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G A Z E T TE
1 W
1 N
A P R I L 1993
V E
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T
Someone To Watch Over Us
Quis custodiet ipsos custodes
is an
ancient Latin maxim that neatly
encapsulates one of the dilemmas
that faces any body charged with
acting as guardians of the public in
relation to any specific office or
function; if the so-called guardians
are there to exercise a public duty,
who will see to it that they carry out
this task properly?
Confirming and developing the
original charter-based authority of
the Law Society, the Oireachtas has
seen fit to entrust to the Society the
duty and responsibility of dealing
with complaints from members of
the public against solicitors.
Exercising a disciplinary function is,
of course, one of the key aspects of
being a self-regulatory profession
and it is perfectly proper that, when
complaints are made against
solicitors, issues of professional
practice and competence should be
adjudicated upon by fellow
practitioners. However, in an age of
increasing militancy on the part of
consumers, including the users of
legal services, the fairness and
objectivity of complaints-handling
machinery, which lacks an
independent element, has in other
contexts been called into question.
The solicitors' profession and the
Law Society have not escaped public
attention in this regard.
Who, then, should guard the
guardians?
The Law Society has now decided
that the time is right to appoint Lay
Observers to the Registrar's
Committee of the Society to
participate in the decision-making
process in relation to complaints
against solicitors. The Registrar's
Committee, as many readers will be
aware, is the internal committee of
the Society to which functions of the
Council in relation to complaints
against solicitors have been
delegated. The Committee oversees
the handling of complaints by the
executive staff of the Society and sits
in adjudication on complaints from
the public about issues of
professional competence. We endorse
the decision of the Council of the
Society, taken at its March meeting,
to appoint Lay Observers and believe
that this move will do much to
enhance public confidence in the
complaints-handling machinery of
the Society and, at the same time,
help to improve the image of Society
and the profession both of which
have had to endure a good deal of
unfavourable publicity in recent
times. The Society has made it clear
that, in moving to open its
complaints machinery to public
scrutiny, it does not accept that the
procedures it has followed are not
objectively fair to complainants; it
has now endorsed its own judgement
in this matter and demonstrated that
it has nothing to fear from having
its procedures subjected to
independent assessment.
There is no doubt, in our view, that
the fact that complaints against
solicitors are dealt with by a
committee in the Society and
ultimately adjudicated upon by a
tribunal of the High Court, both of
which are comprised entirely of
practising solicitors, causes the
public to question the objectivity of
the system. Public confidence in the
complaints-handling machinery of
the Society is an important matter
that affects the public's perception
of the profession as a whole and
also the credibility of the Law
Society as a self-regulatory
professional body.
The Law Society's proposal is that
there would be two lay persons
nominated by the Minister for Justice
to sit on the Registrar's Committee.
These lay persons would not be
members
of the Committee (until the
Solicitors Acts are amended it is not
possible to appoint lay persons
to be
members
of the Registrar's
Committee) but they would be
entitled to receive all the
documentation of the Committee, to
attend its meetings and to participate
fully in its deliberations. Moreover, it
is proposed that the Lay Observers
would have the right to make
recommendations to the Society
from time to time on the fairness
and adequacy of the Law Society's
procedures and also, at least once a
year, to make a report in a form
suitable for publication on the
manner in which the Society has
carried out its functions in relation
to complaints. (See also page 89.) In
essence, therefore, the Lay Observers
will fulfil many of the functions that
would fall to a legal ombudsman but
without the formal trappings of such
an office and at a much lower level
of cost.
We think this is a step in the right
direction. There is a need for some
public reassurance in this area and
the Law Society's initiative achieves
the correct balance. The fact that the
Lay Observers will be nominated by
the Minister for Justice will be a
guarantee of their independence
from the profession and the proposal
that they should have the right to
make recommendations and to
report on an annual basis will also
do much to enhance credibility in
the system. Lay Observers on
complaints committees have
performed well in other jurisdictions
and ordinary practitioners have no
reason to fear this development.
Their affairs will continue to be
handled with discretion and in total
confidence. The Lay Observers will
be under a duty, as committee
members are, to respect
confidentiality in relation to
information they obtain in the
course of their work. The proposal
is a very positive development which
it is to be hoped will evoke a
sympathetic response from the public
and the profession alike.
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