SOLICITOR'S GUIDE TO PROFESSIONAL CONDUCT

SOLICITOR’S

GUIDE TO

PROFESSIONAL

CONDUCT

www.lawsociety.ie

4th Edition

Issued by the Guidance & Ethics

Committee of the Law Society

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SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT | 4th Edition

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Since its foundation in 1863 the Solicitors’ Benevolent Association has provided

nancial assistance throughout the 32 counties to members and former members of

the profession and their dependants who are in need.

The Directors anticipate that there will be an even greater need for assistance in the

coming years. In recent times grants have been increased in line with rising costs and

an increase in the number of applications for assistance for these reasons the Directors

particularly welcome additional subscriptions andonations and the general support of

the profession.

Subscriptions and donations will be received by any of the Directors or by the

Secretary, at 73 Park Avenue, Dublin, 4,

email: contact@solicitorsbenevolentassociation.com.

See www.solicitorsbenevolentassociation.com

for further information.

YOU CAN ALSO BENEFIT THE ASSOCIATION

BY WAY OF LEGACY.

The following is a suitable form of Bequest.

I GIVE AND BEQUEATH the sum of € to the Trustees for the time

being of the Solicitors’ Benevolent Association, c/o Law Society of Ireland,

Blackhall Place, Dublin, 7, for the charitable purposes of that Association in

Ireland, and I direct that the receipt of the Secretary for the time being of the

Association will be sucient discharge for my Executors.

SOLICITOR’S

GUIDE TO

PROFESSIONAL

CONDUCT

www.lawsociety.ie

4th Edition

Issued by the Guidance & Ethics

Committee of the Law Society

The Law Society Professional Wellbeing Hub provides a wide range of useful

information and resources on wellbeing, resilience and psychological health.

It signposts solicitors to reputable wellbeing supports, services, and training

pertaining to:

• Maintaining personal wellbeing and resilience,

•

• Supporting a colleague in distress,

•

Explore what’s on the hub here – www.lawsociety.ie/wellbeinghub

Professional Wellbeing Charter

public sector legal teams, the opportunity to work towards creating a positive

workplace culture characterised by trust, respect, honesty, fairness, compassion,

and psychological safety.

and championing behaviours, skills and practices that promote and enable

professional wellbeing at all levels and across all roles.

PROFESSIONAL WELLBEING

HUB

The Law Society’s Professional Wellbeing Charter oers rms, and in-house and

By signing the charter, rms or legal teams commit to improving leadership

It is oen said that the solicitors’ profession is one in which every member should

be capable of being trusted to the ends of the earth (see Bolton v e Law Society

[1994] 2 A ER 486). And, it is certainly true to say that a profession without

the hamarks of integrity, honesty and trustworthiness simply cannot hope to

enjoy such an exceptionay high degree of trust and condence.

Importantly, solicitors are oen engaged by members of the public at times when

they may be anxious, confused, stressed and possibly even deeply vulnerable.

Accordingly, it is vital that everything possible is done to protect and maintain

public condence in the reliability and honesty of the profession’s members.

e provision of a reliable service, the maintenance of client condentiality,

and compliance with the rules in relation to nancial stewardship of clients’

monies are the bare minimum standards to be expected of a solicitor. is

Solicitor’s Guide to Professional Conduct encourages and expects a great deal more

of solicitors in terms of their conduct and envisages the type of professionals

who can be trusted to the ends of the earth. But what does this phrase necessarily

mean?

In my role as President of the High Court, I have the somewhat unfortunate role

of presiding over solicitors’ disciplinary maers. It oen fas to me to assess

whether a person is “t and proper”, and in this regard I wi refer to what was

said by McKechnie J. in Law Society v Carro [2016] 1 IR 676:

“e phrase ‘t and proper’ combines two broad elements, tness and properness.

Both, whilst complementary, are intended to convey dierent requirements

FOREWORD

iiiii iii

and to cover dierent aspects of a person’s overa suitability for the solicitors’

profession.”

McKechnie J then went on to say that in broad terms ‘tness’ relates to a person’s

necessary academic qualications and experience and also encompasses maers

such as “knowledge, ski, understanding, expertise, competence and the like,

a of which impact on one’s capacity to appropriately discharge the obligations

which the practice of his profession imposes”. In relation to being ‘proper’, it

was stated:

“e second aspect of the term ‘being a proper person’ is much more directly related

to character and suitability. Critical in this respect are maers such as honesty,

integrity and trustworthiness: a person of principled standards, of honest nature

and of ethical disposition; a person who understands, appreciates and takes

seriously his responsibilities to the public, to the administration of justice, to

individual coeagues and to the profession as a whole.”

I think this quote captures the essence of the characteristics necessary for

anyone aspiring to become a ‘t’ and ‘proper’ member of the solicitors’

profession. e propriety of a solicitor should be evident, not only from the way

in which they conduct themselves in the course of their work, but also from the

manner in which they engage with society in other respects. What is required

and expected is something more than just strict adherence to a guide. eir

conduct and character should be such as would inspire public condence in the

administration of justice as a whole. is is because solicitors, although acting

for their clients’ best interests, are rst and foremost ocers of the court and are

therefore obligated to support the administration of justice.

e characteristics of a t and proper solicitor are not merely aspirational. And,

on that note, it would be wise for a practitioners, regardless of their seniority

and experience, to bear in mind the judgment of the Supreme Court in Re Burke

[2001] IESC 13, in which it was said that if public condence in the solicitors’

profession is to be maintained, any abuse of that trust must inevitably have

serious consequences for the solicitor concerned. is is because, as expressed

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

iiiiii

by Sir omas Bingham in Bolton v e Law Society, a client “is ordinarily entitled

to expect that the solicitor wi be a person whose trustworthiness is not, and

never has been, seriously in question. Otherwise, the whole profession, and the

public as a whole, is injured”. In the same case it was said that “a profession’s

most valuable asset is its coective reputation and the condence which that

inspires”.

The Honourable Ms Justice Mary Irvine

President of the High Court 2022

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

is Solicitor’s Guide to Professional Conduct is an updated, renamed, fourth edition

of the Guide to Good Professional Conduct of Solicitors in Ireland. It is intended that

this publication, like its predecessors, wi be commonly referred to as the

Solicitor’s Guide, or the Guide.

Ethics is personal to each solicitor, and it is for each solicitor to reach their own

conclusion on ethical maers. For this reason, the Guide is neither a rule book

nor a manual, and does not have the force of law. It is a source of reference on

professional conduct for a solicitors, to be used as an information tool to assist

solicitors in their decision-making and in considering the many and varied

ethical questions that arise in day-to-day practice for every solicitor.

e Guide is intended for a solicitors, from those who are beginning their legal

career to practitioners who have already accumulated considerable experience.

e index is detailed, and the Guide has been wrien with the intention of

aowing quick and easy access to the most appropriate sections. Certain

guidance may be repeated in dierent chapters if the guidance is relevant to

more than one area.

e Guide represents Law Society policy and recommendations as at the date of

publication, and is also the primary source material used for teaching ethics to

trainee solicitors.

It should be borne in mind that if a decision must be made as to whether certain

acts or omissions of an individual solicitor constitute misconduct, this can only

be done foowing a hearing of the Legal Practitioners Disciplinary Tribunal,

INTRODUCTION

which wi consider the facts of the case. Generay, no action can be declared

misconduct until it has been so found by the Tribunal.

e Guidance & Ethics Commiee of the Law Society of Ireland has carried out

its review of the current edition and updated it without making new rules or

imposing new obligations on solicitors. As the rules of professional conduct

derive both from statutory and non-statutory sources, the commiee has tried

to ensure that a necessary references to legislation and case law are included.

Accordingly, where legislation or case law is relevant, reference has been made

to it in footnotes. Reference has also been made in footnotes to practice notes

to which the solicitor can refer for further information on particular topics. e

practice notes are updated on an ongoing basis – see www.lawsociety.ie. e

Guide has been made as user-friendly as possible. It is hoped that the detailed

schedule of contents and the index wi lead the solicitor to the required topic

without diculty. Case law and precedents referred to in this guide are available

on the Law Society Guidance & Ethics Commiee resources page.

e Guide is relevant for a solicitors, whether in private practice or in

employment in the in-house and public sector.

Ms Justine Carty

Chair

Guidance & Ethics Committee 2022

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

BEFORE CONSULTING THIS GUIDE, PLEASE READ THE INTRODUCTION

CONTENTS

FOREWORD .................................................................................................................i

INTRODUCTION ........................................................................................................v

CHAPTER 1: THE RULES OF PROFESSIONAL CONDUCT ........................... 13

The function of the solicitor in society .......................................................................13

Legislation .............................................................................................................................14

Core values of the profession ..........................................................................................15

– General

– Integrity

– Honesty

– Independence

– Independence of the in-house and public sector solicitor

– Conict and condentiality

The enforcement of the rules of professional conduct ...........................................17

CHAPTER 2: THE SOLICITOR AND CLIENT RELATIONSHIP ..................... 21

Acceptance of instructions .............................................................................................21

– General

– Terms and conditions of business

– Information in relation to legal costs

– Time costing

– Refusal of instructions

– Instructions to be taken direction from the client

– The in-house and public sector solicitor

– Payment of fees by a client in advance

– Contingency fee arrangements

– Legally aided clients in criminal matters

– Legally aided clients in civil matters

Proper standard of legal services .................................................................................. 25

– General

– Failure to reply to letters

– Complaints

– Accounting for monies

– Client lacking mental capacity

– Vulnerable clients

– Duress or undue inuence

– Family and child care law

– Litigation, arbitration and mediation

Termination of a retainer ..................................................................................................30

– General

– Client’s failure to act on advice or to provide instructions

– Loss of capacity

– Termination when client in custody

– Termination by client

CHAPTER 3: CONFLICT OF INTEREST ............................................................. 35

Conict of interest between two clients .....................................................................36

Conveyancing transactions .............................................................................................36

– General

– Voluntary property transactions

– Second party to a conveyancing transaction not represented

– Owners’ management companies

– Prohibition on acting for a borrower and lender in commercial conveyancing

transactions

– Residential conveyancing

– Undertaking to lender on behalf of solicitor

Non-conveyancing transactions ....................................................................................39

– Client with conicting roles

– Separate representation for vulnerable clients

– Client lacking mental capacity

– State solicitors

– Independent legal advice

– Conict in probate and administration

– Family law

Conict of interest between solicitor and client .......................................................44

– Bequests or gifts by client to solicitor, sta or family

– Wills for parents

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

– Borrowing money from a client

– Loans to clients

– Loans from one client to another client

– Prohibition on payments to clients

– Solicitor holding power of attorney

– Joint ventures between solicitor and client

– In-house and public sector solicitor

CHAPTER 4: PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR

AND CLIENT ........................................................................................................... 49

Privilege .................................................................................................................................49

– Legal advice privilege

– Litigation privilege

– Legislation, court orders or warrants

– Tax legislation

– Receipt of information intended for the other party to litigation

– Material disclosed by mistake

– Common interest and joint privilege

– Loss or waiver of privilege

– Privilege may be lost in the following circumstances

Additional considerations for the in-house and public sector solicitor ...........52

Professional duty of condentiality .............................................................................52

– General

– Solicitor as mediator

– Revenue audits

– Disclosure of testator’s aairs

– Supplying copy of will

– Supplying copy of executor’s or administrator’s account

– Testator’s solicitor

– Wills acquired from another practice

– Exceptions to condentiality

– Condentiality in the face of risk to client or others

– Client with mental disorder

– Risk of abuse, neglect or ill treatment of client

– Threats of death or serious injury

– Cases involving abuse or neglect of children

Condentiality in the solicitor’s oce .........................................................................57

– Shared accommodation

– Storage of records

– Service providers

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

– Sta of solicitor

– Family law les

– Condentiality of deed of Enduring Power of Attorney

CHAPTER 5: THE SOLICITOR AND THEIR RELATIONSHIP

WITH THE COURT .................................................................................................. 61

– General

– The solicitor advocate

– Ex parte applications

Conict arising during retainer ......................................................................................65

Perjury by a client ...............................................................................................................65

Witnesses ..............................................................................................................................65

– Advertising for witnesses

– Calling a witness to give evidence

– Interviewing witnesses

– Witness in the course of giving evidence

– Payment to witnesses

– Payment of witnesses in legally aided cases

– Expenses of witness served with a subpoena

– The solicitor as witness

Communication with the court .......................................................................................68

– Compliance with orders of the court

– Dress in court

– Publicity for pending litigation or proceedings

– Solicitor instructed in professional negligence proceedings

– Funding of litigation with a nancial interest in the outcome is prohibited

– Duty of solicitors to encourage mediation and ADR

Criminal cases .....................................................................................................................70

– The solicitor prosecutor

– Interviewing a witness for the other side

– The solicitor advocate for the accused

– Duty of disclosure of previous convictions

– Admission of guilt by client

– Withdrawal where a client is in custody

– Prisoners in courthouse cells

– The solicitor standing bail

– Solicitors providing legal services in garda stations

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

CHAPTER 6: UNDERTAKINGS, THE SOLICITOR AND THEIR

RELATIONSHIP WITH THIRD PARTIES, AND THE LSRA ..............................77

Professional standard of conduct .................................................................................77

Inducements .........................................................................................................................77

Persons acting without legal representation .............................................................. 78

– Conveyancing matters

– Litigation matters

Litigation – initiating letters and correspondence ...................................................79

Undertakings ........................................................................................................................80

– General

– General guidance on undertakings

– No undertakings in respect of monies held on behalf of minors

– In-house and public sector solicitor

Fees and expenses of professional and other service providers ........................83

Legal Services Regulatory Authority ............................................................................84

Law Society of Ireland ........................................................................................................ 84

Discrimination .....................................................................................................................84

Recording conversations .................................................................................................85

Administration of oaths ....................................................................................................85

CHAPTER 7: THE SOLICITOR AND THEIR RELATIONSHIP

WITH OTHER SOLICITORS .................................................................................. 89

Professional standard of conduct .................................................................................89

– General

– Threat by one solicitor to sue the opposing solicitor personally

– Amendments to documents made by solicitor on other side

Communicating with the client of another solicitor ...............................................90

– General

– Client seeking a second opinion

– The client of an in-house or public sector solicitor

‘Without prejudice’ communications between solicitors ......................................91

Supplying information on request to another solicitor .......................................... 91

Costs of solicitor agent ..................................................................................................... 92

– The solicitor’s common law lien – general

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

– Lien where retainer discharged by solicitor

– No lien in certain circumstances

Transfer of les between solicitors ...............................................................................94

– Undertaking in respect of payment of costs

– Undertakings furnished by rst solicitor

– The le belongs to the client

– Copying the client’s le

– Notice of change of solicitor to the courts

– Proceeding without the le

– Payment of rst solicitor’s fees

– Employee leaving a rm or dissolution of a partnership

Payment for assistant solicitors’ practising certicates ........................................97

Serious misconduct by another solicitor ....................................................................97

Referral of les to a colleague ........................................................................................98

CHAPTER 8: THE SOLICITOR AND THEIR RELATIONSHIP WITH

COUNSEL .............................................................................................................. 101

Retention of counsel ........................................................................................................101

Instructions to counsel ...................................................................................................101

– Disengaging counsel

Information about counsel’s fees ............................................................................... 102

The solicitor’s liability for professional fees ........................................................... 103

– Relationship with counsel

CHAPTER 9: THE SOLICITOR IN PRACTICE ................................................ 107

The supervision of the solicitor’s oce ................................................................... 107

– General

– Branch oce

– The in-house and public sector solicitor’s duty of supervision

Professional names, nameplates, and professional notepaper ........................ 108

– General

– Professional name of the solicitor employed in an organisation

– Business name

– Access by a client to the stationery of a solicitor

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

Service companies .......................................................................................................... 109

Advertising ......................................................................................................................... 109

Touting ................................................................................................................................. 109

The solicitor acting for associations ..........................................................................110

Professional indemnity insurance .............................................................................110

Accounts regulations ......................................................................................................110

– General

– Responsibility for clients’ monies

– Monies handled by a solicitor under a power of attorney

Investment and insurance services ............................................................................112

The solicitor as agent for an institution .....................................................................112

The security and condentiality of oce systems ................................................112

Retention or destruction of les ..................................................................................113

Setting up in practice ......................................................................................................113

– Continuing professional development

Changes in the solicitor’s practice .............................................................................114

Succession planning for solicitor’s unexpected absence from oce ............115

Bankruptcy of the solicitor .............................................................................................116

CHAPTER 10: THE REMUNERATION OF THE SOLICITOR ......................... 119

Information in relation to legal charges ....................................................................119

– General

– Intrusting counsel

– Agreement regarding legal costs

– Obligation to issue a bill of costs at the conclusion of legal services

provided

– Disputes

Restriction on calculation of charges as a percentage of damages ................ 122

– Information to be given at the completion of a contentious matter

– Deductions in contentious matters

– Deductions in non-contentious matters

– Explanations to client during settlement negotiations

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

Excessive fees ................................................................................................................... 123

The solicitor’s lien on monies ...................................................................................... 123

Solicitor trustee’s costs ................................................................................................. 124

Disclosure of commissions .......................................................................................... 124

Interest on client monies ............................................................................................... 124

Search, scrivenery, and administration fees .......................................................... 125

Auditors’ queries .............................................................................................................. 126

Fee sharing ........................................................................................................................ 126

CHAPTER 11: CONDUCT IN INTERNATIONAL PRACTICE ........................ 129

Relevance for all lawyers ............................................................................................... 129

Interactions between lawyers ...................................................................................... 130

– Instructing foreign lawyers

EU Directive on Services .............................................................................................. 130

EU Directive on Establishment ...................................................................................131

Irish qualied solicitors seeking to register with a foreign bar ......................... 132

APPENDIX 1

CHARTER OF CORE PRINCIPLES OF THE EUROPEAN LEGAL PROFESSION

& CODE OF CONDUCT FOR EUROPEAN LAWYERS ....................................135

APPENDIX 2

IBA INTERNATIONAL PRINCIPLES ON CONDUCT FOR THE LEGAL

PROFESSION ....................................................................................................... 159

APPENDIX 3

FAMILY LAW IN IRELAND CODE OF PRACTICE 2017 ...............................163

INDEX ..................................................................................................................... 187

SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

CHAPTER 1

THE RULES OF PROFESSIONAL CONDUCT

THE FUNCTION OF THE SOLICITOR IN SOCIETY

In a society founded on respect for the rule of law, solicitors full a special role

in the administration of justice and as ocers of the court.

Solicitors are under a duty to exercise their professional ski and judgement

when acting on instructions. A solicitor must then advise on whether what

is required is proper and legal. It is the solicitor’s duty not only to plead their

clients’ cause but also to be their legal advisor, while observing the core values

of the profession.

Solicitors must serve the interests of justice. Barron J set out the obligation of

the solicitor in Doran v Delaney, Supreme Court [1998] 2IR 61 as foows:

“e solicitor is not a conduit pipe. Once he is acting professionay, he warrants that

so far as his own acts are concerned, he has taken the care and applied the ski and

knowledge expected of a member of his profession. He cannot therefore accept his client’s

instructions without question when it is reasonable to query them…”

e solicitor’s function, therefore, imposes a variety of legal and moral

obligations on the solicitor, which sometimes appear to conict with each other,

including:

a) Obligations to their clients,

b) Obligations to the court as ocers of the courts and to other bodies before

whom solicitors plead their clients’ cause or act on their behalf,

c) Obligations to the public, for whom the existence of an independent

profession is an essential means of safeguarding individual rights in the

face of the power of the State and other interests in society,

1 ‘Solicitors as ocers of the court’, Practice Note, September 2016 (lawsociety.ie).

CHAPTER 1

THE RULES OF PROFESSIONAL CONDUCT

14 15

CHAPTER 1 THE RULES OF PROFESSIONAL CONDUCT

d) Obligations to their coeagues in the legal profession,

e) Obligations to themselves.

Rules of professional conduct are designed to assist the proper performance

by a solicitor of their duties and functions in practice. Solicitors, whether in

private practice or the in-house and public sector, share the same professional

standards of conduct.

LEGISLATION

e rules of professional conduct are derived both from statutory and non-

statutory sources. e Solicitors Acts 1954 to 2015 (the Solicitors’ Acts), the Legal

Services Regulation Act 2015 (the 2015 Act), the Criminal Justice (Money Laundering

and Terrorist Financing) Act 2010 as amended and the regulations made under

these Acts are part of the legislative framework for the regulation of solicitors.

Solicitors should also be mindful of the statutory duties provided for under the

General Data Protection Regulation and anti-money-laundering legislation, among

others.

2 Schedule of statutory instruments relevant to the conduct and practice of solicitors, enacted under the

Solicitors Acts 1954 to 2015 and the Legal Services Regulation Act 2015 and the Criminal Justice (Money

Laundering and Terrorist Financing) Act 2010 as amended. For references to AML Guidance visit

www.lawsociety.ie/aml.

3 For guidance on GDPR and data protection and AML obligations, see www.lawsociety.ie/Solicitors/

Regulations/Data Protection and www.lawsociety.ie/Solicitors/Regulations/Anti-Money-Laundering/.

CHAPTER 1 THE RULES OF PROFESSIONAL CONDUCT

CORE VALUES OF THE PROFESSION

General

In addition to the legislative requirements, solicitors are required to observe

general core values of conduct. ese include honesty, integrity, independence,

condentiality, and the avoidance of conicts of interest. Solicitors should

always observe and promote the core values of the profession and avoid any

conduct or activities inconsistent with those values.

A bar associations and law societies in Europe share values and, in most

cases, demonstrate a common foundation that is also reected in the rules of

bar associations and law societies throughout the world.

When the solicitor

observes the highest professional standards, this is to the ultimate benet of the

client, whether an individual or an organisation.

Integrity

Solicitors must maintain strong ethical principles in their professional dealings.

is means solicitors must not unfairly discriminate by aowing their personal

view to aect their professional judgement. Solicitors are in a position of trust in

society, and it is of the utmost importance that they do not take unfair advantage

of clients or others. Professional undertakings go to the core of solicitors conduct

and, where an undertaking is given, it must be complied with within the agreed

time frame. A solicitor’s word must be their bond; they must not mislead, in any

respect, the courts or others by their acts or omissions.

Honesty

Solicitors have an important role in the administration of justice. As a solicitor,

one needs to be careful that what is said in their name is truthful, as it may aect

both the solicitor and their client. A solicitor must represent the truth. is

requires solicitors to be honest and forthright in a professional and business

relationships. Honesty is not an abstract concept; it must be practised. Both

the role of legal representative and the role of ocer of the court can only be

4 ‘Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers’,

CCBE (2010 edition) – see www.ccbe.org. e charter and code deal with cross-border activities of law-

yers in the EU. While they are not enforceable as law in this jurisdiction, they are relevant insofar as they

reect the core principles of the profession. See Appendix 2, ‘IBA International Principles on Conduct for

the Legal Profession’, International Bar Association (2018). See www.ibanet.org. See Appendix 3.

16 17

CHAPTER 1 THE RULES OF PROFESSIONAL CONDUCT

eectively fuled if the probity or trustworthiness of the solicitor is not in

doubt. Honesty is central to how solicitors engage with clients, coeagues, and

the courts.

Independence

Solicitors must retain professional independence and the ability to advise their

clients fearlessly and objectively. Independence is essential to the functioning

of solicitors’ relationships with a parties, and it is the duty of the solicitor to

ensure that their independence is not compromised. Solicitors should not aow

themselves to be restricted in their actions on behalf of clients or restricted by

clients in relation to their other professional duties.

A solicitor’s independence is necessary because of the position of trust they

hold. e position of trust carries responsibilities to the courts, as ocers of the

court, to clients, third parties and to the legal profession. e independence of a

solicitor’s advice is a core value of the legal profession.

Solicitors must not aow themselves to be intimidated by a client or other

person into making decisions, giving advice, or taking actions that are in any

breach of the solicitor’s professional duties.

Individual solicitors are responsible for their own conduct; solicitors who are

owners of rms also have a responsibility for the good management of their rm

and should always retain fu control of the rm.

Independence of the in-house and public-sector solicitor

e in-house and public-sector solicitor has one client who is also their

employer. e solicitor shares the common objectives of the organisation,

but should always maintain an objective and professional position within

the business. Where a solicitor is employed by a regulated organisation, there

may be additional regulations that the solicitor is required to comply with.

It is inevitable, given the solicitor’s role, that they may be faced with dicult

decisions on occasion. e in-house and public-sector solicitor must give legal

advice that is both independent and impartial.

If an employer instructs a solicitor to act in a way that, in the opinion of the

solicitor, would amount to unprofessional conduct on the solicitor’s part, the

solicitor should advise the employer that those instructions cannot be acted

upon. e solicitor should analyse the maer carefuy, provide the appropriate

advice, and advise the employer to change the instructions. In appropriate

CHAPTER 1 THE RULES OF PROFESSIONAL CONDUCT

situations, the maer might be resolved by seeking a second opinion from a

lawyer in another rm or organisation.

In-house solicitors who hold practising certicates are subject to the statutory

regulation by the Law Society and the LSRA in the same way as solicitors in

private practice.

Conict and condentiality

ese topics are considered in detail in chapters 3 and 4.

THE ENFORCEMENT OF THE RULES OF PROFESSIONAL

CONDUCT

e failure of a solicitor to observe the rules of professional conduct, whether

having a statutory basis or otherwise, could result in a complaint to the Legal

Services Regulatory Authority and may result in a nding of misconduct.

Under the Legal Services Regulation Act 2015,

misconduct may be an act or

omission where the act or omission:

“a) Involves fraud or dishonesty,

b) Is connected with the provision by the legal practitioner of legal services, which were,

to a substantial degree, of an inadequate standard,

c) Where occurring otherwise than in connection with the provision of legal services,

would justify a nding that the legal practitioner concerned is not a t and proper

person to engage in the provision of legal services,

d) Consists of an oence under this Act,

e) In the case of a solicitor, consists of a breach of the Solicitors Acts 1954 to 2015 or any

regulations made under those Acts,

f ) In the case of a solicitor, consists of an oence under the Solicitors Acts 1954 to 2015,

g) In the case of a barrister, is likely to bring the barristers’ profession into disrepute,

h) In the case of a solicitor, is likely to bring the solicitors’ profession into disrepute,

5 A Guide for In-House Solicitors employed in the Corporate and Public Sector, May 2018.

6 It should be noted that, at the time of publication, misconduct as dened under section 3 of the Solicitors

(Amendment) Act 1960 (as amended) has not been repealed.

7 Legal Services Regulation Act 2015, section 50 (irishstatutebook.ie).

CHAPTER 1 THE RULES OF PROFESSIONAL CONDUCT

i) In the case of a legal practitioner who is a managing legal practitioner of a multi-

disciplinary practice, consists of a failure by him or her to comply with his or her

obligations under this Act as a managing legal practitioner (within the meaning

ofPart 8,

j) Consists of the commission of an arrestable oence,

k) Consists of the commission of a crime or oence outside the State which, if commied

within the State, would be an arrestable oence,

l) Consists of seeking an amount of costs in respect of the provision of legal services,

that is grossly excessive,

m) Consists of a breach of this Act or regulations made under it, or,

n) Consists of a contravention of section 215(1).”

A nding of misconduct may result in a sanction being imposed on the solicitor.

e standards of professional conduct that the profession sets for itself should

not be confused with the requirements of the general law of contract, tort,

criminal law or equity, even though the requirements of conduct may in some

cases foow, or closely parael, these general legal requirements.

Practitioners should remember that the Superior Courts retain an inherent

disciplinary jurisdiction over solicitors as ocers of the court; while the

jurisdiction is compensatory rather than punitive, it is sti a disciplinary aspect.

8 Bank of Ireland Mortgage Bank v Coleman [2009] IESC 38.

CHAPTER 2

THE SOLICITOR AND CLIENT

RELATIONSHIP

ACCEPTANCE OF INSTRUCTIONS

General

e decision to accept instructions in a maer is at the discretion of the

individual solicitor or, if appropriate, the rm or organisation of which the

individual solicitor is a member.

In general, a solicitor is not bound to accept instructions from any client and is

bound not to accept instructions where to do so would involve the solicitor in

some form of unprofessional conduct, such as a conict of interest.

However, a solicitor should not discriminate unfairly between members of

the public, nor refuse to act for a person on the grounds of discrimination. A

solicitor should observe equality legislation.

Terms and conditions of business

It is recommended that when a solicitor takes instructions, the client is provided

with the rm’s terms and conditions of business, including its complaints

procedure. Where practicable, it is preferable to conrm the instructions

in writing and set out in general terms what the solicitor understands their

instructions to be and how they intend to carry out the instructions.

ere is no obligation on a solicitor to have the rm’s terms and conditions of

business signed by the client. However, it is good practice to do so. If the terms

and conditions are issued by email, the client should be asked to acknowledge

9 Equal Status Acts 2000-2018.

CHAPTER 2

THE SOLICITOR AND CLIENT RELATIONSHIP

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

22 23

receipt and conrm that they have read and understood the documents in

question.

If the notice or other document giving the client information in respect of legal

costs is a separate document, it is also good practice to have this signed by the

client. is signed documentation may be the solicitor’s best defence in the

event of a dispute.

Solicitors should be cognisant of the potential chaenges faced by clients who

have language or literacy diculties, or other disability that could impair their

understanding of the documents.

Information in relation to legal costs

Sections 149-152 of the Legal Services Regulation Act 2015 (the 2015 Act) governs the

provision of information on legal costs and provides, inter alia, as foows:

• On receiving instructions from a client, the solicitor must provide their

client with a notice seing out the costs and VAT that wi be incurred in

relation to that maer,

• If it is not reasonably practicable for the notice to set out the exact costs at

that time, then the basis of calculation must be outlined,

• Once it is possible to quantify the actual costs, an updated notice must be

issued to the client containing the requisite details,

• e denition of legal costs includes both professional fees and outlays,

• If, subsequently, the solicitor becomes aware of any factor that would

make the legal costs incurred in the maer signicantly greater than those

disclosed, then a new notice should issue to the client.

In the alternative, the 2015 Act provides that a solicitor and client can make an

agreement in writing concerning the amount and the manner of payment in

relation to a or part of the legal costs payable.

10 Terms and Conditions of Business Precedent, Law Society, (see www.lawsociety.ie); SI no 533 of 2010,

European Union (Provision of Services) Regulations 2010.

11 Section 150(5) of the Legal Services Regulation Act 2015.

12 Section 151 of the Legal Services Regulation Act 2015.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

Time costing

Where the basis of charge is the time spent on a maer, the solicitor ought to

keep the client informed on a regular basis of the time spent. It is recommended

that time records be maintained, as they may be required in the event of a dispute

or a complaint to the Legal Services Regulatory Authority.

Refusal of instructions

A solicitor should not accept instructions to act in a maer for which they do

not have sucient expertise, time, or adequate resources to give the necessary

aention to the maer.

Where, having regard to their professional, legal, and moral obligations, a

solicitor decides that they cannot accept instructions from a particular person,

they should immediately inform that person, in writing where appropriate, of

their decision not to act. e decision not to act and the communication of that

decision should be unambiguous.

Instructions to be taken directly from the client

A solicitor should take instructions directly from the client. Where instructions

are rst received from a third party, the instructions should be conrmed

directly with the client. Where a solicitor takes instructions from an agent, the

rules of agency apply.

The in-house and public sector solicitor

A solicitor employed in an in-house or public-sector capacity may receive

instructions from one or more employees in an organisation. e solicitor

should ensure that the person providing the instruction is authorised to do so.

Payment of fees by a client in advance

Solicitors are entitled to be paid for the work they do. e basis of a particular fee

arrangement, such as stage payments or payments in advance, and the basis on

which fees are charged, should be agreed with the client, and communicated in

clear and unambiguous terms in advance of the retainer.

13 Legal Services Regulation Act 2015, Schedule 1, Principles Relating to Legal Costs

14 For further guidance, in-house and public-sector solicitors can access the Guide for In-House Solicitors.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

24 25

A solicitor may be prepared to act for a client only in circumstances where the

client pays fees in advance or pays a sum in respect of fees due as they arise. A

solicitor is entitled to refuse an instruction if the client does not accept those

terms. A solicitor may terminate a retainer if the client does not abide by the

agreed payment terms.

Contingency fee arrangements (also known as ‘no win/no fee’ or ‘no

foal/no fee agreements’)

It is permied for a solicitor to enter a fee agreement with their client where

the solicitor agrees to waive their professional fee if the case is ultimately

unsuccessful in Court. However, solicitors should be cognisant of the advertising

restrictions and regulations in place governing such agreements.

Solicitors should also be cognisant of the rule against champerty and the case

law in this area.

Legally aided clients in criminal matters

Where a solicitor on the legal aid panel is either instructed by the defendant

or nominated by the court to act on behalf of the defendant, they are under a

duty to comply with those instructions unless they have reasonable grounds for

refusing to act.

Legally aided clients in civil matters

When accepting instructions in civil legal aid maers, solicitors should have

regard to the relevant legislation.

15 Section 4 of theSolicitors (Amendment) Act 2002and SI no 644/2020 – Legal Services Regulation

Act 2015 (Advertising) Regulations 2020. See also practice note dated 04.04.2014, Restrictions and

Limitations on Solicitors’ Advertising (lawsociety.ie).

16 Champerty occurs where there is a further agreement that a person who gives the aid sha receive a

share of what might be recovered in the action. See Giles v ompson [1993] 3 A E R 321; McElroy v

Flynn [1991] ILRM 294; and Fraser v Buckley and Others [1994] 1 ILRM 276.

17 Criminal Justice (Legal Aid) Act 1962.

18 Civil Legal Aid Act 1995.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

PROPER STANDARD OF LEGAL SERVICES

General

A solicitor should be open, frank, and honest in a dealings with clients. ey

should treat clients with respect and carry out instructions in a courteous and

professional manner. e relationship between solicitor and client should be

one of mutual respect.

e use of plain English, expressed in a modern way, is desirable in a dealings

with clients. Although there are some circumstances in which a particular

phrase or maxim has a precise meaning, the excessive or unnecessary use of old-

fashioned language or arcane terminology may alienate a client and can make

the solicitors’ profession appear out of touch with modern life.

e retainer of a solicitor is a contract for legal services whereby, in return

for the oer of a client to retain them, a solicitor, expressly or by implication,

undertakes to full certain obligations.

e standard of care expected of a solicitor is that of a reasonably careful and

skilful solicitor who has the relevant expertise.

e solicitor should also

consider the fact that the relationship of a solicitor and client is of a duciary

nature.

A solicitor should also consider that, in certain circumstances, the courts have

held as a maer of law that a duty of care may be owed, not just to a solicitor’s

own client, but to a third party, such as an intended beneciary of a wi or to the

purchaser of a property when a solicitor is replying to requisitions on title on

behalf of the vendor of the property.

A solicitor should, as far as practicable, explain to the client the procedures to be

foowed in a maer and the length of time the process is likely to take.

19 Roche v Peilow 1985 [IR] 232

20 Wa v Hegarty [1980] ILRM 124; Doran v Delaney, Supreme Court [1998] 2 IR 61.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

26 27

A solicitor should keep the client informed of the progress of the maer. Where

it is important to notify the client of a particular maer, or to conrm or clarify

details with the client, preferably this should be done in writing.

Solicitors should be cognisant of the potential chaenges faced by clients who

have language or literacy diculties, or other disability that could impair their

understanding of the documents.

Failure to reply to letters

A solicitor should reply to correspondence and should return phone cas in a

timely manner, both to clients and coeagues. In circumstances where there

is no update or if the solicitor has no instructions in the maer, the solicitor

should respond to say that, rather than not replying to the correspondence.

Complaints

A solicitor should have a dispute-resolution procedure in place for dealing with

complaints, which should be communicated to the client. e client should

be advised of any actions that wi be taken in relation to the maer that is the

subject of a complaint.

When providing a client with a bi of costs, the solicitor is required to provide

the dispute-resolution procedure available, should the client wish to dispute

any aspect of the bi of costs.

Accounting for monies

A solicitor should account to the client for monies received and paid out on

the client’s behalf, including details of a charges and outlays incurred at the

conclusion of any maer.

A solicitor should return clients’ monies held in a client account on behalf of a

client in respect of a specic maer aer the conclusion of the provision of legal

21 ‘Terms and Conditions of Business Precedent’ – Law Society (see www.lawsociety.ie).

22 ‘Internal complaints procedure in solicitors’ rms’; Terms and Conditions of Business Precedent – Law

Society, (see www.lawsociety.ie).

23 Section 152(3) of the Legal Services Regulation Act 2015.

24 SI no 516 of 2014, Solicitor Accounts Regulations 2014.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

services

to that client in respect of that maer unless the client provides the

solicitor with specic instructions to provide further legal services in respect of

those monies.

Client lacking mental capacity

A solicitor should satisfy themselves about a client’s capacity to give instructions

if they have any doubts about their client’s capacity.

If a client lacks mental capacity, they wi be unable to give instructions or enter

into a contractual obligation. If the client has diminished capacity, they may

require special assessment by an appropriate medical practitioner. Particular

care is required in nancial transactions.

A decision on legal capacity should be made in relation to the specic issue about

which the client must give instructions, in recognition of the fact that there

are dierent levels of understanding required for dierent transactions.

e

client may have sucient capacity to make some decisions but not others. ere

should also be recognition that mental capacity may uctuate. An assessment as

to capacity should be made at the time the client is giving instructions and at the

time of the execution of any document.

It should also be recognised that, in some cases, a person may not have the

capacity to make any decisions that have legal consequences.

25 Retention of professional fees earned for longer than period aowable, Practice Note 2021

26 Draing Wis for the Elderly Client – Guidelines for Solicitors – Gazee, Jan/Feb 2009.

See www.gazee.ie.

27 e Assisted Decision-Making (Capacity) Act 2015, is due to be commenced in June 2022. It provides that a

person’s capacity sha be assessed on the basis of their ability to understand the nature and consequences

of a decision to be made by them in the context of the available choices at the time the decision is made.

28 “Do not go Gentle” – Cherishing the Elderly Client – Gazee, December 2008. See www.gazee.ie;

“Joint Bank Accounts” – Guidelines for Solicitors – Gazee, December 2008. See www.gazee.ie;

“Draing Wis for the Elderly Client” – Guidelines for Solicitors – Gazee, Jan/Feb 2009.

See www.gazee.ie;

“Administration of Estates” – Guidelines for Solicitors – Gazee, March 2009. See www.gazee.ie;

“Gis: Acting for an Elderly Client” – Guidelines for Solicitors – Gazee, April 2009.

See www.gazee.ie;

“Enduring Powers of Aorney” – Guidelines for Solicitors – June 2009. See www.gazee.ie.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

28 29

A solicitor should consider the context in which they are being instructed. If the

solicitor has acted for the client or their family over many years, the solicitor

or another coeague may have helpful background information. Particular care

should be taken where the solicitor is acting for a new client, who has changed

solicitors, who appears to have diminished capacity.

Vulnerable clients

e solicitor has a special duty of care in respect of vulnerable clients. As the

relationship between a solicitor and a client is of a duciary nature, a solicitor

should be cognisant of characteristics that make a client more vulnerable, such

as inexperience, youth, want of education, lack of knowledge, lack of business

acumen, mental iness, frailty due to the age of the client or the client’s lack of

ability to make an informed and independent decision regarding their aairs.

Solicitors should be alert to the danger of being requested to facilitate any type

of nancial abuse of a vulnerable client, such as the foowing:

• Client forced to give money or property to another,

• Client denied access to money or property,

• Money or possessions stolen,

• Client forced or misled into signing over ownership of their home or other

property,

• Client’s signature forged,

• Client forced to change their wi,

• Misuse of a power of aorney,

• Misuse of joint bank accounts.

Duress or undue inuence

A solicitor should not accept instructions that they suspect have been given by

a client under duress or undue inuence. Particular care should be taken where

a client is elderly or otherwise vulnerable to pressure from others. A solicitor

wi usuay, but not always, see a client alone. In the case of suspected duress or

undue inuence, the solicitor should ensure that the client is seen alone.

In these circumstances, a solicitor must also consider whether there is a conict

of interest or duty and whether it would be in the best interests of that client to

accept the client’s instructions, particularly where the solicitor acted for another

connected family member in another maer.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

A solicitor’s duty involves more than merely taking instructions. A solicitor has

a duty to make fu inquiries about the client’s circumstances and then to advise

them whether they should proceed with the transaction, taking a factors into

account. e advice may extend to advising the client to make provision for their

own future needs.

If a court is asked to investigate an aegation of duress or undue inuence, it is

not necessary that the court nds a wrongful act. Where the presumption arises,

the court intervenes in order to prevent an abuse of inuence possessed by one

party over the other.

Where there is no evidence of undue inuence, but the client wishes to enter into

a transaction that would not be in their best interests, such as an improvident

bargain, a solicitor is under a duty to clearly advise the client of the consequences

of entering into the transaction and the possible alternative options available to

the client.

ese advices should be recorded in writing.

Family and child care law

e practice of family law benets from a coaborative approach and the

development of skis that enable the practitioner assist the parties to reach a

constructive selement of their dierences. e best interests of children should

be paramount. Solicitors should encourage a conciliatory approach, as families

wi have to co-exist long aer the case has concluded.

Please see the notes in Chapter 7.

Litigation, arbitration and mediation

In addition to litigation, solicitors should familiarise themselves with other

methods of dispute resolution, such as mediation and arbitration.

Solicitors must provide their client with information on mediation as a means

of resolving disputes unless the circumstances deem it inappropriate to do so.

Initiating or engaging in selement discussions where appropriate, whether

through mediation or otherwise, is consistent with eective representation.

29 Carro v Carro (2000) 1 ILRM 2010;

Bourke v O’Donne & Ors. (2010) 1 EHC 348.

30 Family Law in Ireland, Code of Practice (2017) – Law Society Family Law and Child Law Commiee.

31 Section 14 of the Mediation Act 2017.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

30 31

TERMINATION OF A RETAINER

General

A solicitor should not terminate the solicitor/client relationship without good

cause and without reasonable notice.

e solicitor should conrm in writing that they have ceased to act. Where

court proceedings have been commenced, the solicitor must comply with the

procedures for coming o record.

A solicitor may cease to act in a case where they have asked the client to put them

in funds, and the client has refused to do so, as the solicitor/client relationship

has broken down.

If the solicitor terminates the solicitor/client relationship for good cause, and

has given reasonable notice to their client, they are entitled to be paid for the

work done.

If instructions had been accepted on a contingency fee basis, it is implied in the

arrangement that the solicitor wi continue to have carriage of the case. If the

solicitor’s retainer is terminated, the solicitor is entitled to be paid for the work

done.

Client’s failure to act on advice or to provide instructions

A solicitor may be compeed to cease to act for a client because the client

refuses to accept and act upon the advice that the solicitor has given them, and

the circumstances are of such importance as to damage the trust on which the

solicitor/client relationship is based.

A solicitor should cease to act for a client where the client refuses or fails to give

the solicitor further instructions, and where appropriate make an application to

the courts to come o record.

32 ‘Terms and Conditions of Business’ – see www.lawsociety.ie; ‘Transferring les between solicitors’ –

Practice Note, 2

Edition.

33 Transferring Files between Solicitors, Practice Note 2020.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

Loss of capacity

If a client suers loss of capacity, the retainer of the solicitor is terminated by

law. If the solicitor’s instructions pre-date the loss of capacity, the solicitor

should not proceed based on the instructions given before the loss of capacity,

save in certain circumstances where protective measures are prudent.

Termination when client in custody

A solicitor who has accepted instructions to appear in court for a client who is in

custody may not withdraw from the client’s case without obtaining permission

from the court before which that client is next scheduled to appear.

Termination by client

A client may change solicitor whenever they wish to do so but remains liable to

the rst solicitor for a reasonable charges incurred for legal services properly

provided.

Undertaking in respect of payment of costs

is topic is considered in detail at page 96.

34 Section 215, Legal Services Regulation Act 2015.

CHAPTER 2 THE SOLICITOR AND CLIENT RELATIONSHIP

32 33

CHAPTER 3

CONFLICT OF INTEREST

GENERAL

A solicitor should not act in a maer, or any part of a maer, where there is a

conict of interest.

A conict of interest means a situation where a solicitor’s separate duty to act

in the best interests of two or more clients in relation to the same or a related

maer conict.

Conicts of interest can arise between a solicitor and client(s) and between two

or more clients.

A solicitor is likely to have a conict if either client could reasonably take

exception to what the other client has asked the solicitor to do. Acting in a

conict-of-interest situation may involve a solicitor in a breach of the duty of

undivided loyalty owed to each client, a breach of the duty to make fu disclosure

to each client in a maer, or a breach of the duty of condentiality owed to each

client.

Where there may be a conict of interest or a risk of a conict of interest, it is

a maer for the judgement of the solicitor in deciding whether to act, based on

the professional duty owed by a solicitor to their client. It is not a maer for the

judgement of the client(s). A solicitor must give careful thought to the maer

to ensure that their professional obligations are discharged, that no conict

of interest arises, and/or that any identied risk is carefuy considered and

mitigated.

A solicitor owes a duty to a client to disclose a relevant information to them.

is foows from the fact that the solicitor is the agent of the client, who is the

principal. In practice, this means that a solicitor must be careful not to accept

information that is to be kept condential from the client.

CHAPTER 3

CONFLICT OF INTEREST

36 37

CHAPTER 3 CONFLICT OF INTEREST

CONFLICT OF INTEREST BETWEEN TWO CLIENTS

If a solicitor, acting with ordinary care, would give dierent advice to dierent

clients about the same maer, there is a conict of interest, and the solicitor

should not act for both clients. e solicitor owes a duty of care to each individual

client, so must advise in accordance with that client’s best interests. Even where

clients have a substantiay common interest or where they are competing for the

same objective, where the advice given to each party diers, a conict may arise.

To act in a conict-of-interest situation may involve the solicitor in:

a) A breach of the duty of undivided loyalty owed to each client,

b) A breach of the duty to make fu disclosure to each client in a maer, or

c) A breach of the duty of condentiality owed to each client.

CONVEYANCING TRANSACTIONS

General

A solicitor may not act for both vendor and purchaser in a conveyancing

transaction, with certain limited and dened exceptions, as set out.

Solicitors

are reminded that, under the Legal Services Regulation Act 2015,

misconduct

may be an act or omission where the act or omission consists of a breach of the

Solicitors Acts 1954 to 2015 or any regulations made under those Acts.

e exceptions include the voluntary transfer of property that is a family home

or a shared home from its owner (or its owners, where spouses or civil partners

hold as tenants in common) to the joint tenancy of the owner and their spouse or

civil partner. ere are also exceptions for certain transfers between associated

companies, transfers aecting trusts, and transfers between ‘qualied parties’.

e exception for ‘qualied parties’ is subject to the rm observing certain

statutory requirements and guidelines issued by the Law Society.

35 SI no 375 of 2012, Solicitors (Professional Practice, Conduct and Discipline – Conveyancing Conict of

Interest) Regulations 2012.

36 Legal Services Regulation Act 2015, section 50 (irishstatutebook.ie).

37 SI no 375 of 2012, Solicitors (Professional Practice, Conduct and Discipline – Conveyancing Conict of

Interest) Regulations 2012; section 432 of the Taxes Consolidation Act 1997 – ‘Meaning of “associated

company” and “control”’; ‘Ethical Barriers Within a Firm’ – Practice Note, March 2013.

CHAPTER 3 CONFLICT OF INTEREST

Voluntary property transactions

Subject to the exceptions set out in the preceding paragraph, a solicitor cannot

act for both parties in a voluntary property transaction. A solicitor cannot refer

one party to another solicitor for ‘independent legal advice’ and continue to act

for both parties in the execution and completion of the documentation.

Second party to a conveyancing transaction not represented

ere is no prohibition on a solicitor acting in a transaction where the other

party is not represented by a solicitor, but the solicitor should proceed with

caution and undertake no work on behalf of the other party.

If one party to a maer wishes to represent themselves, there is a danger that the

solicitor who is representing the other party might later nd it dicult to show

that they were not representing both parties, in breach of the regulations. It is

recommended that the solicitor write to the non-represented party, informing

that person that the solicitor is not representing, advising, or assisting them

in the transaction. A copy of that leer should be kept on le. In such cases, the

solicitor should be careful to ensure that they do not do any conveyancing work

that would normay be done by the other side in the transaction.

Owners’ management companies

A solicitor’s rm cannot represent both an owners’ management company and

the developer of the development in the transfer of common areas in a multi-

unit development in certain circumstances.

Prohibition on acting for borrower and lender in commercial

conveyancing transactions

Solicitors are prohibited from acting on behalf of both a borrower and a lender

in a commercial property transaction because of the inherent conict of interest.

38 ‘Separate representation for both parties to a conveyancing transaction’, Practice Note, April 2020.

39 Section 3(6) of the Multi-Unit Developments Act 2011, which applies for developments where there are

apartments or duplexes and where there has been no sale of a unit before 1 April 2011.

38 39

CHAPTER 3 CONFLICT OF INTEREST

ey may not act on behalf of both of the foowing:

1) e lender and borrower,

2) e lender and guarantor,

3) e lender and indemnier, or

4) e lender and security provider.

A borrower’s solicitor is also prohibited from giving a ‘relevant undertaking’,

as dened in the regulations, to a lender in the course of a commercial property

transaction. ere is an exception where the solicitor’s undertaking expressly

provides that the solicitor’s liability to the nancial institution pursuant to the

undertaking does not exceed €75,000.

Residential conveyancing

e certicate of title system currently in use (2011 edition) in residential

mortgage lending is based on the premise that the borrower’s solicitor does not

also act for the lending institution.

Undertaking to lender on behalf of solicitor

A solicitor should not give an undertaking to or for the benet of a lender in

relation to a loan transaction in which the solicitor, or a connected person of that

solicitor, has a benecial interest in the underlying property that is to secure the

loan, unless the lender has consented in writing to the solicitor providing the

undertaking.

40 SI no 366 of 2010, Solicitors (Professional Practice, Conduct and Discipline – Commercial Property

Transactions) Regulations 2010.

41 SI no 211 of 2009, Solicitors (Professional Practice, Conduct and Discipline – Secured Loan Transactions)

Regulations 2009.

CHAPTER 3 CONFLICT OF INTEREST

NON-CONVEYANCING TRANSACTIONS

Where clients consent to one rm representing both parties to a non-

conveyancing transaction, the law requires that each client gives informed

consent. is means that the client must know and understand that there is a

potential conict. e client must know and understand that the solicitor may

not be able to advise each client as fuy as that solicitor would if the solicitor did

not act for both parties.

Solicitors should be alert to the dangers of acting for two clients who have a

potential conict, even if they consent to the solicitor representing both parties.

e law provides that where an individual, such as a solicitor who has duciary

duties, undertakes conicting duties to more than one person, this in itself

is a breach of duty. e solicitor should not over-commit in the rst instance,

because the solicitor is in a relationship of trust and must avoid conicts of

interest from the beginning.

Where a solicitor has previously acted for two parties jointly and is later asked

to accept instructions in a new maer on behalf of one of the parties, where the

other party is on the opposing side, the solicitor should consider whether there

is a conict because of the solicitor’s knowledge of the facts of the maer. If

the solicitor is in possession of information, gained within the prior solicitor/

client relationship, that could create an unfair advantage or the perception of

unfair advantage over the position of the other party, then the solicitor should

consider, at the outset, whether it is appropriate to act.

e solicitor should consider obtaining conrmation that the other party has no

reasonable objection to the retainer.

If there is a perception of a conict of interest or if the solicitor feels their

independence is compromised, the solicitor should consider whether it would

be in the client’s best interest to instruct a dierent solicitor, to avoid the issue

being a focus in itself, to the detriment of the client’s case. e circumstances

42 ‘Potential conict of interest where a solicitor is acting for both driver and passenger of the one vehicle’,

Practice Note, Gazee, July 1998 (see www.gazee.ie); Prince Jefri v KPMG [1999] 1 A ER 517; Moody v

Cox & Ha 1917.

40 41

CHAPTER 3 CONFLICT OF INTEREST

of each case must be examined and the maer decided on a case-by-case basis.

Factors such as the inequality in bargaining power between the parties should

be considered.

Client with conicting roles

A solicitor should avoid acting for a client with conicting roles. When taking

instructions, the solicitor should make it clear to the client that they can only

accept instructions and give advice for one role, and agree and document the

role for which they are accepting instructions.

Separate representation for vulnerable clients

Where, in the judgement of a solicitor, one of the parties to a non-conveyancing

transaction, while having fu capacity, is vulnerable, the solicitor should not

act on both sides, and each party should be separately represented by a dierent

rm. is is in order to ensure that both parties receive independent advice.

It helps preserve the integrity of the transaction and protects it from being

chaenged at a later date. It also protects the solicitor.

Solicitors should be aware that the characteristics of vulnerability are not

exhaustive and include a person who, by reason of age, inrmity, mental iness,

mental incapacity, or physical disability, lacks the ability to make an informed or

independent decision regarding the maer.

e Assisted Decision-Making (Capacity) Act 2015 (ADMA) introduced a new

statutory framework for individuals who have diculty in making decisions

without help. e Act provides for the establishment of the Decision Support

Service within the Mental Health Commission.

43 National Veing Bureau (Children and Vulnerable Persons) Act 2012) (see also Chapter 2 on the

characteristics that might make a client vulnerable).

44 ‘Transactions Involving Vulnerable/Older Adults’ (Practice Note, 2012).

45 See also chapter 2 – Vulnerable Clients

46 At the date of publication of this Guide, only the oce of the Decision Support Service has been

established, and the provisions of the ADMA dealing with supported decision-making have not been

commenced.

CHAPTER 3 CONFLICT OF INTEREST

Client lacking mental capacity

A person lacking mental capacity does not have capacity to contract with a

solicitor for legal services or provide instructions. e solicitor should not

assume a lack of mental capacity and should establish in their view whether or

not the individual is capable of giving instructions.

If the solicitor is of the

opinion that the individual is not capable, enquiries should be made as to the

existence of an EPA.

Accordingly, where a family wishes to provide for a member lacking mental

capacity, which involves transferring or otherwise dealing with their assets, the

solicitor who has been consulted should advise the family that it is not possible

for that solicitor’s rm to act on both sides of the transaction. Having foowed

the steps set out above regarding assessing the relevant person’s capacity and

checking for the existence of an Enduring Power of Aorney, the family should

be informed about the Wards of Court system.

State solicitors

A solicitor appointed as a ‘state solicitor’ by the Director of Public Prosecutions

is contractuay prohibited from acting in cases or maers that would conict

with their duties to the Director, including, but not limited to, maers arising

from the circumstances of a criminal investigation or prosecution.

Independent legal advice

ere are circumstances in which a rm representing two parties to a non-

conveyancing maer may decide that, while it is not necessary for both parties

to the maer to be represented by a separate rm, it is advisable that either or

both parties seek advice from a dierent rm – or dierent rms – in relation

to certain aspects of the transaction. It may be necessary to refer both parties to

seek independent advice if the rst solicitor is not independent of either client.

47 e functional approach to capacity should be used in making this assessment. A functional approach

to assessing capacity means that a person’s capacity sha be assessed on the basis of their ability to

understand the nature and consequences of a decision to be made by them in the context of the available

choices at the time the decision is made.

48 e provisions of the Assisted Decision Making Capacity Act are likely to be in place from June 2022 and

wi replace the Wards of Court system.

42 43

CHAPTER 3 CONFLICT OF INTEREST

Independent advice can only be given by a separate rm – it cannot be given

within the same rm. In circumstances where a second rm gives independent

advice to a client in a non-conveyancing maer, that client is the client of the

second rm in relation to that advice. e second rm owes a duty of care to that

client. e solicitor giving the independent advice wi usuay have been sent

an outline of the facts of the maer by the rst solicitor. e second solicitor

must question and advise the client. e second solicitor should be satised that

the client understands the nature and implications of the maer. e second

solicitor should make a note of the meeting and, if requested by the client, write

to conrm the outcome of the meeting to the rst solicitor.

It is recommended that in any maer where independent legal advice has been

given, and the solicitor giving that advice is satised that the client should

proceed, the execution of any document by the party who obtained that advice

should be witnessed by that solicitor.

Conict in probate and administration

A solicitor is not prohibited from acting on behalf of the legal personal

representative (LPR) and a person in whose favour an assent of property from

the estate is being made.

A solicitor who is acting for the LPR is not prohibited from also acting on behalf

of any beneciary who executes a disclaimer in favour of the estate. However,

the solicitor should be alert to the issue of conict and, where necessary, one

or more parties should be advised to take independent legal advice before the

disclaimer is executed.

It is good practice that, where a solicitor acts as the LPR, that the solicitor LPR

provide the beneciaries with a copy of the section 150 notice on legal costs and

any leer of engagement to the class of beneciaries from whose benet the

legal costs wi ultimately be paid (normay the residuary legatees). Solicitors

not acting as LPR should advise their LPR client that it is best practice to provide

a copy of the section 150 notice to the beneciaries from whose benet the legal

costs wi ultimately be paid and seek instructions to do so.

A solicitor is prohibited from acting for both grantor and grantee(s) in a Deed of

Family Arrangement.

CHAPTER 3 CONFLICT OF INTEREST

Family law

Where a solicitor has acted for both parties in a non-contentious maer, and

subsequently one party returns to that solicitor seeking family law advice then,

before the solicitor agrees to act, the solicitor should satisfy themselves that they

are not in possession of information, gained within the prior solicitor/client

relationship, which could create an unfair advantage or the perception of unfair

advantage, and the solicitor should consider whether it is appropriate to act.

e solicitor should consider, at the outset, obtaining conrmation that the

other party has no reasonable objection to the retainer, so as to avoid the fact

of the retainer becoming an issue in itself that may be to the detriment of the

client’s case.

A conict of interest can arise in the sale/disposal of a property where there are

co-owners, most likely foowing a court order. Consideration should be given to

agreeing joint carriage of sale.

49 Family Law in Ireland, Code of Practice – Law Society Family Law and Child Law Commiee, 2017 (see

Appendix 4).

50 Joint Carriage of Sale, Conveyancing Commiee Practice Note, November 1999, which adopts the DSBA

1996 Practice Note re disposal of property in family maers.

44 45

CHAPTER 3 CONFLICT OF INTEREST

CONFLICT OF INTEREST BETWEEN SOLICITOR AND CLIENT

A solicitor should not act where their duty to act in the best interests of a

client in relation to a maer conicts, or there is a signicant risk that it may

conict, with their own interests in relation to that maer or a related maer.

If the conict arises during a transaction, the solicitor should give careful

consideration to their position.

Bequests or gifts by client to solicitor, sta, or family

Where a client intends to bequeath under their wi or make a gi by deed to the

solicitor draing the wi or deed, or to a partner, sta member, or member of

the family of that solicitor, then the solicitor should not act and should advise

the testator to consult another rm.

Where a client wishes to leave a token legacy or to make a token gi of a nominal

amount to a solicitor or member of the solicitor’s sta or family, it would not be

considered unprofessional to take such a gi or bequest. However, the prudent

course is for the solicitor to refuse to accept any benet under a wi that the

solicitor or the rm in which they work are personay draing.

Wills for parents

If a parent asks their child, who is a solicitor, to make a wi, there is potential for

conict of interest. A conict may arise between the interests of the solicitor and

their other family members and, in these circumstances, the solicitor should

recommend that the testator consults a dierent rm to dra the wi and, if the

parent insists, then the solicitor should proceed with caution.

Similar considerations may apply to the draing of wis for other family

members.

Borrowing money from a client

A solicitor should not borrow money from a client unless that client is

independently represented by another rm in that transaction or it is part of the

business of the client to lend money, as when the client is a bank. If the client

does not come within that category of client, then best practice dictates that the

solicitor should arrange for the client to obtain independent legal advice and

CHAPTER 3 CONFLICT OF INTEREST

that fu supporting documentation for the loan be recorded on the client’s le.

Accordingly, details of the agreement for the client to lend money to the solicitor

should be evidenced in writing, which should include, among other things, the

amount of the loan, the date of the agreement, the terms of repayment, and

evidence of the identity of the solicitor providing the independent legal advice.

Loans to clients

If a solicitor makes a loan of a purely personal nature to a client, the solicitor

should ensure that documentation is put in place to support the solicitor’s

view that the transaction is a personal one. If security for the loan is required,

or there are terms and conditions aached to the loan, separate advice or

representation wi be required by the client. A solicitor who engages in any

activity that amounts to carrying on the business of moneylending is subject

to the provisions of national and EU legislation, as we as other instruments,

such as the relevant consumer protection code. In addition to the specic legal

obligations and liability that such laws create, a breach of them could amount to

professional misconduct.

Loans from one client to another client

No sum in respect of a private loan from one client to another client should be

paid out of client funds held for the client lender, either by means of a client

ledger transaction between the clients or to a client borrower directly. Any such

loan arrangements between clients should be a maer for the clients involved to

be dealt with between the parties.

Prohibition on payments to clients

A solicitor should not, directly, or indirectly, make or oer to make any payment

to or on behalf of any person as an inducement to obtain or retain instructions

from that person or for the purpose of securing the transfer of that person’s

instructions from another solicitor.

51 Solicitors Borrowing from Clients Practice Note, Regulation of Practice Commiee, 2019.

52 Loans from One Client to Another Client’, Practice Note 2019.

53 ‘Loans from One Client to Another Client’, Practice Note 2019.

46 47

CHAPTER 3 CONFLICT OF INTEREST

A solicitor may discharge outlays associated with a client transaction during the

course of that transaction on client’s instructions.

Solicitor holding power of attorney

Where a solicitor holds a power of aorney from a client, they operate under

the law of agency and have a duciary duty. An agent cannot benet himself or

others while acting as agent for the principal, unless specicay authorised to

do so.

Joint ventures between solicitor and client

ere may be circumstances where a solicitor enters into business or engages in

a transaction with one or more clients by way of joint venture, by way of example,

in either a partnership or through a limited company. While there is no rule

prohibiting the solicitor, or their rm, from acting for such joint venture, care

must be taken by the solicitor to avoid potential or actual conicts of interest.

In-house and public-sector solicitor

In-house and public-sector solicitors should avoid conicts of interest when

providing services to their employers. e employer may also have an internal

code of ethics that outlines conicts of interest in the context of the employment.

Where an in-house or public-sector solicitor has a personal conict of interest,

the solicitor should advise the employer of the conict and where necessary

make alternative arrangements.

CHAPTER 4

PRIVILEGE AND CONFIDENTIALITY

BETWEEN SOLICITOR AND CLIENT

GENERAL

Legal professional privilege (LPP) is a common-law privilege. It is an exemption

conferred on clients to protect communications that they have with their solicitor

that may otherwise require disclosure. ere is a distinction between the law

of LPP and the professional duty to keep clients’ aairs condential. Privilege

applies to both private practice and in-house and public-sector solicitors.

In 2020, the Law Society produced two practice notes for members on LPP –

‘Legal professional privilege’ and ‘Legal professional privilege and in-house

counsel’. e rst practice note provides an overview on the status of LPP for a

solicitors and provides a summary of the principal duties with regard to LPP.

e second practice note focuses on the position for solicitors working in-house

in the private or public sector.

PRIVILEGE

LPP is a fundamental feature of the administration of justice and the rule of law.

When privileged communications pass between a solicitor and their client or a

prospective client, the privilege is that of the client, and the solicitor cannot be

compeed to disclose those communications unless ordered to do so by a court.

Solicitors should advise their clients that they, the client, have a right to assert a

claim to LPP upon forming a view that a valid claim to LPP arises.

ere are two forms of LPP: legal advice privilege and litigation privilege.

Legal advice privilege

Communications that qualify as privileged communications are those that

contain legal advice. Legal advice privilege applies to any legal advice, either

oral or wrien, and once a communication is privileged, it remains so.

CHAPTER 4

PRIVILEGE AND CONFIDENTIALITY BETWEEN

SOLICITOR AND CLIENT

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

50 51

Litigation privilege

Litigation privilege applies to communications made for the dominant purpose

of preparing for litigation or anticipated litigation, or in an aempt to agree

maers so as to avoid litigation.

Litigation privilege only extends to the scope

of the relevant proceedings, unless closely related proceedings ensue. Solicitors

should be aware that it is for the party asserting privilege to justify any claim of

privilege.

Legislation, court orders or warrants

Solicitors should be aware of anti-money-laundering legislation and how this

aects privilege and condentiality.

If a solicitor is served with a court order or warrant requiring the production

of documentation of a particular client, the terms of the court order or warrant

should be examined. If items subject to privilege are included in the order, the

solicitor has a duty to check the documentation and list and retain any material

over which they are claiming privilege. e solicitor may be required to provide a

list of material withheld if they are withheld on the basis that they are protected

by LPP.

Tax legislation

Solicitors may be accountable persons in certain circumstances in respect of

tax payable, such as capital acquisitions tax and capital gains tax, or may have

reporting obligations in relation to certain transactions. However, legislation

provides that a solicitor may refuse to aow the Revenue Commissioners to

inspect les or documents where the solicitor’s client has a legal right to do so,

such as where privilege can be established.

Receipt of information intended for the other party to litigation

A solicitor should not access privileged communications intended for the other

side.

54 See Law Society Practice Note, Legal Professional Privilege, published July 2020.

55 AML Guidance and Resources (www.lawsociety.ie)

56 ‘What to do when the CAB comes to ca’ – Practice Note, Gazee, May 2000.

57 Section 902(A), 907(A) and 817J of the Taxes and Consolidation Act 1997; Revenue Commissioners

Guidance Notes on Mandatory Reporting Obligations; section 128(3) of the Stamp Duties Consolidation

Act 1999 and Revenue Notes for Guidance.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

If a solicitor is on notice or is satised that evidence has been obtained iegay

– for instance, if it has been stolen – this evidence should not be produced to the

court.

Material disclosed by mistake

If a privileged communication is inadvertently disclosed to another party, the

solicitor can sti assert privilege on behalf of the client. Solicitors should not

knowingly open privileged communications not addressed to the solicitor or

the solicitor’s rm. If a solicitor mistakenly acquires such communications,

then privilege is retained by the sender.

Common interest and joint interest privilege

In a situation where two parties have a common interest in the outcome of

litigation or investigation, and privileged communications are shared, the

parties may consider a common interest agreement to maintain the LPP.

In the case of a joint retainer where a communication is provided to a clients

jointly, privilege over that communication can be preserved if one party goes on

to be represented by that solicitor foowing the joint retainer. Each party may

be entitled to see the privileged communication providing legal advice issued

during the joint retainer.

Loss or waiver of privilege

Privilege may be lost by inadvertence or waiver. It can be waived by the client or,

if the client has died, by their personal representative to whom privilege passes.

Where privilege has been lost due to the intentional release of a privileged

document, then the privilege is lost. However, an automatic waiver does not

arise in the event that a privileged document is disclosed to a third party.

Privilege may be lost in the following circumstances:

• Communications made for some fraudulent or iegal purpose,

• Communications made by a client to a solicitor before the commission of a

crime for the purpose of being guided or helped in the commission of that

crime,

• Where privilege may be overridden by statute,

• In the case of records of public proceedings, public documents, pleadings,

or copies of them when they have been led, depositions and transcripts of

proceedings in court,

• In some proceedings which involve the welfare of minors.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

52 53

ADDITIONAL CONSIDERATIONS FOR THE IN-HOUSE AND

PUBLIC-SECTOR SOLICITOR

As set out above, privilege applies to the in-house and public-sector solicitor.

However, it is essential that solicitors working in an in-house or public-sector

capacity are familiar with the up-to-date position in relation to the law of

privilege in the various jurisdictions where the company or organisation

operates. e Irish courts do not draw any distinction in respect of the general

application of LPP to legal advice received from in-house counsel. It would be

prudent for the in-house solicitor to obtain external legal advice where an EU

competition law maer arises, so that the advices are protected by privilege.

PROFESSIONAL DUTY OF CONFIDENTIALITY

General

e professional rule of condentiality is wider than legal privilege and applies

to a communications passing between a solicitor and their client or former

client, and to the existence of the relationship. It is also an implied term of the

contract for legal services between the solicitor and the client.

Any maer relating to a client’s aairs can only be disclosed with the consent

of the client, by the direction of a court, or to a body requiring disclosure while

exercising its statutory powers.

e solicitor’s professional duty of condentiality should override a solicitor’s

inclination as a dutiful citizen to report any maer to the authorities or to

cooperate with them against the interest of the client. For instance, where a

solicitor is asked by An Garda Síochána for information or documentation

relating to a client, unless the client is prepared to waive condentiality, the

solicitor should insist upon receiving a court order or warrant. Likewise, where

the solicitor is asked to aend court to give evidence of maers that are within

solicitor/client condentiality, the solicitor should not aend unless he receives

a witness summons or subpoena. Where this is done, it wi be a maer for the

58 Akzo Nobel Chemicals Limited v European Commission (Case C550/07P);‘A Guide for In House

Solicitors Employed in the Corporate and Public Sector’ (May 2018). Legal Professional Privilege and In

House Counsel, Law Society Practice Note 2020.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

court, not for the solicitor, to decide the issue of condentiality. e solicitor

can explain to the court that certain information is condential, as opposed to

privileged, and then leave the maer in the hands of the court to decide.

A solicitor should keep the addresses of clients condential. However, as a

maer of courtesy, they may oer to forward correspondence to a client.

Solicitor as mediator

e duty of condentiality also applies to a solicitor who is acting as a mediator.

Revenue audits

When a solicitor is the subject of a Revenue audit, a necessary steps should be

taken by the solicitor to ensure that there is no breach of condentiality.

Disclosure of testator’s aairs

On the death of a client/testator, a solicitor should not, without the consent of

the executor, disclose any information, other than to the executor, about the

testator’s aairs.

Supplying copy of will

Before the issue of a grant of representation, a solicitor acting for the executor

should not supply a copy of, or extract from, a wi to a beneciary, without the

prior consent of the executor. e executor should, however, be advised that it is

recommended practice to supply an extract of the relevant part of the wi to an

interested beneciary.

Supplying copy of executor’s or administrator’s account

On the completion of the executor’s or administrator’s account, a copy should

be supplied on request to residuary legatees.

Testator’s solicitor

Where proceedings chaenging a wi are issued, the solicitor who draed the

wi, may, with the consent of the executor, supply a statement to the parties to

the proceedings about the circumstances surrounding the execution of the wi.

59 ‘Memorandum of Understanding between the Revenue Commissioners and the Law Society of Ireland

concerning the Audit of the Tax Returns of Solicitors and Solicitor’s Practices’ – February 2002;

‘Guidelines to Solicitors in relation to Revenue Audits” – Law Society, February 2002; see Appendix 5.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

54 55

Wills acquired from another practice

Where solicitors come into possession of envelopes containing wis from

another practice, they are entitled to open the envelopes and may contact

the testators or, if deceased, their personal representative for the purpose of

notifying them of the existence of the wis and of advising that the wi may

require amendment, as appropriate, in accordance with changes in the law or on

foot of further instructions.

Exceptions to condentiality

e circumstances that override condentiality are similar to those that

override privilege. Where a client aempts to use the solicitor to facilitate the

commission of a crime or fraud, condentiality is waived and the solicitor is

then free to communicate that knowledge to a relevant third party, for instance

to a coeague subsequently instructed in the maer.

Condentiality in the face of risk to client or others

Solicitors accept instructions from clients to provide legal services to them on

the basis that everything disclosed to the solicitor within the solicitor/client

relationship wi be kept condential. However, some extreme situations may

arise that justify a breach of condentiality, but this must be limited to the

extent necessary.

Any time it is necessary to deviate from the general principles, it is suggested

that a solicitor document their decision-making process.

Sometimes a solicitor may be informed of a situation where there appears to be a

serious risk to the physical or mental webeing of the client or a third party. e

solicitor wi have to decide whether the threat is suciently serious to justify

a breach of the duty of condentiality. is may be a dicult decision, and the

solicitor may have to consult with appropriate relevant professionals for advice

and guidance to satisfy themselves that it is reasonable in the circumstances to

breach the duty of condentiality. In a the relevant situations below, solicitors

should document their decision-making process.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

Client with mental disorder

If the solicitor is of the opinion that the risk arises because the client may be

suering from a mental disorder, the solicitor can encourage the client to

contact their medical practitioner. If the solicitor believes it unlikely that this

advice wi be taken, the solicitor can consider making a condential referral to

the client’s medical practitioner.

Risk of abuse, neglect, or ill-treatment of client

If the solicitor becomes aware of a situation where there is a serious risk to

the client, such as elder abuse, neglect, or i-treatment, which requires the

intervention of the health authorities on behalf of the client, the client should be

encouraged to refer the maer to the relevant department in the Health Service

Executive. If the solicitor believes it is unlikely that this advice wi be taken, the

solicitor can consider making a condential referral to that oce.

is situation may also apply in the context of a serious risk to third parties

disclosed in the course of instructions.

Threats of death or serious injury

If a solicitor is informed by their client of a death threat or of a threat of serious

injury, the solicitor should encourage the client to report the maer to the gardaí.

Cases involving abuse or neglect of minors

ere may be exceptional circumstances involving a minor where a solicitor

should consider revealing condential information to the Child and Family

Agency or An Garda Síochána. is may be where the minor is the client and

reveals relevant information.

Similarly, there may be situations where an adult discloses abuse or neglect

either by themselves or by another adult against a minor but refuses to aow any

disclosure to third parties. If the situation indicates continuing sexual or other

physical abuse, or ongoing neglect of a minor, and there is a threat to the minor’s

life or health, whether mental or physical, but there is a refusal on the part of

the client to aow disclosure of such information, if the situation is suciently

serious, a breach of the overriding duty of condentiality may be justied and

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

56 57

a condential referral to a the Child and Family Agency or an Garda Síochána

can be made. e solicitor should consider whether the situation is suciently

serious to justify such a breach and that a reasonable solicitor would breach the

duty of condentiality in similar circumstances.

In making this decision, the solicitor should be conscious that it is a criminal

oence to withhold information from An Garda Síochána concerning oences

against children and that the solicitors’ profession is not exempt from the

obligation to disclose.

Solicitors should also be aware that the Protections for Persons Reporting Child Abuse

Act 1998 provides a legal immunity to the reporter of suspected child abuse to

designated ocers of Tusla, the Health Service Executive (HSE) or to members

of the gardaí so long as the report is made in good faith and is not malicious.

60 A list of oences are contained in Schedule 1 of the Criminal Justice (Withholding of Information on

Oences against Children and Vulnerable Persons) Act 2012.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

CONFIDENTIALITY IN THE SOLICITOR’S OFFICE

Shared accommodation

It is recommended that solicitors who share accommodation or sta with non-

solicitors or another solicitor’s rm put policies in place that restrict access

to a information to authorised sta. Failure to do so could lead to a breach of

condentiality in respect of the business and aairs of the clients.

is duty of condentiality extends not only to the solicitor’s oce but also to

any situation whereby a le is removed from the oce by a member of sta of

the rm such as aending court or working away from the oce.

Storage of records

When storing records in the oce or o-site, or providing for the maintenance

of those records, solicitors must take a reasonable steps to ensure that the

client’s information is kept condential.

Files should be retained for the statutory period, or that identied in the

solicitor’s retention policy, and then destroyed.

Service providers

It is recognised that, in the course of practice, rms wi inevitably have to give

limited access to client data to their professional advisers, IT maintenance

contractors, and others. e solicitor should ensure that the appropriate

industry standard agreements are in place with the provider and that those

agreements are in compliance with GDPR. Disclosure should be limited to that

which is necessary.

Sta of solicitor

e duty to protect clients’ privilege and the duty to keep the aairs of clients

condential extends to the sta of a solicitor. It is recommended practice that

sta should be informed of their responsibility to refrain from disclosing to any

61 ‘Head in the Clouds’ – Gazee, December 2010 (see www.gazee.ie).

62 ‘Data Retention and Destruction of Paper and Electronic Files’, Practice Note, 2019.

See also www.lawsociety.ie/aml.

CHAPTER 4 PRIVILEGE AND CONFIDENTIALITY BETWEEN SOLICITOR AND CLIENT

58 59

unauthorised party anything they learn in the course of their employment, and

this should be acknowledged by them in writing.

It is recommended practice to have sta sign a condentiality agreement

informing sta of their obligation not to disclose to any unauthorised party

anything they learn in the course of their employment. is duty, imposed on

each member of the sta of a solicitor, is not terminated by the determination

of the retainer of the solicitor by a client, by the completion of the maer in

question, or by the termination of the employment of the member of sta.

Family law les

A solicitor should be mindful of the extent and eect of the in camera rule. A

solicitor must not disclose the contents of a family law le to any third party

even with the client’s consent (subject to limited statutory exemptions or a court

order). It is recommended that solicitors advise their clients of the signicance

of the in camera rule.

e family law le of a deceased client should be kept condential. is obligation

survives the death of a client. If necessary, a direction from the court could be

sought by the personal representative of a deceased client seeks information

from the le.

Condentiality of deed of Enduring Power of Attorney

An Enduring Power of Aorney belongs to the donor of the power. It does not

belong to the aorney or aorneys. Accordingly, an original Enduring Power of

Aorney should not be released to an aorney or their solicitor for registration.

e proper procedure is for the rst solicitor to lodge the original Enduring

Power of Aorney with the Registrar of Wards of Court, pending registration, in

the event that the rst solicitor is not instructed in the registration.

CHAPTER 5

THE SOLICITOR AND THEIR

RELATIONSHIP WITH THE COURT

GENERAL

A solicitor owes a duty to do their best for their client. A solicitor also owes a

duty to the court as an ocer of the court.

e proper administration of justice

requires that the court is able to rely upon every lawyer who appears before it or

who has dealings with it.

A solicitor:

a) Should promote and protect by a proper and lawful means, without fear or

favour, the client’s best interests,

b) Should keep information about clients condential and must not disclose

the facts known to them regarding the client’s character or previous

convictions without the client’s express consent,

c) Has an overriding duty to the court to ensure, in the public interest, that

the proper and ecient administration of justice is achieved, and should

assist the court in the administration of justice, and should not deceive, or

knowingly or recklessly, mislead the court.

Solicitors’ rights and obligations as ocers of the courts are derived from

the inherent jurisdiction of the Superior Courts over ocers of the court as

63 ‘Solicitors as Ocers of the Court’ (lawsociety.ie).

64 e absolute duty of client condentiality has been tempered by, inter alia, statutory duties under anti-

money-laundering regulations, section 19 of the Criminal Justice Act 2011 and section 52 of the Criminal

Justice e and Fraud Oences Act 2001, the Children First Policy and the protection of vulnerable

persons, and any other legislative provisions that would require a solicitor to seek further guidance if

confronted with a situation that could be covered by that legislation.

CHAPTER 5

THE SOLICITOR AND THEIR RELATIONSHIP

WITH THE COURT

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

62 63

recognised by statute in section 78 of the Judicature (Ireland) Act 1877

and section

61 of the Courts (Supplemental Provisions) Act 1961.

is inherent jurisdiction of the Superior Courts over solicitors can apply in the

foowing areas, but this is not an exhaustive list:

• Enforcing solicitors’ undertakings or compensating for loss arising from

the breach of an undertaking,

• Imposing liability for costs on solicitors,

• Ensuring proper accounting for clients’ monies by solicitors, including

the suspension of the solicitor where necessary on application to the High

Court,

• Ordering former solicitors to deliver up client les,

• Imposing sanctions on solicitors where the solicitor as an ocer of the

court is in contempt of the court.

A distinction must be drawn between the supervisory jurisdiction of the courts

and the statutory framework for disciplinary action contained in the Solicitors

Acts 1954 to 2015. e courts do not make ndings of misconduct per se. at is

the role of the Legal Practitioners Disciplinary Tribunal.

A solicitor should avoid improper or abusive litigation, predatory litigation,

abuse of process, taking unfair advantage, misleading the court, and conducting

frivolous and/or vexatious cases.

ere wi always be complex situations where maintaining the correct balance

between a solicitor’s duty to their client and their duty to the court is not

straightforward, and such maers must be decided on the facts. It is important

for solicitors to recognise their wider duties and not to rationalise misconduct

in the mistaken belief that their only duty is to their client.

65 is sections states: “any solicitors, aorneys or proctors to whom this section applies sha be deemed

to be ocers of the Court of Judicature: and that that court and the High Courts of Justice and the Court

of Appeal respectively or any division or judge thereof, may exercise the same jurisdiction in respect of

such solicitors or aorneys as any one of Her Majesty’s superior courts of law or equity might previous-

ly to the passing of this act have exercised in respect of any solicitor or aorney to practise therein”.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

Litigation is a reserved legal activity regulated by the Solicitors Acts 1954 to 2015.

e integrity of the justice system depends on the ethical conduct of solicitors

as ocers of the court and their overriding duty is to the rule of law and the

administration of justice. Nowhere is that more apparent than when conducting

litigation.

A solicitor should not assert what they know to be untrue or substantiate a

fraud, as that would amount to a positive deception of the court. However, a

solicitor is under no duty to undo the consequences of the court being misled

by the opposing party, otherwise than on a point of law, where this occurs due to

the opposing party lacking certain information or misinterpreting the available

information.

A solicitor interacts with the court in one of two ways. First, directly by way of

advocacy before the court and, secondly, in ling pleadings and other documents

that come before the courts.

The solicitor advocate

ere are general rules that apply to a solicitor advocates, whether acting

in a civil or criminal maer and irrespective of which side the solicitor is

representing:

1) A solicitor should present their client’s case to their client’s best advantage.

It is not the task of an advocate to win a case at a costs. e advocate has a

duty to assist the court in reaching a just decision and, in furtherance of that

aim, the solicitor must advise the court of relevant case law and statutory

provisions.

2) While the advocate should not deceive the court in relation to any facts or

evidence placed before it, the solicitor is not obliged to make available to the

court any evidence harmful to their case of which the court or the opposing

party is otherwise unaware. Save where appearing as a prosecution advocate,

a solicitor is not under any duty to inform the court of the existence of

witnesses who would assist the other side. However, if a solicitor knows that

66 Section 58 of the Solicitors Act 1954 sets out the so-caed ‘reserved areas’ in which legal services can

only be provided by solicitors and, in some cases, barristers. ese reserved areas deal primarily with

conveyancing, litigation and probate work.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

64 65

an adavit or statement of truth has been made and led in the case that

they are conducting, and which is therefore within the knowledge of the

court, and the adavit or statement of truth is such that, if it were before

the court, it might aect the mind of the judge, then the advocate’s duty is

to disclose the adavit to the judge.

3) It is the duty of the advocate to uphold the proper interests of their client

and to protect their client’s liberty. e advocate is entitled to state every

fact freely and to use every argument, whether technical or otherwise, that

may be used in accordance with the law and within the rules of professional

conduct. e advocate should resist any aempt to restrict them or their

client in the performance of this task.

4) It is the duty of an advocate to guard against being made the channel of

questions that are only intended to degrade the other side, a witness, or any

other person. ey are under a duty to exercise their own judgement both

regarding the substance and the form of a question.

5) e advocate should never aow their personal feelings to intrude upon

their task as an advocate. ey should always act with due courtesy not only

towards the court but also towards their opponent and a concerned in the

case.

6) A solicitor should never ca a witness whose evidence is untrue to the

solicitor’s knowledge, as opposed to their belief.

Ex parte applications

In ex parte court applications, the solicitor has a particular duty to act in good faith

and to present the court with a relevant information and/or correspondence

and make fu disclosure in respect of the application before the court.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

CONFLICT ARISING DURING RETAINER

According to the principles of agency, a solicitor – whether acting as advocate

or otherwise – derives their instructions and authority solely from those who

instruct them. It is an implied term of the retainer of a solicitor that they wi use

their professional discretion in the conduct of the proceedings. If the express

instructions given to the solicitor give rise to a situation in which the inclusion

or exclusion of evidence on the one hand and their duty to the court on the

other hand conict, they should, unless their instructions are varied, apply to

the court to withdraw from the case, but without disclosing maers that are

protected by the client’s privilege.

PERJURY BY A CLIENT

A solicitor must decline to act further in any proceedings where a solicitor has

knowledge that the client has commied perjury or has misled the court in

relation to those proceedings, unless the client agrees to make a fu disclosure

of their conduct to the court. Likewise, it is the duty of the solicitor not to

knowingly aow dishonest omission by a client in discovery, statements of

truth, adavits, and disclosure.

WITNESSES

Advertising for witnesses

On the instructions of a client, a solicitor may advertise for witnesses to come

forward to give evidence as to a particular occurrence, but the advertisement

should not invite persons to testify as to particular facts.

Calling a witness to give evidence

A solicitor should never ca a witness to testify and give evidence in a case where

that solicitor knows the evidence to be untrue.

67 Square Global Ltd v Leonard [2020] EWHC 1008 (QB): “It is fundamental that the client must not

make the selection of which documents are relevant.”

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

66 67

Interviewing witnesses

ere is no property in a witness. A witness does not belong to either side in a

case or proceedings.

A solicitor may interview a witness and take statements in any proceedings,

subject to the agreement of the witness, whether that witness has been

interviewed or caed as a witness by the other party, provided there is no

question of tampering with the evidence of a witness or suborning them to

change their story.

Where a solicitor acts for the defence in criminal maers and interviews a witness

for the other side, that solicitor may be exposed to the suggestion that they have

tampered with the evidence of such a witness. A court or jury may conclude that

the witness has been tampered with where such an interview has taken place.

e fact that the witness has been interviewed may be seen to weaken the cross-

examination, and this may harm the case to be made by the solicitor’s client.

It is not improper for a solicitor to inform a witness that they are not obliged to

make a statement, subject to specic legislative exceptions. e information the

solicitor gives wi depend on the interests of their client and the circumstances

of the case.

Witness in the course of giving evidence

When a witness is in the course of being cross-examined, a solicitor sha not,

without the leave of the court, discuss the case with the witness. is prohibition

covers the whole of the relevant time, including adjournments and weekends.

Payment to witnesses

A witness is entitled to expect reasonable expenses or reasonable compensation

for loss of time for aending court or the payment of a reasonable fee for the

services of an expert witness.

A solicitor should not make payments or agree to the making of payments to a

witness contingent upon the nature of the evidence given or the outcome of a

case.

68 ‘Cross-Examination of Witnesses’, Practice Note, Gazee, November 1994 (see www.gazee.ie).

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

Payment of witnesses in legally aided cases

In legay aided cases, a solicitor should draw to the aention of a witness the fact

that the case is being legay aided and that the witness fees and disbursements

wi be those that are adjudicated upon or assessed as being proper by the

relevant authority responsible to pay legal fees. e solicitor should explain that

no payments other than those made by the relevant authority can be made to the

witness and that the solicitor has no personal liability for the payment of any

fees, either those aowed or any fees additional to those amounts.

Expenses of witness served with a subpoena

A solicitor should be cognisant of the fact that costs wi not always be awarded

in favour of their client, even where the client is successful in their claim or

defence of the maer.

In the context of court proceedings, it is important to be mindful of the vital

function the medical profession performs in society. Every eort should

be made to accommodate medical practitioners in standby and aendance

arrangements. Where it is not possible to reach an agreement with respect to

aendance in court of a medical practitioner, a subpoena wi have to be served.

On these occasions, a medical practitioner is entitled to the usual aendance fee

as would be payable on adjudication.

If the solicitor is of the opinion that their client should not have to bear the

expenses of a particular witness on whom the solicitor has served a subpoena,

they should bring the maer to the aention of the court and seek an order for

costs in favour of their client in relation to those expenses.

The solicitor as witness

It may be unwise for a solicitor to be a witness in their own case or to remain in

a case where a member of their rm is caed as a witness.

However, a solicitor may give evidence in a case where either the evidence to

be given is purely formal, such as the witnessing of deeds in civil cases or, in

criminal cases, where evidence relating to aendance at a garda station or prison

is required.

In making the decision as to whether to continue or cease acting, consideration

should be given to the nature of the case, the nature of the evidence, and the

position of the client, should the solicitor cease to act. However, the interest of

justice, real or perceived, should be the deciding factor.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

68 69

COMMUNICATION WITH THE COURT

A solicitor should not discuss the merits of a case with the judge, registrar, clerk

or other ocial before whom a case is pending. Where during the case a wrien

communication to the court is required, the solicitor should deliver a copy of

the communication to the opposing party. Where an oral communication is

proper, adequate notice to the opposing party should be given.

If, aer the conclusion of the evidence and legal argument in a civil maer,

judgment is reserved and the solicitor then discovers a proposition of law that is

directly relevant and wishes to bring it to the aention of the judge, the solicitor

on the other side ought to concur in their so doing, even if they know that the

proposition is against them. If they do not concur, the rst solicitor may submit

the additional authority to the judge in writing and that solicitor should, at the

same time, send the second solicitor a copy of the leer they have sent to the judge.

Compliance with orders of the court

A solicitor is obliged to comply with an order of the court, and failure to do so

may amount to contempt of court.

A solicitor should not aid or assist a client where the client refuses to obey an

order of the court.

A solicitor is bound to honour an undertaking given to the court.

Dress in court

A solicitor appearing in court should always dress in a manner that shows

respect for the dignity and formality of the court.

Publicity for pending litigation or proceedings

A solicitor should avoid any comment, in advance of any determination, that

would be prejudicial to the administration of justice.

Solicitor instructed in professional negligence proceedings

A solicitor should not make aegations of professional negligence or issue

proceedings aeging professional negligence in the absence of supportive

independent expert evidence.

69 Cooke v Cronin [1999] IESC 54.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

To sustain an aegation of professional negligence, it is necessary to provide

evidence or a report by an independent expert.

ere may be circumstances

where it is necessary to issue a protective writ without an expert witness report,

to protect the claim from expiration pursuant to the statute of limitations and

provide an opportunity for the expert witness report/evidence to be obtained.

Funding of litigation with a nancial interest in the outcome is

prohibited

e law precludes parties unconnected with the proceedings from funding

litigation in return for a benet in the outcome.

Duty of solicitors to encourage mediation and ADR

Solicitors have a statutory duty to advise on the merits of mediation.

70 Greene v Triangle Developments & Anor [2008] IEHC 52: “It would be most inappropriate for any

party to issue proceedings aeging professional negligence or join a third party against whom

professional negligence was to be aeged, without having a sucient expert opinion available that

would aow an assessment to be made to the eect that there was a statable case for the professional

negligence intended to be asserted.”

71 Cooke v Cronin [1999] IESC 54.

72 Persona Digital Telephony Limited and Another v e Minister for Public Enterprise, Ireland and Others

[2017] IESC 27.

73 Divorce cases under section 6 and 7 of the Family Law (Divorce) Act 1996 and prior to the issue of civil

proceedings advise the client on mediation pursuant to section 14 of the Mediation Act 2017.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

70 71

CRIMINAL CASES

The solicitor prosecutor

In a criminal case, the responsibilities of the advocate acting for the prosecution

are dierent from those of the advocate acting for the defence:

1) e advocate who is prosecuting must ensure that every material point is

made that supports or weakens the prosecution case. e advocate should

not regard their task as one of winning the case.

2) e advocate must present the case against the accused relentlessly but with

scrupulous fairness.

3) e names of a witnesses and a material facts must be disclosed to the

court, irrespective of whether the witnesses and facts are detrimental to the

prosecution case.

4) e prosecutor must state the relevant facts dispassionately.

5) e prosecutor, particularly where the accused is unrepresented, should

bring to the aention of the court any mitigating circumstances.

6) e prosecutor must not in their opening address state as a fact anything

that they know, or ought to know, they are not in a position to prove.

7) e prosecutor must not deliberately withhold anything that tends to favour

the accused.

8) e prosecutor must reveal a relevant cases and statutory provisions

known to them, irrespective of whether the information is to the benet of

the prosecution case, and this is so whether or not the prosecutor has been

caed upon to argue the particular law in question.

9) e prosecutor must not conceal from an opponent facts that are within the

knowledge of the prosecutor and that are inconsistent with the facts that the

prosecutor has presented to the court. Before commencement of the trial,

where a prosecutor obtains evidence that may assist the defence, or learns of

witnesses who may do so, the prosecutor must supply the defence with the

particulars of the evidence and the names of the witnesses. During the trial,

if the prosecutor obtains evidence that they do not intend to use and that

may assist the defence, they must give it to the defence. If the prosecutor

knows of a credible witness who can give evidence concerning material

facts that tend to show the accused to be innocent, they must either ca that

witness or make the witness statement available to the defence.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

Interviewing a witness for the other side

In a criminal case, it is recommended that the solicitor for the prosecution or

the defence, who may wish to interview (a) witnesses who have already given

evidence on deposition

or at the preliminary hearing in a prosecution for an

indictable oence, or (b) witnesses who it is known are to be caed as witnesses

for the other side, should communicate rst with the solicitor for the other side

informing them of their intention.

It may be a wise precaution in such circumstances for the interview on behalf of

the defence to take place in the presence of a representative of An Garda Síochána

who is not involved in the case.

The solicitor advocate for the accused

In a criminal case, the solicitor has a duty to ensure that the prosecution

discharges the onus placed upon it to prove the guilt of the accused.

Unless there are exceptional circumstances, a client’s privilege prevents the

solicitor from making a disclosure of privileged information without the

client’s consent. e defence advocate, unlike the advocate for the prosecution,

is under no duty of disclosure to the court or to the prosecution to correct any

information that may have been given to the court by the prosecution if the

correction would be to the detriment of the defendant. However, the advocate

should not indicate agreement with information that the prosecution has put

forward that the advocate knows to be incorrect. e advocate for the defence

is obliged to disclose to the prosecution and to the court a relevant cases and

statutory provisions relating to their client’s case but should not, subject to alibi

evidence, disclose any evidence in relation to their client’s defence.

Should the court put any question to the advocate for the defence as to the

character of the defendant, whether the character of the defendant is or is not

an issue, their reply should be that the question is not one for them to answer.

74 Witnesses can give evidence on deposition in a procedure dened by section 4F of the Criminal Proce-

dure Act 1967, as substituted by the Criminal Justice Act 1999.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

72 73

While a defence advocate should present every technical defence that is available

to the defendant, they should never present a defence other than one based upon

the facts of the case.

Duty of disclosure of previous convictions

Where the prosecution solicitor outlines to the court the accused’s previous

convictions, but this information is incorrect or incomplete to the knowledge of

the solicitor for the defence, that solicitor, if asked by the court to comment on

the list of previous convictions, should decline to comment.

When a solicitor is not asked to comment on the list of previous convictions, the

solicitor should not be seen to corroborate the incorrect information furnished

by the prosecution, as that would amount to positive deception.

Where an accused gives evidence to the court and, in so doing, accepts the list

of previous convictions given to the court, and which list is to the knowledge of

the advocate incorrect, that advocate must then cease their representation of the

accused.

Admission of guilt by client

In a criminal case, it is a maer for the jury or the court, not for the advocate for

the defence, to decide the guilt or innocence of their client.

It is the duty of the solicitor for the defence to put the prosecution on proof of

what it aeges, and the solicitor may submit to the court that there is insucient

evidence adduced to justify a conviction.

Where, prior to the commencement or during the course of a criminal case, a

client admits to their solicitor that they are guilty of the charge, it is we seled

that the solicitor need only decline to act in such proceedings if the client

is insistent on giving evidence to deny such guilt or requires the making of a

statement asserting their innocence. Where a client has admied their guilt to

their solicitor but wi not be giving evidence, their solicitor may continue to act

for them. e solicitor for the defence may also advance any other defence that

obliges the prosecution to prove guilt other than protesting a client’s innocence.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

Withdrawal where a client is in custody

A solicitor cannot withdraw from a case where they have accepted instructions

to appear in court for a client who is in custody. e solicitor must obtain

permission from the court before which that client is next scheduled to appear

to withdraw from the case.

Prisoners in courthouse cells

When a solicitor requires to have a consultation with a prisoner in custody in

ces within the courthouse or in the immediate vicinity of a court, the solicitor

should inform the court and seek to have the accused’s case put back to enable a

consultation take place.

The solicitor standing bail

A solicitor should not stand bail for a person for whom they or their rm act.

It is unlawful for any person, including a solicitor, to be a party to a bargain to

indemnify a surety for bail.

Solicitors providing legal services in garda stations

When advising a person in garda detention or aending an interview in a garda

station, solicitors should consider the guidance available from the Law Society

and be cognisant of the Code of Practice on Access to a Solicitor by Persons in Garda

Custody, issued by An Garda Síochána.

75 Section 215 of the Legal Services Regulation Act 2015.

76 Guidance for solicitors providing legal services in garda stations (lawsociety.ie).

77 Code of Practice on Access to a Solicitor by Persons in Garda Custody.

CHAPTER 5 THE SOLICITOR AND THEIR RELATIONSHIP WITH THE COURT

74 75

CHAPTER 6

UNDERTAKINGS, THE SOLICITOR AND

THEIR RELATIONSHIP WITH THIRD

PARTIES, AND THE LSRA

A solicitor, in the course of the discharge of their duties, wi deal with third

parties, including coeagues, clients, lay litigants, the Law Society, the LSRA,

Government agencies, and the courts.

PROFESSIONAL STANDARD OF CONDUCT

A solicitor must be honest and courteous in a their dealings.

A solicitor, whether in their professional capacity or otherwise, must not engage

in any conduct that is fraudulent, deceitful, or in any way contrary to their

position as a solicitor and as an ocer of the court. A solicitor should not use

their position to take unfair advantage either for themselves or for any other

person. A solicitor ought to be alert to exploitation of minors or vulnerable

persons and give due consideration to reporting obligations of any such

activities to statutory authorities.

INDUCEMENTS

A solicitor must not encourage or oer inducements to any third party with a

view to obtaining instructions from any person.

78 ‘Prohibition with respect to introduction of business’ – section 62 of the Solicitors Act 1954; SI 644 of

2020, Legal Services Regulation Act 2015 (Advertising) Regulations.

CHAPTER 6

UNDERTAKINGS, THE SOLICITOR AND

THEIR RELATIONSHIP WITH THIRD PARTIES,

AND THE LSRA

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

78 79

PERSONS ACTING WITHOUT LEGAL REPRESENTATION

Where a solicitor acting for a client in any maer nds that the other party has

opted not to have legal representation, the solicitor is not bound to assist the

other party. e solicitor should recommend in writing that the other party

obtain legal representation and make clear that the solicitor wi only protect

the interests of their own client.

Conveyancing matters

In conveyancing maers, where the vendor’s solicitor is not aware of the name

and address of the solicitor for the purchaser, if there is no estate agent involved

in the maer, the vendor’s solicitor may write to the purchaser asking the

purchaser for the name and address of their solicitor.

When dealing with a lay conveyancer, the solicitor should explain to their

own client the potential diculties that may be encountered. For instance,

the solicitor cannot accept undertakings in relation to any maer. Additional

legal costs may be incurred because it is likely that extra time and work wi be

involved. If the solicitor is acting on behalf of the purchaser, the deposit should

not be handed over to the lay vendor. An alternative stakeholder who would be

acceptable to both parties should be sought, so that a beer procedure for the

protection of the purchaser’s deposit can be put in place. A reputable person

known to both parties might be found, or an arrangement could be made with a

nancial institution.

Litigation matters

In litigation maers, where the opposing party acts pro se

it is likely that the

solicitor’s own client wi incur additional legal costs, as the opposing party may

not be familiar with the rules of court, which may result in additional time and

expense in prosecuting or defending the case.

While the solicitor is not under any duty to assist a third party other than as set

out above, or as directed by the court, a solicitor should behave in a professional

manner in a their dealings.

79 Pro se is latin for or “on one’s own behalf ”

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

LITIGATION – INITIATING LETTERS AND CORRESPONDENCE

Where a solicitor is instructed to coect a liquidated debt, it is improper to

demand the costs of the leer that they send to the debtor, as the costs of that

leer are not part of the debt. It is also improper to imply in such a leer that

the debtor wi have to pay the costs of the litigation, if any, that may foow, as

that wi be a maer for the court to decide upon. However, a solicitor may state

in such correspondence that, in the event of proceedings proving necessary, the

leer wi be used as evidence in an application for costs to be awarded against

the debtor.

Before a solicitor institutes proceedings, a preliminary leer is usuay wrien

to the intended defendant by the solicitor acting for the intended plainti,

even though the costs of such leer may not be recoverable. ere may be

circumstances where it is necessary to issue proceedings without a warning

leer. A solicitor may wish, as a maer of courtesy, to include a leer with the

proceedings to explain the reason why this was necessary.

Solicitors should maintain a professional stance in relation to correspondence.

Correspondence should not be unnecessarily acrimonious. A solicitor is not a

mere conduit for their client’s instructions and should not purport to represent

their clients’ instructions as facts.

A solicitor should remember that they are an ocer of the court and should

not act as a medium for animosity that is unhelpful to the orderly conduct of

litigation. e solicitor should apply professional judgement to the content of

correspondence.

While it is at times necessary to set out in correspondence dicult maers or

problems with the behaviour of the other party, it is preferable to set out the

detail in a factual way and without the use of provocative language. Should a

disagreement arise between solicitors themselves for whatever reason, this

should not be dealt with in the course of the case but resolved outside it. It

is unfair to the parties engaged in litigation for their solicitors to act in this

manner, and is in any event unprofessional.

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

80 81

UNDERTAKINGS

General

An undertaking is a solemn promise by a solicitor to a third party.

“e solicitor’s undertaking is part of the hard currency of the solicitor’s profession. e

trust in faith proposed in such undertakings are an indispensable part of the conduct of

the legal business and transactions without which the profession and the public it serves

would be the poorer. e undertaking is based on the absolute honesty and integrity

expected of a solicitor in his dealings with his client, other parties to a transaction and

the courts. A solicitor is an oce of the court. His/her word must be his/her bond. If a

solicitor undertakes to do something it must be done.”

It is a promise given with the consent and authority of a client to do something

or give something at a date in the future. An undertaking given by a member of

sta or assistant solicitor wi bind the partners of the practice. Prior to giving

an undertaking, it is strongly recommended that wrien authority and consent

of the client be obtained.

If a solicitor gives an undertaking ‘on behalf of ’ a client and does not thereby

intend to give a professional undertaking, this should be clearly stated. If there is

any ambiguity, it may be interpreted by a court or the Legal Services Regulatory

Authority (LSRA) in favour of the recipient. Instead, the undertaking should be

addressed directly from the client to the recipient and should be signed by the

client.

In addition to the LSRA’s jurisdiction to enforce undertakings as a maer of

conduct, the High Court, by virtue of its inherent jurisdiction over its ocers,

has power of enforcement in respect of undertakings.

A solicitor is required to honour the terms of an undertaking as a maer of

professional conduct. A breach of an undertaking is a maer of professional

misconduct.

80 Law Society v Tobin, Court of Appeal [2017] IE CA 215. Peart J

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

General guidance on undertakings

• Undertakings should be recorded and, if in writing, should be signed by the

principal, partner of the rm, or authorised person of the rm.

• An accountable trust receipt (ATR) is a form of undertaking.

• Undertakings should only be provided where absolutely necessary.

• An undertaking is usuay honoured only as between the giver and the

recipient or an assignee of the recipient.

• An ambiguous undertaking is generay construed by the courts in favour of

the recipient.

• An undertaking does not have to constitute a legal contract to be enforceable

as a maer of professional conduct.

• An undertaking is binding even if it is to do something or give something

outside the solicitor’s control.

• A solicitor is responsible for honouring an undertaking given by a member

of the solicitor’s sta, whether or not such sta member is admied to the

Ro of Solicitors.

• Where a solicitor in partnership gives an undertaking, a partners are

responsible for its performance.

• A solicitor cannot avoid liability on an undertaking by pleading that to

honour it would be a breach of duty owed to the client.

• A solicitor who gives an undertaking that is expressed to be dependent upon

the happening of a future event should notify the recipient promptly if it

becomes clear that the event wi not occur.

• An undertaking should not be given by a solicitor as an inducement to a

client to secure that client’s business.

• A solicitor should not seek an undertaking from another solicitor that the

rst solicitor knows, or ought to know, should not be given – an example

would be where the maer is out of the solicitor’s control.

• Prior to accepting an undertaking, a solicitor should consider whether it is

wise to do so and whether the undertaking is suciently clear.

• It is good practice to retain a copy of any undertaking given, along with

evidence of discharge, even aer the transaction has concluded.

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

82 83

• It is recommended that rms should keep a register of undertakings for ease

of identifying and complying with overdue undertakings. In the case of rms

that do not have a register at the present time, the Law Society recommends

that a register is drawn up.

Responsibility for undertakings is personal to the solicitor in a cases.

Undertakings in respect of monies held on behalf of minors.

e courts have an exclusive jurisdiction in relation to the determination of minors’

actions and the disbursement of monies paid, whether on foot of a judgment,

compromise, or selement of such actions.

Accordingly, no undertaking should

be given in relation to funds to be recovered on behalf of a minor.

In-house and public-sector solicitor

e general principles applicable to undertakings apply to the in-house and

public-sector solicitor. e solicitor is responsible for undertakings given by

themselves and for those of the sta who report to that solicitor.

As an employee, the functions delegated to a solicitor may be limited, and

therefore undertakings should be limited to those delegated functions. If the

carrying out of some function is reserved to another employee or category of

employees in the organisation, that maer should not be the subject of an

undertaking given by the solicitor, because it is outside the solicitor’s control.

If it is not certain that a function is or wi remain under the solicitor’s control,

specic delegation of the function should be sought before the undertaking is

given. If the solicitor’s authority to give professional undertakings as solicitor

on behalf of the organisation is not clearly dened, the authority should be

specicay delegated in writing.

81 ‘Notice to a practising solicitors – Undertakings’, Gazee, March 2011 (see www.gazee.ie); ‘Under-

takings – notice to a solicitors’ – Practice Note, Gazee, Aug/Sept 2013 (see www.gazee.ie); ‘VHI

undertakings – should I sign the standard format of undertaking?’ – Medico-Legal Recommendations,

Law Society, November 2008.

82 Order 22, Superior Court Rules; SI no 99 of 1990, Solicitors (Practice Conduct and Discipline) Regula-

tions; ‘Prohibition on parental indemnity selements in personal injury cases’ – Practice Note, Gazee,

December 2010 (see www.gazee.ie).

83 ‘Guide for Solicitors employed in the Corporate and Public Services Sectors’ – Law Society, May 2012

(see www.lawsociety.ie).

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

FEES AND EXPENSES OF PROFESSIONAL AND OTHER SERVICE

PROVIDERS

A solicitor acting on behalf of a client does not incur personal or legal

responsibility for the fees and/or expenses of a third-party professional or other

service provider engaged on behalf of a client. is includes fees and expenses

to provide a service or to appear in court, whether on foot of a subpoena or

otherwise. Unless there is agreement to the contrary, the solicitor is acting as an

agent for a disclosed principal, that is, the client.

e solicitor should use reasonable endeavours to ensure that the fees are paid

to the professional at the earliest opportunity. is may not be possible if, for

instance, the client refuses to authorise the release of the necessary funds.

Where a solicitor acts for a plainti in a civil action in which medical treatment

or other professional fees are recovered as part of the special damages and where

no undertaking has been given by the solicitor to pay same, it is the obligation

of the solicitor to pay a damages received to the client or to make payments

according to the client’s instructions.

It is recommended that, when engaging a professional or other service provider

or serving a subpoena on a professional witness, the solicitor should advise the

individual that they are doing so solely as the agent of a disclosed principal.

A solicitor should ensure that adequate notice is given and suitable arrangements

made in respect of aendances by witnesses who are aending court on foot of

a subpoena or otherwise.

Some members of the medical profession now require solicitors to provide an

undertaking to the eect that the solicitor wi be responsible for the standby

and court aendance fees. Solicitors are under no obligation to provide such

undertakings. However, where an undertaking is given, the solicitor wi be

obliged to comply with the undertaking.

Prior wrien authority of the client

should be sought before providing such undertaking, where practicable.

84 ‘Compendium of Frequently Asked Litigation estions’ – Law Society, November 2009

(see www.lawsociety.ie).

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

84 85

LEGAL SERVICES REGULATORY AUTHORITY

A solicitor should reply promptly and, in any event, within the time permied, to

correspondence received from the LSRA, howsoever the correspondence arises.

Under no circumstances should the correspondence be ignored or overlooked.

A solicitor should aend meetings of the LSRA if requested to do so, unless

excused beforehand.

Failure to engage with the LSRA could result in a referral to the Legal Practitioners’

Disciplinary Tribunal.

LAW SOCIETY OF IRELAND

A solicitor should reply promptly to correspondence from the Regulation

Department of the Law Society, howsoever the correspondence arises. Under no

circumstances should the correspondence be ignored or overlooked.

A solicitor should aend meetings of the Law Society Regulation of Practice

Commiee if requested to do so, unless excused beforehand.

Failure to engage with the Law Society could result in a referral to the Legal

Practitioners’ Disciplinary Tribunal.

DISCRIMINATION

A solicitor should not discriminate against any person, whether clients, counsel,

professional or other witnesses, or opposing parties because of their gender,

civil status, family status, sexual orientation, religion, age, disability, race, or

membership of the Traveer community.

85 Equal Status Act 2000, as amended.

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

RECORDING CONVERSATIONS

A solicitor should not record a conversation whether in person, or over the

telephone, or via a video platform without the express consent of the other

party.

Recording of any form is prohibited by any party within the precinct of the

courts.

ADMINISTRATION OF OATHS

Solicitors holding a current practising certicate are entitled to administer

oaths and statutory declarations. ey have the same obligations as apply to

Commissioners for Oaths.

86 Interception of Postal Packets and Telecommunications (Regulation) Act 1993, the General Data

Protection Regulation (GDPR), together with an individual’s constitutional right to privacy, and their

rights under European Convention on Human Rights.

87 ‘Administration of oaths and taking of adavits’ – section 72 of the Solicitors (Amendment) Act

1994; ‘Memorandum from Chief Justice re Section 72 of the Solicitors (Amendment) Act 1994’ (see

Law Directory annuay, where the memorandum is included in the reference material section). is

is subject to change (see section 21 of the Civil and Criminal Misceaneous Provisions Act 2020).

‘Administration of oaths by solicitors’ – Practice Note, Gazee, June 2005 (see www.gazee.ie).

CHAPTER 6 UNDERTAKINGS, THE SOLICITOR AND THEIR RELATIONSHIP WITH THIRD PARTIES

86 87

CHAPTER 7

THE SOLICITOR AND THEIR

RELATIONSHIP WITH OTHER SOLICITORS

PROFESSIONAL STANDARD OF CONDUCT

General

A solicitor should be honest in a their dealings with other solicitors and act

towards them with frankness and good faith, consistent with their overriding

duty to the client. Solicitors should promote a culture that recognises the bona

des of coeagues, even in situations that may be adversarial.

A solicitor should maintain personal integrity and practice good manners and

courtesy towards other members of the profession or their sta.

A solicitor should honour their word given either personay, by partners, or by

any other member of the solicitor’s rm, and whether or not given in writing.

However, in maers such as undertakings, proper consideration should be given

to whether the acceptance of an oral statement only is appropriate. It should be

noted that, in the event of disciplinary proceedings being invoked to compel

compliance with an undertaking, a copy of the wrien undertaking is usuay

required.

A solicitor should be cognisant of the tone of correspondence and should not

write oensive leers to other members of the profession.

Threat by one solicitor to sue the opposing solicitor personally

A solicitor should not threaten to sue an opposing solicitor personay for costs

that may be awarded against their plainti-client. Such a threat has no basis in

law and, accordingly, it is not appropriate to make such a threat.

88 ‘reat by a solicitor to sue an opposing solicitor personay’ – Practice Note, Gazee, March 2012 (see

www.gazee.ie).

CHAPTER 7

THE SOLICITOR AND THEIR RELATIONSHIP

WITH OTHER SOLICITORS

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

90 91

Amendments to documents made by solicitor on other side

If amendments are made to a dra document by a solicitor for one party, the

solicitor for the other party should be alerted to the amendments. is would

apply, for instance, if changes were made to the terms of a conveyancing contract,

or a map that forms part of that contract.

COMMUNICATING WITH THE CLIENT OF ANOTHER SOLICITOR

General

A solicitor should not interview or otherwise communicate with any party

on the other side of a maer who, to the solicitor’s knowledge, has retained

another solicitor to act in the maer about which the rst solicitor wishes to

communicate, except with that solicitor’s consent. However, in exceptional

circumstances, this general rule may not apply. For instance, where a solicitor

has failed to reply in writing to correspondence from another solicitor, then the

other solicitor may be justied in writing directly to the client of that solicitor. A

solicitor who intends to write to the client of another solicitor should rst warn

that solicitor in writing of their intention to do so.

Client seeking a second opinion

A solicitor may give preliminary advices to a client who seeks a second opinion,

on a maer in which the client has already instructed another solicitor, whether

or not they intend to change solicitors. If the second solicitor is then given

instructions to act in the maer, the rst solicitor should be notied without

delay and should cease to act.

The client of an in-house or public-sector solicitor

Where the other solicitor in a case or transaction is a solicitor employed in-

house in an organisation or where applicable in the public sector, the employer

of the in-house solicitor or the public-sector solicitor is usuay that solicitor’s

client. If there is ongoing correspondence with the in-house or the public-

sector solicitor, a communications should be directed to that solicitor. Other

89 ‘Amendments to Conveyancing Contract before execution by a Purchaser’ – Practice Note, Gazee,

October 1993.

90 For further guidance on the recommended procedures for transfer of client les, see ‘Transferring Files

Between Solicitors’, Guidance and Ethics Commiee Practice Note, August 2020.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

personnel in the organisation should not be contacted directly. Otherwise, the

proper involvement of the in-house or public-sector solicitor in the maer is

aected.

‘WITHOUT PREJUDICE’ COMMUNICATIONS BETWEEN

SOLICITORS

Communications between solicitors for opposing parties or between one solicitor

and the opposing party are not privileged, since they are not condential unless

there is an express or implied agreement that they should be – for example, in

circumstances where leers are wrien ‘without prejudice’ for the purpose of

making admissions, acknowledgements, concessions or oers, with a view to

possible selement.

e phrase ‘without prejudice’, when used in correspondence, means that the

correspondence is without prejudice to the writer’s position if the terms of the

admissions, acknowledgements, concessions or oers set out are not accepted by

the party to whom the correspondence is addressed. It precludes the production

of that correspondence as evidence of any information thus imparted.

is status usuay only applies where the words are used in the course of bona

de negotiations for the selement of disputes. If agreement is reached at the

conclusion of negotiations, the privilege ceases to aach to the correspondence,

and the correspondence or any oral statements arising therefrom may be

adduced in proof of the agreement.

SUPPLYING INFORMATION ON REQUEST TO ANOTHER

SOLICITOR

A solicitor should only supply information concerning documents in their

possession, or provide information on a client’s le to another solicitor, on

receipt of wrien instructions from the client. Provision should be made for

91 ‘Communication with the client of another solicitor: an in-house solicitor’ – Practice Note, Gazee, Jan/

Feb 1998 and April 2012.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

92 93

payment of the solicitor’s costs for so doing. is course of action is subject

to any question of privilege of the client and the interests of the client being

protected.

COSTS OF SOLICITOR AGENT

A rm who instructs a solicitor agent should ensure that the solicitor agent is

paid at the earliest opportunity. e rm who instructs the agent solicitor is

responsible for paying the costs of the agent solicitor.

The solicitor’s common law lien – general

At common law, a solicitor can exercise a lien on the les, money, unencumbered

deeds, documents, or other property of a client, for outstanding costs and

outlays due by the client to the solicitor. A lien can be exercised on a the les

of a particular client if there are costs outstanding on one of those les. For the

avoidance of doubt, if the property is subject to a mortgage and the solicitor has

given an undertaking to a nancial institution, the solicitor cannot exercise a

lien over the deeds.

e issue of the exercise of a lien usuay arises where a le is being transferred

from one solicitor to another or to the client themselves.

Lien where retainer discharged by solicitor

Where a solicitor is exercising a lien on a le in a litigation case, where the maer

is before the court, and it is the solicitor who has terminated the contract with

the client, the solicitor should be aware that the client may make an application

to court for the release of the le to aow the litigation to proceed. e court may

order the release of the le, subject to the solicitor’s lien, in those circumstances.

As a consequence, this may result in the lien being of no value to the solicitor.

In other cases, the solicitor’s right to exercise a lien may be chaenged by clients

who then bring the maer before the courts. ey may claim that their rights are

92 See Chapter 10, ‘e Remuneration of the Solicitor – e Solicitor’s Lien on Monies’; Re Capital Fire

Insurance Association (1883) 24 Ch D 408, Re Audley Ha Coon Spinning Co (1886) LR 6Eq 245.

93 Ahern and Others v Minister for Agriculture and Food, Ireland and e Aorney General [2008] IEHC

286.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

being prejudiced by the exercise of the lien, or that their right to pursue justice

in the courts, or to complete a transaction, outweighs the solicitor’s right to

have security for their fees.

In the context of the investigation by the Legal Services Regulatory Authority of

a complaint of inadequate services against a solicitor, if the complaint is upheld,

the Authority may direct the transfer of any documents, even if they are subject

to the solicitor’s lien.

No lien in certain circumstances

a) No solicitor’s lien exists over a wi.

b) No solicitor’s lien exists over les, money, documents, or papers held on

trust.

c) No solicitor’s lien exists over money or deeds subject to an undertaking or

subject to an accountable trust receipt.

d) No solicitor’s lien exists over money held by the solicitor for the purpose of

transmiing it to a third party.

e) No solicitor’s lien exists over monies held by the solicitor as stakeholder.

f ) A lien for a debt due can continue to be exercised even aer the period when

proceedings for the recovery of the debt would be statute barred has expired.

However, a lien cannot arise if a debt has already become statute barred.

g) Where a solicitor holds documents of a former client under the solicitor’s

common law lien for undischarged costs and hands them to another

solicitor who is then acting for that client, subject to and without prejudice

to the rst solicitor’s lien for costs, the other solicitor should return them on

demand to the solicitor claiming the lien, as long as the lien subsists.

94 Section 60(6) of the Legal Services Regulation Act 2015.

95 See Chapter 10, ‘e Remuneration of the Solicitor – e Solicitor’s Lien on Monies’.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

94 95

TRANSFER OF FILES BETWEEN SOLICITORS

A courteous request for les and a prompt response is essential for a smooth

handover of les between solicitors.

Unless a solicitor is agreeable to do so, there is no reason why the rst solicitor

should continue to fund a case aer the client has le that solicitor. If costs are

due, a bi of costs should be furnished without delay. Costs may be agreed,

mediated, or adjudicated. Contingency arrangements are determined if the client

moves to another solicitor.

It is implied in these contingency fee arrangements

that they are conditional on the rst solicitor continuing to have prosecution of

the case. If the client terminated the retainer, the rst solicitor wi be entitled to

their fees for the work done.

Undertaking in respect of payment of costs

When a le is transferred to another rm, the rst solicitor may opt to accept

an undertaking in respect of the payment of costs as an alternative security to

the solicitor’s common law lien. However, there is no obligation upon the rst

solicitor to accept such an undertaking.

It is advisable for a solicitor who is the second solicitor instructed by a client,

and who is giving an undertaking to pay a rst solicitor’s costs, to qualify the

undertaking to say, rstly, that it is conditional on the second solicitor not being

discharged by the client and, secondly, to say it is conditional on sucient

monies coming into the solicitor’s control to pay the costs. Other qualications

as necessary may be made.

In cases where an undertaking in respect of the payment of costs is being

accepted by the rst solicitor, a outlays paid should be discharged immediately

to the rst solicitor.

96 To be read in conjunction with Chapter 10, ‘Restriction on Calculation of Charges as a Percentage of

Damages’.

97 ‘Transferring Files between Solicitors’ – Practice Note, Gazee, revised edition 2020 (see www.

lawsociety.ie).

98 ‘Undertakings given on the transfer of a le in respect of the payment of the rst solicitor’s costs’ –

Practice Note, Gazee, October 2010.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

Undertakings furnished by rst solicitor

On the transfer of a le to a new rm, the rst solicitor should be released from

undertakings given to third parties. is wi be subject to the consent of the

recipient of the undertaking.

In a situation where a client wishes to transfer their business from one solicitor

to another, and the rst solicitor has given an undertaking to a third party,

the law of principal and agent provides that, in this instance, because the rst

solicitor has undertaken a personal liability on behalf of the client, the client

cannot determine the retainer without the rst solicitor’s consent.

e solicitor may decide to consent to the determination of their retainer, subject

to a formal release of the undertaking by the recipient of the undertaking.

A solicitor should not cooperate with a client who seeks to leave a solicitor with

an outstanding undertaking.

The le belongs to the client

Once the fees and outlay of a solicitor have been paid, the le belongs to the

client.

Copying the client’s le

When a le is being transferred, solicitors should be mindful of their obligation

to retain a copy of the le for, at a minimum, the relevant statutory periods

and to ensure compliance with the Solicitors Accounts Regulations. is copying

should be at the transferring solicitor’s own expense.

100

e le transferred should include instructions, briefs, copies of correspondence

wrien to third parties, and documents prepared by third parties for the benet

of the client. Any item that deals with the substance of the maer and that

would assist the new solicitor should be included. Certain papers belong to the

previous solicitor and may be retained by them. ese include leers, papers,

and documents prepared by that solicitor for their own benet and for which

they have not charged and do not intend to charge.

99 ‘Data Retention and Destruction of Paper and Electronic Files’, Guidance and Ethics Commiee 2019.

100 SI no 516 of 2014, Solicitor Accounts Regulations 2014.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

96 97

Notice of change of solicitor to the courts

When a solicitor wishes to come on record for a client, the appropriate notice of

change of solicitor to the court, the opposite party, and the solicitor discharged

must be led and served before the notice takes eect.

Proceeding without the le

Proceeding without the le is not recommended, but this may be necessary in

certain circumstances.

Payment of rst solicitor’s fees

A solicitor who has been engaged by a client is entitled to their costs and to be

paid by that client for a work properly done by them. Where a client discharges

one solicitor and engages the services of a second solicitor, the second solicitor

should ensure, in their initial discussions with the client, that the client fuy

understands their obligation to pay a costs due for work properly done by the

rst solicitor. e second solicitor wi usuay endeavour to ensure that such

costs are discharged by the client, but may agree with the client that the client

wi deal directly with their former solicitor in relation to the maer.

Employee leaving a rm or dissolution of a partnership

An employee leaving a rm cannot, without formal authority, take the les

of clients, even the les of clients introduced by the employee. If a partner

leaves a rm, or if the partnership is dissolved, the transfer of les is a maer

for agreement between the former partners, subject to the instructions of the

clients. If there is a continuing rm, it is recommended that les remain with

the continuing rm until the client directs otherwise.

On receipt of an authority for the transfer of a le, there is no restriction on a

solicitor rst instructed in a maer approaching the client to seek an explanation

of the reasons for the determination of the retainer.

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

PAYMENT FOR ASSISTANT SOLICITORS’ PRACTISING

CERTIFICATES

It is the obligation of each solicitor to ensure that they have a current practising

certicate in place.

101

It is a maer of contract between the principal or partners

of a rm and the solicitor employees of that rm whether the practising

certicates of assistant solicitors are paid for by the rm.

It is both professional misconduct and a criminal oence for a solicitor to

provide legal services without holding a current practising certicate issued by

the Law Society.

102

A rm may not charge fees for legal services provided by a

solicitor who does not hold a current practising certicate. It is recommended

that rm owners ensure that a solicitors within their rm have applied for and

been issued with a practising certicate on an annual basis.

However, where a rm employs an assistant solicitor who holds a practising

certicate paid for by another rm in which the assistant was previously

employed, it is good practice that the apportioned cost for the period when the

solicitor is employed by the second rm should be refunded to the rst rm.

SERIOUS MISCONDUCT BY ANOTHER SOLICITOR

If a solicitor is of the opinion that another solicitor is engaged in serious

misconduct, this should be brought to the aention of the Legal Services

Regulatory Authority. If this involves disclosure of a client’s aairs, the client’s

consent should be obtained in advance.

ere is no obligation to bring any maer to the aention of the Authority if it

comes to a solicitor’s notice while assisting a coeague as a panel member of a

recognised assistance scheme.

103

101 Solicitors Acts 1954-2015 and Solicitors Practising Certicate Regulations made thereunder.

102 It is professional misconduct and a criminal oence for a solicitor (other than a solicitor in the fu-time

service of the State or a solicitor solely engaging in conveyancing services for a non-solicitor employer)

to practise, or hold themselves out as a solicitor entitled to practise, without a practising certicate. For

further reading see Guidance Notes for Practising Certifcates, alifying Certicates and Service of State

Applications on www.lawsociety.ie/Solicitors/Practising.

103 Panel to Assist Solicitors in Regulatory Diculty (see www.lawsociety.ie).

CHAPTER 7 THE SOLICITOR AND THEIR RELATIONSHIP WITH OTHER SOLICITORS

98 99

REFERRAL OF FILES TO A COLLEAGUE

Where a client is referred to a solicitor, for instance, because the rst solicitor

has a conict of interest, the basis of the arrangement should be that the second

solicitor should not take advantage of the trust placed in them by their coeague.

CHAPTER 8

THE SOLICITOR AND THEIR

RELATIONSHIP WITH COUNSEL

101

RETENTION OF COUNSEL

A solicitor acting on a general retainer from a client is not entitled, without

instructions from the client, to formay seek the advice of, or to instruct,

counsel. at instruction should be conrmed in writing by the solicitor to the

client and by the solicitor to counsel. A wrien estimate of fees should be sought

and obtained from counsel and provided to the client.

104

INSTRUCTIONS TO COUNSEL

In a cases where counsel is instructed, a solicitor should always be conscious

that counsel can only be as eective as the instructions they receive. Counsel

should be instructed in a manner that ensures that counsel has a instructions

and relevant information that the solicitor holds, and which is or may be

necessary for counsel to represent the client’s interest properly within a

reasonable time frame. It is usual to prepare a statement of the case for counsel

outlining the circumstances of the maer, which is sent to counsel with a

relevant supporting documentation. It is the duty of a solicitor to brief counsel

adequately, properly, and completely.

Disengaging counsel

It is the duty of a solicitor to provide to counsel, within a reasonable time, a

further instructions and information that counsel reasonably requests for the

proper conduct of the case. It is the role of counsel to provide a professional

standard of work and service to each client in a timely and ecient manner.

Solicitors should use reasonable endeavours to ensure that counsel carries

104 Section 150(10), Legal Services Regulation Act 2015.

CHAPTER 8

THE SOLICITOR AND THEIR RELATIONSHIP

WITH COUNSEL

101

CHAPTER 8 THE SOLICITOR AND THEIR RELATIONSHIP WITH COUNSEL

102 103

out instructions within a reasonable time frame to prevent the maer from

becoming statute barred or liable to be struck out for want of prosecution.

Where appropriate, a solicitor should disengage counsel in order to instruct

another counsel in a timely fashion.

Where a court appearance is required by counsel, they should be aended in

court by their instructing solicitor or the solicitor’s agent, save insofar as such

aendance may be exempted by the court.

A solicitor should take care in the selection of counsel, and the choice should

be made with due regard to the expertise required for the maer. e solicitor

has a duty to consider whether the client’s best interests would be beer served

if represented by a dierent counsel and, if so, to advise the client to that eect.

When considering the advice of counsel, a solicitor should ensure that it

contains no obvious errors. If the advice conicts with previous advice, it wi be

necessary to seek clarication. Brieng counsel does not obviate the solicitor’s

duty of care to the client.

If the advice is that the solicitor takes certain actions, which the solicitor believes

would be contrary to their professional duties or their duties as an ocer of the

court, the solicitor should not foow that advice.

105

INFORMATION ABOUT COUNSEL’S FEES

Prior to engaging counsel, it is the duty of a solicitor to request information in

writing from counsel in respect of their fees and obtain the client’s agreement to

engage counsel on behalf of the client. Solicitors should familiarise themselves

with the provisions of the Legal Services Regulation Act 2015, including, but not

limited to section 150. Counsel’s fees are based upon commitments undertaken

and work done, irrespective of whether it involves an appearance in court. In

105 A solicitor is entitled to rely upon the advice of counsel who has been fuy and properly instructed in

the case. However, there are occasions when a solicitor’s duty may be to reject counsel’s advice if it is

thought to be “obviously or glaringly wrong” when it is his/her duty to reject it (Locke v Camberwe

HA[2002] Lloyd’s Rep. PN 23;Matrix Securities Ltd. v Goddard[1998] PNLR 290).

CHAPTER 8 THE SOLICITOR AND THEIR RELATIONSHIP WITH COUNSEL

103

marking a fee, they are entitled to consider a features of the instructions that

bear upon the commitment that they undertake.

If a solicitor has reasonable grounds for believing that the client is unlikely to be

in a position to pay counsel’s fees in the event of the case being lost or, if the case

is won, but the costs wi not be recoverable, counsel should be advised of this in

the initial leer of instruction or as soon as is practicable thereaer.

THE SOLICITOR’S LIABILITY FOR PROFESSIONAL FEES

A solicitor has no personal liability for counsel’s fees. is arises from the law of

principal and agent, which is the relationship that exists between solicitor and

client. Because the solicitor is an agent, the solicitor does not incur a personal

liability for the debts of a disclosed principal.

Funds received on behalf of counsel must be lodged to the solicitor’s client

account and retained there until paid over to counsel. A solicitor who has

received a fee from a client intended for counsel should pay such fee when it

fas due. A solicitor who instructs counsel should use reasonable endeavours to

ensure that counsel receives fees that are properly due and owing to them at the

earliest opportunity.

106

Relationship with counsel

Solicitors should always be alert to the fact that they retain and instruct counsel

on behalf of the client. What counsel say to the opposition or in court is said in

the solicitor’s name and in the name of the client, and it should be a true and

accurate representation of the facts.

When in communication with their client, a solicitor should not lay blame

unfairly on counsel for an unsatisfactory outcome of a case. A spirit of

coaboration and trust should exist between solicitor and counsel. In

circumstances where a client is being asked, through their solicitor, to agree

to replacement or additional counsel, the same procedures to comply with the

provisions of Section 150 apply.

106 D(K) v M(K) [2020] IEHC 520.

CHAPTER 8 THE SOLICITOR AND THEIR RELATIONSHIP WITH COUNSEL

104 105

Solicitors are reminded that counsel’s duty is to act in the best interests of each

client, within the limits the law permits. It is the solicitor’s duty to consider

whether it is in the client’s best interest that the client should be represented by

dierent counsel and, if so, advise their client to that eect.

105

CHAPTER 9

THE SOLICITOR IN PRACTICE

107

THE SUPERVISION OF THE SOLICITOR’S OFFICE

General

A solicitor practising as a sole principal is responsible for everything done in

that practice. In a rm, each partner is similarly liable on a joint and several

basis, subject to the terms of the Solicitors Acts. is includes the delivery of

legal services in compliance with the law and regulations governing a solicitor’s

practice.

A solicitor may delegate work to their sta in such manner as they consider

appropriate. However, a solicitor wi not escape responsibility for work carried

out in their oce by delegating the relevant maer to the sta employed by

them, even though they are qualied to do the work.

e oce of a solicitor should be supervised by the principal or partners of the

rm or by a qualied assistant. In the event of unavoidable absences, adequate

alternative arrangements for supervision should be made.

107

Branch oce

Solicitors who operate branch oces have a duty to ensure that there is adequate

supervision in those oces.

The in-house and public-sector solicitor’s duty of supervision

An in-house and public-sector solicitor should supervise sta for whom that

solicitor is responsible. e solicitor is professionay responsible for a acts

of their sta when they are carrying out work of a legal nature. Although the

solicitor’s sta in an organisation may also be answerable to other persons in the

107 SI no 516 of 2014, Solicitors Accounts Regulations 2014.

CHAPTER 9

THE SOLICITOR IN PRACTICE

107

CHAPTER 9 THE SOLICITOR IN PRACTICE

108 109

organisation, the duty of supervision is not in any way diluted for the solicitor

in relation to the legal work being carried out.

PROFESSIONAL NAMES, NAMEPLATES, AND PROFESSIONAL

NOTEPAPER

General

e use of professional names, nameplates, and notepaper is governed by

regulations.

108

e name of the practice should be the name, or one of the names

of the solicitors, or one or more of the present or former principals of the rm,

or such other name as is approved in writing by the Law Society.

Professional name of the solicitor employed in an organisation

An employed solicitor in the corporate sector may practise in the solicitor’s own

name, in the name of the employer, or under a business name. If the solicitor

practises in the solicitor’s own name, it is recommended that a clear indication

is given on the notepaper that the leer has issued from the legal department in

the employer organisation.

109

If the solicitor practises in the employer’s name, a clear indication should be

given on the notepaper that the leer issued from the solicitor’s practice within

the employer organisation.

110

Business name

A solicitor using a business name should ensure registration under the

Registration of Business Names Act 1963.

Access by a client to the stationery of a solicitor

A client should not have access to the stationery of a solicitor.

111

108 SI no 178 of 1996, Solicitors (Practice Conduct and Discipline) Regulations 1996; see also ‘Notice to

A Practising Solicitors: Practice Names’, Practice Note, 2011; see also section 131 of the Legal Services

Regulation Act 2015; section 3 of the Registration of Business Names Act 1963 sha not apply to a

limited liability partnership.

109 SI no 178 of 1996, Solicitors (Practice Conduct and Discipline) Regulations 1996

110 Guide for In House Solicitors employed in the Corporate or Public Sectors – Law Society, 2018.

111 ‘Use of Professional Notepaper in Debt Coection Maers’ – Practice Note, Gazee, December 1997.

CHAPTER 9 THE SOLICITOR IN PRACTICE

109

SERVICE COMPANIES

While there is no prohibition on a solicitor forming a service company for the

provision of administrative/secretarial services to support the operation of the

practice of that solicitor, solicitors should remain alert to the prohibition on

unqualied persons such as a service company acting as solicitor.

112

ADVERTISING

Advertising by solicitors is regulated by the Legal Services Regulatory

Authority.

113

When advertising, solicitors should ensure that the advertisement is not:

i) Likely to bring the legal profession into disrepute,

ii) In bad taste,

iii) Reecting unfavourably on another legal practitioner,

iv) False or misleading in any material respect,

v) Published in an inappropriate location, or

vi) Subject to clause (b) of the regulation, expressly or impliedly solicit,

encourage, or oer any inducement to any person or group or class of

persons to make claims for personal injuries or seek legal services in

connection with such claims.

114

TOUTING

A solicitor should not make a direct uninvited approach to any person with a

view to being instructed to provide legal services, where this approach is likely

to bring the solicitors’ profession into disrepute. Approaches should not be

made an inappropriate locations. For example, inappropriate locations may

include adjacent to a calamitous event or in the vicinity of a garda station,

prison, courthouse or hospital.

112 Section 64 of the Solicitors Act 1954, as amended.

113 Legal Services Regulation Act 2015 (Advertising) Regulations (SI no 644 of 2020).

114 Legal Services Regulation Act 2015 (Advertising) Regulations (SI no 644 of 2020).

CHAPTER 9 THE SOLICITOR IN PRACTICE

110 111

THE SOLICITOR ACTING FOR ASSOCIATIONS

Where a solicitor acts for an association such as a trade association, a residents’

association, or a trade union, they may also be asked to act for members of that

association or trade union. is is an acceptable practice, provided that there is

no conict of interest.

PROFESSIONAL INDEMNITY INSURANCE

A practising certicate wi not issue to a solicitor unless the solicitor provides

evidence of professional indemnity insurance or exemption therefrom. A

solicitor must ensure compliance with a professional indemnity insurance

regulations and the requirements of the Legal Services Regulation Authority

115

not only while in practice, but also aer ceasing practice in respect of cover.

116

ACCOUNTS REGULATIONS

General

e principal or partners of a rm must ensure compliance with a accounts

regulations. Partners have a joint and several responsibility in the maer. As

with a maers of practice, solicitors handling clients’ monies must act with

integrity, in the client’s best interests, and in the interests of the good reputation

of solicitors and the solicitors’ profession.

117

e accounts regulations are based on the foowing requirements:

• To keep clients’ money separate from money belonging to the solicitor or

the practice monies,

• To keep the clients’ money safely in a bank or nancial institution that is

situated within the State or has a branch in the State,

115 www.lsra.ie.

116 See www.lawsociety.ie.

See links to the consolidated Solicitors Acts: hps://revisedacts.lawreform.ie/eli/2015/act/65/front/

revised/en/html and www.lawsociety.ie/globalassets/documents/ecompendium/ecompendium-2020.

pdf; www.lawsociety.ie/Solicitors/Practising/PII.

117 SI no 516 of 2014, Solicitors Accounts Regulations.

CHAPTER 9 THE SOLICITOR IN PRACTICE

111

• To use each client’s money for that client’s maer only,

• To use trust money only for the purpose of that trust,

• To establish and maintain proper accounting systems and proper internal

control systems to ensure compliance with the regulations,

• To account for interest received or charged on clients’ monies in accordance

with the statutory provisions,

• To cooperate with the Law Society in checking compliance with the

regulations,

• To deliver an annual accountant’s report, as required by the regulations.

Responsibility for clients’ monies

When client funds are received, they must be lodged without delay in a client

account at an approved bank.

118

e issue of the insolvency of a bank at which clients’ monies have been

placed can be addressed in the rm’s terms and conditions of business.

119

solicitor placing a client’s monies with a licensed bank in compliance with

the requirements of the Solicitors Acts and the Solicitors Accounts Regulations is

unlikely to incur liability to their client in the event that a or part of the client’s

monies are lost due to the bank’s insolvency.

When giving an undertaking to pay out client funds, the solicitor should consider

whether such undertakings should be qualied to aow for the insolvency of the

bank at which the funds that are the subject of the undertaking wi be held. e

rm’s terms and conditions of business can provide for agreement by the client

to indemnify the rm, should the solicitor be required to use their own funds to

comply with an undertaking given on behalf of a client.

Monies handled by a solicitor under a power of attorney

Monies handled by a solicitor acting for a client under a power of aorney are

clients’ monies within the meaning of the Solicitors Accounts Regulations.

120

118 SI no 516 of 2014, Solicitors Accounts Regulations.

119 Terms and Conditions of Business.

120 SI no 516 of 2014, Solicitors Accounts Regulations.

CHAPTER 9 THE SOLICITOR IN PRACTICE

112 113

INVESTMENT AND INSURANCE SERVICES

If a solicitor provides investment business services, investment advice or

insurance intermediary services to clients, such services or advice must comply

with the relevant legislation. e requirements vary depending on whether the

services to the clients are, or are not, incidental to the provision of legal services

to those clients.

121

THE SOLICITOR AS AGENT FOR AN INSTITUTION

If a solicitor holds an agency for an institution, the oce of the solicitor should

be clearly seen to be the oce of a solicitor and not a branch of the organisation

from whom the solicitor holds the agency.

THE SECURITY AND CONFIDENTIALITY OF OFFICE SYSTEMS

e principal or partners of a rm should use reasonable endeavours to prevent

a breach of security and condentiality. A solicitors have a duty to ensure

adherence to GDPR requirements. Solicitors should ensure a level of security

appropriate to risks within their practice.

122

It is recommended that rm owners should ensure an appropriate level of

security, both physical and cyber, to mitigate the risks of loss to clients’ monies

and assets.

121 Investment Intermediaries Act 1995; Investor Compensation Act 1998; Memorandum on the

application of the Investment Intermediaries Act 1995 (IIA) and the Investor Compensation

Act 1998 (ICA) to Solicitors – Law Society, 25 November 1998; Memorandum on Solicitors

Financial Services operated by Irish Pensions Trust Ltd (IPT), an authorised investment

business rm – Law Society, 25 November 1998; SI no 439 of 1999, Solicitors Acts 1954 to

1994 (Investment Business and Investor Compensation) Regulations 1998.

122 Data Retention and Destruction of Paper and Electronic Files, Practice Note 2019.

CHAPTER 9 THE SOLICITOR IN PRACTICE

113

RETENTION OR DESTRUCTION OF FILES

To protect the interests of clients who may be sued by third parties, and to protect

the interests of a solicitor’s rm that may be sued by former clients or by third

parties, a solicitor should ensure that a les, documents, and other records are

retained for appropriate periods and in compliance with GDPR requirements.

123

Anti-money-laundering legislation

124

now requires rms to keep records

showing compliance with money-laundering procedures applied, and

information gathered, by the rm in relation to each client for a period of ve

years. is includes keeping copies of relevant deeds. Solicitors are also required

to report any suspicious transactions to the Garda Financial Inteigence Unit

and Revenue Commissioners.

125

Solicitors should also be aware that, under the provisions of data protection

legislation, once the appropriate period has elapsed, personal data relating to

clients or others should not be retained longer than necessary.

When a solicitor dras a wi for a client, they should consider whether the

instruction documentation should be kept with the original wi that is being

retained.

126

SETTING UP IN PRACTICE

When a solicitor sets up in practice, whether as a principal or partner, the solicitor

commits himself to responsibilities that may continue even aer the solicitor

ceases practice or the rm closes. is may necessitate ongoing expenditure by

the solicitor, such as the expenses that wi be incurred in winding down the

practice.

127

123 Data Retention and Destruction of Paper and Electronic Files, Practice Note 2019.

124 For AML Guidance, see www.lawsociety.ie/aml.

125 Section 19 of the Criminal Justice Act 2011 See www.lawsociety.ie/aml for further guidance and the

Criminal Justice (Money Laundering and Terrorist Financing) Acts 2010 to 2018.

126 Section 5 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010; Data Retention

and Destruction of Paper and Electronic Files, Practice Note 2019,

127 Seing Up in Practice (Law Society booklet).

CHAPTER 9 THE SOLICITOR IN PRACTICE

114 115

Continuing professional development

A solicitor is required by regulation to keep their knowledge and ski up to date

on a continuing basis during the whole of their professional career.

128

Solicitors should refer to the practice notes published by the Law Society, which

cover best practice in each practice area. e Law Society provides updates to

solicitors on practice areas by e-zine and e-buetins.

129

CHANGES IN THE SOLICITOR’S PRACTICE

Where a sole practitioner ceases to practise, or a the partners in a partnership

cease to practise, prompt notication to the clients of the rm should be made.

It is a maer for the client to decide which new rm they wi instruct. It would

not be proper for the new rm to deal with the aairs of any client, including

money and papers held, without the client concerned rst being notied. e

Legal Services Regulation Authority must also be notied of such changes,

where applicable – for example, where a rm has been authorised to operate as

an LLP.

Ideay, a of the principals or partners involved should agree how the clients

wi be informed. is wi usuay be by means of a circular leer, the text of

which could be agreed between the solicitors concerned. is leer could issue

in the name of one or a of the solicitors. Alternatively, the solicitors could agree

that each of them would inform particular clients.

When appropriate, such leers should mention the amount outstanding to the

credit of the particular client.

128 SI no 529 of 2017, Solicitors (Continuing Professional Development) Regulations 2017.

129 See www.gazee.ie.

CHAPTER 9 THE SOLICITOR IN PRACTICE

115

SUCCESSION PLANNING FOR SOLICITOR’S UNEXPECTED

ABSENCE FROM OFFICE

A rm owners, but particularly sole practitioners or the sole principal of a

rm, should plan for emergency situations, such as death or other eventualities

that might inhibit or restrict their ability to manage their rm,

130

subject to the

requirements of the relevant legislation.

131

Guidelines for solicitors retiring or planning to cease practice as a sole

practitioner/principal and for solicitors purchasing practices from them can be

found on the Law Society website.

132

Solicitors should endeavour to have a succession plan for emergencies to

minimise any disruption to clients, secure the position of sta, and ensure that

the practice can continue, if this is what the solicitor wishes.

e essential element of any plan is an agreement with another solicitor to take

charge if an emergency occurs. is does not necessarily mean that the other

solicitor wi be required to become involved in the day-to-day running of the

practice.

Firm owners who are planning for the future of their rm should consider

executing the foowing documents:

1) Wi to appoint a ‘special executor’,

2) Agreement for management,

3) Power of aorney,

4) Enduring power of aorney.

e wi should make provision for the solicitor dying in practice.

130 ‘Emergency succession planning for a sole practitioner or principal’s rm, Practice Note, 2021.

131 ‘Intervention in practice of sole practitioner in cases of death, incapacity, bankruptcy or

abandonment’ – section 61 (as substituted by section 31 of the Solicitors (Amendment) Act 1994) of

the Solicitors Act 1954.

132 hps://www.lawsociety.ie/Solicitors/Running-a-Practice.

CHAPTER 9 THE SOLICITOR IN PRACTICE

116 117

e other documents cover eventualities during the solicitor’s life that might

inhibit or restrict their ability to manage their rm. If the wish is that the

practice be sold, then this ensures that the powers are in place to do so.

BANKRUPTCY OF THE SOLICITOR

e adjudication in bankruptcy of a solicitor operates immediately to suspend

the solicitor’s practising certicate. e suspension may subsequently be

annued or terminated by law. At any time prior to that, the solicitor may apply

to the Law Society to terminate the suspension, and the Law Society may either

do so unconditionay, or subject to such terms and conditions as are thought t,

or the application may be refused.

133

133 ‘Bankruptcy, judgments and debt arrangements’, Regulation of Practice Practice Note, November 2013.

117

CHAPTER 10

THE REMUNERATION OF THE SOLICITOR

119

INFORMATION IN RELATION TO LEGAL CHARGES

General

e law requires that solicitors inform their clients in writing, on receiving

instructions, by way of a formal notice, of the legal costs that wi be incurred

in relation to the maer concerned or, if it is not reasonably practicable for this

notice to disclose the legal costs at that time, to set out the basis on which the

legal costs are to be calculated.

134

If, on receiving instructions, it is only possible for the solicitor to set out the

basis upon which the legal costs are to be calculated, the law requires that the

solicitor must, as soon as may be aer it becomes practicable to do so, provide

the client with a notice disclosing the legal costs that wi be incurred in relation

to the maer concerned.

e notice should provide information as to the costs that have been incurred

up to that date and provide information in relation to the xed nature of the

costs or, if that is not possible, then to set out the basis upon which they are to

be charged. e solicitor also has to specify the amount of value-added tax to be

charged.

In litigation maers, the solicitor must set out an outline of the work in respect

of each stage of the litigation process and the costs or likely costs involved in

respect of each such stage, including the likelihood of engaging a practising

barrister, expert witnesses, or providers of other services. Solicitors are also

134 Section 150 of the Legal Services Regulation Act 2015.

CHAPTER 10

THE REMUNERATION OF THE SOLICITOR

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

120 121

obliged to advise the client of the implications of withdrawing from the litigation,

as we as the possibility of having to pay the costs of one or more other parties

to the litigation if the litigation is lost, and that it is possible that the costs of the

solicitor wi not be fuy covered from other parties to the litigation.

A cooling-o period of up to ten days sha apply from providing the client with

the costs notice, and the solicitor sha not provide any services during that time

unless any of the foowing situations arise:

a) e client conrms that they wish to instruct the solicitor to continue to

provide legal services,

b) If directed by the court,

c) Where a notice of trial has been served or a date has been xed for the hearing

of the maer concerned,

d) Where, in the professional opinion of the solicitor, not to provide those legal

services would constitute a contravention of a statutory requirement or the

rules of court or would prejudice the rights of the client in a manner that

could not later be remedied.

135

Instructing counsel

e law provides that a solicitor sha not retain a barrister, expert witness,

or provider of any other service without rst ascertaining the likely costs of

engaging that person and providing the client with that information. Section

150 also applies to barristers, and if the barrister provides a section 150 notice to

the solicitor (as opposed to the client), the solicitor is obliged to send that notice

to the client. is also applies for the barristers’ fee note.

Agreement regarding legal costs

136

It is permissible in law for a solicitor and their client to make an agreement

in writing in relation to the amount and manner of payment of a or part of

135 Section 150(8) of the Legal Services Regulation Act 2015.

136 See 152(5) and 152(6) in relation to the obligations to provide a bi of costs for a legal costs agreement

made under section 151. Section 152(5) requires that the legal costs agreement is annexed to the bi of

costs to which the agreement relates. Section 152(6) requires an invoice to be provided by the solicitor

to the client containing a summary of the costs and outlays pursuant to the agreement, which togeth-

er with the agreement sha constitute a bi of costs.

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

121

the legal costs that are payable by the client to the solicitor for legal services

provided.

137

Obligation to issue a bill of costs at the conclusion of legal services

provided

Solicitors are obliged to issue a bi of costs at the conclusion of legal services

provided, and each bi of costs must contain the particulars outlined in section

152(2) and a dispute resolution procedure.

Disputes

Where a dispute arises in relation to legal costs, the solicitor is obliged to make

a reasonable aempts to resolve the dispute with their client.

138

Information in relation to the resolution on disputes relating to costs must be

given in writing.

Included in the denition of ‘legal costs’ are fees, outlays, disbursements, and

other costs incurred or charged, whether in contentious or non-contentious

business.

139

e failure to comply with the provisions of the law in relation to the charging

of fees may lead to disciplinary action.

e client has certain rights, such as requiring the adjudication of costs or the

right to make a complaint to the Legal Services Regulatory Authority (LSRA) in

respect of excessive fees.

137 Under 150(4)(c), the basis on which the amounts were or are to be calculated should be included and,

under section 150(4)(d), the solicitor is obliged to update the notice in the event the solicitor becomes

aware of any factor that would lead to signicantly greater costs.

See Also Chapter 2 – e Solicitor & Client Relationship

138 Section 153 of the Legal Services Regulation Act 2015, ‘Legal Practitioner to Aempt to Resolve

Disputes’.

139 Section 152 of the 2015 act.

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

122 123

RESTRICTION ON CALCULATION OF CHARGES AS A

PERCENTAGE OF DAMAGES

In contentious maers, except debt coection maers, a solicitor may not

calculate charges as a specied percentage or proportion of any damages or

other monies that may become payable to the client.

140

Information to be given at the completion of contentious matters

In relation to a contentious maer, solicitors are obliged at the completion of

the case to inform clients in relation to the total amount of any selement or

award, the amounts of any contribution to costs received from any other party

or parties, or any insurers of such party or parties.

141

Deductions in contentious matters

A solicitor is prohibited from making a deduction from a client’s award

or selement unless the client consents in writing to the deduction. If the

client’s consent is not forthcoming, the solicitor can exercise a lien in those

circumstances, but should not transfer the fees to the oce account until the

maer is resolved.

142

Deductions in non-contentious matters

In non-contentious maers, once a solicitor has issued a bi of costs and

obtained the wrien agreement from the client, the solicitor is entitled to

transfer the fees to the oce account.

A monies received by a solicitor on behalf of a successful client, whether

selement monies or costs, are client monies.

143

Explanations to client during settlement negotiations

To enable a client to make an informed decision about the selement on oer,

the solicitor should explain maers as fuy as possible to the client, including

the likely deductions that wi be made from the selement gure, to the extent

that this is practicable, aowing for the fact that third-party fees may not be

140 Section 149 of the 2015 act.

141 Section 152 of the 2015 act.

142 Section 149 of the 2015 act.

143 Section 149 of the Legal Services Regulation Act 2015.

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

123

known at that point. e solicitor should inform the client of the contribution to

the solicitor’s costs that wi be made by the other party to the proceedings. ey

should also explain whether any balance wi remain to be paid by the client in

relation to the solicitor’s bi, and any shortfa in fees due to third parties, and

that this amount wi be deducted from the selement monies. e client wi

then be in a position to make an informed decision about the selement on the

basis of the best information available at that point.

EXCESSIVE FEES

When a solicitor is retained by a client to do certain work in their professional

capacity, it is an implied term of the contract between the solicitor and the client

that the remuneration of the solicitor wi be fair and reasonable. e LSRA

is required by law to investigate complaints of excessive charging. Where a

complaint is upheld, the LSRA may direct:

1) A refund of portion of the fee if the fee has been paid,

2) A waiver of portion of the fee if the fee has not been paid,

144

3) May impose a disciplinary sanction.

145

THE SOLICITOR’S LIEN ON MONIES

A solicitor has a common law right to exercise a lien on monies held in respect

of fees due on foot of a bi of costs provided to the client. A solicitor cannot

exercise a lien on monies coming into the solicitor’s control if the monies were

sent to him for a specic purpose, such as for the payment of stamp duty.

If a solicitor holds monies in the client account that are greater than the amount

due to the solicitor, the exercise of the lien should be limited to the amount due.

146

A solicitor cannot exercise a lien over the wi of a deceased person.

147

144 Section 61 of the 2015 act.

145 Section 50 of the 2015 act.

146 See also Chapter 7, ‘e Solicitor and his Relationship with other Solicitors’ – ‘e rst solicitor’s

common law lien’ and ‘Transferring les between solicitors’, Practice Note, August 2020.

147 Right of a solicitor to exercise a lien, Practice Note 2020.

See also Chapter 7, e Solicitor’s Common Law Lien.

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

124 125

SOLICITOR TRUSTEE’S COSTS

Where a solicitor is appointed as a trustee, they should ensure that there is a

clause in the trust instrument that would enable them to charge for their legal

costs. Where there is no charging clause in the trust instrument, the solicitor

should seek the authority of a trustees to charge the trust for legal costs. e

initial notice giving information about legal costs should be sent to the trustees.

148

DISCLOSURE OF COMMISSIONS

A monies received by a solicitor for and on behalf of a client from a nancial

institution, insurance company, stockbroker, mortgage broker, or nancial

advisor are deemed to be the client’s money.

If a solicitor is to be paid a commission for placing business with a nancial

institution, insurance company, stockbroker, mortgage broker or nancial

advisor, prior disclosure should be made to the client by the solicitor. Otherwise,

there is an inherent conict between the interests of the solicitor and the client,

and the independence of the solicitor in advising the client is compromised.

A solicitor owes a duciary duty to their client to account to the client for any

commissions in this regard.

INTEREST ON CLIENT MONIES

A solicitor must account to a client for interest earned and/or charged on the

client’s monies where the amount of interest earned exceeds the amount

specied by regulation. e interest is calculated by reference to the amount of

interest that would be earned if such monies had been held in a deposit account

at the then prevailing demand rate, in accordance with the Solicitors Accounts

Regulations.

149

148 Section 82 of the Succession Act 1965. If a solicitor, their spouse, or a partner in the rm aests a wi,

the solicitor is not entitled to receive payment for their services under the charging clause. A they wi

be entitled to receive is out of pocket expenses. us, even where a charging clause is included in the

wi, a solicitor sti may not be entitled to charge for work done if they witness the wi. It is imperative

that no partner in the rm or their spouse witness a wi.

149 ‘Interest charges on client accounts’, Practice Note, February 2021.

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

125

ere is no obligation on a solicitor to disclose a preferential rate of interest that

the rm earns with a bank, which is paid because of the total amount of funds

held by the rm with the bank.

150

In circumstances where there are no interest-bearing accounts available to the

solicitor from the principal bank to the rm, solicitors are permied to hold

clients’ moneys in a non-interest-bearing account.

In circumstances where negative interest is applied by the bank in respect of

client monies held by the solicitor, solicitors are permied to pass on that charge

to their clients, provided that certain steps are taken by the solicitor.

Solicitors should ensure that they set out clearly to their client the basis of

calculation of the charge to be passed on within the section 150 notice.

151

SEARCH, SCRIVENERY, AND ADMINISTRATION FEES

Where a solicitor is required to make a search for papers and documents,

or to schedule documents of a former client, they may charge a reasonable

administration fee for the work involved, provided that an appropriate notice in

respect of costs has been provided on receipt of the request.

Where a solicitor is requested by a person other than their client, but with

their client’s consent, to give information that necessitates making a search, a

reasonable fee may be charged to such persons for such a search.

When a le is being transferred, if the solicitor wishes to copy the le to comply

with the Solicitors Accounts Regulations or for other administrative purposes, this

must be done at the solicitor’s own expense.

150 SI no 372 of 2004, Solicitors (Interest on Clients’ Moneys) Regulations 2004.

151 ‘Interest charges on client accounts’, Practice Note, February 2021.

CHAPTER 10 THE REMUNERATION OF THE SOLICITOR

126 127

AUDITORS’ QUERIES

Where a solicitor is requested by a client’s auditor to provide information

required for audit purposes, a reasonable fee may be charged to the client for

this work, provided a costs notice is provided to the client in advance of this

work being carried out.

152

e information requested is usuay an estimate of the client’s ultimate liability,

an estimate of costs and outlays due to the solicitor, and conrmation of the

amount of client monies held on behalf of the client.

Likewise, if the information requested relates to conrmation of title to

properties, a reasonable fee may be charged, in particular as this wi necessitate

the solicitor reviewing title and carrying out searches, as they may not have

acted in the purchase or the sale of the property.

FEE SHARING

A solicitor is prohibited by law from sharing professional fees generated by the

provision of legal services by that solicitor, with a solicitor who does not hold a

current practising certicate or with a non-solicitor, unless that person is a duly

qualied legal agent in another country.

153

152 ‘Guidance for practitioners on response to audit queries’, Practice Note, May 2021.

153 ‘alications for acting as solicitor’ – section 54 of the Solicitors Act 1954, as substituted by section

62 of the Solicitors (Amendment) Act 1994; ‘Prohibition on solicitor acting as agent for unqualied

person’ – section 59 of the Solicitors Act 1954; SI no 343 of 1988, Solicitors (Professional Practice)

Regulations 1988.

127

CHAPTER 11

CONDUCT IN INTERNATIONAL PRACTICE

129

RELEVANCE FOR ALL LAWYERS

Professional conduct is relevant not only in national practice but also in

international practice. Solicitors in this jurisdiction may have contact with

lawyers in other jurisdictions through their practices. Professional conduct in

these situations has been outlined in codes adopted by the International Bar

Association and the Association of Bars and Law Societies of Europe (the CCBE).

Solicitors are referred to the current International Principles on Conduct for the

Legal Profession, adopted by the International Bar Association as the basic code

for lawyers’ cross-border practice and for lawyers practising outside their own

jurisdiction.

154

e current code of the CCBE is recognised as the expression of consensus of a

the bars and law societies of the EU in relation to codes of conduct for lawyers’

cross-border practice within the EU and for lawyers practising outside the

jurisdiction of their own member state.

Both codes have the principles of good conduct common to a lawyers as their

basis.

155

154 ‘International Principles on Conduct for the Legal Profession’, International Bar Association (2018).

155 Charter of Core Principles of the European Legal Profession and Code of Conduct for European Law-

yers, CCBE (2010 edition) – see www.ccbe.org. e charter and code deal with cross-border activities

of lawyers in the EU. While they are not enforceable as law in this jurisdiction, they are relevant

insofar as they reect the core principles of the profession.

CHAPTER 11

CONDUCT IN INTERNATIONAL PRACTICE

CHAPTER 11 CONDUCT IN INTERNATIONAL PRACTICE

130 131

INTERACTIONS BETWEEN LAWYERS

A solicitor should recognise a lawyers and legal practitioners as professional

coeagues and act respectfuy, fairly, and courteously towards them.

Instructing foreign lawyers

Solicitors should be aware that if they engage a lawyer in another jurisdiction

on behalf of a client, they themselves may be held personay liable for that

lawyer’s fees, even if they have not been put in funds by the client. In order

to avoid personal liability for those fees, the solicitor should ensure that an

express agreement is made with the foreign lawyer at the time of that lawyer’s

appointment, conrming that the Irish solicitor wi not be made personay

liable for the fees.

An alternative would be for the solicitor to limit their involvement to referring

the client to a lawyer in the particular jurisdiction. e client would then instruct

the lawyer directly. e relationship of agent would not arise, and the personal

liability would not foow in that situation.

Solicitors should be mindful that their professional indemnity insurance may

not cover legal advice on international law and seek guidance from their PII

provider.

EU DIRECTIVE ON SERVICES

is directive covers a situation where a lawyer with an oce established in one

member state provides legal services in another without actuay establishing

an oce there.

e lawyer remains subject to their own rules, but without prejudice to respect

the host state’s rules. e rules apply to the extent that they are capable of

being observed by the lawyer and the extent to which their observance is

“objectively justied to ensure, in the State, the proper exercise of a lawyer’s

CHAPTER 11 CONDUCT IN INTERNATIONAL PRACTICE

131

activity, the standing of the profession and respect for the rules concerning

incompatibility”.

156

An Irish qualied solicitor seeking to register as a Registered European Lawyer

(REL) in another member state is required under the Establishment Directive to

produce a registration certicate aesting to their qualication as a lawyer

in their home member state.

157

Solicitors can apply to the Law Society for a

Certicate of Aestation.

158

EU DIRECTIVE ON ESTABLISHMENT

e Establishment Directive facilitates a lawyer’s practice in a member state other

than the state where their qualication was obtained.

e directive deals with the maer of rules of professional conduct. It provides

that the immigrant lawyer is subject to the rules of professional conduct that

apply to lawyers in the host state.

It also provides that, if the obligations enforced in the host member state are not

complied with, the rules of procedure, penalties, and remedies provided for in

the host member state sha apply.

159

156 Council Directive 77/249 (EEC); SI no 58 of 1979, European Communities (Freedom to Provide

Services) (Lawyers) Regulations 1979; SI no 197 of 1981, European Communities (Freedom to Provide

Services) (Lawyers) (Amendment) Regulations 1981; SI no 226 of 1986, European Communities (Free-

dom to Provide Services) (Lawyers) (Amendment) Regulations 1986.

157 ‘Practising certicates and solicitors outside of the jurisdiction’, Practice Note, 2020.

158 ‘Information relating to practising certicates/membership/Certicates of Good Standing and

Certicates of Aestation’.

159 ‘EU Registered Lawyers’, (www.lawsociety.ie); EU Directive on Establishment (98/5/EC), articles 6(1)

and 7.

CHAPTER 11 CONDUCT IN INTERNATIONAL PRACTICE

132 133

IRISH QUALIFIED SOLICITORS SEEKING TO REGISTER WITH A

FOREIGN BAR

An Irish qualied solicitor who wishes to register or maintain registration with

a foreign bar can apply to the Law Society for a Certicate of Aestation. is

evidence of registration/enrolment as a solicitor should be sucient to aow

them to register in that jurisdiction.

160

160 ‘Practising certicates and solicitors outside the jurisdiction’,

133

APPENDIX 1

CHARTER OF CORE PRINCIPLES OF

THE EUROPEAN LEGAL PROFESSION

CODE OF CONDUCT FOR EUROPEAN LAWYERS

Council of Bars and Law Societies of Europe

( CCBE)

135

Edition 2019

The 2019 edition includes the amendments to the commentary on Principle (g) of the

Charter approved by the Plenary Session on 17 May 2019.

Responsible editor: Philip Buisseret

135

e Council of Bars and Law Societies of Europe (CCBE) has as its principal object

to represent its member Bars and Law Societies, whether they are fu members

(i.e. those of the European Union, the European Economic Area and the Swiss

Confederation), or associated or observer members, on a maers of mutual

interest relating to the exercise of the profession of lawyer, the development

of the law and practice pertaining to the rule of law and the administration of

justice and substantive developments in the law itself, both at a European and

international level (Article III 1.a. of the CCBE Statutes).

In this respect, it is the ocial representative of Bars and Law Societies which

between them comprise more than 1 miion European lawyers.

e CCBE has adopted two foundation texts, which are included in this brochure,

that are both complementary and very dierent in nature.

e more recent one is the Charter of Core Principles of the European Legal Profession

which was adopted at the plenary session in Brussels on 24 November 2006. e

Charter is not conceived as a code of conduct. It is aimed at applying to a of

Europe, reaching out beyond the member, associate and observer states of the

CCBE. e Charter contains a list of ten core principles common to the national

and international rules regulating the legal profession.

e Charter aims, inter alia, to help bar associations that are struggling to

establish their independence; and to increase understanding among lawyers

of the importance of the lawyer’s role in society; it is aimed both at lawyers

1 In 2021 the CCBE produced the Model Code of Conduct for European Lawyers “inspired by the Charter

of Core Principles” page 4 Model Code of Conduct, 2021”.

APPENDIX 1

CHARTER OF CORE PRINCIPLES OF

THE EUROPEAN LEGAL PROFESSION

CODE OF CONDUCT FOR EUROPEAN LAWYERS

Council of Bars and Law Societies of Europe

(CCBE)

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

136 137

themselves and at decision makers and the public in general.

e Code of Conduct for European Lawyers dates back to 28 October 1988. It has been

amended three

times; the latest amendment took place at the plenary session in

Oporto on 19 May 2006. It is a binding text on a Member States: a lawyers who

are members of the bars of these countries (whether their bars are fu, associate

or observer members of the CCBE) have to comply with the Code in their cross-

border activities within the European Union, the European Economic Area and

the Swiss Confederation as we as within associate and observer countries.

ese two texts include a commentary for the rst one, and an explanatory

memorandum for the second one.

It is unnecessary to emphasise the importance of the set of norms set out in

these two documents, which are the basis of the deontology of the European

legal profession, and which contribute to shaping the European lawyer and the

European bar.

31 January 2008

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

137

CONTENTS

CHARTER OF CORE PRINCIPLES OF THE EUROPEAN LEGAL

PROFESSION

CODE OF CONDUCT FOR EUROPEAN LAWYERS

1. PREAMBLE

1.1. e Function of the Lawyer in society

1.2. e Nature of Rules of Professional Conduct

1.3. e Purpose of the Code

1.4. Field of Application Ratione Personae

1.5. Field of Application Ratione Materiae

1.6. Denitions

2. GENERAL PRINCIPLES

2.1. Independence

2.2. Trust and Personal Integrity

2.3. Condentiality

2.4. Respect for the Rules of Other Bars and Law Societies

2.5. Incompatible Occupations

2.6. Personal Publicity

2.7. e Client’s Interest

2.8. Limitation of Lawyer’s Liability towards the Client

3. RELATIONS WITH CLIENTS

3.1. Acceptance and Termination of Instructions

3.2. Conict of Interest

3.3. Pactum de ota Litis

3.4. Regulation of Fees

3.5. Payment on Account

3.6. Fee Sharing with Non-

Lawyers

3.7. Cost of Litigation and Availability of Legal Aid

3.8. Client Funds

3.9. Professional Indemnity Insurance

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

138 139

4. RELATIONS WITH THE COURTS

4.1. Rules of Conduct in Court

4.2. Fair Conduct of Proceedings

4.3. Demeanour in Court

4.4. False or Misleading Information

4.5. Extension to Arbitrators etc.

5. RELATIONS BETWEEN LAWYERS

5.1. Corporate Spirit of the Profession

5.2. Co-operation among Lawyers of Dierent Member States

5.3. Correspondence between Lawyers

5.4. Referral Fees

5.5. Communication with Opposing Parties

5.6. (Deleted by decision of the Plenary Session in Dublin on .......................... ...

6 December 2002)

5.7. Responsibility for Fees

5.8. Continuing Professional Development

5.9. Disputes amongst Lawyers in Dierent Member States

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

139

CHARTER OF CORE PRINCIPLES OF THE

EUROPEAN LEGAL PROFESSION

“In a society founded on respect for the rule of law the lawyer fulls a special role.

e lawyer’s duties do not begin and end with the faithful performance of what

he or she is instructed to do so far as the law permits. A lawyer must serve the

interests of justice as we as those whose rights and liberties he or she is trusted

to assert and defend and it is the lawyer’s duty not only to plead the client’s cause

but to be the client’s adviser. Respect for the lawyer’s professional function is an

essential condition for the rule of law and democracy in society.”

– the CCBE’s Code of Conduct for European Lawyers, article 1.1

ere are core principles which are common to the whole European legal

profession, even though these principles are expressed in slightly dierent ways

in dierent jurisdictions. e core principles underlie the various national and

international codes which govern the conduct of lawyers. European lawyers are

commied to these principles, which are essential for the proper administration

of justice, access to justice and the right to a fair trial, as required under the

European Convention of Human Rights. Bars and Law Societies, courts,

legislators, governments and international organisations should seek to uphold

and protect the core principles in the public interest.

e core principles are, in particular:

(a) the independence of the lawyer, and the freedom of the lawyer to pursue

the client’s case;

(b) the right and duty of the lawyer to keep clients’ maers condential and

to respect professional secrecy;

or between the client and the lawyer;

(d) the dignity and honour of the legal profession, and the integrity and

good repute of the individual lawyer;

(e) loyalty to the client;

(f ) fair treatment of clients in relation to fees;

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

140 141

(g) the lawyer’s professional competence;

(h) respect towards professional coeagues;

(i) respect for the rule of law and the fair administration of justice; and

(j) the self-regulation of the legal profession.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

141

CODE OF CONDUCT FOR EUROPEAN LAWYERS

is Code of Conduct for European Lawyers was originay adopted at the CCBE

Plenary Session held on 28 October 1988, and subsequently amended during

the

CCBE Plenary Sessions on 28 November 1998, 6 December 2002 and 19 May 2006.

e Code also takes into account amendments to the CCBE Statutes formay

approved at an Extraordinary Plenary Session on 20 August 2007.

PREAMBLE

1.1. The Function of the Lawyer in society

In a society founded on respect for the rule of law the lawyer fulls a

special role. e lawyer’s duties do not begin and end with the faithful

performance of what he or she is instructed to do so far as the law permits.

A lawyer must serve the interests of justice as we as those whose rights

and liberties he or she is trusted to assert and defend and it is the lawyer’s

duty not only to plead the client’s cause but to be the client’s adviser.

Respect for the lawyer’s professional function is an essential condition

for the rule of law and democracy in society.

A lawyer’s function therefore lays on him or her a variety of legal and

moral obligations (sometimes appearing to be in conict with each other)

towards:

• the client;

• the courts and other authorities before whom the lawyer pleads the

client’s cause or acts on the client’s behalf;

• the legal profession in general and each feow member of it in

particular;

• the public for whom the existence of a free and independent profession,

bound together by respect for rules made by the profession itself, is an

essential means of safeguarding human rights in face of the power of

the state and other interests in society.

1.2.

The Nature of Rules of Professional Conduct

1.2.1. Rules of professional conduct are designed through their wiing

acceptance by those to whom they apply to ensure the proper performance

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

142 143

by the lawyer of a function which is recognised as essential in a civilised

societies. e failure of the lawyer to observe these rules may result in

disciplinary sanctions.

1.2.2. e particular rules of each Bar or Law Society arise from its own

traditions. ey are adapted to the organisation and sphere of activity

of the profession in the Member State concerned and to its judicial and

administrative procedures and to its national legislation. It is neither

possible nor desirable that they should be taken out of their context nor

that an aempt should be made to give general application to rules which

are inherently incapable of such application.

e particular rules of each Bar and Law Society nevertheless are based on

the same values and in most cases demonstrate a common foundation.

1.3.

The Purpose of the Code

1.3.1. e continued integration of the European Union and European Economic

Area and the increasing frequency of the cross-border activities of lawyers

within the European Economic Area have made necessary in the public

interest the statement of common rules which apply to a lawyers from

the European Economic Area whatever Bar or Law Society they belong

to in relation to their cross- border practice. A particular purpose of the

statement of those rules is to mitigate the diculties which result from

the application of “double deontology”, notably as set out in Articles 4

and 7.2 of Directive 77/249/EEC and Articles 6 and 7 of Directive 98/5/EC.

1.3.2. e organisations representing the legal profession through the CCBE

propose that the rules codied in the foowing articles:

• be recognised at the present time as the expression of a consensus of

a the Bars and Law Societies of the European Union and European

Economic Area;

• be adopted as enforceable rules as soon as possible in accordance with

national or EEA procedures in relation to the cross-border activities of

the lawyer in the European Union and European Economic Area;

• be taken into account in a revisions of national rules of deontology or

professional practice with a view to their progressive harmonisation.

ey further express the wish that the national rules of deontology or

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

143

professional practice be interpreted and applied whenever possible in a

way consistent with the rules in this Code.

Aer the rules in this Code have been adopted as enforceable rules in relation to

a lawyer’s cross- border activities the lawyer wi remain bound to observe the

rules of the Bar or Law Society to which he or she belongs to the extent that they

are consistent with the rules in this Code.

1.4.

Field of Application Ratione Personae

is Code sha apply to lawyers as they are dened by Directive 77/249/EEC and

by Directive 98/5/EC and to lawyers of the Associate and Observer Members of

the CCBE.

1.5.

Field of Application Ratione Materiae

Without prejudice to the pursuit of a progressive harmonisation of rules

of deontology or professional practice which apply only internay within a

Member State, the foowing rules sha apply to the cross-border activities of

the lawyer within the European Union and the European Economic Area. Cross-

border activities sha mean:

(a) a professional contacts with lawyers of Member States other than the

lawyer’s own;

(b) the professional activities of the lawyer in a Member State other than

his or her own, whether or not the lawyer is physicay present in that

Member State.

1.6.

Denitions

In this Code:

“Member State” means a member state of the European Union or any other state

whose legal profession is included in Article 1.4.

“Home Member State” means the Member State where the lawyer acquired the

right to bear his or her professional title.

“Host Member State” means any other Member State where the lawyer carries on

cross-border activities.

“Competent Authority” means the professional organisation(s) or authority(ies)

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

144 145

of the Member State concerned responsible for the laying down of rules of

professional conduct and the administration of discipline of lawyers.

“Directive 77/249/EEC” means Council Directive 77/249/EEC of 22 March 1977 to

facilitate the eective exercise by lawyers of freedom to provide services.

“Directive 98/5/EC” means Directive 98/5/EC of the European Parliament and

of the Council of 16 February 1998 to facilitate practice of the profession of

lawyer on a permanent basis in a Member State other than that in which the

qualication was obtained.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

145

GENERAL PRINCIPLES

1.7. Independence

1.7.1. e many duties to which a lawyer is subject require the lawyer’s absolute

independence, free from a other inuence, especiay such as may arise

from his or her personal interests or external pressure. Such independence

is as necessary to trust in the process of justice as the impartiality of

the judge. A lawyer must therefore avoid any impairment of his or her

independence and be careful not to compromise his or her professional

standards in order to please the client, the court or third parties.

1.7.2. is independence is necessary in non-contentious maers as we as in

litigation. Advice given by a lawyer to the client has no value if the lawyer

gives it only to ingratiate him- or herself, to serve his or her personal

interests or in response to outside pressure.

1.8.

Trust and Personal Integrity

Relationships of trust can only exist if a lawyer’s personal honour, honesty

and integrity are beyond doubt. For the lawyer these traditional virtues are

professional obligations.

1.9.

Condentiality

1.9.1. It is of the essence of a lawyer’s function that the lawyer should be told

by his or her client things which the client would not te to others, and

that the lawyer should be the recipient of other information on a basis

of condence. Without the certainty of condentiality there cannot be

trust. Condentiality is therefore a primary and fundamental right and

duty of the lawyer.

e lawyer’s obligation of condentiality serves the interest of the

administration of justice as we as the interest of the client. It is therefore

entitled to special protection by the State.

1.9.2. A lawyer sha respect the condentiality of a information that becomes

known to the lawyer in the course of his or her professional activity.

1.9.3. e obligation of condentiality is not limited in time.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

146 147

1.9.4. A lawyer sha require his or her associates and sta and anyone engaged

by him or her in the course of providing professional services to observe

the same obligation of condentiality.

1.10.

Respect for the Rules of Other Bars and Law Societies

When practising cross-border, a lawyer from another Member State may be

bound to comply with the professional rules of the Host Member State. Lawyers

have a duty to inform themselves as to the rules which wi aect them in the

performance of any particular activity.

Member organisations of the CCBE are obliged to deposit their codes of conduct

at the Secretariat of the CCBE so that any lawyer can get hold of the copy of the

current code from the Secretariat.

1.11.

Incompatible Occupations

1.11.1. In order to perform his or her functions with due independence and in

a manner which is consistent with his or her duty to participate in the

administration of justice a lawyer may be prohibited from undertaking

certain occupations.

1.11.2. A lawyer who acts in the representation or the defence of a client in legal

proceedings or before any public authorities in a Host Member State sha

there observe the rules regarding incompatible occupations as they are

applied to lawyers of the Host Member State.

1.11.3. A lawyer established in a Host Member State in which he or she wishes

to participate directly in commercial or other activities not connected

with the practice of the law sha respect the rules regarding forbidden or

incompatible occupations as they are applied to lawyers of that Member

State.

1.12.

Personal Publicity

1.12.1. A lawyer is entitled to inform the public about his or her services provided

that the information

is accurate and not misleading, and respectful of

the obligation of condentiality and other core values of the profession.

1.12.2. Personal publicity by a lawyer in any form of media such as by press, radio,

television, by electronic commercial communications or otherwise is

permied to the extent it complies with the requirements of 2.6.1.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

147

1.13. The Client’s Interest

Subject to due observance of a rules of law and professional conduct, a lawyer

must always act in the best interests of the client and must put those interests

before the lawyer’s own interests or those of feow members of the legal

profession.

1.14.

Limitation of Lawyer’s Liability towards the Client

To the extent permied by the law of the Home Member State and the Host

Member State, the lawyer may limit his or her liabilities towards the client in

accordance with the professional rules to which the lawyer is subject.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

148 149

RELATIONS WITH CLIENTS

1.15. Acceptance and Termination of Instructions

1.15.1. A lawyer sha not handle a case for a party except on that party’s

instructions. e lawyer may, however, act in a case in which he or she has

been instructed by another lawyer acting for the party or where the case

has been assigned to him or her by a competent body.

e lawyer should make reasonable eorts to ascertain the identity,

competence and authority of the person or body who instructs him or

her when the specic circumstances show that the identity, competence

and authority are uncertain.

1.15.2. A lawyer sha advise and represent the client promptly, conscientiously

and diligently. e lawyer sha undertake personal responsibility for the

discharge of the client’s instructions and sha keep the client informed

as to the progress of the maer with which the lawyer has been entrusted.

1.15.3. A lawyer sha not handle a maer which the lawyer knows or ought to

know he or she is not competent to handle, without cooperating with a

lawyer who is competent to handle it.

A lawyer sha not accept instructions unless he or she can discharge

those instructions promptly having regard to the pressure of other work.

1.15.4. A lawyer sha not be entitled to exercise his or her right to withdraw from

a case in such a way or in such circumstances that the client may be unable

to nd other legal assistance in time to prevent prejudice being suered

by the client.

1.16.

Conict of Interest

1.16.1. A lawyer may not advise, represent or act on behalf of two or more clients

in the same maer if there is a conict, or a signicant risk of a conict,

between the interests of those clients.

1.16.2. A lawyer must cease to act for both or a of the clients concerned when a

conict of interests arises between those clients and also whenever there

is a risk of a breach of condence or where the lawyer’s independence

may be impaired.

1.16.3. A lawyer must also refrain from acting for a new client if there is a risk of

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

149

breach of a condence entrusted to the lawyer by a former client or if the

knowledge which the lawyer possesses of the aairs of the former client

would give an undue advantage to the new client.

1.16.4. Where lawyers are practising in association, paragraphs 3.2.1 to 3.2.3

above sha apply to the association and a its members.

1.17.

Pactum de Quota Litis

1.17.1. A lawyer sha not be entitled to make a pactum de quota litis.

1.17.2. By “pactum de quota litis” is meant an agreement between a lawyer and

the client entered into prior to nal conclusion of a maer to which the

client is a party, by virtue of which the client undertakes to pay the lawyer

a share of the result regardless of whether this is represented by a sum of

money or by any other benet achieved by the client upon the conclusion

of the maer.

1.17.3. “Pactum de quota litis” does not include an agreement that fees be

charged in proportion to the value of a maer handled by the lawyer if this

is in accordance with an ociay approved fee scale or under the control

of the Competent Authority having jurisdiction over the lawyer.

1.18.

Regulation of Fees

A fee charged by a lawyer sha be fuy disclosed to the client, sha be fair and

reasonable, and sha comply with the law and professional rules to which the

lawyer is subject.

1.19.

Payment on Account

If a lawyer requires a payment on account of his or her fees and/or disbursements

such payment should not exceed a reasonable estimate of the fees and probable

disbursements involved.

Failing such payment, a lawyer may withdraw from the case or refuse to handle

it, but subject always to paragraph 3.1.4 above.

1.20.

Fee Sharing with Non-Lawyers

1.20.1. A lawyer may not share his or her fees with a person who is not a lawyer except

where an association

between the lawyer and the other person is permied

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

150 151

by the laws and the professional rules to which the lawyer is subject.

1.20.2. e provisions of 3.6.1 above sha not preclude a lawyer from paying a

fee, commission or other compensation to a deceased lawyer’s heirs or to

a retired lawyer in respect of taking over the deceased or retired lawyer’s

practice.

1.21.

Cost of Litigation and Availability of Legal Aid

1.21.1. e lawyer should at a times strive to achieve the most cost-eective

resolution of the client’s dispute and should advise the client at

appropriate stages as to the desirability of aempting a selement and/

or a reference to alternative dispute resolution.

1.21.2. A lawyer sha inform the client of the availability of legal aid where

applicable.

1.22.

Client Funds

1.22.1. Lawyers who come into possession of funds on behalf of their clients or

third parties (hereinaer caed “client funds”) have to deposit such money

into an account of a bank or similar institution subject to supervision by

a public authority (hereinaer caed a “client account”). A client account

sha be separate from any other account of the lawyer. A client funds

received by a lawyer should be deposited into such an account unless the

owner of such funds agrees that the funds should be dealt with otherwise.

1.22.2. e lawyer sha maintain fu and accurate records showing a the

lawyer’s dealings with client funds and distinguishing client funds from

other funds held by the lawyer. Records may have to be kept for a certain

period of time according to national rules.

1.22.3. A client account cannot be in debit except in exceptional circumstances

as expressly permied in national rules or due to bank charges, which

cannot be inuenced by the lawyer. Such an account cannot be given as

a guarantee or be used as a security for any reason. ere sha not be any

set- o or merger between a client account and any other bank account,

nor sha the client funds in a client account be available to defray money

owed by the lawyer to the bank.

1.22.4. Client funds sha be transferred to the owners of such funds in the shortest

period of time or under such conditions as are authorised by them.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

151

1.22.5. e lawyer cannot transfer funds from a client account into the lawyer’s

own account for payment of fees without informing the client in writing.

1.22.6. e Competent Authorities in Member States sha have the power to verify

and examine any document regarding client funds, whilst respecting the

condentiality or legal professional privilege to which it may be subject.

1.23.

Professional Indemnity Insurance

1.23.1. Lawyers sha be insured against civil legal liability arising out of their

legal practice to an extent

which is reasonable having regard to the nature

and extent of the risks incurred by their professional

activities.

1.23.2. Should this prove impossible, the lawyer must inform the client of this

situation and its consequences.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

152 153

RELATIONS WITH THE COURTS

1.24. Rules of Conduct in Court

A lawyer who appears, or takes part in a case, before a court or tribunal must

comply with the rules of conduct applied before that court or tribunal.

1.25. Fair Conduct of Proceedings

A lawyer must always have due regard for the fair conduct of proceedings.

1.26. Demeanour in Court

A lawyer sha while maintaining due respect and courtesy towards the court

defend the interests of the client honourably and fearlessly without regard to

the lawyer’s own interests or to any consequences to him- or herself or to any

other person.

1.27.

False or Misleading Information

A lawyer sha never knowingly give false or misleading information to the court.

1.28. Extension to Arbitrators etc.

e rules governing a lawyer’s relations with the courts apply also to the lawyer’s

relations with arbitrators and any other persons exercising judicial or quasi-

judicial functions, even on an occasional basis.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

153

RELATIONS BETWEEN LAWYERS

1.29. Corporate Spirit of the Profession

1.29.1. e corporate spirit of the profession requires a relationship of trust

and co-operation between lawyers for the benet of their clients and in

order to avoid unnecessary litigation and other behaviour harmful to the

reputation of the profession. It can, however, never justify seing the

interests of the profession against those of the client.

1.29.2. A lawyer should recognise a other lawyers of Member States as

professional coeagues and act fairly and courteously towards them.

1.30.

Co-operation among Lawyers of Dierent Member States

1.30.1. It is the duty of a lawyer who is approached by a coeague from another

Member State not to accept instructions in a maer which the lawyer is

not competent to undertake. e lawyer should in such case be prepared

to help that coeague to obtain the information necessary to enable him

or her to instruct a lawyer who is capable of providing the service asked

for.

1.30.2. Where a lawyer of a Member State co-operates with a lawyer from

another Member State, both have a general duty to take into account the

dierences which may exist between their respective legal systems and

the professional organisations, competences and obligations of lawyers

in the Member States concerned.

1.31.

Correspondence between Lawyers

1.31.1. If a lawyer intends to send communications to a lawyer in another

Member State, which the sender wishes to remain condential or

without prejudice he or she should clearly express this intention prior to

communicating the rst of the documents.

1.31.2. If the prospective recipient of the communications is unable to ensure

their status as condential or without prejudice he or she should inform

the sender accordingly without delay.

1.32.

Referral Fees

1.32.1. A lawyer may not demand or accept from another lawyer or any other

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

154 155

person a fee, commission or any other compensation for referring or

recommending the lawyer to a client.

1.32.2. A lawyer may not pay anyone a fee, commission or any other

compensation as a consideration for referring a client to him- or herself.

1.33.

Communication with Opposing Parties

A lawyer sha not communicate about a particular case or maer directly with

any person whom he or she knows to be represented or advised in the case or

maer by another lawyer, without the consent of that other lawyer (and sha

keep the other lawyer informed of any such communications).

1.34.

(Deleted by decision of the Plenary Session in Dublin on 6

December 2002)

1.35. Responsibility for Fees

In professional relations between members of Bars of dierent Member States, where

a lawyer does

not conne him- or herself to recommending another lawyer or

introducing that other lawyer to the client but instead him- or herself entrusts a

correspondent with a particular maer or seeks the correspondent’s advice, the

instructing lawyer is personay bound, even if the client is insolvent, to pay the

fees, costs and outlays which are due to the foreign correspondent. e lawyers

concerned may, however, at the outset of the relationship between them make

special arrangements on this maer. Further, the instructing lawyer may at any

time limit his or her personal responsibility to the amount of the fees, costs

and outlays incurred before intimation to the foreign lawyer of the instructing

lawyer’s disclaimer of responsibility for the future.

1.36.

Continuing Professional Development

Lawyers should maintain and develop their professional knowledge and skis

taking proper account of the European dimension of their profession.

1.37. Disputes amongst Lawyers in Dierent Member States

1.37.1. If a lawyer considers that a coeague in another Member State has acted

in breach of a rule of professional conduct the lawyer sha draw the

maer to the aention of that coeague.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

155

1.37.2. If any personal dispute of a professional nature arises amongst lawyers

in dierent Member States they should if possible rst try to sele it in a

friendly way.

1.37.3. A lawyer sha not commence any form of proceedings against a coeague

in another Member State on maers referred to in 5.9.1 or 5.9.2 above

without rst informing the Bars or Law Societies to which they both

belong for the purpose of aowing both Bars or Law Societies concerned

an opportunity to assist in reaching a selement.

APPENDIX 1 CCBE CODE OF CONDUCT FOR EUROPEAN LAWYERS

156 157

157

APPENDIX 2

IBA INTERNATIONAL PRINCIPLES ON

CONDUCT FOR THE LEGAL PROFESSION

159

Approved on 25 May 2019 by the Council of the International Bar

Association

e IBA International Principles on Coduct for the Legal Profession is

reproduced by kind permission of the International Bar Association, London,

* See www.ibanet.org for commentaries

Lawyers throughout the world are specialised professionals who place the

interests of their clients above their own, and strive to obtain respect for the Rule

of Law. ey have to combine a continuous update on legal developments with

service to their clients, respect for the courts, and the legitimate aspiration to

maintain a reasonable standard of living. Between these elements there is oen

tension. ese principles aim at establishing a generay accepted framework to

serve as a basis on which codes of conduct may be established by the appropriate

authorities for lawyers in any part of the world. In addition, the purpose of

adopting these International Principles is to promote and foster the ideals of

the legal profession. ese International Principles are not intended to replace

or limit a lawyer’s obligation under applicable laws or rules of professional

conduct. Nor are they to be used as criteria for imposing liability, sanctions, or

disciplinary measures of any kind.

1. Independence

A lawyer sha maintain independence and be aorded the protection such

independence oers in giving clients unbiased advice and representation. A

lawyer sha exercise independent, unbiased professional judgment in advising

a client, including as to the likelihood of success of the client’s case.

2. Honesty, integrity and fairness

A lawyer sha at a times maintain the highest standards of honesty, integrity

and fairness towards the lawyer’s clients, the court, coeagues and a those with

whom the lawyer comes into professional contact.

APPENDIX 2

IBA INTERNATIONAL PRINCIPLES ON

CONDUCT FOR THE LEGAL PROFESSION*

160 161

APPENDIX 2 IBA INTERNATIONAL PRINCIPLES ON CONDUCT FOR THE LEGAL PROFESSION

3. Conicts of interest

A lawyer sha not assume a position in which a client’s interests conict with

those of the lawyer, another lawyer in the same rm, or another client, unless

otherwise permied by law, applicable rules of professional conduct, or, if

permied, by client’s authorisation.

4. Condentiality/professional secrecy

A lawyer sha at a times maintain and be aorded protection of condentiality

regarding the aairs of present or former clients, unless otherwise aowed or

required by law and/or applicable rules of professional conduct.

5. Clients’ interest

A lawyer sha treat client interests as paramount, subject always to there being

no conict with the lawyer’s duties to the court and the interests of justice, to

observe the law, and to maintain ethical standards.

6. Lawyers’ undertaking

A lawyer sha honour any undertaking given in the course of the lawyer’s

practice in a timely manner, until the undertaking is performed, released or

excused.

7. Clients’ freedom

A lawyer sha respect the freedom of clients to be represented by the lawyer of

their choice. Unless prevented by professional conduct rules or by law, a lawyer

sha be free to take on or reject a case.

8. Property of clients and third parties

A lawyer sha account promptly and faithfuy for and prudently hold any

property of clients or third parties that comes into the lawyer’s trust, and sha

keep it separate from the lawyer’s own property.

9. Competence

A lawyer’s work sha be carried out in a competent and timely manner. A lawyer

sha not take on work that the lawyer does not reasonably believe can be carried

out in that manner.

10. Fees

Lawyers are entitled to a reasonable fee for their work, and sha not charge an

unreasonable fee. A lawyer sha not generate unnecessary work.

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2017

163

Acknowledgements ................................................................................................ 164

Introduction .............................................................................................................165

General .......................................................................................................................167

Alternative methods of dispute resolution ........................................................ 169

Relationship with the client .................................................................................. 170

Dealing with other solicitors .................................................................................172

Relationship with counsel ......................................................................................173

Dealing with lay litigants .......................................................................................175

Court proceedings ...................................................................................................176

Children ......................................................................................................................177

Children in private family law disputes ..............................................................177

Children in childcare cases .....................................................................................178

e child as a client ..................................................................................................178

Survival plan for parents/parenting plans ..........................................................179

Expert witnesses ..................................................................................................... 180

Conict of interest .................................................................................................... 181

File management .....................................................................................................182

Anti-money-laundering obligations ....................................................................185

APPENDIX 3

FAMILY LAW IN IRELAND

CODE OF PRACTICE

2017

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

ACKNOWLEDGEMENTS

e Society considered that a review of the Family Law Code of Practice was timely

in circumstances where there has been a huge growth in the area of family law

over the last number of years. ere have been signicant changes in the law,

particularly with the children’s rights referendum and the enactment of the

Children and Family Relationships Act 2015.

Our main concern is to assist practitioners in providing an exceent service to

clients who, by virtue of the fact that they have instructed a solicitor, are either

contemplating or are in the course of family law proceedings and are having a

most stressful life experience. e guidelines are designed to enhance the service

provided to the client and to assist professionals in maintaining professionalism

in this most dicult task.

We wish to commend the commiee for their energy and wiingness to give

time to puing together this handbook. e Society is lucky to have a commiee

comprised of people with vast experience and a huge wiingness to help. We

believe the handbook reects that enthusiasm, energy and commitment.

We would also like to thank our commiee secretary, Jane Moa, who kept us

within agreed timelines and drove this process from beginning to end.

Family and Child Law Commiee

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

INTRODUCTION

Family law in Ireland has seen very signicant changes in recent times, in

particular as a result of the changing fabric of our society. is brings increasing

complexity to the practice of family law on a daily basis, although the issues of

critical importance to our clients remain the same.

ere can be a concern that solicitors and court procedures may add to the distress

and anger that can arise when relationships break down. In general, solicitors

should deal with maers in a way designed to preserve people’s dignity and to

encourage them to reach agreement wherever possible. e result wi oen be

to achieve the same or more satisfactory solutions than going to court but at

less cost both in terms of emotion and money. Various methods of alternative

dispute resolution are now available and should be considered fuy with clients.

is Code tries to encourage solicitors that family law disputes should best be

resolved in a constructive and non-confrontational way.

It must also be remembered that, while solicitors act as representatives of the

client, we are also ocers of the court and citizens having special responsibilities

for the quality of justice.

As a representative of clients, the solicitor performs various functions. As an

adviser, the solicitor provides a client with an informed understanding of the

client’s legal rights and obligations and explains their practical implications.

As an advocate, the solicitor forthrightly asserts the client’s position under

the rules of the adversarial system. As a negotiator, the solicitor seeks a result

advantageous to the client but consistent with the requirement of honest

dealings with others.

e solicitor’s responsibilities as a representative of clients and as an ocer of

the court are usuay harmonious. However, conicting responsibilities can be

encountered. e Code of Practice suggests methods by which such conicts may

be resolved.

In a professional functions, the solicitor must uphold the duties owed to

clients in accordance with the Law Society’s rules of professional conduct and

must also demonstrate respect for the Constitution and the legal system and for

those who serve it, including judges, other lawyers and public ocials.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

e Constitution is strongly supportive of the family and children. In family law

cases, therefore, solicitors should full their professional duties in a manner

conducive to the best interests of their client, but also mindful of the best

interests of the family as a whole and the children of the family in particular.

Solicitors should also ensure that consideration is given at a times to balancing

the benets of any proposed action against the costs, both emotional and

nancial, to be incurred as a result.

e Law Society recommends that a solicitors practising family law should

foow this Code as a point of reference. Members should also explain the Code

to their clients, as it wi form the basis of the approach that they and their

coeagues should adopt.

Keeping the Code is not a sign of weakness and wi not expose the client to

disadvantage. e approach the solicitor adopts should be rm and fair and in

accordance with their client’s instructions. Solicitors are not prevented from

taking immediate and decisive action where necessary. Even when there are on-

going discussions, court proceedings may be commenced and continue at the

same time in case negotiations do not produce an agreement.

e Code is not a straitjacket. Its guidelines cannot be absolute rules and it may

be necessary to depart from the Code if professional rules or duties require it.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

GENERAL

1. At an early stage, you should explain to your client the approach you

adopt in family law work.

2. You should encourage your client to see the advantage to the parties of

a constructive and non-confrontational approach as a way of resolving

dierences. You should advise, negotiate and conduct maers so as

to help the parties sele their dierences as speedily and amicably as

possible and reach agreement, while aowing them time to reect,

consider and come to terms with their new situation.

3. If there are contentious issues concerning children, you should advise

your client that the court wi, by law, prioritise the best interests of the

child. You should make sure that your client understands that the best

interests of the child should be put rst. You should explain that where

a child is involved, your client’s aitude to the other spouse wi aect

the family as a whole and the child’s relationship with his or her parents.

In light of the irty-First Amendment of the Constitution (Children) Act 2012

and the provisions of the Children and Family Relationships Act 2015 it is

also prudent to advise the client of the obligation on courts to hear the

voice of the child in appropriate cases. is may involve the child being

asked to come to court to talk directly to the judge.

4. You should maintain professional objectivity and respect for a parties

involved in the family law dispute, taking into account the long-term

consequences of your actions for a concerned. In practice, issues

relating to children and nances should be kept separate, where possible.

5. You should encourage the aitude that the dispute is not a contest in

which there is a winner and a loser, but rather that it is a search for fair

solutions. You should avoid using words or phrases that suggest or

cause a dispute where there is no serious dispute. You should stress the

need for your client to be open and honest in a aspects of the case and

you must explain what could happen if your client does not conduct him

or herself in this way.

168 169

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

6. Emotions are oen intense in relationship disputes. You should avoid

inaming them in any way. You should take great care when considering

the eect your correspondence could have on other parties and on your

own client. Your leers should also be clear and free of jargon. Remember

that clients may see assertive leers between solicitors as aggressive

declarations of war.

7. Advise the client as to the restrictions imposed on the client and others

by the in camera rule in family law proceedings.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

ALTERNATIVE METHODS OF DISPUTE RESOLUTION

ere are various forms of alternative dispute resolution mechanisms in family

law and it is important to make clients aware of these services, which may bring

about a selement and may help your client and any other parties involved.

ese mechanisms aeviate the need for a court-imposed outcome. ey may

therefore assist clients in reaching their own mutuay benecial terms in family

law.

1. In the rst place, you should explore the possibility of a reconciliation

with your client and, where appropriate, give encouragement in that

regard. Clients should also be provided with a list of suitable agencies

to assist them in this process. In many cases, even where the diculties

are irretrievable, clients may benet from personal counseing to assist

them in dealing with the separation and/or divorce process.

2. You should also make your client aware of the avenue of mediation

prior to entering into any correspondence or negotiation with the other

party. In some cases, for example where there are unresolved domestic

violence or protection issues, mediation may not be suitable. While the

mediation process does not typicay involve the assistance of solicitors,

clients may seek legal advice in parael or during the process, although

many issues that arise might best be addressed in the course of the

mediation itself.

3. Coaborative law is a further means for separating or divorcing couples

who wish to play an active role in the process. Parties, including the

coaborative lawyers, sign a participation agreement and undertake

to stay out of court to resolve the terms of their separation/divorce/

dissolution. As it is an advisory role involving a dierent approach

than traditional representation, specic training is required. Of note is

that clients cannot use the same lawyer in any future court-contested

proceedings in the event the coaborative process breaks down.

4. e vast majority of family law cases are seled by solicitors and counsel

either through the traditional means of negotiations leading to a Deed of

Separation or negotiations in the context of ongoing court proceedings.

It is hoped, however, that more parties wi avail of alternative dispute

resolution mechanisms such as mediation and coaborative law in the

future.

170 171

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

RELATIONSHIP WITH THE CLIENT

You should make sure that you are always objective and do not aow your

emotions or personal opinions to inuence your advice.

You should actively listen to the client’s instructions to ensure that you

fuy understand. You should also exercise great care in the language used to

communicate with clients both oray and in writing.

From the outset of the solicitor/client relationship, you should manage

expectations as to service, time to conclude, result and costs. You should, with

courtesy and respect, establish and maintain appropriate boundaries with your

client from the outset.

When advising your client you must explain a options. e client must

understand the consequences of any decision he/she has to make. You cannot

make decisions on your client’s behalf; decisions are a maer for the client

taking your advice into account.

You should advise your client of the obligation in family law cases to make fu

disclosure of assets, income, liabilities, outgoings and pensions in negotiations

and court proceedings where anciary nancial maers are at issue. Clients

should also be advised of the consequences for non-disclosure.

You should keep clients fuy informed both oray and in writing of a steps and

material actions in their case. A communication should be clear and should,

where possible, avoid legal jargon. Cas should also be returned as expeditiously

as possible.

You must make your client aware of the legal costs at a stages and comply fuy

with your obligations under section 68 of the Solicitors (Amendment) Act 1994.

e benets and merits of any steps taken must be balanced against the costs

at a stages of the process. e right of your client to apply for civil legal aid

should also be made clear and a appropriate information and documentation

furnished in this context.

Should problems arise in the solicitor/client relationship, you should address

these as a priority. You should actively listen to the client’s perception of the

171

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

problem and seek to resolve any complaint with courtesy and respect. You and

your client may have very dierent perceptions of the problem. A client wi

not ‘hear’ you unless they are sure that you have ‘heard’ the problem from their

perspective.

Clients should be informed of the rm’s complaints-handling procedure. Clients

should also be made aware of their right to make complaints to the Law Society

of Ireland. Ideay, clients should be sent a detailed leer of engagement with the

section 68 leer seing out in greater detail how costs are calculated and their

entitlement to have costs taxed. Clients should be asked to sign a copy of the

leer of engagement so that there can be no confusion later as to the basis on

which their costs have been calculated. You should also ensure that you comply

with your money-laundering obligations.

Where there is a total breakdown in the solicitor/client relationship, it may be

necessary to terminate it, and there are a variety of circumstances in which the

solicitor/client relationship may be terminated.

If permission by the court is required for the solicitor’s withdrawal from

representation, you must not withdraw from representation without the court’s

permission. In any event, you must not withdraw without taking a reasonable

steps to avoid foreseeable prejudice to the rights of the client, including giving

due notice, aowing time for the employment of another solicitor, and delivering

to the client a papers and property to which the client is entitled foowing

payment of a outstanding fees due to you.

172 173

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

DEALING WITH OTHER SOLICITORS

You should be honest in a dealings with other solicitors and act towards them

with frankness and good faith consistent with your duties to your client. You

should seek to maintain a good working relationship with coeagues and adopt

a cooperative approach even in situations which are necessarily adversarial.

It is not appropriate to criticise the other party’s solicitor, and particularly to

one’s own client. You should maintain your personal integrity and observe the

requirements of good manners towards coeagues.

Care should be taken with wrien correspondence. Any communication

should ideay be constructive, informative and eective. It should not contain

emotive or inammatory language. It should be easily understandable. Your

communication with coeagues should not be personalised nor should a

coeague’s professionalism or expertise be questioned.

A solicitor should not write oensive leers to other members of the profession.

A solicitor should not threaten to sue an opposing solicitor personay.

Both solicitors should encourage their respective clients to exchange fu and

complete information and documentation concerning the nances at the earliest

possible stage. is would be in ease of a parties, not least the trial judge, and

wi enhance the chances of an early resolution.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

RELATIONSHIP WITH COUNSEL

It is not possible, except in limited circumstances, for a client to directly engage

with counsel. erefore, counsel is engaged by a solicitor (the ‘professional

client’) to act on behalf of the solicitor’s client (the ‘lay client’). A solicitor acting

on a general retainer from a client is not entitled, without instructions from

the client, to seek the advice of, or to instruct, counsel. A specialist family law

barrister may bring many benets to an appropriate case, working with you to

best advance maers on behalf of your client.

e role and functions of counsel includes advocacy, draing pleadings, draing

legal opinions and other legal documents and negotiating selements. However,

counsel works only on the instructions given to him/her by his/her solicitor

and wi not generay be involved on a day-to-day basis in the administration

and management of the lay client’s case. erefore solicitors retain the overa

responsibility for the management and progressing of a case and the lay client

remains the solicitor’s direct client for the duration of the legal proceedings.

In any case where counsel is instructed, you should always be conscious that

counsel can only be as eective as the instructions s/he receives. It is the duty

of the solicitor to properly instruct counsel in the manner that ensures that

counsel has a the information that the solicitor has, and which is or may be

necessary for counsel to properly represent the client’s interests in a reasonable

time frame.

A solicitor should endeavour to ensure that counsel delivers instructions within

a reasonable time period in order to avoid the maer becoming statute barred or

liable to be struck out. Where a solicitor is concerned that the instructed counsel

wi not deliver instructions on time, the solicitor is advised to request that

counsel return their brief, in order for the solicitor to instruct another counsel.

Where a selement consultation is arranged to discuss aspects of the case with

a view to exploring the possibility of agreeing appropriate terms of selement,

it is important that both counsel and the solicitor explain fuy the implications

of any such selement to ensure that the client has a fu understanding of the

terms. e client must be kept fuy advised and involved as this is more likely to

lead to a satisfactory outcome and satisfaction on the part of the client.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

It is not permissible for counsel to be employed by a solicitor’s rm. Neither may

they have a room in the oces of a solicitor.

A solicitor and counsel may not make an agreement that counsel wi do a of

the work of the solicitor’s rm or have a retainer in such rm. However, counsel

is permied to agree and have a retainer to do a of the work for a solicitor in

relation to a specic client. Where such an agreement is entered into, counsel

must be paid a separate fee for each piece of work completed.

Best practice stipulates that a communication between counsel and a solicitor

should be expressed to be condential and privileged. Where counsel is

communicating via email with a solicitor, s/he should keep a hard copy of such

correspondence or forward a copy to their instructing solicitor.

Prior to engaging counsel, solicitors are advised to request counsel’s legal fees in

writing. Where no express agreement has been made regarding fees, a reasonable

fee should be paid to counsel. Although solicitors are not liable for counsel’s

fees, they are under a duty to endeavour to reclaim the fees that are properly

owed to counsel. Solicitors should at the very least write to the client requesting

payment of such fees, foow up such requests, and alert clients to the possibility

that proceedings may be issued against them for the recovery of the payment.

Where there is a possibility of reclaiming the fees owed, the solicitor may have

to instigate proceedings.

Where a solicitor has received payment from the client for counsel’s fees, the

solicitor should pay the fee without delay.

Where the outcome of the case is unsatisfactory, the solicitor should not lay

unjustied blame on counsel.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

DEALING WITH LAY LITIGANTS

In many family law cases, one or both parties involved wi not have professional

legal representation. Parties to litigation in our courts are entitled, as a maer

of constitutional right, to fair procedures. ey are also entitled to access to the

courts and they can conduct litigation without a legal representative if they so

choose.

When you are dealing with someone who is not represented by a solicitor,

you should take even greater care to communicate clearly and try to avoid any

technical language or jargon that is not easily understood.

You should also strongly recommend an unrepresented person to consult a

solicitor and also advise that person that s/he may have an entitlement to civil

legal aid. is advice should be communicated in writing, where possible, and

should be repeated in a subsequent correspondence.

e lay litigant can also, in certain circumstances, avail of some help from a

named party chosen by them in court proceedings. is party would not act

as an advocate, but would sit with the lay litigant and, for example, take notes

and generay advise while taking no part in the actual case itself. is is what is

known as the ‘McKenzie Friend’. is was given statutory recognition in section

40(5) of the Civil Liability and Courts Act 2004. e court must approve this and

can provide directions as appropriate.

It is appropriate to prove to a court that legal documents have been properly

served on a lay litigant by the production of the requisite adavits of service. Any

selement concluded with the lay litigant may be open to possible subsequent

legal chaenge on the basis of the lack of legal representation/advice. It is

therefore recommended that any selement reached with a lay litigant is ruled

by the court. If a selement is reached between your client and a lay litigant, it is

good practice to ensure that the lay litigant signs the terms of selement in the

presence of the judge ruling the case.

176 177

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

COURT PROCEEDINGS

e institution of court proceedings in family law maers should be considered

a last resort in circumstances where it is not possible to resolve maers

arising by other means. In some exceptional cases, it may be necessary to issue

court proceedings without rst exploring the possibility of selement, for

example where it is necessary to invoke the jurisdiction of a particular court in

international cases. However, this should only arise in exceptional cases.

Prior to instituting proceedings, a alternative means of dispute resolution

should be fuy explored with the client. It is also necessary for a solicitor, when

instituting certain family law proceedings, to le a certicate with the relevant

court oce conrming that the appropriate steps have been taken to resolve

maers without recourse to court proceedings.

Before ling proceedings, you and your client should consider whether the other

party or his/her solicitor should be contacted in advance with a view to coming

to an agreement and minimising any possible misunderstandings.

Particular care should be taken when draing family law proceedings that the

content is not inammatory or aggressive.

You should also discourage your client from naming any third parties unless

there are very good reasons to do so.

When taking any step in the proceedings, the long-term eect on your client

and other family members must be balanced with the likely short-term benet

to the case.

If the purpose of taking a particular step in proceedings may be misunderstood

or appear hostile, you should consider explaining it, as soon as possible, to your

coeague.

Where possible, consideration should be given at an early stage in the

proceedings to narrowing any issues in dispute and to bringing about an early

selement to the maer.

roughout the conduct of court proceedings, solicitors must remember that

the process is fraught with anxiety and fear for our clients and we must be

sensitive to these concerns.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

CHILDREN

e best interests of children are paramount in any dispute concerning the

children. Parents should be reminded that they wi continue to be parents,

even aer a dispute regarding their children has been dealt with, and that co-

operation is preferable to litigation.

Counseing and mediation should be canvassed at the earliest opportunity.

Children may be damaged if they are drawn into the dispute between parents.

Children may be the subject maer of disputes/proceedings in a number

of ways – for example, in cases of custody/access, guardianship, childcare,

child abduction, adoption. Parents should also be advised of the provisions

around the rights of children inserted into the Constitution by the irty-First

Amendment. In a relevant proceedings, the voice of the child, who is capable of

forming his/her own views, should be heard as far as practicable and given due

weight having regard to the child’s age and maturity.

CHILDREN IN PRIVATE FAMILY LAW DISPUTES

You should encourage your client to cooperate with the other parent when

making decisions concerning their child and advise parents that it is oen

beer to make arrangements for the child between themselves, through their

solicitors or through a mediator, rather than through a court hearing where the

decision of the judge may not suit either parent.

In any leers, you should keep disputes about arrangements for the child or

children separate from disputes about any other maers. When acting for a

parent in a private law family dispute, you must remember that the interests

of the child may not mirror those of the parent and that the courts wi focus on

what is in the best interests of the child.

Solicitors should encourage clients to remember that, in most cases, they wi be

continuing to co-parent with the other party and it is beer to acknowledge the

other party’s strengths as a parent rather than to condemn his or her weaknesses

in an inammatory negative statement. Where the other party is a perpetrator

of domestic abuse, however, this clearly impacts on their parenting capacity and

makes them an increased risk to the child and resident parent, and this should

clearly be communicated to the court, with supporting evidence where available.

178 179

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

e Children and Family Relationships Act 2015 puts much greater emphasis on the

voice of the child and imposes a duty on a court to take into account the views of

the child in many cases. is is underpinned by the provisions inserted into the

Constitution by the irty-First Amendment of the Constitution (Children) Act 2012

foowing the Children’s Rights Referendum.

CHILDREN IN CHILDCARE CASES

ere are obligations to report concerns that a child is at risk of abuse. Care

proceedings originate under the Child Care Acts and are public law proceedings

taken by the Child and Family Agency (Tusla) against the parent(s) where the

child may be the subject of abuse or neglect. ere may be an application for

an emergency care order, an interim care order (or an extension thereof ), a care

order or a supervision order.

A solicitor can therefore nd himself/herself retained on behalf of a parent, a

child or a guardian ad litem (who has been ordered by the court to represent the

views of and what is in the best interest of the child).

THE CHILD AS A CLIENT

You should only accept instructions from a child if you have the necessary

training and expertise in this eld and the child is of an age and understanding

to instruct. e solicitor’s role is to provide independent representation and

advice to the child.

You must continuay assess the child’s competence to give instructions.

Solicitors should advise clients that it wi not assist them to produce statements

or leers wrien by their children, nor to bring their children to speak with

solicitors acting for one or other parent. Solicitors should rmly discourage

such conduct. Solicitors should not see the children who are the subject of any

case in which they are advising, unless they are acting for the child.

You should make a eorts to ensure that the proceedings are not delayed and

that the proceedings are concluded within a reasonable time frame. You should

also ensure the maer is listed for fu hearing to ensure that a reports are

exchanged in good time in advance of the hearing.

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APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

You should ensure that the child has sucient information to make informed

decisions. e information should be given to the child in a clear and

understandable manner, and you should be aware that certain information may

be considered harmful to a child.

SURVIVAL PLAN FOR PARENTS/PARENTING PLANS

e way in which parents deal with their separation makes a dierence to how

their children cope with the situation. is means parents have a responsibility

to make every eort to do whatever is necessary to minimise the trauma for their

children. Negative eects can be avoided or minimised if parents can direct

their energy to focus on what is best for their children. Even if the one-to-one

relationship between the parents has ended, both have a role to play in the lives

of their children.

When parents separate, may arise as to:

• How to te the children about the separation,

• How to support the children through the separation process,

• How to parent into the future,

• How to deal with any disagreement on future parenting.

Parenting plans are helpful in establishing a structure for the family. A parenting

plan can assist in reducing conict between parents and provide security for the

children.

Parenting plans generay set ou an agreement between parents in relation to

children, particularly in the foowing areas:

• What time is spent with each parent,

• Arrangements in relation to school and other activities,

• Holiday arrangements,

• How decisions are to be arrived at about the children and

• How children are to be consulted and informed about decisions.

180 181

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

EXPERT WITNESSES

Independent experts have played a signicant role in family law for a number of

years. Expert witnesses such as child consultants, forensic accountants, valuers,

pension consultants and insurance advisors are examples of experts commonly

retained by the parties or their solicitors.

Where either party or their solicitor wishes to have a child medicay examined

or assessed for the purposes of producing evidence in court, the parties should,

in the rst instance, seek the agreement of the other party to the proceedings

so as to secure an agreed referral to a mutuay acceptable expert. Solicitors for

both sides should agree on the issues to be notied to the agreed expert and the

areas where direction and advice is sought. In default of agreement, the maer

should be referred to the court for its directions.

It is important to advise clients that the role of the expert witness wi generay

be non-partisan in circumstances where the expert owes a duty to assist the

court on maers within his/her expertise, and this duty overrides any obligation

to the party from whom the expert has received instructions or by whom the

expert is to be paid.

Increasingly, parties or their solicitors agree to the appointment of a joint expert

who is mutuay acceptable to both parties. A leer of joint appointment should

rst be agreed with a necessary information to enable the expert witness

furnish his/her opinion. e appointment of joint experts is generay agreed

with a view to minimising the costs to be incurred by both parties as we as the

duration of the hearing, by narrowing the issues at dispute at an early stage.

It is likely that an increasing number of reports in respect of children wi be

required in family law proceedings, in particular reports to ascertain the ‘voice of

the child’. It is important that solicitors advise clients properly as to the purpose

of such reports and, in particular, to the fact that it is ultimately a maer for the

court to make a determination on issues aecting a child. e same consideration

applies in respect of recommendations made in reports under section 47 of the

Family Law Act 1995. Such childcare expert recommendations are advisory only

to a court.

181

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

CONFLICT OF INTEREST

Where a solicitor has acted for both parties in a non-contentious maer (for

example, probate and conveyancing) and subsequently one or other of the

parties returns to that solicitor seeking family law advice then, before the

solicitor agrees to act, he/she should:

• Satisfy him/herself that he/she has acquired no information that could lead

to a possible conict of interest, and

• Ensure, by correspondence if necessary, that the other party has no objection

to the retainer.

It is entirely inappropriate for a solicitor or a rm of solicitors to represent both

parties in any matrimonial/relationship dispute, notwithstanding that dierent

solicitors within the rm may be representing the parties.

It is critical that the solicitor’s role remain and be seen to be independent, and

solicitors should ensure at a times that their representation of a client does not

become a further issue of conict between the parties.

It is advisable to ask a new client at the very start of your rst conversation, and

before you oer any advice, who their spouse/partner is, so as to avoid a conict

situation developing.

182 183

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

FILE MANAGEMENT

It is very important that you keep wrien notes of a aendances on your client

or on any person in any way connected with the case. e aendance note should

include the date of the aendance, the name of the aendee(s) and, at the very

minimum, a the information given by your client, a the advice given by you,

and your client’s response to your advice. You should also make a note of the

emotional state of your client, if relevant. To assist in the maer of calculation of

costs, the aendance note should also detail the duration of the aendance. e

note can be typed or, where more expedient, handwrien. Aendances should

also be kept by the sta in your oce of a interaction between them and the

client.

If you are doing other work for a family law client, it is important that you keep

a documentation relating to that other work on a separate le.

It can sometimes be very helpful to suggest to your client that they should bring

a friend/person with them to the consultations with you if they wish to do so,

particularly at any dicult stages of the process. However the client should also

be made aware of the restrictions imposed by the in camera rule in family law

proceedings.

You should advise your client to maintain a balance between the costs

being incurred by him/her and what s/he is likely to achieve foowing such

expenditure. You should remind your client at a times to bear in mind and to

review, from time to time, what is the appropriate sum to expend on resolving

the dispute with their spouse, particularly in the context of discovery and

interim applications, pending the substantive hearing.

As with a legal work, it is essential to furnish clients with a detailed leer

pursuant to section 68 of the Solicitors (Amendment) Act 1994. In this leer, you

should advise your client that he/she is responsible to you in respect of your

costs and that it is only on some occasions that he/she may recover a or some of

those costs from their spouse. You should also advise your client of the factors

that inuence a judge when he is considering whether or not to award costs in

his/her favour or against them, and you should clarify for your client that, even

if he/she gets an order for costs against their spouse, they are responsible to you

for your costs but that they can recover some or a of their solicitor and client

costs from their spouse if the judge so decides.

183

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

You should also discuss the contents of the section 68 leer with your client in

person or on the telephone if possible so that s/he fuy understands. It is a good

idea to inform them in advance that you wi be writing to them about costs. is

also helps to maintain a good relationship between you and your client because,

if a section 68 leer is received ‘cold’ by your client, it can lead to your client

thinking that your only interest in the case is the amount of costs you can earn

and/or that you do not trust that s/he wi pay you. is is particularly important

in a family law case because of the very sensitive nature of such cases. You wi be

able to explain more easily in a conversation than in writing that the section 68

leer is sent for the benet of the client rather than the solicitor.

You should advise your client that costs accrue whether or not the case goes to

court, as protracted correspondence and sometimes negotiations can also lead

to substantial costs being incurred.

You may wish to seek payment on account and, if so, you should advise your

client of this at the outset. You should clarify whether or not you wish payment

on account or whether or not you propose to furnish interim bis for work done

to date. ese are two distinct maers, and you should make it clear to your

client which, if any, you require.

When issuing proceedings, you should discuss with your client the advantages

and disadvantages of bringing proceedings in the Circuit or the High Court

from the costs point-of-view. You should also explain to your client the costs

implications when instructing junior or senior counsel.

You should advise your client as to the availability of legal aid and you should

furnish them with the address and telephone number of the nearest law centre.

You should advise your client that lengthy and/or accusatory correspondence

with the solicitor for their spouse wi very likely lead to increased costs

and, furthermore, that it may we iname the situation, prompting an

aggressive response from their spouse, which may lead to further protracted

correspondence/litigation between the parties, resulting in increased legal costs.

You should also advise your client that costs wi be kept to a minimum if they

carry out actions and prepare the work, which you request them to do, eciently

and in a timely manner.

184 185

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

You should advise your client that the conduct of the litigation may inuence

a court in deciding whether or not to make an order for costs for or against

either party. is wi include any delay or obstruction by either party to the

proceedings in complying with any reasonable request by the other side or

delay in complying with any court order. is includes not complying with a

reasonable request for discovery and also includes either party making an

unreasonable request of the other party including seeking excessive discovery.

You should also advise your client that a the time spent by you on his/her le

results in increased legal costs including frequent/long telephone cas.

185

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

ANTI-MONEY-LAUNDERING OBLIGATIONS

Solicitors are reminded of their obligations under the anti-money-laundering

legislation, which may have a particular relevance in family law cases.

It is necessary for a solicitors to take measures to identify new clients and

maintain records of their identity. If it is an existing client, solicitors must sti

comply with anti-money-laundering requirements by verifying the client’s

identity by way of photographic identication such as a driving licence or

passport and a recent utility bi (less than three months old) with the client’s

address. It is also necessary to maintain records of a transactions and a copy of

documents for at least ve years foowing the transaction.

A solicitor must not:

• Advise or assist a client to convert, transfer, handle or remove property that

represents the proceeds of criminal conduct, or

• Conceal or disguise the true nature of any property that represents the

proceeds of criminal conduct, or

• Acquire, possess or use property, including fees, that represents the

proceeds of criminal conduct.

Any assets or resources purchased with untaxed income represent the proceeds

of ‘criminal conduct’. For this reason, solicitors must be careful in transferring

property between spouses where there may be any suggestion that the assets

were purchased with untaxed income or represent the proceeds of any other

criminal conduct. A solicitor who advises or eects such a transaction could

commit the oence of money-laundering. e legislation does not require actual

knowledge on the part of the solicitor that the assets are ‘tainted’. e test is one

of recklessness or suspicion. e legislation does not contain any de minimis

provision and an asset is considered ‘tainted’ even if only a sma proportion of

the funding arose from untaxed income and regardless of the length of time that

has elapsed since the asset was required.

Where the transfer of such ‘tainted’ assets is being ruled or ordered by the

court, the court must be made aware of the provenance of the assets or of any

suggestion of funding, whether in whole or in part, from criminal conduct. A

failure to disclose to the court a fact relating to the status of such property could

amount to concealment on the part of the solicitor.

186 187

APPENDIX 3 FAMILY LAW IN IRELAND – CODE OF PRACTICE 2017

Where the transfer of such ‘tainted’ assets is being sought by agreement of the

parties, without the intervention of the court, a solicitor should not complete

any such transaction until the client has regularised the situation in respect of

those assets. If a client refuses to do so, the solicitor should cease to act.

Where court proceedings have been instituted, a further reporting obligation

may not arise by virtue of legal privilege. However, this reporting obligation

may arise outside the context of court proceedings. In particular, this obligation

may arise in the context of negotiations leading to a Deed of Separation or in the

context of coaborative law.

e aention of a solicitors is drawn to the Law Society of Ireland guidance

notes for solicitors on anti-money-laundering legislation, which can be accessed

through the Society’s website at www.lawsociety.ie.

187

INDEX

abuse. see also child abuse or neglect;

duress or undue inuence;

vulnerable clients

condential referrals, 55

nancial, 28

of process, 62

serious risk of, 55

abusive litigation, 62

acceptance of instructions, 21–24

agent, from, 23

client in custody, from, 31

conict of interest. see conict of

interest

contingency fee arrangements, 24

duress or undue inuence,

suspicion of, 28–29

improvident transactions,

involving, 23

in-house and public sector

solicitor, by, 23

instructions to be taken directly

from client, 23

legal costs, provision of

information on, 22, 119

legay aided clients, 24

mental capacity, client lacking,

27–28, 41

payment of fees in advance, 23–24

refusal of instructions, 23

terms and conditions of business,

21–22, 111

third party, instructions from, 23

time costing, 23

vulnerable clients, 28–29

accountable trust receipt (ATR), 81,

accounts regulations, 95, 110–111, 125

accounting for client’s monies, 26,

62, 110–111

accounting systems, 111

annual accountant’s report, 111

client account, 26, 110, 111

cooperation with Law Society, 111

insolvency of bank, 111

interest on client’s money, 111,

124–125

power of aorney, monies handled

under, 111

responsibility for client’s monies,

111

return of client’s monies, 26–27

trust money, 111

undertaking to pay out client

funds, 111

administration fees, 125

administration of estates. see probate

and administration

administration of justice

legal professional privilege and, 49

solicitor’s role in, 13, 15–16, 61, 63

Note: Texts of Appendices are not included in the Index

188 189

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

administration of oaths, 85

advertising by solicitors

contingency fee arrangements, 24

false or misleading, 109

personal injuries claims, soliciting

of, 109

regulation of, 24, 109

witnesses, for, 65

agency, principles of, 23, 65, 95, 103

agent for institution, solicitor as, 112

alternative dispute resolution (ADR),

29, 69. see also mediation

anti-money-laundering legislation,

privilege and condentiality, and,

records, requirement to keep, 113

reporting of suspicious

transactions, 113

arbitration, 29

assistant solicitors’ practising

certicates, 97

assisted decision-making, 27n, 40,

41n

associations, acting for, 110

auditor’s queries, 126

awards. see selements and awards

bank/nancial institution

client account, 26, 110, 111

commission to solicitor, 124

insolvency, 111

interest on client’s money, 124–125

undertaking to, 92

bankruptcy of solicitor, 116

bar associations

codes of conduct, 15, 129. see also

CCBE; IBA

barristers. see counsel

bequests or gis by client to

solicitor, 44

bi of costs. see legal costs

borrowing money from client, 44–45

branch oces (solicitor’s practice),

107

business name, 108

capacity

acceptance of instructions and,

27–28, 41

assessment as to, 27, 41

assisted decision-making, 27n, 40,

41n

conict of interest situations, 40,

diminished capacity, 27, 28

Enduring Powers of Aorney, 41

loss of, 31

mental capacity, client lacking, 27,

28, 40, 41

new client, 28

vulnerable clients, 28, 40

Wards of Court system, 41

CCBE Charter and Code of Conduct,

15n, 129, 133–155 (Appendix 1)

ceasing to act, 30, 67, 72, 90. see also

termination of retainer

cessation of practice, 110, 113

dissolution of partnership, 96

notication, 114

succession planning, 115–116

champerty, rule against, 24

change of solicitor. see transfer of

les

189

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

child abuse or neglect, 55

condential referrals, 55–56

obligation to report, 56, 178

protection for reporting of, 56

withholding information, 56

Child and Family Agency (Tusla),

55–56, 178

children. see also family and childcare

law

abuse or neglect of. see child abuse

or neglect

exploitation of, 77

monies held on behalf of, 82

oences against, reporting of, 56

Children’s Rights Referendum, 178

civil legal aid, 24

client, 21–31

acceptance of instructions

from. see acceptance of

instructions

accounting for monies of. see

accounts regulations

bequests or gis to solicitor, 44

borrowing money from, 44–45. see

also loans

breakdown in relationship with,

capacity. see capacity

change of solicitor. see transfer of

les

complaints by. see complaints

conicts of interest. see conict of

interest

costs, and. see legal costs

criminal cases. see criminal cases

deceased clients, 58, 123

duress or undue inuence, 28–29

duty of solicitor towards, 13, 16, 24,

25, 28–29, 61, 62, 89, 102

condentiality. see

condentiality

conict of interest situations,

35, 36, 39, 42, 44, 46

duciary duty, 25, 28, 39, 46, 124

failure to act on advice, 30

failure to give instructions, 30

les of. see client’s les

independence of solicitor, 16, 39

joint ventures with solicitor, 46

legay aided, 24, 67

leers of, failure to reply to, 26

litigation, arbitration and

mediation, information on,

loans. see loans

mental capacity, lacking, 27, 41

mental disorder, with, 28, 40, 55

monies of. see accounts

regulations; client’s monies

mutual respect, 25

other solicitor, of

communication with, 90–91

second opinion, seeking, 90

payment of fees in advance, 23–24

payments to, prohibition on,

45–46

perjury by, 65

permanent loss of capacity, 31

power of aorney. see Enduring

Power of Aorney; power of

aorney

privileged communications. see

privilege (LLP)

proper standard of legal services,

25–29

refusal of instructions, 23

190 191

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

solicitor’s lien on monies of, 123

solicitor’s relationship with, 21–31

stationery of solicitor, access to,

108

termination of retainer, 30–31, 58,

92, 95

terms and conditions of business,

21–22

time costing, 23

vulnerable, 28–29, 40, 41

client’s les

copying of, 95, 125

court order to deliver up, 62

destruction of, 95

loans, recording of, 45

ownership of, 95

retention requirements, 95, 113

transfer between solicitors, 94–96,

125

undertakings and, 94–95

client’s monies

accounting for. see accounts

regulations

auditor’s queries, 126

awards, deductions from, 122

security, ensuring, 112

solicitor’s lien on, 123

Code of Practice on Access to a Solicitor

by Persons in Garda Custody, 73

codes of conduct, 129. see also CCBE;

IBA

commercial conveyancing

transactions

conicts of interest, 37–38

Commissioners for Oaths, 85

commissions, disclosure of, 124

common interest agreement, 51

complaints, 17, 23, 93, 121, 123. see

also disciplinary action; Legal

Services Regulatory Authority

dispute resolution procedure, 21,

misconduct, what constitutes,

17–18

condentiality, 15, 49, 52–58

abuse or neglect of childern

cases involving, 55–56

addresses of clients, 53

agreements, 58

application, 52–53

conict of interest situations, 35,

court proceedings, and, 52–53, 61

disclosure of information, 52–56

duty of, 52–58

duty to report and, 52

exceptions to, 54–56

general, 52–53

implied term of contract, 52

Enduring Power of Aorney, deed

of, 58

executor’s or administrator’s

account, 54

extreme situations, exceptions in,

family law les, 58

legal privilege and, distinction

between, 49, 52

mediator, solicitor as, 53

mental disorder, client with, 55

oce systems, 112

Revenue audits, 53

risk to client or others, and, 54–55

service providers, 57

solicitor’s oce, in, 57–58

shared accommodation, 57

sta of solicitor, 57–58

191

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

storage of records, 57

testator’s aairs, 53

testator’s solicitor, 53

threats of death or serious injury,

waiver of, 52, 54

wis

acquired from another practice,

supply of copy to beneciary, 53

conict of interest, 35–46

condentiality, breach of, 36

conicting roles, client with, 40

conveyancing transactions, 36–38

Deed of Family Arrangement, 42

disclosure of information, duty as

to, 35, 36

duress or undue inuence, client

under, 28

duty of care of solicitor, 35, 36

duty to avoid, 15, 35, 36, 39, 44

family law maers, 43

general, 35

independent legal advice, 37, 40,

41–42

informed consent, 39

mental capacity, client lacking,

41–42

non-conveyancing transactions,

39–43

perception of, 39

probate and administration, in, 42

referral of les to a coeague, 98

solicitor and client, between, 35,

44–46

bequests or gis by client, 44

borrowing money from a client,

44–45

commissions, disclosure of, 124

in-house and public sector

solicitor, 46

joint ventures between solicitor

and client, 46

loans from one client to another

client, 45

loans to clients, 45

prohibition on payments to

clients, 45–46

solicitor holding power of

aorney, 46

wis for parents, 44

State solicitors, 41

two clients, between, 35, 36–43

conveyancing transactions,

36–38

non-conveyancing transactions,

39–43

vulnerable clients, separate

representation for, 28, 40

contempt of court, 62, 68

contingency fee arrangements, 24,

30, 94

continuing professional

development, 114

conveyancing transactions

amendments to, 90

conicts of interest, 36–38

commercial transactions, 37–38

exceptions to rule, 36

misconduct by solicitor, 36

multi-unit developments, 37

owners’ management

companies, 37

residential conveyancing, 38

second party not represented, 37

undertaking to lender on behalf

of solicitor, 38

192 193

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

voluntary property

transactions, 36, 37

family home to joint tenancy, 36

persons acting without legal

representation, 37, 78

core values of profession, 15–17. see

also honesty; independence;

integrity

correspondence

cessation of practice, notication

of, 114

client of another solicitor, with, 90

failure to reply to, 26, 84, 90

initiating litigation, 79

other solicitors, with, 89, 90, 91

tone of, 79, 89

‘without prejudice’

communications, 91

costs. see legal costs

counsel, 101–104

advice of, 102

court appearances, 102

disengaging counsel, 102

duty of, 104

fees of

information on, 102–103, 120

liability for, 103–104

payment of, 103

wrien estimate, 101, 102

instructions to, 101–102, 103, 120

misconduct by, 17

replacement or additional counsel,

103, 104

retention of, 101

role of, 101–102

selection of, 102

solicitor’s relationship with,

103–104

court orders, 50, 62, 68

court proceedings, transcripts of, 51

court, 60–73. see also litigation

change of solicitor, notice of, 96

coming o record, 30

coming on record, 96

communication with, 68

conict arising during retainer, 65

contempt of, 62, 68

criminal cases. see criminal cases

deception of, 63

dress in, 68

duties of solicitor, 61–65, 79

to client, 61, 62

as ocer of the court, 61–63

overriding duty, 61, 63

evidence to, 52–53, 63, 65. see also

witnesses

ex parte applications, 64

family law proceedings, 29

general, 61–63

independence, need for, 16

litigation, 62, 63–65. see also

criminal cases; solicitor

advocates; witnesses

mediation and ADR, duty to

encourage, 69

orders or warrants. see court

orders

perjury by a client, 65

professional negligence

proceedings, 68–69

publicity for pending litigation or

proceedings, 68

recording within precinct of,

prohibited, 84

solicitor as ocer of, 13, 15–16, 79

duties owed to court, 61–63, 77,

102

193

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

supervisory jurisdiction of

Superior Courts, 18, 61–62

undertakings, duty to honour,

solicitor’s relationship with, 60–73

solicitor’s rights and obligations,

derivation of, 61–62

witnesses. see witnesses

crime, commission of, 18, 51, 54. see

also oences

criminal cases

defence advocate

admission of guilt by client,

and, 72

bail, standing for, 72

disclosure of information, 71

duties of, 71–72

interviewing witness for the

other side, 66, 71

tampering with witness, 66

disclosure of previous

convictions, 72

garda stations, provision of legal

services in, 73

general rules for solicitor

advocates, 63–64

interviewing witnesses, 66

from other side, 66, 71

legay aided clients, 24

prisoner in courthouse ce,

consultation with, 72

prosecuting solicitor

interviewing witness for the

other side, 71

responsibilities of, 70

solicitor as witness, 67

withdrawal from case

where client in custody, 73

cross-border practice. see

international practice

cross-examinations, 66

cybersecurity, 112

damages awards. see selements and

awards

data protection. see GDPR and

general data protection

data retention, 113

death

of client. see deceased clients

of solicitor. see succession

planning

threats, 55

debts

coection, 79, 122

counsel’s fees, 103

lien for debt due, 93. see also

solicitor’s lien

deceased clients, 53

family law les, condentiality of,

wis of, no lien over, 123

Decision Support Service (Mental

Health Commission), 40

Deed of Family Arrangement, 42

defence advocate. see criminal cases

destruction of les, 113

disciplinary action, 89, 121

contempt of court, for, 62

excessive charging, in relation to,

121, 123

Legal Practitioners’ Disciplinary

Tribunal, 62, 84

sanctions, 62, 123

194 195

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

statutory framework, 62

supervisory jurisdiction of

Superior Courts, 18, 61–62

suspension, 62, 116

discrimination, 15, 21, 84–85

dishonesty, 17, 65

disputes

alternative dispute resolution.

see alternative dispute

resolution; mediation

legal costs, in relation to, 21, 26, 121

duress or undue inuence

client under, 28–29

elderly and vulnerable clients, 28

improvident transactions, 29

presumption of, 29

duty of care, 25, 36, 42, 102

third parties, to, 25

vulnerable clients, to, 28

elderly clients, 27n. see also

vulnerable clients

abuse or neglect, 55

duress or undue inuence, 28

electronic les, 95n, 112n, 113n

emergency succession planning,

115–116

Enduring Power of Aorney, 115

condentiality of deed of, 58

donor, belongs to, 58

lodgment of, pending registration,

mental capacity, client lacking, 41

registration, 58

enforcement of rules of professional

conduct, 17–18. see also

complaints; disciplinary

action; misconduct

supervisory jurisdiction of

Superior Courts, 18, 61–62,

equality legislation, 21

Establishment Directive, 131

European Union

competition law, external legal

advice, 52

Establishment Directive, 131

lawyers’ cross-border practice

CCBE Charter and Code of

Conduct, 15n, 129, 133–155

(Appendix 1)

Services Directive, 130–131

ex parte applications, 64

excessive charging, 18, 121, 123

executor, 53

account of, supplying copy of, 53

disclosure of information with

consent of, 53

‘special executor,’ wi to appoint,

115

family and childcare law, 29

best interests of child, 29

Code of Practice (2017), 163–186

(Appendix 3)

condentiality of les, 58

conict of interest, 43

in camera rule, 58

proper standard of legal services,

Family Arrangement, Deed of, 42

family home, 36

family of solicitor

bequests or gis by client to, 44

195

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

draing wis for, 44

fees. see also legal costs

counsel. see counsel

foreign lawyers, 130

professional and other service

providers, 83–84

solicitor. see remuneration of

solicitor

witnesses. see witnesses

duciary duties, 25, 28, 39, 46, 124

les. see also client’s les

family law les, condentiality of,

retention or destruction of, 113

transfer of, 94–95, 96

nancial abuse, 28

nancial institution. see bank/

nancial institution

foreign bar, registration with, 124

foreign lawyers, 130. see also

international practice

fraud, 17, 51, 54, 63, 77

frivolous/vexatious litigation, 62

function of solicitor in society, 13–14

administration of justice, role in,

13, 15–16

legal advisor, as, 13

legal and moral obligations, 13–14,

15–16, 23

ocer of the court, duties owed as.

see under court

trust, position of, 13, 15, 16

Garda Siochána

Code of Practice on Access to a

Solicitor by Persons in Garda

Custody, 73

condential referrals to, 55–56

Financial Inteigence Unit, 113

GDPR and general data protection, 14

retention or destruction of les,

113

security and condentiality of

oce systems, 112

service providers, 57

gis by client, 44

Health Service Executive (HSE)

reporting of child abuse to, 55, 56

High Court

suspension of solicitor, 62

undertakings, jurisdiction to

enforce, 80

honesty, 15–16, 17, 24, 77

IBA (International Bar Association)

International Principles on Conduct

for the Legal Profession, 129,

159–160 (Appendix 2)

improvident transactions, 29

independence of solicitor, 16–17, 39,

124

independent legal advice, 16

conict of interest, where, 37, 40,

41–42

loans from/to client, 44–45

inducements, 45, 77, 81, 109

information, 25–26

changes in solicitor’s practice, 114

completion of selement, 122

counsel’s fees, on, 102–103, 120

disclosure of

196 197

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

child abuse or neglect, where,

55–56

conict of interest situations,

35, 36

defence advocate, by, 71

exceptions to duty of

condentiality, 52–56

legal costs, on, 22, 119

litigation, on, 29, 119–120

mediation and arbitration, on, 29

other party to litigation, intended

for, 50–51

other solicitors, provision to,

91–92

terms and conditions of business,

21–22, 111

informed consent, 39

in-house and public sector solicitors

acceptance of instructions, 23

communication with client of,

90–91

conicts of interest, 46

independence, 16–17

privilege, 49, 52

statutory regulation, 17

supervision of sta, 107–108

undertakings, 82

instructions

acceptance of. see acceptance of

instructions

capacity to give. see capacity

client’s failure to give, 30

foreign lawyers, to, 130

to instruct counsel, 101. see also

counsel

insurance. see professional

indemnity insurance

insurance intermediary services, 112

integrity, 15, 63, 80, 89, 110

interest on client monies. see client’s

monies

international practice, 129–132

codes of conduct, 129

CCBE (2010), 129, 133–155

(Appendix 1)

IBA (2018), 129, 159–160

(Appendix 2)

EU Establishment Directive, 131

EU Services Directive, 130–131

instructing foreign lawyers, 130

interactions between lawyers, 130

Irish solicitors seeking to register

with a foreign bar, 132

relevance for a lawyers, 129

investment services, 112

joint interest privilege, 51

joint retainer, 51

joint ventures, 46

law societies, 15. see also CCBE; IBA

Law Society of Ireland

Certicate of Aestation, 124

failure to engage with, 84

practice notes, 114

Regulation Department, 84

Regulation of Practice Commiee,

succession planning, guidelines

for, 115

termination of solicitor’s

suspension, 116

legal advice

197

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

independent. see independent

legal advice

privilege. see privilege (LLP)

legal agents, 126

legal aid, 24, 67

legal capacity. see capacity

legal costs. see also remuneration of

solicitor

adjudication of, 121

agreement in writing, 22, 120–121

bi of costs, 26, 94, 120n, 122

lien on fees due, 123

obligation to issue, 121

charging provisions, non-

compliance with, 121

counsel’s fees, 102–104

damages award, as percentage of,

122–123

denition, 121

disputes and complaints, 23, 121

resolution procedure, 26, 121

excessive charging, 18, 121, 123

information, provision of, 22–23,

119–120

liability, imposition of, 62

litigation costs, 119–120

notice of costs, 119–120

cooling o period, 120

signing of documentation by

client, 22

solicitor trustee’s costs, 124

solicitor’s lien, 92–93, 94, 123

time costing, 23

transfer of les, and, 94, 95

contingency arrangements, 94

payment of rst solicitor’s fees

and costs, 96

undertaking to pay costs, 94

value added tax, 119

legal personal representative (LPR)

solicitor acting for, 42

Legal Practitioners’ Disciplinary

Tribunal, 62, 84

legal professional privilege (LLP). see

privilege

legal representation, persons

without, 36, 78

Legal Services Regulation Act 2015,

14, 72, 77, 101, 102, 122

advertising regulations, 109

legal costs, provisions on, 22–23,

26, 119, 120, 121

misconduct, what constitutes,

17–18, 36

oences under, 17, 18

Legal Services Regulatory Authority

(LSRA)

advertising, regulation of, 109

changes in solicitor’s practice,

notication of, 114

complaints to, 17, 22, 23, 93, 121

excessive charging, 121, 123

serious misconduct by another

solicitor, 97

enforcement of rules of

professional conduct, 17

professional indemnity insurance,

and, 110

solicitor’s relationship with, 83

transfer of documents, direction

as to

solicitor’s lien and, 93

undertakings, enforcement of, 80

legislation, 14, 17–18, 36, 107, 111. see

also anti-money-laundering

legislation; GDPR and general

198 199

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

data protection; Legal Services

Regulation Act 2015

tax legislation, 50

leers. see correspondence

lien. see solicitor’s lien

liquidated debt, coection of

leer to debtor, 79

litigation

costs, notice of, 119–120

duties of solicitor as ocer of the

court, 62, 63–64

ex parte applications, 64

family law proceedings, 29

funding of, in return for benet in

outcome, 69

information, provision of, 29,

119–120

initiating leers and

correspondence, 79

opposing party acting pro se, 78

privilege in relation to, 50. see also

privilege (LLP)

publicity for pending litigation, 68

reserved legal activity, 63

solicitor advocates, rules as to,

63–64, 65. see also criminal

cases

witnesses. see witnesses

loans

client to another client, 45

client to solicitor, 44–45

independent legal advice, 44, 45

moneylending business, 45

solicitor to client, 45

loss of capacity, 31

loss of privilege, 51

mediation, 29, 53, 69

medical practitioners

aendance/standby arrangements

and fees, 67, 83–84

mental capacity, client lacking, 27,

41. see also capacity; vulnerable

clients

acceptance of instructions and,

27–28, 41

assessing capacity, 27, 41

conict of interest situations, 40,

mental disorder/ilness, client with,

28, 40, 55. see also vulnerable

clients

Mental Health Commission, 40

mental webeing, risk to, 54

minors

abuse or neglect of. see child abuse

or neglect

exploitation of, 77

monies held on behalf of, 82

misconduct, 62

acts or omissions constituting,

17–18, 36

complaints. see complaints

denition, 17–18, 36

disciplinary action. see

disciplinary action

nding of, 17, 18, 62

moneylending, engaging in, 45

oence, commission of, 17, 18

practising certicate, practising

without, 97

serious misconduct by another

199

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

solicitor, 97

undertaking, breach of, 80

money laundering. see anti-money-

laundering legislation

moneylending, business of, 44, 45

multi-disciplinary practice

misconduct by managing legal

practitioner, 18

multi-unit developments, 37

names and nameplates, 108

National Veing Bureau, 40n

neglect

of client, 55

of minors. see child abuse or

neglect

No win/No fee agreements. see

contingency fee arrangements

non-conveyancing transactions

conict of interest, 39–43

oences, 17, 18, 56, 97

other solicitors, 89–98

amendments to documents, 90

assistant solicitors’ practising

certicates

payment for, 97

client of other solicitor,

communication with, 90–91

correspondence, 89, 90

general guidance, 89

practising certicates, 97

professional standard of conduct,

89–90

referral of les to a coeague, 98

relationship with, 89–98

serious misconduct by another

solicitor, 97

solicitor agent, costs of, 92–93

solicitor’s lien, 92–93

supplying information on request,

91–92

threat to sue opposing solicitor, 89

transfer of les, 94–96. see also

transfer of les

‘without prejudice’

communications, 91

owners’ management companies. see

conveyancing transactions

partnerships

accounts regulations, compliance

with, 110

assistant solicitors’ practising

certicates, 97

bequests or gis by client, 44

dissolution/ceasing to practice,

96, 114

notication requirements, 114

transfer of les, 96

joint and several responsibility,

107, 110

joint ventures with client, 46

security and condentiality of

oce systems, 112

seing up in practice, 113

undertakings by solicitors in, 80,

witnessing of wi, 124n

perjury by client, 65

personal injuries claims, soliciting

of, 109

200 201

INDEX SOLICITOR’S GUIDE TO PROFESSIONAL CONDUCT

personal representative

notication to, of existence of wi,

solicitor acting for, 42

physical disability, client with, 40.