The Gazette 1994

GAZETTE

MAY 1994

N E W S

Counc il Mee t i ng - 2 2 Apr i l 1 9 94

Guidelines On Undertakings

no member of the Council, including a Past-President of the Society, would accept instructions to act on behalf of a solicitor who was requested to appear before the Compensation Fund Committee, the Registrar's Committee, the Professional Purposes Committee, or a solicitor who was under investigation by the Society for alleged breach of the Solicitors Acts or the Solicitors Accounts Regulations or any professional practice regulation or code. An amendment to the motion was proposed to the effect that a member of the Council would not be precluded from giving informal advice or assistance to a colleague. A motion was also proposed that no member of the Council, including a Past- President, should accept instructions in any legal proceedings before the Society. (Non-Council members employed in the same firm would not be so precluded.) The Council will consider these matters further at its next meeting. The Council considered the text of a draft Statutory Instrument, entitled Solicitors (Practice, Conduct and Discipline) Regulations 1994, dealing with the appropriate form of names of solicitors' practices. The draft provided that the name under which a solicitor, or firm of solicitors, may practise should consist only of the name or any part of the name of the solicitor, or one or more of the present or former principals of the firm, or such other name as is approved in writing by the Council of the Law Society. The draft also provided that a solicitor, or a firm of solicitors, would be permitted to use any name which was in use at the date the regulations came into force. The Chairman of the Professional Purposes Committee, Barry St. J. Galvin, said the objective of the draft Practice Names

practices, colleagues and the public. The Committee believed that inappropriate forms of nomenclature could mislead clients and colleagues. It was noted that the draft instrument did not preclude people from using titles other than their own names, or those of predecessors, provided the consent of the Society was obtained. Some members of the Council put forward the view that the matter of what should appear on a solicitor's or firm of solicitors' notepaper should also be considered and, after some discussion, it was decided to deal with both matters in one set of regulations. A question was raised about whether the regulations could be retrospective in effect and whether the Council could direct solicitors or firms who it was believed had inappropriate names to change them. While the Council supported, in principle, the thrust of the Statutory Instrument, if referred it back to have to the text redrafted to include the matter of headed notepaper and be presented to the Council for further consideration. The Chairman of the Compensation Fund Committee, Ward McEllin, reported that there had been a special meeting of the Compensation Fund Committee in March to monitor solicitors who had not applied for a practising certificate. There had been a 99.39% rate of compliance and only 55 solicitors had not applied for a current practising certificate. The Chairman of the Education Committee, Ken Murphy, reported to Council that, in his view, ACLET, the Advisory Committee on Legal Education and Training, appeared to be moving further in the direction of favouring joint professional education of solicitors and barristers. The Deans Compensation Fund Education

The Council of the Law Society, on 22 April, considered changes to a draft proposed by the Professional Purposes Committee of a new section of A Guide To Professional Conduct Of Solicitors In Ireland to deal with undertakings. The draft sets out a definition of an undertaking and suggests that a breach of undertaking would be prima facie evidence of misconduct and consequently the Society would require its implementation as a matter of conduct. It proposes that the following principles would apply to undertakings: an undertaking will be honoured as between giver and recipient only; if the undertaking is ambiguous it will be construed in favour of the recipient; an undertaking is binding even if it is to do something outside the solicitor's control; it does not have to constitute a legal contract to be enforceable as a matter of conduct; a solicitor is responsible for undertakings given by a member of his staff; all partners are responsible pleading that to honour it would be a breach of duty owed to his client; a solicitor must notify the recipient of a contingent undertaking if the contingency fails; in addition to the Society's power to enforce undertakings as a matter of conduct, a court, by virtue of its inherent jurisdiction over its own officers, has power of enforcement in respect of undertakings. Further changes were proposed to the draft and the matter will come before the Council at its meeting in May. Council Members Representing Solicitors before Regulatory Committees for an undertaking given by one partner; a solicitor cannot avoid liability on an undertaking by

regulations was to improve the relationship between solicitors'

The Council considered a motion that

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