The Gazette 1995

68 / 424

Fax Transmissions
Since the advent of facsimiles, there
have been a number of articles
published in the Gazette, one in
particular dealing with the question of
confidentiality. However, it would
appear that the time is right for a
I further reminder to the profession that
it seems caution should be taken with
regard to dealing with a clients
j business by way of facsimile message.
What may not be a confidential matter
for any of us may indeed be very
confidential from the point of view of a
client. People practising in each
different area of law should stop and
look at what might be confidential
from their client's point of view and in
those circumstances, should contact the
client and get specific instructions that
a facsimile message can be put through
or otherwise as the case may be.
In an ideal world, I would strongly
recommend that when taking initial
instructions from a client, one would
seek the written consent of the client
that the matter be dealt with where
necessary by way of facsimile message.
Despite our best endeavours, we cannot
overrule human error and if a member
of our staff happens to send a facsimile
message dealing with a client's
business to a wrong number, albeit that
it contains a disclaimer, it is my view
that we are immediately exposed to a
claim for breach of confidentiality.
If the client gives an instruction that
the matter can be dealt with by way of
facsimile message, he may very well
have a specific fax number to which,
he wishes the message to be sent. He
may wish to utilise a "mailbox" facility
on his fax machine. This enables the
transmission to be stored in the
receiving machine until a security code
is keyed in. The relevant details could
be written on the outside of the file or
if the file has a sheet attached giving
the name, address and phone number
| - of the client, it could be inserted here.
Niall Casey, Chairman
Professional Purposes Committee
Employing Foreign Lawyers
Solicitors employing foreign lawyers
as agents are personally liable for
their fees.
The Professional Purposes Committee
of the Law Society is very frequently
asked to consider complaints from
í foreign lawyers, who have been
| employed by Irish solicitors as agents,
but who have not been paid their fees.
The Committee has no alternative but
to direct immediate payment by the
Irish solicitor, if necessary from his
personal funds. The strict professional
I duty to pay such fees is clearly set out
in the "Guide to Professional Conduct
of Solicitors in Ireland":
| . . . . "A solicitor who instructs a lawyer
| outside the jurisdiction is liable,
personally, to pay all fees reasonably
j and properly incurred by that lawyer
unless there has been an express
agreement that such solicitor is not to
: be made personally liable".
j This reflects the position as set out in
the IBA International Code of Ethics
j and the CCBE Code of Conduct for
Lawyers in the European Community.
Many Irish solicitors appear to engage
foreign agents without first discussing
fees. They presume that their foreign
colleagues will not seek payment unless
i and until the Irish solicitor is in funds
í and, if necessary, will seek payment
directly from the client.
j A bill of costs can of course be
challenged on the basis of the work not
having been carried out, or the fees
being excessive. However, Irish
j solicitors, frequently allow
| opportunities to question the bill to pass
i until it is too late.
If an Irish solicitor wishes to avoid
personal liability for fees an express
agreement in relation to the matter must
be made when the agent is appointed.
Besides the matter of fees, solicitors
should also ensure when an agent is
appointed, that the foreign lawyer and
the client understand that the Irish
solicitor has no expertise in the foreign
legal system and relies on the foreign
lawyer to advise fully in relation to all
matters, including the feasibility of the
action being taken.
The circumstances of the case will not
i
always require that a foreign agent is
appointed. It may be perfectly
satisfactory for clients to be directed to
an embassy or other agency who will
refer them to a lawyer in the particular
jurisdiction and whom they will instruct
j directly. The relationship of an agent
| does not arise and personal liability for
I fees does not follow in that situation.
The difficulties arising for Irish
solicitors were clearly demonstrated in
{ a recent case where a foreign lawyer
failed to advise that the Irish client
would probably qualify for civil legal
aid. He sent his bill of costs to the Irish
solicitor. The bill was taxed, the Irish
solicitor not having arranged to be
represented at taxation. The foreign
lawyer demanded payment from the
solicitor personally. The solicitor was
required to pay.
! Niall Casey, Chairman
j Professional Purposes Committee
English Agents: Agency work
undertaken for Irish solicitors in
both litigation and non-contentious
matters - including legal aid. Fearon
& Co., Solicitors, Westminster
House, 12 The Broadway, Woking,
Surrey GU21 5AU.
.
Fax:
44