Law Society Council Update March 2017

I attended my third meeting of the Council on 27 January last.  As always, these updates are subject to the fact that the business of Council is governed by confidentiality, and therefore, restricted to matters falling properly in the public domain generally.   And 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.  All opinions expressed are my own personal views.

January’s meeting was tight on time as it had to start and finish early owing to other unavoidable commitments by essential parties.  Accordingly, a number of items had to be adjourned to when they could be properly accommodated and therefore, there is less to cover in this update than previously.

Working Group on Cost of Motor Insurance

I mentioned this in the last update.  The Joint Oireachtas Committee’s report on the issue is here.

There was a subsequent report issued by Minister Eoghan Murphy’s Working Group on the Cost of Motor Insurance which is here.

Both reports seem balanced and fair and it seems to me have seen insurance industry spin for what it is.

The main upshot of it all is the appointment of a Personal Injuries Commission.  The Society is to be involved in this and has been asked to propose a representative and an alternate on the Commission.  The President Stuart Gilhooly and Ms Frances Twomey have been proposed as the Society’s nominees as representative and alternate.  We shall need to wait to see what ensues but it seems to me that the Society has been doing a good job here to date and it looks to me to be set to continue in that vein.

Legal Services Regulation Authority

There is little by way of concrete update to provide on this other than to say that my general impression is that what is being said politically about when things are to happen in terms of the establishment of the authority is difficult to reconcile with what is actually happening.  Perhaps for readers who haven’t come down in the last shower this will not come as a major surprise.

I seem to recall press releases pledging to have the authority properly up and running by mid-year.  I can’t see this happening.  The authority has an interim CEO who I understand will not become the permanent CEO and whose role is expressly confined to overseeing the early set up phase, opening a bank account, recruiting a CEO, locating premises; really basic stuff.  I understand that the plan is to have this concluded in the first half of the year before, one presumes, anything substantive can start to happen.

In order for the complaints handling function currently administered by the Law Society to transfer to the new authority, the Legal Practitioners Disciplinary Tribunal has to be established to replace the Solicitors Disciplinary Tribunal.  The fact that there seems to be little practical capacity available to project manage such major logistical undertakings tells me that all of this is going to take a while.

The interesting point to note is that the Act has certain very strict deadlines baked-in by which time substantial consultation processes and reports on various aspects of the professions need to be concluded.  The fuse on these was lit when the authority was formally established on 1 October 2016.  Meanwhile, time is ticking away and the authority does not appear to have much in terms of wherewithal to make progress towards meeting these deadlines.

On the positive side, the Society really does seem to have its act together on this and seems keen to offer an informed and expert hand to the fledgling authority.  This seems only right and very prudent.

On that score, the Society’s LSRA Task Force continues to be very proactive in preparing the s.150 notices that colleagues will need to start using as soon as the costs provisions of the Act are commenced.  (And it is understood that this is seen as a high priority.)  These have been circulated to the profession for consultation.  If you haven’t already familiarised yourself with them I urge you to do so, they’re here.

Taxation of Costs

This is directly related to the proposals for the early commencement of the legal costs provisions of the new Act.  In the interim, I understand that Taxing Master O’Neill has been reappointed for a three-year term which will effectively oversee the transition to the new regime.  The Society continues to press for the appointment of a second Taxing Master as a matter of urgency.

Scheme of Judicial Appointments Commission Bill

The proposed Scheme of the Judicial Appointments Commission Bill had just been published in advance of the last meeting.  You’ll find it here.

Unsurprisingly there was a lot of discussion around this topic and it ended up taking a substantial portion of the available meeting.  The upshot of it all was that it was decided to appoint a small working group on this issue to formulate a position on behalf of the Society quickly with the input of appropriate experts.  One expects to have an update on progress here in short order as, if the Society is going to take a position on this effectively, it will need to do so quickly.

My own personal observations on the scheme is that it looks to be inherent in the structure that it will preserve the predominance of the influence of the bar on appointment to the superior bench.  Apart from the Law Society representative all other legal nominees are likely to be members of the bar.  Now, I don’t take a parochial view on this and my personal position is that the overriding consideration is that we have a system that gives us the best possible judges wherever they might come from.  But if there’s just no escaping the fact that if you’re in any way serious about diversity as a consideration, there should be more diversity in the input to the appointments process.  Interestingly the scheme refers to diversity as a consideration on the appointment of lay members to the Commission but diversity is not mentioned it comes to legal members, nor indeed when it comes to the prospective appointees themselves.

An interesting point was brought to my attention that it is proposed to have the Chief Justice on the Commission and yet have a lay chair.  This would involve the Chief Justice sitting on a body of which she is not chair and I understand that constitutionally this would be unprecedented and disrespectful to the office.  I’m inclined to agree with that view but await the working group’s deliberations.

Another thing to note is the scheme introduces the concept of a legal academic not less than 12 years standing as being eligible for judicial appointment.  This isn’t something that I would be in favour of, I think experience of getting up on your hind legs regularly over many years in an actual courtroom is essential.

Finally, it must be borne in mind that even if all of this were introduced tomorrow, the Commission will still deliver a short list to the Cabinet who will make the appointment.  Under this system, it will be an actual shortlist of three names, but the final appointment decision will still be a political one.

There were other important issues on the agenda for the last meeting but time was tight and these were adjourned to the next meeting in order to be able to devote the time that was warranted to each of them.

So that concludes the meat of this update.

Sandys & Anor v The Law Society of Ireland

You may recall I referred to a decision the Court of Appeal in Sandys & Anor v The Law Society of Ireland in the last update, which is here.

It’s an important decision if you practice in probate in which case I recommend that you read it.

At the centre of this case is the inherent conflict of interest that arises when a solicitor is appointed an executor in a will.  This case determined that the beneficiaries are not clients from whom instructions are accepted for the purposes of s.68 and therefore they are not entitled to receive s.68 letters.  The court, in fact, specifically considered the scenario whereby a firm of solicitors would send a partner in that firm a s.68 letter in compliance with the legislation.

But it seems to me that even if s.68 does not require the solicitor executor to send a s.68 letter to the residuary beneficiaries there remains a conflict of interest with those paying the bill when a firm in which an executor is a partner accepts instructions to act as solicitors in the administration of that estate.

Taking this issue back to first principles, it seems to me that the most robust way to manage this conflict of interest would be to obtain the consent of the paying beneficiaries to that firm acting in the first place.  And for consent to be truly robust it needs to be informed.

So, it seems to me that in these circumstances it would be prudent to get informed approval from the paying beneficiaries before agreeing to act in these circumstances, which as with any paying party would involve them being apprised of what they can be expected to have to pay.  It’s no longer a s.68 issue, but it’s still an issue.

These are of course my own personal views on this issue and are not expressed in my capacity as a Council or Committee member.  This is just what I think; if you’ve got a practising certificate, you form your own view.

Our next meeting is on 7 April and you’ll hear from me shortly in advance of that.