Killian Flood BL

The Tribunal had previously held that there was no prima facie case based on the appellant’s complaint. However, the court said that the evidence of the solicitor contained “an implied admission of serious wrongdoing” regarding the falsified documents and the Tribunal was wrong to decide that there was no case to answer. The evidence before the court established that the solicitor’s actions “well cleared the bar for potential misconduct”.

Background

The appellant, Ms Deirdre O’Flynn, and her ex-husband were directors in BOD Investments (Ireland) Limited, with Mr O’Flynn holding 39,999 shares and Ms O’Flynn holding one share. The solicitor, referred to as JM, acted on behalf of the company for nearly all the company’s property transactions. Although the company traded from 1997 to 2011, Ms O’Flynn was not involved in the day-to-day operations of the business. The company was struck off the register of companies twice around 2000 and 2005.

It was only in 2012 that Ms O’Flynn learned that BOD was significantly indebted to the Revenue and she was named as a tax defaulter in national newspapers following the appointment of a liquidator to the company in 2014. The liquidator brought an unsuccessful application to disqualify Ms O’Flynn as a director in 2015.

Subsequently, Ms O’Flynn made a complaint to the Law Society about several aspects of JM’s conduct, including that he failed to draw her attention to the non-payment of tax to Revenue, made payments of company monies to Mr O’Flynn when the company was struck off and, most importantly, that the solicitor falsely witnessed the forged signatures of Ms O’Flynn on company documents. The appellant produced a handwriting expert’s report to show that the signatures were not hers.

The Law Society rejected Ms O’Flynn’s complaints and said there was not a prima facie case against JM. As such, Ms O’Flynn appealed the decision not to hold an inquiry to the High Court under section 7(12A)(a) of the Solicitors (Amendment) Act 1960 (as amended).

High Court decision

At the hearing, JM submitted that the court had to be satisfied that the Tribunal had committed an identifiable error in procedure to allow the appeal to succeed. This was rejected by the trial judge, Mr Justice Richard Humphreys. The judge relied on O’Reilly v. Lee [2008] IESC 21 to rule that the appeal was a de novo hearing, meaning that the court could come to its own conclusion as to whether there was a case to be tried against JM. The court also went on to consider a number of cases which adopted a de novo approach. On this basis, the court said it was not required to find any error in the Tribunal’s procedures and merely had to consider the evidence as presented by the parties.

In considering the falsified witnessing of the documents, the court had regard to the admission by JM that some documents which Mr O’Flynn had signed were witnessed by his office in the absence of JM. As such, it was the case that Mr O’Flynn had received documents which verified that Ms O’Flynn had signed them, when she had not. The court said that this was an “implied admission of serious wrongdoing” on the part of JM.

The solicitor tried to excuse his conduct, arguing that he had not personally witnessed the documents and it was in fact junior staff members who had performed the witnessing of the signature. The solicitor also noted that he had not witnessed any forgery, but rather witnessed a “blank document.” Mr Justice Humphreys dismissed these submissions, saying that JM’s conduct “left the door open to the possibility of forgery.”

The court also held that there was a case for JM to answer in relation to allegations that he mislead the new solicitors, David J. O’Meara & Company, who were investigating the company’s affairs. The allegations centred around JM claiming that he had sent documents to O’Meara & Co when in fact he did not do so. The court noted that much of the correspondence which JM claimed to have sent to Ms O’Flynn was addressed to Mr O’Flynn only. This alleged failure was serious enough to be considered misconduct because it went to the fundamental honesty of the solicitor. Whether the alleged dishonesty was in a sworn statement or in correspondence, the important fact was that it related to knowing or reckless false statements, the court said.

However, the court rejected Ms O’Flynn’s other complaints. The court said that there was no obligation on JM to ensure that BOD paid the capital gains or corporate taxes which arose from the transactions. Equally, the complaint that JM had paid monies to Mr O’Flynn when the BOD was struck off the Register of Companies was not sustainable because the exact period of the strike off had not been established.

Conclusion

The court determined that there were “serious and significant errors” made by the Tribunal and a prima facie case for misconduct against JM had clearly been made by the appellant. The court directed the Solicitors Disciplinary Tribunal to hold an inquiry into the issues of the false witnessing of documents and misleading the new solicitors for the company.