Solicitors (Amendment) Act 2002

1 Interpretation.

1.—In this Act—

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

“Act of 1994” means the Solicitors (Amendment) Act, 1994;

“Disciplinary Tribunal” means the Solicitors Disciplinary Tribunal established by section 6(1) (as substituted by this Act) of the Act of 1960, and references to the Disciplinary Tribunal in the Acts of 1960 and 1994 shall be construed as references to the Solicitors Disciplinary Tribunal;

“Minister” means the Minister for Justice, Equality and Law Reform;

“Principal Act” means the Solicitors Act, 1954.

2 Amendment of section 49(1) of Principal Act.

2.—Section 49(1) (as substituted by section 61 of the Act of 1994) of the Principal Act is hereby amended by the substitution of the following paragraph for paragraph (q):

“(q) the solicitor has failed to satisfy the Society that he or she should be issued with a practising certificate or a practising certificate not subject to specified conditions, having regard to all the circumstances, including, where appropriate—

(i) the financial state of the practice,

(ii) the number and nature of complaints made to the Society, either alleging misconduct by the solicitor or under section 8 or 9 of the Solicitors (Amendment) Act, 1994, within the preceding two practice years, or

(iii) the need adequately to protect or secure the interests of the solicitor's clients.”.

3 Amendment of section 66 of Principal Act.

3.—The Principal Act is hereby amended in section 66 (as substituted by section 76 of the Act of 1994) by the substitution of the following for subsection (11):

“(11) An authorised person who attends pursuant to subsection (10) of this section at a place of business of a solicitor shall inform the solicitor or any clerk or servant of the solicitor of the purpose of the attendance as specified in that subsection, except where the Society reasonably consider that to do so could prejudice the exercise of any of the Society's functions as so specified, and may in pursuance of that purpose require the solicitor or any such clerk or servant to do one or more than one of the following:

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

(b) to furnish such copies of those records as the authorised person deems necessary to fulfil the said purpose;

(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 said purpose.”.

4 Amendment of section 71 of Principal Act.

4.—The Principal Act is hereby amended in section 71 (which relates to regulations with respect to the professional practice, conduct and discipline of solicitors) by the substitution, for subsections (2) to (7) (inserted by the Act of 1994), of the following subsections:

“(2) A solicitor shall not publish or cause to be published an advertisement which—

(a) is likely to bring the solicitors' profession into disrepute,

(b) is in bad taste,

(c) reflects unfavourably on other solicitors,

(d) without prejudice to any regulations under subsection (8) of this section, contains an express or implied assertion that the solicitor has specialist knowledge in any area of law or practice which is superior to that of other solicitors,

(e) is false or misleading in any respect,

(f) is published in an inappropriate location,

(g) does not comply with subsection (3), or regulations under subsection (5) or (6), of this section,

(h) expressly or impliedly refers to—

(i) claims or possible claims for damages for personal injuries,

(ii) the possible outcome of claims for damages for personal injuries, or

(iii) the provision of legal services by the solicitor in connection with such claims,

(i) expressly or impliedly solicits, encourages or offers any inducement to any person or group or class of persons to make the claims mentioned in paragraph (h) of this subsection or to contact the solicitor with a view to such claims being made, or

(j) is contrary to public policy.

(3) An advertisement published or caused to be published by a solicitor shall not include more than—

(a) the name, address (including any electronic address), telephone number, facsimile number, place or places of business of the solicitor and any reference to the location of information provided by the solicitor that is accessible electronically,

(b) particulars of the academic and professional qualifications and legal experience of the solicitor,

(c) subject to subsection (2) of this section, factual information on the legal services provided by the solicitor and on any areas of law to which those services relate,

(d) subject to any regulations under subsection (6) of this section, particulars of any charge or fee payable to the solicitor for the provision of any specified legal service, and

(e) any other information specified in regulations under subsection (5) of this section.

(4) Without prejudice to paragraphs (h) and (i) of subsection (2) of this section, a solicitor may, where appropriate, include the words ‘personal injuries’ in any advertisement which contains factual information, pursuant to paragraph (c) of subsection (3) of this section, on the legal services provided by the solicitor or on any areas of law to which those services relate.

(5) Without prejudice to the generality of section 5 of this Act and subsection (1) of this section, the Society shall, with the consent of the Minister, make regulations to give effect to subsections (2), (3) and (4) of this section and, in particular—

(a) to make provision, having regard to those subsections, in relation to advertisements that may be published or caused to be published by a solicitor, including provision in respect of the manner of their publication and their form, content and size,

(b) to specify advertisements which, having regard to the manner of their publication or their form, content or size, would be in contravention of subsection (2) of this section,

(c) subject to subsection (2) of this section, to provide that an advertisement published or caused to be published by a solicitor may include specified information in addition and of a similar nature to the information provided for in paragraphs (a) to (d) of subsection (3) of this section,

(d) to provide for restrictions on a solicitor making, or causing to be made, unsolicited approaches to any person or group or class of persons with a view to being instructed to provide legal services, and

(e) to provide for the manner in which the Society is to determine whether any particular advertisement published or caused to be published by a solicitor is in contravention of any provision of, or regulations under, this section.

(6) The Society, where they consider it appropriate, may make regulations prohibiting the advertisement of any charge or fee payable to a solicitor for the provision of any specified legal service, provided that such regulations may be made only with the consent of the Minister and where the Minister is satisfied that such regulations are in the public interest.

(7) Without prejudice to the generality of section 5 of this Act and subsection (1) of this section, the Society shall not prohibit a solicitor from charging less for a legal service than any charge or fee specified for that legal service by or under any enactment for the time being in force.

(8) Notwithstanding paragraph (d) of subsection (2) and subsection (3) of this section, the Society may by regulations provide that a solicitor who in the prescribed manner satisfies the Society of having specialist knowledge in a prescribed area of law or practice may be permitted by the Society to be designated, whether in an advertisement or otherwise, as having specialist knowledge in that area.

(9) Regulations under section 5 and this section and in force immediately before the commencement of the Solicitors (Amendment) Act, 2002, shall, save in so far as they may be inconsistent with this section or regulations made thereunder after such commencement, continue in force until revoked as if they had been duly made under those sections.

(10) In this section—

‘advertisement’ means any communication (whether oral or in written or other visual form and whether produced by electronic or other means) which is intended to publicise or otherwise promote a solicitor in relation to the solicitor's practice, including—

(a) any brochure, notice, circular, leaflet, poster, placard, photograph, illustration, emblem, display, stationery, directory entry, article or statement for general publication,

(b) any electronic address or any information provided by the solicitor that is accessible electronically,

(c) any audio or video recording, or

(d) any presentation, lecture, seminar or interview,

which is so intended but excluding a communication which is primarily intended to give information on the law;

‘claims for damages for personal injuries’ means claims, whether made in court proceedings or otherwise, for damages or compensation for personal injuries suffered, or alleged to have been suffered, by a person or persons owing to an act or omission, or alleged act or omission, of another person or persons;

‘inappropriate location’ means a hospital, clinic, doctor's surgery, funeral home, cemetery, crematorium or other location of a similar character;

‘the Minister’ means the Minister for Justice, Equality and Law Reform;

‘personal injuries’ includes any disease and any impairment of a person's physical or mental condition or death.”.

5 Prohibition of certain advertisements by unqualified persons.

5.—(1) Without prejudice to sections 55 and 56 (which prohibit an unqualified person from acting as or pretending to be a solicitor) of the Principal Act, a person who is not a solicitor shall not publish or cause to be published an advertisement—

(a) which expressly or impliedly undertakes to provide a specified service, being a service of a legal nature that could otherwise be provided by a solicitor, for or in expectation of a fee, gain or reward that is directly related to the provision of that service, and

(b) which, if published or caused to be published by a solicitor, would not be in compliance with paragraph (h) or (i) of subsection (2) or subsection (4) of section 71 (as amended by section 4 of this Act) of the Principal Act.

(2) In subsection (1) of this section “advertisement” has the meaning assigned to it by subsection (10) of section 71 (as so amended) of the Principal Act, with the substitution, where appropriate, of “a person who is not a solicitor” for “a solicitor in relation to that solicitor's practice”.

6 Saver.

6.—Sections 4 and 5 of this Act shall not apply to advertisements that are published not more than 3 months after the commencement of those provisions.

7 Amendment of section 3 of Act of 1960.

7.—The Act of 1960 is hereby amended in section 3 (as amended by section 24 of the Act of 1994) by the substitution, for paragraphs (c) and (d) of the definition of “misconduct”, of the following paragraphs:

“(c) the contravention of a provision of the Solicitors Acts, 1954 to 2002, or any order or regulation made thereunder,

(d) in the course of practice as a solicitor—

(i) having any direct or indirect connection, association or arrangement with any person (other than a client) whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of section 55 or 56 or section 58 (which prohibits an unqualified person from drawing or preparing certain documents), as amended by the Act of 1994, of the Principal Act, or section 5 of the Solicitors (Amendment) Act, 2002, or

(ii) accepting instructions to provide legal services to a person from another person whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of those enactments,

(e) any other conduct tending to bring the solicitors' profession into disrepute.”.

8 Amendment of section 6 of Act of 1960.

8.—The Act of 1960 is hereby amended in section 6 (as substituted by section 16 of the Act of 1994)—

(a) by the substitution of the following subsection for subsection (1):

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

(a) not more than twenty 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 ten 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 for not more than one such period.”,

(b) by the insertion of the following subsection after subsection (1):

“(1A) At least 40 per cent of the solicitor members and of the lay members of the Disciplinary Tribunal, calculated by rounding to the nearest whole number, shall be men and at least 40 per cent, as so calculated, shall be women.”,

and

(c) by the substitution of the following subsection for subsection (6):

“(6) The Society shall pay to each member of the Disciplinary Tribunal, out of funds at the disposal of the Society, either—

(a) the reasonable travelling and subsistence expenses incurred by the member in connection with attendance at meetings of the Disciplinary Tribunal, or

(b) with the consent of the member concerned, an annual sum (the amount of which shall be determined by the Society from time to time and which shall be payable in arrear at the end of each year) in respect of those expenses.”.

9 Amendment of section 7 of Act of 1960.

9.—The Act of 1960 is hereby amended in section 7 (as substituted by section 17 of the Act of 1994) in the following respects:

(a) by the substitution of the following subsections for subsections (2) and (3):

“(2) (a) Where an application in relation to a solicitor (in this section referred to as the ‘respondent solicitor’) is duly made under this section, the Disciplinary Tribunal shall—

(i) where the Society is not the applicant, inform the Society as soon as practicable of the receipt of the application, and

(ii) before deciding whether there is a prima facie case for inquiry:

(I) send a copy of the application and of any accompanying documents to the respondent solicitor, and

(II) request that any observations which he or she may wish to make on the application be supplied to the Disciplinary Tribunal within a specified period.

(b) If, after receipt of the respondent solicitor's observations or on the expiration of the specified period, the Disciplinary Tribunal find that there is no prima facie case for inquiry, they shall so inform the applicant, the Society (where the Society is not the applicant) and the respondent solicitor and take no further action in relation to the application.

(3) If the Disciplinary Tribunal find that there is a prima facie case for inquiry, the following provisions shall have effect:

(a) they shall proceed to hold an inquiry and notify the respondent solicitor and the applicant (and, where the Society is not the applicant, the Society) of the date on which it is to be held;

(b) when holding the inquiry the Disciplinary Tribunal shall—

(i) consider each allegation of misconduct made against the respondent solicitor, and

(ii) make a separate finding in respect of each such allegation;

(c) on completion of the inquiry the Disciplinary Tribunal shall specify in a report (which shall include a verbatim note of the evidence given and submissions made) to the High Court—

(i) the nature of the application and the evidence laid before them,

(ii) the finding made on each allegation of misconduct and the reasons therefor,

(iii) any other matters in relation to the respondent solicitor which they may think fit to report,

(iv) in case they 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—

(I) their opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitor's profession, having regard to their findings, and

(II) their recommendations as to the sanction which in their opinion should be imposed, having regard to their findings, to any finding of misconduct on the part of the respondent solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the respondent solicitor,

and in that case the Society shall bring the report before the Court.”,

(b) by the substitution of the following subsection for subsection (5):

“(5) The Disciplinary Tribunal shall, as soon as possible and not later than 21 days after their report has been prepared, serve a copy of it on—

(a) the respondent solicitor either personally or by sending it by registered post to the respondent solicitor's last-known residence or place of business,

(b) the Society by sending it to the Society by registered post, and

(c) any person other than the Society who has made an application under subsection (1) of this section either personally or by sending it by registered post to the person's last-known residence or place of business.”,

(c) by the substitution of the following subsection for subsection (6):