Solicitors’ rights and obligations as officers of the courts are derived from section 78 of the Judicature (Ireland) Act 1877 – which states: “any solicitors, attorneys or proctors to whom this section applies shall be deemed to be officers of the Court of Judicature: and that that court and the High Courts of Justice and the Court of Appeal respectively or any division or judge thereof, may exercise the same jurisdiction in respect of such solicitors or attorneys as any one of Her Majesty’s superior courts of law or equity might previously to the passing of this act have exercised in respect of any solicitor or attorney to practise therein” – and section 61 of the Courts (Supplemental Provisions) Act 1961.

There is no legislative definition of the duties of solicitors as officers of the court, and case law provides guidance. Rights and duties accrue to solicitors by virtue of their relationship with the court. The 4th edition of the Solicitors Guide to Professional Conduct (2022) states that "a solicitor owes a duty to do the best for their client. A solicitor also owes a duty to the court as an officer of the court”.

The superior courts have an inherent supervisory role over solicitors who are officers of the court due to the nature of solicitors’ positions, which gives certain rights and privileges. This is to ensure that solicitors comply with their ethical obligations and act with the highest standards of conduct. The purpose of the court’s jurisdiction is to enforce honourable conduct by an officer of the court. The supervisory role of the court is separate to that of the Law Society or the Legal Services Regulatory Authority, and allows the court to discipline or penalise solicitors who have failed in their duty to the court.

The supervisory jurisdiction of the court over solicitors applies in the following areas:

• Enforcing solicitors’ undertakings or compensating for loss,
• Penalising solicitors for neglect,
• Imposing liability for costs on solicitors,
• Ensuring proper accounting for clients’ money by solicitors,
• Ordering former solicitors to deliver up client files,
• Imposing sanctions on solicitors in contempt of court, and
• Orders to tax legal costs.

Every solicitor should obtain a clear and unambiguous written authority from his client that authorises an undertaking to be given by the solicitor on the client’s behalf and that sets out the nature and extent of the action to be performed. A solicitor must be able to comply with his undertaking without reliance on any other party. When the court’s inherent jurisdiction is invoked to seek sanction against a solicitor for failure to comply with an undertaking, the court will investigate whether an undertaking has been given by the solicitor, the terms of it, if the terms are clear, and whether it is capable of implementation. If the undertaking can be complied with, the court will generally direct compliance with the undertaking given by the solicitor and/or, alternatively, will consider whether a party has suffered loss and may direct compensation to be paid to the party suffering loss.

An undertaking can be given by a solicitor verbally. In the case of Fox v Bannister, King and Rigbeys CA ([1988] QB 925), a solicitor said he would not part with moneys from a sale by a client. The court found this statement was an undertaking to another firm of solicitors and directed an inquiry into the loss of the firm of solicitors due to breach of this undertaking, to allow compensation to be given.

In Bank of Ireland v Coleman & Company ([2009] IESC 38), the bank sought to recover its entire debt plus interest from the solicitor due to the solicitor’s failure to obtain a priority charge over the property. The Supreme Court allowed an appeal by the bank and said that the court, in exercising its discretion, must have regard to the integrity of the lending system, but as the bank, through its own negligence, provided a loan on an overvaluation of a property, payment of the entire debt plus interest due was not directed, and the High Court was directed to assess the compensation due to the bank. The Supreme Court said that the court’s jurisdiction must not be exercised in a manner that would be oppressive to the solicitor.

In ACC Loan Management Ltd v Barry & Ors ([2015] IECA 224), the Court of Appeal said that the court cannot make a formal declaration of misconduct against a solicitor as it is not a cause of action in law. It is a matter for the Law Society Solicitors Disciplinary Tribunal to determine whether failure to comply with an undertaking is professional misconduct.

The court relies on solicitors to comply with their duties to take careful instructions from their clients, to prepare their pleadings carefully, and to represent their client as best they can, but also to comply with their duties to the court of candour and disclosure. Solicitors cannot avoid this duty by relying on counsel or legal executives to carry out work that is the solicitor’s responsibility. 

Please note that this practice note was last updated on 9 November 2023