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Nevertheless, the Society feels that the proposals
are in direct conflict with the rule of absolute privi-
lege of transactions between a solicitor and his client,
a rule which is for the protection of the client to
enable him to confide unreservedly in his legal
adviser.
This proposed legislation attacks one of the funda-
mental rights of the citizen and to the extent that the
Society feels it must call public attention to it, and is
making representation to the Minister for Finance to
alter the section and preserve the privilege.
This expresses the fears and objections of the legal
profession to this section. I am sure the Minister is also
well aware of their determination, as far as possible, to
resist this section.
I read an article in the magazine,
Business and
Finance
which refers once again to the proposed change.
It refers to the solicitor here as the confidential agent.
Speaking of the clients, it says :
Without trust, absolute trust, who does he go to?
In Sicily they go to the Mafia.
The
Minister
is
aware
that
in
the
Dail
one of his legal colleagues, stated that he will
absolutely refuse to comply with this regulation. I won-
der how the Minister or the Revenue Commissioners
propose to deal with this. How will the Minister deal
with these solicitors, some on his side of the House, if
they refuse to comply with this as I am sure many of
them will do? They have already challenged the
Minister and intimated that they have no doubt at all
that they will refuse to do this. I think this subsection
will become unenforceable and will lead to confusion.
I think that the amount of money which the Minister
would hope to collect or the amount of tax avoidance
which he would hope to be able to prevent would not
be worth the candie, taking into account the cost of the
administration of this section.
Because
of
the
nature
of
the
relationship
between a client and a barrister, an accountant and a
banker, I think that this special privileged relationship
should be preserved.
Mr. R. Ryan: I do not want to delay the House but
acceptance of recommendation 28 would, in fact, leave
solicitors completely unprotected. It seems to me that
acceptance of recommendation 29 would not give soli-
citors any greater protection than there is under the
section. All they have to do is supply names and
addresses.
Mr. Lenihan: It is only relevant in the context of
having Section 59 in the Bill. The whole thinking in
this area is crazy in our circumstances. We are in a
period of recession where we are experiencing serious
difficulties and we are concerned about chasing half-
pennies and destroying basic legal principles in order
to chase halfpennies.
There is a sense of unreality surrounding this debate.
We are seeking to erode a confidentiality which has
existed over centuries between a solicitor and a client,
between banks and their clients and between a client
and accountant or a barrister. This concerns the
private affairs of individuals. "In the case of anything
done by the solicitor in connection with the transfer of
the asset" is the phraseology used.
Mr. R. Ryan: The
names and addresses of the
people involved—no more than that.
Mr. Lenihan: I am referring to (a), (b), and (c) of
subsection (3).
Mr. R. Ryan: It is the names and addresses that are
involved and no more.
Mr. Lenihan: And also (a) in the case of anything
done by the solicitor in connection with the transfer of
any asset and (b) in the case of anything done by the
solicitor in connection with the formation or manage-
ment of any such body corporate and (c) in the
case of anything done by the solicitor in connection with
the creation or with the execution of the trusts—
Mr. R. Ryan: The name and address. That is all
that is asked.
Mr. Lenihan: There is a lot more than that. With
that type of ascertainment of information if you link (a),
(b) and (c) together the whole operation in effect which
has been discussed between solicitor and client is re-
vealed to the Revenue Commissioners. I agree with
Senator Sean Brosnan's view that this is unenforceable.
If professional persons in the category mentioned
decide not to give the information, that will be the end
of that. There is no clause written into this section. If a
thing is undesirable but is in the interests of the com-
munity, that is acceptable. The amount of information
and the amount of revenue this will yield eventually
will be negligible. We will just have added a further
tarnishing to the good name we spent many years buil-
ding up.
This
type
of
section
brings
us
close
to
the
Banana
Republic
type.
We
have
sought
for over fifty years to get rid of
that—we
have never had it in our State. There is a high regard
abroad for our institutions and for the way we carry on
business and behave ourselves. If we are to have a sec-
tion such as this written into the principal piece of
legislation enacted, which is the Finance Act, there can
be no confidentiality in regard to particular transactions
between solicitor, client, accountant, barrister, banker
and so on.
This sort of damage is punitive when linked to a
number of other proposals that the Government have
adumbrated, many of which they have withdrawn. It is
the total add-up that counts and this is causing the
present lack of confidence on the part of financial
affairs and business in the development of our commu-
nity. Basically, the whole financial structure depends on
the single element of confidence. If, by reason of sections
like this, one further erosion is added to our confidence
we are on a dangerous, slippery slope. I appreciate that
the Minister is adamant in this matter.
Mr. R. Ryan: Senator Brosnan quoted the letter
which the President of the Incorporated Law Society sent
to the Press. I am not aware that the solicitors' profes-
sion or the society were consulted before the letter was
issued. Secondly, I am disappointed that the President
of my own professional society should have written a
letter to the Press which was, to say the least of it, mis-
leading in that it did not fully tell the public the true
position under the section.
The
letter
from
the
learned
President
to
the
Press
stated,
as
Senator
Brosnan
quoted, that solicitors would be required to give
particulars relating to any transaction concerning the
transfer of assets abroad and the possible avoidance of
taxation thereby and that this section shall require that
solicitors among others should be compelled to disclose
information relating to their clients and their affairs. I
am disappointed that the President did not display the
type of caution which I think a solicitor should.
Mr. Lenihan: He must have thought it a very serious
matter.
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