Solicitors

Organisation

The legal profession in Ireland consists of two distinct branches.  They have separate regulators, separate training and it is not possible to be a member of both branches at once. When the Legal Services Regulatory Authority commences, it will become the single regulator.

The majority of lawyers are solicitors regulated by the Incorporated Law Society of Ireland.  About 80 to 90% of all lawyers are solicitors.

Solicitors operate from offices throughout the country.  They are not entitled to trade as companies or limited liability partnerships.  They may trade as sole practitioners or partners.

A qualified solicitor may only practise as a solicitor if he holds a practising certificate.  Mandatory insurance and compliance with certain other conditions are required on an ongoing basis.  Fees must be paid for each solicitor.  A partnership or employer firm will generally pay the practising certificate fees.

It is an offence for a person to practice law for reward in the areas set out in the Solicitors Act without being a qualified solicitor with a practising certificate.

Solicitors are restricted in the manner in which they may advertise.  Formerly the restrictions were more extensive.  Solicitors may not advertise explicitly on price nor may they claim superior knowledge of the law to other solicitors. Advertisements may only contain certain matters.

Qualification

Qualification as a solicitor generally requires the passing of a number of examinations set by the Incorporated Law Society together with a traineeship period of at least two years.  In order to sit the Law Society exam, a university degree course is generally required.  There is an alternative system whereby persons with a number of years experience in legal areas may proceed without a university degree.

All candidates must sit the Law Society entrance examinations or so-called FE1.  This is in the core legal subjects.  Formerly, exempted from this examination.

On passing this examination and securing a traineeship (formerly apprenticeship) contract with a solicitor’s office a candidate to be a solicitor could enter the Law Society Professional Course 1 and Professional Course 2 held at the Law Society premises in Dublin or Cork.

The first level is completed at an early stage of the traineeship and consists 14 weeks of full-time instruction and examination.  The second phase, PPC 2, is held approximately one year later comprising 11 weeks of further instruction and examination.

The Law Society and Bar Council of Ireland provide that solicitors and barristers respectively must engage in a defined amount of continuing legal education in each practice year.  This is a condition of maintaining a practising certificate and good standing.  Failure to do so is a disciplinary offence.

Complainants, Conduct and Discipline

Solicitors are subject to complaint procedures and discipline by the disciplinary committee of the Law Society.  Many complaints are made about solicitors by solicitors in the enforcement of solicitors undertaking.

Complaints made by the members of the public are dealt with in a number of different ways depending on their seriousness.  In the case of a less serious complaint, the matter may be dealt with by mediation, if agreed.

Any complaint must be put in full for the solicitor concerned who has the opportunity to rebut and comment on it.  If the complaint is substantiated it may be escalated ultimately to the Disciplinary Tribunal.

There are also significant powers for Law Society to investigate complaints regarding poor service and overcharging.  The Law Society may delegate complaints to a committee.  The majority of members must be laypersons but the chairman may be a solicitor.

When the complaint is made an initial investigation is undertaken.  The solicitor is given an opportunity to comment on the allegation.

A serious matter may be referred to the Solicitors’ Disciplinary Tribunal. The Disciplinary Tribunal investigates serious misconduct and may refer the matter to the President of the High Court.  The President of the High Court has the power to apply a range of sanctions including to suspend or strike off solicitors.

Clients’ Account and Audit

Apart from disciplinary matters,  practices as are subject to regulation and audit by the Law Society.  Most practices are audited every number of years with a view to verifying compliance with requirements.

The requirements in respect of the handling of clients’ money are strict.  Clients’ monies must be placed in a separate client account.  Individual memorandum accounts must be kept in respect of each individual client’s money.  There are limited basis upon which clients’ monies may be passed to the solicitor in its personal or office account capacity.

There are ongoing compliance obligations including an obligation to deliver an accountant’s certificate certifying compliance with client account requirements.

Insurance and Compensation

Solicitors must have professional indemnity insurance cover for at least €1.5 million per claim.  A solicitor may not continue in practice unless it can obtain insurance cover.

There is provision for insurance cover for solicitors who cannot obtain cover on commercial terms through the assigned risks posed.  This pool was not available in 2009 due to extreme difficulties in the insurance market.  If a solicitors’ firm fails to obtain the requisite assurance it must effectively close.

The solicitors’ compensation fund is designed to compensate clients and solicitors who suffer loss through wrongdoing (especially fraud) of solicitors.  It is financed by a levy on all solicitors.  There’ is a cap of €700,000 generally unclaimed subject to exceptional cases of grave hardship.

Monopoly

Solicitors have a statutory monopoly in the preparation of Wills and property document.  In the case of other legal documents there is no former monopoly but in practice, solicitors play the pre-eminent role in advising on the legal aspect of transactions and in providing legal advice.

Only solicitors and barristers may represent others in court proceedings for reward. Almost invariably, barristers must be instructed through solicitors.

Solicitors may not enter a partnership or business arrangement with non-solicitors.  This includes barristers but also other professionals such as accountants, etc.  A further aspect of this is that solicitors may not generally share fees or enter into fee-sharing agreements with third parties.

Right of Audience

Solicitors do have rights to appear before the higher Courts by law.  In practice, these rights have rarely been exercised other than in relation to the preliminary stages of the cases.

Formerly solicitors were not eligible to be appointed as Judges in the courts other than the District Courts.  Since 1995 and 2002 respectively solicitors are eligible to be appointed to Circuit Court and ultimately after two years to the High Court and Supreme Court.

Legal Costs

The subject of legal costs has long been controversial.  Formerly many costs were charged on scales that related to the value of transactions or cases.  Since the enactment of the Competition Act, these practices are largely impermissible.  However, the criticism has been made that many transactions are still billed largely on the basis of value or size of the transaction or size of the Court claim involved.

Legal fees are in principle set by supply and demand.  In principle, legal fees are a matter of agreement between the client and solicitor.  The solicitors’ legislation requires a detailed letter containing certain information including the basis of costs to be furnished at an early stage at the outset of any legal business.

In some cases, a fixed fee may be agreed.  However, in other cases, the complexity or uncertainty of the transaction or litigation may mean that it is difficult to specify a  fee in advance.  The modern practice is to charge on the basis of a fixed or relatively fixed fee per transaction or alternatively, particularly in commercial cases,  on the basis of an hourly charge out rate.  The charge out rate is then based on time recorded by individuals within the firm on the transaction.

Solicitors may not charge clients on the base of a proportion of the damages awarded to clients other than in debt collection cases.  Agreements which provide for payment on a successful outcome of litigation but no payment in the event of an unsuccessful outcome are void at common law on the basis that they tend to encourage and support litigation.

Reform

The subject of regulation of barristers and solicitors has been a source of controversy.  The Law Reform Commission has examined the profession and made certain reports and recommendations.  Some changes have been made on foot of these recommendations.

Certain changes were made on foot of the Competition Authority’s 2006 report into the legal profession.  These included measures to ensure that it was easier to transfer from being a barrister to a solicitor and vice versa.

The Legal Services Ombudsman legislation was passed but not commenced.  The office was designed to oversee complaints about barristers and solicitors.

The Legal Services Ombudsman was to oversee the handling of complaints by the two respective regulators, the Bar Council and Law Society.  The Legal Services Ombudsman was to be a non-lawyer.

The Ombudsman was to investigate complaints, reviews the handling of the complaint by the bodies concerned, assesses the adequacy is admission policies and promotes awareness in the public of the Bar Council’s and Law Society’s complaint procedure.

The legislation has been supervened by the Legal Service Regulation Act.

Legal Services Regulatory Authority I

A criticism made of the Bar Council and the Incorporated Law Society was that they were both the professional representative body and the regulator.  There are independent non-lawyers on the relevant regulatory and disciplinary panels and bodies.

The t IMF EU memorandum of understanding contemplates further more wide-ranging reform of the regulation of the legal profession. The Legal Service Regulation Act was passed in response. It provides for a single independent regulator. It is due to commence full regulatory responsibility from 2019.

The Legal Services Regulatory Authority, in accordance with the provisions of the Legal Services Regulation Act  2015, will regulate the provision of legal services by legal practitioners and will ensure the maintenance and improvement of standards in the provision of such services in the State.

The Authority shall be independent in the performance of its functions. The Authority will undertake its functions in accordance with the following objectives:

• protecting and promoting the public interest,
• supporting the proper and effective administration of justice,
• protecting and promoting the interests of consumers relating to the provision of legal services,
• promoting competition in the provision of legal services in the State,
• encouraging an independent, strong and effective legal profession, and
• promoting and maintaining adherence to professional principles specified in the Act.

Legal Services Regulatory Authority II

In regulating the provision of legal services by legal practitioners and ensuring the maintenance and improvement of standards in the provision of such services in the State, the Authority shall keep under review and make recommendations to the Minister and disseminate information in respect of:

• admission requirements of Law Society, Bar Council, Kings Inn
• availability and quality of education and training incl. ongoing training for the two professions
• LS/BC/HSKI policies in relation to admission/entitlement to practise
• professional codes
• the organisation of the provision of legal services in the State

The Authority shall

• specify the nature and minimum of professional indemnity insurance
• establish and administer a system of inspection of legal practitioners for purposes of Act
• receive and investigate complaints
• maintain a Roll of Practising Barristers
• promote public awareness, disseminate information in respect of legal services including their cost
• keep Minister informed of developments in respect of the provision of legal services and make recommendations in coordinating and developing policy
• undertake research on the provision of legal services which may promote an improvement in standards for their provision and public awareness, make recommendations to Minister
• perform any other functions conferred by the Act or by regulations made under it.