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GAZETTE
NOVEMBER 1991
Solicitors Bill Welcomed, but Some
Provisions "not in the Public Interest"
The Solicitors (Amendment) Bill,
1991 was published by the Minister
for Justice,
Raphael Burke,
TD, on
Friday, 25th October, 1991. The
Minister heralded the Bill as a major
reforming measure which was being
introduced to protect the interest of
clients of solicitors, to promote high
standards in the profession and to
enable solicitors to adapt and
respond to commercial and
economic changes. The Law
Society reacted promptly to the
publication of the Bill and in a press
statement said that while it
supported the majority of the Bill's
provisions, the Society was how-
ever, concerned that some pro-
visions - especially those relating
to fee advertising, allowing banks
and trust corporations to do probate
work and allowing banks to do
conveyancing - were not in the
public interest.
Positive features
At a press conference staged on the
afternoon of Friday, 25th October,
1991, the Society outlined the many
positive features in the Bill, pointing
out that many of them had been
included at the request of the
Society following a lengthy period
of discussion and consultation with
the Government. Examples of the
positive changes were:
• an important change in the law
relating to the Compensation
Fund which will limit claims
under the Fund to the clients of
solicitors;
• the appointment of an inde-
pendent adjudicator (Legal
Ombudsman) who will have
power to oversee the handling of
complaints of solicitors;
• lay membership of the Dis-
ciplinary Committee;
• a power to make professional
indemnity insurance com-
pulsory;
• a restriction for the first three
years on newly qualified soli-
citors practising on their
own.
In addition, the Law Society wel-
comed the stronger powers given to
the Society in the Bill to deal with
complaints from the public against
solicitors. The strengthened powers
of the Disciplinary Committee of the
High Court to deal with cases of
misconduct or dishonesty were also
welcomed.
Negative provisions
However, the Chairman of the
Solicitors Bill Committee,
Maurice
Curran,
stressed that not everything
in the Bill was acceptable to the
Society.
Ombudsman
Mr. Curran said that it was totally
inappropriate that any non-Govern-
mental organisation such as the
Society would have to pay the ex-
penses of a Legal Ombudsman who
would be a public official carrying
out a public watchdog function.
Such a requirement was inconsist-
ent with the principle of the inde-
pendence of the office.
Fee advertising
Mr. Curran said that the Society
was strongly opposed to allowing
solicitors to advertise fees and
believed that it would be likely to
cause confusion, lead to the public
being exposed to the risk of shoddy
or careless work and unsatisfactory
legal service and would be very
likely to generate additional com-
plaints from clients. Fee advertising
was neither in the public interest nor
the profession's interest. In a later
TV interview, the out-going Presi-
dent of the Law Society,
Donal G.
Binchy,
pointed out that legal
services were not amenable to
market forces in the same way as
commercial goods. "We are not
dealing in canned peas", he said.
Probate by banks and
trust corporations
The Society said that allowing
banks and trust corporations to do
probate work would be an ex-
tremely ill-advised step. There were
four arguments against it:-
(i) probate and administrations
involved complex legal work
that had to be done by legally
qualified persons;
(ii) there would be no protection
for clients funds (such as the
solicitors Compensation Fund)
and, unless such work was
done by solicitors, there might
be no professional indemnity
insurance to cover negligence.
(iii) there was a serious risk of
conflict of interest if banks
acted for their own customers;
their clients would not have
independent legal advice;
(iv) overheads of banks were such
that they could not provide a
cheaper service than solicitors
and their fees were not subject
to any control.
Conveyancing by banks
At the press conference, the Society
pointed out that conveyancing was
an area of work that should be
reserved for properly trained per-
sons who were supported by
professional indemnity insurance, a
compensation fund and a disciplin-
ary code which would deal ade-
quately with complaints from the
public. Solicitors were the only
persons with the required expertise,
insurance cover and regulatory
control. Maurice Curran said that he
was at a loss to understand why the
Minister was on the side of the big
banks viz-a-viz solicitors who were
trying to earn a living.
Further consultation with
members
At the press conference, the then
President of the Law Society,
Donal
Binchy,
stressed that these were the
Society's preliminary views on publi-
cation of the Bill. A full process of
consultation would take place with
members of the profession and fol-
lowing this consultation the Society
would formulate a more detailed
response to the Bill and would seek
to have those provisions in the Bill
that were unacceptable to the pro-
fession modified or amended.
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