The Gazette 1991

GAZETTE NOVEMBER 1991 Solicitors Bill Welcomed, but Some Provisions "not in the Public Interest"

In addition, the Law Society wel- comed the stronger powers given to the Society in the Bill to deal with complaints from the public against solicitors. The strengthened powers of the Disciplinary Committee of the High Court to deal with cases of misconduct or dishonesty were also welcomed. Negative provisions However, the Chairman of the Solicitors Bill Committee, Maurice Curran, stressed that not everything in the Bill was acceptable to the Society. Ombudsman Mr. Curran said that it was totally inappropriate that any non-Govern- mental organisation such as the Society would have to pay the ex- penses of a Legal Ombudsman who would be a public official carrying out a public watchdog function. Such a requirement was inconsist- ent with the principle of the inde- pendence of the office. Fee advertising Mr. Curran said that the Society was strongly opposed to allowing solicitors to advertise fees and believed that it would be likely to cause confusion, lead to the public being exposed to the risk of shoddy or careless work and unsatisfactory legal service and would be very likely to generate additional com- plaints from clients. Fee advertising was neither in the public interest nor the profession's interest. In a later TV interview, the out-going Presi- dent of the Law Society, Donal G. Binchy, pointed out that legal services were not amenable to market forces in the same way as commercial goods. "We are not dealing in canned peas", he said.

(i) probate and administrations involved complex legal work that had to be done by legally qualified persons; (ii) there would be no protection for clients funds (such as the solicitors Compensation Fund) and, unless such work was done by solicitors, there might be no professional indemnity insurance to cover negligence. (iii) there was a serious risk of conflict of interest if banks acted for their own customers; their clients would not have independent legal advice; (iv) overheads of banks were such that they could not provide a cheaper service than solicitors and their fees were not subject to any control. Conveyancing by banks At the press conference, the Society pointed out that conveyancing was an area of work that should be reserved for properly trained per- sons who were supported by professional indemnity insurance, a compensation fund and a disciplin- ary code which would deal ade- quately with complaints from the public. Solicitors were the only persons with the required expertise, insurance cover and regulatory control. Maurice Curran said that he was at a loss to understand why the Minister was on the side of the big banks viz-a-viz solicitors who were trying to earn a living. At the press conference, the then President of the Law Society, Donal Binchy, stressed that these were the Society's preliminary views on publi- cation of the Bill. A full process of consultation would take place with members of the profession and fol- lowing this consultation the Society would formulate a more detailed response to the Bill and would seek to have those provisions in the Bill that were unacceptable to the pro- fession modified or amended. • 341 Further consultation with members

The Solicitors (Amendment) Bill, 1991 was published by the Minister for Justice, Raphael Burke, TD, on Friday, 25th October, 1991. The Minister heralded the Bill as a major reforming measure which was being introduced to protect the interest of clients of solicitors, to promote high standards in the profession and to enable solicitors to adapt and respond to commercial and economic changes. The Law Society reacted promptly to the publication of the Bill and in a press statement said that while it supported the majority of the Bill's provisions, the Society was how- ever, concerned that some pro- visions - especially those relating to fee advertising, allowing banks and trust corporations to do probate work and allowing banks to do conveyancing - were not in the public interest. Positive features At a press conference staged on the afternoon of Friday, 25th October, 1991, the Society outlined the many positive features in the Bill, pointing out that many of them had been included at the request of the Society following a lengthy period of discussion and consultation with the Government. Examples of the positive changes were: • an important change in the law relating to the Compensation Fund which will limit claims under the Fund to the clients of solicitors; • the appointment of an inde- pendent adjudicator (Legal Ombudsman) who will have power to oversee the handling of complaints of solicitors; • lay membership of the Dis- ciplinary Committee; • a power to make professional indemnity insurance com- pulsory; • a restriction for the first three years on newly qualified soli- citors practising on their own.

Probate by banks and trust corporations

The Society said that allowing banks and trust corporations to do probate work would be an ex- tremely ill-advised step. There were four arguments against it:-