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By Dr. Eamonn G. Hall, Solicitor
The importance of solicitors keeping
abreast of legislative developments and
of answering queries put to them by
clients, or indicating reasons why
queries cannot be answered, has been
illustrated in the judgment of Barron J in
McMullen's
case [1993] 1 IR 123.
The plaintiff held lands under a lease
executed in 1972 which contained
restrictive covenants in relation to any
proposed sale or change of user and
alienation. Differences between the
plaintiff and his landlord emerged and in
1978 the plaintiff wanted to sell his
interest in the lands. The landlord,
however, indicated that he would
withhold his consent to any proposed
sale or change to user. The defendant
solicitors were retained to advise the
plaintiff in relation to these and other
matters from 1977 until the property
was finally sold in 1987.
The plaintiff claimed damages for
breach of duty against the defendant
solicitors on the grounds that he had
sought advice from the defendants as to
how he could be released from certain
restrictive covenants, but on each
occasion that the advice was sought,
both before and after the passing into
law of the
Landlord and Tenant
(Amendment) Act, 1980,
the defendants
failed to advise him of the effects of that
Act upon those covenants. Apparently
the
Landlord and Tenant Act, 1931
did
not apply to the lands in question, but
the lands held by the plaintiff fell within
the provisions of the
Landlord and
Tenant (Amendment) Act, 1980,
which
came into force on the September 9,
1980. Accordingly, under section 62,
sub-section 2(a) and section 67, sub-
section 2(a) of the Act of 1980, the
restrictive covenants contained in the
lease were deemed to be subject to the
proviso that the consent of the landlord
to a change of user or to alienation could
not unreasonably be withheld.
In addition, it was claimed by the
plaintiff in
McMullen
that one of the
defendants had left unanswered certain
specific questions put to him by the
plaintiff. The defendants had argued that
a solicitor was not obliged to consider
every aspect of his client's affairs but
simply to act upon his instructions. The
action against the defendants had lasted
ten days in the High Court. At the
conclusion of the plaintiffs case his
claim against the first, second, third and
fourth defendants was dismissed. There
were 14 defendants in the case.
Barron J in giving judgment for the
plaintiff held that the everyday practice
of solicitors is something of which a
court is not necessarily aware and that
accordingly evidence of such practice
was admissible.
The Judge considered that professional
skill and knowledge was of the essence
of any contract for professional services.
A solicitor was not under a duty to con-
sider every aspect of his client's affairs,
but he was obliged to exercise his pro-
fessional skill and judgment in the
interests of his clients. The extent of this
obligation was determined by the con-
tract between the parties. Nevertheless,
a solicitor does not discharge his duty
by following instructions blindly. He
must consider not only his instructions,
but also the legal implications of the
facts presented to him by his client, and
advise the client accordingly.
In
McMullen's
case, the client was a
tenant having problems with his
landlord. The nature of his rights was
dependent upon the terms of his lease.
Barron J considered that it was essential
for his solicitor to explain these rights to
him and then to advise him how to deal
with his problems against the
background of those rights. The
Landlord and Tenant (Amendment) Act,
1980
had been in the course of being
enacted by the Oireachtas when one of
the solicitors was advising on the
matter. Barron J considered that a duty
to advise on pending legislation must
depend upon many factors such as how
soon it may be passed and how it will
affect the subject matter upon which
advice was being sought. However, in a
matter which was current, once the
existence of legislation could affect
advice already given, the Judge stated
that it seemed to him that there was a
duty to qualify or correct relevant advice
(which may have been given to the
contrary) as soon as possible.
The fact that a solicitor had ceased to act
for the plaintiff did not entitle him to
leave unanswered certain questions put
to him by his client; the legal adviser
ought either to have answered relevant
questions or indicated to the client his
reason for not so doing.
Finally, the Judge concluded that insofar
as certain defendants had failed to
answer certain questions put to them by
the plaintiff and failed to advise him on
the implications of the
Landlord and
Tenant (Amendment) Act, 1980,
they
were in breach of their duty to the
plaintiff. Appropriate damages were
assessed by the Judge. The case is under
appeal to the Supreme Court.
Our Professionalism
The International Association of Defence
Counsel, aspiring to the highest ideals of
professionalism, have adopted the tenets
set out below and agree to abide by them
in the performance of their professional
services for clients. These tenets should
apply to all lawyers involved in litigation
and deserve to be respected.
1. We will conduct ourselves before the
court in a manner which
demonstrates respect for the law and
preserves the decorum and integrity
of the judicial process.
2. We recognise that professional
courtesy is consistent with zealous
advocacy. We will be civil and
Professional Negligence
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