The Gazette 1991

GAZETTE

JULY/AUGUST 1991

professional assistance, a

man would not venture to

consult any skilful person,

or would only dare to tell

his counsellor half his

case".

It is also clear that subject

to certain

well-defined

exceptions, confidentiality of

communication is imported

into the European Community

Law as considered in

A.M. &

S. -v- EC Commission

(Case

155/1979). See also the draft

European Code para 2(3)

which states:

" I t is of the essence of a

lawyer's function that he

should be told by his client

things which the client

would not tell to others,

and that he should be the

recipient of other infor-

mation on a basis of

confidence. Without the

certainty of confidentiality

there cannot be trust. The

obligation of confidentiality

is therefore recognised as

the primary and funda-

mental right and duty of

the lawyer".

The solicitor's duty of

confidentiality is therefore

more rigorous than that upon

members of other profes-

sions, as is recognised by the

absence in their case of the

right and duty to remain

silent.

It is doubted whether

clients would have any

confidence in "Chinese walls"

as a means of erecting ad-

equate safeguards for safe-

guarding

con f i den t i a l i ty

within an MDP or preventing

"It is doubted whether

clients would have any

confidence in "Chinese

walls" . . . within an

MDP . .

the exchange of information

on, for example, the MDPs

computer databank.

(vi)

Freedom of Choice

The choice of the client might

be severely

restricted,

particularly where there was

one MDP in a relatively small

area. In may be that it would

be very difficult to secure

good independent advice in

regard to a potential claim

against a client of an MDP. It

is a widely held miscon-

ception that MDPs would

allow for greater freedom of

choice.

By their very existence

MDPs will tend to restrict

choice. The basic purpose of

an MDP is to enable a client

to take all he requires from

one source. In fact, the client

will be expected to take ail of

his services from the same

source. The client would

almost certainly be under

constant pressure to take the

entire package even if he

wished to retain a degree of

independent choice.

(vii)

Professional Standards/

Discipline

In matters of conduct and

discipline it would require to

be a fundamental principle for

MDPs that the rules which

apply to members of a single

professional firm should be no

more rigorous than the rules

and obligations incumbent

upon an MDP, or, alternatively

and correspondingly, that the

obligations and rules which

apply to MDPs should be at

least as rigorous as those

placed upon a firm of

solicitors. Such a legitimate

principle would immediately

pose difficulties for the other

professions.

The Law Society could not

be confident that the

differences between the

codes and standards of

conduct and discipline which

at present exist w i t h in

individual professions are

readily capable of a simple

solution. Nor could the Law

Society be confident that the

professions by negotiation

and discussion could arrive at

a common code of profes-

sional conduct. The result of

negotiation between the

professions would inevitably

result in the acceptance

of the lowest common

standards.

Standards of conduct and

discipline for MDPs would

require to be established

either directly by legislation

or by a body established

by legislation such as a

Council for Mixed Discipline

Practices". Such a council

would require to promulgate

its own code of conduct and

disciplinary procedures before

any authority was given to

practise in MDP form, other-

wise the area of discipline and

complaints in the context of

MDPs would be one fraught

with difficulties over inter-

professional jurisdiction, in-

vestigation and the applica-

tion of differing standards of

practice and penalties.

The establishment of such

a body would almost certainly

mean loss of status and

authority for the Law Society.

(viii)

Compensation Fund

Solicitors operate through the

Law Society a compenstaion

fund - such is not the case

w i t h accountants. This

imbalance might make it

d i f f i cu lt to achieve a

satisfactory position for the

client who might not be able

to claim against the fund in

the event of monies being

mishandled by an MDP.

Alternatively it could place

enormous strain on the

Compension Fund which

solicitors could not be

expected to bear.

(ix)

Elimination of Cross-

Subsidisation

The opportunities for cross-

subsidisation which arise in

smaller communities will not

exist to the same degree for

MDPs. It can be questioned

whether or not such cross-

subsidisation is desirable but

that it exists to the benefit of

the poorer client is un-

deniable.

The larger the professional

practice the- more cross-

subsidisation will be eroded.

It is undeniable that larger

professional units, such as

large accounting firms,

charge higher fees. This can,

however, only be sustained in

a larger commercial environ-

ment. This is not suitable for

a smaller and more rural

society such as Ireland. In a

smaller more under-developed

society cross-subsidisation is

acceptable. It operates in

such areas as electricity and

postal services and has been

recognised as proper. Why