The Gazette 1961 - 64

Council had authorised the last president to give an under taking to the Parliamentary Secretary that members would be canvassed on section 31 with a view to its eventual introduc tion. The matter must be discussed and he felt as an individual that sooner or later the Society would be met by a demand from the Department to introduce the certificate failing which the Department would do it for the Society. The Society must then offer alternative suggestions or sound reasons why it should not be introduced. The President had in his speech pointed out that the solicitors' branch of the profession contributes a sum of .£14 to the Society of the King's Inns from the stamp duty on each apprentice's indentures and that the Society makes a direct contribution of £500 per annum to the Incorporated Council of Law Reporting. He thought we were the most imposed on profession in any country. He thought that the accountant's certificate provisions might be a small contribution but would not deter a dishonest solicitor. He thought that there were not so many dishonest solicitors as to cause alarm. Finally he said that if the accountant's certificate provisions are introduced there should be a breathing space of five to seven years. He thought the real answer to the problem of defalcations is partnerships. It was inopportune to introduce section 31 at present. MR. S. A. SIEV (Dublin) stated that we were living in a free country but that freedom is being replaced by restrictions. The profession was being driven into a position of indignity as the result of twenty-two solicitors in respect of whom claims had been made on the Compensation Fund. The annual contribution of £20 to the Compensation Fund ought to be removed. Section 31 would be an additional burden. He thought that the accountant's certificate provisions would be of no real value. MR. J. HALPIN (Cavan) said that the Cavan Bar Association agreed with the Roscommon and Mayo Bar Associations in opposing the introduction of section 31. It would have no useful effect. The accountants' certificates are required in England but defalcations there had been heavy. He referred to the difficulty and expense of getting accountants in country districts. He did not agree with Mr. Goldberg that the Minister would eventually pass legislation if the Society refuses to co-operate. If the Council could operate the full client-indemnity provisions of the Compensation Fund now in operation he thought the Minister would not insist on the introduction of section 31. On the other hand if claims are not met the Minister might introduce legislation. MR. ENDA GEARTY (Longford) opposed the accountant's certificate provisions on the grounds advanced by other members and also on the ground that section 31 might lead to compulsory disclosure of clients' affairs to auditors. Figures might be disclosed for unauthorised purposes. Other pro fessions were not subject to requirements of this kind and he thought that the Society had sufficient powers. MR. EUNAN McCARRON (Dublin) stated that the Society has already got the necessary powers. Why should these powers not be used ? If a solicitor was intentionally defrauding clients an auditor's certificate would not deter him. He suggested that spot audits might be made of individual accounts in proper cases. MR. JAMES CAWLEY (Dublin) asked the meeting to consider the realities of the position. He said that it is unreal to suggest that the Society and the profession are not answerable to the Department of Justice. It was also unreal to discuss the matter as if it involved the question of honesty only. In the majority of cases defalcations arose from inefficient business manage ment and incompetence without direct dishonest intent. It was even more important to-day that a solicitor should be a businessman than that he should be a skilled lawyer. He thought it incredible that solicitors who are entrusted with vast sums of clients' monies should claim to be exempted from having their accounts audited which is a minimu 61

r leading to the passing of the Solicitors (Amendment) Act, 1960 and also dealing with the present position of the Com- , pensation Fund. Copies of the report of the Compensation [ Fund Committee for the year 1960/61 were distributed. [ MR. JAMES CAWLEY (Dublin) asked whether the Society is K> now under any pressure from the department to ask the ! Minister to bring section 31 of the 1960 Act dealing with the accountant's certificate into operation. The President replied i that the Society had not received any communication from the Minister. MR. T. J. O'KEEFFE (Roscommon) speaking for the Roscommon Bar Association opposed the introduction of the accountant's certificate provisions. He said that it would not have the desired effect because a dishonest solicitor would always find ways around the section. The fees charged by accountants might be prohibitive and .would increase overhead costs. His association thought that the soliciting of opinions at ordinary general meetings would not give a representative view point as the meetings would be dominated by Dublin solicitors and he suggested a secret postal ballot. He further stated that his association thought that the legislation intro duced as the result of the initiative of the Council in recent i years had given the profession an odious name by labelling i members of the profession as criminals, r MR. J. B. MACGARRY (Dublin) stated that the issue before [ the meeting was the most vital which had been discussed for many years and that every member should express an opinion. The members had come to decide whether the accountant's certificate provisions would be in the interests ofthe profession. He thought that such a proposal would be ill-timed, ill- conceived and unnecessary. Every solicitor is bound by the Solicitors' Accounts Regulations and the Society can demand an audited accounting statement from any solicitor. There had been laxity between the years 1923 and 1940 which had led to the present position followed by Governmental indif ference between 1940 and 1954 and subsequently between 1958 and 1960. Only thirteen complaints had been received by the Disciplinary Committee last year which had led to orders striking off solicitors in three cases. He asked the meeting to give the Council a chance to operate the provisions of the new Act. He further stated that he thought section 31 of the 1960 Act was repugnant to article 40 of the Constitution. He closed by saying that if the Society were to bring section 31 into operation it would be an acknowledgment by solicitors that the profession cannot be trusted without control from an outside agency. MR. EDMUND CARROLL (Fermoy) said that all members are in agreement with the Solicitors' Accounts Regulations already introduced but the procedure under section 31 would not be effective. He said that the meeting had no information as to what would be the nature of the regulations to be made under section 31 (b). He was rather against the introduction of accountants' certificates because many small offices do not employ accountants and in some cases the expense of an audit might be as much as 100 guineas per annum. He suggested for consideration the alternatives of a five-yearly audit of each solicitor's accounts or an audit of a number of solicitors accounts each year to be selected by lot. MR. W. J. ALLEN (Galway) opposed the introduction of section 31 on the grounds already stated by other members and the additional ground of the difficulty in obtaining auditors' certificates. Many accountants have no professional qualifica tions and auditors could not be compelled to produce certi ficates within a given time. MR. W. J. DILLON-LEETCII (Ballyhaunis) stated that the Mayo Bar Association are totally opposed to the proposal of bringing in section 31. MR. G. Y. GOLDBERG (Cork) said that the Southern Law Association were unanimously opposed to the proposal. Nevertheless he said we must take facts as we find them. The