Law Society ‘could have done more on complaints of overcharging’

FALLOUT from the alleged practice among some lawyers of double-charging clients in residential institutional abuse cases could have been avoided if the Law Society had been more proactive in dealing with complaints, according to the Residential Institutions Redress Board (RIRB).

The RIRB yesterday welcomed the fact 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.

But a letter sent yesterday by the RIRB to Law Society director general Ken Murphy stated: “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 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.”

The letter, from RIRB secretary Michael O’Beirne, said: “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 such a proactive stance apparently was not taken by the Law Society.”

The RIRB also offered to supply lists of solicitors who have cases pending or completed with the board. It 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,” the RIRB stated in its letter.

A suggestion to write to those who have been represented by solicitors and have 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 they would not be used for correspondence,” the letter said.

“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 January 25, 2005) would suggest such communications without consent are legally flawed,” the letter added.

In a high percentage of cases before the board, the applicants have pleaded for closure on their past experiences, the RIRB has pointed out.

“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 board’s 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 its response before announcing this proposal.

“The airing of such a suggestion, before seeking the advice of those whose cooperation is necessary for its implementation, might tend to show that policy has been formed in an ad hoc way in this most serious matter,” the letter added.

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