Solicitors (Amendment) Act , 1994

(6) Every order 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 order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

76 Regulations for accounts (section 66 of Principal Act).

76.—The Principal Act is hereby amended by the substitution of the following section for section 66:

“Regulations for accounts.

66.—(1) The Society may make regulations, with the concurrence of the President of the High Court, providing for all or any of the following matters:

(a) the category or categories of solicitor to whom such regulations apply;

(b) the type or types of accounts at banks which may be opened and kept by a solicitor arising from his practice as a solicitor;

(c) the opening and keeping of accounts at banks by a solicitor arising from his practice as a solicitor;

(d) the rights, duties and responsibilities of a solicitor in relation to moneys received, held, controlled or paid by him arising from his practice as a solicitor, including the lodgment to and withdrawal from a client account of clients' moneys;

(e) the accounting records to be maintained by a solicitor arising from his practice as a solicitor, including the minimum period or periods for which accounting records shall be retained by a solicitor during the period of, and following the conclusion of, the provision of legal services;

(f) the keeping by a solicitor of accounting records containing particulars of and information as to moneys received, held, controlled or paid by him arising from his practice as a solicitor, for or on account of a client or any other person or himself;

(g) the enforcement by the Society of compliance with the regulations;

(h) imposing fees on solicitors in cases of non-compliance where the Society has to conduct further enquiries (being fees not exceeding the cost of making such enquiries);

(i) the appointment by the Society of persons to carry out, on behalf of the Society, functions relating to securing compliance with and enforcing such regulations;

(j) the circumstances and manner in which a solicitor engaged in practice as a solicitor (or a duly qualified accountant on his behalf) verifies compliance with such regulations, including the frequency of doing so;

(k) the examination, by or on behalf of the Society, of the financial circumstances of a solicitor engaged in practice as a solicitor insofar as such circumstances could affect his capacity to carry on such practice.

(2) Regulations made pursuant to subsection (1) of this section shall not apply to—

(a) 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, or

(b) a solicitor who is in the part-time service of the State, in respect of moneys received, held, controlled or paid by him in the course of such service.

(3) A solicitor who knowingly lodges clients' moneys (or who knowingly causes clients' moneys to be lodged) to a client account at a bank other than a bank within the meaning of section 75 (1) of the Solicitors (Amendment) Act, 1994, shall be guilty of an offence.

(4) A solicitor who, having received any clients' moneys, fails, without reasonable cause, to lodge (or to cause to be lodged) in the prescribed manner such clients' moneys to the appropriate client account (or client accounts) shall be guilty of an offence.

(5) A solicitor who fails, without reasonable cause, to maintain and keep (or to cause to be maintained and kept) accounting records in the prescribed manner shall be guilty of an offence.

(6) A solicitor who, having received clients' moneys, fails, without reasonable cause, to record (or to cause to be recorded) in the prescribed manner such receipt in accounting records shall be guilty of an offence.

(7) A solicitor who, having received any clients' moneys and having duly lodged (or caused to be lodged) in the prescribed manner such clients' moneys to the appropriate client account (or client accounts) fails, without reasonable cause, to record (or to cause to be recorded) in the prescribed manner such lodgment in accounting records, shall be guilty of an offence.

(8) A solicitor who makes knowingly (or causes so to be made) a false or misleading entry or record in accounting records shall be guilty of an offence.

(9) It shall not be a defence to a charge under subsection (6) or (7) of this section to show that an entry or record of a receipt or lodgment of clients' moneys was recorded in accounting records, if it is established that such entry or record is false or misleading.

(10) Where it appears to the Society that it is necessary for the purpose of exercising any of the Society's functions prescribed under subsection (1) of this section for an authorised person to attend, with or without prior notice, at a place of business of a solicitor, an authorised person may so attend at such place for that purpose.

(11) Where an authorised person attends pursuant to subsection (10) of this section at a place of business of a solicitor, he shall inform the solicitor or any clerk or servant of the solicitor of the purpose of his attendance as specified in subsection (10) of this section and may thereupon or thereafter, in pursuance of that purpose, require the solicitor or any clerk or servant of the solicitor to do any one or more of the following things:

(a) to make available to him for inspection all or any part of the solicitor's accounting records;

(b) to furnish to him such copies of the solicitor's accounting records as the authorised person deems necessary to fulfil the purpose specified in subsection (10) of this section;

(c) to give such written authority addressed to such bank or banks as the authorised person requires to enable the authorised person to inspect any account or accounts opened, or caused to be opened, by the solicitor at such bank or banks (or any documents relating thereto) and to obtain from such bank or banks copies of such documents relating to such account or accounts for such period or periods as the authorised person deems necessary to fulfil the purpose specified in subsection (10) of this section.

(12) If a solicitor or clerk or servant of a solicitor who is required by an authorised person to do any one or more of the things specified in subsection (11) of this section, refuses, neglects or otherwise fails, without reasonable cause, to comply with such requirement of requirements, 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 comply with such requirement or requirements (or any one or more of them) as the Society deem necessary in pursuance of the purpose specified in subsection (10) of this section or as the Court thinks fit.

(13) It shall be an offence for a solicitor—

(a) to refuse, neglect or otherwise fail, without reasonable cause, to duly comply with any requirement of an authorised person under subsection (11) of this section;

(b) to remove from his place or places of business, or to destroy, deface or mutilate, all or any part of his accounting records, with intent to prevent or interfere with an authorised person acting in pursuance of the purpose specified in subsection (10) of this section;

(c) to provide knowingly false or misleading information to an authorised person acting in pursuance of the purpose specified in subsection (10) of this section.

(14) A summary offence under any of the provisions of this section may be prosecuted by the Society.

(15) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under any of the provisions of this section may be instituted within twelve months from the date the offence came to the knowledge of the Society.

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

(a) on summary conviction thereof to a fine not exceeding £1,500,

(b) on conviction thereof on indictment to a fine not exceeding £10,000.

(17) Without prejudice to the generality of this section and any regulations made thereunder, a solicitor shall not, arising from his practice as a solicitor, lodge (or cause to be lodged) for collection through any bank account kept by him, or otherwise collect, an unendorsed cheque or other negotiable or non-negotiable instrument drawn in favour of a person other than himself, his firm, or a partner.

(18) In this section—

‘accounting records’ means the books of account and all other documents required to be maintained and kept by a solicitor arising from his practice as a solicitor in accordance with regulations made pursuant to subsection (1) of this section.”.

77 Amendment of section 58 of Principal Act.

77.—Section 58 of the Principal Act is hereby amended—

(a) by the insertion of the following subsection for subsection (2):

“(2) An unqualified person who does any act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and shall be liable—

(a) on summary conviction thereof, to a fine not exceeding £1,500, or

(b) on conviction thereof on indictment, to a fine not exceeding £10,000.”,

(b) by the insertion of the following paragraph in subsection (3):

“(h) an act done by a lawyer to whom Council Directive No. 77/249/EEC of 22 March, 1977 [^(1)] (as adapted by the Acts concerning the Conditions of Accession of Greece, Spain and Portugal, to the Treaties establishing the European Communities) and any instrument which may amend or replace that Directive applies by way of provision of legal services within the limits and under the conditions laid down in that Directive (or such instrument), other than the preparation of a formal document for obtaining title to administer the estate of a deceased person and the drafting of a formal document creating or transferring an interest in land.”,

(c) by the substitution of the following paragraph for paragraph (b) of subsection (3):

“(b) (i) an act done by a barrister practising in the State,

(ii) an act done by a barrister employed full-time in the State, in the provision of conveyancing services within the meaning of section 56 (4) of the Solicitors (Amendment) Act, 1994, for his employer, provided that such employer is not a solicitor,”.

78 Will making and probate services provided by credit unions.

78.—(1) Notwithstanding anything to the contrary in the Principal Act, the Minister may, after consultation with the Minister for Enterprise and Employment, make regulations authorising credit unions to provide services as follows—

(a) to draw up or prepare a will or other testamentary instrument, or

(b) to take instructions for a grant of probate or administration, or

(c) to draw or prepare any papers on which to found or oppose any such grants.

(2) The services referred to in subsection (1) of this section may be provided by credit unions in accordance with the provisions of regulations made under this section and in compliance with the requirements of this section.

(3) Regulations under this section may include provision for all or any of the following, namely—

(a) the protection of persons for whom services are provided under this section by credit unions from conflicts of interest that might otherwise arise in connection with the provision of the services,

(b) securing that adequate compensation is available to such persons in respect of negligence, fraud or other dishonesty on the part of officers or employees of credit unions in connection with the provision of the services,

(c) (i) the extent to which and the manner in which services provided under this section would require the involvement of persons qualified to practise as solicitors within the meaning of the Principal Act, and

(ii) the qualifications and experience of personnel generally engaged in the provision of the services,

(d) the class or classes of persons to whom the services may be provided,

(e) requirements relating to the approval by the Registrar of Friendly Societies of a credit union proposing to provide services,

(f) the restriction of the power to provide the services to credit unions of a specified class or classes,

(g) maximum rates or scales of fees, costs or expenses which may be charged by credit unions for the provision of the services,

(h) taxation by a Taxing Master of the High Court of fees, costs or expenses charged by credit unions for the services,

(i) such further conditions in relation to the provision of the services as the Minister may prescribe in accordance with this section.

(4) In this section “probate” and “administration” have the meanings assigned to them by section 3 of the Succession Act, 1965.

(5) Any communication made to or by a credit union (including a communication made to or by an officer or employee of a credit union) in the course of its acting as such for a person in connection with providing services under subsection (1) of this section shall in any legal proceedings be privileged from disclosure in like manner as if the credit union had at all material times been acting as that person's solicitor.

(6) (a) A credit union providing services under subsection (1) of this section shall not in relation to the provision of such services be an unqualified person within the meaning of the Principal Act.

(b) A credit union which provides any of the services mentioned in subsection (1) of this section otherwise than in accordance with the provisions of this section or of any regulations made under this section shall be guilty of an offence under section 58 (2) (as amended by this Act) of the Principal Act.

(7) Section 58 (as amended by this Act) of the Principal Act shall not apply to—

(a) a credit union,

(b) any officer or employee of a credit union by reason of any act done by him in the course of his office or employment on behalf of the credit union, where the credit union is providing services in accordance with subsection (1) of this section.

(8) Section 59 of the Principal Act shall not apply to any solicitor by reason of any act done by him as an officer or employee of a credit union where that credit union is providing services in accordance with subsection (1) of this section.

(9) Where a credit union provides services under subsection (1) of this section, it shall include in any document or advertisement issued to the public, which contains a reference to the provision of the services, a statement of the charges or the basis for the charges in respect of the services and a client shall be entitled to ask for and to be furnished with an itemised statement of that credit union's charges in respect of services provided by the credit union under subsection (1) of this section.

(10) On the taking of instructions to provide services under this section to a person, or as soon as is practicable thereafter, a credit union shall provide the person with particulars in writing of—

(a) the actual charges, or

(b) where the provision of particulars of the actual charges is not in the circumstances possible or practicable, an estimate (as near as may be) of the charges, or

(c) where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made, by that credit union for the provision of such services.

(11) Any information which comes into the possession of an officer or employee of a credit union by virtue of his involvement in the provision of services under subsection (1) of this section by a credit union shall not be used by him or by the credit union to promote the business of the credit union.

(12) (a) A credit union providing services under subsection (1) of this section shall maintain separate accounting records and prepare accounts in respect of each year showing—

(i) the cost to the credit union of providing the services, and

(ii) the income accruing to the credit union from the charges made for the services,

and, subject to subsection (3) (g) of this section, shall so provide and charge for the services that the income from the provision of the services is not less than sufficient to meet all costs properly attributable to the provision of the services taking one year with another.

(b) A statement attesting the correctness of the accounts prepared in accordance with paragraph (a) of this subsection and confirming that such accounts have not been distorted as a result of any arrangement which would affect the apportionment of costs and income associated with the provision of the services and that such apportionments as have been made have been properly made shall be signed by the chairperson and treasurer of the credit union and attached to the annual accounts of the credit union.

(13) A credit union shall not provide services under the provisions of this section unless at least one of the following conditions is satisfied:

(a) regulations have been made under section 79 of this Act, or

(b) the credit union is a member of a scheme (other than a scheme established under section 79 of this Act) which has been established for the investigation of complaints against the credit union in relation to the provision of services under this section and which has been approved of by the Minister.

(14) If a person exercising any right under this section or a person acting on behalf of such a person applies for any grant of probate or letters of administration and—

(a) makes a statement in the application, or supports the application with a document, which he knows to be false or misleading in a material particular, or

(b) recklessly makes a statement in the application, or supports the application with a document, which is false or misleading in a material particular,

he shall be guilty of an offence.

(15) Any person guilty of an offence under subsection (14) of this section shall be liable—

(a) on conviction on indictment thereof, to a fine not exceeding £10,000,

(b) on summary conviction thereof, to a fine not exceeding £1,500.

(16) 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.

(17) In this section “credit union” means an industrial and provident society registered as a credit union under the Credit Union Act, 1966.

79 Investigation of complaints about credit unions.

79.—(1) The Minister may, by regulations made after consultation with the Minister for Enterprise and Employment, require a credit union to establish, or join in establishing, and to maintain and fund a scheme or schemes for the investigation of complaints against a credit union in relation to any services provided or any act done by such a credit union under the provisions of section 78 of this Act.

(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,

(b) the manner of appointment of an independent adjudicator to conduct investigations,

(c) the matters to be subject to investigation under the scheme,

(d) the grounds on which a complaint must be based,

(e) the powers of, and procedure to be followed in the conduct of investigations by, the adjudicator,

(f) the circumstances in and the extent to which determinations are binding,

(g) the procedures for the making of complaints,

(h) the publication of the adjudicator's findings.

(3) Subject to subsection (4) of this section, the reference of a complaint under a scheme established under this section shall not affect the rights of any person to have a dispute determined in any other manner provided by law.

(4) Where, in relation to a complaint under a scheme established under this section the parties concerned agree that a determination in accordance with the scheme shall be binding on them and the scheme provides for such an agreement, then the determination shall be binding on the parties.

(5) Every regulation made by the Minister 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.

80 Non-application to applicants under European Communities regulations.

80.—Section 24 (as substituted by this Act) of the Principal Act and regulations under section 40 (as amended by this Act) of that Act shall not apply to an applicant to whom paragraph (a) or (b) of regulation 4 of the European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991, or any provision which may amend or replace that regulation, applies.

81 Amendment of section 53 of Principal Act.

81.—With effect from the 1st day of January, 1996, section 53 of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) A list purporting to be published by the authority of the Society and to contain the names of the solicitors who have obtained practising certificates for the current practice year before the 2nd day of February in that year shall, until the contrary is proved, be evidence that the persons named on the list are solicitors holding those certificates.”.

82 Laying of regulations.

82.—Save as otherwise provided by this Act, every regulation made by the Society under this Act shall be laid by the Society before each House of the Oireachtas as soon as may be after it is made.