The Gazette 1996

GAZETTE

APRIL /MAY 1996

P R A C T I C E

N O T E S

s n f e S "

Avoid General Liability

and the CCBE Code of Conduct for Lawyers in the European Community.

Foreign Agents Fees £50,000 - YOU PAY

Besides the matter of fees, solicitors should also ensure, when an agent is appointed, that the foreign lawyer and the client understand that the Irish solicitor has no expertise in the foreign legal system and relies on the foreign lawyer to advise fully in relation to all matters, including the feasibility of the action being taken.

Initial Contact

Many Irish solicitors appear to engage foreign agents without first discussing fees. They presume that their foreign colleagues will not seek payment unless and until the Irish solicitor is in funds and, if necessary, will seek payment directly from the client. If the case is one where the solicitor himself would have taken on the case on a "no foal no fee" basis, solicitors sometimes presume that the foreign lawyer understands this, and that he will do likewise. In fact, the foreign lawyer's own code of conduct may prohibit him from doing this.

In January last year the Professional Guidance Committee published a Practice Note drawing the attention of members to the dangers of becoming personally liable for foreign agents fees. In the course of the year the committee were again asked by many foreign lawyers to direct members to pay the fees incurred. The committee were obliged to give the necessary direction. Not having been put in funds, many members were obliged to pay from personal resources. The amounts involved varied from insignificant amounts to sums which would most probably be beyond the capacity of the solicitor to fund from his own cash resources, thus endangering his personal assets. The committee considers that an urgent restatement of the matter is necessary. For the assistance of members a draft letter of retainer is also set out below. Members might consider issuing this letter to foreign lawyers when they are being employed, as a matter of routine. The strict professional duty to pay foreign agents fees is clearly set out in the Guide to Professional Conduct of Solicitors in Ireland, as follows:- "A solicitor who instructs a lawyer outside the jurisdiction is personally liable to pay all fees reasonably and properly incurred by that lawyer unless there has been an express agreement that such solicitor is not to be made personally liable". Strict Professional Duty To Pay

DRAFT LETTER TO FOREIGN LAWYERS

Re:

Dear Sirs,

We note that you have agreed to act for our client in the above matter, subject to clarification of the terms on which the work will be undertaken by you. It is a term of your instructions that this firm will incur no liability for fees, the liability will remain that of the client. As agreed, we should be obliged if you would send us an estimate of your charges, including outlays and an\ tax payable on your fee. Please also advise whether our client is entitled to claim Legal Aid in your jurisdiction. Please clarify whether the client will be billed only at the conclusion of the case or whether interim bills will be furnished. If the latter, please say at what intervals this will happen. [Optional: It is a term of your instructions that the case will be handled by you on a contingency basis.]

Express Agreement

If an Irish solicitor wishes to avoid personal liability for fees, an express agreement in relation to the matter must be made when the agent is appointed.

Reasonable Fees To Be Paid

A bill of costs can of course be challenged on the basis of the work not having been carried out, or the fees being excessive. However, Irish solicitors frequently allow opportunities to question the bill to pass, until it is too late.

Why Stay Involved?

The circumstances of the case will not always require that a foreign agent is appointed. It may be perfectly satisfactory for clients to be directed to an embassy or other agency, who will refer them to a lawyer in the particular jurisdiction and who they will instruct directly. The relationship of principal/agent does not arise, and personal liability for fees does not follow in that situation.

In the event of our failing to agree the amount of your charges, please

This reflects the position as set out in the IBA International Code of Ethics

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