The Gazette 1991

GAZETTE

DECEMBER 1991

full discussion had taked place with the Presidents and Secretaries of Bar Associations earlier that day. Maurice Curran, Chairman of the Solicitors Bill Committee, then outlined what the Soc i e t y 's response had been to both the negative and positive provisions in the Bill. Barry St. J. Galvin took issue with the way the Law Society had dealt with the Bill. He said the Solicitors Bill Committee had been a secret committee. It had not been able to report back to the Council. The Council had not been able to make its views known while the discussions were taking place. He said he was disappointed with the attitude of the Law Society to the changes in the Bill. The Society appeared to be we l comi ng interference in its own system of regulation. The profession had not failed to regulate itself. The Disciplinary Committee of the Society had no power of sanction and could only report to the President of the High Court. Why should the Society bé penalised for failing to exercise powers that it did not have, he said. Andrew Curneen said he was concerned about the definition of "client" in the the Bill as it was very widely drafted and included anyone who was a successor-in-title to a client. He said that this could include a purchaser or a mortagee's lending institution. He thought that the Society should have stood up and fought against the Bill. The other branch of the profession had been successful in showing its teeth and had escaped regulation. David Wai/ey, President of the Dublin Solicitors Bar Association, complimented the Society on the superb summary of the Bill that had been produced and on reacting speedily to the Bill. He said that the provision in the Bill in Section 62(1) providing that fees must be advised in writing to clients could be ridiculous in certain cases say, for example, when a will was being drafted. David Walley said he was 4 18

opposed to the provision prohibiting percentage fees. This was not harm- ful to clients and clients could readily understand the percentage basis. He said it was necessary to examine the whole manner in which lawyers charge fees and the whole issue of costs. Section 63 permitting ad- vertising of fees could lead to supermarket-style 'price wars'. Meanwhile, the Competition Act had abolished the Bar Associations' re- commended fees. This was a schizophrenic approach on the part of the Government. He said he thought compulsory professional indemnity insurance was a good idea but queried whether the Mutual Defence Fund would become a last resort for solicitors with poor claims records who could not get insured elsewhere. James MacGuill said that the Bill was anti-solicitor and anti-client and the Law Society should not have welcomed any part of it. In the absence of a statutory civil legal aid scheme, solicitors engaged in cross subsidisation of cases, and often took actions for impecunious clients but under the Bill it would be impossible to do so. The profession would now be the most policed profession in Europe. He noted there was no provision in the Bill to penalise a complainant who made a false complaint. The solicitors profession provided an excellent service to the public and the Law Society should not appear defeatist. Michael Nugent dealt with the pro- visions of the Bill relating to newly- qualified solicitors. He said over the years there had been a continuous erosion of what a Practising Certi- ficate entitled a practitioner to do. The proposed restriction on newly qualified solicitors practising on their own for three years after qualification was introducing two tiers into the profession. It would, in effect, informally extend the apprenticeship period by a further three years. It this was to happen, the Society should introduce stringent and fair provisions for minimum wages to be paid to solicitors in the first three years of practice He felt this provision would be an erosion of the freedom of

newly qualified solicitors to dispose of their labour; they would be constrained to be employees. Garrett Sheehan said that currently there was no provision guarantee- ing that someone who had passed the preliminary examinations for entry to the Law School would get an apprenticeship. He felt that no one should be precluded from practising as a solicitor because he could not get an apprenticeship. Tim O'Suiiivan said he supported the provisions in the Bill that would allow incorporation and said he would like to see limited partnerships. Brian McMahon said there would be casualties in the profession if normal market forces were allowed into play. It would be a question of the survival of the fittest and the cheapest. Andrew Crowley said the Bill was a slur on the profession. He said there should be a sanction in the Bill for anyone who charged an un- economic fee. He said there came a point in economics where competition went beyond bene- fiting the consumer. Frank Lanigan said that Section 63 dealing with fees advertising looked very much the same as the 1988 advertising regulations. He said the criteria in both were essentially subjective and a tightening up of the criteria should be considered to prevent tasteless, badly, or impro- perly worded advertisements. Donnchadh Lehane said that in opposing the Bill the Society should hone in on those provisions that were unconstitutional and seek to impugn the legislation when the Bill became law. Replying to these comments, Maurice Curran, Chairman of the Solicitors Bill Committee, pointed out that not all of the provisions in the Bill were at the Society's be- hest. Some of the provisions in the Bill had been included even though the Committee had trenchantly op- posed them. The Committee had been successful in ensuring that even more unpalatable provisions (Cont'd on page 420)