The Gazette 1993

not unreasonably be withheld.

matter. Barron J considered that a duty to advise on pending legislation must depend upon many factors such as how soon it may be passed and how it will affect the subject matter upon which advice was being sought. However, in a matter which was current, once the existence of legislation could affect advice already given, the Judge stated that it seemed to him that there was a duty to qualify or correct relevant advice (which may have been given to the contrary) as soon as possible. The fact that a solicitor had ceased to act for the plaintiff did not entitle him to leave unanswered certain questions put to him by his client; the legal adviser ought either to have answered relevant questions or indicated to the client his reason for not so doing. Finally, the Judge concluded that insofar as certain defendants had failed to answer certain questions put to them by the plaintiff and failed to advise him on the implications of the Landlord and Tenant (Amendment) Act, 1980, they were in breach of their duty to the plaintiff. Appropriate damages were assessed by the Judge. The case is under appeal to the Supreme Court. The International Association of Defence Counsel, aspiring to the highest ideals of professionalism, have adopted the tenets set out below and agree to abide by them in the performance of their professional services for clients. These tenets should apply to all lawyers involved in litigation and deserve to be respected. 1. We will conduct ourselves before the court in a manner which demonstrates respect for the law and preserves the decorum and integrity of the judicial process. 2. We recognise that professional courtesy is consistent with zealous advocacy. We will be civil and Our Professionalism

By Dr. Eamonn G. Hall, Solicitor

In addition, it was claimed by the plaintiff in McMullen that one of the defendants had left unanswered certain specific questions put to him by the plaintiff. The defendants had argued that a solicitor was not obliged to consider every aspect of his client's affairs but simply to act upon his instructions. The action against the defendants had lasted ten days in the High Court. At the conclusion of the plaintiffs case his claim against the first, second, third and fourth defendants was dismissed. There were 14 defendants in the case. Barron J in giving judgment for the plaintiff held that the everyday practice of solicitors is something of which a court is not necessarily aware and that accordingly evidence of such practice was admissible. The Judge considered that professional skill and knowledge was of the essence of any contract for professional services. A solicitor was not under a duty to con- sider every aspect of his client's affairs, but he was obliged to exercise his pro- fessional skill and judgment in the interests of his clients. The extent of this obligation was determined by the con- tract between the parties. Nevertheless, a solicitor does not discharge his duty by following instructions blindly. He must consider not only his instructions, but also the legal implications of the facts presented to him by his client, and advise the client accordingly. In McMullen's case, the client was a tenant having problems with his landlord. The nature of his rights was dependent upon the terms of his lease. Barron J considered that it was essential for his solicitor to explain these rights to him and then to advise him how to deal

Professional Negligence

The importance of solicitors keeping abreast of legislative developments and of answering queries put to them by clients, or indicating reasons why queries cannot be answered, has been illustrated in the judgment of Barron J in McMullen's case [1993] 1 IR 123. The plaintiff held lands under a lease executed in 1972 which contained restrictive covenants in relation to any proposed sale or change of user and alienation. Differences between the plaintiff and his landlord emerged and in 1978 the plaintiff wanted to sell his interest in the lands. The landlord, however, indicated that he would withhold his consent to any proposed sale or change to user. The defendant solicitors were retained to advise the plaintiff in relation to these and other matters from 1977 until the property was finally sold in 1987. The plaintiff claimed damages for breach of duty against the defendant solicitors on the grounds that he had sought advice from the defendants as to how he could be released from certain restrictive covenants, but on each occasion that the advice was sought, both before and after the passing into law of the Landlord and Tenant (Amendment) Act, 1980, the defendants failed to advise him of the effects of that Act upon those covenants. Apparently the Landlord and Tenant Act, 1931 did not apply to the lands in question, but the lands held by the plaintiff fell within the provisions of the Landlord and Tenant (Amendment) Act, 1980, which came into force on the September 9, 1980. Accordingly, under section 62, sub-section 2(a) and section 67, sub- section 2(a) of the Act of 1980, the restrictive covenants contained in the lease were deemed to be subject to the proviso that the consent of the landlord to a change of user or to alienation could

with his problems against the background of those rights. The

Landlord and Tenant (Amendment) Act, 1980 had been in the course of being enacted by the Oireachtas when one of the solicitors was advising on the

313