person may not hold himself as a solicitor or provide legal advice for consideration unless he is a practising solicitor and on the role of solicitors. He must not be suspended or have given an undertaking that he will not practise to the High Court.
A solicitor must be both entered in the register qualified and hold a current practising solicitor’s certificate. Holding a practising certificate requires ongoing compliance with requirements including accounting obligations, continuous professional developments and insurance obligations.
Where it is alleged that a person is acting as a solicitor who is unqualified, the Law Society is entitled to issue a certificate as to the position which it is presumptively valid until the contrary is shown.
It is an offence to hold oneself out as a solicitor while being unqualified. The person need not intend to hold himself out as a solicitor. The doing of acts which may only be undertaken by a qualified solicitor infringes the provision.
Proceedings may be taken to restrain a person from acting as a solicitor without being so qualified. It is an offence subject to trial summarily or on indictment.
It is an offence for a person who is unqualified to
- the drawing or preparing of a document relating to real or personal estate or any legal proceeding,
- the procuring or attempting to procure the execution by an Irish citizen of a document relating to—
- real or personal estate, or movable or immovable property, situate or being outside the State and the United Kingdom, or
- any legal proceeding, actual or in contemplation, of which the subject-matter is any such estate or property,
- the making of an application, or the lodging of a document for registration, under the Registration of Title Act, 1891, or any Act amending that Act, at the Land Registry or to or with a local registering authority,
- the taking of instructions for, or drawing or preparing of, documents on which to found or oppose a grant of probate or letters of administration.
The restriction does not apply to commercial or mercantile documents such as share transfers, bonds, debentures and powers of attorney.
There are exemptions on the above provisions including acts done not in expectation of any fee or award.
- acts done by barristers
- acts done by public officers in the course of their duty.
- acts done by diplomatic and consular officers
- acts done by notary publics as such
- acts consisting of engrossing documents only
- acts done by persons in the employment of a solicitor or barrister while acting in the course of employment and under their direction.
Certain breaches of the above legislation are subject to disciplinary proceedings by the Law Society. A solicitor who explicitly carries on business without a practising certificate is himself subject to discipline as such.
Practising with Non-Solicitors
A solicitor may not act as agent for a non-qualified person. The provision effectively prohibits solicitors acting in partnership or in agency relationships with any persons other than solicitors.
There is provision legislation for mandating of multidisciplinary partnerships by regulation. The regulations have not been made.
It is an offence to knowingly employ a solicitor who is not qualified such as by reason of being stuck off it suspended from practice or giving an undertaking not to practice. It is an offence to practice as a solicitor without a valid practising certificate which is in force.
A person who is not qualified as a solicitor may not recover fees. This is on the basis that there is a total failure of consideration as the solicitor is legally unable to provide the services contract been provided.
There is limited scope for exercise of disciplinary jurisdiction over persons who are not in fact solicitors. If however a person purports to be a solicitor, the jurisdiction may be available.
Practising Cert Issues
Most solicitors are required to have a practicing certificate. The regulations make certain exemptions. A solicitor in the full-time service of the State need not hold a practising certificate. A solicitor who is employed full-time to provide conveyancing services for his employer who is not a solicitor is exempted.
A practicing certificate must be renewed annually. An application is made to the Law Society who may grant or refuse a certificate. Provided the solicitor meets the relevant criteria, he is entitled to a certificate. A certificate may be issued subject to condition.
There are certain grounds which disentitle a solicitor to a certificate. Details of these are set out below. Where question arises, an inquiry may be made. These include the following
He has not held the practising certificate for more than 12 months; this is not an automatic ground of this qualification.
- the solicitor lacks mental capacity.
- the solicitor has more than one place of business and having been invited by the Law Society to show he has adequate supervisions has failed to do so.
- he fails to give an explanation regarding his conduct in respect of a matter which is sufficient and satisfactory
- an attachment or committal has been made against him by court.
- a judgment or levy has been levied against him which is unsatisfied.
- he has failed to satisfy the Law Society as to his physical or mental health.
- he failed to satisfy the Law Society in the circumstances including his financial status, he should be issued a practicing certificate.
Refusal or Removal of Practising Cert
The jurisdiction to refuse a certificate, is a public law jurisdiction. In the case of many of the above grounds, it would not be necessarily appropriate to refuse a certificate. A certificate may be issued subject to conditions. The circumstances should be investigated, and a proper decision reached. There is a right to appeal to the High Court in respect of a refusal of a certificate or attachment of condition.
A practising certificate may be subject to conditions or may be suspended. It may be subjected to conditions mid licensing year. An application is required.
The Law Society has power to impose conditions based on the grounds above. They are to come into effect 21 days after notification. The certificate must be surrendered and reissued with the restrictive condition. There is an appeal to the President at the high court.
A suspension of a practising certificate may be ordered by the High Court. If a solicitor is adjudicated bankrupt, a practicing certificate was suspended. This has been amended.
Solicitors may be disciplined directly by the courts because of their role as officers of the court. The jurisdiction is exercised summarily under a short form procedure. However, because it impacts upon the livelihood and good name, the solicitors entitled to proper opportunity to present his case and defend himself.
The Solicitor Disciplinary Tribunal consisted of a mixture of solicitors and non-solicitors appointed to represent the public interest. They were appointed for five year term. There were two divisions comprising three members. Each consisted of two solicitor members and a lawyer. The LSRA now undertake disciplinary matters.
Misconduct on the part of the solicitor may include commission of an offence, contravention of the solicitor’s legislation or orders under it. or conduct tending to bring the solicitor’s profession into disrepute.
There is a procedure by which a solicitor may request his name to be removed the register. A solicitor who has been removed from the rolls may be reinstated on his own application.
Notice must be given to the Law Society which may appear and oppose it The prior circumstances of the cessation of practice must be considered.