Neutral Citation [2015] IEHC 577
THE HIGH COURT
[2015 No. 46 SA]
IN THE MATTER OF JOHN F. CONDON A SOLICITOR PRACTISING UNDER THE STYLE AND TITLE OF McMAHON AND TWEEDY SOLICITORS
AND IN THE MATTER OF THE SOLICITORS ACT 1954-2011
BETWEEN:
JOHN F. CONDON
APPLICANT
AND
THE LAW SOCIETY OF IRELAND
RESPONDENT
JUDGMENT of KEARNS P. delivered on the 21st day of September, 2015
The applicant appeals the decision of the Complaints and Client Relations Committee (‘CCRC’) of the respondent communicated to him by letter dated 8th April, 2015 that his practising certificate for the year 2015 should issue subject to the condition that he may practise only as a solicitor in the employment of and under the supervision of a solicitor of at least ten years standing to be approved in advance by the Society. The applicant seeks an order directing that the Registrar of Solicitors issue a practising certificate unconditionally.
STATUTORY PROVISIONS
Part V of the Solicitors Act 1954, as amended relates to the issuing of practising certificates. Section 49(1), as substituted by section 61 of the Solicitors Act 1994, was amended by section 2 of the Solicitors (Amendment) Act 2002 which sets out in relevant part the conditions which the Society can have regard to when considering an application for a practising certificate as follows:-
“2.—Section 49(1) (as substituted by section 61 of the Act of 1994) of the Principal Act is hereby amended by the substitution of the following paragraph for paragraph (q):
“(q) the solicitor has failed to satisfy the Society that he or she should be issued with a practising certificate or a practising certificate not subject to specified conditions, having regard to all the circumstances, including, where appropriate—
(i) the financial state of the practice,
(ii) the number and nature of complaints made to the Society, either alleging misconduct by the solicitor or under section 8 or 9 of the Solicitors (Amendment) Act, 1994 , within the preceding two practice years, or
(iii) the need adequately to protect or secure the interests of the solicitor's clients.”.
The powers of this Court in an appeal against a decision of the respondent are set out in section 61(6) of the Solicitors (Amendment) Act 1994 as follows:-
“(6) On hearing an appeal under subsection (3) of this section, the President of the High Court may—
(a) in relation to an appeal against a direction by the Society to the registrar to refuse to issue a practising certificate to the solicitor concerned, by order—
(i) confirm the direction to refuse and revoke any practising certificate already issued pursuant to an order under subsection (4) of this section,
(ii) rescind the direction to refuse and direct that any practising certificate already issued pursuant to an order under subsection (4) of this section or any practising certificate to be issued by the registrar be issued unconditionally, or
(iii) rescind the direction to refuse and direct that any practising certificate already issued pursuant to an order under subsection (4) of this section or any practising certificate to be issued by the registrar be issued subject to such specified conditions as the President of the High Court thinks fit;
(b) in relation to an appeal against a direction by the Society to the registrar to issue a practising certificate subject to specified conditions, by order—
(i) confirm the direction,
(ii) rescind the direction, or
(iii) vary the specified conditions, or any of them.
(7) The registrar shall cause particulars of a direction by the Society under subsection (2) (a) (ii) or (iii) of this section or an order of the President of the High Court under subsection (6) of this section to be entered in the register in relation to the solicitor concerned.”
BACKGROUND
The applicant is a solicitor practising under the style and title of McMahon and Tweedy Solicitors, Merchant’s Quay, Dublin 8. He has been the principal in that firm for approximately 15 years, prior to which he had been in a partnership at the firm for some 20 years.
The Complaints and Client Relations Committee of the respondent Law Society is tasked, inter alia, with considering applications for practising certificates. Pursuant to s. 49 of the Solicitors Act 1954 as substituted and amended the Society may consider an application for a practising certificate and thereafter direct the Registrar of Solicitors either to issue a practising certificate unconditionally, issue a practising certificate subject to specified conditions, or refuse to issue a practising certificate.
Mr. Barry McCarthy, solicitor and Chairman of the CCRC avers that in relation to his 2014 practising certificate the applicant appeared before a meeting of the CCRC on 29th January, 2014 and the following conditions were attached to the issuing of the certificate:-
(a) That the solicitor reply to correspondence from the Society within fourteen days of receipt of any correspondence relating to any complaint,
(b) That his engagement with the Society is meaningful and constructive,
(c) That he attend the next Essentials of Legal Practice course at his own expense.
Mr. McCarthy states that the applicant had been the subject of 8 complaints to the Society in the practice years 2013 and 2014.
On 12th December, 2014, the CCRC wrote to the applicant and informed him that, having regard to the number and nature of complaints against him over the previous two years, if and when he came to apply for a practising certificate for the practice year 2015 the applicant would have to satisfy the Committee that he should be issued with a practising certificate or one without conditions attached. A summary of all the complaints against the applicant over the previous two years was attached. This letter also notified the applicant of the date of the next CCRC meeting on 23rd January, 2015 and invited written submissions. No response was received to this letter and it is not denied by the applicant that he received this letter.
By way of reminder, the CCRC wrote to the applicant again on 15th January, 2015 confirming the arrangements for the meeting of 23rd January, 2015 at which the applicant’s application for a practising certificate would be considered.
The meeting of the CCRC took place as scheduled on 23rd January, 2015. The applicant was not in attendance. At the conclusion of the meeting the CCRC decided to direct the Registrar to issue a practising certificate to the applicant subject to the following condition:-
(a) That as and from 1 August 2015 the applicant may practise only as a solicitor in the employment of and under the supervision of a solicitor of at least ten years standing to be approved in advance by the Society.
The applicant was notified of this decision by letter dated 27th January, 2015.
However, by letter dated 26th January, 2015, the applicant wrote to the Society indicating that he had not received the letter of 15th January, 2015 inviting him to the CCRC meeting until after the date of the meeting had passed. Following an exchange of correspondence between the Society and the applicant and his solicitor, the matter was re-listed for 31st March, 2015 and the applicant was once again invited to attend and to provide written submissions.
The CCRC meeting took place on 31st March, 2015 and the applicant was in attendance. The various complaints made against the applicant and what steps, if any, he had taken to address them were discussed. Following deliberation on the matter the CCRC decided to instruct the Registrar of Solicitors to issue a practising certificate to the applicant subject to the following condition:-
(a) That as and from 1 September, 2015 the applicant may practise only as a solicitor in the employment of and under the supervision of a solicitor of at least ten years standing to be approved in advance by the Society.
The applicant was informed of this decision by letter dated 8th April, 2015. The applicant now seeks to appeal this decision.
SUBMISSIONS OF THE APPLICANT
In his affidavit of 27th July, 2015 the applicant states that seven complaints were considered by the CCRC at the meeting of 29th January, 2014, which was concerned with his application for a practising certificate for the year 2014. He states that 5 of these complaints are amongst the 8 referred to by Mr. McCarthy, and that by the time he applied for a practising certificate for 2015 there had been an additional 3 complaints in the practice year 2014.
The applicant states that, rather than being ‘resolved’, as recorded in the Society’s notes, the first of these complaints was in fact withdrawn and should not have been taken into account at all when the CCRC considered his application for a practising certificate for 2015. The second complaint related to an undertaking given to discharge ‘all reasonable queries of the Land Registry’. While the applicant accepts there was difficulty in obtaining a required deed which was in the possession of another firm of solicitors, it had been agreed with the Land Registry that an original deed was not necessary, and in any event it was furnished in February 2015. It is submitted therefore that this complaint was of no substance.
The applicant contends therefore that only one complaint remained which could have been taken into consideration by the CCRC in relation to the application for the 2015 practising certificate. It is submitted that at the meeting of the 31st March, 2015 the applicant offered a ‘blueprint’ as to how this complaint could be resolved. In those circumstances, and having regard to the averment of Mr. McCarthy that the CCRC take a ‘global’ approach to the issues, it is submitted that the requirement of supervision of the applicant, who contends that he is specialist in his field, is not only disproportionate but would also effectively render his practising certificate useless. It is argued that if this Court finds some conditions are necessary, which is denied, the conditions attached to his 2014 practising certificate are sufficient to allay any concerns the Society has.
Counsel for the applicant further submits that the procedures adopted by the Society were defective. It is submitted that in cases where Society is deciding whether or not to issue a practising certificate or to issue certificate with conditions attached, it is incumbent upon the Society to conduct an inquiry into the complaints, to inform the solicitor of the complaints, and to allow the solicitor to respond to the complaints. It is submitted that this inquiry must take place before any decision as to the issuing of a practising certificate is made.
The applicant refers the Court to The Law on Solicitors in Ireland (O’Callaghan, Butterworths: 2000) wherein the author discusses the need for an inquiry by the Society:-
“It is important that once one of the factors listed in s.49(1) exists that an inquiry be conducted. Without making such an inquiry, the Law Society cannot know whether any such interests are at risk.”
Referring to the dicta of Barron J. in Giles J Kennedy v. The Law Society (Supreme Court, Unreported, 29th April, 1998) the author states that it is clear that:-
“The proper course is for the Law Society to make enquiries and then exercise its jurisdiction one way or another. However, the Law Society must make sufficient enquiries before exercising its jurisdiction under s.49(2) to grant unconditionally, to grant subject to conditions or to refuse to issue a practising certificate. It is only after conducting an inquiry that the jurisdiction of the Law Society under s.49(2) can be exercised.”
It is submitted that a key decision in this area is that of Re Crowley [1964] IR 106 where the Supreme Court considered the circumstances in which the issuing of a practising certificate may be withheld:-
“The circumstances set out in s.49, sub-s 1, in which the issue of a practising certificate may be withheld are a curious conglomerate but all of them may, I think, be explained, and should, I think, be interpreted, as cases in which the issue of a practising certificate would involve the danger of inadequate or dishonest service being given to the public or of the continuance of unprofessional conduct. In such cases the Committee have a power and a discretion to direct that a practising certificate should not issue, but I hold a strong view that the power so given is exercisable only for protection and not for disciplinary purposes, and that it should be exercised only where there is a demonstrable probability that a practising certificate, if issued, will be abused.”
It is submitted that in the present case there is no ‘demonstrable probability’ that a practising certificate, if issued with no conditions or with the same conditions as those attached to the 2014 practising certificate, would be abused by the applicant. The applicant contends that the requirement for supervision is unduly onerous and has such serious consequences for the applicant and his practice that it can not in any way be said to be reasonable or proportionate.
SUBMISSIONS OF THE RESPONDENT
Counsel for the respondent submits that the history of dealings between the applicant and various complainants and between the applicant and the Society shows that there have been significant difficulties in obtaining adequate responses or any meaningful engagement from the applicant solicitor. This has necessitated numerous applications to this Court to compel a response and it was in those circumstances that the CCRC felt it necessary to impose conditions when issuing the applicant his 2014 practising certificate. However, as more complaints were received following the imposition of these conditions, the CCRC decided to attach a requirement of supervision to the applicant’s 2015 practising certificate.
It is denied that the Society failed to conduct an inquiry before the condition was attached. Rather, it is submitted that two inquiries were conducted and the applicant has now had, in effect, a third inquiry before this Court. The solicitor was notified of the January meeting of the CCRC by letters sent in December 2014 and January 2015. The Law Society denies that it previously accepted that the applicant did not receive the reminder letter of 15th January, 2015 in advance of this meeting. Rather, the Society took the view that holding another meeting on 31st March with a new panel of Committee members was preferable to a judicial review process being commenced by the applicant.
It is submitted that the applicant was given ample opportunity to make submissions in relation to the various complaints in advance of both the January and March meetings and was invited to explain to the CCRC what steps he had taken to address them. The minutes of the March meeting shows the level of engagement by the solicitor and makes clear that he was given the opportunity to respond and did so respond. It is submitted that all of these responses and submissions were considered by the CCRC before arriving at its decision.
Counsel for the respondent submits that it is clear from s. 49(1) as amended that it is for the solicitor to satisfy the Society that he should be issued with a practising certificate and one of the factors the Society is entitled to have regard to is the ‘number and nature of complaints’ made to the Society. In the present case, having considered all of the circumstances and submissions, the CCRC felt that supervision was a necessary condition to impose.
It is submitted that the purpose of the relevant statutory provisions is not to decide if the complaints are right or wrong. It is to give a solicitor an opportunity to show what he has done to attempt to reduce the number of complaints and to satisfy the Society that an unconditional certificate should be issued.
The respondent submits that there has been no defect in the Society’s procedures in the present case. An inquiry was conducted by the CCRC and all issues were carefully considered before deciding to issue a conditional practising certificate to the applicant.
DISCUSSION AND DECISION
The applicant’s primary ground of appeal is that the procedure adopted by the respondent in considering his application for a practising certificate was defective and in breach of the principles of natural and constitutional justice. In particular, the applicant contends that the Law Society failed to carry out an appropriate inquiry before deciding to issue a practising certificate with conditions attached. I have carefully considered the submissions of the parties as well as the various documentation and exhibits and do not accept that the procedure adopted by the Society was defective.
The applicant was put on notice of the first meeting of the CCRC on 29th January, 2015 by letter dated 12th December, 2014 and a reminder was also sent on 15th January, 2015. The parties are in dispute as to whether or not the applicant received the reminder letter and the significance of his having not received it. Whether the applicant received this letter or not is ultimately immaterial as a second meeting was arranged before a different group of CCRC members on 31st March, 2015 and by letter dated 6th February, 2015 the applicant was once again invited to provide written submissions in advance of the meeting. A reminder letter was also sent on 23rd March, 2015.
The minute of the 31st March, 2015 meeting clearly shows that the applicant was invited on numerous occasions by the chairman of the CCRC to address the complaints made against him and to inform the committee of any steps he had taken to address them and it is evident that the applicant was allowed ample opportunity to illustrate his position in respect of the complaints.
It is clear that the applicant was afforded ample opportunity to provide both written and oral submissions in respect of the various complaints to the Society on not one but two occasions. In those circumstances the Court finds that there is no reasonable basis for the applicant’s contention that an inquiry did not take place before the CCRC decided to attach conditions to his practising certificate. The Court accepts the submission by counsel for the respondent that the purpose of the relevant statutory provisions is not to decide on the veracity of the complaints, but rather to give a solicitor an opportunity to address matters such as the nature and number of complaints. A separate disciplinary matter exists whereby determinations in relation to particular complaints are made by the Society’s Disciplinary Tribunal.
The applicant further contends that the condition imposed is unduly onerous and would have devastating consequences on his practice in circumstances where he specialises in tax law and finding an appropriate supervisor is not only extremely difficult but also highly impractical. It is open to this Court to rescind or vary the decision of the CCRC and the applicant has urged the Court to do so and maintains that the conditions as imposed on his 2014 practising certificate are sufficient to alleviate any concerns the Society have.
The Court is satisfied however that the procedure adopted by the CCRC was appropriate and the applicant was afforded every opportunity to present his case. While it is accepted by the Society that no matter what procedures are in place or how diligent a solicitor is in carrying out their business there may still be complaints made against them, there is a consistent and worrying trend to the complaints made against the applicant and the difficulties experienced by the Law Society in obtaining adequate responses from the applicant. This occurred even after the 2014 conditions were attached and indeed occurred in relation to the communication about the CCRC meeting in January 2015. The Court is satisfied that until such a time as the applicant can satisfy the Society that appropriate procedures have been put in place to prevent further complaints, the condition attached to his 2015 practising certificate by the CCRC is appropriate.
In light of the foregoing I would refuse the relief sought.
