Law Society Council Update January 2017

I attended my second meeting of the Council on 2nd December last. However, you may recall that my last update focussed on a review the make-up of Council rather than anything concerning Council itself.

So, in this update I propose to cover what I can from the December meeting, subject of course to the fact that the business of Council itself is governed by confidentiality, and that therefore, these updates must be restricted to matters falling properly in the public domain generally.

However, even subject to this restriction, I suspect there is a lot that is not generally known to members (and was certainly not known to me) or may not have previously been brought together in the same place. So, that’s what I aim to do here.

As previously, the general caveat applies that these are ephemeral updates that I’m compiling quickly. Therefore, I’m writing and posting this pretty much as it comes out in first draft without detailed proof reading. I offer it as a quick contemporary note of my impressions, it’s not intended to be refined legal writing or my considered opinion on these issues, so please take it or leave it as such.

Meeting with An Tánaiste

The Law Society met with the Tánaiste on 16th November 2016 with three main items on the agenda: the crisis in taxation, restoration of criminal legal aid cuts and the judicial appointments system.

While one can’t expect firm commitments from meetings of this nature I can confirm that the Society is working hard, and to my mind effectively, on these issues on your behalf and it looks like the Society had a receptive hearing from the Minister.

Since that time, I understand that Taxing Master Mulcahy’s term ended on 23 January 2017 and Taxing Master O’Neill is now the only taxing master. But at least we have one…

There has since seen a press release from the Department of Justice stating that the new Authority will be operational by the end of the Summer, see here.

The new legal costs adjudication regime is to be a priority in this context and, in order for this to be possible, the new S.150 (which replaces s.68) will have to become operational. See below for more on this.

Motor Insurance Costs

You may recall that immediately prior to the December meeting, the Joint Oireachtas Committee’s Report on the Rising Costs of Motor Insurance was published. This report was largely critical of the insurance industry for its actions and lack of transparency in contributing to the increase in insurance costs z33kmy1. It was refreshing for once not to have lawyers bearing the brunt of criticism in this area; refreshing and fair in this instance. I believe that the Law Society played a very valuable and effective role in contradicting insurance industry spin and setting out the truth of the matter for the Committee and the public. This was a good day’s work as far as the Society and the profession are concerned. That report is <a href="http://www.oireachtas zoloft” target=”_blank”>here.

Legal Services Regulation Act 2015

The Law Society’s Legal Services Regulation Act Task Force has been doing Trojan work in preparation for the implementation of the new act. As mentioned above, the new costs regime looks like being the top priority in terms of implementation of the Act. In order for it to be possible to appoint new legal costs adjudicators under the Act, it will be necessary to have commenced s.150 of the Act which will replace s.68. This will involve a completely new notification regime in relation to costs and the Task Force has prepared a suite of draft precedent notices.

You may have seen an email from the President on 20 December 2016 circulating draft s.150 notice precedent documentation and inviting observations from the profession by 20 January 2017. While the latter date has passed, s.150 and its notification procedure and the draft precedents are something that you need to start getting your head sooner rather than later.

Section 150 is here and the precedents are here. (No, I don’t have them in Word.)

Sheehan v Corr

This is an important case for all practitioners. You may recall that the Court of Appeal in this case effectively held that time recording was the primary basis for assessing solicitors’ costs. This decision has been appealed to the Supreme Court and is listed for hearing on 21 February 2017. The Law Society has been joined as amicus curiae in that case.

Brexit and Admissions to the Roll

At the time of the last meeting it was project that 1,347 solicitors from England and Wales would be admitted to the roll in 2016 of which 810 were expect to be Brexit related. Less than 100 of these had applied for practising certificates as of the December meeting. Obviously, by the end of this month we would expect to have a clearer picture of what many of these new entrants will be doing as regards practising certificates and I expect we’ll have some update on that in future meetings.

Report of eSignatures Working Group

There was an excellent presentation to Council by Dr Gabriel Brennan and Mr Peter Bolger on the work and recommendations of the eSignatures Working Group. There is far more detail to this than I can cover here, suffice to say that eSignatures will be a vital component of any future eConveyancing system (and on that, I have been appointed to the eConveyancing Task Force, by the way, and will report on progress there as I become aware of it.)

It is clear to me from this presentation that it is essential that the profession take ownership and control of an eSignature system as, if we fail to do so, we may end up with some wholly unsuitable system foisted upon us, as has already happened to some extent with ROS “signatures” being used for CRO filing for instance.

Having the profession leading the development of a robust system of eSignatures will keep us at the centre of this valuable social function, one which we are uniquely placed to perform.

In summary, it is my understanding from the report of the Working Group that they will now proceed with a cost benefit analysis, a risk assessment, engagement with Government and other stakeholders and the sourcing of a certificate authority.

Practising Certificate Fees for 2017

As you will no doubt by now be aware, an increase of €50 to the practising certificate fee was approved at the December meeting. There had been no increase to the fee since 2009 and this was recommended by the Finance Committee as being necessary to avoid a more dramatic increase in 2018.

Sandys & Anor v The Law Society of Ireland

There is another item that has come to my attention since the December meeting, which is not directly related to Council, but which I think may be of interest to colleagues, and that is the decision of the Court of Appeal in Sandys & Anor v The Law Society of Ireland, which is here.

If you practice in probate at all, I strongly recommend that you read this case, as I think that it fundamentally alters the position in relation to the requirement to provide s.68 letters to beneficiaries in probate matters. It is my understanding that, for some time now, s. 68 has been interpreted as requiring solicitors acting in the administration of an estate to provide s. 68 letters to beneficiaries. While on a strict application of this interpretation it might relate to all beneficiaries, in practice it is my understanding that it was primarily concerned with those beneficiaries who would be affected by the costs in the estate, i.e. those out of whose benefits the costs would be paid.

You will note that in the Sandys case, Finlay Geoghegan J held that the requirement under s. 68 only arose in respect of those beneficiaries from whom the solicitor had taken instructions. This seems to me to alter the current position fundamentally. Whether this will be a legacy issue, and how it might interact with an interpretation of the future application of s. 150, remains to be seen and is not something I have considered. But in terms of the current regime, this is a very significant development for practitioners.

You will note from the case, however, that the court did not have to consider the question of whether personal representatives should furnish details of s. 68 letters received by them to the paying beneficiaries at the outset and it may well be prudent for them to do so (and perhaps they should be advised to do so).

However, it seems to me that the important point to note is that the regulatory requirement for solicitors to notify a beneficiary pursuant to s. 68 would now seem only to apply when the solicitor actually accepts instructions from, and provides legal services to, the beneficiary in question.

For what it’s worth: this seems to me to make sense.  (And, of course, this is just my reading of it, not a legal opinion or advice, you’re a lawyer – read the case and form your own view.)

That’s it from me for the December update. Our first meeting of 2017 is on 27 January and you’ll hear from me with my update following that meeting in advance of the next meeting which is on 3 March.