Full
text available at: http://www.irishtimes.com/newspaper/ireland/2012/0709/1224319635301.html
A
Law Society task force has decided that solicitors should not be permitted to
act for both sides in a property transaction, except in limited circumstances
provided for in law. . Its report will be discussed by the council of the
society next Friday.
The
prohibition should extend to voluntary transactions between, for example,
family members where a parent signs a home over to a child, the task force
concluded. These are permitted in many jurisdictions. The task force was set up
in light of concerns over the same solicitor acting for both purchaser and
vendor in conveyancing transactions. The practice was also the subject of a
number of complaints to the Law Society.
The
task force examined the practice in a large number of other jurisdictions, in
the common and civil law traditions. This confirmed every other common law
jurisdiction, and most civil law ones, had a prohibition on the same solicitor
acting for both sides in a property transaction.
Many
of these jurisdictions permitted a range of exceptions, but the task force
concluded most such exceptions were unjustified.
On
the issue of voluntary transfers of property, usually between family members,
the task force said the case for the continuation of allowing one lawyer to act
for both sides was undermined by a survey by the Health Service Executive and
UCD which found 94 per cent of financial abuse of the elderly in Ireland was
perpetrated by family members. Example s of financial abuse include forcing or
misleading an elderly relative in to signing over their interest in the
family home.
The
task force did not see how one legal adviser could give independent or
impartial advice to donors and their donees.
It
recommended that in the case of voluntary transfers and transfers below market
value there should be a total prohibition on solicitors acting for both sides.
On
transfers for market value, the task force noted there had been adverse
judicial comment on the lack of a Law Society prohibition on one lawyer acting
for both sides. There should be a prohibition in such cases, it stated, except
where both parties were associated companies or were “qualified parties” under
EU regulations.
Brophy
Solicitors
09.07.12
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