S.I. No. 103/2006 - The Solicitors Acts, 1954 to 2002 (Independent Law Centres) Regulations, 2006

STATUTORY INSTRUMENT

S.I. No.103 of 2006

The Solicitors Acts, 1954 to 2002 (Independent Law Centres) Regulations, 2006

THE SOLICITORS ACTS, 1954 TO 2002 (INDEPENDENT LAW CENTRES) REGULATIONS, 2006

The Law Society of Ireland in exercise of the powers conferred on them by section 71 (as amended by section 69 of the Solicitors (Amendment) Act, 1994 and section 4 of the Solicitors (Amendment) Act, 2002 ) of the Solicitors Act, 1954 HEREBY MAKE the following Regulations:

Citation and commencement

1.

• (b) These Regulations shall come into operation on the 1^st day of March 2006.

Definitions

2.

“client” means a client of an employed solicitor, other than the independent law centre concerned;

“independent law centre” has the meaning assigned to it in Regulation 4;

“employed solicitor” has the meaning assigned to it in Regulation 5;

“legal services” means services of a legal or financial nature provided by an employed solicitor or solicitors in the course of his or her or their employment by an independent law centre, and includes any part of such services;

“organisation” means a company limited by guarantee that is a registered charity certified as such by the Revenue Commissioners and that is either named in the Second Schedule to these Regulations or which seeks to be designated by the Society as an independent law centre, or, in either case, is such a company desirous of continuing to be designated as an independent law centre;

“Regulation” means a regulation in these Regulations;

“Society” means the Law Society of Ireland.

• (2) Other words and phrases in these Regulations shall, where applicable, have the meanings assigned to them in the Solicitors Acts, 1954 to 2002.

Application of the Regulations

3.

• (b) These Regulations are made without prejudice to the generality of the applicability to solicitors of sections 59 and 62 of the Solicitors Act 1954 , the text of each of which sections is, for ease of reference, set out in full in the First Schedule hereto.

• (c) Subject to the provisions of these Regulations, sections 59 and 62 of the Solicitors Act, 1954 shall not apply to employed solicitors.

meaning of “independent law centre”

4.

• (a) an organisation named in the Second Schedule to these Regulations which shall be deemed to have been designated by the Society as an independent law centre; or

• (b) any other organisation designated by the Society as an independent law centre by reason of complying, in the opinion of the Society, with each of the requirements set out in clause (3) of this Regulation.

• (2) An independent law centre which, after due enquiry by the Society, fails, in the opinion of the Society, to comply with any of the requirements set out in clause (3) of this Regulation, shall, if so decided by the Society and subject to Regulation 10, cease to be designated or deemed to be designated as an independent law centre for the purposes of these Regulations; and any solicitor theretofore employed by that independent law centre shall cease to be an employed solicitor.

• (3) An organisation seeking to be designated by the Society as an independent law centre or desirous of continuing to be designated by the Society as an independent law centre shall comply and shall continue to comply, in the opinion of the Society, with each of the following requirements:

• (a) that the organisation is and will continue to be constituted as a company limited by guarantee and is and will continue to be a registered charity certified as such by the Revenue Commissioners;

• (b) (i) that the organisation in its governance and in its management, both administrative and financial, is and will continue to be independent of the control of either central or local government or the control of any commercial interest; and

• (ii) that the organisation in its governance is a non-profit making voluntary body accountable to the community whom it seeks to serve for its independence from those who provide funds to it or from any interests unrelated to its charitable purposes;

• (c) that the organisation does not and does not intend to charge legal costs and outlays to a client over and above those legal costs and outlays that are recoverable by the client from another source;

• (d) that the organisation applies all legal costs and outlays recovered by an employed solicitor on behalf of a client solely for furthering the charitable purposes of the organisation and in particular the provision to clients of legal services;

• (e) that the organisation shall not itself receive, hold or control clients’ moneys other than in respect of outlays required in pursuance of providing legal services to clients and shall ensure that any such outlays received shall be held in the name of one or more of its employed solicitors subject to and in compliance with the Solicitors Accounts Regulations, 2001 to 2005 ; and

• (f) that the organisation ensures that the professional notepaper to be used by employed solicitors in the provision of legal services to clients clearly indicates that it is professional notepaper while at the same time identifies the organisation itself.

Meaning of “employed solicitor”

5.

• (a) that the solicitor is eligible to hold and does hold and will continue to hold a practising certificate;

• (b) that there is express provision for the following:

• (i) that the right and the obligation of the solicitor is and will continue to be to provide legal services to clients in pursuance of the charitable objectives of the independent law centre in a designated legal services section of the independent law centre with appropriate support staff;

• (ii) that the most senior individual in the designated legal services section of the independent law centre, with direct line management and professional responsibility for its day to day operations as head of the section, is and will continue to be the solicitor himself or herself or is another solicitor holding a practising certificate and that that head of the section has at all times direct and immediate access to each and every higher level of decision-making authority within the independent law centre;

• (iii) that the designated legal services section has and will continue to have a normal establishment of at least one full-time salaried solicitor and is and will continue to be composed exclusively of solicitors and appropriate support staff who are directly answerable in terms of line management and professional responsibility to the solicitor who is head of the section;

• (iv) that the relationship between the designated legal services section and each client is that of solicitor and client; and

• (v) that the solicitor is being and will continue to be employed by the independent law centre concerned -

• (A) as an independent professional solicitor with responsibilities as an officer of the court and subject to professional and ethical standards promulgated from time to time by the Society to be adhered to by solicitors generally;

• (B) on the clear understanding of the independent law centre concerned that the management structure, lines of accountability and organisation of work will at all times be such as to respect this status of the solicitor and to allow for the proper exercise by the solicitor of independent professional judgment; and

• (C) on the clear understanding of the independent law centre concerned that, where the solicitor has any reason to doubt the propriety of any action or proposed course of action the solicitor is called upon to carry out, the solicitor will have the means of access to each and every higher level of decision-making authority within the independent law centre; and

• (D) on the clear understanding of the independent law centre concerned that at any time the solicitor shall be entitled to request the Society or a court of competent jurisdiction for a definitive ruling on the appropriateness or otherwise of any action or proposed course of action the solicitor is called upon to carry out, which definitive ruling shall be binding on both the solicitor and the independent law centre concerned.

Notification to Society of intention to become employed solicitor

6.

• (a) notify the Society of his or her intention to do so;

• (b) seek from and be given by the Society confirmation that the proposed employer is an independent law centre;

• (c) confirm to the Society his or her knowledge of these Regulations; and

• (d) certify to the Society that the terms of his or her proposed employment by the independent law centre concerned include the provisions set out in Regulation 5.

Adherence to professional standards by employed solicitors

7.

• (2) Without prejudice to the generality of clause (1) of this Regulation, an employed solicitor shall not -

• (a) act in a manner inconsistent with his or her obligation to maintain his or her professional independence when providing legal services to clients;

• (b) act in, or continue to act in, any situation that could foreseeably give rise to a conflict of interest as between one client and another; and

• (c) disclose without the consent of the client concerned to any non-solicitor within the independent law centre concerned, other than secretarial and legal support staff working under the direction of an employed solicitor, or to any other person confidential information obtained by him or her in the course of acting for that client.

Professional indemnity insurance

8.

Application for designation as an independent law centre

9.

• (2) An organisation named in the Second Schedule to these Regulations or an organisation previously designated by the Society as an independent law centre may apply to the Society for confirmation that it continues, in the opinion of the Society, to be an independent law centre.

• (3) On receipt of an application pursuant to clause (1) or clause (2) of this Regulation, the Society may request the organisation concerned to furnish to the Society such information as to its operations as the Society deems reasonable and appropriate to enable the Society to make an informed decision on the application.

Appeal to the President of the High Court

10.

• (a) to refuse to designate an organisation as an independent law centre, or

• (b) to cease to continue to designate an independent law centre as an independent law centre,

may, within 21 days of being so informed in writing by the Society of that decision, appeal to the President of the High Court by way of notice of motion to the Registrar of the High Court and to the Society grounded on affidavit and, subject to the Society's right to respond thereto by affidavit, the President may, on the hearing of such motion, by order -

• (i) confirm the decision of the Society; or

• (ii) rescind the decision of the Society and direct, conditionally or unconditionally, the Society to designate or to continue to designate the organisation concerned as an independent law centre.

Dated this 27^th day of February 2006

Signed on behalf of the Law Society of Ireland pursuant to section 79 of the Solicitors Act, 1954 :

Michael Irvine

President of the Law Society of Ireland

FIRST SCHEDULE

within referred to

Texts of Sections 59 and 62 of the Solicitors Act, 1954

SECOND SCHEDULE

within referred to

Organisations deemed to be designated as independent law centres

Ballymun Community Law Centre

Free Legal Advice Centres (FLAC)

Irish Traveller Movement

Northside Community Law Centre, and Immigrant Council of Ireland