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GAZETTE
P R A C T I C E
N O T E S
APRIL /MAY 1996
s n f e
S "
Foreign Agents Fees £50,000
- YOU PAY
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.
Strict Professional Duty To Pay
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".
This reflects the position as set out in
the IBA International Code of Ethics
and the CCBE Code of Conduct for
Lawyers in the European Community.
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.
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.
Avoid General Liability
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.
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.]
In the event of our failing to agree
the amount of your charges, please
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