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Whistle- Blowers Protections and Problems LAW SOCIETY GazetteGazette€3.75 Aug/Sept 2010 WHISTLE- BLOWERS PROTECTIONS AND PROBLEMS INSIDE: RISK MANAGEMENT • ALTERNATIVE CAREERS • DISMISSAL AND PENSIONS • YOUR LETTERS PTSB_LAW_soc_GAZ 12/03/2010 10:09 Page 1 Great deposit rates are really only half the story The other half of the story is all about you. We created Principal Banking, your personal team dedicated to providing for your specific deposit needs as a professional. We wanted to deliver more options, better service and of course a great financial return. We understand the demands on your time and your money and the need for responsive, intuitive and intelligent banking. We don’t do things in halves. See for yourself, call our Principal Banking team today at 1890 818 741 or drop us an email at [email protected] (but please do not send any personal or confidential information by email). principalbanking the savings team dedicated to professionals Terms and conditions apply. The rate advertised above is for illustration purposes. To help improve our service to you calls may be recorded. Irish Life & Permanent plc (trading as permanent tsb) is regulated by the Financial Regulator. president’s message Law Society Gazette aug/sept 2010 Commercial undertakings ou have received many eBulletins from me, beginning in December 2009, in relation to the risks created by solicitors giving undertakings in commercial property transactions. The Society has Yconsulted very widely with the profession and with interested parties outside the profession in relation to this matter. I refer, in particular, to my eBulletins to you of 1 April and 27 May 2010. No less than 184 separate submissions were received from members of the profession in and have been reviewed by the Society. This is in light of these response to the Society’s consultation process. The submissions undertakings’ capacity to facilitate reckless lending and fraud – were overwhelmingly supportive of the proposed prohibition on with massive losses to lenders, as in the Lynn and Byrne cases. commercial undertakings. The conflict of interest in which solicitors can find themselves, At its meeting on 16 July 2010, the Council of the Law Society acting for both the borrower and the lender in the same made new regulations to prohibit the giving transaction, is at the heart of the problem. of such undertakings. The new regulations, Statutory Instrument No 366 of 2010, will come proper security into effect on the commencement of the next During the boom years, solicitors were pressurised, professional indemnity insurance year, namely on “New both by borrowers and by lenders, to give letters 1 December 2010. regulations of undertaking to lenders in commercial property Although the giving of commercial transactions. This frequently led to situations where undertakings will not be legally prohibited until that prohibit the undertakings were not complied with, and many 1 December 2010, in the meantime the Society’s the giving of substantial loans were not properly secured. strong advice (as set out in previous eBulletins as An essential part of any banking system is to far back as 14 December 2009) is that solicitors commercial ensure that proper security is in place where loans, should not give commercial undertakings. undertakings particularly of a substantial nature, are advanced. The risk of failure in this regard is greatly reduced reasons will come into if lenders retain their own solicitors to take The Council’s reasons for making these effect on the responsibility for ensuring the security is put in new regulations are summed up in previous place. correspondence to you. In particular, I would commencement A detailed analysis of the new regulations refer you to the memorandum of 31 March 2010, of the next PII and explanation of their practical effects will written by the Society’s immediate past-president appear shortly in the Society’s Gazette. Precedent and Chairman of the Commercial Undertakings year, namely documentation, to assist solicitors to comply with Task Force, John D Shaw. In summary, the on 1 December the regulations, will be supplied. experience of the Society’s regulatory committees I wish to thank the members of the Society’s in recent years, in particular the Professional 2010” Commercial Undertakings Task Force for their Indemnity Insurance Committee, is that the assistance, together with all of the solicitors banks’ ad hoc ‘system’ (with no agreed basis or and other interested parties, who very helpfully consistent usage), under which solicitors gave responded to the consultation process. In both certain types of undertakings in order to complete commercial policy and drafting terms, the regulations are much the better property transactions, exposed the public interest to an for the direct contributions made by so many people, through unacceptable level of risk. It was essentially flawed and beyond the Society’s unprecedentedly extensive consultation on this regulatory control, with a range of damaging consequences for important issue. g the public interest, as experience has demonstrated. The frailties of the commercial undertakings ‘system’ have Gerard Doherty been the subject of critical comment by members of the judiciary, President www.lawsocietygazette.ie 1 Law Society Gazette aug/sept 2010 Contents Law Society Gazette Law Law Society on the cover L a W S OCI e t Y • Vol 104 No 7 • Vol When Little Boy Blue blows €3.75 aug/Sept 2010 his horn, the wind in the Gazette willows changes. But where do Ratty, Mole and toad stand in all of this? gazette au G / S ept 2 010 aug/sept 2010 pic: thinkstock wHiStLe- BLoweRS Law Society of pRotectioNS i reland aND pRoBLeMS Volume 104, number 7 iNSiDe: RiSK MaNaGeMeNt • aLteRNatiVe caReeRS • DiSMiSSaL aND peNSioNS • youR LetteRS subscriptions: €57 regulars 1 president’s message 5 news analysis 10 10 News feature: alternative career options for solicitors 12 News feature: The LRC’s Legislation Directory 14 Human rights watch: hate speech and hate crimes in Ireland 14 One to watch: Planning and Development (Amendment) 18 Act 2010 Comment 17 17 Letters 18 Viewpoint: new legislation on head shops 39 people and places 42 student spotlight 43 parchment ceremonies Briefing 50 50 Council report 52 Practice notes 39 56 Legislation update: 12 June – 31 July 2010 59 Solicitors Disciplinary Tribunal 62 Eurlegal: new EU laws on vertical agreements 66 professional notices 71 recruitment advertising editor: Mark McDermott FIIC. deputy editor: Dr garrett O’Boyle. designer: Nuala Redmond. editorial secretaries: Catherine Kearney, Valerie Farrell, Cliona Collins. For professional notice rates (wills, title deeds, employment, miscellaneous), see page 67. Commercial advertising: seán Ó hOisín, 10 arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. printing: turner’s printing Company Ltd, Longford. editorial board: Michael Kealey (chairman), Mark McDermott (secretary), paul egan, Richard Hammond, simon Hannigan, Mary Keane, aisling Kelly, patrick J Mcgonagle, 42 aaron McKenna, Ken Murphy. 2 www.lawsocietygazette.ie Contents Law Society Gazette aug/sept 2010 get more at lawsociety.ie professional notiCes: send small advert details, with payment, to: Gazette Office, Blackhallp lace, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the all Cheques should Be made paYaBle to: law soCietY of ireland. magazine as far back as Jan/Feb 1997, right up CommerCial adVERTISING: contact seán Ó hOisín, 10 arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news haVe You moVed? members of the profession should send change-of-address • Forthcoming events, including the annual ILaI details to: It section, Blackhall place, Dublin 7, or to: [email protected] seminar, ‘Managing risk in a legal office’, at how to reaCh us: Law Society Gazette, Blackhall place, Dublin 7. Blackhall place on Friday 10 september tel: 01 672 4828, fax: 01 672 4877, email: [email protected] • Employment opportunities • The latest Cpd courses FsC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org … as well as lots of other useful information peFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features CoVER STORY: 20 Blowing the whistle Whistle-blower provisions are slowly becoming a standard feature of new employment legislation. Legal practitioners would do well to familiarise themselves with whistle-blower protection – and its problems – for clients. Andrew Sheridan takes us on a whistle-stop tour risky business 24 With the PII deadline looming, premiums are unlikely to come down until negligence claims follow suit. A key solution to the insurance crisis is to implement formal risk and quality management strategies, says Caroline Murphy Consumer choice 28 The new Consumer Credit Regulations implement the Consumer Credit Directive into Irish law. Max Barrett considers some aspects of the regulations and the changes they make to previously-existing Irish consumer credit law 24 protecting the nest egg 32 The present economic circumstances are causing greater numbers of employees to claim unfair dismissal before the Employment Appeals Tribunal. Paul Twomey argues that practitioners should always consider pension loss when advising their clients in such matters the in-betweeners 36 Properly conducted, mediation often results in the early settlement of difficult disputes – and narrows the issues in disputes that fail to settle. Solicitors have an important role to play, which can be both fiscally and personally rewarding. Roddy Bourke acts as the go-between the law society of ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the law society’s Council, save where otherwise indicated.
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