High Court: Former solicitor’s application to return to work refused due to lack of candour

About this case:

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Mr Justice Kelly, President of the High Court, stated that the man had been dishonest and had demonstrated a lack of candour, and that he could not be regarded as a fit and proper person to be restored to the Roll of Solicitors.

In the High Court, Mr David Walsh made an application to have his name restored to the Roll of Solicitors, pursuant to s.10 of the Solicitors (Amendment) Act 1960 (amended by s.19 of the Solicitors (Amendment) Act 1994) – which was strongly opposed by The Law Society.

Background

Mr. Walsh was admitted to the Roll of Solicitors in Michaelmas term 1982, and from 1990 to 2012 he practised as the principal in his own firm in Mullingar, Co. Westmeath. In July 2010 he suddenly became unwell and was diagnosed with advanced pancreatic cancer. He underwent a “Whipple’s procedure” and following that had chemotherapy and radiotherapy for six months.

In his grounding affidavit, Mr Walsh claimed that, in 2012, he consented to being struck off the register as he was “pessimistic” about his health, and that in his 30 years of practice until his cancer diagnosis in 2010 he had never been in front of the Disciplinary Tribunal of the Law Society or had any sanctions imposed.

Justice Kelly stated that from a “fair reading” of Mr Walsh’s affidavit, one might conclude that Mr. Walsh’s difficulties with the Law Society arose as a result of his illness, that his office and client accounts were closed and receipted showing nil balances, and that he consented to the strike off orders made in the High Court in May 2014.

The Law Society, which strongly opposed Mr Walsh’s application, “put forward a very different picture of Mr Walsh”.

Contrary to what Mr Walsh swore in his affidavit, evidence on behalf of the Law Society identified that in May 2014, seven separate orders directing that Mr. Walsh’s name be struck off the Roll of Solicitors were made. In respect of three of the sets of proceedings the court also made orders for the payment of restitution by Mr. Walsh in an amount totalling €68,589.

Mr Walsh contended that proceedings in the High Court in January 2015 regarding the seven aforementioned orders “were dismissed by President Kearns in their entirety”. Justice Kelly stated that this was simply not true, and that the Court had not made a strike off order due to the fact that Mr Walsh had already been struck off at this point.

Further, contrary to Mr Walsh’s assertion that he handed over his files to the Law Society upon the closing of his practice; the Society stated that it had to apply to the Court in order to force Mr Walsh to hand over files, and was wholly uncooperative in regards to active cases and transactions.

The High Court

Considering Bolton v. Law Society 2 All ER 486; In Re Burke (2001) 4 IR 445; Carroll v. Law Society of Ireland IESC 49; and Law Society of Ireland v. Patrick Enright IEHC 151; Justice Kelly was satisfied that any applicant for an order of the type sought has a duty and obligation to put before the court all relevant matters.

Justice Kelly stated that Mr Walsh had failed in this obligation and that he did not behave with candour, demonstrating either a complete lack of understanding of the duty of candour, or an intent to mislead.

Not only was Mr Walsh dishonest in his grounding affidavit, but Mr Kelly pointed out that a “further feature of note in respect of these acts of dishonesty relating to proceeding DT41/10 alone” was that they all occurred prior to 2007 and long before Mr Walsh’s ill health – therefore indicating yet another dishonest statement in his affidavit.

Thus, given Mr Walsh’s failure to disclose all relevant material and then misrepresent the correct position on a number of occasions Mr Justice Kelly stated that he could not be “regarded as a fit and proper person to be restored to the roll of solicitors”.

Dismissing the application, Justice Kelly found that Mr Walsh demonstrated a disregard for the public and other members of the profession, and that “the restoration of Mr Walsh’s name to the Roll of Solicitors would adversely affect public confidence in the solicitors’ profession and in the administration of justice”