25.—Subject to this Part of this Act, a person shall not be capable of being bound by indentures of apprenticeship unless— (a) he has attained the age of 17 years, (b) he has duly attended such course or courses of education or training (or both) as may be prescribed pursuant to section 40 (as amended by the Solicitors (Amendment) Act, 1994) of this Act, (c) he has passed such examination or examinations as may be prescribed pursuant to section 40 (as amended by the Solicitors (Amendment) Act, 1994) of this Act, (d) he has obtained the written consent of the Society under section 27
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(2)(as substituted by the Solicitors (Amendment) Act, 1994) of this Act, and (e) he has complied with any requirements as may be prescribed as to admission to apprenticeship, or compliance therewith has been waived as may be prescribed.”.
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Term of indentures (section 26 of Principal Act).
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42.—The Principal Act is hereby amended by the substitution of the following section for section 26: “Term of indentures.
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26.—(1) The Society may by regulations provide for the term or terms (not to exceed two years) of service under indentures of apprenticeship of persons (including law clerks) or specified categories of persons seeking to be admitted as solicitors and any such regulations shall apply to indentures of apprenticeship existing at the date on which such regulations come into effect.
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(2)On the date which is six months after the coming into operation of this section, or the coming into effect of regulations made under subsection (1) of this section, whichever is the sooner, the provisions of the Second Schedule to this Act shall cease to have effect.
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(3)In this section ‘law clerk’ means a person who has satisfied the Society— (a) that he has for a continuous period of at least five years been a bona fide clerk to a practising solicitor or solicitors, (b) that he has, during such period, been bona fide engaged in the transaction and performance under the direction and supervision of a practising solicitor or solicitors of such legal business as the Society are satisfied was of a sufficiently responsible nature, and (c) that he has diligently served as such clerk.”.
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Evidence of education, employment and character (section 27 of Principal Act).
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43.—The Principal Act is hereby amended by the substitution of the following section for section 27: “Evidence of education, employment and character.
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27.—(1) Before a person becomes bound by indentures of apprenticeship, he shall give notice to the Society of his intention so to do and shall furnish the Society with such evidence as may be prescribed of his previous education and employment record and of his character.
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(2)Where the Society are satisfied with the evidence furnished under subsection (1) of this section by a person seeking to become bound by indentures of apprenticeship and with any information obtained from any enquiries they deem it proper to make and are satisfied that that person has complied with the provisions of paragraphs (a), (b), (c) and (e) of subsection (1) of section 25 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act, the Society shall issue their written consent to such person becoming bound by indentures of apprenticeship.
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(3)Where the Society are not satisfied with the evidence furnished under subsection (1) of this section by a person seeking to become bound by indentures of apprenticeship, the Society may decide to refuse to issue their written consent under subsection (2) of this section to such person becoming bound by indentures of apprenticeship, and where the Society so decide they shall, as soon as practicable, send a notice in writing to that person stating the decision, the date thereof and the reasons therefor.
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(4)A person to whom a decision made under subsection (3) of this section relates may, within a period of two months from the date of receipt by him of notice in writing stating that decision, apply to the President of the High Court to rescind that decision, and the President of the High Court, on hearing such application and on directing such further enquiries as he may think fit, may by order— (i) confirm that it was proper for the Society to make that decision, or (ii) rescind that decision and direct the Society to issue their written consent under subsection (2) of this section to such person becoming bound by indentures of apprenticeship.
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(5)The registrar shall refuse to register indentures of apprenticeship produced to him under section 28 of this Act unless the indentures are accompanied by a consent issued under this section and dated not earlier than six months before the date of the indentures.
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(6)Service of an apprentice under indentures of apprenticeship of which registration has been refused under this section shall be deemed not to be good service by the apprentice under his indentures.”.
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Restriction on solicitor taking or retaining apprentice (section 29 of Principal Act).
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44.—The Principal Act is hereby amended by the substitution of the following section for section 29: “Restriction on solicitor taking or retaining apprentice.
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29.—(1) Only a practising solicitor may take an apprentice under indentures of apprenticeship.
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(2)A practising solicitor who has not at some time been in continuous practice as a solicitor for a period of at least five years shall not, without the written consent of the Society, take an apprentice.
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(3)Where a solicitor, who has taken an apprentice under indentures of apprenticeship the term of which is unexpired, ceases to practise or to be a solicitor qualified to practise or becomes employed as an assistant or clerk by another solicitor, he shall not, without the written consent of the Society, retain that apprentice for longer than six months thereafter.
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(4)Where a solicitor has taken or retains an apprentice under indentures of apprenticeship in contravention of the foregoing provisions of this section, service or continued service by that apprentice under such indentures of apprenticeship shall be deemed not to be good service, unless the Society direct otherwise.
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(5)In this section and in sections 26 , 32 , 36 , 40 , 43 and 44 (as substituted by the Solicitors (Amendment) Act, 1994) of this Act ‘practising solicitor’ means a solicitor engaged full-time in the provision of legal services as— (a) a sole practitioner, or (b) a partner in a firm of solicitors, or (c) a solicitor in the whole time employment of a body corporate, or (d) a solicitor in the full-time service of the State within the meaning of section 54
\n
(3)(as substituted by the Solicitors (Amendment) Act, 1994) of this Act.”.
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Assignment of indentures on death of solicitor, etc. (section 32 of Principal Act).
\n
45.—The Principal Act is hereby amended by the substitution of the following section for section 32: “Assignment of indentures on death of solicitor, etc.
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32.—Where, before the expiration of the term for which an apprentice is bound by indentures of apprenticeship— (a) the solicitor concerned dies or ceases to practise as a solicitor, or (b) the indentures of apprenticeship are cancelled by mutual consent, or (c) the indentures of apprenticeship are discharged by virtue of an order of the Society or of any court or otherwise, the apprentice may, with the written consent of the Society, be bound by an assignment of the indentures of apprenticeship or by fresh indentures of apprenticeship to another practising solicitor for the residue of the said term.”.
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General power to discharge indentures (section 33 of Principal Act).
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46.—The Principal Act is hereby amended by the substitution of the following section for section 33: “General power to discharge indentures.
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33.—(1) Where the Society are of opinion that indentures of apprenticeship ought to be discharged, the Society may, after due notice to, and after due consideration of any submissions from, each party to the indentures of apprenticeship, by order discharge the indentures of apprenticeship on such terms (if any) as they think fit, and determine what period (if any) of service by the apprentice under the indentures of apprenticeship should be deemed good service.
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(2)Where the Society make an order pursuant to subsection (1) of this section, the Society shall, as soon as practicable, send a notice in writing to each party to the indentures of apprenticeship stating the terms of the order, the date thereof and the reasons therefor.
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(3)A party to indentures of apprenticeship, the subject of an order of the Society made pursuant to subsection (1) of this section, may, within a period of two months from the date of receipt by him of notice in writing pursuant to subsection (2) of this section, apply to the President of the High Court to rescind that decision, and the President of the High Court, on hearing such application and on directing such further enquiries as he may think fit, may, by order— (a) confirm that it was proper for the Society to make such an order, or (b) rescind or vary the order of the Society, and give such consequential directions (if any) as he thinks fit, including a direction as to what period (if any) of service by the apprentice under the indentures of apprenticeship should be deemed good service.”.
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Number of apprentices (section 36 of Principal Act).
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47.—The Principal Act is hereby amended by the substitution of the following section for section 36: “Number of apprentices.
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36.—(1) Subject to subsection (2) of this section, a practising solicitor shall not have more than two apprentices at the same time under indentures of apprenticeship.
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(2)A practising solicitor may, with the written consent of the Society, have under indentures of apprenticeship one apprentice for every two assistant solicitors in his employment or in the employment of his firm at the date of the registration under section 28 of this Act of each such indentures of apprenticeship.
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(3)Where a practising solicitor has, under subsection (2) of this section, an apprentice or apprentices under indentures of apprenticeship the terms of which are unexpired, that solicitor shall notify the Society in the event of the number of assistant solicitors employed being reduced below the ratio provided for in that subsection and the notification shall be made within three months of the reduction of the number of assistant solicitors below the said ratio.
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(4)Where the Society have been notified under subsection (3) of this section or otherwise become aware of a reduction in the number of assistant solicitors employed below the ratio provided for in that subsection, service or continued service under his indentures of apprenticeship by each apprentice concerned shall be deemed not to be good service, unless the Society direct otherwise.”.
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Obligation to serve bona fide apprenticeship (section 37 of Principal Act).
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48.—The Principal Act is hereby amended by the substitution of the following section for section 37: “Obligation to serve bona fide apprenticeship.
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37.—An apprentice shall, during the whole term of his indentures of apprenticeship serve, in the prescribed manner, a bona fide apprenticeship.”
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Amendment of section 40 of Principal Act.
\n
49.—Section 40 of the Principal Act is hereby amended by— (a) the substitution of the following subsection for subsection (1): “(1) The Society may— (a) either on their own or by arrangement with or in association with any other body or institution, provide or procure the provision of courses and the holding of examinations for the education or training (or both) of— (i) persons seeking to be admitted as solicitors, or (ii) solicitors or other persons; (b) authorise any other body or institution, either on its own or by arrangement with or in association with the Society, to provide or procure the provision of courses and the holding of examinations for the education or training (or both) of— (i) persons seeking to be admitted as solicitors, or (ii) solicitors or other persons; (c) join or associate with any other body or institution providing education or training (or both) in providing or procuring the provision of courses and the holding of examinations leading, in appropriate cases, to a joint or common qualification; (d) provide for aptitude or other testing of persons seeking to be admitted as solicitors; (e) appoint professors, lecturers, tutors and examiners; (f) award diplomas, certificates and other awards of merit.”; (b) the substitution of the following subsection for subsection (4): “(4) Regulations for the purposes of this section shall provide for the holding by the Society, either on their own or by arrangement with or in association with any other body or institution, at least once in every 12 month period, of— (a) a preliminary examination (of such content and form and standard as may be prescribed) to be passed by a person seeking to be bound under indentures of apprenticeship who is not otherwise exempted therefrom pursuant to section 41 (as substituted by the Solicitors (Amendment) Act, 1994) and section 42 of this Act; (b) such other examination or examinations as are required by the Society to be passed by a person seeking to be admitted as a solicitor.”; (c) the substitution for paragraphs (a), (b) and (c) of subsection (5) of the following paragraphs: “(a) restricting the taking of apprentices to practising solicitors whose fitness and capacity to train apprentices is deemed satisfactory by the Society, (b) the attendance of apprentices, intending apprentices or other persons seeking to be admitted as solicitors at education or training courses (or both) and the content of such education or training courses, (c) the passing by apprentices, intending apprentices, or other persons seeking to be admitted as solicitors of such examination or examinations as are required by the Society to be passed by a person before being admitted as a solicitor,”;
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(d) the substitution for paragraphs (i) and (j) of subsection (5) of the following paragraphs: “(i) the control and discipline of apprentices, intending apprentices or other persons seeking to be admitted as solicitors, (j) the exemption, subject to this Act, from courses or examinations (or both), in whole or in part, of persons who produce satisfactory evidence that they have acquired degrees or professional qualifications of a standard and content deemed satisfactory by the Society and awarded by a university or body or institution recognised by the Society as being appropriate, or who have such other special qualifications as the Society deem appropriate, (k) the holding of courses of further education or training (or both) and the required attendance by solicitors or any specified category of solicitors at one or more of such courses, (l) the designation of an age below which persons may not sit for the preliminary examination, (m) the awarding of diplomas, certificates or other awards of merit to solicitors or other persons who have duly completed prescribed courses or passed prescribed examinations (or both).”; and (e) the insertion of the following subsections: “(7) Regulations made pursuant to this section shall be made only with the concurrence of the Minister.
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(8)Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.”.
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General exemption from preliminary examination (section 41 of Principal Act).
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50.—The Principal Act is hereby amended by the substitution of the following section for section 41: “General exemption from preliminary examination.
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41.—The preliminary examination of the Society shall not be required to be passed— (a) by a person who holds a degree from any of the universities of Ireland, England, Scotland or Wales, or a degree conferred or recognised by the National Council for Educational Awards under section 3 of the National Council for Educational Awards Act, 1979 , (b) by a person who has passed an examination prescribed as being equivalent thereto, or (c) by a person who holds the degree of barrister-at-law from the Honorable Society of King's Inns, Dublin, or other professional qualification prescribed as being equivalent thereto.”.
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Exemptions for practising barristers (section 43 of Principal Act).
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51.—The Principal Act is hereby amended by the substitution of the following section for section 43: “Exemptions for practising barristers.
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43.—(1) This section applies to a person— (a) who seeks to be admitted as a solicitor, (b) who has been called to the bar of Ireland and has practised as a barrister in the State for such period (not exceeding three years) and at such time or times as may be prescribed, (c) who has procured himself to be disbarred with a view to being admitted as a solicitor, (d) who has obtained from two of the Benchers of the Honorable Society of the King's Inns, Dublin, a certificate of his being in good standing while he was practising as a barrister in the State, and (e) who has satisfied the Society that he is a fit and proper person to be admitted as a solicitor.
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(2)Subject to subsection (8) of this section, the following provisions shall have effect in relation to a person to whom this section applies: (a) he shall not be required to obtain a certificate of his having passed any examination of the Society other than the final examination (being the examination or an examination in like form referred to in section 40 of this Act before the coming into operation of section 49 of the Solicitors (Amendment) Act, 1994, as ‘a final examination’ and in this section referred to as the final examination) and (if obligatory on him) the second examination in the Irish language which is referred to in the said section 40, but he shall not be re-examined in any subject of substantive law which he has passed or is deemed to have passed as part of a qualifying examination for the degree of barrister-at-law, (b) he shall be entitled, without being bound under indentures of apprenticeship to a practising solicitor, to apply to present himself for the final examination, (c) on passing the final examination (except so much of that examination as relates to indentures of apprenticeship and service thereunder) and (if obligatory on him) the second examination in the Irish language, he shall be entitled to apply to be admitted and enrolled as a solicitor.
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(3)A person to whom this section applies shall not be required to become bound under indentures of apprenticeship to a practising solicitor but shall attend such courses (if any) and complete such training (if any) and pass such examinations (if any) as may be prescribed but he shall not be re-examined in any subject of substantive law which he has passed or is deemed to have passed as part of a qualifying examination for the degree of barrister-at-law.
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(4)A person to whom this section applies shall not be required to pass any examination in the Irish language held by the Society under section 40
\n
(3)of this Act if he has passed or was exempted from an examination in the Irish language prescribed by the Chief Justice under section 3 of the Legal Practitioners (Qualification) Act, 1929 .
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(5)Subject to the provisions of subsection (1) of this section, a person who has attended such courses (if any) completed such training (if any) and passed such examinations (if any) as he shall have been required to undertake pursuant to regulations (if any) made under this section, shall be entitled to apply to be admitted and enrolled as a solicitor.
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(6)For the purposes of this section, service by a person as a member of the judiciary in the State, or as a barrister in the full-time service of the State or as a barrister in employment shall be deemed to be practice as a barrister.
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(7)In this section— ‘barrister in employment’ means a barrister who satisfies the Society in the prescribed manner that he has been engaged, under a contract of employment with an employer, full-time in the provision of services of a legal nature for a prescribed period (not exceeding three years) at such time or times as may be prescribed; ‘barrister in the full-time service of the State’ means a barrister who is required to devote the whole of his time to the service of the State in the provision of services of a legal nature and is remunerated for such service wholly out of moneys provided by the Oireachtas.
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(8)Subsection (2) of this section shall stand repealed on the coming into operation of regulations made under subsection (3) of this section.”.
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Exemptions (reciprocal provisions) (section 44 of Principal Act).
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52.—The Principal Act is hereby amended by the substitution of the following section for section 44: “Exemptions (reciprocal provisions).
\n
44.—(1) In this section ‘corresponding profession’ means a profession in another jurisdiction, other than the jurisdiction of a Member State of the European Communities, which in the opinion of the Society corresponds substantially to the profession of solicitor.
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(2)This section applies to a person who— (a) is qualified to practise in a corresponding profession, (b) has applied to the Society to be admitted as a solicitor or who has been admitted as a solicitor under subsection (5) of this section having so applied, and (c) has satisfied the Society that he is a fit and proper person to be admitted as a solicitor.
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(3)Subject to subsections (4) and (6) of this section, the following provisions shall have effect in relation to a person to whom this section applies: (a) he shall not be required to become bound under indentures of apprenticeship; (b) he shall not be required to comply with the provisions of section 40
\n
(3)of this Act; (c) he shall be required to have practised his profession in the jurisdiction in which he is qualified to practise for such minimum period as may be prescribed; (d) he shall attend such course or courses of education or training (or both) and pass such examination or examinations as may be prescribed; (e) he shall not, for such period as may be prescribed (not to exceed three years) following the date of his admission as a solicitor (during which period he shall have worked full-time in the provision of legal services) commence to carry on practice— (i) as a sole practitioner, or (ii) as a partner with another practising solicitor or other practising solicitors unless that other practising solicitor or one of such other practising solicitors has been engaged full-time in the provision of legal services for a period of not less than three years at the time of such commencement; (f) he shall, during the period referred to in paragraph (e) of this subsection, be required to attend such courses of further education or training (or both) as may be prescribed.
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(4)The Society may waive in the prescribed manner, in whole or in part, any one or more of the provisions of paragraphs (c), (d), (e) or (f) of subsection (3) of this section in relation to any prescribed category of person to whom this section applies.
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(5)A person to whom this section applies who has complied with the provisions of paragraphs (c) and (d) of subsection (3) of this section (insofar as they have not been waived in whole or in part under subsection (4) of this section) shall be entitled to be admitted as a solicitor.
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(6)The Minister may by order appoint a day or days for the coming into operation of this section in relation to a corresponding profession in any jurisdiction being a day or days on which he is satisfied that reciprocal provisions will be in operation in that jurisdiction in respect of solicitors whose names are on the roll and he may revoke an order so made if such reciprocal provisions cease to apply.”.
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Exemption for certain apprentices.
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53.—For the purposes of Part IV (as amended by this Act) of the Principal Act, the Society may prescribe by regulations the circumstances in and the conditions under which a person may become bound by indentures of apprenticeship to a person who holds a certificate issued by the Law Society of Northern Ireland or, in relation to England and Wales, the Law Society, corresponding to a practising certificate issued by the Society.
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PART VI
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Practising Certificates and Practice Application for practising certificate (section 47 of Principal Act).
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54.—The Principal Act is hereby amended by the substitution of the following section for section 47: “Application for practising certificate.
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47.—(1) Subject to the provisions of this Act, the Society may make regulations with regard to— (a) applications for practising certificates, and (b) the issue of practising certificates (including the form of such certificates).
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(2)The Society may make regulations pursuant to subsection (1) of this section requiring that every solicitor who applies to the Society for a practising certificate in respect of a practice year commencing after a date specified in the regulations shall not be issued with such practising certificate unless such solicitor has furnished to the Society written evidence of there being in force the prescribed minimum level of cover for indemnity against losses arising from claims against him as required by indemnity regulations in force under section 26 of the Solicitors (Amendment) Act, 1994, for the duration of the practice year in respect of which such practising certificate so applied for relates.
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(3)The registrar shall maintain a register of practising solicitors (in this Act known as ‘the register’) and the register shall include the following particulars relating to each solicitor issued with a practising certificate— (a) the full name of the solicitor, (b) his place or places of business, (c) the date of his admission as a solicitor, and (d) particulars of his cover for indemnity against losses for claims against him required by indemnity regulations in force under section 26 of the Solicitors (Amendment) Act, 1994.
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(4)(a) The register, which may be kept in an electronic or such other non-written form as is considered appropriate by the Society, shall be available for inspection during office hours without payment by any person who applies to inspect it, (b) if the register is kept in an electronic or other non-written form, the Society may comply with its obligation to have the register available for inspection under paragraph (a) of this subsection by making any relevant entry in the register available in written form for inspection in accordance with the said paragraph (a), and (c) the Society may publish at any time in whatever manner they deem appropriate the names and the place or places of business of solicitors entered on the register.
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(5)Subject to the provisions of this Part of this Act and of the Solicitors (Amendment) Act, 1994, the registrar shall issue a practising certificate to a solicitor on application being duly made by him in that behalf, as may be prescribed.
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(6)Where a solicitor alleges that the registrar has wrongly refused to issue him with a practising certificate, he may apply to the President of the High Court who may make such order in the matter as he thinks fit.
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(7)On the coming into effect of regulations made under subsection (1) of this section, the provisions of the Third Schedule and the Fourth Schedule to this Act shall cease to have effect.
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(8)The Minister may direct the Society to make regulations (or to amend regulations made) under subsection (1) of this section providing for the requirement set forth in subsection (2) of this section.”.
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Saving for regulations made under section 47 of Principal Act and amendment of section 48 of Principal Act.
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55.—(1) Notwithstanding the coming into effect of regulations made by the Society under section 47 (1) (as substituted by this Act) of the Principal Act, a practising certificate which is in force at the time of the passing of this Act shall, unless subsequently suspended pursuant to section 20(3) (as substituted by this Act) of the Act of 1960 or section 58 of this Act, continue in force until the end of the practice year during which it was issued and shall then expire.
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(2)Section 48 of the Principal Act shall be amended with effect from the 1st day of January, 1996— (a) by the substitution of the following subsection for subsection (1): “(1) A practising certificate issued during the period beginning on the 1st day of January in any year and ending on the next following 1st day of February shall bear the date of the said 1st day of January and a practising certificate not so issued shall bear the date of the day on which it is issued.”, (b) by the substitution in subsection (3) of: “the 1st day of February” for “the 5th day of February” where it occurs.
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Prohibition on practising as solicitor without practising certificate.
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56.—(1) No solicitor shall practise as a solicitor unless a practising certificate in respect of him is in force.
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(2)Without prejudice to section 29 (5) (as substituted by this Act) of the Principal Act, a solicitor shall be deemed to practise as a solicitor if he engages in the provision of legal services whether as a sole practitioner or as a partner in a solicitor's practice or as an employee of any solicitor or of any other person or body, or as a solicitor in the full-time service of the State within the meaning of section 54 (3) (as substituted by this Act) of the Principal Act.
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(3)Subsection (1) of this section shall not apply to— (a) a solicitor in the full-time service of the State within the meaning of section 54 (3) (as substituted by this Act) of the Principal Act, or (b) a solicitor whose name is on the roll and who does not stand suspended from practice and who is employed full-time in the State to provide conveyancing services for his employer, provided that such employer is not a solicitor.
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(4)In paragraph (b) of subsection (3) of this section “conveyancing services” means services in connection with the preparation of transfers, conveyances, contracts, leases or other assurances in connection with the disposition or acquisition of estates or interests in land.
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Acting as a solicitor without a practising certificate.
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57.—Without prejudice to the generality of section 3 (as amended by this Act) of the Act of 1960, and without prejudice to any provision of or proceedings under section 55 (as amended by this Act) of the Principal Act a solicitor who acts as a solicitor when not a solicitor qualified to practise under section 54 (as substituted by this Act) of the Principal Act by reason of a practising certificate in respect of him not being in force when such a practising certificate is required by the Solicitors Acts, 1954 to 1994, shall be guilty of misconduct.
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Suspension of practising certificates.
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58.—(1) Where a solicitor fails to comply with any provision of the Solicitors Acts, 1954 to 1994, or with any regulations made thereunder or with any conditions specified in a direction relating to a practising certificate under section 59 of this Act, and the Society are of the opinion that such failure to comply is serious and warrants the making of an application under this section, the Society may, on notice to that solicitor, apply to the President of the High Court and the President of the High Court may (after hearing such evidence and receiving such submissions from the Society, the solicitor concerned and such other person or persons as the President of the High Court thinks fit) by order do one or more of the following things, namely— (a) suspend the current practising certificate of the solicitor for such period as the President of the High Court thinks fit up to and including the end of the current practice year; (b) direct the Society not to issue to the solicitor a practising certificate during any subsequent practice year until such time as the President of the High Court thinks fit; (c) direct the solicitor to take such action as the President of the High Court thinks fit to remedy any consequences of his failure to comply with such Acts, regulations or conditions; (d) direct the solicitor to take such action as the President of the High Court thinks fit to ensure that the solicitor does not in the future so fail to comply with such Acts, regulations or conditions; (e) adjourn the application and direct that further enquiries be made by the Society in regard to the matter, or require the Society to furnish further information to the Court; (f) adjourn the application for such period as the President of the High Court thinks fit, to enable the solicitor to comply with any direction or directions of the President of the High Court under paragraph (c) or (d) (or both) of this subsection; (g) dismiss the Society's application.
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(2)The Society shall, unless otherwise directed by the President of the High Court, arrange to publish, as soon as possible after it is made, the terms of any order made by the President of the High Court under subsection (1)(a) or (1)(b) of this section in the Iris Oifigiúil and in the Gazette of the Society and in any other manner as the Society may think fit.
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(3)Any application made by the Society pursuant to subsection (1) of this section shall be without prejudice to the right of the Society under section 7 (as substituted by this Act) of the Act of 1960 to apply to the Disciplinary Tribunal for an inquiry into the conduct of the solicitor concerned on the ground of alleged misconduct.
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Imposition of conditions while practising certificates are in force.
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59.—(1) Subject to and in accordance with the provisions of this section, the Society may give a direction that the practising certificate issued to a solicitor and for the time being in force shall have effect subject to such specified conditions as the Society may think fit and a reference in this section to such a direction shall be deemed to include a reference to such specified conditions.
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(2)The Society may give a direction under subsection (1) of this section where, had an application for a practising certificate been made by the solicitor concerned at the time the direction is given, one or more of the circumstances set out in section 49 (1) (c) to (p) (as substituted by this Act) of the Principal Act would have applied to that solicitor.
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(3)Subject to subsection (4) of this section, a direction given under subsection (1) of this section shall have effect from the date that is 21 days after the date of receipt by the solicitor concerned of notification in writing of the giving of such direction, whereupon that solicitor shall, within that period of 21 days, surrender his current practising certificate to the Society and the Society shall, as soon as possible, re-issue it with the specified conditions endorsed thereon to that solicitor.
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(4)A solicitor in relation to whom the Society give a direction under subsection (1) of this section may, within 21 days of the receipt by him of notification in writing of the giving of such direction, appeal to the President of the High Court against the giving of that direction.
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(5)Notwithstanding that the solicitor concerned appeals to the President of the High Court under subsection (4) of this section, the direction given by the Society under subsection (1) of this section shall have effect from the date specified in subsection (3) of this section up to the date of the determination of such appeal, unless the President of the High Court, on application by that solicitor, otherwise orders.
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(6)Where an appeal has been brought by a solicitor under subsection (4) of this section and the President of the High Court has made an order under subsection (5) of this section staying the coming into effect of the direction given by the Society, the Society may, on notice to that solicitor, make application to the President of the High Court at any time thereafter, and the President of the High Court may (on the hearing of that application) dismiss such appeal and confirm the direction given by the Society if the President of the High Court is satisfied that that solicitor has delayed unduly in proceeding with such appeal and may for that purpose revoke any order which he has made under subsection (5) of this section.
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(7)On hearing an appeal under subsection (4) of this section, the President of the High Court may, by order, do one or more of the following things, namely— (a) confirm the direction given by the Society; (b) direct that the current practising certificate of that solicitor shall have effect subject to such conditions as the President of the High Court thinks fit; (c) direct that any subsequent practising certificate issued to that solicitor shall have effect subject to such conditions as the President of the High Court thinks fit; (d) revoke the direction given by the Society; (e) direct as the President of the High Court otherwise thinks fit; (f) revoke or vary any order which he has made under subsection (5) of this section.
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Proof of practice by an unqualified person.
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60.—(1) Where the registrar has reasonable grounds to believe that an unqualified person was at a particular time acting as a solicitor, he may issue a certificate in writing to that effect.
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(2)Upon production in court by or on behalf of the Society or the registrar of a document purporting to be a certificate referred to in subsection (1) of this section, it shall be presumed until the contrary is proved that the said certificate was properly issued by the registrar and the contents of the certificate shall be admitted as prima facie evidence of the facts therein stated.
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Direction to grant or refuse practising certificate (section 49 of Principal Act).
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61.—The Principal Act is hereby amended by the substitution of the following section for section 49: “Direction to grant or refuse practising certificate.
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49.—(1) This section applies where a solicitor makes application for a practising certificate in any one or more of the following circumstances: (a) he has, for 12 months or more, ceased to hold a practising certificate in force (exclusive of cases in which the applicant has practised as a solicitor in the full-time service of the State within 12 months before his application); (b) he has not held a practising certificate in force within 12 months following the date of his admission as a solicitor; (c) he is a person in respect of whose person or property any of the powers and provisions of the Lunacy Regulation (Ireland) Act, 1871 , or any Act amending or extending that Act, relating to management and administration of property apply; (d) he has an office or place of business in more than one place at any one time (disregarding, where he has a Dublin agent, the office or place of business of such agent) and having been invited by the Society to satisfy them that he exercises adequate personal supervision over each office or place of business, he has failed to satisfy the Society as aforesaid and has been notified in writing by the Society that he has so failed; (e) he has been invited by the Society to give an explanation in respect of any matter affecting his conduct (including conduct in another jurisdiction), and he has failed to give the Society an explanation in respect of that matter which the Society regard as sufficient and satisfactory, and has been notified in writing by the Society that he has so failed; (f) he has had an order of attachment or committal made against him; (g) he has had a judgment or decree given against him— (i) which involves the payment of moneys, and (ii) which is not a judgment or decree in relation to which he is entitled, as respects the whole effect of the judgment or decree upon him, to indemnity or relief from any other person, and he has not produced to the registrar evidence of the satisfaction of such judgment or decree; (h) he has been adjudicated a bankrupt; (i) he has entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors; (j) he has failed to comply with an order of the High Court; (k) he has failed to comply with regulations made under section 66 (as substituted by the Solicitors (Amendment) Act, 1994) or 71 (as amended by the Solicitors (Amendment) Act, 1994) of this Act or section 73 of the Solicitors (Amendment) Act, 1994; (l) he has failed to comply with a determination, requirement or direction of the Society under
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section 8 , 9 or 10 of the Solicitors (Amendment) Act, 1994; (m) he has been sentenced to a term of imprisonment; (n) he has failed to comply with the terms of any regulations in force by virtue of the power vested in the Society by section 26 of the Solicitors (Amendment) Act, 1994; (o) he has failed to attend a course or courses of further education or training (or both), where his attendance at such course or courses was required in the prescribed manner by the Society; (p) he has failed to satisfy the Society that he is fit to carry on the practice of a solicitor, having regard to the state of his physical or mental health; (q) he has failed to satisfy the Society that, having regard to all the circumstances, including the financial state of his practice, he should be issued with a practising certificate or a practising certificate not subject to specified conditions.
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(2)(a) Where this section applies, the Society shall as soon as practicable consider the application (including such submissions as may be made by or on behalf of the applicant) and shall thereafter direct the registrar to do any one of the following things: (i) issue a practising certificate unconditionally; (ii) issue a practising certificate subject to such specified conditions as the Society think fit, including conditions requiring the solicitor concerned to take any specified steps that the Society consider necessary for his carrying on an efficient practice as a solicitor and notwithstanding that any such specified steps may result in expenditure being incurred by the solicitor concerned; or (iii) refuse to issue a practising certificate. (b) If the Society direct the registrar either to refuse to issue a practising certificate or to issue a practising certificate subject to specified conditions, the solicitor concerned shall, as soon as possible, be notified in writing by the Society of the direction and the grounds on which it was given.
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(3)A solicitor in relation to whom the Society have directed the registrar under subsection (2) (a) of this section either to refuse to issue a practising certificate or to issue a practising certificate subject to specified conditions may, within 21 days of the receipt by him of the notification in writing of such direction, appeal to the President of the High Court against such direction to refuse or against the specified conditions, or any of them, as the case may be.
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(4)Notwithstanding that the solicitor concerned appeals to the President of the High Court under subsection (3) of this section, the direction of the Society to the registrar under subsection (2) (a) of this section shall have effect up to the determination of such appeal, unless the President of the High Court, on application by that solicitor, otherwise orders pending the determination by him of such appeal.
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(5)Where an appeal has been brought by a solicitor under subsection (3) of this section and the President of the High Court has made an order under subsection (4) of this section directing the registrar to issue a practising certificate (whether unconditionally or subject to specified conditions) to that solicitor pending the hearing of such appeal, the Society may, on notice to that solicitor, make application to the President of the High Court at any time thereafter, and the President of the High Court (on the hearing of that application) may dismiss such appeal and confirm the direction of the Society to the registrar under subsection (2) (a) of this section, if the President of the High Court is satisfied that the solicitor concerned has delayed unduly in proceeding with such appeal and may for that purpose revoke any order which he has made under subsection (4) of this section.
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(6)On hearing an appeal under subsection (3) of this section, the President of the High Court may— (a) in relation to an appeal against a direction by the Society to the registrar to refuse to issue a practising certificate to the solicitor concerned, by order— (i) confirm the direction to refuse and revoke any practising certificate already issued pursuant to an order under subsection (4) of this section, (ii) rescind the direction to refuse and direct that any practising certificate already issued pursuant to an order under subsection (4) of this section or any practising certificate to be issued by the registrar be issued unconditionally, or (iii) rescind the direction to refuse and direct that any practising certificate already issued pursuant to an order under subsection (4) of this section or any practising certificate to be issued by the registrar be issued subject to such specified conditions as the President of the High Court thinks fit; (b) in relation to an appeal against a direction by the Society to the registrar to issue a practising certificate subject to specified conditions, by order— (i) confirm the direction, (ii) rescind the direction, or (iii) vary the specified conditions, or any of them.
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(7)The registrar shall cause particulars of a direction by the Society under subsection (2) (a) (ii) or (iii) of this section or an order of the President of the High Court under subsection (6) of this section to be entered in the register in relation to the solicitor concerned.”.
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Qualifications for acting as solicitor (section 54 of Principal Act).
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62.—The Principal Act is hereby amended by the substitution of the following section for section 54: “Qualifications for acting as solicitor.
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54.—(1) A solicitor who has the qualifications specified in subsection (2) of this section may act as a solicitor and is referred to in this Act as a solicitor qualified to practise.
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(2)The qualifications referred to in subsection (1) of this section are— (a) that the name of the solicitor is on the roll; (b) that he does not stand suspended from practice; (c) that either he is a solicitor in the fulltime service of the State or a practising certificate in respect of him is in force; and (d) that the solicitor concerned has not given an undertaking to the High Court that he will not act as a solicitor or if he has given such an undertaking, that it has been discharged by the Court.
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(3)A solicitor shall be regarded as a solicitor in the full-time service of the State if and while he is required to devote the whole of his time to the service of the State as solicitor and is remunerated in respect of such service wholly out of moneys provided by the Oireachtas.”.
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Amendment of section 55 of Principal Act.
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63.—Section 55 of the Principal Act is hereby amended by the substitution in subsection (2) of “£10,000” for “two hundred pounds” and “£1,500” for “fifty pounds” and the subsection as so amended is set out in the Table to this section.
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TABLE
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(2)A person who contravenes subsection (1) of this section shall, without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and shall be liable— (a) on conviction thereof on indictment, to imprisonment for a term not exceeding two years or, at the discretion of the Court, to a fine not exceeding £10,000 or to both such fine and such imprisonment, or (b) on summary conviction thereof, to imprisonment for a term not exceeding six months or, at the discretion of the Court, to a fine not exceeding £1,500 or to both such fine and such imprisonment.
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Amendment of section 56 of Principal Act.
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64.—Section 56 of the Principal Act is hereby amended by the substitution in subsection (2) of “£1,500” for “fifty pounds” and the subsection as so amended is set out in the Table to this section.
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TABLE
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(2)A person who contravenes subsection (1) of this section shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding £1,500.
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PART VII
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Miscellaneous Provisions Roll of solicitors (section 9 of Principal Act).
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65.—The Principal Act is hereby amended by the substitution of the following section for section 9: “Roll of solicitors.
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9.—(1) The registrar shall maintain a roll of solicitors (in this Act referred to as ‘the roll’).
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(2)The roll, which may be kept in an electronic or such other non-written form as is considered appropriate by the Society, shall be available for inspection during office hours without payment by any person who applies to inspect it.
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(3)If the roll is kept in an electronic or other non-written form, the Society may comply with its obligation to have the roll available for inspection under subsection (2) of this section by making any relevant entry available in written form for inspection in accordance with the said subsection (2).”.
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Fees for applications to Society.
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66.—The Sixth Schedule to the Principal Act may be amended from time to time by the inclusion of such additional applications as may be prescribed with the concurrence of the President of the High Court.
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Register of solicitors prepared to act in certain cases.
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67.—(1) The Society shall establish and maintain a register of solicitors who have indicated to the Society that they are willing to provide legal services to any person who is unable to obtain the services of a solicitor to act for him in civil proceedings against another solicitor, arising from the conduct of that other solicitor while acting for that person.
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(2)The Society shall make available information included in any register maintained under subsection (1) of this section to any person requesting such information, and shall take all reasonable measures to assist any person to obtain the services of a solicitor for the purposes of subsection (1) of this section.
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Charges to clients.
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68.—(1) On the taking of instructions to provide legal services to a client, or as soon as is practicable thereafter, a solicitor shall provide the client with particulars in writing of— (a) the actual charges, or (b) where the provision of particulars of the actual charges is not in the circumstances possible or practicable, an estimate (as near as may be) of the charges, or (c) where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made, by that solicitor or his firm for the provision of such legal services and, where those legal services involve contentious business, with particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties and the circumstances, if any, in which the client's liability to meet the charges which will be made by the solicitor of that client for those services will not be fully discharged by the amount, if any, of the costs recovered in the contentious business from any other party or parties (or any insurers of such party or parties).
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(2)A solicitor shall not act for a client in connection with any contentious business (not being in connection with proceedings seeking only to recover a debt or liquidated demand) on the basis that all or any part of the charges to the client are to be calculated as a specified percentage or proportion of any damages or other moneys that may be or may become payable to the client, and any charges made in contravention of this subsection shall be unenforceable in any action taken against that client to recover such charges.
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(3)A solicitor shall not deduct or appropriate any amount in respect of all or any part of his charges from the amount of any damages or other moneys that become payable to a client of that solicitor arising out of any contentious business carried out on behalf of that client by that solicitor.
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(4)Subsection (3) of this section shall not operate to prevent a solicitor from agreeing with a client at any time that an amount on account of charges shall be paid to him out of any damages or other moneys that may be or may become payable to that client arising out of any contentious business carried out on behalf of that client by that solicitor or his firm.
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(5)Any agreement under subsection (4) of this section shall not be enforceable against a client of a solicitor unless such agreement is in writing and includes an estimate (as near as may be) of what the solicitor reasonably believes might be recoverable from any other party or parties (or any insurers of such party or parties) in respect of that solicitor's charges in the event of that client recovering any damages or other moneys arising out of such contentious business.
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(6)Notwithstanding any other legal provision to that effect a solicitor shall show on a bill of costs to be furnished to the client, as soon as practicable after the conclusion of any contentious business carried out by him on behalf of that client— (a) a summary of the legal services provided to the client in connection with such contentious business, (b) the total amount of damages or other moneys recovered by the client arising out of such contentious business, and (c) details of all or any part of the charges which have been recovered by that solicitor on behalf of that client from any other party or parties (or any insurers of such party or parties), and that bill of costs shall show separately the amounts in respect of fees, outlays, disbursements and expenses incurred or arising in connection with the provision of such legal services.
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(7)Nothing in this section shall prevent any person from exercising any existing right in law to require a solicitor to submit a bill of costs for taxation, whether on a party and party basis or on a solicitor and own client basis, or shall limit the rights of any person or the Society under section 9 of this Act.
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(8)Where a solicitor has issued a bill of costs to a client in respect of the provision of legal services and the client disputes the amount (or any part thereof) of that bill of costs, the solicitor shall— (a) take all appropriate steps to resolve the matter by agreement with the client, and (b) inform the client in writing of— (i) the client's right to require the solicitor to submit the bill of costs or any part thereof to a Taxing Master of the High Court for taxation on a solicitor and own client basis, and (ii) the client's right to make a complaint to the Society under section 9 of this Act that he has been issued with a bill of costs that he claims to be excessive.
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(9)In this section “charges” includes fees, outlays, disbursements and expenses.
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(10)The provisions of this section shall apply notwithstanding the provisions of the Attorneys and Solicitors (Ireland) Act, 1849 and the Attorneys and Solicitors Act, 1870 .
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Amendment of section 71 of Principal Act.
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69.—Section 71 of the Principal Act is hereby amended by the insertion of the following subsections: “(2) Without prejudice to the generality of subsection (1) of this section, the Society shall not prohibit a solicitor from charging less for a legal service than any charge or fee or remuneration specified for that legal service by way of any statutory scale or scales for the time being in force.
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(3)The Society shall not prohibit advertising by solicitors.
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(4)Nothing in subsection (3) of this section shall prevent the Society prohibiting advertising which— (a) is likely to bring the solicitors' profession into disrepute, or (b) is in bad taste, or (c) reflects unfavourably on other solicitors, or (d) contains an express or implied assertion by a solicitor that he has specialist knowledge in any area of law or practice superior to other solicitors, or (e) is false or misleading in any respect, or (f) comprises or includes unsolicited approaches to any person with a view to obtaining instructions in any legal matter, or (g) is contrary to public policy.
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(5)Subject to subsection (6) of this section, nothing in subsection (4) of this section shall entitle the Society to prohibit the advertising of any charge or fee by a solicitor for the provision of any specified legal service.
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(6)Where the Society consider it appropriate, they may make regulations, after the expiration of 2 years following the coming into operation of section 69 of the Solicitors (Amendment) Act, 1994, prohibiting the advertising of any charge or fee by a solicitor for the provision of any specified legal service, provided that such regulations may be made only with the consent of the Minister and where the Minister is satisfied that such regulations are in the public interest.
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(7)Notwithstanding the provisions of paragraph (d) of subsection (4) of this section, the Society may by regulations provide that a solicitor who in the prescribed manner satisfies the Society of his specialist knowledge in a prescribed area of law or practice be permitted by the Society to designate himself as having specialist knowledge in that area of law or practice.”.
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Incorporated practices.
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70.—(1) Notwithstanding section 64 of the Principal Act, the Society, with the concurrence of the Minister given after consultation with the Minister for Enterprise and Employment, may make regulations providing for any one or more of the following matters, namely— (a) the management and control by solicitors of bodies corporate (in this section referred to as “incorporated practices”) carrying on business consisting of the provision of legal services such as are provided by individuals practising as solicitors; (b) the circumstances in which incorporated practices may be recognised by the Society as suitable to undertake the provision of any such legal services, and the revocation of such recognition on the grounds that it was granted improperly as a result of any error or fraud; (c) the conditions which (subject to any exceptions provided by the regulations) shall be satisfied at all times by incorporated practices so recognised if they are to remain so recognised; (d) the manner and form in which applications for recognition under this section are to be made, and for the payment of fees in connection with such applications; (e) the regulating of the names that may be used by incorporated practices; (f) the period for which any recognition of incorporated practices remains in force; (g) the keeping by the Society of a list containing the names and places of business of all incorporated practices and for the information contained in any such list to be available for inspection; (h) the empowering of the Society to take such steps as they consider necessary or expedient to ascertain whether or not any regulations applicable to incorporated practices are being complied with; (i) regulating the conduct of the affairs of incorporated practices.
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(2)Regulations made by the Society under the Solicitors Acts, 1954 to 1994, shall apply and have effect in relation to incorporated practices recognised by the Society pursuant to regulations made under subsection (1) of this section with such additions, omissions or other modifications as appear to the Society to be necessary or expedient.
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(3)The Minister may by order provide that any enactment or statutory instrument (within the meaning of the Statutory Instruments Act, 1947 ), passed or made before the commencement of this section and having effect in relation to solicitors shall have effect in relation to incorporated practices recognised by the Society pursuant to regulations made under subsection (1) of this section, with such additions, omissions or other modifications as appear to the Minister to be necessary for the purposes of enabling such provisions to have effect.
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(4)Any order made by the Minister under subsection (3) of this section may make provision for the application, subject to any necessary adaptations, of any of the provisions of the Solicitors Acts, 1954 to 1994, to incorporated practices recognised by the Society pursuant to regulations made under subsection (1) of this section.
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(5)(a) Every regulation made under subsection (1) of this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder. (b) A draft of every order proposed to be made under subsection (3) of this section shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
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Fee-sharing by solicitors.
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71.—(1) Notwithstanding the provisions of section 59 of the Principal Act, the Society, with the concurrence of the Minister and, in the case of regulations made under paragraph (a) of this subsection, after consultation with the Minister for Enterprise and Employment, may make regulations in respect of— (a) the sharing of fees between a solicitor and a person who is not qualified to practise as a solicitor arising either from a partnership between them or from an agency arrangement concluded between them, or (b) the sharing of fees between a solicitor and a person who is not qualified to practise as a solicitor but who is a member, and entitled to practise as such, of a legal profession in another jurisdiction, arising either from a partnership between them or from an agency arrangement concluded between them.
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(2)Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
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Administration of oaths and taking of affidavits.
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72.—(1) Subject to the provisions of this section, every solicitor who holds a practising certificate which is in force shall, subject to any condition to which that practising certificate is subject under the Solicitors Acts, 1954 to 1994 (in this section referred to as a “relevant condition”), have all the powers conferred by any enactment or statutory instrument (within the meaning of the Statutory Instruments Act, 1947 ) on a commissioner for oaths (including section 24 of the Stamp Duties Management Act, 1891) and any reference to such a commissioner in any such enactment or statutory instrument, whether passed or made before or after the commencement of this section, shall include a reference to such a solicitor, unless the context otherwise requires.
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(2)A solicitor shall not exercise the powers conferred by this section in any proceedings in which he is solicitor to any of the parties or in which he has an interest, or in contravention of any relevant condition.
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(3)A solicitor before whom any oath or affidavit is taken or made shall state in the jurat or attestation at which place and on what date the oath or affidavit is taken or made.
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(4)A document containing the statement in the jurat or attestation mentioned in subsection (3) of this section and purporting to be sealed or signed by a solicitor pursuant to his powers as a commissioner for oaths or pursuant to this section shall be admitted in evidence without proof of the said seal or signature, and without proof that he is a solicitor or that he holds a practising certificate which is in force or that such document has not been so sealed or signed in contravention of a relevant condition.
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(5)Nothing in this section shall affect the power to appoint commissioners for oaths under section 73 of the Supreme Court of Judicature Act (Ireland), 1877 .
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Interest on clients' moneys.
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73.—(1) Without prejudice to section 66 (as substituted by this Act) of the Principal Act the Society shall make regulations within six months of the coming into operation of this section, with the consent of the President of the High Court, to— (a) require a solicitor, in prescribed cases, either— (i) to open and maintain a separate deposit account at a bank for the benefit of the client for the holding of money received for or on account of the client, or (ii) to pay to such client a sum equivalent to the interest which would have accrued if the money so received had been held on deposit by that solicitor, (b) define the obligations of a solicitor under paragraph (a) of this section by reference to the amount of any sum received or to the period for which it is or is likely to be held or both, and (c) enable a client (without prejudice to any other remedy) to require that any question arising under paragraph (a) or (b) (or both) of this subsection in relation to the client's money be referred to and determined by the Society.
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(2)Except as provided for by regulations made under subsection (1) of this section, a solicitor shall not be liable by virtue of the relationship between solicitor and client to account to any client for interest received by the solicitor on money deposited at a bank, being money received or held for or on account of his clients generally.
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(3)Nothing in this section or in regulations made under this section shall— (a) affect any arrangement in writing, whenever made, between a solicitor and his client as to the application of the client's money or interest thereon, or (b) apply to money received by a solicitor, being money subject to a trust of which the solicitor is a trustee.
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(4)For the purposes of regulations made under subsection (1) of this section and subject to subsection (3) of this section, “client's money” and “money received for or on account of the client” shall mean money held or received by a solicitor on account of a person for whom he is acting in relation to the holding or receipt of such money either as a solicitor or, arising from his practice as a solicitor, as agent, bailee, stakeholder or in any other capacity.
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Restriction on the withdrawal of a solicitor from a case.
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74.—(1) A solicitor who has accepted instructions to appear in court for a client who is in custody may not withdraw from the client's case without obtaining permission from the court before which that client is next scheduled to appear.
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(2)The court shall, in deciding whether to grant a solicitor permission to withdraw from a case under subsection (1) of this section, have regard to— (a) the likely consequences of such action for the client notwithstanding that the client may have concurred in the solicitor's withdrawal from the case, and (b) any delay or other adverse consequences which may arise for the proceedings in question as a result of the solicitor's withdrawal, and the court shall have regard to any matter which is the subject of privilege between the solicitor and the client.
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(3)The court may hear an application for permission under subsection (1) of this section in camera if it considers it necessary to do so in the interests of justice.
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(4)A withdrawal by a solicitor from a case in contravention of subsection (1) of this section shall be notified to the Society by the court whose permission is required under that subsection to withdraw from the case and the Society, on being so notified, shall investigate the matter and take any necessary action under the provisions of Part II (as amended by this Act) of the Act of 1960.
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Extension of list of approved institutions.
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75.—(1) For the purposes of Part VII (as amended by this Act) of the Principal Act and section 73 of this Act and regulations made thereunder, “bank” means— (a) a bank which is the holder of a licence under section 9 (1) of the Central Bank Act, 1971 , (b) any financial institution referred to in subsection (4) (a) (ii) and (iii) of section 7 (as inserted by the Central Bank Act, 1989) of the Central Bank Act, 1971 , and (c) a bank or financial institution standing designated by order of the Minister under subsection (2) of this section, and cognate words shall be construed accordingly:
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Provided that such bank or financial institution, or the relevant branch thereof, is situate in the State.
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(2)The Minister, after consultation with the Minister for Finance, may by order designate banks or financial institutions under subsection (1) (c) of this section.
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(3)A solicitor may open and keep a client account only at a bank within the meaning of subsection (1) of this section.
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(4)For the purposes of sections 7, 8 and 20 (as respectively substituted by the Solicitors (Amendment) Act, 1994) of the Act of 1960, relating to the powers of the Society or the High Court in matters concerning the protection of clients or the disciplining of solicitors, “bank” shall include a bank within the meaning of subsection (1) of this section and shall also include any person or body corporate carrying on business as a bank or other financial institution, whether in the State or outside the State, and cognate words shall be construed accordingly.
\n
(5)The Minister may by order amend or revoke an order made under subsection (2) of this section.
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(6)Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
\n
Regulations for accounts (section 66 of Principal Act).
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76.—The Principal Act is hereby amended by the substitution of the following section for section 66: “Regulations for accounts.
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66.—(1) The Society may make regulations, with the concurrence of the President of the High Court, providing for all or any of the following matters: (a) the category or categories of solicitor to whom such regulations apply; (b) the type or types of accounts at banks which may be opened and kept by a solicitor arising from his practice as a solicitor; (c) the opening and keeping of accounts at banks by a solicitor arising from his practice as a solicitor; (d) the rights, duties and responsibilities of a solicitor in relation to moneys received, held, controlled or paid by him arising from his practice as a solicitor, including the lodgment to and withdrawal from a client account of clients' moneys; (e) the accounting records to be maintained by a solicitor arising from his practice as a solicitor, including the minimum period or periods for which accounting records shall be retained by a solicitor during the period of, and following the conclusion of, the provision of legal services; (f) the keeping by a solicitor of accounting records containing particulars of and information as to moneys received, held, controlled or paid by him arising from his practice as a solicitor, for or on account of a client or any other person or himself; (g) the enforcement by the Society of compliance with the regulations; (h) imposing fees on solicitors in cases of non-compliance where the Society has to conduct further enquiries (being fees not exceeding the cost of making such enquiries); (i) the appointment by the Society of persons to carry out, on behalf of the Society, functions relating to securing compliance with and enforcing such regulations; (j) the circumstances and manner in which a solicitor engaged in practice as a solicitor (or a duly qualified accountant on his behalf) verifies compliance with such regulations, including the frequency of doing so; (k) the examination, by or on behalf of the Society, of the financial circumstances of a solicitor engaged in practice as a solicitor insofar as such circumstances could affect his capacity to carry on such practice.
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(2)Regulations made pursuant to subsection (1) of this section shall not apply to— (a) a solicitor in the full-time service of the State within the meaning of section 54 (3) (as substituted by the Solicitors (Amendment) Act, 1994) of the Principal Act, or (b) a solicitor who is in the part-time service of the State, in respect of moneys received, held, controlled or paid by him in the course of such service.
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(3)A solicitor who knowingly lodges clients' moneys (or who knowingly causes clients' moneys to be lodged) to a client account at a bank other than a bank within the meaning of section 75
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(1)of the Solicitors (Amendment) Act, 1994, shall be guilty of an offence.
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(4)A solicitor who, having received any clients' moneys, fails, without reasonable cause, to lodge (or to cause to be lodged) in the prescribed manner such clients' moneys to the appropriate client account (or client accounts) shall be guilty of an offence.
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(5)A solicitor who fails, without reasonable cause, to maintain and keep (or to cause to be maintained and kept) accounting records in the prescribed manner shall be guilty of an offence.
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(6)A solicitor who, having received clients' moneys, fails, without reasonable cause, to record (or to cause to be recorded) in the prescribed manner such receipt in accounting records shall be guilty of an offence.
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(7)A solicitor who, having received any clients' moneys and having duly lodged (or caused to be lodged) in the prescribed manner such clients' moneys to the appropriate client account (or client accounts) fails, without reasonable cause, to record (or to cause to be recorded) in the prescribed manner such lodgment in accounting records, shall be guilty of an offence.
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(8)A solicitor who makes knowingly (or causes so to be made) a false or misleading entry or record in accounting records shall be guilty of an offence.
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(9)It shall not be a defence to a charge under subsection (6) or (7) of this section to show that an entry or record of a receipt or lodgment of clients' moneys was recorded in accounting records, if it is established that such entry or record is false or misleading.
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(10)Where it appears to the Society that it is necessary for the purpose of exercising any of the Society's functions prescribed under subsection (1) of this section for an authorised person to attend, with or without prior notice, at a place of business of a solicitor, an authorised person may so attend at such place for that purpose.
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(11)Where an authorised person attends pursuant to subsection (10) of this section at a place of business of a solicitor, he shall inform the solicitor or any clerk or servant of the solicitor of the purpose of his attendance as specified in subsection (10) of this section and may thereupon or thereafter, in pursuance of that purpose, require the solicitor or any clerk or servant of the solicitor to do any one or more of the following things: (a) to make available to him for inspection all or any part of the solicitor's accounting records; (b) to furnish to him such copies of the solicitor's accounting records as the authorised person deems necessary to fulfil the purpose specified in subsection (10) of this section; (c) to give such written authority addressed to such bank or banks as the authorised person requires to enable the authorised person to inspect any account or accounts opened, or caused to be opened, by the solicitor at such bank or banks (or any documents relating thereto) and to obtain from such bank or banks copies of such documents relating to such account or accounts for such period or periods as the authorised person deems necessary to fulfil the purpose specified in subsection (10) of this section.
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(12)If a solicitor or clerk or servant of a solicitor who is required by an authorised person to do any one or more of the things specified in subsection (11) of this section, refuses, neglects or otherwise fails, without reasonable cause, to comply with such requirement of requirements, the Society may, on notice to the solicitor, apply to the High Court for an order (which said order the Court is hereby empowered to make) requiring the solicitor to comply with such requirement or requirements (or any one or more of them) as the Society deem necessary in pursuance of the purpose specified in subsection (10) of this section or as the Court thinks fit.
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(13)It shall be an offence for a solicitor— (a) to refuse, neglect or otherwise fail, without reasonable cause, to duly comply with any requirement of an authorised person under subsection (11) of this section; (b) to remove from his place or places of business, or to destroy, deface or mutilate, all or any part of his accounting records, with intent to prevent or interfere with an authorised person acting in pursuance of the purpose specified in subsection (10) of this section; (c) to provide knowingly false or misleading information to an authorised person acting in pursuance of the purpose specified in subsection (10) of this section.
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(14)A summary offence under any of the provisions of this section may be prosecuted by the Society.
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(15)Notwithstanding section 10
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(4)of the Petty Sessions (Ireland) Act, 1851 , summary proceedings for an offence under any of the provisions of this section may be instituted within twelve months from the date the offence came to the knowledge of the Society.
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(16)A person guilty of an offence under this section shall be liable— (a) on summary conviction thereof to a fine not exceeding £1,500, (b) on conviction thereof on indictment to a fine not exceeding £10,000.
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(17)Without prejudice to the generality of this section and any regulations made thereunder, a solicitor shall not, arising from his practice as a solicitor, lodge (or cause to be lodged) for collection through any bank account kept by him, or otherwise collect, an unendorsed cheque or other negotiable or non-negotiable instrument drawn in favour of a person other than himself, his firm, or a partner.
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(18)In this section— ‘accounting records’ means the books of account and all other documents required to be maintained and kept by a solicitor arising from his practice as a solicitor in accordance with regulations made pursuant to subsection (1) of this section.”.
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Amendment of section 58 of Principal Act.
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77.—Section 58 of the Principal Act is hereby amended— (a) by the insertion of the following subsection for subsection (2): “(2) An unqualified person who does any act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and shall be liable— (a) on summary conviction thereof, to a fine not exceeding £1,500, or (b) on conviction thereof on indictment, to a fine not exceeding £10,000.”, (b) by the insertion of the following paragraph in subsection (3): “(h) an act done by a lawyer to whom Council Directive No. 77/249/EEC of 22 March, 1977 (1) (as adapted by the Acts concerning the Conditions of Accession of Greece, Spain and Portugal, to the Treaties establishing the European Communities) and any instrument which may amend or replace that Directive applies by way of provision of legal services within the limits and under the conditions laid down in that Directive (or such instrument), other than the preparation of a formal document for obtaining title to administer the estate of a deceased person and the drafting of a formal document creating or transferring an interest in land.”, (c) by the substitution of the following paragraph for paragraph (b) of subsection (3): “(b) (i) an act done by a barrister practising in the State, (ii) an act done by a barrister employed full-time in the State, in the provision of conveyancing services within the meaning of section 56
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(4)of the Solicitors (Amendment) Act, 1994, for his employer, provided that such employer is not a solicitor,”.
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Will making and probate services provided by credit unions.
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78.—(1) Notwithstanding anything to the contrary in the Principal Act, the Minister may, after consultation with the Minister for Enterprise and Employment, make regulations authorising credit unions to provide services as follows— (a) to draw up or prepare a will or other testamentary instrument, or (b) to take instructions for a grant of probate or administration, or (c) to draw or prepare any papers on which to found or oppose any such grants.
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(2)The services referred to in subsection (1) of this section may be provided by credit unions in accordance with the provisions of regulations made under this section and in compliance with the requirements of this section.
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(3)Regulations under this section may include provision for all or any of the following, namely— (a) the protection of persons for whom services are provided under this section by credit unions from conflicts of interest that might otherwise arise in connection with the provision of the services, (b) securing that adequate compensation is available to such persons in respect of negligence, fraud or other dishonesty on the part of officers or employees of credit unions in connection with the provision of the services, (c) (i) the extent to which and the manner in which services provided under this section would require the involvement of persons qualified to practise as solicitors within the meaning of the Principal Act, and (ii) the qualifications and experience of personnel generally engaged in the provision of the services, (d) the class or classes of persons to whom the services may be provided, (e) requirements relating to the approval by the Registrar of Friendly Societies of a credit union proposing to provide services, (f) the restriction of the power to provide the services to credit unions of a specified class or classes, (g) maximum rates or scales of fees, costs or expenses which may be charged by credit unions for the provision of the services, (h) taxation by a Taxing Master of the High Court of fees, costs or expenses charged by credit unions for the services, (i) such further conditions in relation to the provision of the services as the Minister may prescribe in accordance with this section.
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(4)In this section “probate” and “administration” have the meanings assigned to them by section 3 of the Succession Act, 1965 .
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(5)Any communication made to or by a credit union (including a communication made to or by an officer or employee of a credit union) in the course of its acting as such for a person in connection with providing services under subsection (1) of this section shall in any legal proceedings be privileged from disclosure in like manner as if the credit union had at all material times been acting as that person's solicitor.
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(6)(a) A credit union providing services under subsection (1) of this section shall not in relation to the provision of such services be an unqualified person within the meaning of the Principal Act. (b) A credit union which provides any of the services mentioned in subsection (1) of this section otherwise than in accordance with the provisions of this section or of any regulations made under this section shall be guilty of an offence under section 58 (2) (as amended by this Act) of the Principal Act.
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(7)Section 58 (as amended by this Act) of the Principal Act shall not apply to— (a) a credit union, (b) any officer or employee of a credit union by reason of any act done by him in the course of his office or employment on behalf of the credit union, where the credit union is providing services in accordance with subsection (1) of this section.
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(8)Section 59 of the Principal Act shall not apply to any solicitor by reason of any act done by him as an officer or employee of a credit union where that credit union is providing services in accordance with subsection (1) of this section.
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(9)Where a credit union provides services under subsection (1) of this section, it shall include in any document or advertisement issued to the public, which contains a reference to the provision of the services, a statement of the charges or the basis for the charges in respect of the services and a client shall be entitled to ask for and to be furnished with an itemised statement of that credit union's charges in respect of services provided by the credit union under subsection (1) of this section.
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(10)On the taking of instructions to provide services under this section to a person, or as soon as is practicable thereafter, a credit union shall provide the person with particulars in writing of— (a) the actual charges, or (b) where the provision of particulars of the actual charges is not in the circumstances possible or practicable, an estimate (as near as may be) of the charges, or (c) where the provision of particulars of the actual charges or an estimate of such charges is not in the circumstances possible or practicable, the basis on which the charges are to be made, by that credit union for the provision of such services.
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(11)Any information which comes into the possession of an officer or employee of a credit union by virtue of his involvement in the provision of services under subsection (1) of this section by a credit union shall not be used by him or by the credit union to promote the business of the credit union.
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(12)(a) A credit union providing services under subsection (1) of this section shall maintain separate accounting records and prepare accounts in respect of each year showing— (i) the cost to the credit union of providing the services, and (ii) the income accruing to the credit union from the charges made for the services, and, subject to subsection (3) (g) of this section, shall so provide and charge for the services that the income from the provision of the services is not less than sufficient to meet all costs properly attributable to the provision of the services taking one year with another. (b) A statement attesting the correctness of the accounts prepared in accordance with paragraph (a) of this subsection and confirming that such accounts have not been distorted as a result of any arrangement which would affect the apportionment of costs and income associated with the provision of the services and that such apportionments as have been made have been properly made shall be signed by the chairperson and treasurer of the credit union and attached to the annual accounts of the credit union.
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(13)A credit union shall not provide services under the provisions of this section unless at least one of the following conditions is satisfied: (a) regulations have been made under section 79 of this Act, or (b) the credit union is a member of a scheme (other than a scheme established under section 79 of this Act) which has been established for the investigation of complaints against the credit union in relation to the provision of services under this section and which has been approved of by the Minister.
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(14)If a person exercising any right under this section or a person acting on behalf of such a person applies for any grant of probate or letters of administration and— (a) makes a statement in the application, or supports the application with a document, which he knows to be false or misleading in a material particular, or (b) recklessly makes a statement in the application, or supports the application with a document, which is false or misleading in a material particular, he shall be guilty of an offence.
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(15)Any person guilty of an offence under subsection (14) of this section shall be liable— (a) on conviction on indictment thereof, to a fine not exceeding £10,000, (b) on summary conviction thereof, to a fine not exceeding £1,500.
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(16)Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
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(17)In this section “credit union” means an industrial and provident society registered as a credit union under the Credit Union Act, 1966 .
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Investigation of complaints about credit unions.
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79.—(1) The Minister may, by regulations made after consultation with the Minister for Enterprise and Employment, require a credit union to establish, or join in establishing, and to maintain and fund a scheme or schemes for the investigation of complaints against a credit union in relation to any services provided or any act done by such a credit union under the provisions of section 78 of this Act.
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(2)Without prejudice to the generality of subsection (1) of this section, regulations under this section may make provision in relation to any one or more of the following— (a) the establishment and administration of a scheme, (b) the manner of appointment of an independent adjudicator to conduct investigations, (c) the matters to be subject to investigation under the scheme, (d) the grounds on which a complaint must be based, (e) the powers of, and procedure to be followed in the conduct of investigations by, the adjudicator, (f) the circumstances in and the extent to which determinations are binding, (g) the procedures for the making of complaints, (h) the publication of the adjudicator's findings.
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(3)Subject to subsection (4) of this section, the reference of a complaint under a scheme established under this section shall not affect the rights of any person to have a dispute determined in any other manner provided by law.
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(4)Where, in relation to a complaint under a scheme established under this section the parties concerned agree that a determination in accordance with the scheme shall be binding on them and the scheme provides for such an agreement, then the determination shall be binding on the parties.
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(5)Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
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Non-application to applicants under European Communities regulations.
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80.—Section 24 (as substituted by this Act) of the Principal Act and regulations under section 40 (as amended by this Act) of that Act shall not apply to an applicant to whom paragraph (a) or (b) of regulation 4 of the European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991, or any provision which may amend or replace that regulation, applies.
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Amendment of section 53 of Principal Act.
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81.—With effect from the 1st day of January, 1996, section 53 of the Principal Act is amended by the substitution of the following subsection for subsection (1): “(1) A list purporting to be published by the authority of the Society and to contain the names of the solicitors who have obtained practising certificates for the current practice year before the 2nd day of February in that year shall, until the contrary is proved, be evidence that the persons named on the list are solicitors holding those certificates.”.
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Laying of regulations.
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82.—Save as otherwise provided by this Act, every regulation made by the Society under this Act shall be laid by the Society before each House of the Oireachtas as soon as may be after it is made.
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Acts Referred to Arbitration Acts, 1954 and 1980 1954, No. 26 and 1980, No. 7 Attorneys and Solicitors Act, 1870 1870, c. 28 Attorneys and Solicitors (Ireland) Act, 1849 1849, c. 53 Central Bank Acts, 1942 to 1989 Courts Act, 1981 1981, No. 11 Credit Union Act, 1966 1966, No. 19 Criminal Procedure Act, 1967 1967, No. 12 Debtors (Ireland) Act, 1840 1840, c.3-4 Vict. c. 105 Legal Practitioners (Qualification) Act, 1929 1929, No. 16 Lunacy Regulation (Ireland) Act, 1871 1871, c. 22 National Council for Educational Awards Act, 1979 1979, No. 30 Petty Sessions (Ireland) Act, 1851 1851, 14–25 Vict. c. 93 Registration of Title Act, 1891 1891, c. 29 Solicitors Acts, 1954 and 1960 1954, No. 36 and 1960, No. 37 Stamp Duties Management Act, 1891 1891, c. 38 Statutory Instruments Act, 1947 1947, No. 44 Succession Act, 1965 1965, No. 22 Supreme Court of Judicature Act (Ireland), 1877 1877, c. 57
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