CONDUCT TENDING TO BRING THE PROFESSION INTO DISREPUTE HOW SOLICITORS ARE TREATED BY THEIR OWN REGULATORS SHEEHAN

Transcription

1 CONDUCT TENDING TO BRING THE PROFESSION INTO DISREPUTE HOW SOLICITORS ARE TREATED BY THEIR OWN REGULATORS BARRY SHEEHAN SOLICITOR

2 THE REGULATORS Superior Courts of Justice of Ireland Solicitors Disciplinary Tribunal Law Society of Ireland Independent Adjudicator of the Law Society Legal Services Regulatory Authority

3 SUPERIOR COURTS OF JUSTICE Chief Justice and The High Court Section 78 of the Supreme Court of Judicature (Ireland) Act 1877 unified then three discrete professions of solicitors, attorneys and proctors into Solicitors of the Court of Judicature Section 19(3) of the Courts of Justice Act 1924 transferred to the Office of Chief Justice all such jurisdiction in relation to solicitors as was lately exercised by the Lord Chancellor of Ireland and is at the passing of [the Courts of Justice Act 1924] exercised by the Lord Chief Justice of Ireland Section 14(3) of the Solicitors Act 1954 provided the Chief Justice or any judge of the High Court may, notwithstanding anything contained in [the Solicitors Act 1954], exercise any jurisdiction over solicitors which he might have exercised if [the Solicitors Act 1954] had not been passed

4 SUPERIOR COURTS OF JUSTICE The Court possess a disciplinary jurisdiction over solicitors, as being its officers. The jurisdiction, though it has been extended by statute, and by [rules of court], is inherent in the court, and is based upon the doctrine of contempt : Lord Halsbury, The Laws of England Exercised in a summary manner in respect of allegations of misconduct made on affidavit: criminal contempt defying a judge in open court; and using inappropriate language in court civil contempt breach of undertaking; wasted costs order; and deliver up papers

5 SUPERIOR COURTS OF JUSTICE Attorneys and Solicitors (Ireland) Act 1866 (29 & 30 Vict., c. 84) and Solicitors (Ireland) Act 1898 (61 & 62 Vict., c. 17) Does this pass constitutional muster? Articles and 50 of Bunreacht na heireann 1937 Interaction between Superior Courts of Justice, Solicitors Disciplinary Tribunal and Law Society of Ireland in relation to investigating allegations of misconduct: Myers v Elman [1940] AC 282 (HL) (Lord Atkin) Bank of Ireland v Coleman [2009] 3 IR 699 (SC) (Laffoy J.) ACC Loan Management v Barry [2015] IECA 224 [36-48] (Hogan J.) (decision per incuriam?)

6 SUPERIOR COURTS OF JUSTICE Interaction between Superior Courts of Justice, Solicitors Disciplinary Tribunal and Law Society of Ireland in relation to investigating allegations of misconduct (continued): Doctrine of res judicata: Henderson v Henderson (1843) 3 Hare 100 Cause of action estoppel: R. (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC146 Issue estoppel: McCauley v. McDermott [1997] 2 ILRM 486 Useful summary of the foregoing in McEvoy v Garda Siochana Ombudsman Commission [2016] IEHC 269 [32-34] (Barrett J.)

7 SUPERIOR COURTS OF JUSTICE Interaction between Superior Courts of Justice, Solicitors Disciplinary Tribunal and Law Society of Ireland in relation to investigating allegations of misconduct (continued): In re Weare [1893] 2 QB 439 (EWCA) (Lord Escher) (Solicitors Disciplinary Tribunal carries out the same function of the Master of the High when summary jurisdiction is invoked) In re Lilley [1892] 1 QB 759 (EWCA) 763 (Lindley LJ) (Court can therefore award costs where solicitor acquitted) In re a Solicitor [1934] 2 KB 463 (EWHC) (no appeal against an acquittal) Cf. section 11 of the Solicitors (Amendment) Act 1994

8 SOLICITORS DISCIPLINARY TRIBUNAL Originally, the Lord High Chancellor of Ireland appointed between 3 and 7 members of the Council of the then Incorporated Law Society of Ireland to constitute a statutory disciplinary committee, known simply as the Committee, for the purpose of hearing applications to strike off a solicitor for alleged misconduct under section 35 of the Solicitors (Ireland) Act 1898 Subsequently, the Council, with the approval of the Chief Justice of Ireland, was allowed to appoint between 7 and 10 members of Council to constitute a statutory disciplinary committee, now known as the Disciplinary Committee, for the purpose of hearing applications to strike off a solicitor for alleged misconduct under section 14 of the Solicitors 1954 The Supreme Court found self-regulation to be unconstitutional: In re Solicitors Act 1954 [1960] IR 239 Accordingly, the President of the High Court was tasked with appointing between 7 and 10 people to constitute a statutory disciplinary committee, still known as the Disciplinary Committee, for the purpose of hearing applications to strike off a solicitor for alleged misconduct under section 7 of the Solicitors (Amendment) Act 1960

9 SOLICITORS DISCIPLINARY TRIBUNAL Next, the President of the High Court was tasked with appointing up to 10 practicing solicitors and up to 5 lay members to constitute a statutory disciplinary committee, now known as the Solicitors Disciplinary Tribunal, for the purpose of hearing applications to strike off a solicitor for alleged misconduct under section 7 of the Solicitors (Amendment) Act 1960 (as substituted by section 16 of the Solicitors (Amendment) Act 1994) Finally, the President of the High Court was tasked with appointing up to 20 practicing solicitors and up to 10 lay members to constitute a statutory disciplinary committee, still known as the Solicitors Disciplinary Tribunal, for the purpose of hearing applications to strike off a solicitor for alleged misconduct under section 7 of the Solicitors (Amendment) Act 1960 (as substituted by section 16 of the Solicitors (Amendment) Act 1994 and further amended by section 8 of the Solicitors (Amendment) Act 2002) What is the Solicitors Disciplinary Tribunal? Extension of the Office of President of the High Court? Independent statutory tribunal?; or Emanation of the Law Society of Ireland?

10 SOLICITORS DISCIPLINARY TRIBUNAL What is misconduct? Originally a common law concept: Allison v General Council of Medical Education and Registration [1894] 1 QB 750 Now a statutory concept specifically defined by legislation Originally defined, by the (now repealed) section 14(1)(b) of the Solicitors Act 1954, as meaning: misconduct including conduct tending to bring the solicitors' profession into disrepute; contravening a provision of the Solicitors Act 1954 or an order or regulation made thereunder; having been convicted of treason or of a felony or misdemeanor; and having been convicted outside Ireland of a crime or offence which would be a felony or misdemeanor if committed in the Ireland.

11 SOLICITORS DISCIPLINARY TRIBUNAL Subsequently defined under section 3 of the Solicitors (Amendment) Act 1960 (as amended by s 24 of the Solicitors (Amendment) Act 1994 w.e.f. 4 November 1994 and further amended by s 7 of the Solicitors (Amendment) Act 2002 w.e.f 1 November 2002) as including: the commission of treason or a felony or a misdemeanor; the commission, outside Ireland, of a crime or an offence which would be a felony or a misdemeanor if committed in Ireland; the contravention of a provision of the Solicitors Acts 1954 to 2002 or any order or regulation made thereunder, in the course of practice as a solicitor (i) having any direct or indirect connection, association or arrangement with any person (other than a client) whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of section 55 or 56 or section 58 (which prohibits an unqualified person from drawing or preparing certain documents), as amended by the Act of 1994, of the Principal Act, or section 5 of the Solicitors (Amendment) Act, 2002, or (ii) accepting instructions to provide legal services to a person from another person whom the solicitor knows, or upon reasonable enquiry should have known, is a person who is acting or has acted in contravention of those enactments, any other conduct tending to bring the solicitors' profession into disrepute.

12 SOLICITORS DISCIPLINARY TRIBUNAL Distinction between felony and misdemeanor was abolished by section 3 of the Criminal Law Act 1997 w.e.f. 22 July 1997 Statutory definition not amended to take account of change to collective citation by section 1(5) of the Civil Law (Miscellaneous Provisions) Act 2008 and section 1(7) of the Civil Law (Miscellaneous Provisions) Act 2011 Supreme Court has recently applied the O Laoire v Medical Council (HC, 27 January 1995) caselaw to the catchall limb of any other conduct tending to bring the solicitors' profession into disrepute : Carroll v Law Society of Ireland [2016] IESC 49 [28-29] (McKechnie J.): Conduct complained of must involve some degree of moral turpitude, fraud or dishonesty in a professional respect Standard of proof v burden of proof: Walker v Law Society of Ireland [2007] 3 IR 581 (HC) 601 (Finnegan P.) Applicant must prove every relevant fact, save those admitted by the respondent solicitor, beyond a reasonable doubt and establish, again beyond a reasonable doubt, that such facts, as so proved, constitute misconduct

13 LAW SOCIETY OF IRELAND Disciplinary functions delegated by Council to Complaints and Client Relations Committee and Regulation of Practice Committee under annual Regulations of the Council of the Law Society of Ireland pursuant to section 73 of the Solicitors Act 1954 (as amended) Inadequate legal services under section 8 of the Solicitors (Amendment) Act 1994 (w.e.f. 4 November 1994) Charging excessive fees under section 9 of the Solicitors (Amendment) Act 1994 (w.e.f. 4 November 1994) Misconduct under section 6A of the Solicitors (Amendment) Act 1960 (as inserted by s 36 of the Civil Law (Miscellaneous Provisions) Act 2008 w.e.f. 20 July 2008): Section 7 of the Solicitors (Amendment) Act 1960 (as substituted by s 17 of the Solicitors (Amendment) Act 1994 w.e.f. 12 May 1995 and amended by s 9 of the Solicitors (Amendment) Act 2002 w.e.f. 1 December 2002) Section 12(c) of the Solicitors (Amendment) Act 1994 (as amended by s 14 of the Solicitors (Amendment) Act 2002 w.e.f. 1 November 2002); Section 14A of the Solicitors (Amendment) Act 1994 (as inserted by s 40 of the Civil Law (Miscellaneous Provisions) Act 2008 w.e.f. 20 July 2008); Section 14B of the Solicitors (Amendment) Act 1994 (as inserted by s 41 of the Civil Law (Miscellaneous Provisions) Act 2008 w.e.f. 20 July 2008); and Section 14C of the Solicitors (Amendment) Act 1994 (as inserted by s 42 of the Civil Law (Miscellaneous Provisions) Act 2008 w.e.f. 20 July 2008)

14 LAW SOCIETY OF IRELAND Section 8 of the Solicitors (Amendment) Act 1994 (as amended by s 39(b) of the Civil Law (Miscellaneous Provisions) Act 2008 w.e.f. 1 January 2009): Only client (or his agent) may make complaint to Law Society of Ireland Client is a statutory concept defined by section 2 of the Solicitors (Amendment) 1994: unless the context otherwise requires includes the personal representative of a client and any person on whose behalf the person who gave instructions was acting in relation to any matter in which a solicitor or his firm had been instructed; and includes a beneficiary to an estate under a will, intestacy or trust Condon v Law Society of Ireland [2010] IEHC 52 v Sandys and Brophy v Law Society of Ireland [2016] IECA 396 [48-59] (Finlay Geoghegan J.) Regulation Department/Complaints and Client Relations Committee legally obliged to investigate complaint unless satisfied it is frivolous or vexatious : frivolous and vexatious are legal terms. so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious : Farley v Ireland (SC, 1 May 1997) (and applied in Nowak v Data Protection Commissioner [2016] IESC 18 [15] (O Donnell)

15 LAW SOCIETY OF IRELAND Section 8 of the Solicitors (Amendment) Act 1994 (continued): Must relate to matter which solicitor/firm was actually instructed by client Legal services at issue must be both inadequate in a material aspect and not of the quality that could reasonably be expected of the solicitor/firm a subjective not objective test? Complaint must be made within 5 years of legal service at issue Regulation Department/Complaints and Client Relations Committee obliged to first take all appropriate steps to resolve the matter by agreement : O Driscoll v Law Society of Ireland [2007] IEHC 352 [40] (McKechnie J.) Why no mediation offered?

16 LAW SOCIETY OF IRELAND Section 8 of the Solicitors (Amendment) Act 1994 (continued): Where complaint is upheld the Complaints and Client Relations Committee can, if they are of [the] opinion that it would in the circumstances be appropriate to do so after having regard to the availability of alternative remedies for the client: determine if respondent solicitor is entitled to any costs for the work done and, if so, limit the extent of costs; direct the respondent solicitor to refund or waive, as appropriate, the said costs; direct the respondent solicitor to rectify, at his own expense, any error, omission or other deficiency; direct the respondent solicitor take, at his own expense, such other action in the interests of the client as the Society may specify; direct the respondent solicitor to pay up to 3,000 to the client without prejudice to his right to sue for professional negligence; and/or direct to respondent solicitor to deliver up files to another solicitor, but not the client directly Not being satisfied with outcome of litigation cannot be grounds for a client to complain Solicitor cannot get around limitation placed on his costs by the Society by simply proceeding thereafter to taxation Cf. section 9(4) of the Solicitors (Amendment) Act 1994

17 LAW SOCIETY OF IRELAND Society refuses to make rules of procedure Subsection [(8) of section 8 of the Solicitors (Amendment) Act 1994] should be amended to provide that the criteria or the ground rules should be published and made part of whatever order is to be made, either by the Minister [for Justice] or by the President of the High Court, so that clients who make complaints know the applicable criteria. Otherwise, we are in a Kafkaesque scenario where the solicitor is on trial in front of an investigative committee of the Law Society, the client is involved in the trial seeking an adjudication in his or her favour, and neither the client nor the solicitor will know on what basis the adjudication will be made, what criteria are applicable or what will be relevant to say to the committee about the complaints. That is bizarre. It is a major flaw in this section and there is a similar flaw in section [9 of the Solicitors (Amendment) Act 1994]. This is neither a political nor an academic point but a serious issue. Alan Shatter TD, Select Committee on Legislation and Security of Dáil Éireann, 27 April 1994

18 LAW SOCIETY OF IRELAND Section 9 of the Solicitors (Amendment) Act 1994: Only client (or his agent) may make complaint to Law Society of Ireland Client is a statutory concept defined by section 2 of the Solicitors (Amendment) 1994: unless the context otherwise requires includes the personal representative of a client and any person on whose behalf the person who gave instructions was acting in relation to any matter in which a solicitor or his firm had been instructed; and includes a beneficiary to an estate under a will, intestacy or trust Condon v Law Society of Ireland [2010] IEHC 52 v Sandys and Brophy v Law Society of Ireland [2016] IECA 396 [48-59] (Finlay Geoghegan J.) Regulation Department/Complaints and Client Relations Committee legally obliged to investigate complaint unless satisfied it is frivolous or vexatious : frivolous and vexatious are legal terms. so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious : Farley v Ireland (SC, 1 May 1997) (and applied in Nowak v Data Protection Commissioner [2016] IESC 18 [15] (O Donnell)

19 LAW SOCIETY OF IRELAND Section 9 of the Solicitors (Amendment) Act 1994 (continued): Respondent solicitor must have issued a bill of costs that is excessive Complaint must be made within 5 years of date of issue of bill of costs Cf. the 1 year limitation period under section 2 of the Solicitors (Ireland) Act 1849 (12 & 13 Vict., c. 53) Regulation Department/Complaints and Client Relations Committee obliged to first take all appropriate steps to resolve the matter by agreement : O Driscoll v Law Society of Ireland [2007] IEHC 352 [40] (McKechnie J.) Why no mediation offered?

20 LAW SOCIETY OF IRELAND Solicitor cannot issue or proceed with, as appropriate, debt collection proceedings against client before investigation is completed Investigation can be circumvented by setting down a bill of costs for a taxation of costs on a solicitor and own client basis before a Taxing Master of the High Court Cf. section 8(4) of the Solicitors (Amendment) Act 1994 Where complaint is upheld the Complaints and Client Relations Committee can: direct the respondent solicitor to refund or waive, as appropriate, costs to an extent Society also refuse to make rules of procedure: Sandys and Brophy v Law Society of Ireland [2016] IECA 396 [26-30] (Finlay Geoghegan J.)

21 LAW SOCIETY OF IRELAND It is essential to protect clients of solicitors as consumers that there should not be secret ground rules worked out by a Law Society committee to apply to the adjudication of complaints. If solicitors against whom complaints are made are also to be treated fairly, complaints against them should not be adjudicated on using secret ground rules developed by a committee of five or six members of the Law Society who may have an insight into areas of law with which they are familiar but may have no insight into other areas. The section states that the society will make rules of procedure in relation to complaints. That is only about procedure, about how one will present a case. Nothing in this section would indicate the criteria or the ground rules that will be applied by the Law Society in making determinations on bills that are alleged to be excessive. The person who has complained about a solicitor, who feels badly done by having been charged excessively, will have no idea when they make the complaint what criteria will be applied by this committee in adjudicating on the complaint. Alan Shatter TD, Select Committee on Legislation and Security of Dáil Éireann, 27 April 1994

22 LAW SOCIETY OF IRELAND Section 6A of the Solicitors (Amendment) Act 1960 (as inserted by s 36 of the Civil Law (Miscellaneous Provisions) Act 2008 w.e.f. 20 July 2008) states [f]or the avoidance of doubt, it is hereby declared that the Society have, and always have had, a power to investigate alleged misconduct by a solicitor Where minor misconduct is found, the Society can issue a reprimand in writing in such terms as the Society deem appropriate and reasonable in addition to ordering the respondent solicitor to pay costs up to 3,000: section 12(1)(b) and 12(I)(c) of the Solicitors (Amendment) Act 1994 (as substituted by s 14 of the Solicitors (Amendment) Act 2002 w.e.f. 1 November 2002)

23 LAW SOCIETY OF IRELAND Society is wrongly applying the civil standard of proof to its investigations: In re a Solicitor (D.C.) [1993] QB 66 (EWHC) 81 (Lord Lane CJ) Campbell v Hamlet [2005] 3 All ER 1116 (EWPC) 1121 (Lord Brown) Walker v Law Society of Ireland [2007] 3 IR 581 (HC) 601 (Finnegan P.) Solicitors Regulation Authority v Solicitors Disciplinary Tribunal, Arslan and The Law Society of England and Wales [2016] EWHC 2862 (Admin)

24 LAW SOCIETY OF IRELAND Society is also wrongly allocating the burden of proof to the respondent solicitor: Order 99, rule 11(3) of the Rules of the Superior Courts 1986 (as amended) which provides [o]n a taxation as between solicitor and own client, all costs incurred with the express or implied approval of the client evidenced by writing shall be conclusively presumed to have been reasonably incurred, and where the amount thereof has been so expressly or impliedly approved by the client, to have been reasonable in amount. Barristers Professional Conduct Tribunal applies the criminal standard of proof to its investigations and allocates the burden of proof to the complainant

25 LAW SOCIETY OF IRELAND Excessive delegation of functions from the Council to the Regulation Department under the annual Regulation of the Council of the Law Society of Ireland and section 73(10) of the Solicitors Act 1954 (as amended) Council members obliged to keep confidential all matters coming within their knowledge arising from their membership of Council: regulation 24(Confidentiality) of the Regulations of Council of the Law Society of Ireland 2015/2016 Yet not allowed to discuss at Council the substance of any regulatory case even one which has already been concluded: Regulation 25(Regulatory Matters) of the Regulations of Council of the Law Society of Ireland 2015/2016

26 LAW SOCIETY OF IRELAND Members of Council, who are democratically-elected, cannot even make a public statement on a matter pertaining to the Council or to the Society without the leave of an officer of the Society authorised by the Council for that purpose : Regulation 23(Public Statements) of the Regulations of Council of the Law Society of Ireland 2015/2016. Who chooses the solicitor members and lay representatives to sit on the Complaints and Client Relations Committee and Regulation of Practice Committee? Why are no retired judges, or barristers with regulation law experience, asked to sit on these Committees? Section 73(3) of the Solicitors Act 1954 (as amended) merely requires that lay people be persons who are not solicitors

27 LAW SOCIETY OF IRELAND The Committees are deemed to be a specialist tribunal attracting the doctrine of curial deference: Fitzgibbon v Law Society of Ireland [2014] IESC 48 what training is actually provided to Committee members? Ultra vires doctrine in relation to delegated legislation: Regulations made under section 66 of the Solicitors Act 1954 (as amended) v section 71 of the Solicitors Act 1954 (as amended); and Solicitors Accounts Regulations 2014 v Solicitors (Money Laundering and Terrorist Financing) Regulations 2016

28 INDEPENDENT ADJUDICATOR OF THE LAW SOCIETY Solicitor (Adjudicator) Regulations 1997 to 2005 Section 15 of the Solicitors (Amendment) Act 1994 Section 73 of the Solicitors Act 1954 Sections 37 and 38 of Legal Services Ombudsman Act 2009 Section 5 and Schedule 2 of the Legal Services Regulation Act 2015

29 LEGAL SERVICES REGULATORY AUTHORITY Legal Services Regulation Act 2015 Not dealing with complaints yet: Legal Services Regulation Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 383 of 2016); Legal Services Regulation Act 2015 (Establishment Day) Order 2016 (S.I. No. 507 of 2016); and Legal Services Regulation Act 2015 (Sections 118 to 120) (Commencement) Order 2016 (S.I. No. 630 of 2016)

30 PRACTICAL RECOMMENDATIONS An honest man nearly always thinks justly Representative role of the Society has been made subordinate to its regulatory role Insist upon the Regulation Department formally confirming: Jean-Jacques Rosseau the precise legal basis, by reference to the exact provisions of the Solicitors Acts 1954 to 2015 and/or the regulations made thereunder, upon which the complaint is being treated by the Society; and each and every allegation to which a response is required by the Society Legal entitlement to this information under Article 6(3)(a) of the European Convention on Human Rights: Albert and Le Compte v Belgium (1983) 5 EHRR 553

31 PRACTICAL RECOMMENDATIONS Exercise caution when admitting any facts in open correspondence with the Regulation Department which would otherwise have to be proved by the complainant Society s committees have no power to compel attendance: section 10A of the Solicitors (Amendment) Act 1994 (as inserted by s 13 of the Solicitors (Amendment) Act 2002 w.e.f. 1 November 2002) When requested to attend before either the Complaints and Client Relations Committee or the Regulation of Practice Committee insist upon the Regulation Department formally confirming in advance: the names of the members of the particular division of the Committee to which you have been invited to attend; in respect of solicitor members, what training did they receive from the Society or what experience do they have in private practice in relation to regulation law, especially as it affects solicitors; the relevant member of the Regulation Department will not address or sit with the Committee at any stage in your absence; and your constitutional right to cross-examine witnesses will be observed (where necessary) Consider taking a judicial review on the standard of proof currently observed by the Society, the allocation of the burden of proof and the failure to make rules of procedure dealing with complaints

32 BARRY SHEEHAN SOLICITOR 26 Marlboro Street Cork