legal discussion

Red Hare

is it possible to have a legal discussion on this forum free from presumption that a Solicitor’s advice is being sought or is wanted or welcome?can interested members of the public post here ?

Peregrinus

Red Hare wrote: »

is it possible to have a legal discussion on this forum free from presumption that a Solicitor’s advice is being sought or is wanted or welcome?can interested members of the public post here ?

You can have a legal discussion about points of law. What you can't do is seek legal advice about your situation, or give legal advice about someone else's situation, since giving legal advice is something that only qualified and regulated practitioners are permitted to do.

Yyhhuuu

Peregrinus wrote: »

You can have a legal discussion about points of law. What you can't do is seek legal advice about your situation, or give legal advice about someone else's situation, since giving legal advice is something that only qualified and regulated practitioners are permitted to do.

Even if you were to give a legal opinion or legal advice as a lay person I don't think it would be possible to be sued in negligence were it to transpire the opinion or advice was incorrect. You did not hold yourself out to be an expert or professional in the field.

Were he to be giving advice in a professional capacity I think the standard to be applied would be that of a reasonable and competent professional in the field. If you hold yourself out to have expertise in a particular field then the standard would I expect be higher.

Peregrinus

It's not a matter of being sued in negligence; it's a matter of being prosecuted for practising law (by providing legal advice) without a licence. Boards.ie would also be at risk, which is why Boards rules forbid this. It makes no difference whether the advice is any good or not.

If you want legal advice, you need to approach a suitably qualified and regulated legal practitioner. It's an offence for anyone else to provide legal advice. Boards does not want to be involved in the commission of an offence; therefore, Boards does not allow legal advice to be provided through its boards.

(Disclaimer: My statements about the legality of providing legal advice are not intended to be, and are not to be taken as, legal advice. If you want to know whether Boards would be at legal risk for hosting a forum in which legal advice was provided, consult a solicitor.)

Yyhhuuu

Peregrinus wrote: »

It's not a matter of being sued in negligence; it's a matter of being prosecuted for practising law (by providing legal advice) without a licence. Boards.ie would also be at risk, which is why Boards rules forbid this. It makes no difference whether the advice is any good or not.

If you want legal advice, you need to approach a suitably qualified and regulated legal practitioner. It's an offence for anyone else to provide legal advice. Boards does not want to be involved in the commission of an offence; therefore, Boards does not allow legal advice to be provided through its boards.

(Disclaimer: My statements about the legality of providing legal advice are not intended to be, and are not to be taken as, legal advice. If you want to know whether Boards would be at legal risk for hosting a forum in which legal advice was provided, consult a solicitor.)

I personally do not engage in providing legal advice and nor am I endorsing it.

What I understood the offence involved was holding oneself out to be either a solicitor or barrister when clearly not as these amongst others are protected names. Similarly an Architect, pharmacist etc is a protected name.

A lay person I.e. non-solicitor or non-barrister would be giving information rather than advice I assume.

Perhaps if somebody sought remuneration for legal advice this would be an offence? I'm not directing this question at you personally.

It would be interesting to know the details of this offence.

Disclaimer: My statements about the legality of providing legal advice, or any comment made by me on this forum whatsoever are not intended to be, and are not to be taken as, legal advice. If you want to know whether Boards would be at legal risk for hosting a forum in which legal advice was provided, consult a solicitor or slicitor and barrister and pay them)

Peregrinus

The offence is created by Solicitors Act 1954 s. 55(1): "An unqualified person shall not act as a solicitor". The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice.

Holding oneself out as a solicitor is a separate offence under s. 56(1). ("A person who is not a solicitor shall not pretend to be a solicitor or take or use any name, title, addition or description or make any representation or demand implying that he is a solicitor".)

You can't argue that a lay person can't act as a solicitor and therefore can't commit the s. 55 offence. The whole point of the offence is to stop lay people providing legal services, even when they are not holding themselves out as solicitors.

Chiorino

On this basis, what is the defining line between a lay litigant "assisting" another lay litigant/McKenzie friend and a solicitor representing a client? Thinking of all the groups that are/were around like the Hub and Ben Gilroy. If it walks like a duck......

Peregrinus

Chiorino wrote: »

On this basis, what is the defining line between a lay litigant "assisting" another lay litigant/McKenzie friend and a solicitor representing a client? Thinking of all the groups that are/were around like the Hub and Ben Gilroy. If it walks like a duck......

I suspect those groups are operating in, um, murky waters, legally speaking.

As regards McKenzie friends, if you are a litigant representing yourself in court, you may be accompanied by a friend who can provide moral support, take notes, help you with the papers and documents you are using in court and quietly advise you on the presentation or conduct of your case. But your friend may not address the court, act as your agent in relation to the proceedings (e.g. by receiving documents or signing documents on your behalf) or receive any payment for what they do. And they may not, of course, provide advice on the legal issues that arise in the proceedings.

Yyhhuuu

Peregrinus wrote: »

The offence is created by Solicitors Act 1954 s. 55(1): "An unqualified person shall not act as a solicitor". The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice.

Holding oneself out as a solicitor is a separate offence under s. 56(1). ("A person who is not a solicitor shall not pretend to be a solicitor or take or use any name, title, addition or description or make any representation or demand implying that he is a solicitor".)

You can't argue that a lay person can't act as a solicitor and therefore can't commit the s. 55 offence. The whole point of the offence is to stop lay people providing legal services, even when they are not holding themselves out as solicitors.

The provision of legal services implies remuneration therefor. Clearly this is not permitted for the lay person.

However you omit to mention Building Societies are in fact permitted to provide legal services I.e. conveyancing services oin the legislation , s.31 of the Building Societies Act , 1989 springs to mind. This is just one example.

You stated The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice.

Could you please supporting case law for this assertion.

A friend once asked me to draft a will on her behalf for free. I did not hold myself out to be a solicitor. She merely asked me as a friend as she knew I knew a lot about sucession matters. Are you saying I would have committed an offence had I obliged her and drafted the will? It would be most unfair that if I obliged this friend and not seeking remuneration but merely altruistic reasons that I could be deemed to commit an offence. Surely this was not intended by the legislators and courts would concurr?

You should supply case law to support these assertions as clearly this matter is not defined in statute.

Peregrinus

Yyhhuuu wrote: »

The provision of legal services implies remuneration therefor. Clearly this is not permitted for the lay person.

I don't see any implication that the Act only forbids the provision of legal services by unqualified persons when it is done for reward. If that was the intention, surely the Act would say so?

Yyhhuuu wrote: »

However you omit to mention Building Societies are in fact permitted to provide legal services I.e. conveyancing services oin the legislation , s.31 of the Building Societies Act , 1989 springs to mind. This is just one example.

I omitted to mention that and other exceptions because nobody asked about exceptions. But the existence of the various exceptions just underlines what I am saying. There would be no need for the various exceptions if there wasn't a rule from which exception was required.

Yyhhuuu wrote: »

You stated The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice.

Could you please supporting case law for this assertion.

I'm afraid that would be legal advice. Do your own research, or ask a qualified person to advise you on this point.

Yyhhuuu wrote: »

A friend once asked me to draft a will on her behalf for free. I did not hold myself out to be a solicitor. She merely asked me as a friend as she knew I knew a lot about sucession matters. Are you saying I would have committed an offence had I obliged her and drafted the will?

Yes.

Yyhhuuu wrote: »

It would be most unfair that if I obliged this friend and not seeking remuneration but merely altruistic reasons that I could be deemed to commit an offence. Surely this was not intended by the legislators and courts would concurr?

It certainly was. Think about the reason for the prohibition in the first place. The harm that results from having important legal documents drafted by people who don't know what they're doing is in no way mitigated if those people weren't paid for their services. Allowing unqualified people to provide legal services so long as they aren't paid for it would be similar to allowing unqualified people to practise surgery so long as they aren't paid for it. In both cases, the payment isn't the issue; it's the lack of qualification and regulation.

Yyhhuuu

Peregrinus wrote: »

I don't see any implication that the Act only forbids the provision of legal services by unqualified persons when it is done for reward. If that was the intention, surely the Act would say so?


I omitted to mention that and other exceptions because nobody asked about exceptions. But the existence of the various exceptions just underlines what I am saying. There would be no need for the various exceptions if there wasn't a rule from which exception was required.


I'm afraid that would be legal advice. Do your own research, or ask a qualified person to advise you on this point.


Yes.


It certainly was. Think about the reason for the prohibition in the first place. The harm that results from having important legal documents drafted by people who don't know what they're doing is in no way mitigated if those people weren't paid for their services. Allowing unqualified people to provide legal services so long as they aren't paid for it would be similar to allowing unqualified people to practise surgery so long as they aren't paid for it. In both cases, the payment isn't the issue; it's the lack of qualification and regulation.

You obviously have a lot of time on your hands which I dont have right now so I'm not going to deal with each point you raised verbatim.

I submit the reason you omitted to provide details of the exceptions where non solicitors can provide legal services was because you were unaware of it until I brought it to your attention. Your earlier assertion was categorical in stating only solicitors could provide legal services. You should have outlined the exceptions and were you aware of them you would have.

Certain stationers provide wills for sale. This is also permitted under the law . I see no difference to a lay person helping a friend by providing a validly drafted will based upon the text of the contents of one of these holographic wills bought in leading stationary shops or better still using attestation clauses etc found in leading Irish sucession law precedents provided one is not holding oneself out as a solicitor nor seeking remuneration therefor.

you providing excerpts from the Solicitors Acts , which have been amended subsquently but said amendments were omitted by you . You also opined that certain actions were an offence although not explicitly stated to be in the legislation.

When I asked you to cite the relevant case Law in support of this your reply was that this would be legal advice.

I submit that there is no difference in quoting chapter and verse of one of the numerous Solicitors Acts and citing case law in support of the assertions made by you about the legislation.

The reason you will not cite case law is that you are unaware of the relevant case or were at time of writing.

If there is such a ruling on this matter then one should cite it rather than making unsubstantiated assertions about the legislation unless specifically stated in the statute or case law.

ohnonotgmail

Yyhhuuu wrote: »

You obviously have a lot of time on your hands which I dont have right now so I'm not going to deal with each point you raised verbatim.

I submit the reason you omitted to provide details of the exceptions where non solicitors can provide legal services was because you were unaware of it until I brought it to your attention. Your earlier assertion was categorical in stating only solicitors could provide legal services. You should have outlined the exceptions and were you aware of them you would have.

Certain stationers provide wills for sale. This is also permitted under the law . I see no difference to a lay person helping a friend by providing a validly drafted will based upon the text of the contents of one of these holographic wills bought in leading stationary shops or better still using attestation clauses etc found in leading Irish sucession law precedents provided one is not holding oneself out as a solicitor nor seeking remuneration therefor.

you providing excerpts from the Solicitors Acts , which have been amended subsquently but said amendments were omitted by you . You also opined that certain actions were an offence although not explicitly stated to be in the legislation.

When I asked you to cite the relevant case Law in support of this your reply was that this would be legal advice.

I submit that there is no difference in quoting chapter and verse of one of the numerous Solicitors Acts and citing case law in support of the assertions made by you about the legislation.

The reason you will not cite case law is that you are unaware of the relevant case or were at time of writing.

If there is such a ruling on this matter then one should cite it rather than making unsubstantiated assertions about the legislation unless specifically stated in the statute or case law.

stationers do not provide wills. they provide boilerplates. they are not providing legal services. surely somebody who tries to comes across as smart you do would know that.

Red Hare

This forum is called “ legal discussion” . it is not called “legal advice”. My expectation in posting last evening on this forum was for a discussion not advice.

There is a teaching forum on this website. It is contrary to the Teaching Council Act to portray oneself or a person as being a registered teacher. Yet in comparison to the legal discussion forum , the teaching forum are able to have a “discussion” of a teaching topic without any fuss.

It is a well known fact that any person in Ireland can seek legal advice from a solicitor, they do not even have to pay for it as there are free legal advice services that provide advice.

With the above fact in mind, I have not come to boards.ie , seeking legal advice, I came to a forum titled “ legal discussion” seeking a Forum discussion on the topic of time limit in Judicial Review which is an interesting topic and worthy of discussion.

why is it that people in the “legal discussion” forum seem unable to have a discussion? if they are unable to discuss legal topics then should the forum change it name and not masquerade as a discussion forum.

I wish no offence here but the forum is called “legal discussion”. It is confusing if a discussion forum is called something that it is not, or does not.

ohnonotgmail

Red Hare wrote: »

This forum is called “ legal discussion” . it is not called “legal advice”. My expectation in posting last evening on this forum was for a discussion not advice.

There is a teaching forum on this website. It is contrary to the Teaching Council Act to portray oneself or a person as being a registered teacher. Yet in comparison to the legal discussion forum , the teaching forum are able to have a “discussion” of a teaching topic without any fuss.

It is a well known fact that any person in Ireland can seek legal advice from a solicitor, they do not even have to pay for it as there are free legal advice services that provide advice.

With the above fact in mind, I have not come to boards.ie , seeking legal advice, I came to a forum titled “ legal discussion” seeking a Forum discussion on the topic of time limit in Judicial Review which is an interesting topic and worthy of discussion.

why is it that people in the “legal discussion” forum seem unable to have a discussion? if they are unable to discuss legal topics then should the forum change it name and not masquerade as a discussion forum.

I wish no offence here but the forum is called “legal discussion”. It is confusing if a discussion forum is called something that it is not, or does not.

you did come here seeking "discussion" on judicial review. Certainly not as a disinterested party. you wanted to know if you could bring a judicial review in relation to a decision by a public body. That is asking for advice. and as for not wishing offence you burnt that bridge already.

Peregrinus

Yyhhuuu wrote: »

You obviously have a lot of time on your hands which I dont have right now so I'm not going to deal with each point you raised verbatim.

I submit the reason you omitted to provide details of the exceptions where non solicitors can provide legal services was because you were unaware of it until I brought it to your attention. Your earlier assertion was categorical in stating only solicitors could provide legal services. You should have outlined the exceptions and were you aware of them you would have.

Of course I was aware of them. Several of them are set out in the Solicitors Act 1954, from which I have already directly quoted several times in this thread. Had you asked about exceptions, I would have told you about them. But you didn't, so I didn't. Becuase I did not answer questions that you did not ask, you "submit" that I was unaware of the answers. I suggest that submission reflects more on you than it does on me.

Yyhhuuu wrote: »

Certain stationers provide wills for sale. This is also permitted under the law . I see no difference to a lay person helping a friend by providing a validly drafted will based upon the text of the contents of one of these holographic wills bought in leading stationary shops or better still using attestation clauses etc found in leading Irish sucession law precedents provided one is not holding oneself out as a solicitor nor seeking remuneration therefor.

You may see no difference. The courts may disagree. The fact that you aren't holding yourself out as a solicitor means you are not committing the s. 56 offence; it does not mean that you are not committing the s. 55 offence. And the fact that you aren't seeking remuneration also doesn't mean that you are not committing the s. 55 offence; s. 55 doesn't mention remuneration, and seeking remuneration is not an element of the offence. And in helping in the preparation of a will you also need ot consider whether you would be committing the s. 58 offence.

In short, you would be wise to take legal advice before acting on your interpretation of s. 55. Just sayin'.

Yyhhuuu wrote: »

you providing excerpts from the Solicitors Acts , which have been amended subsquently but said amendments were omitted by you .

The provisions that I quoted are in force. I didn't quote other provisions which have been amended because they weren't relevant to the question you asked. Again, you shouldn't be that surprised that I don't bother to answer questions that you haven't bothered to ask, and you shouldn't draw any conclusions from it.

Yyhhuuu wrote: »

You also opined that certain actions were an offence although not explicitly stated to be in the legislation.

You are of course free to disagree with my opinion. You would, though, be taking a risk in acting on your own opinion of what the law permits, which is why I recommend taking legal advice before doing so.

Yyhhuuu wrote: »

When I asked you to cite the relevant case Law in support of this your reply was that this would be legal advice.

I submit that there is no difference in quoting chapter and verse of one of the numerous Solicitors Acts and citing case law in support of the assertions made by you about the legislation.

The reason you will not cite case law is that you are unaware of the relevant case or were at time of writing.

Or, as I hinted before, because there is a limit to the amount of research I am willing to do to satisfy your curiosity.

Yyhhuuu wrote: »

If there is such a ruling on this matter then one should cite it rather than making unsubstantiated assertions about the legislation unless specifically stated in the statute or case law.

Then perhaps you will now cite the ruling that says that if remuneration is not sought the s. 55 offence is not committed?

My interpretation of the section that I have offered is based on what the section says, and on the policy considerations outlined in my earlier post, which make sense to me (and which you have not disputed). Your own interpretation relies on reading words into s. 55 which are not there, and pays no attention to the policy behind professional regulation. It seems to me that if either of our interpretations is in want of a precedent to lend it credibility it is yours rather than mine.

Red Hare

I disagree with your assertions. I have already sought legal advice on this matter. I sought discussion in a discussion forum- not advice.

Please explain to me what you mean in your statement regarding bridges?

Peregrinus

Red Hare wrote: »

. . . . . . I came to a forum titled “ legal discussion” seeking a Forum discussion on the topic of time limit in Judicial Review which is an interesting topic and worthy of discussion.

why is it that people in the “legal discussion” forum seem unable to have a discussion? if they are unable to discuss legal topics then should the forum change it name and not masquerade as a discussion forum.

I wish no offence here but the forum is called “legal discussion”. It is confusing if a discussion forum is called something that it is not, or does not.

Your problem is that you indicated in your OP that you had a potential claim iun relation to a decision by a government department that had an impact on you, and you wanted to know how rules about judicial review would impact on the facts of your situation. This means what you're asking about is not general or abstract legal issues, but legal advice specifically tailored to your own situation.

The comparison with the teaching forum is not really apt. On that forum you can talk to people about teaching, but you can't ask them to teach you. Here, you can talk about Irish law and legal issues, but you can't look for advice on the particular facts of specific real-world cases or real-world claims. Advising on legal proceedings that you are conducting or might conduct is definitely legal advice, and it crosses a line that puts Boards.ie at legal risk.

ohnonotgmail

Red Hare wrote: »

I disagree with your assertions. I have already sought legal advice on this matter. I sought discussion in a discussion forum- not advice.

Please explain to me what you mean in your statement regarding bridges?

if you have already sought legal advice then you would already know the answer to the question you asked. but as you said on your other thread

I have a disability that is not compatible with solicitors. That is why I posted my query here :rolleyes:

then i am not sure i believe you.

Red Hare

Sorry to be so contradicting but am an not seeking legal advice rather i seek discussion, abstract discussion. Two posters in the forum mentioned architecture- one poster refers to bridge and another one refers to the architect.
Legal advice and legal discussion are different.

ohnonotgmail

Red Hare wrote: »

Sorry to be so contradicting but am an not seeking legal advice rather i seek discussion, abstract discussion. Two posters in the forum mentioned architecture- one poster refers to bridge and another one refers to the architect.
Legal advice and legal discussion are different.

if you want abstract discussion then fire ahead.

Red Hare

https://www.moma.org/collection/works/800

In my estimation, this is what a time limits for judicial review looks and feel like?

ohnonotgmail

Red Hare wrote: »

https://www.moma.org/collection/works/800

In my estimation, this is what a time limits for judicial review looks and feel like?

interesting i'm sure but what is the connection to judicial review?

Yyhhuuu

"The offence is created by Solicitors Act 1954 s. 55(1): "An unqualified person shall not act as a solicitor". The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice."


Why are you asserting that "it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice."

You must provide either statute or case Law to support this assertion.

Red Hare

This is an internet forum where characters have a silly names and portraits, that pokemon can sue and be sued should be a tv series.

Red Hare

ohnonotgmail wrote: »

interesting i'm sure but what is the connection to judicial review?

no time or spatial boundaries exist other than 3 months from the grounds. That gives a lot of freedom.

ohnonotgmail

Yyhhuuu wrote: »

"The offence is created by Solicitors Act 1954 s. 55(1): "An unqualified person shall not act as a solicitor". The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice."


Why are you asserting that "it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice."

You must provide either statute or case Law to support this assertion.

nobody is required to provide anything to you. this is a discussion not just you demanding answers. how about contributing some ideas of your own?

Yyhhuuu

Peregrinus wrote: »

Of course I was aware of them. Several of them are set out in the Solicitors Act 1954, from which I have already directly quoted several times in this thread. Had you asked about exceptions, I would have told you about them. But you didn't, so I didn't. Becuase I did not answer questions that you did not ask, you "submit" that I was unaware of the answers. I suggest that submission reflects more on you than it does on me.

You are contradicting yourself here


"You may see no difference. The courts may disagree. "

The courts MAY disagree. Subjective opinion of yours.


"s. 55 doesn't mention remuneration, and seeking remuneration is not an element of the offence. "

Quite a Contradictory statement

And in helping in the preparation of a will you also need ot consider whether you would be committing the s. 58 offence.

Many leading stationary shops in Ireland provide pre-printed wills for sale. This is completely legal. This is analogous to me preparing a draft will document, incorporating the same attestation clauses ( albeit not my preferred attestation clause ) etc as are contained in aforementioned will document for sale to my friend whilst not holding myself out as a solicitor nor seeking remuneration therefor.

"In short, you would be wise to take legal advice before acting on your interpretation of s. 55. Just sayin'.

Ditto to you.


"The provisions that I quoted are in force. I didn't quote other provisions which have been amended because they weren't relevant to the question you asked. "

They were entirely relevant

"Again, you shouldn't be that surprised that I don't bother to answer questions that you haven't bothered to ask, and you shouldn't draw any conclusions from it."

Again your answer came across as a definitivevjnterpretation of the law, exclusions should have been pointed out.

They were omitted by you as you were unaware of them. This is an excuse.




"You are of course free to disagree with my opinion. "

I am and I do.






"Or, as I hinted before, because there is a limit to the amount of research I am willing to do to satisfy your curiosity. "

So you agree and admit finally you were unaware of subsequent amending legislation providing exceptions that only Solicitors could provide legal services. Thanks for finally admitting that.


Then perhaps you will now cite the ruling that says that if remuneration is not sought the s. 55 offence is not committed?

"My interpretation of the section that I have offered is based on what the section says,"

The section does not explicitly state it to be an offence

"and on the policy considerations outlined in my earlier post"

Policy considerations of legislators. What were these and where did you obtain these. Did you review the parliamentary papers.


. "Your own interpretation relies on reading words into s. 55 which are not there"

In all fairness this is precisely what you yourself did.

Yyhhuuu

ohnonotgmail wrote: »

nobody is required to provide anything to you. this is a discussion not just you demanding answers. how about contributing some ideas of your own?

In all fairness I am fully entitled to request a previous poster to provide substantive evidence in the form of citing case law to substantiate what I view as unsubstantiated subjective opinion of him or her on a point of law.

ohnonotgmail

Yyhhuuu wrote: »

In all fairness I am fully entitled to request a previous poster to provide substantive evidence in the form of citing case law to substantiate what I view as unsubstantiated subjective opinion of him or her on a point of law.

it is the manner of the request that irks. in particular responding to a long post with the single word "Rubbish". but to attempt to answer your question i will do so in two parts:

1: Solicitor is not defined in the act. when a word is not defined then it's ordinary meaning is taken. do you know what the ordinary meaning of solicitor is?

2: If payment for services was a necessary element of an offence it would be mentioned. as the act does not mention payment for services it can be assumed that it is not a necessary element.

No cites provided because no cites are necessary to anybody who has spent any time studying the practice of law.

Yyhhuuu

ohnonotgmail wrote: »

it is the manner of the request that irks. in particular responding to a long post with the single word "Rubbish". but to attempt to answer your question i will do so in two parts:

1: Solicitor is not defined in the act. when a word is not defined then it's ordinary meaning is taken. do you know what the ordinary meaning of solicitor is?

2: If payment for services was a necessary element of an offence it would be mentioned. as the act does not mention payment for services it can be assumed that it is not a necessary element.

No cites provided because no cites are necessary to anybody who has spent any time studying the practice of law.

quote="ohnonotgmail;114491567"]it is the manner of the request that irks. in particular responding to a long post with the single word "Rubbish". but to attempt to answer your question i will do so in two parts:


Your post irks me as its blatantly incorrect:

My response:

Please get your facts right.I did not respond to a long post with the word " Rubbish." It was a single point, not a long post, to which I responded but immediately retracted , well before your response I hasten to add.

" Solicitor is not defined in the act. when a word is not defined then it's ordinary meaning is taken. do you know what the ordinary meaning of solicitor is?"

The interpretation of the word solicitor is not in at issue. The OP is saying it is an offence to draw up a will for a friend for free along the lines of the wills sold in stationary shops. How is this different if the document is identical to the will forms for sale in leading stationary shops in Ireland. Similarly the companies providing DIY Divorce forms. These are not illegal as they operate in Ireland.



"If payment for services was a necessary element of an offence it would be mentioned. as the act does not mention payment for services it can be assumed that it is not a necessary element."

The legislators would have expressly stated the necessary elements of a criminal offence otherwise the relevant section could be deemed unconstitutional and struck down by the supreme court or by an Article 26 referral.

"No cites provided because no cites are necessary to anybody who has spent any time studying the practice of law.[/quote]"

What does this mean?Are you a lawyer? Legal opinions should always be backed up by relevant statute, secondary legislation or case law.

The OP gave a subjective interpretation of the statute which was not expressly stated in the statute and could not tin my opinion be reasonably interpreted from the statute

Graham

Yyhhuuu wrote: »

Legal opinions should always be backed up by relevant statute, secondary legislation or case law.

Since when?

Is this something added to the forum charter recently?

ohnonotgmail

not quoting your post as you have screwed up the tags so it would be a mess.

Please get your facts right.I did not respond to a long post with the word " Rubbish." It was a single point, not a long post, to which I responded but immediately retracted , well before your response I hasten to add.

you did respond to a long post from peregrinus with the single word "rubbish". you are aware that mods are able to check that, right? i'm sure one would be happy to confirm. that you changed it subsequently is irrelevant.

The interpretation of the word solicitor is not in at issue. The OP is saying it is an offence to draw up a will for a friend for free. How is this different if the document is identical to the will forms for sale in leading stationary shops in Ireland. Similarly the companies providing DIY Divorce forms. These are not illegal as they operate in Ireland.

the difference is they are selling boilerplate. if you draw up a will and it is identical to the boilerplate that would be an amazing coincidence.

The legislators would have expressly stated the necessary elements of a criminal offence otherwise the relevant section could be deemed unconstitutional and struck down by the supreme court or by an Article 26 referral.

exactly. as they did not mention payment as a necessary element then payment is not a necessary element. I am glad we are in agreement on this.

What does this mean?Are you a lawyer? Legal opinions should always be backed up by relevant statute, secondary legislation or case law.

it means that it is common legal practice to use the ordinary meaning of a word when a word is not defined in legislation.

The OP gave a subjective interpretation of the statute which was not expressly stated in the statute and could not tin my opinion be reasonably interpreted from the statute

i dont think you know what the word OP means as the OP certainly did not do that. Peregrinus did provide a solid interpretation of the statute that you have made no attempt to counter in an intelligent and/or reasonable manner.

Yyhhuuu

ohnonotgmail wrote: »

not quoting your post as you have screwed up the tags so it would be a mess.



"you did respond to a long post from peregrinus with the single word "rubbish". you are aware that mods are able to check that, right? i'm sure one would be happy to confirm. that you changed it subsequently is irrelevant."

Response

You are entirely incorrect. I replied to one particular point and immediately retracted. You are merely nit- picking with your idle threats of mods which has me shaking in my boots and being just plain argumentative and petty. I take offence that you seem to be calling me a liar in this regard. You obviously didnt even read the post properly when you say this.



"the difference is they are selling boilerplate. if you draw up a will and it is identical to the boilerplate that would be an amazing coincidence."

Response

so if I myself draw up the will for my friend as a lay person but deviate slightly from the "boilerplate" / will sold in a stationers ( a term I wouldnt use) it's illegal but if I use the exact phraseology in the will purchased in the stationers it's legal.

These usually handwritten home made wills are termed holographic wills not "boilerplate. "They are not illegal. Similarly nothing in the solicitors acts prohibits me from assisting my friend in drawing up the home made will provided I dont hold myself out as a solicitor.










"it means that it is common legal practice to use the ordinary meaning of a word when a word is not defined in legislation. "

Response

Are you a Solicitor. If not, how do you know?



"i dont think you know what the word OP means as the OP certainly did not do that. Peregrinus did provide a solid interpretation of the statute that you have made no attempt to counter in an intelligent and/or reasonable manner.

"

Response
Incorrect. He provided an entirely subjective interpretation of the legislation and did not cite any case law in support of his assertion.

Any law student knows that laws must be cited either explicitly in legislation be it primary or secondary or case law ( common law).

Graham

Yyhhuuu wrote: »

Even if you were to give a legal opinion or legal advice as a lay person I don't think it would be possible to be sued in negligence were it to transpire the opinion or advice was incorrect. You did not hold yourself out to be an expert or professional in the field.

please provide either statute or case Law to support this entirely subjective interpretation of the legislation

Yyhhuuu

This is what the OP stated:

"The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice."

I am paraphrasing but he went on to state it would be an offence for others to provide these services whether for remuneration or not. He said Remuneration was not required for the offence to be committed.

This would appear to me be his subjective interpretation of the Law. I have merely asked him to back it up with either case law or amending legislation to the Solicitors Act, 1954.

When I pointed out that in fact Building Society's could under the Law (Building Societys Act,1989) provide legal services in the form of conveyancing and they are not Solicitors he first said he omitted it because I didnt specifically ask about exceptions, (why would I?)then he said he didnt provide legal advice and couldnt comment,( but did comment on other legal maters), then he said he didnt do research on the matter.

The OP said I would be committing an offence were I to help my friend by drafting a will, eventhough I never held myself out as a Solicitor nor sought remuneration.

Why then are those who provide printed wills for sale not committing an offence?

Why are those who provide DIY Divorces not committing an offence.

Why are those providing Mc Kenzie Friend assistance to a lay litigants not committing an offence?

Yyhhuuu

I asked Peraragrus if I,as a lay person,were to draw up a will for my friend, without either seeking remuneration nor holding myself out as a solicitor would it be an offence.

Hi reply was "Yes"

"Quote: Yyhhuuu
A friend once asked me to draft a will on her behalf for free. I did not hold myself out to be a solicitor. She merely asked me as a friend as she knew I knew a lot about sucession matters. Are you saying I would have committed an offence had I obliged her and drafted the will?

Yes."



However Section 58(3) of the Solicitors Act,1954 states as follows:

"(2) An unqualified person who does an act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and be liable on summary conviction thereof to a fine not exceeding one hundred pounds.

(3) The following acts shall be excepted from the foregoing provisions of this section—

(a) an act not done either directly or indirectly for or in expectation of any fee, gain or reward"

My advice is to kindly avoid giving incorrect information.

Peregrinus

What can I say, Yyhhuuu? I have quoted you section 55 of the Solicitors Act, and I have referred you to section 58. On the plain wording of those sections, an unqualified person who drarfts a will for somebody commits an offence. There is no exception in those sections for cases in which the will is drafted not for money, or is drafted by someone not holding themselves out as a solicitor. And I've already pointed to policy reasons why you wouldn't expect to find exceptions of that kind in the legislation.

You're asking me to cite case law that those sections mean what they say, and what you would expect them to mean? Sorry, no, I don't feel the need. If you want them not to mean what they say, I think you probably do need case law to back you up on that.

Graham

Yyhhuuu wrote: »

Why then are those who provide printed wills for sale not committing an offence?

I'd assume because they're drafted by suitably qualified professionals, or they include caveats that they should not be relies upon without qualified legal advice.

Yyhhuuu wrote: »

Why are those who provide DIY Divorces not committing an offence.

See previous answer

Yyhhuuu wrote: »

Why are those providing Mc Kenzie Friend assistance to a lay litigants not committing an offence?

I assume you mean McKenzie friends who aren't permitted to give legal advice. (I'm sure that was already stated).

Yyhhuuu

Peregrinus wrote: »

What can I say, Yyhhuuu? I have quoted you section 55 of the Solicitors Act, and I have referred you to section 58. On the plain wording of those sections, an unqualified person who drarfts a will for somebody commits an offence. There is no exception in those sections for cases in which the will is drafted not for money, or is drafted by someone not holding themselves out as a solicitor. And I've already pointed to policy reasons why you wouldn't expect to find exceptions of that kind in the legislation.

You're asking me to cite case law that those sections mean what they say, and what you would expect them to mean? Sorry, no, I don't feel the need. If you want them not to mean what they say, I think you probably do need case law to back you up on that.

Have you actually read this section of the Solicitors Act 1954 it clearly refers to documents relating to Real Property and Personal Property and documents drafted without remuneration as being exempted when an unqualified person drafts them and NOT therefore an offence

Section 58(3) of the Solicitors Act,1954 states as follows:

"(2) An unqualified person who does an act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and be liable on summary conviction thereof to a fine not exceeding one hundred pounds.

(3) The following acts shall be excepted from the foregoing provisions of this section—

(a) an act not done either directly or indirectly for or in expectation of any fee, gain or reward"

Yyhhuuu

58.—(1) This section applies to the following acts:

(a) the drawing or preparing of a document relating to real or personal estate or any legal proceeding,

Yyhhuuu

I refer you to s.58(2) (3)(a) of the Solicitors Act,


"2) An unqualified person who does an act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and be liable on summary conviction thereof to a fine not exceeding one hundred pounds.

(3) The following acts shall be excepted from the foregoing provisions of this section—

(a) an act not done either directly or indirectly for or in expectation of any fee, gain or reward,

I rest my case....

FanadMan

I had to follow this for the lols.









Sorry mods/admins if this breaks some rules but it's funny

Yyhhuuu

Peregrinus your posts on the subject fly in the face of the Legislation so much so it's becoming farcical

Peregrinus

Yyhhuuu wrote: »

I refer you to s.58(2) (3)(a) of the Solicitors Act,


"2) An unqualified person who does an act to which this section applies shall, subject to subsection (3) of this section and without prejudice to any other liability or disability to which he may be subject, be guilty of an offence under this section and be liable on summary conviction thereof to a fine not exceeding one hundred pounds.

(3) The following acts shall be excepted from the foregoing provisions of this section—

(a) an act not done either directly or indirectly for or in expectation of any fee, gain or reward,

I rest my case....

But corresponding words words are missing from s. 55. So I think there's still a bit of a gap in your case. Maybe don't rest it just yet. I think you still have to argue either:

(a) that these words must be implied into s. 55; or

(b) that drawing up, or assisting in drawing up, a will is not "acting as a solicitor".

Basically, we've got three independent offences here:

S. 55: Unqualified person acts as as a solicitor.

S. 56: Person who is not solicitor holds self out as a solicitor.

S. 58: Unqualified person draws up, or arranges execution of, or attempts to register certain documents (including a will).

If you commit any one of these offences, you have a problem, and it's not a problem that is solved by pointing out that you haven't committed one of the other offences.

The s. 56 offence is not committed by someone who makes it clear that he is not a solicitor; fair enough. The s. 58 offence contains an exception where the documents are drawn up, etc, without an expectation of any fee, gain or reward. But the s. 55 offence contains no such exception. And we can hardly argue that the exception should be implied since, if the Oireachtas made it explicit in s. 58, the failure to mention it in s. 55 has to be a deliberate difference.

And I don't think you can argue that acting as a solicitor means pretending to be a solicitor, because that's the s. 56 offence.

So we're left with the common-sense plain language interpretation; acting as a solicitor is doing the things that solicitors are qualifed to do and that, for societal reasons, we prefer to have done by the people who are qualified to do them, which is the whole reason we set up a qualification regime in the first place. Providing legal advice, drawing up legal instruments and acting as an agent or advocate in litigation would all be covered, because they are basically what solicitors do.

Red Hare

I went to bed early last night and missed great legal discussion. E.

The references made to architecture and bridges yesterday in this discussion were helpful and stimulating in a creative way, and I was able this morning to write my grounds seeking judicial review in one concise simple sentence.

Thanks.

I hope I don’t get tempted to go picking at my lovely grounds and spoil the simple architecture of it (rolleyes....

ohnonotgmail

Yyhhuuu wrote: »

This is what the OP stated:

"The expression "act as a solicitor" is not defined, but it's taken to include providing legal services of any kind, whether for reward or not. This includes the provision of legal advice."

that is the ordinary meaning of "acting as a solicitor". if you want a cite for it consult a dictionary

and it was not the OP who said that. you dont seem to understand what OP means

Yyhhuuu wrote: »

I am paraphrasing but he went on to state it would be an offence for others to provide these services whether for remuneration or not. He said Remuneration was not required for the offence to be committed.

and they were correct when they said that. there is no mention of payment in the legislation so payment is not a required element. this has been said to you multiple times now but it does not seem to be getting through.

Yyhhuuu

Peregrinus wrote: »

But corresponding words words are missing from s. 55. So I think there's still a bit of a gap in your case. Maybe don't rest it just yet. I think you still have to argue either:

(a) that these words must be implied into s. 55; or

(b) that drawing up, or assisting in drawing up, a will is not "acting as a solicitor".

Basically, we've got three independent offences here:

S. 55: Unqualified person acts as as a solicitor.

S. 56: Person who is not solicitor holds self out as a solicitor. "



S. 58: Unqualified person draws up, or arranges execution of, or attempts to register certain documents (including a will)."

My response:

I fully agree and have all along agreed that holding oneself out as a solicitor is an offence.

A will is not registered.



Quote: Peregrinus

"If you commit any one of these offences, you have a problem, and it's not a problem that is solved by pointing out that you haven't committed one of the other offences."



"The s. 56 offence is not committed by someone who makes it clear that he is not a solicitor; fair enough. "

My response:

You now concede this to be the case. I had to point this out to you.

Quote: Peregrinus

" The s. 58 offence contains an exception where the documents are drawn up, etc, without an expectation of any fee, gain or reward. "


My response

Again I had to point this out to you as you were entirely incorrect in your earlier assertion that it was an offence when I asked you about my friends will and you said it would be an offence if I drafted it without remuneration and not holding myself out to be a solicitor.


Quote: Peregrinus

"But the s. 55 offence contains no such exception. And we can hardly argue that the exception should be implied since, if the Oireachtas made it explicit in s. 58, the failure to mention it in s. 55 has to be a deliberate difference. "

My response

This is semantics on your part as S.55 merely generally refers to offences. S.58 makes it abundantly clear where the offence does not apply. The act must be read in its entirety.

Section 58(2)states clearly and unambiguously that its not an offence (and there are a number of other exceptions to the offence) to draw up a document relating to real property or personal property for a person when no fee or reward is sought.

Section 55 must be read in conjunction with section 58.

GM228

I'm back, so....

What did I miss?

Yyhhuuu

ohnonotgmail wrote: »

that is the ordinary meaning of "acting as a solicitor". if you want a cite for it consult a dictionary

and it was not the OP who said that. you dont seem to understand what OP means



and they were correct when they said that. there is no mention of payment in the legislation so payment is not a required element. this has been said to you multiple times now but it does not seem to be getting through.

You clearly did not read s.58 of this Solicitors Act, 1954 where there is mention of payment being a required element of the offence in relation to drafting of certain documents by lay persons.

ohnonotgmail

Yyhhuuu wrote: »

You clearly did not read s.58 of this Solicitors Act, 1954 where there is mention of payment being a required element of the offence in relation to drafting of certain documents by lay persons.

it is an offence under s.55 to act as a solicitor. payment is not an element of the offence.

55.—(1) An unqualified person shall not act as a solicitor.
(2) A person who contravenes subsection (1) of this section shall,
without prejudice to any other liability or disability to which he may be
subject, be guilty of an offence under this section and shall be liable—
(a) on conviction thereof on indictment, to imprisonment for a term
not exceeding two years or, at the discretion of the Court, to
a fine not exceeding two hundred pounds or to both such fine
and such imprisonment, or
(b) on summary conviction thereof, to imprisonment for a term not
exceeding six months or, at the discretion of the Court, to a
fine not exceeding fifty pounds or to both such fine and such
imprisonment.
(3) A person who contravenes subsection (1) of this section in relation
to a court of justice shall also be guilty of contempt of that court and shall
be punishable accordingly.

Yyhhuuu

ohnonotgmail wrote: »

it is an offence under s.55 to act as a solicitor. payment is not an element of the offence.

The drafting if a legal document relating to real or personal property by a LAY PERSON is not an offence when remuneration is not sought.

This is clearly not an offence under the 1954 Act.

Are you disputing this?

It is an offence to hold oneself out to be a solicitor when not on the Roll of Solicitors.

Clearly Remuneration must be sought before an offence is committed in drafting such documents.