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the Council are the rule making authority under the Solicitors
Acts and that there is no power in a general meeting to make
rules but that the Council would naturally be guided by the
opinions expressed.
MR. EDMUND CARROIX (Fermoy) asked why was the rule
limited and not general.
THE PRESIDENT replied that there was a divergence of
opinion at Galway.
Some members were in favour of a
limited rule and it was thought that if a rule were to be intro
duced it would find greater favour in this form.
MR. J. R. HALPIN (Cavan) chairman of the Provincial
Solicitors' Association stated that the views of the profession
appear to be divided equally. His Association had passed a
resolution requesting the Society to take a postal ballot before
bringing in a rule. The Council of the Society had accepted
this resolution. His personal views were in favour of a rule.
He had no personal axe to grind as he intended to retire
in the near future. The principal argument was the public
interest. No man could satisfactorily serve two clients with
possible opposing interests which might always develop even
in the most unexpected way. From the viewpoint of the
interests of the profession such a rule would prevent price
cutting. He also referred to the increase in premiums in
negligence insurance policies. The argument that a solicitor
may lose a client from the operation of the rule cuts in both
ways because under such a rule a solicitor would very probably
gain a client for every client lost.
MR. PATRICK CUSACK (Ballyjamesduff) opposed the rule and
stated that he was supported by a great number of solicitors.
He thought that the introduction of a limited rule was insincere
and made no sense. It should be all or nothing. He suggested
that the Society should bring in the financial regulations
under the Solicitors Acts and enquired why this had not
been done. He stated that Mr. Halpin the previous speaker was
not affected financially but that he and other solicitors were.
He submitted that section 71 of the Solicitors Act 1954 did not
authorise the Council to make regulations ofthe kind suggested
divesting solicitors of the right to act for both parties which
they obtained when they were admitted. The right to act
for both parties was recognised by the regulations made under
the Solicitors Remuneration Act 1881 dealing with the costs
of leases. A rule of the kind suggested would split the
profession and many members would not obey it in view of
their opinion of the legal position.
In reply to a question
put by the President Mr. Cusack stated that by the financial
regulations he meant the Accountant's Certificate Regulations
under the Solicitors (Amendment) Act 1960 which he thought
should be introduced forthwith.
MR. EDMUND CARROLL (Fermoy) opposed the making of
a regulation on the ground that it would divert clients away
from their established solicitors. The individual solicitor
was the best judge of the question of whether or not he should
act for two parties. Mr. Cairoll enquired why we should
insure against professional negligence if we divest the com
panies ofliability. The recent increase in premiums may have
been due to acting for both parties but he thought that a
more likely cause was mistakes by solicitors due to lapse of
time. Mr. Carroll stated that at one time he thought that
under such a rule he would get as many clients as he would
lose but recently he heard it said that a solicitor who could
not act for both parties would send the other client to his
Dublin agent.
He approved of a postal ballot and if a
reasonable proportion of the country and city solicitors
supported a regulation he would follow it.
MR. FINTAN O'CONNOR (Wexford) stated that he had no
intention of retiring like Mr. Halpin and he and others like
him had no intention of observing such a rule if made. They
had obtained the opinion of senior counsel that such a rule
would be ultra vires to the Solicitors Act and repugnant to the
Constitution. For this reason he would not follow the result
of a postal ballot even if it supported the rule.
MR. JOHN KIERAN
(Ardee) on behalf of the Louth Bar
Association stated that he opposed the rule and that he
associated himself with the remarks of previous speakers.
MR. F. J. GANNON (Mohill) stated that there are eleven
solicitors in County Leitrim who are unanimously against
such a rule and if such a rule was made they would not obey
it. He thought the rule would be unduly restrictive and unfair
to the public. He challenged the statement regarding the
effect of the practice of acting for both parties on insurance
premiums. He thought that the question of price cutting
could be covered by Bar Association rules and that it did not
exist in County Leitrim.
MR. JAMES R. QUIRKE (Dublin) suggested that it was
inopportune to make a rule at the present time and that no
action should be taken.
MR. ANDREW COMYN (Mallow) stated that he had listened
to
the arguments
against
the making of a rule for
twentyfive years and askedthe members to grow up and discuss
the matter sensibly. Solicitors earn their living by serving
the public and the question is whether the rule would be for
the public benefit. Clients could not be expected to appreciate
the danger of asking a solicitor to act for both sides. He had
read titles for four years as a solicitor in a bank and from
time to time they received bad titles. In his experience the
bad titles almost invariably came from the practice of acting
for both parties. How could a solicitor draw requisitions on
title and answer them as well? It was no answer that the
public did not want the rule. The public did not know the
position. From the professional point of view the rule was
necessary and that auctioneers frequently tried to divert the
purchaser to the vendor's solicitor. He had lost many clients
in that way. The present freedom to act for both parties
also tended to encourage fee cutting. In reply to denials by
some members he stated that he was certain that it was so
and knew of many cases. The argument about losing clients
was absurd. There would be a two way traffic and a solicitor
who sent a client to another to avoid a conflict of interest
would get him back if he was worth anything as a solicitor.
MR. T. J. FITZPATRICK (Cavan) supported the suggestion of
a postal ballot but he deprecated the attitude of some previous
speakers. He stated that he would not resign if the rule were
not passed neither would he bring the society to the Supreme
Court if the rule were made but would accept any regulations
made by the society. He did not know whether he would
lose or make money under the rule but he was not in favour
of conflicting interests. The free choice argument did not
hold water. He was convinced that the present system led
to price cutting and was afraid that the principal offenders
were the larger firms and bigger solicitors who would give
advantages to established clients. If the rule were passed it
would break up a very undesirable relationship between some
solicitors and auctioneers who brought purchasers to solicitors
for vendors to ingratiate themselves. He did not agree that
a client who is sent to another solicitor for a particular trans
action never returns. He was not sure whether he would
support a rule of the kind suggested on a limited scale because
he thought that the rule should be general. He certainly
would support a general rule.
MR. NATHANIEL LACY (Kells) supported the rule and the
arguments of Mr. Halpin. He thought that limited rule would
not go far enough and that the rule should be extended to
all conveyancing. He said that he once consulted an eminent
conveyancer the late Mr. Newett who told him of the rule
about constructive notice and that a solicitor who acts for
both parties might receive constructive notice of matters
which would not be in the interests of his clients. The day
a sale is closed is not the date on which the file can be closed.
All kinds of questions arise about boundaries and other
matters. He deprecated the statement that some solicitors
would not obey a rule which he described as a schoolboy
attitude and unworthy of the profession. The County Meath