214 / 432
GAZETTE
JULY 1994
firm which on the bank's behalf called
in the loan. The Judge did note that the
solicitors had a dual role but attached
too little importance to it. If a firm is
later to call in the debt can it truly be
said that its advice to the debtor's
surety was independent? While it was
not the bank's fault that the Hogans
employed the same solicitors, should it
not have recommended that the wife
go to another firm?
Conclusion
It might have been hoped that the
Consumer Credit Bill, 1994 would
clear up some of the difficulties. The
Bill does in fact make some effort to
ensure that customers and their
sureties have some understanding of
what they are agreeing to. However, it
seems to have a major weakness: there
is no requirement that a creditor
recommend a debtor or a surety to
take independent legal advice. It is
therefore unlikely that the Bill will
greatly assist the solution of any claim
of undue influence by wife against a
bank.
If neither statute nor judge law
provides a remedy, banks must rely on
their own common sense. In
O'Brien
the House of Lords approved the Code
of Banking Practice adopted in the UK
in March 1992 which provides:-
"Banks and building societies will
advise private individuals
proposing to give them a
guarantee or other security for
another person's liabilities that:
(1) by giving a guarantee or third
party security he or she might
become liable for, instead of,
or as well as, that other
person;
(2) he or she should seek
independent legal advice
before entering into the
guarantee or third party
security. Guarantees or other
third party security forms will
contain a clear and prominent
notice to the above effect."
Irish banks should adopt an equally
scrupulous approach.
References
1. [1985] AC 686.
2. [ 1 9 9 3 ]4 AER 416.
3. [1993] 4 AER 433.
4. [1993] 2 IR 102.
5. Keane J, unreported, 21 December
1992.
6. See the judgment of Lord Browne-
Wilkinson [1993] 4 AER 4 16 at 422.
7. [1909] 2 KB 390.
* Christopher Doyle is a practising
barrister.
•
I r i sh A p p r e n t i c es w i t h t h i r d p l a c e i n
C l i e n t C o u n s e l l i ng C o m p e t i t i on
The difficult client is the bane of most
solicitors' lives and in our daily work we
all develop ways of dealing with such
clients. However, Professor
Lewis M.
Browne
decided in 1962 in the United
States to turn this difficult task into an
art form and set up an
International
Client Counselling Competition.
This
year, for the first time, two apprentices
from Ireland,
Andrew Coonan and Phil
O'Hehir,
participated and came third in
the competition against teams from all
over the world including the United
States, Canada and Australia.
The object of the competition is to show
how to deal with a client who comes
into your office with a problem. One
must make him feel at ease, obtain as
much information as possible from him
so that he leaves feeling that he has been
well looked after by a friendly and
professional solicitor. The team which
does this best wins.
The competition itself - which was held
this year in April in the beautiful
grounds of Glasgow University - com-
prises two heats and a final. Each team
is adjudicated by a panel of five inter-
national judges. When the client (played
Phil O 'Hehir and Andrew
Coonan
by an actor) is introduced to the two
apprentices in an office scenario, the
apprentices' function is to make the
client feel at ease, discover his problem
and, if possible, offer some form of
solution. The client is instructed to be
difficult, nervous and even obstructive
at times. The panel of judges adjudicates
on how the solicitor deals with the
client.
Not only is the standard of competition
very high, but also the judging. The
competitors interview each client for
half an hour. They then discuss the
client among themselves for fifteen
minutes, highlighting the most obvious
points they have gleaned from the client.
They discuss how they should proceed
and what action is necessary. After this
the judges discuss with the solicitors
their strong points and weak points. The
Irish team which was narrowly beaten
into third place was highly commended
by the judges.
The International Client Counselling
Competition has developed steadily
since its inception in 1962. To
apprentices it offers an excellent
opportunity to compete at the highest
standard in the world and to see a whole
new range of legal systems. For the Law
Society itself, it provides an excellent
opportunity to bring our own legal
system from the outskirts of Europe
onto the international stage. For my
colleague,
Phil O'Hehir,
and I this was
an experience that should undoubtedly
benefit our future careers. The competit-
ion is both prestigious and beneficial
and I hope that this is the first of many
years' involvement in client counselling
competitions for the Law Society.
Andrew Coonan
•
190