The Gazette 1974

considerable number of difficulties both for clients and for personal reoresencr.tives of the solicitor. The Council are presently to examine this problem in depth to see if any helpful solution can be found to answer many of these problems. Any members of local Bar Associations who are interested in this topic and have suggestions to make are invited to write to the Director General out- lining their views. It is interesting to note that in Scot- land the Law Society are given a temporary controlling interest over clients' funds on the death of a solicitor. Abortive mortgage transaction—amended version Members wrote to the Society concerning an opinion published in the June 1972 Gazette which was to the effect that a mortgagee's solicitor is not entitled to claim costs from a mortgagor in an abortive mortgage trans- action. Members pointed out that an agreement made between the two parties prior to loan would be binding upon the parties and would superseded the ruling of the Council. The Council considered this matter and agreed that such an agreement would supersede the Council's ruling.

With regard to High Court fees it is recommended ta at no fees should be payable on the following docu- ments : Notice of Motion, Affidavits, Subpoenas, and Lourt Orders. Bees should be payable only on four documents: 4) the Originating Document, (2) the Defence, (3) Set- tln g down for Trial, and (4) Certificate of taxation. The attested copy system in the High Court is one k'ch should be reviewed. So also is the system of charging for copying documents on a per folio basis. er tainly for photographic copies a per page basis w °uld be a more rational system. Lastly, the fee payable to the Official Assignee on the ^alisation of assets in bankruptcy should either be Polished or limited to a maximum. Bhe Council considered the implications of this r eport and decided that it should receive the support ot the Society. ^ e ath of a solicitor Where a sole practitioner who is the proprietor of a office dies without having made any arrangements ° r the succession of his legal practice there can ensue a ^he Council's ruling relating to solicitor's liability for °unsel's fees has been published on many occasions by e Society. The ruling is as follows : Bhe matter falls under two heads, (a) the disciplinary u l e and (b) the rule of etiquette. As regards (a) where solicitor has received coursel's fees from the client or third party, failure to pay fees to counsel when due ma V amount to misconduct. As regards (b) : D) The rule of etiquette is an obligation of honour ar >d applies whether or not counsel's fees have been | ec eived by the solicitor but it must be construed in the ^Sht of the circumstances and of any understandings etween counsel and solicitor in the course of practice. , v*) A solicitor is personally responsible to counsel for e proper professional fees. w) If on the acceptance of the brief a fee has been arked on the brief and agreed with counsel that fee is e proper professional fee. f (4) If the f e e hag n o t been marked and agreed as . °resaid the proper professional fee means a reasonable J - and, prima facie, the test is the amount allowed or a ich would be allowed on taxation of the solicitor's c °sts. , (5) Having regard to the fact that counsel has no Sal remedy for recovery of fees a solicitor should as a a tter of etiquette with counsel furnish his bill of costs obtain payment of the fees from the client within reasonable time unless he elects to pay the fees ^ e ^onally before reimbursement by the client. Bhe Society are finding that the great majority of °Unsel's fees are not being paid promptly in litigation c ase s . . According to members of the Bar, solicitors are in e *ault in two ways.

SOLICITORS LIABILITY FOR COUNSELS FEES

(1) Where there is a question of taxation of costs, solicitors have been very slow to prepare Bill of Costs and have them taxed. (2) Where a solicitor acts for a client who is well able to bear the expense of counsel's fees, members of the Bar state that the solicitor very often fails to apply to his own client for funds with which to pay counsel. Solicitors sometimes wait years on end attempting to recover costs from the other side. Having regard to the high rate of inflation and to current bank rates of interest, delay in payment of counsel's fees can result in a severe loss of value to counsel. Th e Society recommended to members of the Bar that they should furnish solicitors with a bill, quite apart from marking the back of a brief. A brief can very easily be used for other purposes, or filed away without proper attention being paid to the notation of counsel's fees appearing on the back thereof. However, if mem- bers of the Bar furnish solicitors with a bill for fees due, then such a bill can be treated in the same way as any other bill coming into a solicitor's office. In this respect it is felt that the minimum duty on a solicitor is to immediately write to his client, sending him copy of counsel's bill and requesting to be put in funds. Alter- natively, the solicitor should arrange to have the fees recovered whether by taxation of costs or otherwise. Th e Society has suggested to members of the Bar that as a matter of universal practice that barristers should furnish instructing solicitors with bills of all fees due which have not been paid for over three months since falling due, and furthermore that henceforth counsel furnish a solicitor with a bill. 100