LAW SOCIETY
GazetteGazette€3.75 November 2009
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MacDonagh Boland Crotty MacRedmond Ltd. t/a Aon MacDonagh Boland is regulated by the Financial Regulator. president’s message Law Society Gazette november 2009 A year of upheaval
s I write this, I have only a few days left to go until the end of my term and, as you might expect, I have mixed emotions. It has been a great honour to beA your president but, equally, I will not pretend that it has been an easy ride. In the Society’s annual report, I have expressed some personal views on the challenges facing the profession going forward, but, in the past year, it has been the upheaval in the professional indemnity insurance market that has commanded our undivided attention in Blackhall Place. I have written to you separately to inform you of the changes during the year we got to meet, talk and listen to colleagues to the regulations that we have made at the behest of the in Cavan, Clare, Donegal, Dublin, Galway, Kildare, Leitrim, insurers. There is no easy solution and our best path lies in Louth (and Drogheda), Meath, the Midland Bar, Sligo, sticking together and working through the problem. It is all Waterford, Wexford and Wicklow. By the time you read this, the more difficult, as some factors are beyond our control and we will also have been in West Cork and Cork at the SLA the Council has had to make some big decisions AGM. We have been treated with great courtesy to try and ensure that cover is available and and hospitality, and it is great to see so many affordable to as many as possible. “We are vibrant bar associations. Obtaining stability well used to ‘Meet your colleagues day’ Unless there is a dramatic decrease in claims, employing our Don’t forget that Thursday 12 November, we are facing similar problems next year and has been designated as ‘Meet your colleagues we may have to make further substantial problem-solving day’. Everybody is in the same boat, and your changes in order to obtain some stability. skills for our colleagues can be a great source of support and However, we are well used to employing our assistance to you. problem-solving skills for our clients – now clients – now Nothing endures but change – do not we have to be just as creative for ourselves. we have to be underestimate your ability to adapt and change. In this regard it has been a great comfort Remember the theory of evolution – the to me that the individual members of the just as creative survival of the fittest does not necessarily favour Council have engaged so positively. I take for ourselves” the strongest or the biggest, but the one who the opportunity to thank them, one and all, can adapt to the changing environment. especially the members of the Professional Finally, I also take this opportunity to wish Indemnity Insurance Task Force, led by my successor, Gerard Doherty, all the best as he Niall Farrell. I am also greatly encouraged by the takes over the role as president. It has been a privilege to have constructive attitude of colleagues all across the country served you and I am very grateful to you all. who understand that unprecedented times require Thank you. unprecedented measures. Both the director general, Ken Murphy, and I have been John D Shaw made very welcome at every bar association we attended – and President
www.lawsocietygazette.ie 1 Law Society Gazette november 2009 contents
On the cover LAW SOCIETY Reduced hours and lay-offs are part and parcel of many businesses’ attempts to save costs in a recession. But both employers and employees need to be aware of their respective Gazette obligations and rights November 2009 pic: getty images
Volume 103, number 9 Subscriptions: €57 Regulars 1 President’s message 4 News Analysis 10 10 News feature: new PII guidelines 12 News feature: biggest-ever gathering of law society CEOs 14 News feature: Career Support, six months on
Comment 6 17 17 Letters 44 People and places 46 Student spotlight Book reviews 47 Law and Practice: Essays on Reform, Corporate Governance and Regulation and Trade Marks Law
Briefing 50 50 Council report – 25 September 2009 51 Practice notes 12 52 Solicitors Disciplinary Tribunal 53 Legislation update: 12 September – 12 October 2009 54 Firstlaw update 57 Eurlegal: anticompetitive information exchanges 61 Professional notices
Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 61. 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: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paul Egan, Richard Hammond, Simon Hannigan, Michael Kealey, Mary Keane, 44 Aisling Kelly, Patrick J McGonagle, Ken Murphy.
2 www.lawsocietygazette.ie contents Law Society Gazette november 2009
Get more at lawsociety.ie PROFESSIONAL notices: send small advert details, with payment, to: Gazette Office, Blackhall Place, 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 details of FLAC’s details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] third annual Dave Ellis Memorial Lecture on HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Tuesday 1 December at 6pm at Blackhall Place 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 Nine to five? 18 In straitened times, employers may consider cutting their workers’ hours – but it’s essential that they examine their current obligations to their workforce. Sinead Morgan totes that bale Another slice of the PII 22 The Law Society has made further changes to the professional indemnity insurance regulations, in order to do what it can to encourage a viable stable market. John Elliot offers this article as a practical guide Cash is king 28 Given the current economic climate and regulatory requirements, all firms need to focus on taking control of the office and client ledgers. Make your funds work efficiently for you, say Yvonne McCormack and Damian McCarthy Artful dodgers 32 The Finance (No 2) Act 2008 introduces significant 32 changes to the civil penalty regime that applies to tax defaulters. How has the regime changed and how relevant are these changes to your legal practice? Gráinne Duggan explains Other people’s money 36 Third-party litigation funding allows someone unconnected with the litigant to provide funds to pursue a lawsuit. The practice is well established elsewhere, but not in Ireland. Aileen Murtagh gets out her cheque book The media is the message 40 Marketing your practice is vital, especially in a recession, say Emily Maher and Donal Cronin
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. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie 40
www.lawsocietygazette.ie 3 Law Society Gazette november 2009 news nationwide
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cork positive meeting. Since then, President of the Southern Law the situation has been fluid, and Association (SLA) Mortimer a series of Law Society Council Kelleher reports on a very busy meetings have been held. The period since the beginning of best news emanating from the September. The SLA was the recent DSBA AGM was when, first bar association to hold by way of an aside, Laurence K a seminar in relation to the Shields indicated that the SMDF vexed question of professional would be rolling out its proposal indemnity insurance (PII). forms, which I expect all have This took place at the Law received by now. Society’s premises at Courthouse The opening of the Michael- Chambers, Cork, on Monday 14 At the recent conferral of Diplomas in Family Law at the Law School in mas law term was celebrated in September. There was a record Cork were (l to r): Marian Barry, Karen Bohane, Jennifer Smith, Jane the traditional way, with masses attendance of 225 solicitors. Moffatt (Law Society, Cork), Rosemary Horgan (Law Society Family Law and services in St Michan’s, Committee), Aoife Byrne, Iseult Cronin, Mary O’Callaghan and James The assembled solicitors were O’Sullivan (chairman, Education Committee) where the Archbishop of Dublin addressed by Niall Farrell, Diarmuid Martin concelebrated, chairman of the Law Society’s Lisbon a resounding ‘yes!’ arranged for the attendance followed by a reception in the PII Committee, and Jim Graham Cork celebrated the start of the choir, who performed King’s Inns, where a very large of the SMDF. Michael Enright, of Michaelmas Term with an magnificently on the day. crowd attended. Dr Martin solicitor, was the moderator. ecumenical service of morning A cocktail party took place in urged the congregation of Mortimer Kelleher was ably prayer at St Francis’s Church in the Long Island, Washington judges, lawyers and diplomats to assisted by vice-president Gail Liberty Street, Cork, presided Street, Cork, on 15 October in work to strengthen the fabric of Enright and Patrick Dorgan. over by Dr John Buckley aid of Cork’s Simon Community. society and make it more caring. The SLA’s annual conference (Catholic bishop of Cork and This extremely successful event Also speaking at the service, took place in Lisbon from 17-19 Ross) and the Rt Rev Paul raised the sum of €1,450 for the bishop of Limerick and September. The association was Colton (Anglican bishop of charity. Kildare, Trevor Williams, called honoured by the attendance Cork, Cloyne and Ross). Fr on all present to work to ensure of Circuit Court Judge James Charles Conroy MSC delivered dublin that post-Celtic Tiger Ireland O’Donohoe and his wife Helen. a challenging homily. Fr Charles Not wishing to outdo Mortimer would become a compassionate Prof Brian Carroll of UCC also has been a professor of sacred with his record attendance society. He cited the recent joined the conference at the scripture at the Gregorian for the SLA’s meeting on PII words of former President Mary headquarters of the Conselho University in Rome for many matters, the DSBA’s event on Robinson, when she said that the Distrital de Lisboa da Ordem years. In particular, he drew a the same topic in late September lack of a comprehensive vision dos Advogados Portugueses. distinction between wisdom had them ‘hanging from the of the sort of society we wanted The seminar was very kindly and knowledge and turned rafters’ in the Education Centre was at the heart of the problems hosted by the vice-president Nietzsche on his head. Among in Blackhall Place. Upwards Ireland faced. for international affairs of the the large attendance were judges, of 250 colleagues attended for Perhaps it was the expectation Lisbon Bar, Jaime Medeiros, solicitors, barristers, gardaí the interaction with President that an election for positions on and was chaired by Judge and others associated with the of the Law Society John D the DSBA council was at stake, O’Donohoe. The SLA president administration of justice in Cork Shaw and the director general, but a record crowd attended the spoke on the Solicitors’ Accounts city and county. The ceremony Ken Murphy. While billed DSBA AGM. John P O’Malley Regulations, while Brian Leahy BL has been pencilled in for the first as a routine meeting, there takes over as president, and I and Michael McGrath BL spoke Monday of every October from was no doubting the interest know he will do a very fine job. on judicial review and licensing, now on. Mortimer expresses in the main issue of the day. Newcomers to council elected respectively. Mr Medeiros spoke the gratitude of the SLA to Great clarity was brought to on the night were Aaraon about Portuguese law and the the Franciscan Fathers and, in the matter, with contributions McKenna, William Aylmer and constitution. Meeting colleagues particular the guardian, Father from Niall Farrell, Laurence K Aine Hynes. G from another EU jurisdiction Eugene Barrett, who permitted Shields, Jim Graham (SMDF) made for a very enjoyable and the use the church, arranged for and others. The reaction of ‘Nationwide’ is compiled by Kevin positive experience. Mortimer the publication for the order colleagues afterwards was that O’Higgins, principal of the Dublin says that the delegates gave of service and, importantly, it had been an informative and law firm Kevin O’Higgins.
4 www.lawsocietygazette.ie news Law Society Gazette november 2009 Society conference looks to the future he Law Society’s ‘New and TEmerging Opportunities for the Legal Profession’ conference will take place on Monday 30 November, with an impressive line-up of speakers. The conference, which is sponsored by Bank of Ireland, will consider business areas poised to go through significant change and development over the next few years. It will explore how Irish law firms and solicitors can carve out for themselves a significant share of Prof Niamh Brennan Martin Territt BL Dr Mary Kelly work that will follow. The conference will be including Prof Niamh CEO of the Environmental Centre for European Law. chaired by incoming Law Brennan, who is academic Protection Agency, Dr Tom Byrne, a director with Society President Gerard director of the Centre for Mary Kelly, will address EcoSecurities, a company that Doherty and will review the Corporate Governance at environmental developments has enjoyed huge international following business areas: UCD, Aidan Horan who heads and their potential impact success in carbon trading, will • Governance, up the Governance Forum on the legal world. Company focus on international business • Environment, at the Institute of Public secretary of Eirgrid, Niamh opportunities. • EU and international Administration, and Prof Liam Cahill BL, and Denis Cagney Kevin Prendergast of business, and O’Malley of NUI Galway. of the Commission for Energy the Office of the Director • Regulation and compliance. Regulation will both speak of Corporate Enforcement about energy production will tackle the issues of Looking to the future challenges. Also on the panel is regulation and compliance. Rather than looking at what law David Geary of Imera Power, Also on the panel will be Peter firms are currently doing, this a company that aims to unlock Oakes, managing director conference will focus on the the potential of renewable of Compliance Ireland, and views of non-solicitor experts energy across Europe. Maurice Buckley, CEO of the – about how they see their Dealing with EU and National Standards Authority areas of expertise progressing, international business matters of Ireland. and how they believe the legal will be Martin Territt BL, Time spent at this profession should position director of the European conference qualifies for CPD itself in order to have a role in Commission Representation in management/group-study emerging opportunities. Ireland. He will be joined by credits. Places can be reserved The speaker list features Emily Gibson BL of the Irish by contacting the CPD Focus some of Ireland’s foremost Society for European Law, and team, tel: 01 881 5727 or email: authorities on governance, Andrew Beck BL of the Irish [email protected].
www.lawsocietygazette.ie 5 Law Society Gazette november 2009 news Outgoing High Court president issues warning on independence of judiciary
he outgoing President of P ic : Conor Mc C a be/J as on la r k e h o t g aphy President Shaw thanked him Tthe High Court, Mr Justice for presiding over and speaking Richard Johnson, has warned at the formal ceremonies against the independence of the in Blackhall Place at which judiciary being undermined. In solicitors are formally admitted an address to the High Court to the Roll. “In your time as on his final day as president on president, you have scarcely 23 October, Mr Justice Johnson missed one of these ceremonies noted that certain members of and the newly-qualified the legislature had been recently solicitors, and their parents, all critical of the independence of comment on your great good the judiciary. It would be a bad humour and the ease with which day for the country, he warned, you mix with everybody. When if the judiciary did not remain you address the parents, you independent. give them one instruction, and Any undermining of the that is to bring their newly- The President of the High Court, Mr Justice Richard Johnson, at a recent independence of the judiciary Law Society parchment ceremony, with Law Society President John D qualified offspring out for a would lead to a situation where Shaw and director general Ken Murphy good party and to pay for it!” the judges would be subject Other tributes were paid to the same pressures as TDs, have transformed the non-jury in their duties – duties owed to by Michael Collins SC councillors and planning officials, list, even if it means that some their clients, to the courts, to (chairman of the Bar Council), he said, adding: “I doubt they solicitors and counsel have had their colleagues and the public John O’Malley (president of would be accompanied by brown their horizons widened and generally – and who do not the Dublin Solicitors’ Bar envelopes, but it is very necessary have become better acquainted maintain high standards are dealt Association), Brendan Ryan that we protect against it. with the courthouse comforts with appropriately. You have (chief executive of the Courts “The public do not want of Cavan, Tullamore and not been found wanting in this Service) and Kevin O’Neill clever judges, they do not want Baltinglass. But you can be well regard.” (chief registrar). brilliant judges, but they want and truly satisfied that you leave honest judges and they want the sh