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27 1994

SOLICITORS (AMENDMENT) ACT, 1994

PART VI

Practising Certificates and Practice

Application for practising certificate (section 47 of Principal Act).

54. —The Principal Act is hereby amended by the substitution of the following section for section 47:

Application for practising certificate.

47.—(1) Subject to the provisions of this Act, the Society may make regulations with regard to—

(a) applications for practising certificates, and

(b) the issue of practising certificates (including the form of such certificates).

(2) The Society may make regulations pursuant to subsection (1) of this section requiring that every solicitor who applies to the Society for a practising certificate in respect of a practice year commencing after a date specified in the regulations shall not be issued with such practising certificate unless such solicitor has furnished to the Society written evidence of there being in force the prescribed minimum level of cover for indemnity against losses arising from claims against him as required by indemnity regulations in force under section 26 of the Solicitors (Amendment) Act, 1994, for the duration of the practice year in respect of which such practising certificate so applied for relates.

(3) The registrar shall maintain a register of practising solicitors (in this Act known as ‘the register’) and the register shall include the following particulars relating to each solicitor issued with a practising certificate—

(a) the full name of the solicitor,

(b) his place or places of business,

(c) the date of his admission as a solicitor, and

(d) particulars of his cover for indemnity against losses for claims against him required by indemnity regulations in force under section 26 of the Solicitors (Amendment) Act, 1994.

(4) (a) The register, which may be kept in an electronic or such other non-written form as is considered appropriate by the Society, shall be available for inspection during office hours without payment by any person who applies to inspect it,

(b) if the register is kept in an electronic or other non-written form, the Society may comply with its obligation to have the register available for inspection under paragraph (a) of this subsection by making any relevant entry in the register available in written form for inspection in accordance with the said paragraph (a), and

(c) the Society may publish at any time in whatever manner they deem appropriate the names and the place or places of business of solicitors entered on the register.

(5) Subject to the provisions of this Part of this Act and of the Solicitors (Amendment) Act, 1994, the registrar shall issue a practising certificate to a solicitor on application being duly made by him in that behalf, as may be prescribed.

(6) Where a solicitor alleges that the registrar has wrongly refused to issue him with a practising certificate, he may apply to the President of the High Court who may make such order in the matter as he thinks fit.

(7) On the coming into effect of regulations made under subsection (1) of this section, the provisions of the Third Schedule and the Fourth Schedule to this Act shall cease to have effect.

(8) The Minister may direct the Society to make regulations (or to amend regulations made) under subsection (1) of this section providing for the requirement set forth in subsection (2) of this section.”.

Saving for regulations made under section 47 of Principal Act and amendment of section 48 of Principal Act.

55. —(1) Notwithstanding the coming into effect of regulations made by the Society under section 47 (1) (as substituted by this Act) of the Principal Act, a practising certificate which is in force at the time of the passing of this Act shall, unless subsequently suspended pursuant to section 20(3) (as substituted by this Act) of the Act of 1960 or section 58 of this Act, continue in force until the end of the practice year during which it was issued and shall then expire.

(2) Section 48 of the Principal Act shall be amended with effect from the 1st day of January, 1996—

(a) by the substitution of the following subsection for subsection (1):

“(1) A practising certificate issued during the period beginning on the 1st day of January in any year and ending on the next following 1st day of February shall bear the date of the said 1st day of January and a practising certificate not so issued shall bear the date of the day on which it is issued.”,

(b) by the substitution in subsection (3) of:

“the 1st day of February” for “the 5th day of February” where it occurs.

Prohibition on practising as solicitor without practising certificate.

56. —(1) No solicitor shall practise as a solicitor unless a practising certificate in respect of him is in force.

(2) Without prejudice to section 29 (5) (as substituted by this Act) of the Principal Act, a solicitor shall be deemed to practise as a solicitor if he engages in the provision of legal services whether as a sole practitioner or as a partner in a solicitor's practice or as an employee of any solicitor or of any other person or body, or as a solicitor in the full-time service of the State within the meaning of section 54 (3) (as substituted by this Act) of the Principal Act.

(3) Subsection (1) of this section shall not apply to—

(a) a solicitor in the full-time service of the State within the meaning of section 54 (3) (as substituted by this Act) of the Principal Act, or

(b) a solicitor whose name is on the roll and who does not stand suspended from practice and who is employed full-time in the State to provide conveyancing services for his employer, provided that such employer is not a solicitor.

(4) In paragraph (b) of subsection (3) of this section “conveyancing services” means services in connection with the preparation of transfers, conveyances, contracts, leases or other assurances in connection with the disposition or acquisition of estates or interests in land.

Acting as a solicitor without a practising certificate.

57. —Without prejudice to the generality of section 3 (as amended by this Act) of the Act of 1960, and without prejudice to any provision of or proceedings under section 55 (as amended by this Act) of the Principal Act a solicitor who acts as a solicitor when not a solicitor qualified to practise under section 54 (as substituted by this Act) of the Principal Act by reason of a practising certificate in respect of him not being in force when such a practising certificate is required by the Solicitors Acts, 1954 to 1994, shall be guilty of misconduct.

Suspension of practising certificates.

58. —(1) Where a solicitor fails to comply with any provision of the Solicitors Acts, 1954 to 1994, or with any regulations made thereunder or with any conditions specified in a direction relating to a practising certificate under section 59 of this Act, and the Society are of the opinion that such failure to comply is serious and warrants the making of an application under this section, the Society may, on notice to that solicitor, apply to the President of the High Court and the President of the High Court may (after hearing such evidence and receiving such submissions from the Society, the solicitor concerned and such other person or persons as the President of the High Court thinks fit) by order do one or more of the following things, namely—

(a) suspend the current practising certificate of the solicitor for such period as the President of the High Court thinks fit up to and including the end of the current practice year;

(b) direct the Society not to issue to the solicitor a practising certificate during any subsequent practice year until such time as the President of the High Court thinks fit;

(c) direct the solicitor to take such action as the President of the High Court thinks fit to remedy any consequences of his failure to comply with such Acts, regulations or conditions;

(d) direct the solicitor to take such action as the President of the High Court thinks fit to ensure that the solicitor does not in the future so fail to comply with such Acts, regulations or conditions;

(e) adjourn the application and direct that further enquiries be made by the Society in regard to the matter, or require the Society to furnish further information to the Court;

(f) adjourn the application for such period as the President of the High Court thinks fit, to enable the solicitor to comply with any direction or directions of the President of the High Court under paragraph (c) or (d) (or both) of this subsection;

(g) dismiss the Society's application.

(2) The Society shall, unless otherwise directed by the President of the High Court, arrange to publish, as soon as possible after it is made, the terms of any order made by the President of the High Court under subsection (1)(a) or (1)(b) of this section in the Iris Oifigiúil and in the Gazette of the Society and in any other manner as the Society may think fit.

(3) Any application made by the Society pursuant to subsection (1) of this section shall be without prejudice to the right of the Society under section 7 (as substituted by this Act) of the Act of 1960 to apply to the Disciplinary Tribunal for an inquiry into the conduct of the solicitor concerned on the ground of alleged misconduct.

Imposition of conditions while practising certificates are in force.

59. —(1) Subject to and in accordance with the provisions of this section, the Society may give a direction that the practising certificate issued to a solicitor and for the time being in force shall have effect subject to such specified conditions as the Society may think fit and a reference in this section to such a direction shall be deemed to include a reference to such specified conditions.

(2) The Society may give a direction under subsection (1) of this section where, had an application for a practising certificate been made by the solicitor concerned at the time the direction is given, one or more of the circumstances set out in section 49 (1) (c) to (p) (as substituted by this Act) of the Principal Act would have applied to that solicitor.

(3) Subject to subsection (4) of this section, a direction given under subsection (1) of this section shall have effect from the date that is 21 days after the date of receipt by the solicitor concerned of notification in writing of the giving of such direction, whereupon that solicitor shall, within that period of 21 days, surrender his current practising certificate to the Society and the Society shall, as soon as possible, re-issue it with the specified conditions endorsed thereon to that solicitor.

(4) A solicitor in relation to whom the Society give a direction under subsection (1) of this section may, within 21 days of the receipt by him of notification in writing of the giving of such direction, appeal to the President of the High Court against the giving of that direction.

(5) Notwithstanding that the solicitor concerned appeals to the President of the High Court under subsection (4) of this section, the direction given by the Society under subsection (1) of this section shall have effect from the date specified in subsection (3) of this section up to the date of the determination of such appeal, unless the President of the High Court, on application by that solicitor, otherwise orders.

(6) Where an appeal has been brought by a solicitor under subsection (4) of this section and the President of the High Court has made an order under subsection (5) of this section staying the coming into effect of the direction given by the Society, the Society may, on notice to that solicitor, make application to the President of the High Court at any time thereafter, and the President of the High Court may (on the hearing of that application) dismiss such appeal and confirm the direction given by the Society if the President of the High Court is satisfied that that solicitor has delayed unduly in proceeding with such appeal and may for that purpose revoke any order which he has made under subsection (5) of this section.

(7) On hearing an appeal under subsection (4) of this section, the President of the High Court may, by order, do one or more of the following things, namely—

(a) confirm the direction given by the Society;

(b) direct that the current practising certificate of that solicitor shall have effect subject to such conditions as the President of the High Court thinks fit;

(c) direct that any subsequent practising certificate issued to that solicitor shall have effect subject to such conditions as the President of the High Court thinks fit;

(d) revoke the direction given by the Society;

(e) direct as the President of the High Court otherwise thinks fit;

(f) revoke or vary any order which he has made under subsection (5) of this section.

Proof of practice by an unqualified person.

60. —(1) Where the registrar has reasonable grounds to believe that an unqualified person was at a particular time acting as a solicitor, he may issue a certificate in writing to that effect.

(2) Upon production in court by or on behalf of the Society or the registrar of a document purporting to be a certificate referred to in subsection (1) of this section, it shall be presumed until the contrary is proved that the said certificate was properly issued by the registrar and the contents of the certificate shall be admitted as prima facie evidence of the facts therein stated.

Direction to grant or refuse practising certificate (section 49 of Principal Act).

61. —The Principal Act is hereby amended by the substitution of the following section for section 49:

Direction to grant or refuse practising certificate.

49.—(1) This section applies where a solicitor makes application for a practising certificate in any one or more of the following circumstances:

(a) he has, for 12 months or more, ceased to hold a practising certificate in force (exclusive of cases in which the applicant has practised as a solicitor in the full-time service of the State within 12 months before his application);

(b) he has not held a practising certificate in force within 12 months following the date of his admission as a solicitor;

(c) he is a person in respect of whose person or property any of the powers and provisions of the Lunacy Regulation (Ireland) Act, 1871, or any Act amending or extending that Act, relating to management and administration of property apply;

(d) he has an office or place of business in more than one place at any one time (disregarding, where he has a Dublin agent, the office or place of business of such agent) and having been invited by the Society to satisfy them that he exercises adequate personal supervision over each office or place of business, he has failed to satisfy the Society as aforesaid and has been notified in writing by the Society that he has so failed;

(e) he has been invited by the Society to give an explanation in respect of any matter affecting his conduct (including conduct in another jurisdiction), and he has failed to give the Society an explanation in respect of that matter which the Society regard as sufficient and satisfactory, and has been notified in writing by the Society that he has so failed;

(f) he has had an order of attachment or committal made against him;

(g) he has had a judgment or decree given against him—

(i) which involves the payment of moneys, and

(ii) which is not a judgment or decree in relation to which he is entitled, as respects the whole effect of the judgment or decree upon him, to indemnity or relief from any other person,

and he has not produced to the registrar evidence of the satisfaction of such judgment or decree;

(h) he has been adjudicated a bankrupt;

(i) he has entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors;

(j) he has failed to comply with an order of the High Court;

(k) he has failed to comply with regulations made under section 66 (as substituted by the Solicitors (Amendment) Act, 1994) or 71 (as amended by the Solicitors (Amendment) Act, 1994) of this Act or section 73 of the Solicitors (Amendment) Act, 1994;

(l) he has failed to comply with a determination, requirement or direction of the Society under section 8 , 9 or 10 of the Solicitors (Amendment) Act, 1994;

(m) he has been sentenced to a term of imprisonment;

(n) he has failed to comply with the terms of any regulations in force by virtue of the power vested in the Society by section 26 of the Solicitors (Amendment) Act, 1994;

(o) he has failed to attend a course or courses of further education or training (or both), where his attendance at such course or courses was required in the prescribed manner by the Society;

(p) he has failed to satisfy the Society that he is fit to carry on the practice of a solicitor, having regard to the state of his physical or mental health;

(q) he has failed to satisfy the Society that, having regard to all the circumstances, including the financial state of his practice, he should be issued with a practising certificate or a practising certificate not subject to specified conditions.

(2) (a) Where this section applies, the Society shall as soon as practicable consider the application (including such submissions as may be made by or on behalf of the applicant) and shall thereafter direct the registrar to do any one of the following things:

(i) issue a practising certificate unconditionally;

(ii) issue a practising certificate subject to such specified conditions as the Society think fit, including conditions requiring the solicitor concerned to take any specified steps that the Society consider necessary for his carrying on an efficient practice as a solicitor and notwithstanding that any such specified steps may result in expenditure being incurred by the solicitor concerned; or

(iii) refuse to issue a practising certificate.

(b) If the Society direct the registrar either to refuse to issue a practising certificate or to issue a practising certificate subject to specified conditions, the solicitor concerned shall, as soon as possible, be notified in writing by the Society of the direction and the grounds on which it was given.

(3) A solicitor in relation to whom the Society have directed the registrar under subsection (2) (a) of this section either to refuse to issue a practising certificate or to issue a practising certificate subject to specified conditions may, within 21 days of the receipt by him of the notification in writing of such direction, appeal to the President of the High Court against such direction to refuse or against the specified conditions, or any of them, as the case may be.

(4) Notwithstanding that the solicitor concerned appeals to the President of the High Court under subsection (3) of this section, the direction of the Society to the registrar under subsection (2) (a) of this section shall have effect up to the determination of such appeal, unless the President of the High Court, on application by that solicitor, otherwise orders pending the determination by him of such appeal.

(5) Where an appeal has been brought by a solicitor under subsection (3) of this section and the President of the High Court has made an order under subsection (4) of this section directing the registrar to issue a practising certificate (whether unconditionally or subject to specified conditions) to that solicitor pending the hearing of such appeal, the Society may, on notice to that solicitor, make application to the President of the High Court at any time thereafter, and the President of the High Court (on the hearing of that application) may dismiss such appeal and confirm the direction of the Society to the registrar under subsection (2) (a) of this section, if the President of the High Court is satisfied that the solicitor concerned has delayed unduly in proceeding with such appeal and may for that purpose revoke any order which he has made under subsection (4) of this section.

(6) On hearing an appeal under subsection (3) of this section, the President of the High Court may—

(a) in relation to an appeal against a direction by the Society to the registrar to refuse to issue a practising certificate to the solicitor concerned, by order—

(i) confirm the direction to refuse and revoke any practising certificate already issued pursuant to an order under subsection (4) of this section,

(ii) rescind the direction to refuse and direct that any practising certificate already issued pursuant to an order under subsection (4) of this section or any practising certificate to be issued by the registrar be issued unconditionally, or

(iii) rescind the direction to refuse and direct that any practising certificate already issued pursuant to an order under subsection (4) of this section or any practising certificate to be issued by the registrar be issued subject to such specified conditions as the President of the High Court thinks fit;

(b) in relation to an appeal against a direction by the Society to the registrar to issue a practising certificate subject to specified conditions, by order—

(i) confirm the direction,

(ii) rescind the direction, or

(iii) vary the specified conditions, or any of them.

(7) The registrar shall cause particulars of a direction by the Society under subsection (2) (a) (ii) or (iii) of this section or an order of the President of the High Court under subsection (6) of this section to be entered in the register in relation to the solicitor concerned.”.

Qualifications for acting as solicitor (section 54 of Principal Act).

62. —The Principal Act is hereby amended by the substitution of the following section for section 54:

Qualifications for acting as solicitor.

54.—(1) A solicitor who has the qualifications specified in subsection (2) of this section may act as a solicitor and is referred to in this Act as a solicitor qualified to practise.

(2) The qualifications referred to in subsection (1) of this section are—

(a) that the name of the solicitor is on the roll;

(b) that he does not stand suspended from practice;

(c) that either he is a solicitor in the fulltime service of the State or a practising certificate in respect of him is in force; and

(d) that the solicitor concerned has not given an undertaking to the High Court that he will not act as a solicitor or if he has given such an undertaking, that it has been discharged by the Court.

(3) A solicitor shall be regarded as a solicitor in the full-time service of the State if and while he is required to devote the whole of his time to the service of the State as solicitor and is remunerated in respect of such service wholly out of moneys provided by the Oireachtas.”.

Amendment of section 55 of Principal Act.

63. —Section 55 of the Principal Act is hereby amended by the substitution in subsection (2) of “£10,000” for “two hundred pounds” and “£1,500” for “fifty pounds” and the subsection as so amended is set out in the Table to this section.

TABLE

(2) A person who contravenes subsection (1) of this section shall, without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and shall be liable—

(a) on conviction thereof on indictment, to imprisonment for a term not exceeding two years or, at the discretion of the Court, to a fine not exceeding £10,000 or to both such fine and such imprisonment, or

(b) on summary conviction thereof, to imprisonment for a term not exceeding six months or, at the discretion of the Court, to a fine not exceeding £1,500 or to both such fine and such imprisonment.

Amendment of section 56 of Principal Act.

64. —Section 56 of the Principal Act is hereby amended by the substitution in subsection (2) of “£1,500” for “fifty pounds” and the subsection as so amended is set out in the Table to this section.

TABLE

(2) A person who contravenes subsection (1) of this section shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding £1,500.