The Gazette 1961 - 64

the rule. The Association had made rules of the kind men tioned which were effective and he knew of only one instance where they had been broken since 1925. The member in question had been fined. He supported the rule because it was to the advantage of the public and the profession— especially the younger members and he thought that the rule should apply to private sales as well as auctions. MR. JOHN KELLY (Roscommon) stated that his Bar Associa tion unanimously opposed the rule. He blamed the solicitors for vendors for allowing auctioneers to divert purchasers to them. He thought the rule if made would be evaded by dishonest and observed by the reputable members of the profession. MR. SEAMUS MAHON (Mullingar) for the Midland Bar Association stated that his association unanimously supported the rule. He advocated a postal ballot and said that a rule should be made applying to all sales. MR. JOHN LOUTH (Arklow) stated that the Wicklow Bar Association opposed the rule unanimously. There would be friction if the rule were passed and auctioneers would still continue to divert clients even in the face of a rule. MR.JAMES CODY (Bagenalstown) stated that he was personally opposed to the rule but thought that a postal ballot should be held and that a rule should be made if supported by 75 % of the members. MR. W. B. FAWSITT (Dublin) opposed the rule. He stated that he had acted for vendor and purchaser in many cases and experienced no difficulty. In cases of difficulty counsel could be instructed to draw requisitions on title and protect the purchaser's interests. In his experience the full commission scale fees were charged where solicitors acted for both parties. He thought that the rule would be unconstitutional and an undue interference in solicitors' private affairs. MR. D. H. KEARNS (Portumna) opposed the rule. He stated that a resolution in favour of it had been passed at a meeting of the Galway Bar Association with an attendance of only eleven and by a majority of one vote. There were fifty four solicitors in the county. He opposed the rule because it would reduce his earnings. In most transactions the title must pass the solicitor for a Bank or Building Society which would be a sufficient safeguard. He suggested that a rule might be made providing that equities must be discharged in a case where one solicitor acted for both parties or that counsel must be retained on behalf of one party. He was a member of both the Tipperary and Galway Bar Associations and he had lost several clients in Co. Tipperary where such a rule was in operation. MR. JAMES GLYNN (Tuam) chairman of the Galway Bar Association suggested that a postal ballot should be taken and that the Society should follow the result of the ballot. MR. GERARD MAcGowAN (Balbriggan) stated that he is the only resident solicitor in that town. In 90% of the sales he acted for both parties and had found that where he acted for both parties he could complete the transaction in about one fifth of the time. He thought that expeditious service was for the good of the profession. He did not accept the insurance premium argument. The fees on one good sale would pay the fees on a professional indemnity policy. MR. JAMES H. MACKEY (Dublin) supported the rule and stated that he had instances of cases in which acting for both parties caused damage particularly in the granting of leases of new houses. He read a clause in a contract which he had received from a solicitor for a builder which provided that in the event of the purchaser's engaging the builder's solicitor his costs would be paid by the builder. MR. CECIL VANCE (Bailieborough) opposed the rule and stated that he considered there was no necessity for it. MR. M. P. KEANE (Carrick-on-Shannon) opposed the rule and stated that there would be no guarantee that the second solicitor would be more competent than the first if the latter

Bar Association supported the proposed rule by a majority of one. MR. J. N. BRENNAN (Wexford) stated that his association hadreceived counsel's opinion that the rulewould beultravires and they were acting responsibly in stating that they would not obey it. It would militate against old established firms and he stated that his firm had been following the present practice for over 100 years without any difficulties of the kind suggested. Mr. Comyn was the only speaker who had produced arguments or evidence but he was not convinced by them. The motion was illogical. The society should go the whole way or do nothing. It was either right or wrong to act for both parties and he could see no sense or purpose in a limited rule, but he did not agree with any rule of the kind suggested. MR. J .B.MAcGARRY (Dublin) stated that present practice had existed in the past many years and he could not see any undesirable consequences from it. Every solicitor realises that he must avoid the conflict of interests. What was the purpose of the new rule, was it to protect the public from the profession or to protect the profession from the public or to protect members of the profession from one another ? A closed shop should be avoided and he was opposed to trade union methods in dealing with the public. He thought that the clients right of free choice must be upheld; if therewas any malpractice the Bar Association's Rules coulddealwithit. The public are always anxious to get cheap law and the side effects of the rule might be worse than the present system as it would result in hole and corner methods such as solici tors lending their names in conveyancing transactions. The proposal was inconsistent. If the society is sincere an un qualified rule should be introduced. In conclusion he asked whether the rule is necessary and enforceable. If the answer to both questions is in the affirmative then bring in the rule. MR. WILLIAM DILLON-LEETCH (Mayo) stated that he supported the rule but not the limited rule on the agenda. His firm was established in 1889 and he had many clients who would seek to retain him for vendor and purchaser in the same sale. He felt he could not do justice to both. He mentioned the difficulty about a reserve price on an auction and the possibility of disclosure or the fact that a client might think the reserve price had been disclosed where the solicitor acted for both sides. He referred to a case in which he acted for a client who had lost money due to defalcation by a member ofthe profession and had a claim on the Compensation Fund. The solicitor had acted for both parties but fortunately had elected to take the money as agent for the vendor but the position might have been otherwise. He did not believe that the full scale fees were charged where a solicitor acts for both parties and he had seen bills which were evidence to the contrary. He also thought that an analysis of losses from solicitors' defalcations would show that a dispropor tionate number of them arose in cases where you had one solicitor acting for vendor and purchaser. MR. J. A. CULLEN (Dublin) chairman of theDublin Solicitors' Bar Association stated that the matter had been considered by the Association and that owing to a divergence of views they were not able to express any representative viewpoint. MR. S. A. SIEV (Dublin) stated that there were abuses such as price cutting but questioned whether such a rule would stop it. There had been regulations prohibiting this practice since 1955. Shortly after the regulations were introduced he was asked by a prospective client to quote a fee which he refused to do and was informed by the client that another solicitor was prepared to do the work for less than the commission scale fee. The name of the solicitor in question was given by the party. He questioned the use of regulations when such things could happen. MR. N. S. GAFPNEY (Limerick) stated that the Limerick Bar Association which had a membership of forty supported