LAW SOCIETY GazetteGazette€3.75 July 2008 SHARK-INFESTEDSHARK-INFESTED WATERS?WATERS? 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But there are issues to be considered before setting foot in what Gazette might be shark-infested SHARK-INFESTED waters July 2008 WATERS? PIC: GETTY IMAGES Acting as a client’s executor Volume 102, number 6 INSIDE: BYRNE STRUCK OFF • FYFFES, PART 2 • MENTAL HEALTH TRIBUNALS • ONLINE LEGAL RESOURCES Subscriptions: €57 REGULARS 5 President’s message 7 News Analysis 14 14 News feature: lawyers’ complicity in war crimes 16 News feature: international commercial arbitration conference 18 Human rights watch: victims’ rights and the principles of justice 18 One to watch: Criminal Law (Human Trafficking) Act 2008 11 Comment 21 21 Letters 22 Viewpoint: Is the Criminal Law (Sexual Offences) Act discriminatory? 48 People and places Book review 55 Clinical Practice and the Law (2nd edition) 56 Tech trends Briefing 58 58 Practice notes 61 Legislation update: 21 May – 13 June 2008 51 62 Solicitors’ Disciplinary Tribunal 64 Firstlaw update 66 Eurlegal: Irish competition law 70 Professional notices 73 Recruitment advertising Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Valerie Farrell, Laura Wipfler. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 71. 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), Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, 53 Philip Nolan. 2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JULY 2008 Get more at lawsociety.ie PROFESSIONAL NOTICES: send your 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 to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, 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 CPD details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Focus Advanced Advocacy Course from Subscribers to the Gazette should send change-of-address details to: 1-5 September Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • Employment opportunities • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] FEATURES COVER STORY: 24 Will you, won’t you? What do you do if the issue of you acting personally as executor of your client’s will comes up? Tom Martyn looks at the issues you should consider and the additional responsibilities of the solicitor executor Breaking up is hard to do 28 Advising on and drafting a prenuptial agreement is fraught with difficulty. Ann FitzGerald looks to the Report of the Study Group on Prenuptial Agreements for marriage guidance Terms and conditions apply 32 When it comes to advertising financial products and services, the ‘usual terms and conditions apply’ – but what about the ‘sneaky ones’? Max Barrett peers at the small print It ain’t what you do... 36 Following last month’s article on the Fyffes case and the tests used in assessing whether a particular piece of 32 information is price sensitive, Conor Feeney looks at a bunch of related issues Far from the madding crowd 40 Now that mental health tribunals have been in operation for the past 18 months or so, it might be useful to examine how they are working out in practice and to reflect upon some aspects of their operation, says Gary Lee Going native 44 There has been a dramatic growth in the availability of Irish legal resources on the internet over the past ten years. What’s remarkable is that so many of these are available free to use from primary and authoritative providers. John Furlong breaks out his surfboard 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] Law Society website: www.lawsociety.ie 44 www.lawsociety.ie 3 LAW SOCIETY OF IRELAND ESSENTIALS OF LEGAL PRACTICE COURSE 2008 Dates: 5th August to 27th August 2008, Intensive in its nature, it will bring professionals up-to-speed (Monday to Friday) in these areas, in a concise, condensed manner during the Venue: The Education Centre, The Law Society of month of August, a time usually reserved for vacation. Ireland, Blackhall Place, Dublin 7 Upon successful completion of this course (and the in- Times: 9.30am to 4.30pm each day office period – up to a maximum of 6 months), barrister Cost: €2,700 per person candidates are eligible to be entered on the Roll of Solicitors. Who Should Apply: - Barristers (with 3 years experience in practice, whose Course Outline: applications have been pre-approved by the Topics to be covered include: Education Committee) who wish to transfer to the 1. Professional Practice, Conduct and Management solicitor’s profession. 2. Solicitors’ Accounts Regulations - Solicitors who have been out of practice for a number 3. Probate and Taxation of years and are seeking to refresh their knowledge, 4. Conveyancing for the purpose of re-entering practice. - Registered European Lawyers and Qualified Lawyers This course will be delivered through a combination of Transfer Test candidates. lectures and tutorial based teaching and learning - Other legally qualified applicants with the prior methodology. Attendance at all elements is mandatory. approval of the Education Committee. Aim and Objectives: Contact Details: This course aims to cover the core essentials of legal practice. For further details please call Alison Egan, The Law Society of Ireland, Topics include Professional Conduct, Solicitors’ Accounts Education Department phone :01 672 4802 Regulations, Conveyancing and Probate/Tax modules. email: [email protected] | website www.lawsociety.ie. An té nach bhfuil láidir ní folair dó a bheith glic! s the Chinese curse goes: ‘May you live in interesting times’. Change in the general economy provokes change in the legal economy. Colleagues, A therefore, have to respond promptly and flexibly to changing circumstances and tailor their practices to suit their personal requirements and market conditions. To that end, the Society, through its Practice Management Task Force, chaired by Philip Joyce, has been hard at work over the last year, conducting research in order to offer guidance to colleagues who however, was securing the talents of Kevin O’Hara, “Hand on wish not only to rise to present challenges, but also to linguist and psychologist, to lead the course. The heart, I have seize the opportunities that change can present. It is feedback was universally enthusiastic and, in his own intended to present this guidance at seminars inimitable fashion, he has instilled in all of us a sense of to say, I am throughout the country, and I would encourage as fun, confidence and responsibility where the language extremely many of you as possible to attend and benefit from the is concerned. hard work and sound thinking of Philip and his team. Kevin also leads the more advanced CPD Certificate proud of the Continuing on the theme of flexibility and creative in Legal Irish course, geared to equip colleagues to imaginative thinking, I want to bring to your attention an exciting practise through Irish.