The Legal Services Regulation Act followed almost directly from the terms of IMF/EU/ECB Memorandum of Understanding, November 2010. This is effectively the bailout agreement by which Ireland was granted access to funds by the troika after it was frozen out of the normal lending markets.
There had been a decade of reports urging reform of various aspects of legal services, including:
- 2001 OECD report,
- Competition Authority study of professions,
- 2005 Legal Costs Working Group,
- 2006 Authority Report on Solicitors and Barristers.
The principal elements of the legislation include the following:
- the establishment of the Legal Services Regulatory Authority;
- the creation of independent complaints and disciplinary procedures;
- the Office of Legal Costs Adjudicator to replace the Taxing Master;
- measures opening up legal services;
- public consultation process/requirements.
The Legal Services Regulatory Authority comprises 11 part-time members appointed by the Government. There is a lay chairperson and lay majority. The Authority will assume responsibility for the regulation of solicitors and barristers. It will publish and approve codes of practice, monitor admission, review the structure of the profession.
The complaints committee of the Legal Services Regulatory Authority will deal with complaints. Alternative dispute resolution procedures, including mediation are encouraged. Complaints going to a hearing will go before a legal practitioner, disciplinary tribunal. Confirmation of strike-off remains with the High Court.
The Office of Legal Costs Adjudicator
The Minister appoints Legal Costs Adjudicator. There are a series of principles in respect of legal costs.
- Opening up of legal services to further competition. Solicitors may employ barristers.
- Direct access to barristers on non-contentious matters for the public.
- Barristers may be part of Legal Partnerships.
- Professional codes of conduct may not prevent Multi-Disciplinary Practices.
It is not permissible to set fees as a percentage of damages payable to a client for contentious business. It is not permissible to charge junior counsel fees as a percentage of senior counsel fees.
There is a regulatory procedure for the appointment of senior counsels.
Barristers may act as advocates in court proceedings for their employers. Switching between professions is eased. Barristers practising in shared premises and costs as a group may advertise as such.
The basic principles are that the legal practitioner should act
- with independence and integrity,
- n the best interests of their clients and maintain proper standards of work;
legal practitioners who exercise the rights of audience before a court shall
- comply with duties rightfully owed to the court, and that,
- subject to legal obligations of the practitioners, that as officers of the court, that the affairs of their clients shall be kept confidential.
Limited Partnerships and MDPs
The Authority will engage in public a consultation process and report to the Minister on the establishment of legal partnerships and multi-disciplinary practices. Restrictions on direct access to barristers in contentious business;
- education and training arrangements for legal practitioners;
- possible unification of the solicitors’ and barristers’ profession;
- possible creation of a profession of conveyancer.
Criticisms from the legal profession included a threat to independence, lack of consultation, high levies on barristers, conflicts of interest in multi-disciplinary practice, reduction of pool of barristers to work pro bono.
The members of the Legal Services Regulatory Authority are appointed by the Government, following a resolution approving appointment by Dáil Éireann and Seanad Éireann. One of the lay members is appointed as chairperson.
The Government must satisfy themselves that appointees have knowledge or expertise in relation to, one or more of:
- the provision of legal services;
- legal education or training;
- competition law and policy;
- maintenance of standards in professions regulated by a statutory body;
- dealing with complaints against members of a statutory regulated profession;
- business and commercial matters;
- needs of legal consumers.
The majority which shall be laypersons shall be nominated as follows: one by the Citizens Information Board, one by the Higher Education Authority, one by the Competition Authority, one by the Human Rights Commission, one by the Institute of Legal Costs Accountants, one by the Consumers’ Association of Ireland, one by the Bar Council, one by the Legal Aid Board, one by King’s Inns, two by the Law Society.
Nominating bodies are up to a point a primary nominee of one sex and a substitute of the other. The Law Society are to nominate one man and one woman. Each is to satisfy itself in relation to having competence in the above area.
The Government, in appointing the members of the Authority, are to have regard to the objective of there being no fewer than four members who are men and no fewer than four members who are women. The Government shall appoint a substitute nominee rather than a primary nominee, but only where necessary in order to achieve the gender balance.
Persons are appointed to the Authority for four years. Persons may be reappointed but the aggregate period of office is not to exceed eight years. Membership is part-time and paid subject to the approval of the Minister for Public Expenditure and Reform. There is provision for staggering of the periods of office of one board member.
A member of the Authority may be removed by the government on grounds of incapacity, ill health, stated misbehaviour, conflict of interest or being unfit or unsuitable to discharge the office.
Functions of Authority
The functions of the Authority are
- regulating the provision of legal services by legal practitioners,
- ensuring the maintenance and improvement of standards in the provision of services.
This includes keeping under review and making recommendations relating to
- admission requirements, availability and quality of the education, including the curriculum arrangements for legal education,
- the teaching of legal ethics, ADR, advocacy, negotiation skills and the methods by which, persons and by whom, such education and training is provided;
They are to keep under review the policies of the Law Society in relation to the admission of the persons as solicitors and the Bar Council in relation to the admission of barristers, including accreditation of foreign legal practitioners, movement between professions;
- professional codes;
- and organisation of the provision of legal services.
- They may disseminate information in relation to education and accreditation requirements,
- specify nature and minimum levels of professional indemnity insurance,
- establish a system for the supervision of accounts of legal practitioners, who hold client money and inspection of legal practitioners,
- keep Minister informed of developments in respect of the provision of legal services and make recommendations to assist Minister in coordinating and developing policy,
- undertake commission or assist in research projects and activities in respect of the provision of legal services, which in the opinion of the Authority may promote an improvement in standards for the provision of services, public awareness and make recommendations to the Minister arising from those projects or activity.
Performance of Functions
The Authority is to be independent in the performance of its functions. It is to have regard to the objectives of protecting and promoting the public interest, supporting the proper and effective administration of justice, protecting and promoting the interests of consumers relating to the provision of legal services, promoting competition in the provision of legal services, encouraging an independent, strong and effective legal profession, maintaining and promoting adherence to the professional principles specified below.
The functions of an Authority may be performed through a chief executive and members of staff authorised by the Authority. The Authority may establish committees to assist and advise it in relation to any of its functions or to perform its functions.
In appointing members to a committee, the Authority is to have regard to the range of qualifications and experience necessary for the proper and effective discharge of the functions of the committee and to have regard to the desirability of there being a gender balance, as is appropriate. The acts of the committee are subject to confirmation by the Authority.
The Authority is, as soon as practicable, after establishment and thereafter every three years, prepare and submit a strategic plan for the following three year period. The plan is to set out key objectives, outputs and related strategies of the Authority including use of resources. A copy of the strategic plan is to be placed before the Oireachtas.
The Authority is to report annually to the Minister. It shall give to the Oireachtas Joint Committee on Justice, or equivalent Committee, information in respect of the performance of the Authority of its functions and its policies and respective performance specific documents and accounts prepared by it, annual reports.
The Authority is to appoint a chief executive. The chief executive is to hold office for such period agreed and specified. Remuneration is determined by the Authority with the approval of the Minister for Public Expenditure and Reform.
The chief executive implements the policies and decisions of the Authority, manages and controls generally the Authority’s staff, administration and business. He or she is responsible to the Authority for the performance of his functions, and for such other functions as may be required by the Authority.
The chief executive may be removed or suspended for stated reasons. The Chief executive may not be a member of the Authority or a committee but may, attend meetings, and shall be entitled to speak and give advice.
The chief executive is accountable to the Authority for the performance of his functions including those he may have delegated to his staff. The Authority is to appoint such staff as it may determine. The approval of the Department of Public Expenditure and Reform is required in relation to the terms and conditions of employment, grade, staff, etc.
The Authority is to prepare and approve a superannuation scheme for the benefit of its employees and officers. The scheme requires the approval of the Minister for Public Expenditure and Reform.
The chief executive is accountable to Oireachtas Committees in relation to accounts, the propriety of transactions, systems and procedures and any matter referred to in a special report of the Comptroller and Auditor General.
The chief executive may be required to attend before Dáil, Oireachtas Committees to account for the general administration of the Authority. Its chief executive is not to question or express opinions on the merits of any policy of the Government. He is not required to give evidence on matters, the subject of legal proceedings or decisions or determinations of the Authority in respect of a particular legal practitioner.
The Authority may prescribe fees to be paid in respect of the performance of its functions, provision of services, and carrying out activities. It may provide for exemptions from payments of fees, refunding of fees and waiving of fees. The Authority may recover fees as a debt by court proceedings if required.
The Authority may appoint Inspectors. Inspectors may carry out, at the direction of the Authority, inspections of legal practices. Where the Authority is to determine that a complaint is admissible and that there is a prima facie case for investigation of the complaint; as required for the purpose of undertaking its functions and ensuring compliance with the legislation.
Inspectors may attend at legal practitioner’s offices and require inspection of specified documents and category of documents, require the production of records. It may require information from banks in relation to the accounts of the practitioner.
If a practitioner or his employee fails to comply, without reasonable cause, with the requirement, then the Authority may apply to the High Court for an order requiring the practitioner to comply.
It is an offence for a practitioner to refuse, neglect, without reasonable cause to comply with requirements of an inspector or to destroy, deface, mutilate, alter or remove documents, records etc. with intent to prevent or interfere with the inspector carrying out its functions or to provide, knowingly, false or misleading information to an inspector.
At the end of each financial year, the Authority is to prepare and submit to the Minister, a report specifying the number of persons admitted to practice as solicitors during that year, and as barristers. It is to contain an assessment as to whether, having regard to the demand for the respective services and the need to ensure an adequate standard of education and training, the numbers admitted are consistent with the public interest of ensuring the availability of services at a reasonable cost.
The Authority is to consult with Law Society, the Bar Council, King’s Inns, and other appropriate persons in preparing the report.The bodies are to provide information in their possession as is reasonably requested for the purpose of preparation of the report. The Minister is to lay the report before the Oireachtas.
Codes of Practice
The Authority may, and at the request of the Minister shall prepare and public a code of practice for setting standards for the provision of a legal service. Subject to the Act, it may approve a professional code prepared by the professional body, in relation to legal services.
Before publishing or approving a code, the Authority may publish a draft and request representations from the public. After consultation and where relevant, having considered the representations, it shall submit a draft code, to the Minister for approval, with or without modifications.
There is a provision for amendment or revocation of a code of practice.
Reports by Authority
The Authority shall, following appropriate public consultation, prepare and furnish reports to the Minister in relation to education and training including on-going training, including the manner in which it is provided;
- unification of the solicitors’ profession and barristers’ profession;
- creation of a new profession of conveyancer;
- and such other matters as the Minister may request the Authority to report on.
The Minister may require further and other reports. The report on education and training is to be completed within one year of establishment of the Authority. It is to review the existing arrangements on education and training of legal practitioners and make recommendations such as it is appropriate in relation to the education and training, including accreditation of bodies providing the same.
The report in respect of the implication of the profession is to be provided within two years of the establishment. It is to contain details of arrangements in operation in other jurisdictions. It shall contain recommendations as to whether the profession should be unified in the public interest, the interest of competition, proper administration of justice and interest of consumers of legal services.
The report in relation to the profession of a conveyancer is to be provided within a period specified by notice to the Minister.
Where, on the application of the Authority, it is shown to the satisfaction of the High Court, that a legal practitioner or other person has contravened, provisions of legislation or a person who is a solicitor, or other person has contravened, the Solicitors Acts or regulations, the Court may prohibit the legal practitioner or another person from contravening the provisions.
Levies and Costs
A levy is to be paid by the Law Society; Bar Council; and barristers who are not members of the Law Library to the Authority, annually. At the end of each financial year. The Authority, with the consent of the Department of Public Expenditure and Reform, is to determine its costs and expenses of the Authority and the costs and expenses of the Disciplinary Tribunal. The expenses are to include all remuneration, superannuation costs, fees to consultants, premises, cost and other expenses.
The Authority is to determine the percentage of costs referable to complaint resolution and the breakdown of complaints between solicitors, barristers who are members of the Law Library, and barristers who were not members of the Law Library.
The Authority is to consider the respective percentage of complaints referable to Disciplinary Tribunal work, as between solicitors, Law Library members, and non-Law Library member barrister.
The amount of the levy payable in each year is the sum of the expenses of the Authority, the Disciplinary Tribunal, in respect of the previous financial year. There are provisions for the apportionment between the Law Society, the Bar Council and non-Law Library member barristers.
There is provision for apportionment of various types of expenses which seeks to make a fair and reasonable proportion as between the Law Society, Bar Council and barristers who are not members of the Law Library.
A levy assessment is made on the bodies. The relevant bodies are obliged to pay the levy within a specified period. In the case of barristers who are not members of the Law Library, the amount is generally apportioned equally and is recovered from such barristers directly.
The levy is not payable in respect of a legal practitioner in full-time service of the State. The Authority may make regulations in relation to the charging and recovery of the levy.