Legal Services Ombudsman Act 2009

PART 1 Preliminary and General

1. Short title and commencement.

1.— (1) This Act may be cited as the Legal Services Ombudsman Act 2009.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and for different provisions.

2. Interpretation.

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

“Bar Council” means the General Council of the Bar of Ireland;

“barrister” includes a pupil as defined in the Disciplinary Code and a registered lawyer within the meaning of the European Communities (Lawyers’ Establishment) Regulations 2003 (S.I. No. 732 of 2003) who is pursuing the professional activities of a barrister in the State, but does not include a visiting lawyer within the meaning of the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979 (S.I. No. 58 of 1979) who is pursuing the professional activities of a barrister in the State;

“Barristers’ Professional Conduct Tribunal” means the body of that name constituted in accordance with the Disciplinary Code;

“Code of Conduct” means the Code of Conduct for the Bar of Ireland;

“Compensation Fund” means the fund maintained by the Law Society pursuant to section 21 (inserted by section 29 of the Solicitors (Amendment) Act 1994) of the Solicitors (Amendment) Act 1960;

“complainant” means a person who makes a complaint on the person’s own behalf or on behalf of another person;

“complaint” means a complaint made to the Legal Services Ombudsman under subsection (1), (2) or (3) of section 21;

“Disciplinary Code” means the Disciplinary Code for the Bar of Ireland;

“financial year” means—

(a) the period from the date of commencement of section 4 to 31 December next following that date, and

(b) thereafter every period of 12 months ending on 31 December;

“grant” means a grant under subsection (4) of section 21 (inserted by section 29 of the Solicitors (Amendment) Act 1994) of the Solicitors (Amendment) Act 1960 out of the Compensation Fund;

“Law Society” means the Law Society of Ireland;

“levy assessment notice” shall be construed in accordance with section 19;

“local authority” has the same meaning as it has in the Local Government Act 2001;

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

“misconduct”—

(a) in relation to a complaint against a barrister, has the same meaning as in the Disciplinary Code as construed in conjunction with the Code of Conduct, and

(b) in relation to a complaint against a solicitor, has the same meaning as in section 3 (amended by section 7 of the Solicitors (Amendment) Act 2002) of the Solicitors (Amendment) Act 1960,

and in either case includes alleged misconduct;

“ professional body ” means the Bar Council or the Law Society;

“ Professional Conduct Appeals Board ” means the body of that name constituted in accordance with the Disciplinary Code;

“related complaint”, in relation to a complaint (in this definition referred to as the “complaint to the Legal Services Ombudsman”), means—

(a) the complaint to the Bar Council referred to in section 21(1) the handling of which by the Barristers Professional Conduct Tribunal or, in the case of an appeal against a decision of the Tribunal in respect of the complaint, the Professional Conduct Appeals Board, is the ground for the making of the complaint to the Legal Services Ombudsman, or

(b) the complaint to the Law Society referred to in section 21(2) the handling of which by the Law Society is the ground for the making of the complaint to the Legal Services Ombudsman;

“ solicitor ” includes a registered lawyer within the meaning of the European Communities (Lawyers’ Establishment) Regulations 2003 (S.I. No. 732 of 2003) who is pursuing the professional activities of a solicitor in the State, but does not include—

(a) an apprentice solicitor, or

(b) a visiting lawyer within the meaning of the European Communities (Freedom to Provide Services) (Lawyers) Regulations 1979 (S.I. No. 58 of 1979) who is pursuing the professional activities of a solicitor in the State;

“Solicitors Disciplinary Tribunal” means the Solicitors Disciplinary Tribunal established by section 6(1) (inserted by section 8 of the Solicitors (Amendment) Act 2002) of the Solicitors (Amendment) Act 1960.

3. Expenses.

3.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of monies provided by the Oireachtas.

PART 2 Establishment, Role and Accountability of Office of Legal Services Ombudsman

4. Establishment of office of Legal Services Ombudsman.

4.— There is established by this section the office of Legal Services Ombudsman and the holder of the office shall be known as the Legal Services Ombudsman.

5. Appointment of Legal Services Ombudsman.

5.— (1) The Legal Services Ombudsman shall be appointed by the Government on the nomination of the Minister.

(2) In considering the appointment of a person to be the Legal Services Ombudsman, the Government shall satisfy themselves that the person has the appropriate experience, qualifications, training and expertise for the appointment.

(3) A person is not eligible for appointment as the Legal Services Ombudsman if he or she—

(a) is a member of either House of the Oireachtas,

(b) is entitled under the rules of procedure of the European Parliament to sit in that Parliament,

(c) is a member of a local authority,

(d) is a practising barrister or a practising solicitor,

(e) is a member of the Law Society, or

(f) is a member of the Bar Council or a bencher of the Honorable Society of King’s Inns.

6. Period of office, resignation and removal from office.

6.— (1) Subject to this section, a person appointed as the Legal Services Ombudsman holds office for such period, not exceeding 6 years, as may be specified by the Government in the instrument of appointment.

(2) Such a person is eligible for re-appointment for a second or subsequent term.

(3) The Legal Services Ombudsman may resign from office at any time by letter addressed to the Government and copied to the Minister, and the resignation takes effect on the date the Government receive the letter.

(4) The Government may remove the Legal Services Ombudsman from office if—

(a) in the opinion of the Government, the Ombudsman has become incapable through ill-health of performing the functions of the office,

(b) in the opinion of the Government, the Ombudsman has committed stated misbehaviour,

(c) the Ombudsman’s removal from office appears to the Government to be necessary for the effective performance of the functions of the office,

(d) the Ombudsman is adjudicated bankrupt,

(e) the Ombudsman has failed without reasonable cause to perform the functions of the office for a continuous period of at least 3 months beginning not earlier than 6 months before the day of removal, or

(f) the Ombudsman is convicted on indictment by a court of competent jurisdiction and sentenced to imprisonment.

(5) The Government shall cause to be laid before each House of the Oireachtas a statement of the reasons if the Legal Services Ombudsman is removed from office.

(6) A person ceases to hold the office of Legal Services Ombudsman when the person—

(a) is nominated as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or of the European Parliament,

(c) is regarded, pursuant to section 19 of the European Parliament Elections Act 1997, as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority.

7. Salary and superannuation.

7.— The Legal Services Ombudsman holds office on such terms and conditions relating to remuneration (including allowances for expenses, benefits-in-kind and superannuation) or other matters as may be determined by the Government at the time of appointment or reappointment.

8. Restriction on engaging in other employment.

8.— The Legal Services Ombudsman may not engage in paid employment outside the duties of the office unless the Minister approves the employment.

9. Functions and powers.

9.— (1) The functions of the Legal Services Ombudsman are—

(a) to receive and investigate complaints,

(b) to review under section 32 the procedures of the Bar Council and the Law Society for dealing with complaints made to those bodies,

(c) to assess the adequacy of the admission policies of the Law Society to the solicitors’ profession and of the Bar Council to the barristers’ profession,

(d) to promote awareness among members of the public of matters concerning the procedures of the Bar Council and the Law Society for dealing with complaints made to those bodies, and

(e) to carry out any other duties and exercise any other powers assigned to the Ombudsman by this Act.

(2) The Legal Services Ombudsman has all powers that are necessary for the performance of the functions of the office.

10. Independence of Legal Services Ombudsman.

10.— The Legal Services Ombudsman shall be independent in the performance of the functions of the office.

11. Staff.

11.— (1) Subject to subsection (2), the Legal Services Ombudsman may, from time to time, appoint persons to be members of the Ombudsman’s staff.

(2) The Legal Services Ombudsman may appoint a person under subsection (1) only with the consent of the Minister and the Minister for Finance having, prior to seeking that consent, consulted with the Bar Council and the Law Society in respect of any appointment under that subsection.

(3) Persons appointed under subsection (1) are to be employed on such terms and conditions relating to remuneration (including allowances for expenses and superannuation) or other matters as, after consulting with the Bar Council and the Law Society, the Legal Services Ombudsman determines with the consent of the Minister and the Minister for Finance.

(4) With the consent of the Minister, the Legal Services Ombudsman may, from time to time, engage the services of professional and other advisers or consultants.

(5) The Legal Services Ombudsman may authorise a person appointed under subsection (1) to perform any of the functions assigned to the Ombudsman by this Act, except those assigned by sections 14, 15, 16, 17 and 28 and subsections (4), (6), (7) and (9) of section 32.

(6) Where a person is authorised to perform such functions, references in this Act to the Legal Services Ombudsman, in so far as the references relate to such functions the subject of the authorisation, are to be read as references to the authorised person.

(7) An act or thing done by a person within the scope of the authority given by the Legal Services Ombudsman has the same force and effect as if done by the Ombudsman.

(8) A person appointed under subsection (1) is not a civil servant of the Government or a civil servant of the State.

12. Advances by Minister to Legal Services Ombudsman.

12.— The Minister shall advance to the Legal Services Ombudsman out of monies provided by the Oireachtas such amount or amounts as the Minister may, with the consent of the Minister for Finance, determine for the purposes of expenditure by the Ombudsman in the performance of his or her functions.

13. Accounts and audit.

13.— (1) The Legal Services Ombudsman shall in respect of each financial year keep in such form as may be approved by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of all monies received or expended by the Ombudsman in performing functions under this Act, including an income and expenditure account and a balance sheet and, in particular, shall keep all such special accounts as the Minister may from time to time direct.

(2) Not later than 3 months after the end of the financial year to which the accounts relate, the Legal Services Ombudsman shall submit the accounts kept under this section to the Comptroller and Auditor General for audit.

(3) Immediately following the audit, the Legal Services Ombudsman shall present to the Minister—

(a) copies of the audited accounts, including the income and expenditure account, the balance sheet and such other (if any) accounts kept under this section as the Minister, after consulting with the Minister for Finance, may direct, and

(b) the Comptroller and Auditor General’s report on the audited accounts.

(4) As soon as practicable after receipt of the audited accounts and the Comptroller and Auditor General’s report, the Minister shall cause copies of them—

(a) to be laid before each House of the Oireachtas, and

(b) to be sent to the Bar Council and the Law Society.

14. Various reports by Legal Services Ombudsman.

14.— (1) Not later than 4 months after the end of each financial year, the Legal Services Ombudsman shall make a written report to the Minister on the performance of the functions of the office during that year.

(2) The annual report submitted under subsection (1) shall be in such form and regarding such matters as the Legal Services Ombudsman thinks fit or the Minister may direct.

(3) The Legal Services Ombudsman shall, within 2 years from the date of being appointed, submit to the Minister a report on—

(a) the effectiveness of the office of Legal Services Ombudsman, and

(b) the adequacy of the functions of the office.

(4) The report submitted under subsection (3) may contain recommendations for improving the effectiveness of the office of Legal Services Ombudsman.

(5) The Legal Services Ombudsman may make any other reports that he or she considers appropriate for drawing to the Minister’s attention matters that have come to the Ombudsman’s notice and that, in his or her opinion, should, because of their gravity or other exceptional circumstances, be the subject of a special report to the Minister and shall make a report on any other matter if so requested by the Minister.

(6) Not later than 2 months after receiving a report under this section, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.

(7) Following compliance with subsection (6), the Legal Services Ombudsman shall arrange for the publication of the report concerned and for it to be sent to the Bar Council and the Law Society.

15. Annual report on admission policies of legal professions.

15.— (1) Not later than 4 months after the end of each financial year, the Legal Services Ombudsman shall prepare and submit to the Minister a report—

(a) specifying the number of persons admitted to practise as barristers and solicitors respectively during that year, and

(b) containing an assessment as to whether, having regard to the demand for the services of practising barristers and solicitors and the need to ensure an adequate standard of education and training for persons admitted to practice, the number of persons admitted to practise as barristers and solicitors in that year is consistent with the public interest in ensuring the availability of such services at a reasonable cost.

(2) The Legal Services Ombudsman shall consult such persons or bodies as the Ombudsman considers appropriate for the purpose of preparing the report referred to in subsection (1).

(3) The Bar Council, the Honorable Society of King’s Inns and the Law Society shall provide the Legal Services Ombudsman with such information in their possession as is required by him or her for the purpose of preparing the report referred to in subsection (1).

(4) As soon as practicable after receiving a report under this section, the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.

(5) Following compliance with subsection (4), the Legal Services Ombudsman shall arrange for the publication of the report and for it to be sent to the Bar Council and the Law Society.

16. Appearance before Committee of Dáil Éireann established to examine, etc., appropriation accounts, etc.

16.— (1) The Legal Services Ombudsman shall, whenever required to do so by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded, or required to be recorded, in any book or other record of account subject to audit by the Comptroller and Auditor General that the Ombudsman is required by this Act to prepare,

(b) the economy and efficiency of the Ombudsman in the use of resources,

(c) the systems, procedures and practices employed by the Ombudsman for the purpose of evaluating the effectiveness of the operation of the office of the Ombudsman, and

(d) any matter affecting the Ombudsman referred to in—

(i) a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993, or

(ii) any other report of the Comptroller and Auditor General that is laid before Dáil Éireann in so far as the report relates to a matter specified in any of paragraphs (a) to (c).

(2) The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.

17. Appearance before other committees of Houses of Oireachtas.

17.— (1) The Legal Services Ombudsman shall attend a meeting of an Oireachtas Committee whenever asked to do so by the Committee and shall provide the Committee with such information (including documents) as it specifies and as is in the possession of, or is available to, the Ombudsman.

(2) The Legal Services Ombudsman is not required to give an account before an Oireachtas Committee of any matter—

(a) relating solely to an individual complaint, or

(b) that is, or is likely to be, the subject of proceedings before a court or tribunal in the State.