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GAZETTE
N O V
E M B E R
1983
Practice Notes
Referral Service
—Flat Developments
The Conveyancing Committee has been asked to
establish a referral system under which the firms of
solicitors with expertise in the establishment and
operation of schemes for the sale of flats would make their
expertise available to other firms on a referral basis.
Accordingly the Committee would invite firms with
expertise in this area to submit their names to the
Committee with a view to being included on a panel of
solicitors to whom referrals would be made.
The basic principle upon which the referral system will
operate is that the consultant firm will not, in normal
circumstances, accept from the client within 3 years of the
completion of the consultancy assignment any work in
the area of flat development schemes without the
approval of the referring firm.
It is envisaged that it will not be essential in most cases
for the consulting firm to deal directly with the client, but
it is believed that there may be circumstances in which this
would be in the interest of the client and of the referring
firm.
Firms who are interested in having their names placed
on the referral panel should apply to:
ANNA HEGARTY at the Law Society
Blackhall Place, Dublin, 7.
Not so many years ago there would not have been any
documentation beyond a deposit of the Land Certificate
or title deeds, often made directly to the Bank Manager
without the intervention of any solicitor. The inadequacy
of the equitable deposit in the absence of satisfactory
collateral, as an enforceable security, has been only one of
a number of factors which have encouraged banks to
insist on mortgages or charges being in writing.
Three separate difficulties arise where the customer
does not wish to enlist the assistance of his own solicitor,
two for the bank's solicitor and one for the bank itself.
The solicitor's first problem is that of conflict of interests,
if he does agree to act for the customer — which he would
be foolish to do — and the second arises if the customer
insists on not engaging a solicitor, in ensuring that the
queries on the title which must, in the light of the
Northern
Bank
-v-
Henry
case, [1981] I.R. 1 be raised as answered
with a sufficient degree of responsibility.
The bank's difficulty, particularly if its own solicitor
arranges for the completion of the mortgage and spouse's
consent, whether acting for the customer or not, is the
allegation of undue influence. Recent cases in England,
where the doctrine of undue influence does not seem to
have been as frequently relied on as it has been in Ireland,
principally
Lloyds Bank
-v-
Bundy
[1974] 3 All E.R. 757
and most recently
National Westminster Bank -v- Morgan
(The Times, July 5th 1983), have shown that the Courts
there are likely to view banks as having such a fiduciary
duty to the person executing the document in favour of
the bank as to require such person to have independent
legal advice.
Accordingly, solicitors acting for banks should not
merely advise the customer that it would be unwise for the
solicitor to act for or advise him in the matter, but should
also advise the bank of the wisdom of ensuring that the
customer and the bank receive adequate independent
advice.
•
Adjudication of Leases
The Joint Committee of the Law Society and Building
Societies' Solicitors has considered the practice of
requiring the adjudication of the stamp duty on leases on
housing estates. It was decided to recommend that hence-
forth solicitors for purchasers and lenders should not
require the lease of a private house on a housing estate to
be adjudicated when it bears what appears to be the
appropriate duty.
•
Mortgagees' Solicitors and the Borrowers
—Conflict of Interest
Increasing attention is being paid to situations in which
solicitors may find themselves faced with a conflict of
interest. The Conveyancing Committee has recently been
asked to advise a firm of solicitors acting for a bank in a
provincial town, as to the propriety of their acting for the
bank's customers in connection with the completion of
mortgage documentation.
SOC I ETY OF Y O U NG SOL ICI TORS
SPRING SEMINAR 1984
The Spring Seminar will be held on the 6th-8th
April, 1984.
Topics will include:—
(1) Arbitration
(2) Divorce — a comparative study
(3) Negotiable Instruments
(4) Professional Indemnity and / or Pensions
for Solicitors.
Full programme available later.
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