Lawyers should not act for two sides in property deals - report finds

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

ACCESS TO CHILDREN - THE DIFFICULTIES FACING FATHERS

I was reminded again quite recently of the difficulties a father faces when making an application to the courts for access. We always hear about the very real problems unmarried fathers face but equally some married fathers after separation or divorce find themselves in a very difficult position.

My client married his wife in 2005 and had a baby girl in 2008. Life was sweet and rosy for the next few years until late 2010 when a “third party” got involved and the couple separated. The mother was understandably extremely frustrated by the actions of the father and as revenge refused the father access to his child.

The mother demanded more maintenance and used “if you ever want to see your child again” as a way of securing this. My client in a desperate effort to see his child increased his weekly payments substantially but unfortunately the mother was not willing to keep her side of the “bargain”. Despite this my client continued to pay maintenance to the mother. By the time he realised his only option was to go to the courts, over 3 months had passed. We immediately made an application to the courts for Access. We appeared in court only to discover that the mother had sent in a letter to the courts stating that she would be in Poland on that date and requested an adjournment. Despite our best efforts the judge refused to deal with access in the mothers absence and so a new date was given.  By the time we actually got a hearing date my client had not seen his child for the best part of six months.

The problem of course we now faced was that this 2 and half-year-old child had almost forgotten her father. The judge is obliged to make all decisions in the “best interests of the child” which in this case would not be the best interests of the father. The judge was extremely angry at the mother’s behaviour but what could he do?

The child for the last 6 months of her young life knew only the routine of living with her mother. The critical question now is whether the Judge should make an order that the father has 50/50 access to his child?  Unfortunately but understandably the Judge felt that this level of change would not be in the child’s best interests and so an order was made for access initially at a low level and to increase gradually over a period of 6 months until it reached as close to 50/50 as it could be.

My very strong message to any of you who find yourselves in this position is to immediately make an application for Access to the District Courts (http://www.courts.ie/rules.nsf/53bd32841fc5bbf280256d2b0045bb5d/d4868d2287f730028025763a004a4f86?OpenDocument) as there is often a waiting list of up to 8 weeks before you can get a hearing date.

Laura Gillen

Brophy Solicitors

laura@brophysolicitors.ie