Law Society refuses to reopen complaint against its Tipperary based president

The Law Society’s refusal to comply with the Ombudsman’s recommendation to re-open and complete an investigation into a complaint against a Carrick-on-Suir based solicitor, who is its current president, has been brought to the attention of the Government and Legal Services Regulatory Authority. 

Taoiseach Leo Varadkar, Justice Minister Helen McEntee and the LSRA have each been sent a copy of the Ombudman’s 26-page report of its six-year investigation into the Law Society’s handling of a complaint made against solicitor Maura Derivan over alleged “inadequate professional services” and “excessive fees”.  

And they have been sent a recent letter from the Ombudsman investigator to the complainant explaining that the Law Society has refused to implement his recommendations to re-open and reach decisions on the two elements of the  complaint.

Mrs Derivan is a managing partner in the firm Derivan, Sexton & Company based at New Street, Carrick-on-Suir and is the current president of the Law Society. Her one-year term as president will end in November.

The complaint to the Law Society was made by a former county Tipperary client of Mrs Derivan with the inadequate professional services element dating as far back as 2012. 

The complainant’s subsequent complaint to the Ombudsman over the way the Law Society dealt with her case was initiated in November 2016 and concluded a year ago.   

The Ombudsman upheld her complaint and  concluded the Law Society failed to comply with its statutory obligations to reach a decision on either the inadequate legal services or excessive fees complaints and this amounted to maladministration. 

The complainant has now requested the Taoiseach, Justice Minister and LSRA’s help in securing “redress and justice”.

  The Ombudsman investigator’s letter forwarded to the Taoiseach, Justice Minister and LSRA was sent to the complainant on August 22. 

It explains that despite continued engagement with the Law Society over the past year, the Society’s position remains that it doesn’t accept the recommendations the Ombudsman made in its final report on her case, which was published in July 2022. 

Those recommendations are that the complaint against the solicitor be brought back in front of a new sitting of the Law Society’s Complaints & Client Relations Committee and that this committee complete its statutory obligations under Sections 8 and 9 of the 1994 Solicitors (Amendment) Act. 

The Ombudsman also recommended that following this sitting, the C&CR Committee gives proper reasoned explanations for its decisions on each individual aspect of the complaint. 

The letter informs the complainant that in view of the Law Society’s refusal to accept the Ombudsman report’s recommendations, there is nothing further the Ombudsman can do in relation to the case  and at this point will have to close the complaint. 

Mr Quirke explains that while the “vast majority” of Ombudsman recommendations are implemented by public bodies, the Ombudsman has no power to compel the Law Society or any public body to take action. 

“Under the Ombudsman Acts, the Ombudsman can make recommendations to a public body but the body is not obliged to accept or implement them. 

“The Ombudsman seeks to work with public bodies in a spirit of goodwill and co-operation to find the best outcome for the complainant. Unfortunately, on this occasion this approach has not led to an  agreement on this matter.” 

The letter continues: “The Law Society has acknowledged that when your relationship with your solicitor broke down, you turned to the Law Society for support and after all this time you remain of the view that that support was not provided. 

“One positive outcome of the complaint is that the Law Society accepts there were deficiencies in the manner in which it communicated its decisions to you and has committed to providing training to committee members, which will place a strong emphasis on the duty to give clear and unambiguous reasons for decisions.” 

The Ombudsman’s investigation  into how the Law Society dealt with the person’s complaint against the Carrick-on-Suir solicitor began in November 2016.

 This was four years after her initial complaint against Ms Derivan was submitted to the Law Society. 

The Ombudsman’s investigation report concluded that its analysis of the Law Society’s file on the case indicated that “at no point during the examination of the complaint against the solicitor did the Society make a determination on the Section 8 (inadequate professional services) aspect of the complaint”. 

It also concluded  the Law Society made a recommendation but not a final decision in relation to the Section 9 (excessive fees) element of the complaint. 

“Once the effort to resolve the matter by agreement had failed, the Society did not follow up on the matter and there is no indication that the Society ever formed a view on whether the costs were excessive or not.”

In view of this, it was the Ombudsman’s opinion that the Law Society “failed to complete its obligations under the Solicitors (Amendment Act) 1994 when dealing with the complaint”. 

In his letter, Mr Quirke told the complainant the Ombudsman had been in continuous correspondence with the Law Society in relation to its response to its recommendations since the conclusion of its investigation. 

He  detailed how   in the past year the Law Society appointed a new Director of Regulation who conducted an extensive review of the complainant’s entire file. 

“However,  having received independent legal advice on this in the past, the review has not changed the Law Society’s position and it continues to hold the position that there is no legal basis on which it could implement the recommendations in the report and re-open your complaint. 

“This is not a position with which the Ombudsman agrees.”

The Ombudman investigation report recounts the Law Society’s legal advice was that the principle of “functus officio” applied which in layman’s terms means the complaint case couldn’t be re-opened because it had already been decided upon.

 The Law Society has argued to the Ombudsman that to deviate from the legal advice it has received would leave the Society open to legal action.  

In a letter sent to the Ombudsman in July 2020, the Law Society stated that the complaints levelled against the solicitor were “in truth” dealt with by the C&CR Committee. 

“Whilst the Society accepts that the  Committee may not have clearly articulated in express terms the reasoning for the decisions, it is quite clear from close scrutiny of all the minutes of the Committee that decisions were indeed taken under Sections 8 and 9 of the Solicitors (Amendment) Act 1994. 

The Society contended there was “a very real issue of fundamental unfairness which the re-entering of this matter before the Committee would pose for the solicitor in question”.

“This is not so much a fair procedures issue as simply a fundamental unfairness issue and could well go to the point of breaching not only the legal rights but also the human rights of the solicitor concerned.” 

Mr Quirke wrote in his letter to the complainant in August that the Law Society believed its Complaints & Client Relations Committee made a decision to determine the complaint without any finding of inadequate legal services or excessive fees.

 But the Ombudsman believed the Law Society did not actually make a decision in relation to either the inadequate legal services or excessive fees elements of her complaint. 

The Ombudsman investigation report argues that as no decision was reached by the Law Society complaints committee, the principle of functus officio doesn’t apply in this case. 

Mr Quirke, meanwhile, concludes his recent letter to the complainant by apologising for the length of time her case was with the Ombudsman’s office. 

“Your case is exceptional in terms of how long it has been with this office and that is due to the complex nature of not just the issue itself but also the interactions with the Law Society.” 

The Law Society and Mrs Derivan were contacted for comment.  

Mrs Derivan responded that this was a matter between the Law Society and the Ombudsman.

 “I have never received any correspondence or communication from the Ombudsman as I am not a party to the complaint made to the Ombudsman, which was in relation to the Law Society’s procedures. 

 She said she understood the matter was previously dealt with by an Independent Adjudicator, who upheld the Law Society’s actions and decisions. 

 The Law Society issued the following statement: “The Law Society fully appreciates and supports the significant role the Office of the Ombudsman plays in protecting the rights of individuals.

“ It is the policy of the Law Society to engage with the Office of the Ombudsman on any relevant matters. However, the Law Society does not comment on individual investigations.” 

The Legal Services Regulatory Authority has since October 2019 handled any new excessive fees and inadequate legal services complaints made against solicitors, though the Law Society has retained any complaints predating this change. 

On receipt of the Ombudsman report and letter in relation to this case, the LSRA advised the complainant she could submit a complaint to the Authority but only about matters that were not previously considered or determined by the Law Society. 

It also advised that there may be time constraints if her dealing with the solicitor were in relation to fees or services. 

The Taoiseach and Minister for Justice were also contacted for comment.

The Department of Justice responded that the Minister  had no role in relation to complaints of this nature.

The Taoiseach’s Office stated that the Law Society of Ireland is a private body under the Solicitors Acts 1954 to 2015. However, it confirmed that correspondence was received and a response is in the process of being drafted.