The Gazette 1977

GAZETTE

MAY-JUNE

Rights, Duties, Responsibilities and Obligations of Solicitors A Lecture to Apprentices by Walter Beatty, Vice-President — 23 May 1977

we omit to do something which we should have done, or which we should have known we should have done. Delay may or may not give rise to an action for negligence — it depends upon the instructions which we received and how they were carried out. Against a solicitor a failure to issue proceedings within the time limitations provided for in the Statute of Limitations 1957 would be a case of "res ipsa loquitur". These limitations, as you know, are statutory, but in the case of infant plaintiffs the statute commences to run from the time upon which they attain the age of twenty-one years. Damages awarded against a solicitor for professional negligence would generally arise out of a contract which exists between the solicitor and his client, which is hardly ever in writing, and which is based on the offer of the client to the solicitor to do certain work, and acceptance to do this in return for payment of his fees and disbursement of his outlays. However, since the decision of Hedley Byrne & Company v Heller & Partners (1963) 2 A.E.R. 594 — if a solicitor or any other person upon whom the public is entitled to rely acts gratuitously, or gives advice free of charge, an action may lie against that solicitor or other person if the advice or representations, although gratuitous, turn out to be wrong. Privilege: Until the passing of the Finance Act 1974, the general rule was that all communications passing between a solicitor and his client were privileged. This meant that unless the client released his solicitor from the obligation to respect the privilege of his client's communication, that under no circumstances could the solicitor be forced to break his client's confidence. Indeed the solicitor doing so without his client's permission would be guilty of grave professional misconduct. Section 59 of the Finance Act 1974 now imposes a statutory obligation upon a solicitor to reveal to the Revenue Commissioners the names and addresses of those beneficially or legally entitled in any discretionary trust, or company, in which the solicitor acted as a solicitor and which is not within this jurisdiction. At the time of the introduction of this section strong pressure was brought to bear by the profession to have it dropped, on the grounds that it would damage the relationship between solicitor and client, but unfortunately the provision in the Bill was not changed and was duly enacted. Service To and Communication With Clients: Not alone does civility cost nothing but it is also a very good habit. Some clients can make an infernal nuisance of themselves, if you let them, and I think you must let them make an infernal nuisance of themselves if you do not answer telephone calls, if you are always late for appointments, and if you do not answer letters, and do 89

RIGHTS: The saying "Anyone who is his own lawyer has a fool for a client" is particularly apt in the case of a solicitor who acts in his own cause and, indeed, where vital issues are at stake, on behalf of close members of his family. The best advice I can give to you is NEVER! It is sometimes difficult to be dispassionate, though one always should be, in advising a client. It is almost impossible when you are advising yourself: "Oh wad some power the giftie gie us — to see ourselves as others see us It wad frae monie a blunder free us an* foolish notion". The greatest right which we have is, generally speaking, that we do not have to act for any particular client. Exceptions, of course, arise in the following cases: (a) Where you are a member of a criminal legal aid panel (b) Where you are on record in Court proceedings and require the permission of the Court to withdraw from the case. So long as we remain an independent profession we have the right to refuse to act for any person without giving any reason. Privately we may do this, because we do not like the person or we may not like the type of case in which he is involved, or for a variety of other reasons. Never forget that you have this right, and also that you have the right to withdraw from a case if you feel that your client wishes that case to be handled in a manner contrary to your advice, or not in accordance with proper practice. However, subject to what I have just said, if you take a case on for a client it is your duty to undertake that case as well as you can and as expeditiously as possible. The other main right of our profession, which I will mention because it is still of fairly recent origin, is that we can now appear in all Courts as a result of the enactment This is a subject I will come back to in discussing other aspects of a solicitor's practice, but there are some general remarks which I should make at this stage. Negligence is never to be confused with misconduct, and that is why the Registrar's Committee and the Disciplinary Committee of the Incorporated Law Society are not concerned with the negligence of a solicitor. Nobody likes to hear stories about mistakes which our colleagues made, but remember we are all human and we will make mistakes. If a client suffers as a result of our mistake he has a Common Law action against us for negligence, and that is why all prudent solicitors insure themselves under a professional indemnity policy. Negligence arises either because we fail to do something which we should have done, or which we should have known that we should have done, or because of the Courts of Justice Act 1971. PROFESSIONAL NEGLIGENCE: