72 / 462
GAZETTE
N W
MARCH 1992
Society Makes Submission on
Solicitors Bill
The Law Society has made a
detailed submission to the Minister
for Justice,
Padraig Flynn,
on the
Solicitors (Amendment) Bill, 1991.
In an accompanying letter, sent with
the submission at the end of
January, Law Society President,
Adrian P. Bourke,
said "as you are
aware in the course of its
preparation, the Bill was only seen
by a special committee established by
the Council to handle it and the
remainder of the profession,
including the Council of the Law
Society, were not consulted about the
Bill until it was published. Since its
publication, the Society has
subjected the Bill to detailed
examination across the profession,
and the views we are now putting
forward represent the conclusions of
the Council following this
consultation process."
The main features of the submission
are summarised below.
Sections 8 and 9 - Inadequate
Services and Overcharging
The submission notes that there is
considerable disquiet in the
profession about how these sections
would operate. Among the changes
proposed in the submission are:-
1. only clients of solicitors should be
able to complain under these
provisions and the Society should
be able to screen frivolous or
vexatious complaints;
2. the inclusion of a provision which
would impose a sanction for
making a malicious complaint
against a solicitor;
3. a provision which would ensure
that, in exercising powers under
Section 8, the Society would have
to have regard to the existence of
any remedy that could be
reasonably expected to be available
to the client in civil proceedings
and whether the client ought to
have availed of such a remedy;
4. a provision which would ensure
that, where a bill of costs is taxed,
notwithstanding any determination
by the Society that the bill should
be reduced, the bill to be
submitted for taxation should be
the bill as originally presented by
the solicitor.
Section 15 - Independent
Adjudicator
The submission seeks the following
changes:-
1. the deletion of the provision
imposing an obligation on the
Society to pay for the
ombudsman;
2. the widening of the terms of
reference of the ombudsman to
bring in all legal services;
3. the ombudsman should be under a
strict duty of confidentiality in
relation to his work and there
should be a right of action for
breach of this;
4. any regulations made by the
Minister under this section should
have to be made in consultation
with the Society.
Section
27 -
Control of Banking
Accounts
The Society wants a provision to
enable it to seek, when necessary, a
Mareva injunction against a solicitor
to whom Section 20 of the 1960 Act
is being applied, to prevent the
dissipation of the assets of the
solicitor or their removal from the
jurisdiction.
Section 28 - Compensation Fund
The change in the Bill that confines
claims under the Compensation
Fund to a
client of a solicitor
is
welcomed, but the submission argues
that more far reaching changes are
needed. Principally, a limit or cap of
£50,000 should be placed on the
level of individual claims under the
Compensation Fund. The Society is
also seeking an amendment to
Section 19 of the 1960 Act to give
the Society discretion to refuse to
make a grant from the Fund in a
case in which the loss sustained was
otherwise than as a result of the
misappropriation or misapplication
of funds
entrusted
to the solicitor.
The submission proposes that the
term "dishonesty" should be
narrowed to exclude the possibility
of claims being brought by clients
who have suffered as a result of the
negligence of solicitors
and who have
been misled by the action taken by
the solicitor on their behalf.
The creation of a new criminal
offence where a solicitor
intentionally takes monies from a
client account or otherwise converts
or applies a client's property to his
own use is proposed. Such a new
offence is essential, the submission
argues, to enable criminal charges to
be brought against solicitors who
defalcate and would also act as a
useful deterrent.
Finally, the Society has sought the
deletion of a provision which would
have enabled it to specify a different
rate or rates of annual contribution to
the Compensation Fund in relation to
a class of solicitor. The submission
notes that this provision has been
strongly opposed by the profession.
Section 34 - Three Year Rule
Again, reflecting feedback from the
profession, the submission proposes
an amendment to provide that "the
three year rule" requirement would
only come into operation on foot of
regulations to be made by the Society.
Section 43 - Education
The Society has asked for a
provision to enable it to specify a
qualifying standard in the university
degree of a person seeking admission
to the Law School.
53