The Gazette 1961 - 64

the Council are the rule making authority under the Solicitors Acts and that there is no power in a general meeting to make rules but that the Council would naturally be guided by the opinions expressed. MR. EDMUND CARROIX (Fermoy) asked why was the rule limited and not general. THE PRESIDENT replied that there was a divergence of opinion at Galway. Some members were in favour of a limited rule and it was thought that if a rule were to be intro duced it would find greater favour in this form. MR. J. R. HALPIN (Cavan) chairman of the Provincial Solicitors' Association stated that the views of the profession appear to be divided equally. His Association had passed a resolution requesting the Society to take a postal ballot before bringing in a rule. The Council of the Society had accepted this resolution. His personal views were in favour of a rule. He had no personal axe to grind as he intended to retire in the near future. The principal argument was the public interest. No man could satisfactorily serve two clients with possible opposing interests which might always develop even in the most unexpected way. From the viewpoint of the interests of the profession such a rule would prevent price cutting. He also referred to the increase in premiums in negligence insurance policies. The argument that a solicitor may lose a client from the operation of the rule cuts in both ways because under such a rule a solicitor would very probably gain a client for every client lost. MR. PATRICK CUSACK (Ballyjamesduff) opposed the rule and stated that he was supported by a great number of solicitors. He thought that the introduction of a limited rule was insincere and made no sense. It should be all or nothing. He suggested that the Society should bring in the financial regulations under the Solicitors Acts and enquired why this had not been done. He stated that Mr. Halpin the previous speaker was not affected financially but that he and other solicitors were. He submitted that section 71 of the Solicitors Act 1954 did not authorise the Council to make regulations ofthe kind suggested divesting solicitors of the right to act for both parties which they obtained when they were admitted. The right to act for both parties was recognised by the regulations made under the Solicitors Remuneration Act 1881 dealing with the costs of leases. A rule of the kind suggested would split the profession and many members would not obey it in view of their opinion of the legal position. In reply to a question put by the President Mr. Cusack stated that by the financial regulations he meant the Accountant's Certificate Regulations under the Solicitors (Amendment) Act 1960 which he thought should be introduced forthwith. MR. EDMUND CARROLL (Fermoy) opposed the making of a regulation on the ground that it would divert clients away from their established solicitors. The individual solicitor was the best judge of the question of whether or not he should act for two parties. Mr. Cairoll enquired why we should insure against professional negligence if we divest the com panies ofliability. The recent increase in premiums may have been due to acting for both parties but he thought that a more likely cause was mistakes by solicitors due to lapse of time. Mr. Carroll stated that at one time he thought that under such a rule he would get as many clients as he would lose but recently he heard it said that a solicitor who could not act for both parties would send the other client to his Dublin agent. He approved of a postal ballot and if a reasonable proportion of the country and city solicitors supported a regulation he would follow it. MR. FINTAN O'CONNOR (Wexford) stated that he had no intention of retiring like Mr. Halpin and he and others like him had no intention of observing such a rule if made. They had obtained the opinion of senior counsel that such a rule would be ultra vires to the Solicitors Act and repugnant to the Constitution. For this reason he would not follow the result of a postal ballot even if it supported the rule.

MR. JOHN KIERAN (Ardee) on behalf of the Louth Bar Association stated that he opposed the rule and that he associated himself with the remarks of previous speakers. MR. F. J. GANNON (Mohill) stated that there are eleven solicitors in County Leitrim who are unanimously against such a rule and if such a rule was made they would not obey it. He thought the rule would be unduly restrictive and unfair to the public. He challenged the statement regarding the effect of the practice of acting for both parties on insurance premiums. He thought that the question of price cutting could be covered by Bar Association rules and that it did not exist in County Leitrim. MR. JAMES R. QUIRKE (Dublin) suggested that it was inopportune to make a rule at the present time and that no action should be taken. MR. ANDREW COMYN (Mallow) stated that he had listened to the arguments against the making of a rule for twentyfive years and askedthe members to grow up and discuss the matter sensibly. Solicitors earn their living by serving the public and the question is whether the rule would be for the public benefit. Clients could not be expected to appreciate the danger of asking a solicitor to act for both sides. He had read titles for four years as a solicitor in a bank and from time to time they received bad titles. In his experience the bad titles almost invariably came from the practice of acting for both parties. How could a solicitor draw requisitions on title and answer them as well? It was no answer that the public did not want the rule. The public did not know the position. From the professional point of view the rule was necessary and that auctioneers frequently tried to divert the purchaser to the vendor's solicitor. He had lost many clients in that way. The present freedom to act for both parties also tended to encourage fee cutting. In reply to denials by some members he stated that he was certain that it was so and knew of many cases. The argument about losing clients was absurd. There would be a two way traffic and a solicitor who sent a client to another to avoid a conflict of interest would get him back if he was worth anything as a solicitor. MR. T. J. FITZPATRICK (Cavan) supported the suggestion of a postal ballot but he deprecated the attitude of some previous speakers. He stated that he would not resign if the rule were not passed neither would he bring the society to the Supreme Court if the rule were made but would accept any regulations made by the society. He did not know whether he would lose or make money under the rule but he was not in favour of conflicting interests. The free choice argument did not hold water. He was convinced that the present system led to price cutting and was afraid that the principal offenders were the larger firms and bigger solicitors who would give advantages to established clients. If the rule were passed it would break up a very undesirable relationship between some solicitors and auctioneers who brought purchasers to solicitors for vendors to ingratiate themselves. He did not agree that a client who is sent to another solicitor for a particular trans action never returns. He was not sure whether he would support a rule of the kind suggested on a limited scale because he thought that the rule should be general. He certainly would support a general rule. MR. NATHANIEL LACY (Kells) supported the rule and the arguments of Mr. Halpin. He thought that limited rule would not go far enough and that the rule should be extended to all conveyancing. He said that he once consulted an eminent conveyancer the late Mr. Newett who told him of the rule about constructive notice and that a solicitor who acts for both parties might receive constructive notice of matters which would not be in the interests of his clients. The day a sale is closed is not the date on which the file can be closed. All kinds of questions arise about boundaries and other matters. He deprecated the statement that some solicitors would not obey a rule which he described as a schoolboy attitude and unworthy of the profession. The County Meath