Regulation of Solicitors

Table of Contents

Officers of Court

Solicitors are officers of the court. They are directly subject to High Court control and jurisdiction in the context of enforcement of obligation. They owe duties to the court as well as to their client.

In order to practice as a solicitor, a person must be qualified as such and being entered on the rolls of solicitors. In addition, he must have a valid practising certificate which requires mandatory insurance. He must not be suspended or have given an undertaking that he will not practice.

The courts have direct so-called summary jurisdiction over solicitors which was preserved by the Judicature Act, 1877 and the acts established in the court. The courts may maintain control over their officers, in order to maintain integrity and standard.

The most common example of direct courtship provision of solicitors is by way of undertaking. Courts may enforce solicitor’s undertakings given in the course of transaction summarily. Failure to comply with an undertaking is both a civil matter and a disciplinary matter. The courts enforce undertakings in order to uphold their integrity. A solicitor may be ordered to pay compensation for breach of undertaking. He may even be attached and committed to jail for breach.

Formerly, Commissioners of Oath only were empowered to take oaths and affidavits in court proceedings. The Commissioner for Oaths Act, 1889 provided that solicitors might be formally admitted to being solicitors, Commissioners for Oath.

The Solicitors Amendment Act 1994, provided that all solicitors holding practising certificates were to be deemed to have the same powers as Commissioner for Oath. Accordingly, solicitors may swear a complete declaration and oaths in their capacity as practising solicitors.

Solicitors are subject to advertise in accordance with regulations made under the Solicitors Act. There are severe restrictions on the type of advertisements, which solicitors may undertake. Advertisement must not be false or misleading. There are limits to the type of claims that can be made. There are stricter obligations in the context of personal injuries for certain practices are in effect prohibited. Advertising covers all forms of publicity, including presentations, lectures, seminars, brochures, circulars etc.

Advertisements must not have been to solicit his profession and to distribute, effect unfavourably on the other solicitors, be in bad taste, be false or misleading, be posted in an inappropriate location. It must not expressly or impliedly refer to claims or possible claims for damages or personal injury and possible outcomes of such cases and provision of legal services by solicitors in connection with such claims.

Advertisements should not include more than details of name and address, particulars of academic and professional qualification and legal experience, factual information on legal services, particulars of charges and fees and certain other information that may be specified by law.

Other information may be specified regarding the practice including the appointment of new partners, particulars of employees and solicitors in the practice, references to the accreditations in recognized legal directories, membership of associations, particular of opening hours, premises, photographs etc.

Advertisements must be clearly published by the solicitor and he is responsible for them. Solicitors must retain copies of advertisements published, and they may be obliged to produce the same to the Law Society. Solicitors may not call that they have specialists knowledge in any area unless previously approved by the Law Society specifically for that purpose.

Canvassing

A solicitor may not pay for introductions of legal business. Agreements to the contrary are void. Exceptions may be permitted by regulation.

There are specific limitations on advertisements, and in connection with personal injury. Advertisements cannot contain certain words and claims. Advertising accessible by links from a website is deemed to be under the solicitor’s responsibility and subject to regulation.

In general terms, the solicitor may not make a direct unsolicited approach to a person who is not an existing client with a view to being instructed to provide legal services. Where such an approach is likely to bring the solicitor’s profession into disrepute. It may not be made in an inappropriate location, adjacent to a calamitous event or situation or adjacent to a Garda station, prison or courthouse.

Practising

Solicitors must generally practice under their own name or under a firm name that has an authentic background. Since 1996 it has not been possible to trade under an assumed name, a name that has no connection with the practice or is historical. This does not apply to certain existing practices which are practices under such names prior to the introduction of regulation.

Fiduciary Duties

Generally in the area of files, a solicitor is subject to fiduciary duties and duties to act in his client’s best interest. He must act independently and avoid conflicts of interest. Any referral, of practice that infringes this principle, is not permissible.

A solicitor may breach his fiduciary duty to a client if he obtains monies for the introduction of the client to a third party. Such arrangements may only be valid if they are fully disclosed and may require the client to have independent legal advice.

Instructions

A solicitor is not obliged to accept instructions in any case. He must enter a contract to attain the client. In legal aid cases, he may be obliged by the terms of his agreement to take instructions from all persons who are entitled to legal aid.

A solicitor should not take instructions where he cannot do so in compliance with his obligations as a solicitor. He may not take instructions if he is unable to complete them is not due to resources, lack of qualification or expertise in an area. He should not take instructions if he has a conflict of interest.

In some cases, it may be sufficient if he discloses his conflict of interest in an open and transparent way and his client accepts the arrangement, retainer notwithstanding. An agreement would advise a solicitor with a third party, for example, when making references to share fees is impermissible and unenforceable. If the client refuses a commission that is disclosed, he should give credit to the client in his fee.

Terms of Business (pre-2019)

The contract between a solicitor and client for the provision of legal services is a so-called retainer. The position is determined both by the contract, terms of the contract, law of agency, fiduciary obligations and the professional and ethical responsibilities of the solicitor.

The terms of the contract should be set out in writing. Certain aspects and information must be recorded in the so-called section 68 letter. Most solicitors provide a full letter of engagement or client care letter embodying the contract as well as complying with the statutory obligations in relation to disclosures of cost et cetera.

A solicitor may engage a client verbally. Indeed this may often occur. The non-existence of the section 68 letter does not negate the relationship of client and solicitor. It may however prejudice the solicitor’s right to recover remuneration.

Whether or not, a solicitor has been retained depends on general principles of contract law and agency. A solicitor may agree to act for that client by verbal agreement, implied agreement or agreement made by conduct. It may arise by way of estoppel where the solicitor acts as if he is representing the client and may not be in a position to later deny it because on the plain grounds of estoppel.

Issues in Acting

Where a solicitor comes on record in litigation, he assumes particular responsibility and role. Generally, he must obtain the court’s consent for discharge.

A solicitor who seeks to withdraw from a case is subject to the discretion of the court. The court will consider the likely consequences of the client including delay and adverse consequences. It will have regard to privilege matters.

Where the client gives instructions that the solicitor disagrees with or strongly disagrees with, he need not act where the client instructs that course, the advice notwithstanding. The solicitor is entitled to terminate the arrangement, and be paid the value of services to that time.

The duration of the retainer depends on the terms of the underlying contract or circumstances. It will generally operate until a transaction is completed or until terminated. It may cover a particular matter or various matters.

A company may only act through an agent. A number of cases have held that the directors or secretaries may not undertake litigation on behalf of the company and that a solicitor must be appointed.

Fees

A solicitor may not accept appointments on the basis of a fixed fee irrespective of the services provided. There are exceptions for appointments involving the provision of services, exclusively within the state or a part of the state on behalf of persons providing services as defined categories of services.

The solicitor shall not share professional fees with any person other than a qualified solicitor or other legal agents. There is an exception in relation to the accrual of partnership profits to spouses and children and the dependents of deceased and retired partners.

The Minister may make regulations relating to sharing of fees between solicitors and non-solicitors arising from a partnership or agency arrangement. No such regulations have been made. The purpose of the regulations would be to facilitate multidisciplinary practices.

S 68 Letters (pre-2019)

Section 68 of the Solicitors Amendment Act 1994 provides that on taking instructions to provide legal services to a client as soon as practicable thereafter, the solicitor must provide the client with particulars in writing of the actual charge.

Where the provisions or the particulars of the actual charge is not in the circumstances possible or practical an estimate as near as may be of the charge over the provisions or the particulars of the actual charges, or an estimate is not practical or possible, the basis on which the charge is made for legal services.

Where services are to be provided for in contentious matters, particulars in writing must be given of the circumstances in which that client may be required to pay the cost for other party or parties and the circumstances on which if any in which the liability to meet the charges made will not be discharged fully by costs recovered in such business from the other party in the event of a successful claim, the disclosures are to the effect fees and expenses incurred.

Maintenance

Maintenance and champerty are civil wrong. See the separate section in relation to the civil wrongs in the section on civil wrongs. Contracts which breach the provisions are invalid and have a civil wrong and criminal element.

A person who assists another in maintaining and defending procedures without a bona fide interest in it independent of the other person acts unlawfully. Agreements, accordingly agreements for sharing the proceeds of litigation are unenforceable. A solicitor so employed is liable for civil action.

The provision does not apply to non-contentious matters. It does not apply to debt recovery arrangements. The agreements are not enforceable but are not necessarily void.

Bill of Costs (pre-2019)

As soon as practicable after the conclusion of a litigation business, the solicitor is to furnish a bill of cost. It is to provide a summary of the legal services provided in connection with the contentious matter, the total amount of damages recovered and details of charges which have been recovered on behalf of the client.

The bill of costs should show separately the amounts for fees outlays and disbursements in connection with legal services. The client may seek taxation or submit a complaint to the Law Society. See generally the separate section on costs.

A solicitor must seek to resolve disputes regarding fees. He must inform the client in writing of his right to require this. The solicitor did submit the bill of cost to a Taxing Master or the right to make a complaint to the Law Society to investigate whether the fees are excessive.

Conditional or contingency fees are prohibited by the Solicitor’s Ireland Act 1870. The 1994 Act prohibits solicitors from charging a percent of the total monies recovered.

Change of Solicitor

Where a client appoints a solicitor or changes a solicitor, notice must be filed in the central office of the High Court. Any party to proceedings may obtain an order declaring that the solicitor or whether the party has ceased to act for that party. This may arise where the solicitor has died or is bankrupt, has been struck off etc..

Generally, a client may change a solicitor as he wishes. He will be liable to the solicitor in respect of his fees incurred to date.

The solicitor may terminate the relationship by giving reasonable notice unless the contrary is specified in the retainer agreement. Theoretically, this will arise where there is a failure to make a payment or give adequate instruction. Where the client acts unlawfully or unethically obstructs the solicitor or there is a breakdown of confidence.

Professional ethics rules require a solicitor not to come off the record without good cause and without reasonable notice, where the nature of the work is such that the client will not obtain a benefit until it is complete. The solicitor may retain his lien over files for unpaid fees and services.