Solicitors (Amendment) Act, 2002

Amendment of section 7 of Act of 1960.

9.—The Act of 1960 is hereby amended in section 7 (as substituted by section 17 of the Act of 1994) in the following respects:

(a) by the substitution of the following subsections for subsections (2) and (3):

“(2) (a) Where an application in relation to a solicitor (in this section referred to as the ‘respondent solicitor’) is duly made under this section, the Disciplinary Tribunal shall—

(i) where the Society is not the applicant, inform the Society as soon as practicable of the receipt of the application, and

(ii) before deciding whether there is a prima facie case for inquiry:

(I) send a copy of the application and of any accompanying documents to the respondent solicitor, and

(II) request that any observations which he or she may wish to make on the application be supplied to the Disciplinary Tribunal within a specified period.

(b) If, after receipt of the respondent solicitor's observations or on the expiration of the specified period, the Disciplinary Tribunal find that there is no prima facie case for inquiry, they shall so inform the applicant, the Society (where the Society is not the applicant) and the respondent solicitor and take no further action in relation to the application.

(3) If the Disciplinary Tribunal find that there is a prima facie case for inquiry, the following provisions shall have effect:

(a) they shall proceed to hold an inquiry and notify the respondent solicitor and the applicant (and, where the Society is not the applicant, the Society) of the date on which it is to be held;

(b) when holding the inquiry the Disciplinary Tribunal shall—

(i) consider each allegation of misconduct made against the respondent solicitor, and

(ii) make a separate finding in respect of each such allegation;

(c) on completion of the inquiry the Disciplinary Tribunal shall specify in a report (which shall include a verbatim note of the evidence given and submissions made) to the High Court—

(i) the nature of the application and the evidence laid before them,

(ii) the finding made on each allegation of misconduct and the reasons therefor,

(iii) any other matters in relation to the respondent solicitor which they may think fit to report,

(iv) in case they find that there has been misconduct on the part of the respondent solicitor and they have not made, and do not intend to make, an order under subsection (9) of this section—

(I) their opinion as to the fitness or otherwise of the respondent solicitor to be a member of the solicitor's profession, having regard to their findings, and

(II) their recommendations as to the sanction which in their opinion should be imposed, having regard to their findings, to any finding of misconduct on the part of the respondent solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and to any order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the respondent solicitor,

and in that case the Society shall bring the report before the Court.”,

(b) by the substitution of the following subsection for subsection (5):

“(5) The Disciplinary Tribunal shall, as soon as possible and not later than 21 days after their report has been prepared, serve a copy of it on—

(a) the respondent solicitor either personally or by sending it by registered post to the respondent solicitor's last-known residence or place of business,

(b) the Society by sending it to the Society by registered post, and

(c) any person other than the Society who has made an application under subsection (1) of this section either personally or by sending it by registered post to the person's last-known residence or place of business.”,

(c) by the substitution of the following subsection for subsection (6):

“(6) Where, on completion of an inquiry under subsection (3) of this section, the Disciplinary Tribunal find that there has been no misconduct on the part of the respondent solicitor, they shall inform the respondent solicitor and the applicant (and, where the Society is not the applicant, the Society) of their finding and the reasons therefor and take no further action in relation to the matter.”,

(d) in subsection (9)—

(i) by the substitution of “€15,000” for “£5,000” in paragraphs (b) and (c), and

(ii) by the substitution of the following for “solicitor.” in paragraph (d):

“solicitor,

and, in making any such order, the Disciplinary Tribunal shall take account of any finding of misconduct on the part of the respondent solicitor previously made by them (or by their predecessor, the Disciplinary Committee) and not rescinded by the Court, and of any order made by the Court under the Solicitors Acts, 1954 to 2002, in respect of the respondent solicitor.”,

(e) by the substitution of the following subsection for subsection (10):

“(10) On the making of an order under subsection (9) of this section, the Disciplinary Tribunal shall as soon as possible and not later than 28 days thereafter serve, in the manner provided for in subsection (5) (as substituted by the Solicitors (Amendment) Act, 2002) of this section in relation to service of their report, a copy of the order on the respondent solicitor, the Society and any person other than the Society who has made an application under subsection (1) of this section.”,

(f) by the substitution of the following subsection for subsection (11):

“(11) (a) A respondent solicitor in respect of whom an order has been made by the Disciplinary Tribunal under subsection (9) of this section, or

(b) without prejudice to subsection (12) of this section, the Society or any person other than the Society who has made an application under subsection (1) of this section,

may, within the period of 21 days beginning on the date of the service of a copy of the order or of the report, whichever date is the later, appeal to the High Court to rescind or vary the order in whole or in part, and the Court, on hearing the appeal, may—

(i) rescind or vary the order, or

(ii) confirm that it was proper for the Disciplinary Tribunal to make the order.”,

and

(g) by the insertion of the following subsections after subsection (12):

“(12A) The Society or any person who has made an application under subsection (1) of this section may appeal to the High Court within the period specified in subsection (12B) of this section—

(a) against a finding of the Disciplinary Tribunal that there is no prima facie case for inquiry into the conduct of the respondent solicitor, or

(b) against a finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in relation to an allegation of misconduct (whether or not there has been a finding by the Disciplinary Tribunal of misconduct in relation to any other such allegation), and the Court may—

(i) confirm the finding concerned,

(ii) where the appeal is under paragraph (a) of this subsection, make a finding that there is a prima facie case in relation to the allegation of misconduct concerned or, as the case may be, one or more than one of such allegations and require the Disciplinary Tribunal to proceed to hold an inquiry under subsection (3) of this section in relation to such allegation or allegations, or

(iii) where the appeal is under paragraph (b) of this subsection, rescind or vary any finding of the Disciplinary Tribunal that there has been no misconduct on the part of the respondent solicitor in relation to an allegation of misconduct and, in relation to that solicitor, by order do one or more than one of the things specified in section 8(1)(a) (as substituted by the Act of 1994) of this Act.

(12B) An appeal against a finding of the Disciplinary Tribunal under subsection (12A) of this section shall be made within 21 days of the receipt by the appellant of notification in writing of the finding.”.