155 / 432
GAZETTE
N E W S
MAY 1994
Counc il Mee t i ng
- 2 2 Apr i l 1 9 94
Guidelines On Undertakings
The Council of the Law Society, on
22 April, considered changes to a
draft proposed by the Professional
Purposes Committee of a new section
of
A Guide To Professional
Conduct
Of Solicitors In Ireland
to deal with
undertakings.
The draft sets out a definition of an
undertaking and suggests that a breach
of undertaking would be
prima facie
evidence of misconduct and
consequently the Society would
require its implementation as a matter
of conduct. It proposes that the
following principles would apply to
undertakings: an undertaking will be
honoured as between giver and
recipient only; if the undertaking is
ambiguous it will be construed in
favour of the recipient; an undertaking
is binding even if it is to do something
outside the solicitor's control; it does
not have to constitute a legal contract
to be enforceable as a matter of
conduct; a solicitor is responsible for
undertakings given by a member of
his staff; all partners are responsible
for an undertaking given by one
partner; a solicitor cannot avoid
liability on an undertaking by
pleading that to honour it would be a
breach of duty owed to his client; a
solicitor must notify the recipient of a
contingent undertaking if the
contingency fails; in addition to the
Society's power to enforce
undertakings as a matter of conduct, a
court, by virtue of its inherent
jurisdiction over its own officers, has
power of enforcement in respect of
undertakings.
Further changes were proposed to the
draft and the matter will come before
the Council at its meeting in May.
Council Members Representing
Solicitors before Regulatory
Committees
The Council considered a motion that
no member of the Council, including a
Past-President of the Society, would
accept instructions to act on behalf of
a solicitor who was requested to
appear before the Compensation Fund
Committee, the Registrar's
Committee, the Professional Purposes
Committee, or a solicitor who was
under investigation by the Society for
alleged breach of the Solicitors Acts
or the Solicitors Accounts Regulations
or any professional practice regulation
or code. An amendment to the motion
was proposed to the effect that a
member of the Council would not be
precluded from giving informal advice
or assistance to a colleague. A motion
was also proposed that no member of
the Council, including a Past-
President, should accept instructions
in any legal proceedings before the
Society. (Non-Council members
employed in the same firm would not
be so precluded.) The Council will
consider these matters further at its
next meeting.
Practice Names
The Council considered the text of a
draft Statutory Instrument, entitled
Solicitors (Practice, Conduct and
Discipline) Regulations 1994, dealing
with the appropriate form of names of
solicitors' practices. The draft
provided that the name under which a
solicitor, or firm of solicitors, may
practise should consist only of the
name or any part of the name of the
solicitor, or one or more of the present
or former principals of the firm, or
such other name as is approved in
writing by the Council of the Law
Society. The draft also provided that a
solicitor, or a firm of solicitors, would
be permitted to use any name which
was in use at the date the regulations
came into force.
The Chairman of the Professional
Purposes Committee,
Barry St. J.
Galvin,
said the objective of the draft
regulations was to improve the
relationship between solicitors'
practices, colleagues and the public.
The Committee believed that
inappropriate forms of nomenclature
could mislead clients and colleagues.
It was noted that the draft instrument
did not preclude people from using
titles other than their own names, or
those of predecessors, provided the
consent of the Society was obtained.
Some members of the Council put
forward the view that the matter of
what should appear on a solicitor's or
firm of solicitors' notepaper should
also be considered and, after some
discussion, it was decided to deal with
both matters in one set of regulations.
A question was raised about whether
the regulations could be retrospective
in effect and whether the Council
could direct solicitors or firms who it
was believed had inappropriate names
to change them.
While the Council supported, in
principle, the thrust of the Statutory
Instrument, if referred it back to have
to the text redrafted to include the
matter of headed notepaper and be
presented to the Council for further
consideration.
Compensation Fund
The Chairman of the Compensation
Fund Committee,
Ward McEllin,
reported that there had been a special
meeting of the Compensation Fund
Committee in March to monitor
solicitors who had not applied for a
practising certificate. There had been
a 99.39% rate of compliance and only
55 solicitors had not applied for a
current practising certificate.
Education
The Chairman of the Education
Committee,
Ken Murphy,
reported to
Council that, in his view, ACLET, the
Advisory Committee on Legal
Education and Training, appeared to
be moving further in the direction of
favouring joint professional education
of solicitors and barristers. The Deans
I3L