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as follows. A solicitor is acting unprofessionally if he
knowingly institutes proceedings for a client on a non-
existent (as distinct from a valid although unenforce-
able) contract or cause of action. It is therefore unpro-
fessional to threaten or institute proceedings on behalf
of a client for a gaming debt which falls within the
prohibition of the statute even although no attempt is
made to disguise the nature of the action.
A summary of this opinion was printed in Opinion
DR 12 of the Council in the
Members' Handbook.
Opinion DR 70 dealing with instructions to sue on
wagering contracts also stated that the Council advised
a member who had been instructed to recover an
amount arising out of a wagering transaction that he
could on the client's instructions write a letter requesting
payment of the amount alleged to be due but without
any request for costs. The letter should contain no threat
of proceedings failing payment and member was advised
that he should take no further steps in the matter.
The Gaming Act, 1845, 8 and 9 Vic. Cap. 189, Section
18, enacted that all contracts or agreements whether by
parole or in writing by way of gaming or wagering
should be null and void and that no suit should be
brought or maintained in any court of law or equity for
recovering any sum of money or valuable thing alleged
to be won on any wager. This Act was repealed by
the Gaming and Lotteries Act, 1956. Section 36 (1)
enacted that every contract by way of gaming or wager-
ing is void. Sub-section (2) enacts that no action shall
lie for the recovery of any money or thing alleged to be
won or to have been paid upon a wager or which has
been deposited to abide the event on which the wager is
made. Sub-section (3) enacts that a promise expressed
or implied to pay any person any money paid by him
under or in respect of a contract to which the section
applies or to pay any money by way of commission, fee,
reward or otherwise in respect of the contract or of any
services connected with the contract is void and no
action shall lie for the recovery of any such money.
The view of the Bar Council is that since the court
cannot entertain an action based on a gaming trans-
action it would be an abuse of counsel's privilege to
assist in bringing any such matter before the court to
sign his name to any documents connected with such a
proceeding. In order to remove doubts the following
ruling was made on 7/11/1957.
Whether it is proper for counsel to settle an affidavit
in support of a claim on foot of a wagering transaction.
It is undesirable that counsel should settle such affi-
davits. Further it is undesirable for counsel to settle
originating documents in claims on foot of wagering
transactions or to hold a brief for the plaintiff in such
claims.
The Tote
The position, however, is different with regard to
claims against the Racing Board for bets on the total-
isator. Counsel has advised that the ruling of the court
on gaming debts does not apply having regard to the
decision in Tote Investors Limited v Smoker (1968,
1 Q.B. 509) in which the English Court of Appeal held
that a contract by a backer who puts money on the tote
is not a contract by way of gaming or wagering and is
therefore not governed by the provisions of the Gaming
Act, 1845, Section 18. The basis of the decision is that
the tote can neither win nor lose, merely receiving a
commission on the turnover of bets and that the essence
of a gaming or wagering transaction is that each
party must be a winner or a loser. The Council having
considered this decision stated that there is no profes-
sional objection which would prevent a solicitor from
instituting proceedings on behalf of a client against the
Racing Board for recovery of money won on the tote.
COMMISSIONS TO SOLICITORS FOR
INTRODUCING OF BUSINESS
In the view of the Council it is improper and contrary
to the Prevention of Corruption Act, 1905, for a solicitor
or other agent to accept or seek a commission from a
third party in consideration of showing preference to
that third party when dealing with a client's business.
This applies to commission paid by a building society to
a solicitor for introducing clients' money as an invest-
ment. Disclosure to the client of the fact that a com-
mission or advantage is received removes the case from
the prohibition.
LAND COMMISSION RECEIVABLE ORDERS
Following representations from the Society the Depart-
ment of Lands have agreed to revert to their former
practice of showing the Land Registry folio number on
receivable orders for payment of land annuities.
COSTS OF THE SALE OF GOOD WILL
Members asked whether they were entitled to charge
the full fee under the Solicitors Remuneration General
Orders on the value of property sold where the value of
good will was included in the price. Opinion C 32 of
the Council set out at page 211 of the 1968 edition of
the
Members' Handbook
provides as follows :
In the opinion of the Council good will may be
either (a) adherent good will such as the good will
of a licensed premises which attaches to the prop-
erty or (b) personal good will such as the good will
of a solicitor's practice which follows the owner.
In the former case it has been the practice of the
profession to charge the scale fee on the whole
consideration including the value of the good will.
The Council were of the opinion that this practice
is in accordance with the law notwithstanding
English decisions to the contrary cited in costs
textbooks. These decisions are based on the English
Solicitors Remuneration General Orders, the terms
of which are different to those of the Solicitors
Remuneration General Order, 1884.
On the recent inquiry the Council stated that if the
value of the good will is shown in the contract and is
included in the deed of conveyance Opinion C 32
applies.
REGISTERED LAND ONE SALE WITH
SEVERAL TITLES
Members wrote to the Society stating that he acted for
a client in the sale of property comprised in three
separate folios to the Irish Land Commission. The
examiner in the Land Commission had directed that
the facts be submitted to the Society for a ruling as to
the correct basis of charging costs. The greater portion
of the lands are comprised in a folio which is subject
to equities. The equity note can be cancelled only after
investigating the pre-registration title. The smaller part
is comprised in two folios in one of which there is no
equity note and in the other of which the equity note
can be cancelled under the thirty year registration rule
i.e. Rule 33. L.R.R. 1966. The Council considered
Opinion C 38 and C 40 in the Society's
Handbook
and also the opinion published in the November 1969
Gazette,
page 54. The Council decided to revoke the
decision published in the November 1969
Gazette.
They
are of opinion that where the title to registered land is
comprised in several folios the solicitor for the purchaser
is entitled to treat each folio separately and should
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