The Gazette 1961 - 64

he pointed out that the vendor's solicitor must first advise his client that he has a good saleable title and he failed to see how having given this advice he could subject the title to any really critical examination on behalf of the purchaser for whom he subsequently acted. In his opinion resolutions of Barl Associations are not the best way of testing professiona opinion throughout the country as opponents of a rule will be sure to attend a meeting. He suggested that a postal ballot should be taken of the whole profession. He said that he thought that the Council are of opinion that a rule should be made. If this is so, it was the duty of the Council to make the rule under section 71 of the Act as in the case of the Accounts Regulations. MR. THOMAS E. O'DONNELL (Limerick) stated that no man can serve two masters. Various conflicts might arise under a contract and he instanced the question of penal interest where there is delay in closing. How could a solicitor for both parties deal fairly with this question? There might be special circumstances in towns where there is only one office, but the answer was that the profession must come first. He stated that the Limerick Bar Association had a rule which was well observed. MR. JAMES J. HICKEY (Dublin) said that, speaking personally, he was opposed to the making of a regulation as a matter of principle. Logically if a regulation was made applicable to sales it should be extended to the case of mortgagor and mortgagee. He stated that he was not unduly concerned about the judicial opinions mentioned which were probably only obiter dicta and not legally binding. MR. PATRICK F. TREACY (Tipperary) favoured the regulation on the ground ofthe abuses resulting from the present practice, unfair competition between solicitors and the fact that an ignorant purchaser may be misled into thinking that he will get a better deal in the terms of the contract from the vendor's solicitor. MR. EDMUND CARROLL (Cork) opposed the proposed regulation. He said that there is a conflict of viewpoint between city and country solicitors mainly because of the complicated titles to city property which do not arise in registered titles in rural areas. The examination in the Land Registry of the title was a check against abuses arising from conflict of interest and insufficient examination. The personal contacts between solicitor and client in country practices made such a rule undesirable. It would cause an outcry and the diversion of clients away from particular solicitors. The question of financial gain was not paramount. The argument of attraction of business could work both ways by the attraction of old established family clients to other solicitors. The suggested limitation of the rule to cases in which auctioneers are acting might result in reduction in the number of auctions. He also instanced the case of the formation of a family com– pany and the transfer of property from the family to the company. Finally Mr. Carroll thought that a ballot of the entire profession, both members and non-members, would show a majority against such regulations. Miss SARAH KILLEEN (Dublin) spoke as a member of the legal staff of the Dublin Corporation and was in favour of regulations. The practice of a single solicitor acting for both parties was most unsatisfactory. Many purchasers who were unwilling to instruct their own solicitor wanted the Corporation's solicitors to act for them in the investigation of the title. She felt that a regulation of the kind proposed would put an end to such practices as the Corporation solicitor could not act for the mortgagee and the purchaser. MR. WILLIAM L. RYAN (Laois) said that two meetings of his Bar Association were held but that a representative attend– ance could not be obtained. There was an equal division of opinion. If a regulation were made it would require some limitations. On the whole he thought his Bar Association would be opposed to regulations. 12

Clare the Bar Association have made a regulation prohibiting solicitors from acting for both parties to a sale except in cases where the consideration does not exceed £300. Personally he would have no exceptions and would like to apply the rule to all cases, including cases in which there is no auctioneer or house agent. The rule had worked very well in Clare. Difficulties arise between adjoining counties where there is a rule prohibiting double representation by the same solicitor in only one. For that reason he felt that there should be a State-wide regulation, failing which it would probably be advisable to abolish the local non-statutory rules altogether. He said that in County Clare the equity note is still undis– charged in the majority of cases. In many cases the contract for sale precludes the purchaser from requiring the vendor to discharge the equity note even at the purchaser's expense, and this makes a regulation of the kind mentioned even more necessary. Finally Mr. Lynch referred to the reduction in solicitors' remuneration due to the prevalent habit of acting for both parties. Mr. Thomas V. O'Connor (Mayo) supported the resolution on behalf of the Mayo Bar Association if it could be made on a national scale with statutory effect. A local rule had been made in County Mayo, but had failed because a number of solicitors had resigned from the association. The majority of the Mayo solicitors were strongly in favour of a regulation applicable to all sales (with certain limited exceptions, such as family transactions). Such a regulation they considered would lead to an increase of business and in the gross amount of costs received by the profession, better internal relations within the profession and better service to the public. Mr. O'Connor stated that he personally strongly supported such a regulation although he might possibly lose a certain amount of business. MR. GERALD Y. GOLDBERG (Cork) spoke on behalf of the Southern Law Association, of which solicitors in the city and county of Cork are members. He said that his association had obtained the written and oral views of solicitors from country towns. A plebiscite in country towns revealed that a majority in each of them opposed the making of a rule by the Southern Law Association. The Association could not have enforced the rule if made, as many would have resigned. In Cork city a slight majority, of which he personally was one, supported the rule. As the result of the views expressed the Southern Law Association are opposed to the making of a statutory regulation. MR. IGNATIUS M. HOULIHAN (Clare) said that there were two methods of approach, one the individual selfish view– point and the other the professional approach. From the individual point of view many solicitors would be against a statutory regulation, but he felt that from the point of view of the profession it should be recognised that the consensus of responsible judicial opinion is that no man can serve two masters. He would strongly support a nationwide regulation with statutory effect. MR. SEAMUS MAHON (Midland Bar Association) said that his Association favour a regulation because the present practice leads to widespread price cutting. There is also the danger of a conflict ofinterests. He was not impressed with the argument that the matter should be left to the individual judgment and foresight of solicitors. Where regulations are enforced the members of Bar Associations find it quite satisfactory. He said that most of the opposition came from Bar Associations where there is no regulation. MR. THOMAS J. FITZPATRICK (Cavan) said that he spoke personally and not on behalf of his Bar Association. The present unrestricted practice of acting for both parties en– couraged touting for business by auctioneers on behalf of solicitors. This was usually done at a public auction where the auctioneer interviews the purchaser and could be stopped only by a regulation. On the question of conflict of interest