The Gazette 1992

MARCH 1992

GAZETTE

N W

Society Makes Submission on Solicitors Bill

and whether the client ought to have availed of such a remedy; 4. a provision which would ensure that, where a bill of costs is taxed, notwithstanding any determination by the Society that the bill should be reduced, the bill to be submitted for taxation should be the bill as originally presented by the solicitor. Section 15 - Independent Adjudicator The submission seeks the following changes:- 1. the deletion of the provision imposing an obligation on the Society to pay for the ombudsman; 2. the widening of the terms of reference of the ombudsman to bring in all legal services; 3. the ombudsman should be under a strict duty of confidentiality in relation to his work and there should be a right of action for breach of this; 4. any regulations made by the Minister under this section should have to be made in consultation with the Society. Section 27 - Control of Banking Accounts The Society wants a provision to enable it to seek, when necessary, a Mareva injunction against a solicitor to whom Section 20 of the 1960 Act is being applied, to prevent the dissipation of the assets of the solicitor or their removal from the jurisdiction. Section 28 - Compensation Fund The change in the Bill that confines claims under the Compensation Fund to a client of a solicitor is welcomed, but the submission argues that more far reaching changes are needed. Principally, a limit or cap of £50,000 should be placed on the level of individual claims under the

Compensation Fund. The Society is also seeking an amendment to Section 19 of the 1960 Act to give the Society discretion to refuse to make a grant from the Fund in a case in which the loss sustained was otherwise than as a result of the misappropriation or misapplication of funds entrusted to the solicitor. The submission proposes that the term "dishonesty" should be narrowed to exclude the possibility of claims being brought by clients who have suffered as a result of the negligence of solicitors and who have been misled by the action taken by the solicitor on their behalf. intentionally takes monies from a client account or otherwise converts or applies a client's property to his own use is proposed. Such a new offence is essential, the submission argues, to enable criminal charges to be brought against solicitors who defalcate and would also act as a useful deterrent. Finally, the Society has sought the deletion of a provision which would have enabled it to specify a different rate or rates of annual contribution to the Compensation Fund in relation to a class of solicitor. The submission notes that this provision has been strongly opposed by the profession. Section 34 - Three Year Rule Again, reflecting feedback from the profession, the submission proposes an amendment to provide that "the three year rule" requirement would only come into operation on foot of regulations to be made by the Society. The creation of a new criminal offence where a solicitor

The Law Society has made a detailed submission to the Minister for Justice, Padraig Flynn, on the Solicitors (Amendment) Bill, 1991. In an accompanying letter, sent with the submission at the end of January, Law Society President, Adrian P. Bourke, said "as you are aware in the course of its preparation, the Bill was only seen by a special committee established by the Council to handle it and the remainder of the profession, including the Council of the Law Society, were not consulted about the Bill until it was published. Since its examination across the profession, and the views we are now putting forward represent the conclusions of the Council following this consultation process." publication, the Society has subjected the Bill to detailed Sections 8 and 9 - Inadequate Services and Overcharging The submission notes that there is considerable disquiet in the profession about how these sections would operate. Among the changes proposed in the submission are:- 1. only clients of solicitors should be able to complain under these provisions and the Society should be able to screen frivolous or vexatious complaints; 2. the inclusion of a provision which The main features of the submission are summarised below.

would impose a sanction for making a malicious complaint against a solicitor;

3. a provision which would ensure that, in exercising powers under Section 8, the Society would have to have regard to the existence of any remedy that could be reasonably expected to be available to the client in civil proceedings

Section 43 - Education The Society has asked for a

provision to enable it to specify a qualifying standard in the university degree of a person seeking admission to the Law School.

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