The Gazette 1974

monopoly but this does not appear to provide any problem for them or inhibit their activities or diminish the requirement for their services. A factor that is a direct result of the monopoly which the Solicitor's profession holds in regard to certain types of legal work is the statutory control of Solicitor's costs which is designed as a safeguard to the public but of which they do not appear to be sufficiently aware and certainly do not seem to appreciate. In this regard we are the only profession whose charges for professional services as such are controlled by statute. Solicitors' Privileges Co-extensive with a Solicitor's rights are his privileges conferred both by statute and of necessity under the circumstances of his activities for and relationship with his clients. It must be understood that a Solicitor's rights and privileges derive essentially from his retention as such by his client and a Solicitor's retainer is the foundation on which the relationship between Solicitor and client is built. This relationship of Solicitor and client is created by the retainer, given freely by the client, and accepted by the Solicitor which then be- comes a Contract between the Parties. A retainer is thus essentially a contract whereby in return for a client's offer to employ a Solicitor, the Solicitor under- takes to perform certain services. The ordinary law of Contract applies to a retainer and, as in the case of most contracts, it need not be evidenced by writing, and can be either express or implied. Duties and Responsibilities One of the most essential and fundamental differ- ences between Solicitors and all other professions is that Solicitors handle clients monies and in the present day these amount to quite vast sums. As you are aware, Solicitors are required to comply strictly with the Solicitors' Accounts Regulations both in regard to the handling of and accountability for clients monies. It is hardly necessary to spell out in detail the duties and responsibilities that are thereby incurred by Solici- tors. One of the most important duties of a Solicitor is the taking of proper instructions because he will obviously not be able to implement his client's instruc- tions or be of any use to the client unless they have been accurately taken. It is thus highly desirable that at every available opportunity that a Solicitor should take clear and unimbigous notes of attendances on his clients. If he feels in any doubt as to the client's exact inten- tions or if he is unhappy about his instructions for any reason, he should take the precaution of having the client sign the attendance sheet acknowledging that he has read it and that it represents his instructions. In more serious matters the Solicitor should obtain written instructions from his client in the form of a letter. This is particularly important where the Solicitor is requested to give an undertaking on behalf of the client, espe- cially for the payment over of monies; in such cir- cumstances, an irrevocable authority to act for the client in regard to the particular matter in question, whether it be a property transaction or the handling of a litigation matter, should be obtained in writing. Solicitor's undertakings One of the cornerstones of the Solicitor's dealings with his colleagues, with institutions, or members of the public is the giving of undertakings. In the course of 283

for Solicitors to be even more conscientious than ever of the necessity for scrupulous honesty and the utmost integrity in their handling of their clients affairs and in particular with regard to the handling of clients monies. The only thing a Solicitor has that is worth having and which cannot be estimated in financial terms is his good name. Once this is lost, he has nothing further to offer as a member of the profession. It is thus absolutely essential that in the course of practice a Solicitor must not only be both completely and scrupul- ously honest but must also be patently seen to be honest. I trust that it is hardly necessary to spell out this requirement of our profession in any greater detail but it is a matter that all practising Solicitors should constantly keep in the forefront of their minds because the temptations are great. While the spirit may indeed be willing, the flesh, as we know too well, can sometimes be too weak to withstand them. Human nature being what it is, as a practising member of the Solicitor's profession, one should be constantly on one's guard against any temptations that may present themselves and if they transgress it, it is only then that the necessity for the maintenance of the highest stan- dards becomes fully apparent. Negligence and professional misconduct A clear distinction should be drawn between negli- gence and professional misconduct. As I am sure you are well aware, negligence has been defined as the doing of something that a reasonable man would not do, or the failure to do something that a reasonable man would do. In the context of the Solicitor's profession, it could be described as the absence of such care as it was the duty of the Solicitor to take. Professional miscon- duct could be summarised as arising where a Solicitor has acted in a manner either towards a colleague or a client which falls below the standard of conduct required and expected from him as a member of the profession. Solicitor's Rights It can be briefly stated that a Solicitor's rights are lew and cannot be considered in isolation from his duties, responsibilities and obligations and such as they are they only exist to enable him to carry these out. The rights of Solicitors are largely statutory and. are contained in a number of enactments, principally the Solicitors Acts 1954-1960 and recently the Courts Act 1971 which gave Solicitors a right of audience in Civil matters in all Courts. Broadly speaking, the Solicitor's profession has a monopoly in conveyancing and com- pany work and in regard to litigation in Court but this does not extend to the increasing number of Tribunals and Enquiries and like quasi judicial bodies. It should he clearly born in mind that any individual has a right to perform on his own behalf any of the services which a Solicitor performs for a client but an unqualified person may not indulge on behalf of another person in any of the work in regard to which the services of a Solicitor are required by statute or otherwise. In prac- tise, lay litigants receive a great deal of indulgence from the Courts but they are not usually as successful for the obvious reasons that they lack both qualifica- tions, legal training and experience to enable them to present their cases. This is rather effectively summed up by the well known saying that "Anyone who is his own lawyer has a fool for a client". It is worth noting that the legal profession in Sweden does not have any