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THE SOCIETY
Proceedings of the Council
23rd SEPTEMBER 1971
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
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.
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