The Gazette 1940-44

Proceedings under S. 34 of the Solicitors' (Ireland) Act, 1898. THE Secretary was directed to file an application with the Statutory Committee on behalf of the Society against a solicitor alleging that he has been guilty of professional misconduct. The Secretary was directed to bring an applica tion on behalf of the Society before the Chief Justice to have the names of two solicitors struck off the roll on the ground that they had been convicted of criminal offences. CURRENT TOPICS. Interviewing Opponent's Witnesses. A MEMBER has drawn attention to a judicial pronouncement which should be noted in connec tion with the paragraph under the above heading in the November Gazette. In Attorney General v. Fitzgerald (68 I.L.T.R. 249) there was an appeal by Fitzgerald, the accused, against an order of the Circuit Judge refusing bail and remanding him in custody. The accused had been tried on charges on which the jury had disagreed and fresh charges were pending against him. One of the grounds on which the State opposed the granting of bail was the allegation that the accused had interfered with State witnesses. Per Haima, J. " The next ground was that of interfering with State witnesses. I am not quite clear what ' interference ' means, as suggested by the affidavit. Both accused and his solicitor, if they so desire, may interview witnesses for the State, so long as they do not suborn them to perjury. The mere fact of talking to or having a drink with a State witness is not of itself sufficient to disentitle the applicant to bail." This dictum of Mr. Justice Hanna should serve to dispel any doubts, if they ever existed in this country, as to solicitors' rights in such cases. Solicitors' Income Tax. THE COUNCIL is indebted to the English Law Society for permission to print the following report of the case, Commissioners of Inland Revenue v. Elvy Robb & Co. from the Law Society's Gazette. It should be noted that it is a decision of the British General Commissioners of Income Tax and not of a Court of Law. The sole question involved in the appeal was whether a loss sustained by the solicitors in the manage ment of a client's affairs was an admissible deduction from profits.

The facts were that the solicitors had for many years managed the affairs of a lady client by collecting her income and disbursing the same in accordance with her instructions, the disburse ments including periodical payments to the client herself. For a number of years the account had invariably been in credit, but as from 1931 there was a serious diminution of income, and by 1933 there was a debit balance of £369 due to the solicitors, which represented payments and ad vances made by them in excess of the income received. In 1933 the solicitors took a second charge from the client to secure £369 then due. This charge recited the facts and that the solicitors had only agreed to continue to act for the client upon having the security given. No interest had been charged on the balances due on the open account from time to time, but interest was reserved by the charge. After the charge had been given, the solicitors continued to manage the client's affairs in the same manner as previously, but the income did not revive to the extent anticipated and, when the lady died in 1940, she was owing a further sum of about £130 in addition to the amount of £369 before mentioned. Both sums having proved to be irrecoverable, the solicitors claimed the right to set them off as deductions against profits, but the Inspector of Taxes concerned contended that the amounts in question had not been wholly or exclusively paid or expended for the purposes of the solicitors' profession in accordance with Rule 3 (a) of the Rules applicable to Schedule D, and were not losses connected with or arising out of the profession within the meaning of Rule 3 (e). The Revenue also relied upon the cases of Commissioners of Inland Revenue v. Hagart and Burn-Murdoch (1929) A.C. 396; 14 T.C.433; (1928), S.C.745, and W. A. and F., Rutherford v. Commissioners of Inland Revenue, 23 T.C.8. The solicitors contended that their case was distinguishable from the two cases cited, because in both those cases specific advances were inten tionally made to clients as such, and that in neither case did the solicitors concerned endeavour to prove any custom or practice of the profession in regard to making advances of that character. In their own. case they urged that the debts arose in connection with a running account dealing with the management of a client's affairs, and that in making payments to or on behalf of a client, which in some instances exceeded the receipts on that client's account, they were merely acting in pursuance of a well recognised professional custom or practice. They called 44