In detail: The newly-enacted provisions of the Legal Services Regulation Act 2015
Large parts of the landmark Legal Services Regulation Act 2015 were commenced by Justice Minister Charlie Flanagan through statutory instrument earlier this month.
S.I. No. 502/2019 - Legal Services Regulation Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2019 has come into force as of 7 October 2019.
Barrister Andrew McKeown explores the newly-enacted provisions for Irish Legal News.
Legal Services Regulatory Authority
Section 33 of the Act specifies that the Legal Services Regulatory Authority (LSRA) shall submit an annual report to the Minister for Justice specifying the number of persons admitted to practise as solicitors and barristers during that year with an assessment as to whether the number of persons admitted is consistent with the public interest.
Parts 3 and 4 relate to the inspections of legal practitioners by LSRA inspectors, to ensure that lawyers are complying with any requirements imposed by this Act or any regulations or codes issued under its authority.
Section 47, which relates to regulations regarding professional indemnity insurance, was also commenced in part.
Section 48 specifies the manner in which a contract between a legal practitioner and a client of the legal practitioner that any description of civil liability incurred by the legal practitioner may be enforced.
Complaints and disciplinary hearings
Part 6, which relates to complaints and disciplinary hearings in respect of legal practitioners, has commenced in full. The LSRA will be empowered to investigate with a broader definition of professional misconduct. The Authority is empowered to deal with complaints and to deliver limited sanctions.
The will be a complaints committee, which will be empowered to make referrals to the new Legal Practitioners Disciplinary Tribunal. The tribunal will refer serious cases to the High Court for decision on sanction.
The Act lays out that the complaints procedures will be informal, with the aim of keeping costs to a minimum. The LSRA must conduct a preliminary review of a complaint to determine its admissibility. It must first notify the legal practitioner of the complaint and allow for him or her to make submissions or observations on the complaint.
The 2015 Act provides for the rejection of complaints that are frivolous or vexatious, or which are not well founded, or are out of time (three-year time period), or relate to a matter already decided under the act, the Solicitors Acts, or in civil or criminal proceedings. The charging of legal fees that are grossly excessive will be a matter of professional misconduct.
Limited liability partnerships
Chapter 3 of Part 8, which provides for limited liability partnerships (LLPs), has also commenced. Partners in law firms will be able to protect their personal assets by setting up LLPs. Legal Partnerships have heretofore been governed by the 1890 Partnerships Act.
New LSRA-approved regulations will need to be passed before the first LLPs can be set up. Whereas partners are currently jointly and severally liable for the debts of the firm, under the LLP structure debts are limited to the assets of the partnership.
Part 10, on legal costs, provides that the Office previously called the Taxing-Masters’ Office shall be known as the Office of the Legal Costs Adjudicators and sets out new provisions on the taxation of costs. It also provides for legal practitioners’ duties in relation to legal costs, and for the adjudication of legal costs.
Solicitors and barristers are now required to inform their clients in more detail about fees, in the form of a Notice, which should be provided when receiving instructions. The Notice must disclose the costs that are involved, or, where this is not known, the basis upon which such costs are to be calculated.
Patents of precedence
Part 12, on patents of precedence, sets out new procedures for the granting of Letters Patent to legal practitioners. “Patent”, pursuant to the now commenced section 170 of the Legal Services Regulation Act 2015, means both a Patent of Precedence granted to a barrister which entitles him or her to be called to the Inner Bar and to use the title of “Senior Counsel”, and a Patent of Precedence granted to a solicitor which entitles him or her to use the title of “Senior Counsel”.
Section 171 states that the Government may, on the advice of an Advisory Committee (consisting of the Chief Justice, the President of the High Court, the Attorney General, the Chairperson of the Bar Council, the President of the Law Society, and a lay member of the Authority nominated by the Minister), grant or revoke such patents.
Patents may be granted to legal practitioners who have, in his or her practice as a legal practitioner, displayed “a degree of competence and a degree of probity appropriate to and consistent with the grant to him or her of a Patent”, professional independence, and “one or more of the following: a proven capacity for excellence in the practice of advocacy; a proven capacity for excellence in the practice of specialist litigation; or specialist knowledge of an area of law”.
Applicants must also be suitable on the grounds of character and temperament. Revocation may be ordered by the Government, on the recommendation of the committee, where the High Court has made an Order pursuant to section 85(7)(g) and application is made by the LSRA to the Committee.
Appearing in court
Section 211 provides that it shall be a matter for agreement between the solicitor and the barrister involved in a case as to whether the right of audience shall be exercised by the solicitor or the barrister, or partly exercised by the solicitor and partly exercised by the barrister.
The section notes that where the solicitor and the barrister cannot reach agreement as to who shall exercise rights of audience, the client shall determine the legal practitioner who is to take the lead role and the manner in which the right of audience shall be exercised on his or her behalf.
Section 212 notes that a barrister may take up paid employment, and that as part of that employment, may provide legal services to his or her employer, including by appearing on behalf of that employer in a court, tribunal or forum for arbitration.
Section 215 provides that a legal practitioner who has accepted instructions to appear in court on behalf of 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.