The Gazette 1967/71

SOLICITORS CHARGES AND INCOMES The first sub-heading of Professor Kaim-Caudle's article on "Solicitors' Charges and Incomes" appearing in the January issue of Leargas is titled "Monopoly". Under this sub-heading the author correctly states that the title of Solicitor is re stricted by law to those listed on the Roll of Solicitors. He then goes on to say that — (a) the Incorporated Law Society controls entry by admission rules, apprenticeship and examin ations; (b) no one may charge for legal services who is not a Solicitor; (c) Solicitors oppose competition. Just what all this has to do with monopoly is difficult to see. 'Monopoly' connotes the power to control supply by concentrating that power in the hands of a single person or undertaking. This is a far cry from insistence upon common stand ards of education, training and conduct set by a professional body to which anyone can conform who has a mind to do so. It is incorrect to say that the Law Society 'controls' entry into the profession. It does not; it regulates entry. Numbers are not controlled. Entry is determined by com pliance with theoretical and practical training and tested by assessment of the knowledge and skill required. I believe that something of the same kind applies to carpenters, fitters and electricians. I scarcely imagine that the learned professor would wish to have his appendix removed by a plumber. If knowledge and skill derived from intensive education and training is necessary for the dis charge of a personal duty to another with respect to the guidance of that person in the conduct of his own affairs, it is not unreasonable to insist that if one undertakes that task without the qualification to do so it should be done free of charge. It is, however, in a relatively small field com pared with many continental countries, eg., West Germany that the restriction upon doing legal work for fee or reward (the so-called monopoly) operates. It applies in Ireland to the preparation of documents giving rise to legal relationships and to the conduct of litigation in the courts. It does not extend to the giving of legal advice, negotiating settlements or property deals. In these fields non- 11

single document is preferable and will be less likely to give rise to difficulties of interpretation. Before finally committing themselves the parties should be absolutely clear that they both attach the same meaning to the wording of the appoint ment. Differences of local customs, differences of interpretation of even simple expressions in the same language and differences of languages, can very easily lead to a position in which parties superficially appear to be in agreement but in which it subsequently transpires that they were really at cross-purposes without recognising the fact. Finally, the terms of the appointment should clearly state whether the contract is to be con sidered an Irish one, governed by Irish law and bs subject solely to the jurisdiction of the Irish courts or whether some other national law is to apply and some other court is to have juris diction over disputes. Alternatively, there could be a provision that disputes should be regulated by arbitration. But even in that case the applicable law and the mode of appointment of the arbi tration tribunal should be defined. There are many cases of international contracts in the Law Reports in which (because the contracts themselves were silent on the points) a great deal of time and ex pense was involved in deciding preliminary issues as to what law was applicable to the contracts, and what courts had jurisdiction over disputes arising from them. Legal advice When the law to govern a particular contract is decided upon, both parties, particularly the one to whom the law in question is a foreign code, should get advice necessary to ensure that there are no special requirements of such law which have to be specially considered in relation to the particular appointment in question. Many voluminous text books have been written on the subject of agency contracts. An article of this nature can hope to do no more than put readers on their guard to the fact that the appoint ment of foreign agents is something that must be handled with extreme care. (Coras Trachtala will always be glad to help with guidance and advice on this important matter). (Reprinted from EXPORT — Vol. 4. No. 1. 1970, by permission of Coras Trachtald).