The solicitors’ profession faced a situation in late 2009 which was not dissimilar to that faced by the Irish banking sector in September 2008. I wrote about it in January 2010, outlining the chain of events that led to the Law Society guaranteeing a commercial loan to an insurance broker. The guarantee was conditional on the Law Society receiving counsel’s opinion to the effect that they could give such a guarantee and that opinion was obtained. Some of us wondered if there were not legal or regulatory issues which could affect this guarantee, given by a de facto State agency to a private company with more than half of the PI market.
So, I submitted freedom of information requests to the Department of Justice and the Department of Finance. To my surprise, the Financial Regulator is not subject to the Freedom of Information Acts 1997 and 2003 (FOIA), so no application could be made to it. The requests sought all records relating to:
- the difficulties experienced in the market for professional indemnity insurance for solicitors in 2009;
- the resolution of the Law Society to guarantee repayment of a loan facility to be obtained by the Solicitors Mutual Defence Fund (SMDF) from a commercial lender; and
- all communications to and from the Law Society, the SMDF and other insurance companies, underwriters and brokers in relation to same.
The Department of Finance had nothing. Some weeks after a decision was due I received 10 documents, all falling with the third category sought (the Department does not hold any records under categories 1 and 2).
The documents primarily consist of briefing notes for internal use within the Department of Justice, most of which reproduce or paraphrase the contents of the first note. They suggest that the Law Society, which sets the rules for the professional indemnity insurance (PII) scheme, operates independently of Government. Changes to the PII regulations do not require the Minister’s agreement but he can direct the Law Society to amend the regulations. For example, one note for the Minister says that although the Council of the Law Society met to consider the issue in August 2009 “we have no information on what transpired.”
The following points are of interest:
- Ken Murphy, Director General of the Law Society, sought a meeting with the Minister for Justice in October 2009. This request is referred to in internal Department communications as relating to a briefing “on the looming ‘crisis’” in the PII scheme. The meeting took place on 15 October 2009.
- The Minister indicated that the then Minister for Enterprise, Trade and Employment should be notified of the situation. A draft letter was prepared, but it is not clear if the letter was sent. The draft letter stated:
In the event that the measures already taken by the Society, and the additional measures planned, do not sufficiently address the concerns of insurers, there may be proposals to suspend or abolish the compulsory nature of the PII scheme for solicitors. I have indicated to the Society that, in the interest of protecting clients, I would not support such a proposal.
- A later briefing note says that solicitors who have difficulty in paying their premium were told by insurance companies that they would “source the money for them (presumably involving a commission).” It also says that solicitors were being told that conveyancing should not make up more than 30% of their practice (hardly an issue for most solicitors at present).
- The last document, from February 2010, states that 18 firms had failed to notify the Law Society of their insurers by 1 February. “This is 0.8% of the 2,249 firms on record and is on a par with previous years.”
The documents are interesting in that they show the extent to which the Law Society runs the show for PII, with the Government taking a detached role. They also show that the Minister is firmly of the view that abolishing compulsory PII is not an option.
However, the most interesting aspect of the documents is the lack of any reference to the Law Society’s provision of a guarantee in favour of the SMDF. Therefore, it remains unknown what the attitude of the Department of Justice and other insurance companies is to that arrangement.
- One of the measures adopted by the Law Society last year was to exclude from PII cover the giving of undertakings by solicitors to financial institutions in commercial property transactions. However, additional top-up insurance could be purchased to cover such transactions. This morning, the Law Society announced the expected ban on giving such undertakings, to come into effect on 1 December 2010 (the first day of the new insurance year).
According to Gerard Doherty, President of the Law Society:
[T]he experience of the Society’s regulatory committees, in particular the Professional Indemnity Insurance Committee, in recent years is that the banks’ ad hoc ‘system’ (with no agreed basis or consistent usage) under which solicitors gave certain types of undertakings in order to complete commercial property transactions exposed the public interest to an unacceptable level of risk. It was essentially flawed and beyond regulatory control with a range of damaging consequences for the public interest, as experience has demonstrated.
The frailties of the commercial undertakings ‘system’, which has been the subject of critical comment by members of the judiciary, has been reviewed by the Society in the light of its capacity to facilitate reckless lending and fraud – with massive losses to lenders as in the Lynn and Byrne cases. The conflict of interest in which solicitors can find themselves, acting for both the borrower and the lender in the same transaction, is at the heart of the problem.
During the boom years solicitors were pressurised, both by borrowers and by lenders, to give letters of undertaking to lenders in commercial property transactions. This frequently led to situations where the undertakings were not complied with and many substantial loans were not properly secured.
An essential part of any banking system is to ensure that proper security is in place where loans, particularly of a substantial nature, are advanced. The risk of failure in this regard is greatly reduced if lenders retain their own solicitors to take responsibility for ensuring the security is put in place.