High Court: Solicitor struck off for dishonesty



High Court
High Court

The High Court has made an order striking off a solicitor from the Roll of Solicitors for dishonesty.

Background

The Law Society of Ireland brought an application to the High Court to strike Daniel Coleman’s name off the Roll of Solicitors pursuant to section 7(3)(c)(iv) of the Solicitors (Amendment) Act 1960 (as amended).

An earlier order of Mr Justice Nicholas Kearns, then President of the High Court, striking off Mr Coleman in July 2010 was overturned by the Supreme Court in May 2019, and the “strike off” application was remitted to the High Court. The application was assigned to Mr Justice Garrett Simons by the then President of the High Court Mr Justice Peter Kelly for hearing in March 2020.

The hearing was disrupted by the public health restrictions introduced in respect of the coronavirus pandemic. The “strike off” application had been heard immediately after a related application by the solicitor seeking an extension of time within which to bring a statutory appeal against the findings of the Solicitors Disciplinary Tribunal. The application for an extension of time was refused.

The Disciplinary Tribunal made findings of misconduct against Mr Coleman following two hearings in February 2010 and submitted reports to the High Court in March 2010 requesting that he be struck off the Roll of Solicitors. The first decision found that he had engaged in “fictitious” contracts, having signed the name of another solicitor without his consent. The second decision was in respect of a complaint that he had failed to comply with an undertaking which he had given to St Jarlath’s Credit Union in Tuam.

High Court

A decision to strike off a solicitor involves the administration of justice under Article 34 of the Constitution of Ireland, as per In re The Solicitors Act 1954 [1960] I.R. 239. For this reason, the final decision on the imposition of such a sanction on a solicitor in disciplinary proceedings is exclusively a matter for the High Court.

The Court of Appeal confirmed in Sheehan v Law Society of Ireland [2020] IECA 77 (unreported, 26 March 2020) that the type of argument which may be advanced to the High Court in solicitors disciplinary proceedings will depend on the precise procedure invoked. The manner in which a matter comes before the High Court will influence the range of arguments which may be made.

Paul Comiskey O’Keeffe BL, who appeared on behalf of Mr Coleman, instructed by John P. O’Donohoe Solicitors, placed emphasis on the judgment in Law Society of Ireland v Coleman [2018] IESC 80. He said that the appropriate test was whether the findings of the Disciplinary Tribunal are sustainable in law. Counsel drew attention to passages where Mr Justice Liam McKechnie appeared to envisage that additional evidence can be adduced on a “strike off” application.

Counsel for Mr Coleman said that a dichotomy exists under s.8 of the Solicitors Act, between the setting aside of primary findings of fact, and a challenge against errors. He contended that the findings of the Disciplinary Tribunal ought not to be upheld on the latter basis.

Mr Comiskey O’Keeffe placed particular emphasis on the judgment Mr Justice Kelly in Law Society of Ireland v D’Alton [2019] IEHC 177. In that judgment, particular weight had been attached to the respondent solicitor’s chronic health condition at the time the disciplinary offences occurred. Counsel submitted, by analogy, that the “strike off” recommendation should not be followed having regard to Mr Coleman’s personal circumstances.

Shane Murphy SC, who appeared with Neasa Bird BL for the Law Society instructed by A&L Goodbody, referred the court, by analogy, to the judgments of the Supreme Court in DPP v Redmond [2006] 3 I.R. 188 and Keating v Crowley [2010] IESC 29. The latter case concerned the question of whether a party, who had conceded liability in the High Court, should be entitled to amend its grounds of appeal to contest liability for the first time. The Supreme Court held that, absent fraud, or some fundamental issue of justice arising from the conduct of the proceedings, it was difficult to contemplate circumstances in which a party would be permitted, in an appeal or otherwise, to impugn a determination by the High Court of an issue, such as liability, which had been expressly conceded by the party concerned.

Mr Justice Simons cited Carroll v Law Society of Ireland [2016] 1 I.R. 676, where Mr Justice Liam McKechnie noted that where proven dishonesty is involved, “the sanction of dismissal will be a front line consideration.” In Law Society of Ireland v Herlihy [2017] IEHC 122, Mr Justice Kelly observed that where dishonesty is established on the part of a solicitor, then no matter how strong the mitigation is, a strike off will almost invariably follow. The President emphasised the need to maintain trust in the solicitors’ profession.

The court held that Mr Coleman failed to live up to these high standards. His conduct was dishonest, rather than merely negligent or careless.

The judge noted the mitigating factors, which included the fact that it was not alleged that the financial institution had incurred any loss as a result of his dishonesty. This was Mr Coleman’s first offence, and he had initially co-operated with in the disciplinary proceedings. However, the weight to be attached to that was greatly attached by his subsequent conduct in attempting to resile from these admissions.

While Mr Coleman faced difficult personal circumstances, including serious health issues affecting close family members, “this does not ameliorate the gravity of his misconduct. Difficult personal circumstances might, at most, provide context for misconduct consisting of inattention to the detail of practice management, but such difficulties cannot excuse dishonest behaviour of the type at issue here.” The judge noted that the health issues arose at a date subsequent to the key events, which distinguishes the facts from those at issue in D’Alton.

Conclusion

The court said that there is a public interest in ensuring that the integrity of the solicitors profession is maintained: “It would undermine trust in the profession were a solicitor, who has been found guilty of dishonesty in a conveyancing transaction, to be allowed to continue in practice.”

Having given all due weight to these mitigating factors, Mr Justice Simons held that the appropriate sanction was an order striking Mr Coleman’s name off the Roll of Solicitors.

© Irish Legal News Ltd 2020

Tags: Misconduct



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