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Clare the Bar Association have made a regulation prohibiting
solicitors from acting for both parties to a sale except in cases
where the consideration does not exceed £300.
Personally
he would have no exceptions and would like to apply the rule
to all cases, including cases in which there is no auctioneer
or house agent. The rule had worked very well in Clare.
Difficulties arise between adjoining counties where there is a
rule prohibiting double representation by the same solicitor
in only one. For that reason he felt that there should be a
State-wide regulation, failing which it would probably be
advisable to abolish the local non-statutory rules altogether.
He said that in County Clare the equity note is still undis–
charged in the majority of cases. In many cases the contract
for sale precludes the purchaser from requiring the vendor to
discharge the equity note even at the purchaser's expense, and
this makes a regulation of the kind mentioned even more
necessary. Finally Mr. Lynch referred to the reduction in
solicitors' remuneration due to the prevalent habit of acting
for both parties.
Mr. Thomas V. O'Connor (Mayo) supported the resolution
on behalf of the Mayo Bar Association if it could be made on
a national scale with statutory effect. A local rule had been
made in County Mayo, but had failed because a number of
solicitors had resigned from the association. The majority of
the Mayo solicitors were strongly in favour of a regulation
applicable to all sales (with certain limited exceptions, such as
family transactions). Such a regulation they considered would
lead to an increase of business and in the gross amount of
costs received by the profession, better internal relations
within the profession and better service to the public. Mr.
O'Connor stated that he personally strongly supported such
a regulation although he might possibly lose a certain amount
of business.
MR. GERALD Y. GOLDBERG (Cork) spoke on behalf of the
Southern Law Association, of which solicitors in the city and
county of Cork are members. He said that his association had
obtained the written and oral views of solicitors from country
towns. A plebiscite in country towns revealed that a majority
in each of them opposed the making of a rule by the Southern
Law Association. The Association could not have enforced
the rule if made, as many would have resigned. In Cork city
a slight majority, of which he personally was one, supported
the rule. As the result of the views expressed the Southern
Law Association are opposed to the making of a statutory
regulation.
MR. IGNATIUS M. HOULIHAN (Clare) said that there were
two methods of approach, one the individual selfish view–
point and the other the professional approach.
From the
individual point of view many solicitors would be against a
statutory regulation, but he felt that from the point of view
of the profession it should be recognised that the consensus
of responsible judicial opinion is that no man can serve two
masters. He would strongly support a nationwide regulation
with statutory effect.
MR. SEAMUS MAHON (Midland Bar Association) said that
his Association favour a regulation because the present practice
leads to widespread price cutting. There is also the danger of
a conflict ofinterests. He was not impressed with the argument
that the matter should be left to the individual judgment and
foresight of solicitors. Where regulations are enforced the
members of Bar Associations find it quite satisfactory. He
said that most of the opposition came from Bar Associations
where there is no regulation.
MR. THOMAS J. FITZPATRICK (Cavan) said that he spoke
personally and not on behalf of his Bar Association. The
present unrestricted practice of acting for both parties en–
couraged touting for business by auctioneers on behalf of
solicitors. This was usually done at a public auction where
the auctioneer interviews the purchaser and could be stopped
only by a regulation. On the question of conflict of interest
he pointed out that the vendor's solicitor must first advise
his client that he has a good saleable title and he failed to see
how having given this advice he could subject the title to any
really critical examination on behalf of the purchaser for whom
he subsequently acted.
In his opinion resolutions of Barl
Associations are not the best way of testing professiona
opinion throughout the country as opponents of a rule will
be sure to attend a meeting. He suggested that a postal ballot
should be taken of the whole profession. He said that he
thought that the Council are of opinion that a rule should be
made. If this is so, it was the duty of the Council to make
the rule under section 71 of the Act as in the case of the
Accounts Regulations.
MR. THOMAS E. O'DONNELL (Limerick) stated that no man
can serve two masters. Various conflicts might arise under a
contract and he instanced the question of penal interest where
there is delay in closing. How could a solicitor for both
parties deal fairly with this question? There might be special
circumstances in towns where there is only one office, but the
answer was that the profession must come first. He stated
that the Limerick Bar Association had a rule which was well
observed.
MR. JAMES J. HICKEY (Dublin) said that, speaking personally,
he was opposed to the making of a regulation as a matter of
principle. Logically if a regulation was made applicable to
sales it should be extended to the case of mortgagor and
mortgagee. He stated that he was not unduly concerned
about the judicial opinions mentioned which were probably
only
obiter dicta
and not legally binding.
MR. PATRICK F. TREACY (Tipperary) favoured the regulation
on the ground ofthe abuses resulting from the present practice,
unfair competition between solicitors and the fact that an
ignorant purchaser may be misled into thinking that he will
get a better deal in the terms of the contract from the vendor's
solicitor.
MR. EDMUND CARROLL
(Cork) opposed the proposed
regulation. He said that there is a conflict of viewpoint
between city and country solicitors mainly because of the
complicated titles to city property which do not arise in
registered titles in rural areas. The examination in the Land
Registry of the title was a check against abuses arising from
conflict of interest and insufficient examination. The personal
contacts between solicitor and client in country practices made
such a rule undesirable.
It would cause an outcry and the
diversion of clients away from particular solicitors.
The
question of financial gain was not paramount. The argument
of attraction of business could work both ways by the attraction
of old established family clients to other solicitors.
The
suggested limitation of the rule to cases in which auctioneers
are acting might result in reduction in the number of auctions.
He also instanced the case of the formation of a family com–
pany and the transfer of property from the family to the
company. Finally Mr. Carroll thought that a ballot of the
entire profession, both members and non-members, would
show a majority against such regulations.
Miss SARAH KILLEEN (Dublin) spoke as a member of the
legal staff of the Dublin Corporation and was in favour of
regulations. The practice of a single solicitor acting for
both parties was most unsatisfactory. Many purchasers who
were unwilling to instruct their own solicitor wanted the
Corporation's solicitors to act for them in the investigation
of the title. She felt that a regulation of the kind proposed
would put an end to such practices as the Corporation solicitor
could not act for the mortgagee and the purchaser.
MR. WILLIAM L. RYAN (Laois) said that two meetings of
his Bar Association were held but that a representative attend–
ance could not be obtained. There was an equal division of
opinion.
If a regulation were made it would require some
limitations. On the whole he thought his Bar Association
would be opposed to regulations.
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