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Tuesday, July 10, 2012
Solicitors’ fees for farm transfers will double up if the Law Society approves task force proposal to impose mandatory representation for both sides of all property deals, warns the ICMSA.
The Law Society’s council is to meet this Friday to discuss the task force’s proposal to make separate legal representation mandatory for both sides of all property transfers, even when the transfer is voluntary.
However, the ICMSA has challenged the Law Society’s moral authority to impose regulations from which its members stand to benefit substantially, citing average fees of €4,000 per solicitor per property deal.
ICMSA president John Comer also noted the lack of any upper limit in the number of solicitors firms the Law Society’s report envisaged being involved. He asked what the Law Society’s attitude would be in the thousands of cases where a property was being left or transferred to multiple members of the same family.
"Are we being asked to accept a situation where a property or farm is being left to three or four children or siblings, all of whom will then have to engage their own specific firms of solicitors, all of whom will then charge their own fees?
"In that case, the public is being asked to go from a situation where one firm of solicitors (and one set of fees) is involved in an inter-family transfer, to this proposal where three or four sets of solicitors — with three or four sets of fees — are all involved in the transfer of, say, a parent to his or her children. The net value of the property being transferred will be hugely diminished."
The task force was set up in response to a HSE and UCD survey which found 98% of financial abuse of the elderly was perpetrated by family members and that 91% of cases related to elderly people being forced or misled in the signing over of the family home.
Unavailable for comment yesterday, in March, Law Society president Ken Murphy said: "A solicitor acting for both sides in any transaction is fraught with risks for both sides."
However, Mr Comer argues that Law Society members should be given guidelines to judge those cases where recruiting multiple solicitors was necessary. Imposing regulations is, he suggests, an unnecessarily costly response.
"This is taking a sledge hammer to crack a nut. If the Law Society is worried about undue influence being exercised on elders — and no-one denies that possibility — then the onus and responsibility is on the Law Society itself to set out in strict detail the circumstances where their members cannot act for both parties. In other words, they should set out for their members the regulations governing those situations.
"Where the fees could have been calculated at around €4,000 we can now look forward to fees of €8,000. It will be even more where the transfer is to more than one child.
"It is absolutely outrageous, unnecessary and a perfect example of the syndrome where professionals in Ireland were allowed set their own fees at the catastrophic expense of the economy and the public.
"If the proposed legislation is necessary, then it can stand up to public debate. Should the Law Society just be allowed to make laws that favour their own members without any Dáil or public debate? Farm organisations can’t introduce rules to suit themselves, so why should the Law Society be given this privilege?"
The ICMSA argues that this proposed legislation should only be given the force of a statutory instrument once it has the approval of the president of the High Court.
The task force cited the study in stating it did not see how one legal advisor could offer impartial advice to both sides of a transfer.
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