High Court: Solicitor who falsified certificates is struck off the Roll of Solicitors

About this case:

• Judgment:
  External link
• Judge:
  Mr Justice Peter Kelly

The man had issued false certificates of earnings for his sister to enable her to secure a mortgage, and had also given multiple undertakings to banks to register a first charge in their favour in respect of a property which already had a charge registered upon it.

Finding that it was not appropriate to follow the recommendation of the Solicitors Disciplinary Tribunal (SDT) that he be given a limited practising certificate, President Peter Kelly said that it would do a disservice to the profession were he not struck off the Roll.

Background

Mr Patrick Callanan was admitted to the Roll of Solicitors in 1995, and worked as a partner in the firm of Wells & O’Carroll in Carrickmacross, Co. Monaghan from 2001 until 2009.

Shortly after he ceased working at Wells & O’Carroll, a complaint was made by his former partner in that firm concerning Mr Callanan’s conduct.

That complaint resulted in an application for an inquiry and a hearing before the Solicitors Disciplinary Tribunal.

False Certificates

To enable his sister to obtain a mortgage, Mr Callanan issued false certificates of earnings, purporting that she was employed as a law clerk with his firm with an annual salary of €45,000 plus commission payments.

Mr Callanan contended that he was under extreme emotional pressure to assist his sister in purchasing a property upon her return from America.

Mr Justice Kelly noted that Mr Callanan’s sister had succeeded in obtaining the mortgage and that it had been serviced by her throughout – as such, no loss had been incurred in respect of the false certificates.

Chinese properties

Described as the more serious act of misconduct, Mr Callanan was granted a mortgage in respect of a property which he bought in 2004; thereafter, he was advised of investment opportunities in China and on three separate occasions he placed undertakings before his partner to sign, all of them in respect of the property which he had purchased in 2004.

The undertakings were to register a first charge in favour of the lending institutions in respect of the relevant property. These undertakings were false and could never be met because a first charge had already been registered on the property at the time of its purchase.

When the matter was brought before the SDT in 2011, Mr Callanan elected to sell two of the properties in China and give over the proceeds so that no liability would fall on his partner in respect of the undertakings. Again, this meant that no loss had been incurred as a result of Mr Callanan’s actions.

Solicitors Disciplinary Tribunal

Describing his acts as egregious dishonest misconduct, the Law Society urged the SDT to recommend that Mr Callanan’s name be struck off the Roll of Solicitors.

While recognising the “absolute distress” caused by Mr Callanan’s actions, the SDT said that “credit should be given to solicitors, who despite having committed egregious acts of misconduct do cooperate fully upon those acts being discovered and at no cost to any other person remedy the situation”.

As such, the SDT said that it took account of the principles in Law Society v. Carroll & Colley IESC 41, and recommended that Mr Callanan be given a limited practising certificate, never be given cheque signing rights over any client account; and furnish the SDT’s findings to future employers if practising as a solicitor.

In addition to these sanctions the SDT also directed Mr Callanan to pay €5,000 to the Compensation Fund, €8,000 towards costs of the Law Society, and €2,000 to his former partner in respect of his attendances before that Tribunal.

Order of President Kearns

The Law Society urged a departure from the SDT’s recommendations, and to strike Mr Callanan’s name off the Roll of Solicitors.

Mr Callanan urged that the sanctions recommended by the SDT were proportionate although he acknowledged that his misconduct merited a severe sanction.

Electing not to follow either course, President Kearns made an order restraining Mr Callanan from practising as a solicitor for ten years; at the expiration of which he must apply to the court should he wish to resume practice as a solicitor.

Mr Callanan successfully appealed the order of President Kearns, and the matter was remitted to the High Court for a fresh decision.

High Court decision

President Kelly said that the Court was not bound by the decision of the SDT. Although “a good deal of weight” should be attached to its recommendations as a specialist tribunal, President Kelly said that if the Court was satisfied that the penalty recommended by it was clearly inappropriate then it should not follow it.

President Kelly said that the case involved serious serial acts of dishonesty which were premeditated and protracted over a number of years. He said that the SDT attached too much weight to Mr Callanan’s guilty plea when it was an “open and shut” case; and that despite Mr Callanan’s cooperation and restitution efforts, “the scale and extent of the dishonesty was such as to make this a case where the ultimate sanction was the only possible one to recommend so as to “maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth”” (as per Bingham in Bolton v Law Society 2 All ER 486).

Stating that to refuse to strike off would be to endorse the notion that he was a fit and proper person to remain on the Roll, President Kelly said that it would do a disservice of the solicitors’ profession and be a blow to its collective reputation and the confidence which it inspires were his name to remain on the Roll.

Directing that Mr Callanan’s name be struck off the Roll of Solicitors, President Kelly directed that he pay €5,000 towards the costs of the Law Society, and €2,000 to his former partner in respect of his attendances before the SDT.