The Gazette 1977

GAZETTE

MAY-JUNE

instance, ask the doctor is he prepared to witness the Will. If a testator wishes to leave you a substantial amount of money, do not have anything to do with the Will yourself and refer the testator to a colleague to make it. If you find, because of a change in the law, that your client's Will is out-dated, you should draw his attention to the change of law. An example of this, of course, is a client with an estate substantially in excess of £150,000.00 who has provided in his Will that his wife will be universal legatee. You should find out if he has children and, if he has, he should, of course, leave his wife the first £150,000.00, if that is his wish, and split the rest amongst his children. Otherwise the testator will be voluntarily paying Inheritance Tax. Do not agree to take on the position of Executor or Trustee lightly. It is a very responsible position and can be extremely onerous at times. Also remember that property sold in course of administration will have to be accounted for Capital Gains Tax, and if you overlook doing this as an executor you may receive some unpleasant surprises after your file has been neatly tucked away. Litigation: In all our work it is particularly important to take detailed instructions from a client so that we can carry out his work competently. This is particularly so in the litigation side. Not alone does the attendance indicate to you the time that was spent on an aspect of the case, but it is also an aide memoire which will help you in taking the case to the next stage. In addition, detailed attendances are a great help to you when putting together an account of your charges. Never put your good reputation at stake for a client, and if you feel that some application which he wishes you to make,be it only for an adjournment, is unreasonable, refuse to do it. Remember, if you are constantly appearing in the Courts, you can get a bad reputation just as quickly as a good one. It therefore goes without saying that you must never mislead the Court, which apart from being grave professional misconduct, would also be in the teeth of your responsibility as an officer of the Court. If for any reason you must withdraw from a case, make this known in advance to the Court. It is discourteous to the Court, and to your profession, once you are on record, if you do not appear in Court when the case is called to tell the Judge your predicament, particularly if there is no appearance from the other side. It is a fair complaint by the Bar that a small number of the members of our profession are slow in the payment of their fees, or worse still, never pay them. This is not fair, and constitutes professional misconduct. Any solicitor who has received fees which are due to a barrister and who does not pay them over to the barrister could well find himself before the Disciplinary Committee of the Law Society, and in very serious trouble. Apart from this, it is also an obligation for a solicitor to do his utmost to collect the barrister's fees from his client and, if he fails to do so, he should have the courtesy to inform the barrister of this, and I doubt, if this is done, that the Barrister will rely upon the technicality that the solicitor is, of course, personally liable. Remember that party and party costs will not indemnify your client in respect of medical fees for reports and attendances in Court, and the fees of other professional witnesses, because the Taxing Masters limit themselves to a specific ceiling insofar as these are 92

concerned. This means that the solicitor will be personally liable to the professional people involved unless he has obtained his client's irrevocable authority to deduct such additional expenditure from the damages, which, of course, would be of no benefit in the case of an

infant plaintiff. Conveyancing:

There are certain obligations which I feel are not given sufficient emphasis, such as your liability to account to the client in respect of the proceeds of sale without delay. Generally speaking, I take this to mean not later than the day following the closing of the transaction. If, by reason of the fact that there is an unascertained amount outstanding, distribution cannot be made the day after the closing, providing that you are ninety-nine per cent certain of the amount involved, the proceeds of sale should be distributed, retaining from them a sufficiently large sum to cover the liability in question. If through your own fault, your client is on interest on a building society loan, because the cheque has been drawn, and this applies in the case of at least one building society, and the client is at the same time on interest on a bridging loan, you should make it clear to the client that you will be responsible for the days of interest involved on the Building Society's cheque, and you should do this before the client asks you to do it. Sometimes it arises that a Building Society completion is delayed for three or four days because you failed to have the Searches in order as requisitioned by the building society's solicitors. If you receive any substantial sum of money for a client, such as a large deposit, although at the moment you are not legally obliged to do so unless a client instructs you, I suggest that you should put it on deposit for him and let him have the benefit of the interest. This will redound to your credit and is only fair play. Of course, if the client directs you to place any of his money which you are holding on deposit, you must do so in your own bank and you must account to him for the interest involved, although you are entitled to deduct whatever reasonable fees would be involved in making the deposit and receiving the calculation of the interest. If you fail to carry out the client's instructions you will be personally liable. There is no obligation upon you to put the money in the client's own bank account on deposit with a view to obtaining set-off for interest, and if the client asks you to do this, you should refuse on the basis that under Central Bank regulations there can be no set-off between two accounts which are in different names. If you lose deeds and you fail to find them after making a dilligent search in your office, do not sit back and do nothing, hoping that they will turn up. Some Colleagues have found themselves in enormous trouble because they did just that. After checking obvious places where the deeds might be, such as with your client, his bankers, a former solicitor, or so forth, then if your records show that you should have the deeds admit to your client that you cannot find them and go ahead and re-constitute the title, putting with the re-constituted title your sworn Declaration to the effect that the deeds have been lost or mislaid in your office, together with your client's Declaration to the effect that the deeds have not been pledged by way of security or otherwise. Office Administration —Public Image: The way an office is administered contributes greatly to