Legalize / Ireland / Act

Solicitors (Amendment) Act , 1994

Type Act

Publication 1994-11-04

State In force

Source Irish Statute Book

articles 82

Reform history JSON API

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,

in relation to the amount (or any part thereof) of such bill of costs without the written consent of the Society before the Society has completed any investigation of the complaint pursuant to subsection (1) of this section, unless on application by that solicitor, on notice to the Society, a court otherwise orders.

(6) 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 the bill of costs, the subject of such complaint, was issued prior to a date that is five years before the date on which the complaint was made.

(7) 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.

10 Production of documents.

10.—(1) Where it appears to the Society that it is necessary to do so for the purpose of investigating any complaint made to the Society—

(a) alleging misconduct by a solicitor, or

(b) alleging that the provision of legal services by a solicitor was inadequate in any material respect and was not of the quality that could reasonably be expected of him as a solicitor, or

the Society may give notice in writing to the solicitor or his firm requiring the production or delivery to any person appointed by the Society, at a time and place to be fixed by the Society, of all documents in the possession or under the control or within the procurement of the solicitor or his firm in connection with the matters to which the complaint relates (whether or not they relate also to other matters).

(2) The Society shall return any documents delivered to them under subsection (1) of this section to the solicitor or to his firm when their investigations are completed unless the Society exercise their power under section 8 (1) (e) of this Act in relation to such documents.

11 Appeals to the High Court against determinations, directions or requirements of the Society.

11.—(1) A solicitor in respect of whom a determination or direction has been made or given by the Society under section 8 (1), 9 (1) or 12 (1) of this Act or who has received a notice for production or delivery of documents from the Society under section 10 (1) of this Act may, within a period of 21 days of the notification of such determination or direction to him, or the receipt of such notice by him, apply to the High Court for an order directing the Society to rescind or to vary such determination or direction, or to vary or withdraw such notice, and on hearing such application the Court may make such order as it thinks fit.

(2) Where a solicitor in respect of whom a determination or direction has been made or given by the Society under the provisions of section 8 (1), 9 (1) or 12 (1) of this Act has not applied within the period provided to the High Court under subsection (1) of this section, such determination or direction shall become absolutely binding on the solicitor immediately upon the expiration of such period.

(3) Where the Society have given notice in writing to a solicitor or his firm under the provisions of section 10 (1) of this Act and where an application has not been made by the solicitor within the period provided under subsection (1) of this section, the Society may apply to the High Court for an order directing the solicitor to produce or deliver to any person authorised by the Society all documents in respect of which such notice was given.

(4) Where an application has been made by a solicitor under subsection (1) of this section, the Society may apply to the High Court and the Court may dismiss the application of the solicitor if it is satisfied that such application has no merits and has been made purely for the purposes of delay, and, where applicable and if the Court thinks fit, shall order the solicitor to produce or deliver to any person appointed by the Society all documents in respect of which a notice has been given to the solicitor or his firm under section 10 (1) of this Act.

(5) If a solicitor, in respect of whom a determination or a direction has been made or given by the Society under the provisions of section 8 (1) or 9 (1) of this Act or who has received a notice for production or delivery of documents from the Society under the provisions of section 10 (1) of this Act (to the extent that it has not been rescinded or varied by the High Court pursuant to an application under subsection (1) of this section), refuses, neglects or otherwise fails to comply with such determination or direction or notice without reasonable excuse, he shall be guilty of an offence and be liable on summary conviction thereof to a fine not exceeding £1,500.

12 Contribution by solicitor.

12.—(1) Where, following an investigation of a complaint under section 8 (1) or 9 (1) of this Act against a solicitor, the Society have made a determination or given a direction under the provisions of section 8 (1) or 9 (1) of this Act, the Society may require payment from the solicitor of a sum not exceeding £1,000 to the Society by way of contribution towards the costs incurred by the Society in investigating the complaint and the solicitor shall comply with any such requirement.

(2) Subject to any order made under section 11 (1) of this Act, the Society may recover any sum the payment of which has been required by the Society by way of contribution under subsection (1) of this section as a liquidated debt payable to the Society.

13 Adjournment of investigations under sections 8 and 9 of this Act.

13.—(1) Where civil proceedings or criminal proceedings are instituted in connection with a matter that is the subject of a complaint under section 8 or 9 of this Act and have not been finally determined, and the Society consider that in those proceedings it is likely that the court will determine an issue relevant to or concerning such complaint, the Society may adjourn their investigation under section 8 or 9 of this Act of such complaint until the civil proceedings or criminal proceedings, as the case may be, have been finally determined.

(2) If the Society consider that the subject matter of a complaint under section 8 or 9 of this Act has been investigated by a court in civil proceedings or criminal proceedings and that a final determination of the issues which are, in substance, the issues involved in the complaint has been made by the court in those proceedings in favour of the solicitor concerned (whether or not the solicitor was a party to those proceedings), the Society may decide to take no action or no further action in relation to the complaint.

(3) Proceedings shall not be regarded as finally determined for the purposes of subsection (1) or (2) of this section until any appeal (including an appeal by way of case stated), rehearing or retrial in relation to those proceedings has been determined.

14 Power to inspect documents.

14.—(1) Where it appears to the Society, whether as a result of a complaint or otherwise, that it is necessary, for the purpose of investigating alleged misconduct by a solicitor, for an authorised person to attend with or without prior notice at the place or places of business of that solicitor, an authorised person may so attend at such place or places.

(2) Where an authorised person attends under this section at the place or places of business of a solicitor, he shall inform such solicitor or any clerk or servant of the solicitor of the purpose of his attendance as specified in subsection (1) of this section and may in pursuance of that purpose require the solicitor or any clerk or servant of the solicitor to make available to him for inspection such specified documents or categories of documents in the possession or under the control or within the procurement of the solicitor as the authorised person deems necessary to fulfil that purpose (whether or not such documents or any of them relate also to other matters).

(3) If a solicitor or clerk or servant of a solicitor who is required to make available specified documents or categories of documents to an authorised person for inspection under subsection (1) of this section refuses, neglects or otherwise fails without reasonable cause to duly comply with such requirement, the Society may, on notice to the solicitor, apply to the High Court for an order (which said order the Court is hereby empowered to make) requiring the solicitor to make available for inspection at his place or places of business such specified documents or categories of documents as the Society deem necessary for the purpose specified in subsection (1) of this section or as the Court thinks fit.

15 Investigation of complaints.

15.—(1) The Minister may, by regulations, require the Society to establish, maintain and fund a scheme for the examination and investigation by an independent adjudicator of any written complaint made to the adjudicator by or on behalf of a member of the public against the Society, concerning the handling by the Society of a complaint about a solicitor made to the Society by any person.

(2) Without prejudice to the generality of subsection (1) of this section, regulations under this section may make provision in relation to any one or more of the following—

(a) the establishment and administration of a scheme for the examination and investigation of complaints to the adjudicator,

(b) the manner of appointment by the Society of an adjudicator and the terms and conditions of his appointment,

(d) the matters to be subject to examination or investigation under the scheme, including the reinvestigation of complaints handled by the Society,

(e) the procedures to be followed in the conduct of an investigation by the adjudicator,

(f) the procedures for making complaints to the adjudicator,

(g) the attendance of the adjudicator at meetings of the Society, or of any committee of the Society, concerned with complaints made to the Society by members of the public about solicitors,

(h) the reporting to the Society of conclusions or recommendations of the adjudicator in relation to cases investigated by him, and the consideration of such conclusions or recommendations by the Society,

(i) the powers of the adjudicator to direct the Society with regard to the making of applications to the Disciplinary Tribunal under section 7 (as substituted by this Act) of the Act of 1960,

(j) the provision by the Society of any information that may be required by the adjudicator in relation to any case with which he is involved,

(k) the powers of the adjudicator to recommend changes in the procedures of the Society in relation to complaints to the Society by members of the public about solicitors,

(l) the submission of reports, including annual reports, by the adjudicator to the Minister in relation to the discharge of his duties, and the publication of such reports and the laying of such reports before both Houses of the Oireachtas.

(3) (a) The consent of the Minister shall be obtained by the Society for the appointment of any independent adjudicator under this section.

(b) A person appointed as an adjudicator shall not be a practising solicitor, a member of the Society, or a practising barrister and shall be independent in the exercise of his functions.

(4) An adjudicator appointed under this section—

(a) shall not examine or investigate any issue which is being or has been determined by—

(i) a court,

(ii) the Disciplinary Committee appointed under Part II of the Act of 1960, or

(iii) the Disciplinary Tribunal appointed under Part II (as amended by this Act) of the Act of 1960,

(b) may, subject to paragraph (f) of this subsection, examine or investigate a complaint made to him under this section relating to a matter which arose before this section comes into operation,

(c) may examine or investigate a complaint made to him under this section even though the person making the complaint may be entitled to bring proceedings in any court with respect to the matter complained of,

(d) may make more than one recommendation in a report to the Society,

(e) shall give reasons for his conclusions or recommendations in every report to the Society,

(f) may not examine or investigate a complaint made to him under this section after the expiration of three years following the determination by the Society of a complaint made to the Society.

(5) An adjudicator appointed under this section shall have power to require the production of documents in the possession of the Society in connection with his examination or investigation of a complaint.

(6) Subject to paragraph (f) of subsection (4) of this section, an adjudicator may direct the Society to re-examine or reinvestigate a complaint made to the Society about a solicitor, if the adjudicator is not satisfied that the Society have investigated the complaint adequately.

(7) Subject to paragraph (f) of subsection (4) of this section and notwithstanding the provisions of subsection (6) of this section, an adjudicator appointed under this section may re-examine or reinvestigate a complaint made to the Society about a solicitor, if the adjudicator is not satisfied that the Society has investigated the complaint adequately, and no provision in this section or in any regulations made pursuant to subsection (2) of this section shall prevent, or shall be construed as preventing, an adjudicator from re-examining or reinvestigating any complaint under this subsection.

(8) Where an adjudicator re-examines or reinvestigates a complaint made to the Society under subsection (7) of this section, he shall have power, following that re-examination or reinvestigation, to direct the Society to make an application to the Disciplinary Tribunal under section 7 (as substituted by this Act) of the Act of 1960, or to recommend that the Society should take any other action, which he may specify, in relation to the solicitor pursuant to the Society's powers under the Solicitors Acts, 1954 to 1994.

(9) Where an adjudicator re-examines or reinvestigates a complaint made to the Society under subsection (7) of this section, he may require any person who, in his opinion, is in possession of information, or has a document or thing in his power or control, that is relevant to the re-examination or reinvestigation, to furnish that information, document or thing to him and, where appropriate, may require the person to attend before him for that purpose, and the person concerned shall comply with each such requirement.

(10) A person to whom a requirement is addressed under subsection (9) of this section may, within a period of 21 days of the notification of such requirement, apply to the High Court for an order to rescind or vary the requirement and, where the Court is satisfied that the information, documents or things, or any of them, are not relevant or are not reasonably required for the purposes of the re-examination or reinvestigation or are confidential to the interests of that person, it may rescind or vary the requirement or make such other order as it thinks fit.

(11) An adjudicator may not require a solicitor to furnish any information, document or thing that is held in the possession or control of the solicitor on behalf of a client of that solicitor, without receiving the prior written authority of that client to such a requirement.

(12) A person to whom a requirement is addressed under subsection (9) of this section shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(13) A person shall not by act or omission obstruct or hinder an adjudicator in the performance of his functions or do any other thing which would, if the adjudicator were a court having power to commit for contempt of court, be contempt of such court.

(14) A person who contravenes subsection (9) or (13) of this section shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £1,500.

(15) Any information, document or thing obtained by an adjudicator in the course of or for the purpose of the examination or investigation or the re-examination or reinvestigation of a complaint shall not be disclosed except for the purposes of that examination or investigation or re-examination or reinvestigation and the adjudicator shall not be called upon to give evidence in any proceedings of matters coming to his knowledge in the course of an examination or investigation or a re-examination or reinvestigation.

(16) An adjudicator appointed under this section may decide not to examine or investigate a complaint made to the adjudicator under this section, or may discontinue an examination or investigation of such complaint, if he becomes of opinion that—

(a) the complaint is trivial or vexatious, or

(b) the person making the complaint has an insufficient interest in the matter, or

(c) the person making the complaint has not taken reasonable steps to seek redress in respect of the subject matter of the complaint, or if he has, has not been refused redress.

(17) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

16 Disciplinary Tribunal (section 6 of Act of 1960).

16.—(1) The Act of 1960 is hereby amended by the substitution of the following section for section 6:

“Disciplinary Tribunal.

6.—(1) The President of the High Court shall, from time to time as the occasion requires, appoint a tribunal (to be known and in this Act referred to as ‘the Disciplinary Tribunal’) consisting of—

(a) not more than ten persons from among practising solicitors of not less than 10 years standing (to be known and referred to in this section as ‘solicitor members’), one of whom shall be appointed by the President of the High Court to be chairperson of the Disciplinary Tribunal and each of whom shall be appointed after consultation with the Society, and

(b) not more than five persons, who are not solicitors or barristers (to be known and referred to in this section as ‘lay members’), who shall be nominated by the Minister to represent the interests of the general public,

for such a period, not exceeding five years, as the President of the High Court may determine, and any such person so appointed shall be eligible for reappointment to the Disciplinary Tribunal.

(2) A member of the Disciplinary Tribunal may resign his membership by letter sent by registered post to the President of the High Court and his resignation shall take effect on the date on which the letter is delivered.

(3) (a) The President of the High Court may remove a member of the Disciplinary Tribunal, may fill a vacancy therein and, subject to the limits stated in subsection (1) of this section, may increase or reduce the number of persons thereon.

(b) The President of the High Court may not remove a lay member of the Disciplinary Tribunal, without prior consultation with the Minister.

(4) The Society shall defray any reasonable costs and expenses incurred by the Disciplinary Tribunal.

(5) For the purpose of hearing and determining any application under section 7 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, the Disciplinary Tribunal shall sit in divisions, each of which shall comprise three members of whom one shall be a lay member and two shall be solicitor members.

(6) There shall be paid to the members of the Disciplinary Tribunal, out of funds at the disposal of the Society, reasonable travelling and subsistence expenses incurred by them in connection with their attendance at meetings of the Disciplinary Tribunal.

(7) Any information, document or thing obtained by any member of the Disciplinary Tribunal as a result of any application to the Disciplinary Tribunal, or in the course of any inquiry by that Tribunal, shall not be disclosed except for the purposes of the Solicitors Acts, 1954 to 1994.”.

(2) Subsection (1) of this section shall not apply to any application under section 7 of the Act of 1960 made before the coming into operation of this section to the Disciplinary Committee appointed under section 6 of the Act of 1960.

17 Inquiry by the Disciplinary Tribunal into the conduct of a solicitor on the ground of alleged misconduct (section 7 of Act of 1960).

17.—(1) The Act of 1960 is hereby amended by the substitution of the following section for section 7:

“Inquiry by the Disciplinary Tribunal into the conduct of a solicitor on the ground of alleged misconduct.

7.—(1) An application by a person (not being a person who has made a complaint to an independent adjudicator under section 15 of the Solicitors (Amendment) Act, 1994, about the conduct of a solicitor referred to in the application) or by the Society for an inquiry into the conduct of a solicitor on the ground of alleged misconduct shall, subject to the provisions of this Act, be made to and heard by the Disciplinary Tribunal in accordance with rules made under section 16 of this Act.

(2) Where an application in relation to a solicitor is duly made under this section and the Disciplinary Tribunal, after consideration of the application, are of opinion that there is no prima facie case for inquiry, they shall so inform the applicant in writing and shall take no further action in relation to the application.

(3) Where an application in relation to a solicitor is duly made under this section and the Disciplinary Tribunal, after consideration of the application, are of opinion that there is a prima facie case for inquiry, the following provisions shall have effect:

(a) they shall proceed to hold an inquiry;

(b) on the completion of the inquiry, the Disciplinary Tribunal shall—

(i) embody their findings in a report to the High Court, specifying therein the nature of the application and the evidence laid before them and any other matters in relation to the solicitor (hereinafter referred to in this section as the ‘respondent solicitor’) which they may think fit to report;

(ii) in a case where the Disciplinary Tribunal find that there has been misconduct on the part of the respondent solicitor and they have not made, and do not intend to make, an order under subsection (9) of this section, the Disciplinary Tribunal shall include in their report their opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitor's profession having regard to the contents of the report and their recommendations as to the sanction which in their opinion should be imposed, and the Society shall bring the report before the High Court.

(4) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal find that there has been misconduct on the part of the respondent solicitor but they have made or are of the opinion that it is appropriate that they should make an order under subsection (9) of this section, the Disciplinary Tribunal shall include in their report the reasons for their opinion that it is appropriate to make an order under subsection (9) of this section.

(5) The Disciplinary Tribunal shall, as soon as possible after it has been prepared, make available to the respondent solicitor a copy of their report prepared pursuant to subsections (3) and (4) of this section, as the case may be.

(6) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal have found that there has been no misconduct on the part of the respondent solicitor, they shall take no further action in relation to the matter and they shall so inform the respondent solicitor and the Society or other person who made the application as the case may be.

(7) Where an application is made under this section, the Disciplinary Tribunal may, at any stage of the proceedings in relation to the application and before the completion of any inquiry under subsection (3) of this section, postpone the taking of any steps or further steps in the matter for a specified period and, if they do so, then, if before the expiration of that period the applicant applies to the Disciplinary Tribunal for leave to withdraw the application, the Disciplinary Tribunal may, if they think fit, allow the application to be withdrawn and, if they do so, no further action shall be taken by them in relation to the application.

(8) The Society shall be entitled to make an application to the Disciplinary Tribunal in accordance with the provisions of this section, notwithstanding that any other person may be entitled to make such an application.

(9) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal find that there has been misconduct on the part of the respondent solicitor, they shall have power, by order, to do one or more of the following things, namely—

(a) to advise and admonish or censure the respondent solicitor;

(b) to direct payment of a sum, not exceeding £5,000, to be paid by the respondent solicitor to the Compensation Fund;

(c) to direct that the respondent solicitor shall pay a sum, not exceeding £5,000, as restitution or part restitution to any aggrieved party, without prejudice to any legal right of such party;

(d) to direct that the whole or part of the costs of the Society or of any person appearing before them, as taxed by a Taxing Master of the High Court, in default of agreement, shall be paid by the respondent solicitor.

(10) On the making of an order under subsection (9) of this section, the Disciplinary Tribunal shall, as soon as possible, serve a copy of such order on the respondent solicitor, either personally or by sending same by prepaid registered post to his address as stated in the register (or, if never on the register, the roll).

(11) A respondent solicitor in respect of whom an order has been made by the Disciplinary Tribunal under subsection (9) of this section may, within the period of 21 days beginning on the date of the due service of the order, appeal to the High Court to rescind or vary the order in whole or in part, and the Court on hearing such an appeal may—

(i) rescind or vary the order, or

(ii) confirm that it was proper for the Disciplinary Tribunal to make the order.

(12) The Society, or any person who has made an application under subsection (1) of this section, may, within the period provided under subsection (11) of this section, appeal to the High Court against an order made by the Disciplinary Tribunal under subsection (9) of this section on the ground that the sanction imposed by the Disciplinary Tribunal is inadequate, or that the Disciplinary Tribunal, in lieu of making such an order, ought to have exercised their powers under subsection (3) (b) (ii) of this section, and the Court, on hearing such an appeal, may—

(i) confirm the sanction imposed by the Disciplinary Tribunal on the respondent solicitor, or

(ii) in relation to the respondent solicitor, do one or more of the things specified in section 8 (1) (a) (as substituted by the Solicitors (Amendment) Act, 1994) of this Act.

(13) A respondent solicitor may appeal to the High Court against a finding of misconduct on his part by the Disciplinary Tribunal pursuant to subsection (3) of this section, and the Court shall determine such appeal when it considers the report of the Disciplinary Tribunal in accordance with the provisions of section 8 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, or as part of its determination of any appeal under subsection (11) of this section, as the case may be.

(14) Where a respondent solicitor refuses, neglects or otherwise fails to comply with an order made under subsection (9) (b) or (c) of this section (to an extent that it has not been rescinded or varied by the High Court consequent on an appeal to the High Court under subsection (11) of this section), the Society or any aggrieved party to whom a sum by way of restitution or part restitution has been ordered, may recover that sum as a liquidated debt.

(15) An application brought under subsection (1) of this section may relate to one or more complaints against a respondent solicitor.

(16) An application by the Society under subsection (1) of this section shall include an application made by the Society pursuant to a direction by an adjudicator appointed under section 15 of the Solicitors (Amendment) Act, 1994.

(17) The Society may authorise any person on their behalf to do all such things and acts as may be necessary for the purposes of any application made or inquiry held under this section.”.

(2) Subsection (1) of this section shall not apply to any application under section 7 of the Act of 1960 made before the coming into operation of this section.

18 Proceedings before High Court (section 8 of Act of 1960).

18.—(1) The Act of 1960 is hereby amended by the substitution of the following section for section 8:

“Proceedings before High Court.

8.—(1) Where the Disciplinary Tribunal, after holding an inquiry into the conduct of a solicitor, make a report to the High Court under section 7 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act which is brought before the Court by the Society under the said section 7, the following provisions shall have effect:

(a) the High Court, after consideration of the report—

(i) may by order do one or more of the following things, namely—

(I) strike the name of the solicitor off the roll;

(II) suspend the solicitor from practice for such specified period and on such terms as the Court thinks fit;

(III) prohibit the solicitor from practising on his own account as a sole practitioner or in partnership for such period, and subject to such further limitation as to the nature of his employment, as the Court may provide;

(IV) restrict the solicitor practising in a particular area of work for such period as the Court may provide;

(V) censure the solicitor or censure him and require him to pay a money penalty;

(ii) may by order direct that a specified bank shall furnish any information in its possession that the Society may require relating to any aspect of the financial affairs of the practice of the solicitor;

(iii) may by order direct that the solicitor shall swear an affidavit disclosing all information relating to or contained in any accounts, held in his own name or in the name of his firm or jointly with third parties, with any bank within a specified duration of time, to be fixed by the Court;

(iv) may make such order as to the costs incurred in the proceedings before it and the Disciplinary Tribunal as the Court thinks fit;

(v) may make any ancillary order in relation to the matter which the Court thinks fit;

(b) the High Court may, if it thinks fit, remit the case to the Disciplinary Tribunal to take further evidence for submission to it and to make to it a supplementary report, and the Court may adjourn the hearing of the matter pending the submission to it of such further evidence and the making of such supplementary report;

(c) in addition to doing any of the things specified in the foregoing paragraphs of this subsection, the Court may also by order do any one or more of the following things, namely—

(i) direct the solicitor to make such restitution to any aggrieved party as the Court thinks fit;

(ii) on the application of the Society, direct that the solicitor swear an affidavit (within a specified duration of time to be fixed by the Court) disclosing all information as to his assets either then in his possession or control or within his procurement or which had been but no longer are in his possession or control or within his procurement and, if no longer in his possession or control or within his procurement, his belief as to the present whereabouts of those assets;

(iii) direct that the solicitor make himself available before the Court on a specified date and at a specified time for oral examination under oath in relation to the contents of any affidavit of assets sworn by him pursuant to subparagraph (ii) of this paragraph;

(iv) on the application of the Society and where it is shown that the conduct of the solicitor or of any clerk or servant of that solicitor arising from that solicitor's practice as a solicitor has given or is likely to give rise to the making by the Society of a grant or grants out of the Compensation Fund under section 21 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, direct that the solicitor shall not reduce his assets below a certain specified amount or value unless the Court otherwise directs;

(v) on the application of the Society, direct the delivery to any person appointed by the Society of all or any documents in the possession or control or within the procurement of the solicitor arising from his practice as a solicitor;

(vi) direct either—

(I) that no bank shall, without leave of the Court, make any payment out of an account in the name of the solicitor or his firm, or

(II) that a specified bank shall not, without leave of the Court, make any payment out of an account in the name of the solicitor or his firm;

(vii) direct that the solicitor shall not attend at the place of business of his practice as a solicitor unless otherwise permitted by the Court;

(viii) direct that the solicitor shall not represent himself as having, or hold himself out as having, any connection with his former practice as a solicitor, or permit any other person to so represent that solicitor, unless otherwise permitted by the Court.

(2) (a) Where an order in respect of documents is made by the High Court under subparagraph (v) of paragraph (c) of subsection (1) of this section, the Society may make such enquiries as may be reasonably necessary to ascertain the person or persons entitled to the possession or custody of such documents and may thereafter deal with such documents, or any of them, in accordance with the directions of such person or persons so entitled.

(b) For the purposes of paragraph (a) of this subsection, the Second Schedule (as amended by the Solicitors (Amendment) Act, 1994) to this Act shall have effect.

(3) Where the High Court by an order under subsection (1) of this section requires a solicitor to pay a money penalty, the order shall operate as a judgment against the solicitor in favour of the Society, and the money penalty, when recovered, shall be paid into the Compensation Fund.

(4) Where any person acts as agent or nominee of a solicitor or his firm so as to render nugatory an order made by the High Court under subparagraph (vi) of paragraph (c) of subsection (1) of this section, such person shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding £1,500.”.

(2) Subsection (1) of this section shall not apply to any report to the High Court made under section 7 of the Act of 1960 before the coming into operation of this section.

19 Amendment of section 10 of Act of 1960.

19.—Section 10 of the Act of 1960 is hereby amended by the insertion of the following subsection:

“(4) Where, on the hearing of an application under this section, it is shown that the circumstances which gave rise to the striking off the roll of the applicant's name involved an act or acts of dishonesty on the part of the applicant arising from his former practice as a solicitor or that the applicant was convicted of a criminal offence, the High Court shall not restore the applicant's name to the roll, either conditionally or unconditionally, unless it is satisfied that, having regard to all the evidence, the applicant is a fit and proper person to practise as a solicitor and that the restoration of the applicant to the roll would not adversely affect public confidence in the solicitors' profession as a whole or in the administration of justice.”.

20 Restriction on employment of person struck off roll or suspended (section 60 of Principal Act).

20.—The Principal Act is hereby amended by the substitution of the following section for section 60:

“Restriction on employment of person struck off roll or suspended.

60.—(1) No person shall knowingly, save under and in accordance with a written permission under this section, employ or remunerate in any capacity involving or in connection with the provision of legal services a solicitor who is an unqualified person by reason of—

(a) his name having been struck off the roll, or

(b) his suspension from practice, or

(c) his having had the issue to him of a practising certificate refused under section 49 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, or

(d) his having his practising certificate suspended under section 58 of the Solicitors (Amendment) Act, 1994, or

(e) his having given to the High Court an undertaking not to practise as a solicitor.

(2) The Society may grant a permission for the purposes of subsection (1) of this section for such period and subject to such conditions as they think fit, or may refuse to grant such a permission.

(3) A person aggrieved by the refusal of the Society to grant a permission under subsection (2) of this section, or by any conditions attached by the Society to the grant thereof, may appeal to the High Court and the Court may confirm the refusal or the conditions, as the case may be, or may grant the permission for such period and subject to such conditions as the Court thinks fit.

(4) Where a person continues to employ an unqualified person in contravention of subsection (1) of this section notwithstanding his having been requested by the Society to discontinue such employment, the Society may apply to the High Court, and the Court may by order restrain that person from continuing the employment of that unqualified person.

(5) Where a solicitor has been issued with a practising certificate that is subject to a condition or conditions under section 59 of the Solicitors (Amendment) Act, 1994, that solicitor shall be deemed to be an unqualified person for the purposes of subsection (1) of this section to the extent that such condition or conditions prohibit him from engaging in the provision of a certain category or categories of legal services.”.

21 Disclosure of having been struck off roll, etc. (section 63 of Principal Act).

21.—The Principal Act is hereby amended by the substitution of the following section for section 63:

“Disclosure of having been struck off roll, etc.

63.—(1) A person who is an unqualified person by reason of—

(a) his name having been struck off the roll, or

(b) his suspension from practice, or

(c) his having had the issue to him of a practising certificate refused under section 49 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, or

(d) his having his practising certificate suspended under section 58 of the Solicitors (Amendment) Act, 1994, or

(e) his having given to the High Court an undertaking not to practise as a solicitor,

shall not seek or accept employment from any person in any capacity involving or in connection with the provision of legal services without previously informing that person that he is such an unqualified person.

(2) Save under and in accordance with a written permission under this section, a solicitor—

(a) whose name has been struck off the roll, or

(b) who is suspended from practice, or

(c) to whom a practising certificate has been refused under section 49 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, or

(d) whose practising certificate has been suspended under section 58 of the Solicitors (Amendment) Act, 1994, or

(e) who has given an undertaking to the High Court not to practise as a solicitor,

shall not engage in any work in any capacity involving, or in connection with, the provision of legal services, whether in relation to his former practice as a solicitor or otherwise, until—

(i) the High Court has made an order restoring his name to the roll, or

(ii) the High Court has lifted the said order of suspension from practice, or

(iii) the High Court has made an order directing the granting of a practising certificate to him, or

(iv) the High Court has discharged any order of suspension of his practising certificate, or

(v) the High Court has released him from any undertaking by him not to practise as a solicitor,

as the case may be.

(3) A solicitor who contravenes subsection (1) or (2) of this section shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £1,500.

(4) The Society may grant a permission for the purposes of subsection (2) of this section for such period and subject to such conditions as they think fit.

22 Publication of information on complaints.

22.—The Society shall publish annually, in the Gazette of the Society and in any other manner as the Society may direct, information on—

(a) the number of complaints together with a description of the general nature of those complaints received by the Society about solicitors;

(b) the number of complaints together with a description of the general nature of those complaints referred to the Disciplinary Tribunal; and

23 Publication of orders.

23.—(1) Where, on the completion of an inquiry by the Disciplinary Tribunal held under section 7(3) (as substituted by this Act) of the Act of 1960, the Disciplinary Tribunal have made an order under section 7(9) (as substituted by this Act) of the Act of 1960, the Disciplinary Tribunal shall notify the Society in writing of the making of such order and the Society may arrange to publish the order of the Disciplinary Tribunal, or notice of the making of the order and its effect, in such a manner as the Society think fit.

(2) Where, on the completion of an inquiry by the Disciplinary Tribunal held under section 7(3) (as substituted by this Act) of the Act of 1960, the Disciplinary Tribunal have made an order under section 7(9) (as substituted by this Act) of the Act of 1960, the order of the Disciplinary Tribunal, or notice of the making of the order and its effect, shall not be published by the Society until a period of at least 21 days shall have elapsed after the making of the order, or until any application made under section 7(11) (as substituted by this Act) of the Act of 1960 has been determined by the High Court, and thereafter the notice of the making of the order shall not be published if the Court rescinds the order of the Disciplinary Tribunal.

(3) Where, following the consideration by the High Court of a report of the Disciplinary Tribunal brought before it under section 7(3) (as substituted by this Act) of the Act of 1960, the Court has made an order under the provisions of section 8 (as substituted by this Act) of the Act of 1960, the Society shall arrange to publish the order of the Court, or notice of the making of the order and its effect, in the Gazette of the Society and in any other manner as the Society may decide, save that where the Court has ordered that the name of a solicitor be struck off the roll or that a solicitor be suspended from practice for a specified period of time, the Society shall as soon as possible arrange to publish the order of the Court or notice of the making of the order and its effect in the Iris Oifigiúil and in the Gazette of the Society, and, in addition, in any other manner as the Society may think fit.

24 Amendment of section 3 of Act of 1960.

24.—Section 3 of the Act of 1960 is hereby amended by the substitution of the following paragraph for paragraph (c) in the definition of “misconduct”:

“(c) the contravention of a provision of the Principal Act or this Act or the Solicitors (Amendment) Act, 1994, or any order or regulation made thereunder,”,

and the said definition as so amended is set out in the Table to this section.

TABLE

“misconduct” includes—

(a) the commission of treason or a felony or a misdemeanour,

(b) the commission, outside the State, of a crime or an offence which would be a felony or a misdemeanour if committed in the State,

(c) the contravention of a provision of the Principal Act or this Act or the Solicitors (Amendment) Act, 1994, or any order or regulation made thereunder,

(d) conduct tending to bring the solicitors' profession into disrepute;

25 Powers of Disciplinary Tribunal as to taking evidence, etc. (section 15 of Act of 1960).

25.—The Act of 1960 is hereby amended by the substitution of the following section for section 15:

“Powers of Disciplinary Tribunal as to taking evidence, etc.

15.—(1) The Disciplinary Tribunal shall, for the purposes of any inquiry held by them under section 7 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act or the consideration by them of an application under section 9 of this Act, or the taking by them of further evidence under paragraph (b) of subsection (1) of section 8 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action, in respect of—

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise,

(b) the compelling of the production of documents, and

and a summons signed by a member of the Disciplinary Tribunal may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for enforcing the attendance of witnesses and compelling the production and the discovery under oath of documents.

(2) If a person—

(a) on being duly summoned as a witness before the Disciplinary Tribunal, without just cause or excuse disobeys the summons, or

(b) being in attendance as a witness before the Disciplinary Tribunal, refuses to take an oath or to make an affirmation when legally required by the Disciplinary Tribunal to do so, or to produce or discover under oath any documents (which said word shall be construed in this subsection and in subsection (1) of this section as including things) in his possession or under his control or within his procurement legally required by the Disciplinary Tribunal to be produced or discovered under oath by him, or to answer any question to which the Disciplinary Tribunal may legally require an answer, or

(c) wilfully gives evidence to the Disciplinary Tribunal which is material to their inquiry which he knows to be false or does not believe to be true, or

(d) by act or omission, obstructs or hinders the Disciplinary Tribunal in the performance of their functions, or

(e) fails, neglects or refuses to comply with the provisions of an order made by the Disciplinary Tribunal, or

(f) does or omits to do any other thing which would, if the Disciplinary Tribunal had been the High Court, have been contempt of that Court,

the person shall be guilty of an offence.

(3) A witness before the Disciplinary Tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(4) (a) A person guilty of an offence under this section shall be liable—

(i) on conviction on indictment thereof to a fine not exceeding £10,000 or to imprisonment for a term not exceeding two years or to both such fine and such imprisonment, and

(ii) on summary conviction thereof to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.

(b) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under this section as if, in lieu of the penalties specified in subsection (3) of that section, there were specified therein the penalties provided for by paragraph (a) (ii) of this subsection, and the reference in subsection (2) (a) of that section to the penalties provided for in subsection (3) of that section shall be construed accordingly.”.

PART IV Protection of Clients

26 Provision of professional indemnity cover.

26.—(1) The Society may make regulations (in this section referred to as “indemnity regulations”) making provision for indemnity against losses arising from claims in respect of any description of civil liability incurred—

(a) by a solicitor arising from his practice as a solicitor, or

(b) by a partner, clerk or servant or former partner, clerk or servant of a solicitor arising from that solicitor's practice as a solicitor.

(2) For the purposes of providing such indemnity, indemnity regulations may do any one or more of the following, namely—

(a) authorise the Society to establish and maintain any indemnity fund or funds, including a mutual fund;

(b) authorise the Society to effect and maintain a general policy of indemnity insurance making provision for indemnity against losses arising from claims in respect of any description of civil liability, in which solicitors would be required to participate;

(c) require solicitors or any specified category of solicitors to effect and maintain a policy of indemnity insurance with insurers approved of by the Society or to participate or to continue to participate in a fund or funds established or maintained pursuant to paragraph (a) of this subsection or in any other fund approved of by the Society, including the mutual fund known as the “Solicitors Mutual Defence Fund Limited”.

(3) The Society may, without prejudice to any of their other powers, carry into effect any arrangements which they consider necessary or expedient for the purpose of ensuring that there is indemnity against losses pursuant to this section.

(4) Without prejudice to the generality of subsections (1), (2) or (3) of this section, indemnity regulations may—

(a) specify terms and conditions on which indemnity against losses is to be available to solicitors from any indemnity fund or funds or under any general policy of indemnity insurance or under any policy of indemnity insurance with insurers approved of by the Society and any circumstances in which the right to such indemnity is to be excluded or modified;

(b) specify minimum levels of cover for indemnity against losses arising from claims or different classes of claims;

(c) provide for the management, administration and protection of any fund maintained under subsection (2) of this section and require solicitors or any specified category of solicitors to make payments to any such fund;

(d) require that solicitors or any specified category of solicitors make payments by way of premium in respect of any general policy of indemnity insurance maintained by the Society by virtue of subsection (2) of this section;

(e) specify conditions which indemnity cover shall satisfy for the purposes of subsection (2) of this section;

(f) provide for the determination by the management of any fund maintained by the Society under subsection (2) of this section of the contribution payable by solicitors or any specified category of solicitors in respect of each description of civil liability for which cover is provided by such fund;

(g) specify the circumstances in which, where a solicitor for whom indemnity cover is provided has failed to comply with the indemnity regulations or with the terms and conditions of such indemnity cover, proceedings for the recovery of sums paid by way of indemnity against losses in respect of that solicitor may be taken against him by the providers of such indemnity cover or by the Society, as may be appropriate;

(h) specify circumstances in which any solicitor or specified category of solicitor may be exempted from the indemnity regulations;

(i) enable the Society to take such steps as they think necessary or expedient to ascertain whether or not the indemnity regulations are being complied with;

(j) include arrangements for the submission to arbitration of any dispute arising between a solicitor and his client in relation to any claim or claims by the client against the solicitor in respect of civil liability to which the indemnity regulations apply by reason of the provisions of this section, where both the solicitor and the client have agreed in writing to submit the dispute to arbitration;

(k) specify the manner in which solicitors or any specified category of solicitors shall bring their compliance with, or exemption from, the indemnity regulations to the notice of their clients or the Society; and

(l) include incidental, procedural or supplementary provisions in relation to any of the matters set out in paragraphs (a) to (k) of this subsection.

(5) Notwithstanding the foregoing provisions of this section, the Minister may direct the Society to make or amend indemnity regulations.

(6) It shall be misconduct for a solicitor to whom indemnity regulations apply knowingly to make a false or misleading declaration of a material nature for the purpose of obtaining indemnity against losses arising from claims in respect of any description of civil liability incurred by him.

27 Power of Society to deal with documents of certain solicitors (section 19 of Act of 1960).

27.—The Act of 1960 is hereby amended by the substitution of the following section for section 19:

“Power of Society to deal with documents of certain solicitors.

19.—(1) Where the Society are of the opinion that—

(a) a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty arising from that solicitor's practice as a solicitor, or

(b) a solicitor who is a sole practitioner has abandoned his practice or has ceased to carry on his practice other than for one or more of the reasons set forth in section 60 (1) (as substituted by the Solicitors (Amendment) Act, 1994) of the Principal Act,

and that adequate arrangements have not been made for the making available to the clients of such solicitor of all or any documents held in the possession or in the control or within the procurement of that solicitor on behalf of those clients, the Society may give notice in writing to that solicitor or to any other person or persons in possession or control of such documents, or any of them, requiring the production and delivery to any person appointed by the Society, at a time and place to be fixed by the Society, of such documents or any of them.

(2) Where a solicitor or other person to whom subsection (1) of this section applies refuses, neglects or otherwise fails without reasonable excuse to produce or deliver documents in his possession or control or within his procurement within 14 days after receipt by him of a notice under subsection (1) of this section from the Society—

(a) he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £1,500, and

(b) the Society may apply to the High Court and the Court may by order require such solicitor or other person to produce or deliver such documents or any of them within such time as the Court thinks fit.

(3) Where the Society take possession of documents produced or delivered under a requirement under this section—

(a) they shall serve on the solicitor and on every other person from whom the documents were received a notice giving particulars of the documents and the date of taking possession thereof, and

(b) if any of the documents are grouped together as relating to a particular matter, the notice may give particulars of those documents by referring to the group and the matter to which it relates.

(4) Within 14 days after service of a notice under subsection (3) of this section on a solicitor or other person, the solicitor or other person may apply to the High Court for an order directing the Society to return the documents received by the Society to him or to such other person or persons as the applicant may require and the Court may make the order applied for or such other order as the Court thinks fit.

(5) (a) Where an application is not made in accordance with subsection (4) of this section or the High Court on such application directs that the documents shall remain in the possession of the Society, the Society may make such enquiries as may be reasonably necessary to ascertain the person or persons entitled to the possession or custody of such documents, or any of them, and may thereafter deal with such documents, or any of them, in accordance with the directions of such person or persons so entitled.

(b) For the purposes of paragraph (a) of this subsection, the provisions set out in the Second Schedule (as amended by the Solicitors (Amendment) Act, 1994) to this Act shall have effect.

(6) Where it appears to the Society, in relation to a solicitor who is a sole practitioner who has, to the knowledge of or in the opinion of the Society, abandoned his practice or has otherwise ceased to carry on his practice, that any premises occupied or formerly occupied by that solicitor which contain or might contain documents relating to that solicitor's practice are not sufficiently secured, a person authorised in writing by the Society shall have power to enter upon such premises for the purpose of securing such documents either there or elsewhere in the interests of clients of that solicitor.”.

28 Control of banking accounts or assets of solicitors (section 20 of Act of 1960).

28.—The Act of 1960 is hereby amended by the substitution of the following section for section 20:

“Control of banking accounts or assets of solicitors.

20.—(1) Where the Society are of opinion that a solicitor or a clerk or servant of a solicitor has been guilty of dishonesty arising from that solicitor's practice as a solicitor, or where any of the circumstances of paragraph (b) of section 19 (1) (as substituted by the Solicitors (Amendment) Act, 1994) of this Act apply, the Society may apply to the High Court and the Court may make an order directing one or more of the following things, namely—

(a) that no bank shall, without leave of the Court, make any payment out of an account in the name of the solicitor or his firm;

(b) that a specified bank shall not, without leave of the Court, make any payment out of an account kept at such bank in the name of the solicitor or his firm;

(c) that the solicitor shall not, without leave of the Court, dispose of or direct or facilitate the disposal of any assets in his possession or control or within his procurement;

(d) that the solicitor shall not, without leave of the Court, reduce his assets below a certain specified amount or value.

(2) The High Court shall have power to hear in camera an application for an order under subsection (1) of this section.

(3) Where the High Court makes in relation to a solicitor an order under subsection (1) of this section, the Court may at the same time order that any practising certificate issued to him be suspended.

(4) Where any person acts as agent or nominee of a solicitor or his firm so as to render nugatory an order made by the High Court under subsection (1) of this section, such person shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £1,500.

(5) Where the High Court makes in relation to a solicitor an order under subsection (1) of this section, the Court may make one or more of the following further orders, namely, an order or orders—

(i) directing a specified bank to furnish any information in its possession that the Society require relating to any aspect of the financial affairs of the practice of the solicitor;

(ii) directing the solicitor to swear an affidavit disclosing all information relating to or contained in any account with any bank held in his own name, or in the name of his firm, or jointly with third parties, within a specified duration of time to be fixed by the Court;

(iii) directing the solicitor to swear an affidavit disclosing all information as to his assets, either then in his possession or control or within his procurement or which had been but are no longer in his possession or control or within his procurement, within a specified duration of time to be fixed by the Court, and, if no longer in his possession or control or within his procurement, his belief as to the present whereabouts of those assets;

(iv) directing the solicitor to make himself available before the Court on a specified date and at a specified time for oral examination under oath in relation to the contents of any affidavit of assets sworn by him pursuant to paragraph (iii) of this subsection.

(6) Where the High Court makes in relation to a solicitor an order under subsection (1) of this section, the solicitor shall forthwith lodge (or cause to be lodged) in the manner prescribed under section 66 (1) (as substituted by the Solicitors (Amendment) Act, 1994) of the Principal Act any clients' moneys subsequently received by him to the appropriate client account or client accounts, unless otherwise ordered by the Court.

(7) A solicitor who refuses, neglects or otherwise fails without reasonable excuse to comply with subsection (6) of this section shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding £1,500.

(8) Where the High Court is satisfied, on an application being made to it by the Society, that there is reason to believe that any person holds or has held moneys or assets on behalf of a solicitor or his firm to whom subsection (1) of this section applies, the Court may order that person to disclose to the Society all information as to such moneys or assets, either then in his possession or control or within his procurement or which had been but are no longer in his possession or control or within his procurement, and, if no longer within his possession or control or within his procurement, his belief as to the present whereabouts of those moneys or assets.”.

29 Compensation for loss due to dishonesty of solicitor or clerk or servant of solicitor (section 21 of Act of 1960).

29.—The Act of 1960 is hereby amended by the substitution of the following section for section 21:

“Compensation for loss due to dishonesty of solicitor or clerk or servant of solicitor.

21.—(1) In this section and in section 22 of this Act—

‘the Fund’ means the Compensation Fund;

‘grant’ means a grant under subsection (4) of this section.

(2) The Society shall continue to maintain the Fund.

(3) The Fund shall be maintained and administered in accordance with the provisions of the Third Schedule to this Act.

(4) (a) Where it is proved to the satisfaction of the Society that any client of a solicitor has sustained loss in consequence of dishonesty on the part of that solicitor or any clerk or servant of that solicitor arising from that solicitor's practice as a solicitor within the jurisdiction of the State, then, subject to the provisions of this section, the Society shall make a grant to that client out of the Fund.

(b) Subject to the provisions of this section, the amount of the grant referred to in paragraph (a) of this subsection shall be such as represents in the opinion of the Society reimbursement of the amount or value of the loss sustained with, where appropriate in the opinion of the Society, interest (at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act, 1840, as varied from time to time pursuant to section 20 of the Courts Act, 1981) on the whole or any part of the amount or value of such loss in respect of the whole or any part of the period between the date when such loss was sustained and the date of the making of a grant, but excluding damages or any other form of loss consequent on the client of a solicitor being deprived of the amount or value of the loss sustained.

(5) Notwithstanding the foregoing provisions of this section, if it is shown to the satisfaction of the Society that a client of a solicitor has entrusted moneys to that solicitor, with express instructions to apply or to invest those moneys in a specified manner which would (if so applied or invested) have yielded a return higher than that which would have accrued had the moneys been applied or invested at the rate of interest standing specified for the time being in section 26 of the Debtors (Ireland) Act, 1840, as varied from time to time pursuant to section 20 of the Courts Act, 1981, and the solicitor has dishonestly misappropriated such moneys, the amount granted under subsection (4) of this section shall, in lieu of interest at the rate mentioned in that subsection, include an amount representing such higher return in respect of the whole or any part of the period, as appropriate, between the date when such moneys were so entrusted to that solicitor and the date of the making of a grant.

(6) The amount of a grant made to any client of a solicitor (including any body or bodies corporate beneficially owned or controlled by that client) under subsection (4) of this section shall not exceed £350,000 in respect of matters arising from the relationship between such client and that solicitor.

(7) The Minister may, from time to time, vary by regulations the amount specified in subsection (6) of this section having regard to changes in the value of money generally in the State since the said amount was first specified.

(8) Notwithstanding the amount specified in subsection (6) of this section (as may from time to time be varied pursuant to subsection (7) of this section), a grant of a larger amount may, at the discretion of the Society, be made to a client of a solicitor, where the Society are of opinion that the particular circumstances giving rise to the making of a grant under subsection (4) of this section are such that none of the provisions of subsection (9) of this section apply and that grave hardship would be caused if such grant of a larger amount was not made (whether in one sum or in such instalments as the Society, in their discretion, determine).

(9) Notwithstanding the provisions of subsection (4) of this section, the Society shall have a discretion to make or refuse to make a grant—

(a) in a case in which the solicitor did not have a practising certificate in force at the time when, in the opinion of the Society, the loss was sustained,

(b) in a case in which the Society are of opinion that there has been dishonesty or negligence on the part of the client of the solicitor or of any person for whom that client is responsible which has contributed to the loss in question,

(c) in a case in which the Society are of opinion that the client of the solicitor has assisted (whether by act or omission) in the commission of misconduct by the solicitor,

(d) in a case in which the Society are of opinion that the loss sustained has arisen otherwise than as a result of the dishonest misappropriation or dishonest conversion of moneys, securities or other property of a client of a solicitor entrusted by the client, or by any other person for or on behalf of the client, to that solicitor or to any clerk or servant of that solicitor,

(e) in a case in which the Society are of opinion that, having regard to all the circumstances, the loss sustained by the client of the solicitor did not arise from, or was not directly related to, the provision of services of a legal nature to the client by the solicitor,

and, where the Society decide to make a grant in any such case, they shall have a discretion to make it only to a limited extent.

(10) A grant may be made notwithstanding that the solicitor has, after the act of dishonesty, died, had his name removed from or struck off the roll, ceased to practice, been suspended from practice, or had his practising certificate suspended.

(11) No grant may be made in respect of a loss made good otherwise.

(12) (a) On the making of any grant to any client of a solicitor in respect of any loss—

(i) the Society shall, to the amount of the grant, be subrogated—

(I) to any rights or remedies to which that client was entitled on account of the loss against the solicitor or any other person or against the estate of such solicitor or other person,

(II) to any rights or remedies to which the solicitor or his clerk or servant was entitled on account of the loss against any other person or against the estate of such other person, and

(III) to all other rights and remedies (if any) of that client or such solicitor, clerk or servant in respect of the loss; and

(ii) the client of the solicitor shall have no right under bankruptcy or other legal proceedings or otherwise to receive any sum out of the assets of the solicitor, clerk or servant in respect of the loss until the Society has been reimbursed the full amount of the grant.

(b) In paragraph (a) of this subsection, references to the client of a solicitor or to the solicitor, clerk or servant include, in the event of his or their death, insolvency or other disability, references to his or their personal representative or any other person having authority to administer his or their estate or estates.

(13) No grant shall be made unless notice of the loss is received by the Society—

(a) in the prescribed manner, and

(b) within the prescribed period after the loss comes to the knowledge of the client of the solicitor concerned.

(14) The Society, for the purposes of inquiry into any matters which may affect the making or refusal of a grant, may take evidence on oath, and the administration of such oath is hereby authorised.

(15) (a) A grant may, at the discretion of the Society, be paid either in one sum or in such instalments as the Society may determine.

(b) The Society, if they are of opinion that the financial stability of the Fund so requires, may postpone payment of any grant or any instalment of any grant.

(16) Where the Society are of opinion that—

(i) there has been no dishonesty or negligence on the part of a solicitor, and

(ii) that solicitor is vicariously liable to any one or more of his or his firm's clients who has or have sustained loss in consequence of dishonesty on the part of any partner of that solicitor in circumstances where, but for such vicarious liability of that solicitor, a grant would have been made under subsection (4) of this section to such client or clients,

a grant may, nonetheless, at the discretion of the Society, be made under subsection (4) of this section to any such client or clients of an amount determined by the Society, subject to the provisions of this section.

(17) For the purposes of this section, a solicitor or a body corporate beneficially owned or controlled by that solicitor shall not be a client of a solicitor's practice in which he is the sole practitioner or in which he is a partner.

(18) The Society may apply, by regulations, to the extent provided in such regulations, the provisions of this section to a solicitor's practice outside the jurisdiction of the State.”.

30 Contributions to the Compensation Fund by solicitors (section 22 of Act of 1960).

30.—The Act of 1960 is hereby amended by the substitution of the following section for section 22:

“Contributions to the Compensation Fund by solicitors.

22.—(1) Before a practising certificate is issued to a solicitor in respect of the practice year following the coming into operation of this section or any subsequent practice year, he shall pay to the Society an annual contribution to the Fund of such amount as may be prescribed from time to time, and the registrar may withhold the issue of such practising certificate to that solicitor until the payment is made.

(2) In exercising the powers conferred on them under this section, the Society shall have regard to the principle that the total amount standing to the credit of the Fund (including the value of all investments forming part of the Fund) should be not less than £1,000,000, or such greater sum as may be prescribed from time to time, on the date that is three months after the commencement date of each practice year.

(3) No annual contribution to the Fund shall be payable by a solicitor in the full-time service of the State within the meaning of section 54(3) (as substituted by the Solicitors (Amendment) Act, 1994) of the Principal Act.

(4) The Society may, by regulations, provide that no contribution to the Fund shall be payable by a solicitor who resides outside the State and is engaged in the provision of legal services outside the State.

(5) Notwithstanding the provisions of section 21 of this Act (as substituted by the Solicitors (Amendment) Act, 1994), no grant shall be made out of the Fund in consequence of dishonesty on the part of a solicitor in the full-time service of the State or any clerk or servant of that solicitor.”.

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