The Gazette 1977

GAZETTE

MAY-JUNE

Rights, Duties, Responsibilities and

Obligations of Solicitors

A Lecture to Apprentices by Walter Beatty, Vice-President — 23 May 1977

RIGHTS:

The saying "Anyone who is his own lawyer has a fool for

a client" is particularly apt in the case of a solicitor who

acts in his own cause and, indeed, where vital issues are at

stake, on behalf of close members of his family. The best

advice I can give to you is NEVER! It is sometimes

difficult to be dispassionate, though one always should be,

in advising a client. It is almost impossible when you are

advising yourself:

"Oh wad some power the giftie gie us — to see

ourselves as others see us

It wad frae monie a blunder free us an* foolish

notion".

The greatest right which we have is, generally speaking,

that we do not have to act for any particular client.

Exceptions, of course, arise in the following cases:

(a) Where you are a member of a criminal legal aid

panel

(b) Where you are on record in Court proceedings

and require the permission of the Court to

withdraw from the case.

So long as we remain an independent profession we

have the right to refuse to act for any person without

giving any reason. Privately we may do this, because we

do not like the person or we may not like the type of case

in which he is involved, or for a variety of other reasons.

Never forget that you have this right, and also that you

have the right to withdraw from a case if you feel that

your client wishes that case to be handled in a manner

contrary to your advice, or not in accordance with proper

practice. However, subject to what I have just said, if you

take a case on for a client it is your duty to undertake that

case as well as you can and as expeditiously as possible.

The other main right of our profession, which I will

mention because it is still of fairly recent origin, is that we

can now appear in all Courts as a result of the enactment

of the Courts of Justice Act 1971.

PROFESSIONAL NEGLIGENCE:

This is a subject I will come back to in discussing other

aspects of a solicitor's practice, but there are some general

remarks which I should make at this stage. Negligence is

never to be confused with misconduct, and that is why the

Registrar's Committee and the Disciplinary Committee of

the Incorporated Law Society are not concerned with the

negligence of a solicitor. Nobody likes to hear stories

about mistakes which our colleagues made, but remember

we are all human and we will make mistakes. If a client

suffers as a result of our mistake he has a Common Law

action against us for negligence, and that is why all

prudent solicitors insure themselves under a professional

indemnity policy.

Negligence arises either because we fail to do

something which we should have done, or which we

should have

known

that we should have done, or because

we omit to do something which we should have done, or

which we should have

known

we should have done. Delay

may or may not give rise to an action for negligence — it

depends upon the instructions which we received and how

they were carried out. Against a solicitor a failure to issue

proceedings within the time limitations provided for in the

Statute of Limitations 1957 would be a case of "res ipsa

loquitur". These limitations, as you know, are statutory,

but in the case of infant plaintiffs the statute commences

to run from the time upon which they attain the age of

twenty-one years.

Damages awarded against a solicitor for professional

negligence would generally arise out of a contract which

exists between the solicitor and his client, which is hardly

ever in writing, and which is based on the offer of the

client to the solicitor to do certain work, and acceptance

to do this in return for payment of his fees and

disbursement of his outlays. However, since the decision

Hedley Byrne & Company

Heller & Partners

(1963)

2 A.E.R. 594 — if a solicitor or any other person upon

whom the public is entitled to rely acts gratuitously, or

gives advice free of charge, an action may lie against that

solicitor or other person if the advice or representations,

although gratuitous, turn out to be wrong.

Privilege:

Until the passing of the Finance Act 1974, the general

rule was that all communications passing between a

solicitor and his client were privileged. This meant that

unless the client released his solicitor from the obligation

to respect the privilege of his client's communication, that

under no circumstances could the solicitor be forced to

break his client's confidence. Indeed the solicitor doing so

without his client's permission would be guilty of grave

professional misconduct.

Section 59 of the Finance Act 1974 now imposes a

statutory obligation upon a solicitor to reveal to the

Revenue Commissioners the names and addresses of

those beneficially or legally entitled in any discretionary

trust, or company, in which the solicitor acted as a

solicitor and which is not within this jurisdiction. At the

time of the introduction of this section strong pressure

was brought to bear by the profession to have it dropped,

on the grounds that it would damage the relationship

between solicitor and client, but unfortunately the

provision in the Bill was not changed and was duly

enacted.

Service To and Communication With Clients:

Not alone does civility cost nothing but it is also a very

good habit. Some clients can make an infernal nuisance of

themselves, if you let them, and I think you must let them

make an infernal nuisance of themselves if you do not

answer telephone calls, if you are always late for

appointments, and if you do not answer letters, and do