The Gazette 1991

GAZETTE

JULY/AUGUST 1991

professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case". It is also clear that subject to certain well-defined exceptions, confidentiality of communication is imported into the European Community Law as considered in A.M. & S. -v- EC Commission (Case 155/1979). See also the draft European Code para 2(3) which states: " I t is of the essence of a lawyer's function that he should be told by his client things which the client would not tell to others, and that he should be the recipient of other infor- mation on a basis of confidence. Without the certainty of confidentiality there cannot be trust. The obligation of confidentiality is therefore recognised as the primary and funda- mental right and duty of the lawyer". The solicitor's duty of confidentiality is therefore more rigorous than that upon members of other profes- sions, as is recognised by the absence in their case of the right and duty to remain silent. It is doubted whether clients would have any confidence in "Chinese walls" as a means of erecting ad- equate safeguards for safe- guarding con f i den t i a l i ty within an MDP or preventing "It is doubted whether clients would have any confidence in "Chinese walls" . . . within an MDP . . the exchange of information on, for example, the MDPs computer databank. (vi) Freedom of Choice The choice of the client might be severely restricted, particularly where there was one MDP in a relatively small area. In may be that it would be very difficult to secure good independent advice in

regard to a potential claim against a client of an MDP. It is a widely held miscon- ception that MDPs would allow for greater freedom of choice. By their very existence MDPs will tend to restrict choice. The basic purpose of an MDP is to enable a client to take all he requires from one source. In fact, the client will be expected to take ail of his services from the same source. The client would almost certainly be under constant pressure to take the entire package even if he wished to retain a degree of independent choice. (vii) Professional Standards/ Discipline In matters of conduct and discipline it would require to be a fundamental principle for MDPs that the rules which apply to members of a single professional firm should be no more rigorous than the rules and obligations incumbent upon an MDP, or, alternatively and correspondingly, that the obligations and rules which apply to MDPs should be at least as rigorous as those placed upon a firm of solicitors. Such a legitimate principle would immediately pose difficulties for the other professions. The Law Society could not be confident that the differences between the codes and standards of conduct and discipline which at present exist w i t h in individual professions are readily capable of a simple solution. Nor could the Law Society be confident that the professions by negotiation and discussion could arrive at a common code of profes- sional conduct. The result of negotiation between the professions would inevitably result in the acceptance of the lowest common standards. Standards of conduct and discipline for MDPs would require to be established either directly by legislation or by a body established by legislation such as a Council for Mixed Discipline

Practices". Such a council would require to promulgate its own code of conduct and disciplinary procedures before any authority was given to practise in MDP form, other- wise the area of discipline and complaints in the context of MDPs would be one fraught with difficulties over inter- professional jurisdiction, in- vestigation and the applica- tion of differing standards of practice and penalties. The establishment of such a body would almost certainly mean loss of status and authority for the Law Society. (viii) Compensation Fund Solicitors operate through the Law Society a compenstaion fund - such is not the case w i t h accountants. This imbalance might make it d i f f i cu lt to achieve a satisfactory position for the client who might not be able to claim against the fund in the event of monies being mishandled by an MDP. Alternatively it could place enormous strain on the Compension Fund which solicitors could not be expected to bear. (ix) Elimination of Cross- Subsidisation The opportunities for cross- subsidisation which arise in smaller communities will not exist to the same degree for MDPs. It can be questioned whether or not such cross- subsidisation is desirable but that it exists to the benefit of the poorer client is un- deniable. The larger the professional practice the- more cross- subsidisation will be eroded. It is undeniable that larger professional units, such as large accounting firms, charge higher fees. This can, however, only be sustained in a larger commercial environ- ment. This is not suitable for a smaller and more rural society such as Ireland. In a smaller more under-developed society cross-subsidisation is acceptable. It operates in such areas as electricity and postal services and has been recognised as proper. Why

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