About this case:

• Citation:
  [2024] IEHC 709
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Micheál O’Higgins

Delivering judgment for the High Court, Mr Justice Micheál P. O’Higgins warned that “it is plainly unacceptable that a solicitor would plead guilty to disciplinary charges, thereby securing by agreement the withdrawal of more serious charges, and then seek to resile from those admissions because the outcome of the sanctioning process is not to his liking. Were such an approach to be tolerated, this could lead to proceedings before the Solicitors Disciplinary Tribunal becoming chaotic and unworkable.”

Rory Kennedy BL was instructed by Lohan & Co. Solicitors and Neasa Bird BL appeared for the Law Society instructed by Jonathan White, solicitor.

Background

In 2016, a Law Society inspection of Mr Cormac Lohan’s practice took place. 

Consequently, a disciplinary hearing before the Solicitors Disciplinary Tribunal (SDT) occurred in October 2023, which found Mr Lohan guilty of professional misconduct in respect of nine admitted accounting-type allegations.

The SDT prepared a report dated 9 February 2024 recommending that Mr Lohan should not be permitted to practice as a sole practitioner or in partnership and that he be permitted only to practice as an assistant solicitor in the employment of and under the direct control and supervision of another solicitor approved by the Law Society, together with a payment of €15,000 to the Law Society’s compensation fund and €15,000 in measured costs.

Pursuant to s.7(3)(c)(iv) of the Solicitors Act 1960 (as amended), the SDT directed that the Law Society bring its report of findings and its recommendation as to sanction before the High Court. The Law Society applied to the High Court seeking inter alia the imposition of the recommended sanctions.

Mr Lohan issued a separate application seeking orders setting aside the findings and recommendations of the SDT, contending that the principal sanction recommended would effectively lead to the closure of his practice and may end his career.

The High Court

Mr Justice O’Higgins considered that while the SDT report met the statutory requirements of the 1960 Act, it did not explicitly state reasons for the SDT’s recommendation that a limited practising certificate/closure order be imposed as opposed to a lesser sanction. The court highlighted that the events under discussion had dated from 2016 and so it would not be appropriate to avail of its remittal power under s.8 of the Solicitors (Amendment) Act 1960.

In those circumstances, and noting that the “giving of explicit reasons by the tribunal carries the obvious advantage that the High Court is given assistance in the task it has to perform under the statutory code, particularly in a marginal case”, the High Court determined that it would decide the question of sanction itself without according any specific level of deference to the SDT’s recommendations.

Having heard the parties’ submissions, Mr Justice O’Higgins observed that the principal recommendation to impose a limited practising order was “significant and quite far-reaching” but fell “well short” of an order of erasure from the roll of solicitors.

The judge considered aggravating factors in favour of the SDT recommendation:

• the admitted findings demonstrated a serious and extensive failure by Mr Lohan to maintain proper books of account and to comply with the Solicitors Accounts Regulations;
• nearly all transactions on the office side of the accounts were posted to one ledger in Mr Lohan’s own name, having the effect that the protection of requiring a co-signatory on the client account was nullified;
• upon reconstruction of the client account ledgers, a debit balance of client monies of €20,000 was revealed, although ultimately there was no shortfall;
• Mr Lohan had several previous findings of misconduct against him, which the court was obliged to take into account;
• Mr Lohan’s response to the inspection and charges was defensive and suggested a lack of insight and contrition, which intensified following the 2023 hearing.

In mitigation, the court considered:

• that of 27 initial charges against Mr Lohan, 18 were withdrawn;
• that the breaches occurred in 2016 and no further breaches had occurred since then;
• that there was a degree of overlap between these breaches and those the subject of earlier proceedings in respect of which a censure and fine were imposed by the High Court;
• that the recommended sanction constituted a “ramping up” of the sanctions previously imposed;
• that the underlying cause of the offending appeared to have been addressed by Mr Lohan’s adoption of a new computerised accounting system in 2016;
• that where no disciplinary charges occurred in the last eight years, there was less need for the use of a “crystal ball” to predict the risk of future offending;
• that the offending was not at the top end of the spectrum;
• that no client had made a complaint against Mr Lohan; and
• that Mr Lohan’s pleading to nine charges and his acceptance that same attained the required level of seriousness to amount to misconduct demonstrated “some level of insight” on his part.

Mr Justice O’Higgins noted that since the matter was heard before the SDT, Mr Lohan had changed his position radically and sought to challenge each finding which he had pleaded guilty to before the Tribunal.

The judge considered that having reviewed the transcripts, “the solicitor’s application seeking to unwind the findings made by the SDT is entirely misconceived and should not have been brought. Moreover, the contents and tone of the solicitor’s more recent affidavits are misjudged and unfortunate at a number of levels.”

The court observed that this new position undermined the plea in mitigation made on his behalf before the SDT and decided that its task was to decide the impact of Mr Lohan’s course of action on the overall sanctioning calculation, by firstly establishing the gravity of the breaches and deciding their position in the overall spectrum of offending.

Having considered the relevant jurisprudence and the requirements of s.8 of the 1960 Act, Mr Justice O’Higgins concluded that he was required to ask whether the recommended sanction was “necessary in order to protect the public, maintain the reputation of the solicitor’s profession, punish the solicitor for the breaches found and discourage other members of the profession from similar conduct”.

Finding that “it would be an over-reaction to the solicitor’s misconceived appeal and misjudged affidavits to uphold the SDT recommendation to close his practice”, Mr Justice O’Higgins proposed to give Mr Lohan “one more chance to keep alive the possibility that he can continue to practice as a sole practitioner”.

Conclusion

Accordingly, the High Court made orders inter alia suspending Mr Lohan’s practice until 20 March 2025 and invited the parties’ submissions on the further relief sought in the Law Society’s notice of motion.

Cormac Lohan v Law Society of Ireland [2024] IEHC 709