Letter issued to the Law Society of Ireland 18th October 2005

Tuesday, 18th October 2005

Mr. Ken Murphy,
Director General,
Law Society of Ireland,
Blackhall Place,
Dublin 7.

Dear Mr. Murphy,

Thank you for your letter of the 17th instant. I am directed by the Board to reply as follows.

The Board notes that the Law Society is engaged in seeking out and adjudicating on complaints of deductions from awards and of additional charges made by solicitors in circumstances where they have already been paid by the Board. This development is welcomed.

It is only fair however to point out that much of this difficulty could have been averted if the Law Society had been more proactive in the manner in which it dealt with the original complaints. The Board is aware that the legal advice to the Law Society in the past was that, by reason of section 28 of the Residential Institutions Redress Act 2002, the Law Society was restricted in the manner in which it could investigate such complaints. The Board accepts the validity of this advice. Therefore the Board was pleased when the Oireachtas, at the request of the Minister for Education and Science, amended the legislation in July of this year to permit the type of investigation now suggested.

It is however noteworthy that there was nothing in the original legislation to prevent the Law Society taking other action of a general nature such as writing a stern note to its members pointing out the inappropriateness of the alleged deductions. The Board regrets that such a proactive stance apparently was not taken by the Law Society.

The Board is of course willing to assist in any proper way the Law Society in fulfilling its statutory obligation. To that end there is no difficulty in supplying the Law Society with a list of the solicitors who have cases pending or already finalised by the Board. The Board has already decided to publish in each annual report such a list in relation to costs paid to each firm of solicitors. The provision of the relevant extract from such an updated list at this time to the Law Society presents no difficulty. Of course such a list would not imply that any particular firm had acted improperly. Please have the appropriate officer contact the Board if you wish to access this list which has been prepared in anticipation of your request.

The Law Society?s later suggestion, that we would write directly to those who have been represented by solicitors and have already received awards, is not possible by reason of the duty of confidentiality between the Board and each applicant. The Board is aware that in many cases applicants have not informed family members of their applications. The Board is extremely conscious that there may be many reasons why applicants need privacy. Many of the applicants have used a solicitor as a buffer between the Board and themselves. The dispatching of letters to addresses supplied in such cases, which very often are addresses of convenience, would be a breach by the Board of its duty of confidentiality. In these cases the addresses were supplied on the clear understanding that they would not be used for correspondence. The Board would be posting letters which could be opened by anybody. Further, has a body such as the Board engaged in a quasi-judicial process the right to go over the head of a nominated solicitor and communicate with the solicitor?s client? The recent High Court case involving Declan O?Brien v Personal Injuries Assessment Board (MacMeniman J 25th January 2005) would suggest such communications without consent are legally flawed.

Further in a high percentage of cases before the Board the applicants have pleaded for closure of their past experiences. On many occasions the Board has been requested to come to a final decision so that the applicants can move towards recovery. Your suggestion of a further communication, not at the applicant?s initiative, would be a breach of the Boards policy of facilitating the applicant?s recovery.

The Board now understands that when the suggestion was made the Law Society did not appreciate the implications of its request. The Board accepts this explanation. However it would have been prudent to put the suggestion to the Board and await it?s response before announcing this proposal. The airing of such a suggestion, before seeking the advice of those whose co-operation is necessary for its implementation, might tend to show that policy has been formed in an ad hoc way in this most serious matter.

Furthermore, when (post publication) you did consult the Board through the undersigned your characterisation of my response as recommending acceptance was inaccurate.

The Board at this stage is of the view that it is necessary that its response be put into the public domain. It will do so through its web-site.

If the Law Society believes the Board can assist in any other way it should not hesitate to contact the undersigned.

Yours sincerely,

Michael O' Beirne,
Secretary.
18th October 2005.