Solicitors (Amendment) Act , 1994

PART I Preliminary and General

1 Short title, collective citation, construction and commencement.

1.—(1) This Act may be cited as the Solicitors (Amendment) Act, 1994.

(2) The Solicitors Acts, 1954 and 1960, and this Act may be cited together as the Solicitors Acts, 1954 to 1994, and shall be construed together as one Act.

(3) Section 68 of this Act shall come into operation 3 months after the date of its passing.

(4) Sections 16, 17, 18, 22, 23, 25 and 58 (3) of this Act shall come into operation on such day as may be fixed by order of the Minister.

2 Interpretation.

2.—In this Act, unless the context otherwise requires—

“the Principal Act” means the Solicitors Act, 1954;

“the Act of 1960” means the Solicitors (Amendment) Act, 1960;

“apprentice” includes a person who has completed the term of his indentures of apprenticeship but who has not yet been admitted as a solicitor;

“authorised person” means a person authorised in writing by the Society for the purpose of exercising any of the Society's functions pursuant to section 14 of this Act or pursuant to or as prescribed pursuant to section 66 (as substituted by this Act) of the Principal Act;

“bank” and cognate words shall be construed in accordance with section 75 of this Act;

“bill of costs” includes any statement of account sent, or demand made, by a solicitor to a client for fees, charges, outlays, disbursements or expenses;

“clerk or servant” includes an apprentice and a person employed whole-time or part-time by a solicitor and a person providing services under a contract for services;

“client” includes the personal representative of a client and any person on whose behalf the person who gave instructions was acting in relation to any matter in which a solicitor or his firm had been instructed; and includes a beneficiary to an estate under a will, intestacy or trust;

“client account” means an account opened and kept by a solicitor arising from his practice as a solicitor at a bank for clients' moneys, in accordance with regulations made pursuant to subsection (1) of section 66 (as substituted by this Act) of the Principal Act;

“clients' moneys” means moneys received, held or controlled by a solicitor arising from his practice as a solicitor for or on account of a client or clients, whether the moneys are received, held or controlled by him as agent, bailee, stakeholder, trustee or in any other capacity;

“Compensation Fund” means the fund maintained by the Society pursuant to sections 21 and 22 (as substituted by this Act) of the Act of 1960;

“contentious business” means business done by a solicitor in or for the purposes of or in contemplation of proceedings before a court or tribunal or before an arbitrator appointed under the Arbitration Acts, 1954 and 1980;

“Disciplinary Tribunal” means the Disciplinary Tribunal established by section 6 (as substituted by this Act) of the Act of 1960, and, as and from the coming into operation of section 16 of this Act, any reference to the Disciplinary Committee in the Act of 1960 shall, subject to section 16 (2) of this Act, be construed as a reference to the Disciplinary Tribunal;

“indentures” means indentures of apprenticeship;

“indentures of apprenticeship” includes any form of agreement as may be prescribed whereunder solicitors in the course of their practice as solicitors provide training for persons seeking to be admitted as solicitors;

“legal services” means services of a legal or financial nature provided by a solicitor arising from that solicitor's practice as a solicitor, and includes any part of such services;

“the Minister” means the Minister for Justice;

“moneys” includes moneys in a currency other than that of the State, cheques, bank notes, postal orders, money orders or any form of negotiable or non-negotiable instrument, moneys deposited or otherwise credited to a bank account or moneys deposited or otherwise credited to a bank or other financial institution outside the State;

“persons seeking to be admitted as solicitors” includes persons seeking to be bound by indentures of apprenticeship;

“the register” has the meaning assigned to it in section 47 (as substituted by this Act) of the Principal Act;

“sole practitioner” means a solicitor who is practising as a sole principal in a solicitor's practice.

3 Amendment of section 3 of Principal Act and amendment of sections 3 and 4 of Act of 1960.

3.—(1) Section 3 of the Principal Act is hereby amended by—

(a) the deletion of the definition of “solicitor” and the substitution of the following definition:

“‘solicitor’ means a person who has been admitted as a solicitor and whose name is on the roll; and a reference to a solicitor includes a reference to a firm of solicitors unless the context otherwise requires and includes a former solicitor or a deceased solicitor unless the context otherwise requires;”, and

(b) with effect from the 1st day of January, 1996, the substitution of the following definition for the definition of “practice year”:

“‘practice year’ means any year ending on the 31st day of December;”.

(2) Section 4 of the Act of 1960 is hereby repealed.

(3) Section 3 of the Act of 1960 is hereby amended by the deletion of the definition of “documents” and the substitution of the following definition:

“‘documents’ includes deeds, wills, papers, books of account, records, vouchers, correspondence and files and shall be construed to include any documents stored in an electronic or other non-written form or on film or otherwise;”.

PART II Name and Membership of Law Society of Ireland

4 Change of name of Society.

4.—(1) The body heretofore known as the “Incorporated Law Society of Ireland” shall be known as the “Law Society of Ireland” and may provide itself with a seal.

(2) Where, before the coming into operation of this section, any legal proceedings are pending to which the Incorporated Law Society of Ireland is a party, the name Law Society of Ireland shall be substituted in the proceedings for the name Incorporated Law Society of Ireland and the proceedings shall not abate because of such substitution.

(3) References to the Incorporated Law Society of Ireland contained immediately before the coming into operation of this section in any statute or statutory instrument (within the meaning of the Statutory Instruments Act, 1947) or in the memorandum or articles of association of any company or in any will, trust, deed, agreement or other document shall be construed on and after the coming into operation of this section as references to the Law Society of Ireland.

5 Amendment of bye-laws so as to conform with the Solicitors Acts, 1954 to 1994, and regulations thereunder (section 78 of Principal Act).

5.—The Principal Act is hereby amended by the substitution of the following section for section 78:

“Amendment of bye-laws so as to conform with the Solicitors Acts, 1954 to 1994, and regulations thereunder.

78.—(1) Notwithstanding the provisions of their Charters, the Society shall make any amendments to the bye-laws of the Society that are necessary to bring them into conformity with the Solicitors Acts, 1954 to 1994, and any regulations made thereunder.

(2) Notwithstanding anything contained in their Charters, the Society may in their bye-laws make provision for all or any of the following, namely—

(i) the membership of the Council,

(ii) the election or appointment of persons to membership of the Council,

(iii) the admission of persons as honorary or associate members of the Society.

(3) In this section ‘their Charters’ means, respectively, the Charter and the Supplemental Charter of the Society referred to in section 33(1) of the Act of 1960.”.

6 Honorary and associate membership of Society.

6.—(1) The Society may—

(a) admit as an honorary member of the Society any person whom the Society wish so to admit, and

(b) admit as an associate member of the Society any person or class of persons who is or are a member or members of a corresponding professional body in another jurisdiction.

(2) In this section “corresponding professional body” means a body established outside the State with objectives and functions similar to those of the Society.

7 Amendment of section 73 of Principal Act.

7.—(1) Section 73 (as amended by the Act of 1960) of the Principal Act is hereby amended by the substitution of the following subsections for subsections (3) and (4):

“(3) A committee under this section may include solicitors who are not members of the Council and persons who are not solicitors, but where functions of the Society which are performable by the Council are delegated to a committee, at least two-thirds of the members of the committee and of any quorum of the committee shall be members of the Council.

(4) Where functions of the Society which are performable by the Council are delegated to a committee under this section, that committee, in the performance of all or any of its delegated functions, may sit in one or more divisions, provided that—

(a) the quorum of such committee or any division of such committee shall be three, and

(b) where there are one or more members of such committee who are not solicitors, the quorum of such committee or any division of such committee shall include at least one of such members.”.

(2) Section 73 (as amended by the Act of 1960) of the Principal Act is hereby amended by the substitution of the following subsections for subsection (9):

“(9) A member of a committee under the section, who was a member of the Council at the date of his appointment, may act on the committee notwithstanding the fact that he has ceased to be a member of the Council and, for the purposes of subsection (3) of this section, he shall be regarded as a member of the Council.

(10) Where the Council has delegated functions to a committee under subsection (1) of this section, that committee may, subject to the prior approval of the Council, delegate any of such functions to a designated senior officer or senior officers for the time being appointed by the Society for that purpose, with or without restrictions, for such period as the committee may specify with the approval of the Council, and the committee or the Council may revoke such delegation with or without notice.”.

PART III Investigation of Complaints

8 Power of Society to impose sanctions for inadequate services.

8.—(1) Where the Society receive a complaint from a client of a solicitor, or from any person on behalf of such client, alleging that the legal services provided or purported to have been provided by that solicitor in connection with any matter in which he or his firm had been instructed by the client were inadequate in any material respect and were not of the quality that could reasonably be expected of him as a solicitor or a firm of solicitors, then the Society, unless they are satisfied that the complaint is frivolous or vexatious, shall investigate the complaint and shall take all appropriate steps to resolve the matter by agreement between the parties concerned and may, if they think fit, following investigation of the complaint, do one or more of the following things, namely—

(a) determine whether the solicitor is entitled to any costs in respect of such legal services or purported services, and if he is so entitled, direct that such costs in respect of such services shall be limited to such amount as may be specified in their determination;

(b) direct the solicitor to comply, or to secure compliance, with such of the requirements set out in subsection (2) of this section as appear to them to be necessary as a result of their investigation;

(c) direct the solicitor to secure the rectification, at his own expense or at the expense of his firm, of any error, omission or other deficiency arising in connection with the said legal services as the Society may specify;

(d) direct the solicitor to take, at his own expense or at the expense of his firm, such other action in the interests of the client as the Society may specify;

(e) direct the solicitor to transfer any documents relating to the subject matter of the complaint (but not otherwise) to another solicitor nominated by the client or by the Society with the consent of the client, subject to such terms and conditions as the Society may deem appropriate having regard to the circumstances, including the existence of any right to possession or retention of such documents or any of them vested in the first-mentioned solicitor or in any other person.

(2) The requirements referred to in subsection (1) of this section are—

(a) a requirement to refund, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the solicitor's costs in connection with the services he had provided or purported to provide, and

(b) a requirement to waive, whether wholly or to any specified extent, the right to recover the costs of the solicitor to the extent that they have not already been paid by or on behalf of the client.

(3) (a) The Society shall not make a determination or give a direction under subsection (1) of this section unless they are of opinion that it would in the circumstances be appropriate to do so.

(b) In determining whether it would be appropriate to make a determination or give a direction, the Society may have regard to such matters as they think fit including—

(i) the existence of any remedy that could reasonably be expected to be available to the client in civil proceedings;

(ii) whether proceedings seeking any such remedy have not been commenced by the client and whether it would be reasonable to expect the client to commence such proceedings;

(iii) whether section 13 of this Act applies to the subject matter of the complaint.

(4) Where the Society have made a determination or given a direction under subsection (1) of this section as to the costs of a solicitor in respect of any legal services provided or purported to have been provided by him, then—

(a) for the purposes of any subsequent taxation of a bill of costs covering those costs, the amount charged by the bill of costs in respect of those costs shall be deemed to be limited to the amount specified in the Society's determination and a copy of the written confirmation of either or both the Society's determination or direction given under subsection (1) of this section shall be included with the bill of costs submitted for taxation, and

(b) where a bill of costs covering those costs has not been taxed, the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any statutory provision or agreement to the contrary, be deemed to be liable to pay in respect of those costs only the amount specified in the determination of the Society.

(5) Where a bill of costs covering costs of a solicitor has been taxed in accordance with subsection (4) (a) of this section, the determination of the Society under subsection (1) of this section shall, so far as relating to those costs, cease to have effect.

(6) The fact that a person who was a party before any court, tribunal or arbitrator appointed under the Arbitration Acts, 1954 and 1980, was not satisfied with the outcome of such proceedings, shall not, of itself, be grounds for a complaint to the Society under this section.

(7) The Society shall not enter upon, or proceed with, the investigation of a complaint under this section, or otherwise apply the provisions of this section, where the Society are of the opinion that such complaint relates to the alleged inadequacy in any material respect of legal services provided by a solicitor more than five years before the date on which the complaint was made.

(8) The Society, with the concurrence of the President of the High Court, may make rules of procedure in relation to complaints received by the Society under this section.

9 Power of Society to impose sanctions for charging excessive fees.

9.—(1) Where the Society receive a complaint from a client of a solicitor, or from any person on behalf of such client, that a solicitor has issued a bill of costs that is excessive, in respect of legal services provided or purported to have been provided by that solicitor, the Society, unless they are satisfied that the complaint is frivolous or vexatious, shall investigate the complaint and shall take all appropriate steps to resolve the matter by agreement between the parties concerned and may, if they are satisfied that the bill of costs is excessive, direct the solicitor to comply or to secure compliance with one or both of the following requirements, namely—

(a) a requirement to refund without delay, whether wholly or to any specified extent, any amount already paid by or on behalf of the client in respect of the solicitor's costs in connection with the said legal services;

(b) a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.

(2) Nothing in subsection (1) of this section shall prevent any person from exercising any existing right in law to require a solicitor to submit a bill of costs to a Taxing Master of the High Court for taxation on a solicitor and own client basis.

(3) Where the Society have received a complaint under subsection (1) of this section and the client concerned (before or after the receipt of the complaint) has duly requested the solicitor concerned to submit his bill of costs to a Taxing Master of the High Court for taxation on a solicitor and own client basis, the Society shall not make a direction under subsection (1) of this section unless, after due notice to that solicitor, they are of the opinion that the solicitor or his agent in that regard is unreasonably delaying in submitting such bill of costs to a Taxing Master of the High Court for such taxation.

(4) Where a bill of costs, which has been the subject of a complaint under subsection (1) of this section has been subsequently taxed, then—

(a) if the Society have given a direction under subsection (1) of this section, such direction shall cease to have effect, or

(b) if the Society have not given a direction under subsection (1) of this section, the Society shall not enter upon or proceed with the investigation of such complaint or otherwise apply the provisions of this section.

(5) Where the Society have notified a solicitor of the making of a complaint under subsection (1) of this section in relation to a bill of costs issued by that solicitor, the solicitor shall not—

(a) issue or cause to be issued civil proceedings (whether on his own behalf or on behalf of any other person or persons), or

(b) if already issued, proceed further with civil proceedings,