Legal Services Regulation Act, 2015 – Legal Partnerships
The last piece of activity reported on was the request by the LSRA for submissions on the question of legal partnerships (partnerships including barristers). The Law Society prepared an excellent submission on the issue which focused on the importance of safeguarding the compensation fund in the context of whatever decisions might be taken around this issue.
The consultation process has since moved on to barrister specific issues on which submissions were sought by 2nd June and the Society has again made submissions to the Authority in advance of that deadline.
The Law Society LSRA Taskforce has continued its work with a particular focus on preparation for the changes that will come above with the implementation of the legal costs provisions contained in s.150 of the Act. It had been understood by all concerned that these costs provisions could be expected to be commenced in 2017. To my mind, we (by which I mean our profession represented by the LSRA Taskforce) are streets ahead when it comes to being properly prepared for this supposedly imminent change, the s.150 templates and associated CPD that have been rolled out around this are first class. Despite this, I seriously doubt we are going to see this aspect of the Act commenced in 2017.
Nevertheless, change is coming and we do need to be prepared, and you also need those sometimes difficult to come by regulatory points, so it’s worth getting on board with this.
On that point the DSBA has an excellent seminar on legal costs on 29th June at which you will get an update on the latest development on the provision to replace section 68, the new practice direction on payments on account, the eagerly anticipated Supreme Court decision in Sheehan v Corr together with a general update legal costs. It looks like it will be well worth attending. Details are here.
Judicial Appointments Commission Bill 2016
At the time of my last update the Law Society had made its submission on the Judicial Appointments Commission Bill, 2016 which supported the proposals for a lay chair and a lay majority on that commission. This Bill has since been published and is here. It appears from reports in the media that it has been approved by the Cabinet and is expected to next come before the Dail on 20th June.
We have also had some new judicial appointments in the meantime to fill essential vacancies. There are some details here.
The appointment of a female solicitor to the High Court should not be remarkable but I don’t recall having seen this before, I may be wrong and mean no offence if I have overlooked anyone who may have had this distinction previously. In any event, it is something we need to see more of.
Anti-Money Laundering
A lot of time at the last Council meeting was dominated by the question of changes in anti-money laundering legislation that is coming down that tracks. This is seen as a dull and unpopular topic by solicitors, one that I think we see as a, just about, necessary evil. I get that.
However, one little vignette that I think demonstrates the usefulness of the diversity of viewpoints that you get at Council were some comments made by Paul Keane on this issue at the last meeting where he reminded the meeting of the invidious criminal activity that was directly behind, and supported by, money laundering. Money laundering pays for executions on the streets of Dublin, and elsewhere, and provides criminal gangs with their reason for existence. We need to bear this in mind when we consider our roles in all of this.
That said, the changes that are coming down the tracks in this area are worrying in terms of the additional burdens that they are likely to impose on us as holders of client funds.
Deputy Director General Mary Keane is the Law Society’s expert in this area and has taken the lead on this issue on behalf of the profession for many years. Her knowledge in this area is impressive and the work being done by her on your behalf on this issue is vast and important.
Essentially, up to now solicitors’ client account were designated as low risk for the purposes of transposition of EU anti-money-laundering into Irish law. This left regulation of money laundering with the profession. And while you may not like the fact that you have to comply with anti-money laundering requirements and be regulated by the Law Society on this issue, just wait until you get a load of the alternative.
Long story short, on the transposition of the next round of AML legislation, the Fourth AML Directive, it looks as if the Government is not currently minded to adopt the same low risk approach to solicitors’ client accounts. If the Fourth AML Directive were to be implemented into Irish law on this basis, solicitors would then be required to undergo full client identification due diligence with banks directly when opening or operating client accounts.
In effect, this would involve solicitors becoming answerable to the banks on AML and would give rise to circumstances where banks might require identification documentation and verification directly from solicitors in respect of all monies lodged, make enquiries into the purpose and nature of the business behind monies lodged, conduct ongoing monitoring of that business and require solicitors to provide relevant information on their clients.
One can imagine these requirements varying from bank to bank and where solicitors have more than one client account with more than one bank being subject to multiple compliance checks. One can also imagine that the banks are going to want to push all of the burden of compliance down on top of solicitors in so far as they possibly can.
These changes, if implemented as currently proposed have the potential to add immeasurably to the burden of compliance imposed on solicitors in the operation of client accounts. And this is just the Fourth AML Directive, coming down the tracks behind that is the Fifth AML Directive which proposes public registers for the beneficial ownership of companies and trusts.
From my perspective, when we combine all of this with the risks that we assume from cybercrime etc., one wonders what the benefits are for us in holding client funds in the first place and whether there is an alternative to doing so.
The work being done by the Society on your behalf in this area is thankless, and nobody wants to know about. It is clear to me that the Law Society is doing everything it possibly can to try and ensure that these requirements are implemented on the best possible terms for solicitors while ensuring that the purpose of the exercise is achieved. However, I am not confident that even the best that we can hope for here is going be something any of us are going to like.
Brexit
There was no update on this issue at the last meeting but there is a piece by the Director General at page 28 of this month’s Gazette which summarises the current position on moves here by UK firms since Brexit came on the horizon.
Setanta Case
Presumably you will have heard that the MIBI’s Supreme Court appeal of the Setanta ruling has been successful and you will have received an ezine from the President on 2nd June. The web version of the ezine together with links to the judgments is here.
Financial and Business Structure Survey
A large part of the meeting was taken up by a presentation from David Rowe of Outsource on the result of the most recent survey of the profession. Details of the results of the survey provided in an article at page 44 of this month’s Gazette.
New Taxing Master
At the time of the last meeting, news of the appointment of a new taxing master was expected very shortly. We have since had it confirmed that Mr Paul Behan has been appointed as a second Taxing Master. This is very welcome news indeed and is, I believe, already having a very positive impact.
P.J. O’Driscoll, RIP
I couldn’t conclude this post without mentioning the very sad and sudden death of P.J. O’Driscoll.
P.J. was a solicitor in Bandon and we’d been counterparts as long as I’ve been in practice here in Clonakilty. We’d never been close colleagues over the years. However, in the last year or so I had gotten to know P.J. a bit better. I had never been to a Law Society annual conference before, but I decided to go to the one in Fota last year. I met P.J. there and he told me he’d never been to one either. We ended up having a very pleasant conversation that evening.
Then when I ran for Council, I was a little uncertain and sheepish about what my local colleagues might think. I was really overwhelmed by the support that I got from them and P.J. was no exception, he sent me kind and supportive emails and actively canvassed the large O’Driscoll network to get votes for me. The last time I met him was at the West Cork Bar Association Christmas party last December where we ended up sitting next to each other and had a long and very candid conversation where he was very open with me and I really appreciated that.
And then in the blink of an eye while out cycling on a sunny Sunday afternoon he was dead. At 58.
His untimely death brought two things home to me.
First, we’d known each other for almost twenty years as colleagues but had only really gotten to know one another over the last year as a result of chance meetings in Law Society and Bar Association social settings. Getting to know each other as colleagues in a non-work setting is important and something we should make an effort to do more often.
Second, I first got involved in Law Society matters by joining the Guidance and Ethics Committee and one of the areas coming within that committee’s frame of reference is the question of solicitors taking care of their physical health. It’s an issue that doesn’t get the attention it deserves. P.J. seemed to me the personification of the strong and healthy outdoors man, fit and lean, constantly active, horse riding, cycling, boating, you name it. He certainly took care of his health and it seems to me that he was just incredibly unlucky to have been victim by one of those random things that will strike a certain proportion of the population over which we have no control.
But in general terms, the care we take of our health will directly impact on the quality of your lives, particularly as we get older, and tragic events like this one serve as a stark reminder that we need to look after ourselves and not take our physical ability to do what we do for granted. Good health is a precondition for everything else in life and it can be gone in an instant.
Look after yourself.
Well that’s it for me for this month. I will be away during the period when the Council meeting is scheduled for July and there is no meeting in August. So, the next Council meeting that I will be available to attend is on 29th September and you’ll hear from me shortly before that.
Meanwhile, have a great summer!