The Dos And Don’ts Of Section 68

Guidance and Ethics 05/11/2010

Section 68(1) – information in writing about legal charges

Do:

  • Recognise that all clients need to budget for all expenditure in relation to their legal business.
  • Recognise that strict compliance with all aspects of s68 protects both consumers and solicitors and manages the client’s expectations.
  • In all cases, give the client information in writing in relation to legal charges that will be incurred in their case or transaction.
  • Explain that charges include fees and any money that will be paid to another person or organisation on their behalf.
  • Always include information in relation to VAT.
  • Give the actual amount, if this is practical and possible:
    • If this is not practical and possible, give an estimate,
    • If this is not practical and possible, give the basis of charge, 
    • If the basis of charge is being used, give the client details of how they will be charged in their particular case,
    • If time is the basis of charge, time records must be maintained and must be available for inspection in the event of a dispute.
  • Inform the client if you intend asking for money up front, or for the discharge of costs and/or outlays at intervals, prior to the conclusion of the case or transaction.
  • Check out the precedent s68 letters on the members’ area of the Law Society website, www.lawsociety.ie. • Check out the Law Society client information leaflet Information in Relation to Legal Charges in the public area of the Law Society website.
  • Use the client leaflet in conjunction with an appropriate s68 letter to the client, so that the client receives all the information as required by the legislation.
  • Purchase stocks of the client information leaflet from the Law Society (100 per pack, price €21.57 plus €8.50 p&p – contact Esther McCormack at the Law Society).
  • Always include a clause allowing for a revised s68 letter if unforeseen complexities arise.
  • Diary the s68 letter for review at regular intervals during the case or transaction, to check if unforeseen complexities mean that the first letter is no longer correct.
  • Issue a revised s68 if the first letter is no longer correct.
  • Be aware that failure to issue a revised letter, when this should have been done, is viewed as coming within the definition of “inadequate professional services” in terms of conduct.

A signed copy of an up-to-date s68 letter is the solicitor’s best defence in the event of a complaint. Even though a s68 letter may have been sent, in the event of a dispute, it may be difficult to prove that the client received it, if a signed copy is not on file. Maintain your files in a way that makes compliance with s68(1) easy to check in the event of a Law Society accounts regulation inspection or of a complaint being made to the Law Society.

Section 68(3), (4), and (5) – dealing with the client’s award or settlement

Do:

  • Ask the client if they are agreeable to any outstanding costs being deducted from their award or settlement.
  • Get the client’s written authority to make the deduction.
  • Explain that any monies that the solicitor, with the client’s authority, formally undertook to pay to another party out of the proceeds of sale must be paid out, even if the client changes their mind when the award or settlement comes in.

Don’t:

Don’t make a unilateral deduction from the client’s award or settlement in a litigation or other contentious matter without the client’s written consent.

Section 68(6) and s68(2) – litigation or bills for other contentious matters

Do:

  • Charge a professional fee that is reasonable, and state it separately in the bill.
  • State the charges for general expenses, such as stationery or postage.
  • State the charges for people or organisations such as government agencies or experts.
  • State the VAT.
  • Give a summary of the legal work done for the client.
  • Give the total amount of money, if any, recovered from the other side.
  • Give details of any charges recovered from the other side.

Don’t:

  • Don’t state the professional fee as a percentage of any award or settlement, except in debt collection cases.

S68(8) – disputes about bills

Do:

  • Answer any questions the client may have.
  • Discuss the matter with the client and try to resolve all issues.
  • If the matter is not resolved, write to the client explaining their right to have the bill taxed or to make a complaint to the Law Society.

Effective office systems

Have a good office system in place, whether manual or electronic, which will trigger compliance with all parts of s68 automatically.