The Legal Services Regulatory Authority 2020 Year in ReviewMarch 2022
In 2021 the Legal Services Regulatory Authority (“LSRA”) published its annual report for 2020 (“the Report”) to Helen McEntee TD, Minister for Justice and to the Oireachtas Joint Committee on Justice. For the first time the report provides an interesting insight to the provision of legal services in Ireland and the future of those services since the establishment of the LSRA.
As many of you will be aware the LSRA is the independent regulator for the Irish legal profession. The LSRA was set up with a view to independently regulating the provision of legal services by legal practitioners and ensuring maintenance and improvement of standards in the provision of those services in the State. This is the LSRA’s fifth annual report which details their performance of functions in 2020 taking into consideration the unprecedented challenges brought about by the Covid-19 pandemic.
Complaints, Investigations and Resolutions
The 2020 Report covers the first full year of LSRA complaints handling operations. The LSRA received and investigated a high level of complaints throughout the 2020. In addition, guidelines on the informal resolution of complaints as well as other documents setting out complaints-related policies and procedures have been published on the LSRA website. This is to assist the public and legal practitioners. The Complaints, Investigations and Resolutions Department grew steadily from 12 at the end of 2019 to 19 at the end of 2020.
The Complaints Committee and Review Committee were both established in 2020. The Complaints committee has 27 members comprised of 8 members nominated by the Law Society; 4 members nominated by the Bar of Ireland; and 15 lay members.
The Complaints Committee may sit in Divisional Committees of 3 or 5 members. Complaints of alleged misconduct that are admissible are referred to the Complaints Committee for investigation. There were three sittings of the Divisional Committee in 2020.
The Review Committee sits in groups of 3 and can review determinations made by the LSRA on complaints that relate to inadequate legal services or charging excessive costs. The Review Committee was not required to carry out that function in 2020.
The LSRA can receive three types of complaints;
- that the legal services provided were of an inadequate standard;
- the amount of costs sought by the legal practitioner for legal services was excessive; and
- that an act or omission of a legal practitioner constitutes misconduct. Misconduct is broadly defined and includes an act or omission which involves fraud or dishonesty, or which is likely to bring the profession into disrepute. It also includes the provision of legal services which were of an inadequate standard to a substantial degree, or the seeking of grossly excessive costs.
Only a client or someone acting on a client’s behalf can bring a complaint where the client considers legal services provided were of an inadequate standard or the amount of costs were of sought were excessive. Regarding alleged misconduct, any person can make a complaint.
Section 73 of the Act requires the LRSA to report on the performance of its complaints function every six months. To date two such reports have been published. The Act and associated Regulations set out detailed processes for the handling of complaints including a series of statutory deadlines. Complaint’s handling begins with files opened initially as queries. Complaints staff then decide whether a query should be classified as a complaint or be dealt with as a query.
Once a query is classified as a complaint, the LSRA is required to conduct a preliminary review to assess if the complaint is admissible. The LSRA must notify the legal practitioner of the complaint in writing, provide a copy of the complaint, and request a written response with observations. Complaints staff may also at this preliminary review stage request additional information in writing from either the complainant or the legal practitioner.
Informally Resolving Complaints
The LSRA encourages early resolution of complaints where appropriate. The LSRA are required to invite the parties to make efforts to resolve matters in relation to admissible complaints. Staff who work to resolve complaints informally through the informal resolution process are qualified mediators accredited by the Mediator’s Institute of Ireland. Where parties decline the invitation for informal resolution, or where a complaint cannot be informally resolved, the complaint then comes back into the complaints process.
New Queries and Complaints
The Complaints, Resolutions and Investigations Department received 3,605 phone calls and emails in the year requesting information and/or complaint forms.
A total of 1,869 query files were opened by complaints staff in 2020. 1,422 were substantially classified as complaints. The remaining 447 query files were ultimately closed. An additional 365 complaints files were closed during the year, totalling 812 closed files in 2020.
Solicitors received more complaints than barristers, reflecting their higher numbers and greater level of contact with consumers. Of the 1,422 complaints received 1,389 related to solicitors while 33 related to barristers. It is evident that poor communication is still very much at the heart of the complaints that are received.
The largest category of complaints, at 819 (58%) related of alleged misconduct. Of the total, 218 related to conduct likely to bring the profession in to disrepute. 143 related to a failure to communicate, 107 were linked to failure to hand over a file or other documents, 81 involved a failure to comply with an undertaking given to a colleague or financial institution, 71 related to failure to account for clients’ money and 57 involved alleged fraud or dishonesty.
A total of 496 (35%) complaints were received alleging that the legal services provided were of an inadequate standard. Of these, 153 complaints related to litigation, 112 related to the administration of estates and a further 112 were in connection with conveyancing.
Overall, 107 (7%) complaints were received which alleged that excessive costs had been sought. Of these, 38 related to litigation, 24 relating to family law, 18 to conveyancing and 11 to probate.
A total of 365 complaints were closed during 2020. Of these, 184 complaints were deemed inadmissible following a statutory assessment. The 2019 Annual Report highlighted a compelling number of complaints were being informally resolved at a very early stage in the complaints process. That trend continued during 2020, overall, 104 complaints were informally resolved.
A total of 62 complaints were withdrawn following exchanges of information between parties. 15 complaints could not proceed for various reasons, for example, where court proceedings were in progress. Only one complaint was referred to the Legal Practitioners Disciplinary Tribunal. The Divisional Committees of the Complaints Committee heard a total of 19 misconduct cases in 2020.
Complaints to the Ombudsman
Complainants who were unhappy for instance if their complaint was deemed inadmissible could bring a complaint to the Office of the Ombudsman. In 2020, 38 complaints were made to the Ombudsman. Of these, 29 were closed due to the Ombudsman being satisfied that the LSRA had dealt with matters correctly. A total of three complaints were under investigation by the Ombudsman and six were pending investigation at the end of 2020.
Disciplinary Tribunal Established
The Legal Practitioners Disciplinary Tribunal (LPDT) was established on 23 November 2020. The LPDT is an independent statutory body under the Legal Services Regulation Act 2015. It considers complaints of misconduct against solicitors and barristers referred to it from the Complaints Committee or Law Society.
The LPDT has 33 members appointed by the President of the High Court on the nomination of the Minister. It has 21 lay members nominated by the Minister of Justice. It also has 6 nominees of the Bar of Ireland and 6 nominees of the Law Society.
The LPDT is a successor body to the Solicitors Disciplinary Tribunal and the Barristers Professional Conduct Tribunal. As an independent statutory body, the LPDT will in future report on its own activities in its own Annual Report.
Legal service and Registration
The LLP authorisation framework, the Legal Services Regulation Act 2015 (Limited Liability Partnerships) (Section 130) Regulations 2019, was issued on 23 October 2019. A total of 230 partnerships of solicitors were authorised to operate as LLPs in 2020 compared to 28 in 2019. This brought the total number of LLPs operating in the State to 258 by the end of 2020.
A total of 74 LLPs were authorised in Dublin, 38 in Cork, 12 in Galway and 8 each in Donegal, Kerry, Kildare, Limerick and Louth. Most partnerships of solicitors authorised as LLPs had between two and five partners. A total of four partnerships of solicitors authorised had more than 20 partners.
Authorisation to operate with limited liability under the Act permits existing partnerships of solicitors to limit their personal liability. A partner may still be liable for a debt, obligation or liability arising from an act or omission of the partner which involves fraud or dishonesty, and which was the subject of either a misconduct finding or criminal conviction.
Final Report on Education and Training
A report with 12 recommendations for reform of legal practitioner education and training was submitted to the Minister for Justice in September 2020 and laid before the Houses of Oireachtas in November 2020. This was the second report on the legal education and training arrangements in the State.
The 2020 Report, Setting Standards: Legal Practitioner Education and Training, recommended reforms to, for the first time, define the competence and standards required to practise as a solicitor or barrister. It recommended to establish a statutory framework to accredit existing providers of legal practitioner education and training. Also, for the first time, it recommended allowing new providers to be accredited to provide professional training for solicitors and barristers.
The first statutory report in 2018 engaged a review team to set out a series of proposals for reform of the education and training of legal practitioners. The review team found evidence of a lack of clarity around the competencies required of a solicitor or barrister; the existence of indirect barriers to entry into the profession; the existence of unnecessary duplication in learning and assessment; a mismatch of the skills taught in current professional qualification courses with the needs of the user of legal services; the existence of quality gaps and a lack of independent oversight of the system of legal practitioner education and training.
These earlier recommendations are consistent with the 12 Setting Standards: Legal Practitioner Education and Training recommendations set out by the LSRA.
The LRSA’s Chairperson and chief executive discussed these recommendations during a virtual meeting with the Minister for Justice and the Minister for State in October. Following the meeting, the Minister notified the LSRA that her department would engage it in drawing up an implementation plan for reform.
The Minister requested further research and a report with recommendations for change considering the economic and barriers faced by young barristers and solicitors following their professional qualification, paying special attention to equity of access and entry into the legal profession with the objective of achieving greater diversity. The LSRA team began and will continue this work with professional surveys of trainees and those in their early career.
Report on the Unification Question
Another significant report, Greater than the Sum of Its Parts? Consideration of the Unification of the Solicitors’ and Barristers’ Profession, was submitted to the Minister for Justice in September on the question of whether the solicitors’ and barristers’ profession should be unified. The report concluded it would be premature to recommend unification. The LSRA undertook to return to the matter within five years. It is expected that the landscape for legal services will have evolved sufficiently in that timeframe to reassess.
Overall, the LSRA has had a good year taking into account the Covid-19 restrictions. It was a significant year for being the first full year of several key functions and the availability of Legal Partnerships. A number of positive steps have been taken by the LSRA to ensure independence and regulation of the legal profession is protected for the benefit of those accessing legal services. We watch with interest if there will be any future recommendation for the possible merging of the solicitor and barrister professions, as the legal landscape is continuously evolving.Download PDF