The Gazette 1972

THE SOCIETY Proceedings of the Council 23rd SEPTEMBER 1971

confession of guilt to the solicitor the latter would not be entitled to put him in the witness box to commit perjury or cross-examine the State witnesses on the basis of alleged perjury on their part but mere suspicion or moral certainty short of confession is not enough. Secret commission A letter to solicitors offering a commission of one- eighth of 1 per cent on deposits introduced was sub- mitted to the Council for advice. The Council directed that the statement in the Society's Gazette of May 1961 with reference to secret commissions should be republished. It will be reprinted in the February Gazette. Lease at rack rent—costs Members asked for advice as to whether in calculating the scale fee under the Solicitors Remuneration General Orders on a lease at a rack rent a solicitor is entitled to take into account as part of the rent the amount of rates to be paid by the lessee. The Council adopted a report from a committee stating that the commission scale fee is to be calculated on the amount of the rent as stated in the lease and the amount of rates to be paid by the lessee should not be taken into account although the rent as stated in the lease is exclusive of rates payable by the lessee. Commission scale fee in probate and administration Members acted for a personal representative in a case in which the value of a farm was agreed with the Revenue Commissioners at £4,000. The farm was subse- quently offered for sale by public auction and realised £8,000 and members enquired as to the correct amount to be used in calculating the commission charge on the administration. The Council on a report from a com- mittee pointed out that the adoption of the commission scale charge is a matter for agreement with the client and is not an official or statutory charge. It is intended to represent broadly the amount for which the costs would tax if drawn on the ordinary basis. Assuming the commission scale fee is applicable in the circum- stances the Council were of the opinion that a corrective affidavit would be required and that the gross value of the estate for Drobate purposes and the commission fee would be the amount at which the farm was sold. 21st OCTOBER 1971 The President in the chair, also present, Messrs Walter Beatty, Bruce St. J. Blake, John Carrigan, Anthony E. Collins, Gerard M. Doyle, Joseph Dundon, Thomas J. Fitzpatrick, James R. C. Green, Gerald Hickey, Chris- topher Hogan, Michael P. Houlihan, Thomas Jackson, John B. Jermyn, Timothy K. Keane, Francis J. Lanigan. Eunan McCarron, Patrick McEntee, John Maher, Desmond Moran, Senator J. J. Nash, George A. Nolan, Peter E. O'Connell, Rory O'Connor, Patrick F. O'Don- nell, James W. O'Donovan, William A. Osborne, David R. Pigot, Peter D. M. Prentice, Mrs. Moya Quinlan, Robert McD. Taylor, Ralph J. Walker.

The President in the chair, also present, Messrs W. B. Allen, Walter Beatty, John Carrigan, Anthony E. Collins, Laurence Cullen, Gerard M. Doyle, Joseph Dundon, James R. C. Green, Gerald Hickey, Christopher Hogan, Michael P. Houlihan, Thomas Jackson, John B. Jermyn, Francis J. Lanigan, Eunan McCarron, Patrick McEntee, Brendan A. McGrath, John Maher, Patrick C. Moore, Desmond Moran, Senator J. J. Nash, George A. Nolan, Patrick Noonan, Peter E. O'Connell, Rory O'Connor, Patrick F. O'Donnell, James W. O'Donovan, John O'Meara, William A. Osborne, David R. Pigot, Peter D. M. Prentice and Mrs. Moya Quinlan. The following was among the business transacted. Banks—undertaking by solicitors—costs Members referred to the Society for advice a form of undertaking which they had been requested to sign by a bank. They had written to a bank giving an undertaking to hold certain title deeds in trust for the bank subject only to their claim for costs. The undertaking which they were now asked to sign was in blank and uncondi- tional so that members claims would not have any priority. The Council on a request for advice stated as follows : It is reasonable that a bank should ask a solicitor for a purchaser in a contemporaneous transaction to certify the title when depositing the title deeds with the bank not- withstanding that the solicitor is assuming a double undertaking which they had been requested to sign by a responsibility for negligence towards the purchaser and towards the bank and the fact that the bank do not pay him any fee. This has become ordinary practice. The position is different if a solicitor is asked by a bank when lodging title deeds for a client to certify the title where the purchase is not contemporaneous with the deposit. In such cases if the bank want the solicitor to certify the title they should be advised to pay him the ordinary fee. Alternatively they should have the title examined by their own law agent. As regards undertakings generally, a solicitor who signs an unconditional undertaking to hold title deeds in trust for a bank or any other party is bound by it and the undertaking takes priority over his own claim for costs against the client. If the solicitor wishes to protect his own interests in this matter the undertaking should be phrased in appropriate terms. Criminal prosecutions—duty of solicitors for accused The Council were asked for advice on the following facts. A member acting for the accused was in the cir- cumstances absolutely convinced of the client's guilt and was unwilling to act on the basis that he would cross- examine the witnesses for the State on the basis that they had committed perjury. The client had made no confes- sion of guilt. The Council on a report from a committee were of the opinion that a solicitor is not precluded from putting his client in the witness box and cross-examining the State witnesses merely because he is personally con- vinced of the client's guilt. If the client had made a

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