will bring the matter before the High Court. The High Court will, after due process, make an order either striking the name off the authority's roll of practising barristers or imposing another sanction, as appropriate. All other cases, that is, cases regarding a complaint regarding an act or omission of a barrister after the commencement of the legislation, will be dealt with by the new authority.

With regard to both solicitors and barristers, these are necessary transitional provisions. Older cases will be dealt with through the system fairly quickly leading to a situation where everything will be dealt with by the new authority. As I stated, there are different transitional provisions for solicitors and barristers, and that is because, up to now, solicitors have been dealing with these complaints under the Solicitors Acts whereas barristers have been dealing with misconduct internally, thus requiring a slightly different process. However, both processes require new sections to spell out quite clearly the transitional provisions as we move towards the new legal services regulatory authority.