Code of Conduct
The Law Society of Ireland as the regulator of the solicitor’s profession has published a Guide to Professional Conduct of Solicitors based on accepted principles of good practice, policy and recommendation.
It is likely that the establishment of an independent regulator will lead to a more formal code of conduct. However, it is likely to be based on the principles of the existing Law Society code.
Failure by a solicitor to follow the rules may have statutory or disciplinary consequences. Breach of some of the rules may constitute a criminal offence.
Misconduct is defined in the Solicitors Act as the commission of serious offences. The contravention of the Solicitors Acts and regulations thereunder and certain other conduct tending to bring the solicitor’s profession into disrepute.
A finding of misconduct may result in sanctions being imposed on the solicitor by the Solicitors Disciplinary Tribunal or the High Court. See the sections on the procedure under the Solicitors Acts and under the newer Legal Services Regulation Act.
Former Disciplinary Provisions
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.
A Disciplinary Tribunal considers first whether there is a prima facie case. If none, no further action is taken. If there is a prima facie case, a right of appeal is available to the solicitor. If there is a prima facie case into alleged misconduct, an enquiry must be held.
Solicitor must be given notice of the enquiry and is entitled to natural justice. He may make an answer and give supporting evidence. He is entitled to fair procedures. The standard of proof will depend on the seriousness of the matter concerned. The more serious the matter, the higher the onus of proof required.
If there is no misconduct, this is the end of the matter. If there is a finding of misconduct which has not been answered satisfactorily a report is prepared and an application is brought to the High Court.
The Disciplinary Tribunal had power to summon witnesses, require discovery of evidence, ask questions on oath, require production of documents, et cetera. The Tribunal may regulate its own procedure but is bound to accord fair procedures and natural justice.
An application to the High Court, was required if the sanctions available to the Tribunal itself are sufficient. The Tribunal has power to censure and admonish and direct payments (not exceeding €6250). Direct payments by way of restitution to aggrieved parties subject to the above limits. It may direct the whole or part of the costs of the Society and persons appearing to be paid by the person concerned.
The Law Society publishes orders made by the disciplinary tribunal.
High Court Criteria
Where the question turns on the fitness of the person for practice the matter will be referred to the High Court. The High Court on considering the report may
- strike off the solicitor,
- suspend him from practice,
- prohibit him practicing at its own account or for a period
- restrict him from practising in a particular area of work
- censure him and require payment of a penalty.
The High Court orders are published.
The High court may consider the entire circumstances and may mitigate sanctions. It may require the solicitor to make restitution to an aggrieved party. It may make orders as to the cost of the proceedings.
Less Serious Complaints
The Law Society may investigate complaints on a number of bases short of misconduct. Where a complaint is made that fees charged are excessive, it must investigate the matter. If it so finds, it may direct the solicitor to refund or waive part of the costs. This is the case even if there is a valid contract in place in relation to the fee. The application can be made even outside the time when the application for taxation expires.
Complaints to the Law Society operates as a bar on legal proceedings until the complaint has been dealt with. The complainant may apply to court to proceed notwithstanding. An application can be made on the basis that services were inadequate in a material respect or not of the quality which could reasonably be expected. The Law Society must satisfy itself and in this case and the case of excessive fees that the complaint is not frivolous or vexatious.
The Law Society seeks to resolve the matter by agreement. Ultimately it may make a determination or direction if this is not possible. This remedy is in addition to civil claims for breach of contract or negligence by client against the solicitor.
Where the complaint is justified, it may direct the solicitor to take action as it directs. It may determine the issue of costs.