The Gazette 1971

age of costs drawers at the present time and conse-

quently great delay in furnishing schedule 2 bills where

taxation is required. The cost drawer's commission for

drawing a bill of costs varies from 5% to

the total bill and, as overhead expenses on average are

never less than 50% of gross costs earned, the expense

incurred in drawing bills of costs on the non-commission

basis can be as high as 15% of the gross profit. A

commission scale fee avoids this expense which would

inevitably be passed on to the client.

The regressive element in solicitor's commission scale

charges has already been mentioned. As the value of

property increases the average rate of commission falls

so that as inflation continues the work is being done

at a cheaper rate for the client related to value. The

last mentioned tendency is accelerated by the spread

of compulsory registration of title. Commission scale

fees on registered property with absolute title are one-

half of the full fees.

In the case of a farm of land bought twenty years

ago for £3,500 and sold today for £10,000, the solici-

tor's costs on the purchase in 1950 would have been

at the rate of 3.07%. On the sale in 1970 his costs

would have been charged at 2.05% and if, as is com-

monly the case, the equity note had been discharged

in the meantime the costs in 1970 would be at the rate

of 1.025%. The lower rate on the higher value pro-

duces increased absolute remuneration but the solici-

tor's liability for negligence or mistake increases pro-

portionately with the value of the property and of

course his expenses have increased since 1950. The pro-

fessional negligence risk is particularly serious in deal-

ing with business properties in urban areas where a

mistake in the investigation of title or the preparation

of a contract can involve solicitors in liability for very

large amounts.

The commission scale fee is a maximum charge.

There is no rule against charging less or charging no

fee provided that there is no antecedent bargain or

ageement. The present system of solicitors' costs is a

mixture of two systems, the commission scale system

and itemised fees under schedule 2 combined with a

discretionary element. If commission scale fees were

abolished there are two possible alternatives—either the

English Schedule 2 which is entirely discretionary

based on seven specified factors and no item charges, or

time charges for all work. If commission scale fees

were abolished solicitors' time charges would have to

be revolutionised. Professor Kaim-Caudle's estimate of

£3 10s. per hour is quite unrealistic. A feature of

time charges as in other professions is that they are

raised automatically to cover increasing overhead ex-

penses and rising costs. Solicitors' time charges have

not been increased since 1964.

Earnings of solicitors in private practice

Are earnings too high? Certainly not as a whole. The

preliminary results of a survey by the Law Scoeity

into solicitors' earnings indicates that the level of earn-

ings in the Republic is about 60% of those in the

United Kingdom which is roughly the same proportion

as the g.n.p. per head in the Republic and the U.K.

Not when compared with the earnings of other pro-

fessions, business and the public service. To depress the

level of professional earnings or fail to permit increases

in a situation of rising prices would endanger stand-

ards of quality and integrity. A comparison of solici-

tors' earnings with salaries in the Government service

shows that a Departmental secretary who was paid

£1,450 in 1939 received over £6,000 in 1970, while

assistant secretaries, senior Court officials and senior

salaried solicitors in the Government service who re-

ceived £1,250 in 1939 are paid over £5,000 today. In

considering these figures it should be borne in mind

that public servants have in addition to their salaries,

childrens' allowances, non-contributory pensions, gratui-

ties on retirement and pensions for their widows. Solici-

tors' earnings include a return on capital invested.

They have no guaranteed pensions and are engaged

in a risk occupation subject to fluctuation with the

economy while the public service participates regularly

in salary increases following wage rounds. A solicitor

must work continuously to earn his fees which may be

reduced from illness and other causes.

Conveyancing fees

Commission scale fees on conveyancing matters in

the Republic are higher than the charges in England,,

but they are lower than those of many occupations

and have a much greater built-in regressive element.

On auction sales the rate falls as low as 0.375%

where the land is registered with absolute title and

the scale for a lease which involves heavy responsibility

with a risk of legal liability for mistake falls as low

as 0.175% on value. The commission scale whether it is

calculated as a percentage on value passing or a rate

or profit on turnover is an accepted fact of commercial

life and there seems to be no obvious reason objecting

to it as the basis of solicitors' remuneration in certain

cases while it is accepted elsewhere.

Restrictions on the practice of law by unqualified

persons

The restrictions were imposed in the public interest

and they are much narrower than in some other

countries (e.g. Germany and United States) being re-

stricted to

(a) preparing certain documents for fee or reward,

(b) the conduct of litigation in the Courts,

The prohibition against unqualified persons does not

extend to giving legal advice or negotiating settlements

and property deals. In these fields non-lawyers may

compete with the profession and are free to negotiate

their own fees. In some respects the present restrictions

are insufficient to protect the public. The giving of un-

qualified or incompetent legal advice may be even more

damaging to the person who received it than the pre-

paration of a defective document. There is no rule to

prevent any person from acting for himself or for

another person, provided in the latter case that it is

not for or in expectation of fee or reward. Solicitors

have no exclusive right of audience before tribunals.

The removal of the restriction against unqualified per-

sons would militate against the public interest by ex-

posing the public to the activities of quacks, wasting

the time of the Courts by prolonging judicial proceed-

ings and encouraging fictitious and unproductive litiga-

tion. The preparation of legal documents such as wills

and settlements by non-lawyers might result in impro-

vident dispositions and defective titles. The client who

entrusts his work to a solicitor obtains the benefit of

the professional expertise of a qualified person and the

protection of the compensation fund which is support-

ed by the profession under statutory powers to protect

the public against losses due to dishonesty or fraud.

The laws of most countries restrict the practice of law,

4. Any layman may draw a will for himself or another. It has

been done with unfortunate results in the past.

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