The Gazette 1995

| - of the client, it could be inserted here.

If an Irish solicitor wishes to avoid personal liability for fees an express agreement in relation to the matter must be made when the agent is appointed. Besides the matter of fees, solicitors should also ensure when an agent is appointed, that the foreign lawyer and the client understand that the Irish solicitor has no expertise in the foreign legal system and relies on the foreign lawyer to advise fully in relation to all matters, including the feasibility of the action being taken. The circumstances of the case will not i always require that a foreign agent is appointed. It may be perfectly satisfactory for clients to be directed to an embassy or other agency who will refer them to a lawyer in the particular jurisdiction and whom they will instruct j directly. The relationship of an agent | does not arise and personal liability for I fees does not follow in that situation. The difficulties arising for Irish solicitors were clearly demonstrated in { a recent case where a foreign lawyer failed to advise that the Irish client would probably qualify for civil legal aid. He sent his bill of costs to the Irish solicitor. The bill was taxed, the Irish solicitor not having arranged to be represented at taxation. The foreign lawyer demanded payment from the solicitor personally. The solicitor was required to pay.

Fax Transmissions

Niall Casey, Chairman Professional Purposes

Committee

Since the advent of facsimiles, there have been a number of articles published in the Gazette, one in particular dealing with the question of confidentiality. However, it would appear that the time is right for a I further reminder to the profession that it seems caution should be taken with regard to dealing with a clients j business by way of facsimile message. What may not be a confidential matter for any of us may indeed be very confidential from the point of view of a client. People practising in each different area of law should stop and look at what might be confidential from their client's point of view and in those circumstances, should contact the client and get specific instructions that a facsimile message can be put through or otherwise as the case may be. In an ideal world, I would strongly recommend that when taking initial instructions from a client, one would seek the written consent of the client that the matter be dealt with where necessary by way of facsimile message. Despite our best endeavours, we cannot overrule human error and if a member of our staff happens to send a facsimile message dealing with a client's business to a wrong number, albeit that it contains a disclaimer, it is my view that we are immediately exposed to a claim for breach of confidentiality. If the client gives an instruction that the matter can be dealt with by way of facsimile message, he may very well have a specific fax number to which, he wishes the message to be sent. He may wish to utilise a "mailbox" facility on his fax machine. This enables the transmission to be stored in the receiving machine until a security code is keyed in. The relevant details could be written on the outside of the file or if the file has a sheet attached giving the name, address and phone number

Employing Foreign Lawyers

Solicitors employing foreign lawyers as agents are personally liable for their fees. The Professional Purposes Committee of the Law Society is very frequently asked to consider complaints from í foreign lawyers, who have been | employed by Irish solicitors as agents, but who have not been paid their fees. The Committee has no alternative but to direct immediate payment by the Irish solicitor, if necessary from his personal funds. The strict professional I duty to pay such fees is clearly set out in the "Guide to Professional Conduct of Solicitors in Ireland": | . . . . "A solicitor who instructs a lawyer | outside the jurisdiction is liable, personally, to pay all fees reasonably j and properly incurred by that lawyer unless there has been an express agreement that such solicitor is not to : be made personally liable". j This reflects the position as set out in the IBA International Code of Ethics j and the CCBE Code of Conduct for Lawyers in the European Community. Many Irish solicitors appear to engage foreign agents without first discussing fees. They presume that their foreign colleagues will not seek payment unless i and until the Irish solicitor is in funds í and, if necessary, will seek payment directly from the client. j A bill of costs can of course be challenged on the basis of the work not having been carried out, or the fees being excessive. However, Irish j solicitors, frequently allow | opportunities to question the bill to pass i until it is too late.

! Niall Casey, Chairman j Professional Purposes

Committee

English Agents: Agency work undertaken for Irish solicitors in both litigation and non-contentious matters - including legal aid. Fearon & Co., Solicitors, Westminster House, 12 The Broadway, Woking, Surrey GU21 5AU.

Tel: 0044-483-726272. Fax: 0044-483-725807.

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