High Court: Solicitor found to have made false stamp duty returns struck off

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The man implored the Court to uphold the recommendation of the tribunal directing that he be allowed to continue to practice under the supervision of an experienced solicitor, however the President of the High Court Mr Justice Peter Kelly agreed with the Society that this was an inadequate sanction and ordered that the man be struck off in order to uphold the reputation of the profession.

Background

In June 2015, the Law Society of Ireland sought an inquiry into the conduct of a solicitor of 14 years, Mr David Herlihy, on the grounds of alleged misconduct.

The Solicitors Disciplinary Tribunal found that Mr Herlihy was guilty of misconduct in that he:

The tribunal recommended that Mr Herlihy not be permitted to practise as a sole practitioner or in partnership and that he be permitted to practise as an assistant solicitor under the direct control and supervision of another solicitor of at least 10 years standing to be approved in advance by the Society. In addition, it recommended that Mr Herlihy should pay the sum of €5,000 as a contribution towards the whole of the costs of the Society.

This sanction was described by the Society as inadequate, which instead sought to have Mr Herlihy struck from the Roll of Solicitors.

Submissions

Mr Herlihy, who has since ceased practising as a solicitor in Ireland and emigrated to New Zealand, accepted the findings made by the Disciplinary Tribunal, and acknowledged that the conduct in which he engaged was serious professional misconduct “which was, by any standard deplorable”.

He also apologised to the court for his serious misconduct which he described as being completely out of character.

Mr Herlihy asked the Court to impose the sanctions recommended by the tribunal rather than striking him off, stating that he would soon have to return to Ireland to assist his elderly parents and would need his employment as a solicitor to do so.

The Society submitted that the six findings involving the making of false stamp duty returns constituted acts of dishonesty – which strikes at the heart of the solicitor/client relationship.

Further, Mr Herlihy’s failure to apply monies collected from clients for the discharge of stamp duty and/or registration fees – some of which were held for over 10 years – amounted to serious breaches of trust.

High Court Discussion

In Bolton v. Law Society 2 All E.R. 486 it was stated that the most serious sanctions “proven dishonesty, whether or not leading to criminal proceedings and criminal penalties” and that in such cases “the Tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors”

In Law Society of Ireland v. Enright IEHC 151, it was considered that a solicitor who had had a criminal penalty imposed upon him and had served a sentence of imprisonment, had therefore paid his debt to society. Although the Court found that it would be unjust to punish him again, the solicitor was nonetheless struck off, because the purpose of the Law Society seeking to strike a solicitor off “in order to maintain the reputation of the solicitors’ profession and to sustain public confidence in the integrity of that profession” appeared to be ‘the most fundamental of all’.

The sole purpose was 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”.

Justice Kelly stated that the crucial issue was whether it could be said that the lesser penalty recommended by the Disciplinary Tribunal was one which would be sufficient to maintain public confidence in the solicitors’ profession, whilst at the same time doing justice to Mr Herlihy and upholding the good name of the Society.

Justice Kelly was of the opinion that in Mr Herlihy’s case, there had been multiple lapses of standards of integrity, probity and trustworthiness, and that there was a level of premeditation involved in his conduct.

In the circumstances, it was necessary for the “ultimate sanction” of Mr Herlihy being struck off the Roll of Solicitors if the reputation of the solicitors’ profession “to be trusted to the ends of the earth” is to be maintained.