Comer rejects Incorporated Law Society proposal to ‘double-up’ legal representation in family farm transfers.
The ICMSA President, John Comer, has described as “staggering’ a proposal from the Incorporated Law Society that would prohibit a solicitor from acting for both sides in the transfer of the family farm from one generation to the next. Mr Comer said that merely by making the proposal the Law Society demonstrated a disconnect with the realities of life inIrelandtoday that called their judgement into question. Mr Comer said that it was long past the time when someone should explain to the Incorporated Law Society that the other sectors of the Irish economy do not exist to give solicitors opportunities to devise new “and completely artificial” ways of drumming-up fees.
“Not alone is this a completely unwarranted and unnecessary move that will potentially double the already substantial fees around transferring farms within the family, it will also – ironically – attack the historically high levels of trust and esteem with which farm families have regarded their family solicitor. ICMSA accepts that there have been incredibly rare occasions where there was conflicts of interest and undue influence being brought to bear on the person transferring the farm; but these are famously rare and it beggars belief that the Incorporated Law Society – of all entities – doesn’t heed the adage that ‘hard cases make for bad law’. We should be able to state baldly that whatever the Law Society might say; this is actually about generating more lucrative business for solicitors at the expense of a fair system that worked perfectly well”, said Mr Comer
“ICMSA have already made both oral and written submissions to the Incorporated Law Society to the effect that we are opposed to a specific rule which would prohibit a solicitor from acting for both the transferor and transferee, which, in most cases, would be from a parent to a son or daughter in relation to the transfer of family farm. The current law permits the same solicitor to act for both parties in these transfers and I would have thought that if the Society is so worried about the situation around the transfer of properties from generation to generation then they can show that concern by fully training their members to be alert to situations where there is a potential conflict of interest and undue influence being exerted from one party on another. That training would enable solicitors to advise all the members of family on the complexity of modern farming and farm-derived income. Instead we see them taking the much softer – and much more lucrative for them – option of saying that two solicitors should be involved. It doesn’t guarantee any greater safeguards but it does absolutely guarantee a doubling of the costs”.
Mr. Comer went on to explain that in addition to extra costs of about €4,000. there was also the matter of inconvenience where, for example, there was just one firm of solicitors in the local town. In such cases the son or daughter would have to go to another town and engage with a new firm of solicitors, who, in turn, would have to become completely familiar with the family background.
He warned that should a proposal be made to change the current regulation that ICMSA will campaign to prevent this, both in terms of the role of the Minister for Justice and Law Reform and the Competition Authority. In passing, Mr. Comer said that it is noteworthy that under the Solicitors Act, the Law Society can make its own enforceable laws which can place inordinate unjustified costs on the users of the service. He asked whether this power could be squared with the oft-pronounced intentions of both Government ministers and the Troika to fully address and roll-back the costs of professional services in this state, which every reputable survey had identified as obstacle to a better functioning economy. Mr Comer said the Dáil should examine whether or not it was proper that such power should continue to rest with the Incorporated Law Society, if it is used in a way that empowers a cartel to increase the costs it charges for a legal services.
“I believe that there is no case for changing the current rules but the Society should set out for its members a set of clear rules based on the current law which would continue to allow and facilitate a solicitor to act professionally for both parties in a voluntary transfer of property while at the same time providing sufficient safeguards to prevent possible abuses and undue influences”, concluded the ICMSA President.
Ends 1 March 2012.
John Comer, 087-2057846
Cathal MacCarthy, 087-6168758
ICMSA Press Office