LegalEagleStar

… a kind of Legal Column

Posts Tagged ‘Circuit Court

The Morality of Lawyers acting for Banks

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Eviction in Ireland around 1879 ("Land Wa...
Eviction in Ireland around 1879 (“Land War”) (Photo credit: Wikipedia)

I qualified over thirty years ago. During that time I’ve had the pleasure of meeting with and acting against some great lawyers, both solicitors and barristers. They fight tooth and nail for their clients and after an exhausting battle, we retire for coffee, or stronger and engage with each other as colleagues. I have great memories over those years and sadly some of these people have died and moved on to greener pastures. They epitomised what the law was about. The battle was by and large, a clean one. You didn’t have to watch your back, just concentrate on the job in hand. Your clients interests were what it was about. There was always a great satisfaction when the job was done and your client went off happy. As I am not in the habit of losing cases, I can say that this was nearly always the case. That might sound smug. It’s not meant to be. I have always surrounded myself with the best team available and this has been the recipe for success.

Unfortunately, all encounters have not been as described above. When dealing with the Irish Nationwide on behalf of a client who was in financial difficulties, I encountered a somewhat different story. The client was clearly in arrears but upon investigation I couldn’t make head nor tail of the figures. No matter how I read them, they didn’t add up. The Nationwide’s solicitors just wanted an Order for Possession and were not prepared to engage in any manner so the matter proceeded in the Circuit Court. Judge Frank Roe, then President of the Circuit Court had the same difficulty with the case as I had and decided to strike out their case and awarded costs to my client. Some days later I received a phone call from the Solicitor for the Building Society. It took me aback somewhat. He told me that he was phoning me on the instructions of his client. He named his instructing Arrears Manager and said he had instructions to call me  ‘a Liar’. I asked him to repeat what he had just said and indeed he did. I asked him did he do everything his client told him to do? He replied Yes, of course. I hung up on him after a few brief words which I will not repeat.

When I was qualified a couple of years I was asked by my local friendly Bank if I would take a look at something for them. As I knew the Assistant Manager, I said ‘No problem’. I was expecting something of a personal nature as I do get the odd call from them when they encounter matrimonial difficulties and such like. What I was presented with was a list of debts outstanding at the branch. I browsed through the list and was horrified as it was like reading a list of old age pensioners in the area. The amounts varied from Fifteen to One Thousand pounds. I stormed into the Bank and informed them that under no circumstances would I take action on their behalf against these pensioners and in fact if they pursued them I would act for free for them against the Bank. I think about three of the pensioners came into me and happily all arrears were written off. It opened my eyes as to how the Banks treat weak and vulnerable people and I made a decision that day that I would never act on behalf of a Bank or Building Society ever, as a matter of principle.

Some months ago I was disgusted, while listened to the Morning Show on Newstalk, to hear a Solicitor talking about how he was really doing well acting in repossessions for the local Banks. He had no qualms about so acting. He went on to say that since the recession had taken a grip that he was now dealing with ‘a better class of client’.  I sometimes wonder about the morality of acting on behalf of some people. If solicitors really valued their clients and by clients I mean people, the citizens of this country, would they not think twice and look beyond the professional fee. How can you in all honesty act for such institutions as the Banks and the cohorts in having someone evicted from their family home ?  Do they have a conscience?  While in other countries lawyers are to the forefront of social reform and indeed put their lives on the line for their principles, it would seem that in Ireland today the lure of manna is all that excites some people who I would once have expected to be men and women of integrity.

LegalEagleStar , Wednesday , 25th. April , 2012 .

Written by LegalEagleStar

April 25, 2012 at 2:33 pm

Divorce in Ireland today in this Economic Downturn

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Divorce Cakes a_007

Image by DrJohnBullas via Flickr

When a marriage breaks down or a long-term relationship ends, it’s a tough time for everyone involved. It’s not just the couple themselves who experience the hurt and/or anger of the separation but also any children that either, or both of them may have, their immediate families and also close friends.  Of course, when a couple separates, it is not as simple as it once was. Today with the economic downturn the money is simply not available to effect a proper separation. People  didn’t need to worry about joint bank accounts and mortgages in the past.  When a relationship breaks down everything needs to be regulated. What were possibly at one time, simple everyday matters, have now to go through the long process of being sorted. Parties need to agree, or have a Court decide, custody and access of any dependent children; deciding where the children primarily live and what days and times the other parent may see their children; child and possible spousal maintenance; what will happen to the family home and any other possible houses or assets, pension entitlements, car/s etc. While an amicable breakup is desirable, it is not always possible and in many cases either one or both parties will look for the kitchen sink from the other. In  previous years, which at this time, seem somewhat of a blur, parties separated and huge settlements and significant maintenance were awarded. Cases were fighting for dates to be heard in the High Court. Nowadays, the High Court lists are quite slim with the majority of cases being heard in the Circuit Court.

There are now huge difficulties for lawyers trying to negotiate settlements even where an agreement is reached between the parties. To use by way of example, the following scenario. Say there is a family home and an investment property, and the agreement reached is that one party remains in the family home with the children, while the other party is to live in the investment property. It is agreed that each will be the sole owner of the respective properties and be responsible for that property’s mortgage while allowing the other party off  the mortgage. The Court rules the settlement, but then the Banks will not allow either party off either mortgage. This, even where the parties indemnify each other to the best of their abilities and with the best of intentions. Where one party later defaults, the Bank can still go after both parties and the settlement reached can effectively become worthless.

So, what do people need in a good family lawyer?  Some individuals falsely believe, that by going to one of the Big Named Law Firms, they are getting the best Solicitors and Barristers in the business. In the current economic climate, I believe that some firms continue to charge inordinate fees, when people are struggling to maintain one household, let alone two, which is the effect post separation. I believe this is unjust. While some cases involve more working hours than others and fees vary in this regard, I do not believe people should be paying more for one solicitor than another largely due to the name that appears on the headed paper. Unlike Solicitors, Barristers are a completely independent body and again, while some cases involve more time and paperwork than others, Barrister’s fees will, in most part, be the exact same whether acting for a Big Firm or a Small Practice. Many successful Family Law Barristers, contrary to common belief, act for everyone from the Legal Aid Board, to the local one man solicitor who employs two people, right up to the big firms who employ several hundred. In the times that we live in, it’s also important to remember, that while you do not want to be ‘ripped off ‘  and would like value for money, equally you must be aware of these so-called ‘quickie divorces’ where you think you are getting a bargain and the fees are very low. Later down the line however, you may find yourself in difficulty where transactions haven’t been completed or haven’t in fact been done correctly. In deciding what Solicitor to engage, you must think about yourself and what your needs are.  Some Solicitors and Barristers in the family law field have an aggressive approach, while others have a nurturing view. And then others, just effectively, say it as it is. Personally, I believe a down to earth, friendly, straight forward approach is ideal. I also believe that a party going through a separation has enough physical and mental strain going on in their lives, that an aggressive legal team can sometimes make matters worse and the hopes of a settlement between the parties becomes more difficult. While your legal team does not necessarily need to be your friend, you do need to be comfortable with them and be able to speak openly  in order for them to best meet your needs.

What are you paying for?  You may see your bill at the end of a case and wonder how this figure appeared? Initially, a Solicitor will take your  instructions, explain the different options open to you and then write to the other party involved, informing them of your intention to separate and regulate matters between you. If you agree on a Separation Agreement, the Solicitor will draft this up and you will not need a barrister, nor will you attend Court. A Separation Agreement is in effect, a contract between the two parties and any breach thereof is a breach of contract. If the parties agree to a Judicial Separation or Divorce, in many cases a solicitor will brief a Junior Counsel (barrister) and, in some cases, a Senior Counsel also. The Barrister’s role is to draft the appropriate Court documents and deal with any Court appearances which, in some cases may just be one on the day of the hearing or, in other cases, where interim orders are required and/or where the other party is reluctant to participate in the case. In the latter scenario, Orders to compel them to do so, or have Orders made in their absence may be required.

Unfortunately, relationships will break down in good times and bad. Today we are in unprecedented times and the legal profession must respond to the needs of their clients in a way that reflects the true values in our society. Those values have unfortunately been decimated by the few in our profession who represent the vested interests of those who control our society. It’s time that the legal profession asserted itself in the interests of all who serve the interests of the citizen and lead the demands for true reform and oppose the obscene vested interest groups who seek the ruination of our society and the downgrading of the rights of our Citizens. Elsewhere in the world today, it is the legal profession who are at the forefront of reform in the interests of the citizen and who suffer in such a cause. In Ireland  it should be no different. The politicians today are looking after the interests of the IMF/EU and the Banks, so there is a clear conflict of interests with the concerns of the Citizen.

Those who are unfortunate enough to suffer relationship breakdown in these troubled times deserve to be represented by us in the legal profession, having regard to the considerable strains that people are now enduring. Yes, the strain on relationships is now far greater in such troubled times. There are those that pull together in times like these but bad relationships will certainly not survive the additional stress they must endure today.

LegalEagleStar , Thursday , 30th. June , 2011

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