502 / 736
The President reported that since the last meeting of the
Council there had been two meetings, one with officials
of the Department and the other with the Minister for
Justice and he informed the Council of what had taken
place. It was decided that the discussion of the motion
should be postponed until
the next meeting of
the
Council.
Solicitors .Remuneration (Decimalisation) General Order
. 1970
The Secretary reported that he had received, from the
Statutory Body under the Solicitors Remuneration Act
1881 a copy of a new General Order converting the
figures in the existing general orders into decimals and
that no question arose. It was decided to inform the
Statutory Body that the Council dp not wish to make
any observations on the Order which will presumably
come into operation in, the near future and will be
published in the
Gazette.
Central Costs Committee
The Secretary stated that he had been informed that
the various statutory costs-fixing bodies
including the
statutory body under the Solicitors Remuneration Act
1881 had been asked to send representatives to meet
the Minister for Justice. The question of a central costs
fixing committee has already been the subject of dis
cussions between the last Minister for Justice and the
Society. The Secretary was directed to take steps
to
ensure that the" solicitor's interest on the existing rules
committee
should be adequately
represented at any
discussions with the Minister and consideration of the
matter was adjourned to await further information.
Builders' Advertisements
The Privileges Committee
reported
that
following
representations on behalf of the Society a Dublin build
ing development company which had been publishing
advertisements referring to payment of mortgagee's costs
on behalf of purchasers of sites had changed
their
practice and had altered the advertisement to state that
the price is net. It was decided that no further action is
necessary.
Lease, Building Agreement, Mortgage—Costs
On an inquiry from a member as to the proper method
of charging the Council on a report from a committee
stated that where a new house is purchased under a
building agreement with a mortgage and a lease the
correct method of charging is as follows.
On the lease the commission scale fee and on any
site fine and on the rent appropriate to a long lease, not
'at rack rent; on the mortgage the commission scale fee;
on the building agreement and other miscellaneous work
not covered by the commission scale fee, Schedule 2
charges.
Completions of Sales and Purchases by Post
The Council have never approved of the completion
of sales and purchases through the post although it was
common knowledge that in areas outside Dublin and
Cork cities some solicitors have adopted this practice.
Although a solicitor for a purchaser who travels fifteen
...'or twenty miles to the vendor's solicitor's office is entitled
to charge his travelling expenses as disbursements it is
more economical
to use
the postal service.
It
is of
course obvious
that a
solicitor who uses
the postal
service in place of the traditional method of closing a
' transaction by personal attendance does so at his own
risk as regards liability for negligence if the client suffers
any financial loss. If for instance the solicitor for the
vendor fails to send on the documents after receiving the
purchase money or delays in doing so,
then the pur
chaser's solicitors are in great difficulty vis a vis the
purchaser or the purchaser's bank if an undertaking has
been given to deposit the title deeds. Cases have occurred
in which there was unavoidable delay in sending on the
deeds due to a time lag between completion and the
release of a mortgage by a building society on the title.
The
legal position would appear to be
that
in
the
absence of instructions from the client the solicitor for
the purchaser should not part with the purchase money
except in exchange for the deeds, and the deeds should
not be handed over except in exchange for a bank draft.
Circumstances alter cases and in the difficult circums
tances of today it is sometimes difficult to observe the
hallowed traditions and practices of the past.
Accepting the position where a solicitor who completes
a sale or purchase otherwise than in accordance with
the recognised
legal practice the following minimum
precautions should be taken:
(a) Solicitors making
arrangements
for
completion
through the post should cover themselves by getting
appropriate professional undertakings
from
their
opposite numbers as
to the time and method of
discharging the various obligations on closing.
(b) Breach of an undertaking by either solicitor would,
prima
facie, amount
to misconduct under
the
Solicitors Acts.
(c) In
the absence
of
appropriate undertakings
it
cannot be postulated in advance whether or not
delay in forwarding the title deeds or the pur
chase money, as appropriate, would amount to mis
conduct.
Delays in Government Departments
The profession is frequently criticised in the Dail and
elsewhere on the score of delay in completion of clients'
business. Sometimes this criticism is justified, particularly
where a solicitor has failed to answer correspondence
but in a very large number of cases there is unavoidable
delay due to failure of various Government Departments
to provide a satisfactory service. It is common knowledge
that in the Land Registry and Estate Duty Office at the
present time there is great delay, and other Departments
have a variable record, the graph of delay rising and
falling
from
time
to
time
in accordance with
the
incidence of holidays, staff shortages and other circums
tances. Some Government Departments have enviable
records.
In order
to protect members
from unfair
criticism it is suggested that where a letter is sent to a
Government Department asking for expedition or enquir
ing about the state of the business or asking for an
explanation of the delay a carbon copy of the letter should
be mailed by the same post to the client fdr his informa
tion. If this is done the solicitor will at ariy rate protect
himself against unfair criticism by the particular client
as the cause of any delay will be made clear to the party
most vitally affected.
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