[2016] IEHC 420
THE HIGH COURT
[2016 No. 21 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 Mr. Justice Kelly, President of the High Court delivered on the 25th day of July, 2016
Introduction
1. On the 31st January, 2016 the Complaints and Client Relations Committee (“the Committee”) of the Law Society of Ireland (“the Law Society”) decided to grant to the applicant (Mr. Condon) a practising certificate for 2016 with conditions attached to it. On this application Mr. Condon seeks to have that determination of the Committee rescinded. He asks the Court to direct that his practising certificate for this year be issued to him without conditions. This application is brought pursuant to s. 49(6) (b) (ii) of the Solicitors Act 1954, (“the Act”) as amended.
2. In the alternative, Mr. Condon seeks pursuant to s. 49(6)(b)(iii) of the Act a direction that his practising certificate for this year should issue subject to such conditions as the Court deems meet.
3. In due course I will have to consider the jurisdiction which falls to be exercised pursuant to these statutory provisions but before doing so I ought to deal with the factual background to this application.
Mr. Condon
4. Mr. Condon has been a solicitor for the last 35 years. He practises under the style and title of McMahon and Tweedy at Merchants Quay, Dublin 8. He has been the principal in that firm for approximately 15 years. Prior to that he was in partnership at the firm for some 20 years.
5. In common with every other solicitor, Mr. Condon is obliged to apply on an annual basis for the grant of a practising certificate by the Law Society.
6. Towards the end of 2015 Mr. Condon applied to the Law Society for a practising certificate in respect of the current calendar year.
7. At the time of his application Mr. Condon had and continues to have a very bad record as a solicitor. No fewer than eight findings of professional misconduct have been made against him between 2010 and 2015. Those findings have resulted in him being censured on seven occasions and being admonished and advised on one occasion. He has been directed to pay sums totalling in excess of €20,000 exclusive of cost liabilities in respect of those findings. The bulk, if not all of those monies remain unpaid and, rather surprisingly, the Law Society appears to have done very little to enforce payment against Mr. Condon.
8. Apart from the findings of misconduct Mr. Condon had five inquiries pending before the Disciplinary Tribunal at the time that he applied for his 2016 practising certificate.
9. In addition, the Law Society has had to apply to court on four different occasions for relief against Mr. Condon because of his failure to respond to correspondence from the complaints section of the Society.
10. Conditions were imposed on Mr. Condon’s practising certificates for the years 2010, 2014 and 2015. The 2015 conditions permitted him to practise but under supervision. Given his unimpressive record it was hardly surprising that Mr. Condon was written to by Mr. Anthony Watson, the Deputy Head of Complaints and Client Relations at the Law Society concerning his application for a practising certificate for 2016. Before considering that letter and what followed from it, I now address what happened in respect of Mr. Condon’s application for a practising certificate in respect of 2015 since it has a relevance to this application.
The 2015 Practising Certificate
11. Mr. Condon’s practising certificate for 2014 was granted subject to three conditions. They were:-
12. When Mr. Condon applied for his practising certificate for 2015 he was informed by letter that because of the number and nature of complaints that had been made against him he should attend a meeting scheduled for the 23rd January, 2015. A reminder in respect of this meeting was sent to him on 15th January, 2015. He failed to attend before the Committee on 23rd January, 2015.
13. Having failed to attend this meeting on the 23rd January, 2015 the Committee decided that Mr. Condon would only be permitted to practise under supervision during that year.
14. By letter dated 26th January, 2015 Mr. Condon wrote to the Committee indicating that he had only received the reminder letter on that date and that he did not intend any discourtesy in not attending. He said that he was not aware of the request to attend and pointed out that his record of attending meetings should speak for itself.
15. On the 2nd February, 2015 Messrs. Giles Kennedy & Co. wrote on behalf of Mr. Condon and threatened judicial review proceedings unless a fresh meeting of the Committee was held.
16. A fresh meeting of the Committee, differently constituted, was held on the 31st March, 2015. Mr. Condon attended. Having heard him the Committee decided that he would only be permitted to practise as a solicitor in 2015 under supervision.
17. Mr. Condon appealed against that decision. The appeal was returnable before the then President of the High Court on the 8th June, 2015. The appeal was adjourned until the 22nd June to enable the Society to swear and file a replying affidavit. That was duly done on the 8th June, 2015 and the affidavit was delivered to Mr. Condon on the 9th June, 2015.
18. Mr. Condon failed to appear before the then President of the High Court on 22nd June, 2015. The matter was adjourned until the next day.
19. On the 23rd June, 2015 Mr. Condon was directed to file a replying affidavit within 14 days and the appeal was adjourned until the 29th June, 2015 with a view to a date being fixed for its hearing.
20. On the 6th July, 2015 Mr. Condon obtained a further adjournment until the 20th July, 2015.
21. By the 20th July, 2015 he had still failed to file any affidavit in response to that of the Society but was successful in obtaining another adjournment until the 29th July. He finally swore a replying affidavit on the 27th July, 2015.
22. On the 29th July, 2015 the Society requested the then President to proceed to hear the appeal on that date. Mr. Condon said he did not wish to proceed on that occasion. The appeal was then adjourned for hearing during the Long Vacation on the 26th August, 2015.
23. Once again, on the 26th August, 2015 Mr. Condon indicated that he did not wish to proceed because he had instructed new solicitors to come on record. The appeal was further adjourned until the 9th September, 2015 with a stay being placed on the application of conditions to his licence until that hearing date. The appeal was heard on the 9th September, 2015 with judgment being delivered on the 21st September, 2015. The appeal was dismissed. No stay was sought by Mr. Condon when judgment was delivered at 9.00am on that date. Later that morning he telephoned Ms. Mary Fenelon, a solicitor employed in the Regulatory Legal Services Section of the Law Society of Ireland indicating that he would seek a stay at a hearing of the High Court at 11.30am that day. Law Society representatives attended the court at 11.30 but there was no attendance at court on behalf of Mr. Condon. Some short time afterwards Mr. Condon and a legal team attended but at that stage the court was no longer sitting and so no application was made.
24. By letter of the same date (21st September, 2015) Mr. Condon wrote to Ms. Fenelon directly rather than through his solicitors on record and stated that “as you know we were unable to make our application because you were not in court”. This statement was incorrect and was responded to by the Society setting out the actual position that had obtained.
25. On the 25th September, 2015 Mr. Condon sought a stay from the then President of this Court which was opposed by the Society. The President indicated a willingness to grant a stay for a period of seven days so as to enable Mr. Condon to seek relief from the Court of Appeal if he wished to do so.
26. On the 2nd October, 2015 the Court of Appeal refused to grant Mr. Condon a stay on the President’s order. The appeal against the order of Kearns P. is pending before the Court of Appeal.
27. In his affidavit of the 14th March, 2016 grounding the current appeal Mr. Condon indicated that he was not afforded a fair opportunity to make submissions to the Committee in 2015 and that he had appealed that decision. He does not, however, state that at the hearing of the stay application he indicated that he was not raising any procedural challenge but would confine his appeal to the merits of the decision to impose conditions.
28. The net effect of all of this insofar as the 2015 practising certificate is concerned is that despite the fact that conditions were imposed by the Committee on the 31st March, those conditions which were due to commence on the 1st September, 2015 did not. It was not until 5th November, 2015 that the Committee was in a position to set out the terms of supervision. Those terms in turn resulted in correspondence from Mr. Condon so it was not until 21st December, 2015 that the agreed supervisor, Mr. Bill Stokes, was able to attend at Mr. Condon’s office. Mr. Stokes was Mr. Condon’s nominee as supervisor. His supervision ended on 31st December, 2015 and, of course, encompassed the Christmas break. Thus, the intended supervision lasted little more than a week, much of which was taken up with the Christmas vacation. Notwithstanding the short period of supervision available to Mr. Stokes he produced a report to which I will now turn.
The Stokes Report
29. After a short introductory paragraph Mr. Stokes set out his initial findings and experiences as a result of the supervision which he carried out between the 21st and 31st December, 2015. Insofar as it is pertinent the report states:-
“1. The Principal Mr. John F. Condon is an extremely good academic, having published Capital Acquisitions Tax 1982-2007, now in its 16th edition. I have read a few of his letters and they are well constructed, displaying an agile and active mind in construction and articulation. …
4. Nevertheless, a lot of very good academics tend to lack pragmatism, management skills, particularly in organisation and of course business acumen and most assuredly, this is the case here. …
9. I entered the practice at 3.00pm on Monday, 21st December, 2015 and commenced my observations. There was a huge amount of arrears of mail. I read the report of Frank Connelly, FCA. I collected my thoughts and knew that I would be on item 1 of my 17-point entry plan for a long time.
10. On the following day I marked the Law Society letter relative to P.I.I. with the word ‘REFER’, meaning that file had to be produced straight away for reading, discussion and action. I requisitioned it from the secretary. I read the history of the practice back to 2009 and discussed with Mr. Condon the urgency of what had to be done, upon his arrival in the office later that day.
11. The arrears of mail was an absolute ‘bonus’ enabling me to sort and read the correspondence before filing into a concertina, marking and noting cases for ‘REFER’, separating office bills intermingled with the mail and according me a swift grasp on three essential areas of the practice in one fell swoop, namely, office account, potential complaints and general correspondence. I queried the Principal as to the number of live cases which he had and the value of costs for each to which he replied ‘about 100 and €30,000 to €50,000’ respectively. …
13. I am pleased to advise that no new complaints whatever have been received.
14. I am concerned that there may be some pressure on the office account, which I have not seen, but all the pointers suggest some difficulty here and from my mental tot of office bills, one must bear in mind the provisions of section 2, subsection 1 (i) of the Solicitors Amendment Act 2002. Furthermore, I did observe the Principal dispatch a personal cheque in the sum of €500 on the 23rd December, 2015 to his P.I.I. broker. This is unusual at the close of the financial year when accounts are settled by way of office account payment to reduce tax liability. He admitted and corroborated the personal payment. My fears would, of course, be considerably allayed with a proper ‘work in hand’ being undertaken and preferably with a solicitor specialising and engaged in these spheres of law suggesting an accurate valuation.
15. I am, without one shred of reservation, appalled and concerned with the verbal abuse, humiliation, bullying and the general manner by which he treats his secretary. I do not know the precise nature of her contract, yet I aired my disapproval to him, pointing out that an action for constructive dismissal could accrue with the E.A.T. or indeed at common law.”
The secretary referred to is a lady who worked as a legal secretary for Matheson Ormsby & Prentice for upwards of 20 years, before joining Mr. Condon’s practice, some nine years beforehand, when her previous employers relocated their offices to the Financial Services Centre in Dublin.
30. The report continued:
“16. As previously stated, Mr. Condon’s mind is very sharp and agile and indeed he possesses wonderful intellectual ability. It is a great pity that such ability is sometimes generated in the opposite direction to that which was intended and with all his express inexactitudes presents more as a contradictory spokesman for the truth. Nevertheless, from a physical point of view I would recommend an independent medical examination being conducted with notes and history being supplied by his medical advisors.
17. I attended the office again on the 30th December, 2015 for a short period as my powers of appointment were ceasing the following day. Whilst I might have only sorted about 15% of the mail, that figure may well be conservative with repeating mail being encountered.
18. I am aware that it is not right and proper or indeed ethical to discuss costs and outlays but I am departing from that stricture on this one occasion by hastening to add that I did present a bill of costs up to the 31st December, 2015.
19. Learned counsel invariably conclude their valued opinions by stating “nothing further occurs to me”, yet I have a great deal more to impart, however to do so would constitute an injury to the environment by committing further word to paper.”
31. On 22nd January, 2016 Mr. Condon wrote to Mr. Stokes with a variety of complaints concerning this report. The letter concluded by pointing out Mr. Condon might be advised to issue legal proceedings against Mr. Stokes.
The 2016 Practising Certificate
32. On 16th December, 2015 the Committee wrote to Mr. Condon concerning his practising certificate for 2016. The letter read:
“Dear Mr. Condon,
Pursuant to the provisions of s.49(1)(q)(iii) of the Solicitors Act 1954 as substituted by s.61 of the Solicitors Amendment Act 1994 and as amended by s.2 of the Solicitors (Amendment) Act 2002, the Complaints and Client Relations Committee of the Society may direct the Registrar of Solicitors to refuse to issue a practising certificate or to issue a practising certificate with conditions attached to a solicitor who 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 the need adequately to protect and secure the interests of the solicitor’s clients.
This letter is to put you on notice that if and when you apply for a practising certificate for the year commencing 1/1/2016, the Complaints and Client Relations Committee will, having regard to the need adequately to protect and secure the interests of your clients, require you to satisfy the Committee that you should be issued with a practising certificate or that you should be issued a practising certificate without conditions attached.
If you or your legal representative wish to make submissions in person before the Committee can you please confirm this as soon as possible so that a time can be allocated and the necessary arrangements made for your attendance. The meeting will take place on 26th January, 2016 at the offices of the Society’s Regulation Department, George’s Court, George’s Place, Dublin 7.
If you propose to make a written submission can you please ensure that it is lodged with the Society on or before 15th January, 2016.
It is most important that you understand that if you do not respond to this letter or attend at the meeting, the Committee will proceed to make a decision. As this could potentially have very serious repercussions, it is strongly recommended that you make arrangements to attend the meeting and seek legal representation and/or advice. A copy of the relevant legislation is attached for your information.
Yours sincerely,
Anthony Watson,
Solicitor,
Deputy Head of Complaints and Client Relations”
33. Mr. Condon responded to this letter on 23rd December, 2015. He wrote:
“Dear Mr. Watson,
I refer to your letter of 16th received here on the 21st inst. It is probably a bit of an understatement to say that your letter is something of a surprise.
You do not seem to be aware that myself and Patrick Cunningham and the proposed Complaints administrator, Mr. Bill Stokes attended a meeting of the Complaints and Client Relations Committee on the 5th day of November, 2015 when it appeared that all matters had been put to rest (subject to some slight discussion on wording). I say that because when the meeting was called to an end by the chairman, Mr. Barry McCarthy he said and we specifically noted ‘I hope we do not have to see you again’. In the run-up to that meeting and to the prior correspondence the provision that you now mention were (sic) also set out but it became clear that the Committee was only concerned with the matter of complaints. The matter of complaints is not mentioned in your letter for the obvious reason that there haven’t been any complaints. This raises the question as to what is now the concern and what is the jurisdiction of the Committee in relation to it.
You say in the second paragraph of your letter that if and when I apply for a practising certificate the Committee having regard to all the circumstances including, where appropriate, the need adequately to protect or secure the interests of my clients will require me to satisfy them as set out. Again here, it doesn’t specify how this ‘need’ is of particular concern in my case. So as I can consider and be advised on this I would need to see as an absolute fundamental the minutes of the committee meeting which decided to issue this notice and all of the material that was before the committee meeting. Can you please let me have this by return so that matter can be considered further.
We await hearing from you as a matter of urgency.”
This letter was responded to by Ms. Linda Kirwan, solicitor on 11th January, 2016. As requested she sent Mr. Condon the relevant extract from the minutes of the Committee meeting held on 15th December, 2015 together with the material circulated to the Committee on the day.
34. On 12th and again on 13th January, 2016 Mr. Condon wrote identical letters to Mr. Watson. The letters read:
“Dear Mr. Watson,
I refer again to your letter of 16th December and our response of 23rd December. We have had no reply to our letter and this has now become a very serious issue. Your letter speaks in terms of ‘satisfying the committee’ the failure to which may result in refusal to issue a Practising Certificate or imposing conditions on same. It suggests that this be done by ‘submissions’ and if the submissions are to be written they are to be lodged on or before 15th January, 2016. We cannot begin to even consider what submissions it will be appropriate to make until clarification sought in our letter of 23rd December is forthcoming and this makes written submissions impossible. Would you please contact me immediately to let me know when you are going to clarify this. For the avoidance of doubt I am going to spell this out: -
1) Given that there haven’t been any complaints which was the stated reason for being required to ‘satisfy the Committee’ in January 2015 what (if any) is the basis of it now and how does the CCR derive jurisdiction in relation to it;
2) I have already specifically asked for the minutes of the meeting. It subsequently occurred to me that the meeting may well have dealt with other matters and the appropriate extract should suffice provided it contains all that pertains to me by names of those attending whether lay or not, chairman proposer and seconder and who put the practising cert 2016 on the agenda.
3) There was a meeting on 15th December and we were aware of it was to deal (sic) with an application from us to vary the wording of the agreed proposal in relation to Mr. Stokes and we requested that we go too (sic) the meeting but wasn’t (sic) facilitated. I was told by Ms. Kirwan that there was a very full agenda and shortage of time but to ring on the morning to check which I did without response. Surely this meeting didn’t deal with the practising certificate 2016 in our absence without our being aware and afforded an opportunity to participate?
It occurred to me looking at the legislation enclosed with your letter as this legislation is not particularly well drafted s.49(1) begins by speaking of a situation ‘where a solicitor makes application for a practising certificate in any one or more of the following circumstances’ and lists a number of these beginning with (a) and ending with (q).
(q) was subsequently substituted by the 2002 Act which adds a new set of circumstances, i.e., complaints at the new (ii) and then goes on at (iii) to mention ‘the need adequately to protect or secure the interests of solicitor’s clients’.
When one looks at this logically it is not appropriate to describe (iii) as a set of circumstances that exist at any particular time in the case of any solicitor. It is a constant need for every solicitor which he discharges (and which he is also required by the Solicitors Act to discharge) by taking out appropriate professional indemnity insurance which is in place here.
If you agree with the above interpretation that would be the end of the matter but again please let me know this by return so as I can take advice.”
35. On 18th January, 2016 Mr. Condon was informed of the time that the meeting of 26th January, 2016 would take place. The following day Mr. Stokes submitted his report which I have already reproduced in this judgment insofar as it is relevant.
36. On 20th January, 2016 Mr. Condon was written to by the Law Society. He was sent the relevant extract from the minutes of the Committee of 15th December, 2015 together with the material circulated to the Committee on the day of that meeting. He was informed of the attendance at the meeting. The letter went on:
37. On 22nd January, 2016 Mr. Condon wrote the letter to which I have made reference at para. 31 of this judgment indicating that he might issue legal proceedings against Mr. Stokes. It is to be remembered that Mr. Stokes was Mr. Condon’s own nominee as supervisor.
38. On 26th January, 2016 Mr. Condon attended the meeting of the Committee along with his solicitor. A transcript of what occurred was exhibited before me. I will refer to parts of it later. A written submission was handed in by Mr. Condon and was considered by the Committee. Mr. Condon told the Committee that what he sought was a full practising certificate without any conditions attached.
39. By letter of 27th January, 2016 Mr. Condon was notified of the Committee’s decision. It was that Mr. Condon would have to practise under the supervision of a solicitor of at least 10 years standing to be approved in advance by the Committee. He was informed that if he wished to apply for approval of a proposed supervisor the matter would be placed before the next available meeting of the Committee.
40. On 31st January, 2016 the Law Society wrote to Mr. Condon informing him that Mr. Stokes, his former approved supervisor, had confirmed to the Society that he was no longer prepared to act as supervising solicitor. The letter went on to point out that as no practising certificate was therefore in force Mr. Condon was prohibited from practising or holding himself out as a solicitor entitled to practise.
41. The response to this letter came on 11th February, 2016 from Mr. Condon’s solicitors. It made a number of complaints. First, it alleged that the hearing which had taken place on 26th January was conducted in breach of fair procedures and natural and constitutional justice. It alleged that Mr. Condon was required to deal with that meeting on what was described as an “entirely open-ended basis”. It cited the correspondence to which I have already referred. It pointed out that written legal submissions had been prepared and delivered on 26th January, 2016 but that without knowledge of the precise matters of concern to the Committee such submissions could not engage with the factual position and accordingly were limited to the law and the issue of practising certificates.
42. The letter also complained that on the day of the hearing Mr. Condon was presented with a 15 page memorandum detailing a large number of issues (some historical) which had been identified to the Committee members. He complained that Mr. Condon had no opportunity of looking at that until he arrived at the waiting room minutes before going into the meeting. The letter recorded that an adjournment was granted to Mr. Condon in order to consider that document but it was only of 15 minutes duration. That, it was said, was insufficient to be able to consider the document and give instructions in respect of it. The letter also complained that the chairman of the Committee indicated that it required satisfaction that the interests of Mr. Condon’s clients would be protected. He asked to be addressed on specific steps that might be taken in order to bring that about. The letter alleged that Mr. Condon was given no indication of what matters needed to be addressed or what steps might be required by the Committee.
43. The letter then complained that the condition requiring supervision by a solicitor of 10 years standing was more onerous than that imposed in 2015 and that no reason for the imposition for such more onerous condition was apparent in the decision. The letter also complained that Mr. Condon was not asked to identify or suggest any supervising solicitor at the hearing before the Committee. It did, however, acknowledge the letter of 27th January, 2016 inviting Mr. Condon to identify a proposed supervisor to be considered at the next available meeting of the Committee. The letter then referred to the Law Society’s letter of 31st January, 2016 to which I have already made reference.
44. Mr. Condon’s solicitors assert that Mr. Condon does not require supervision at all. They contend that it is entirely unclear how it has become a prerequisite to the issue of a practising certificate that a supervisor should be appointed. It is contended that there was no discussion of that at the hearing of 26th January, 2016. Such a possibility did not feature, it is said, in any correspondence prior to the hearing. They complain that Mr. Condon had no opportunity to make submissions or arrangements in that regard.
45. The letter also argued that the 2014 Regulations required that any conditions be scheduled to the practising certificate and not that the practising certificate should not issue until the conditions are fulfilled. The letter proffered a cheque for €2,470 in payment for the practising certificate.
46. In its conclusion, the letter complained that the Society had put Mr. Condon out of business and had prevented him from looking after the interests of his clients until such time as a supervisor could be found and approved. It alleged there was no legal basis for that and that it could not be in the interests of Mr. Condon’s clients that he not be able to look after their needs and/or affairs. This approach was alleged to be disproportionate, irrational and not to be in accordance with the powers and roles of the Committee, Registrar and the Society itself. The final paragraph of the letter said that notwithstanding the contention that Mr. Condon does not require supervision and without prejudice to the appeal in respect of the restriction imposed in 2015 and furthermore without prejudice to the right to lodge a similar appeal in respect of 2016 it called upon the Society to forthwith issue a practising certificate and afford Mr. Condon a reasonable opportunity to nominate a supervising solicitor. It contended that a failure to receive confirmation from the Law Society of this state of affairs by return would result in an application for judicial review. No such judicial review was ever commenced. Instead, an application was brought by notice of motion seeking the reliefs which I have already identified in the introduction to this judgment.
This Application
47. Eight grounds are set out in the motion grounding this application. They reflect to a very large extent what is contained in the correspondence which I have either reproduced or referred to extensively. For the sake of completeness I set out the grounds here. They are as follows:-
“1. The appellant is a well experienced solicitor with over 35 years in practice and the condition requiring supervision of his practice is excessive and unnecessary. In particular the condition is out of proportion to the concerns of the Complaints and Client Relations Committee and the circumstances of the appellant’s practice.
2. The determination of the Complaints and Client Relations Committee was reached in breach of fair procedures and natural and constitutional justice.
3. The determination of the Complaints and Client Relations Committee failed to take into account properly or at all, the fact that no additional complaints had been received in respect of the appellant since the imposition of a condition on the appellant’s practising certificate in 2015 (which determination was appealed to the High Court, affirmed by the learned President and is currently under further appeal to the Court of Appeal).
4. The appellant was given no or no proper notice of the circumstances of concern to the Complaints and Client Relations Committee before or during the hearing of the said committee on 26th January, 2016. The appellant had no or no proper opportunity to address these issues. This is contrary to fair procedures and natural and constitutional justice.
5. Notwithstanding the above concerns, the committee continued to conduct a hearing into the circumstances of the appellant’s practice without identifying any particular circumstances of concern or without affording the appellant any opportunity to address such circumstances and/or to provide any solutions to such issues.
6. Despite being requested to adjourn the proceedings by the appellant’s representatives in order that proposals could be formulated and put to the committee, the committee proceeded to determine the matter. Again, this was contrary to fair procedures and natural and constitutional justice.
7. The committee determined that having regard to the circumstances of the appellant’s practice, that he be issued with a practising certificate subject to two conditions, namely that he notify the Law Society of any complaints made against him and that he practise under the supervision of a solicitor of at least 10 years standing. The particular circumstances giving rise to this condition are not identified. The decision fails to give any or any adequate reason for this determination contrary to law.
8. The decision is also unreasonable and no circumstances of the appellant’s practice have been identified as would give rise to the need for supervision. Certainly no circumstances are identified as could give rise to the need for immediate supervision. The appellant had been supervised for a period of months in 2015 that supervision had ended on 31st December, 2015. No account was given to this period of supervision or to the absence of complaints during this time and the previous two years. No reason is given for the re-imposition of supervision and, it appears, that different to the sanction imposed in 2015 the requirement of supervision is a condition precedent to the issuance of a practising certificate. This is contrary to the statutory provisions; it is also entirely unjustified in all of the circumstances.
9. The decision of the committee has the effect of leaving the appellant without a practising certificate from January until at least March when the committee might approve a supervisor for the appellant. This supervision is unwarranted and is not in the interests of the appellant, his clients, the public or the Society itself. In 2015 the appellant was given until August to find a supervisor, which he did. That supervision has come to an end and, without prejudice to this appeal, a replacement needs to be found. This cannot be done overnight and the appellant ought to be afforded a reasonable opportunity to find and engage such a supervisor. The appellant has written to the Society seeking time to nominate a supervisor, however, the respondent has refused such request. This leaves the appellant in an intolerable situation where he has been suspended from practice immediately and cannot look after his clients’ files and interests. This is both disproportionate and contrary to the effect to be achieved.”
48. Two things ought to be noted immediately about these grounds. First, ground number 8 gives an entirely misleading impression that Mr. Condon had been supervised “for a period of months in 2015”. As is clear from what I have already set forth in this judgment that is not so since the period of supervision for the reasons which I have outlined lasted just a number of days from 21st December, 2015 to 31st December, 2015.
49. Second, the contention which is set forth at ground number 9 to the effect that Mr. Condon is in an intolerable situation where he has been suspended from practice is not the case. On his own affidavit grounding the motion he makes it clear that he has, since 1st March of this year, been practising under the supervision of Mr. Anthony O’Rourke in accordance with the stipulation of the committee.
Practising Certificates
50. Every solicitor who wishes to conduct the practice of solicitor must obtain an annual practising certificate from the Society. Section 46 of the Solicitors Act 1954 as amended requires the Registrar to issue certificates certifying that the solicitors named therein are entitled to practise as solicitors.
51. Section 47 of the 1954 Act as amended entitles the Society to make regulations with regard to the applications for practising certificates and the issue of such certificates.
52. Section 49 of the 1954 Act as substituted by section 61 of the 1994 Act as amended by section 2 of the 2002 Act applies where a solicitor makes application for the annual practising certificate in any one or more of the circumstances which are identified in that section. Where this section applies the Society is required as soon as practicable to consider the application and is thereafter entitled to direct the Registrar to either issue a practising certificate unconditionally or conditionally or to refuse to issue a practising certificate. An appeal lies to the President of the High Court from such a decision and the powers available to this Court on such an appeal are specified in subsection 6 of section 49. In due course, I will have to consider those powers. When section 49 is applicable it is the committee which considers the application for the practising certificate. That is what occurred in the present case.
53. It is important to bear in mind, in the context of the submissions which have been made on behalf of Mr. Condon, the function being exercised by the Committee. In Re Crowley [1964 I.R. 106] Kingsmill Moore J. in speaking of section 49 said this:-
“The circumstances set out in s.49, subs.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 case the Committee have a power and 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.”
54. Earlier in that judgment Kingsmill Moore J. pointed out that there may be occasions where a solicitor should be restrained from practice because of some continuing state of affairs which render his practising undesirable. He said:-
“Such restraint is not a matter of discipline for past offence but of precaution lest future practice by the solicitor should prove dangerous to the public or the profession in the future. The fact that a solicitor has misbehaved himself in the past may indeed be an element in arriving at the conclusion that he is likely to misbehave himself in the future and so (subject to the provisions of s.49) may form grounds for withholding a practising certificate, or issuing it subject to conditions; but in such a case the certificate is not to be withheld, or conditions imposed, as a discipline for past misdoing. Such action is only justified as a necessary precaution against the likelihood of future misdoing reasonably to be inferred from past conduct.”
55. Kingsmill Moore J. also quoted from the decision of Davitt P. in In re D., A Solicitor [95 ILTR 60] which gives guidance as to how the committee should go about its task. Davitt P. said:-
‘When considering whether a certificate should or should not be issued the Society should, however, take into account all the relevant circumstances existing at the time the decision has to be made, having due regard to the interests of the public; the interests of the profession; the interests of the clients of the solicitor in question; and the interests of the solicitor himself.’
Having approved of that statement Kingsmill Moore J. went on to say:-
“The matter, in my opinion, must be considered on these grounds as matters stand at the date of the application, or, if there is an appeal, at the date of the appeal.”
56. All of this case law was again considered by the Supreme Court in Kennedy v. Law Society of Ireland (Unreported, 29th April, 1998). There Barron J. having cited these decisions went on to say:-
“The jurisdiction under s.49(2) is not disciplinary. Once any of the circumstances set out in the several paragraphs of subs.(1) arise, then the Society must enquire as to how such circumstances arose. Having made enquiries, it has a choice in its course of action. It may direct the Registrar to issue a certificate unconditionally; or one subject to condition; or to refuse to issue a certificate. Its decision must be made in the light of the need, if any, to protect the interests of the public, the interests of the profession, the interests of the clients of the solicitor in question, or in the interests of the solicitor himself.”
57. Thus, it is very clear that the work of the Committee is not of a disciplinary nature.
58. The Committee consists of both solicitors and lay members. Since the decision of the Supreme Court in Fitzgibbon v. Law Society [2014] IESC 48 it is clear that this specialist committee is one to which a measure of curial deference ought to be shown. I turn now to a consideration of the complaints which have been made by Mr. Condon.
Complaint No. 1
59. It is said that the Committee did not have jurisdiction to enter upon a consideration of Mr. Condon’s application for a practising certificate particularly having regard to the fact no new complaints had been made against him by clients.
As was made clear in the correspondence sent to him which preceded the Committee meeting of 26th January, 2016 the Committee dealt with the matter pursuant to the provisions of s.49(1)(q)(iii) of the Solicitors Act 1954 as substituted by s.61 of the Solicitors Amendment Act 1994 and as amended by s.2 of the Solicitors (Amendment) Act 2002.
60. Section 49 applies where a solicitor makes application for a practising certificate in any one or more of the circumstances which are outlined in the various subsections of subsection 1 of section 49. Subsection (q)(iii) makes the section applicable where a “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 of the circumstances, including, where appropriate - (iii) the need adequately to protect or secure the interests of the solicitor’s clients”. (my emphasis)
61. The Committee must have regard to all the circumstances one of which may include the need to protect clients. The fact that no new complaint had been made against Mr. Condon did not oust the jurisdiction of the Law Society or deprive it of the entitlement to apply section 49 of the Act.
62. I am satisfied that the Committee in this case had jurisdiction pursuant to these provisions notwithstanding the absence of any new complaint from any client. Given Mr. Condon’s extremely poor record and the minimal supervision which had been carried out in 2015 the Committee was, in my view, virtually obliged to give consideration as to what should occur in 2016. The Committee would, of course, also have been aware of the decision of my predecessor given on 21st September, 2015 dismissing Mr. Condon’s appeal from the conditions imposed upon him in respect of that year. It would have been irresponsible for the Committee not to concern itself with the question of whether or on what conditions a practising certificate should be issued to Mr. Condon for 2016.
63. Furthermore, it is clear that by the time the Committee came to consider the position at its meeting on 26th January, 2016 both it and Mr. Condon had by then a copy of the Stokes Report. His description of a “huge amount of arrears of mail” when he entered the premises on 21st December, 2015 could not but have entitled the Committee to be concerned from the point of view of the protection of clients. Having regard to all of the circumstances of Mr. Condon the Committee clearly had jurisdiction.
Complaint No. 2
64. Mr. Condon complained through his counsel that he was not given “a proper statement of the charges, circumstances or what was of concern to the Committee”. The use of language such as “statement of charges” demonstrates a misunderstanding of the function of the Committee. As the case law makes clear it is not exercising disciplinary functions. There are no “charges” in question.
A consideration of the correspondence, most of which I have already set forth in detail in this judgment, makes it perfectly clear that adequate notice was given to Mr. Condon of the concerns of the Committee. I refer to the letters of 16th December, 2015, and 11th January, 2016, which enclosed the relevant extracts from the minutes of the Committee meeting of 15th December and the material circulated to the Committee when it made its decision to have a meeting on 26th January, 2016; the reminder of 18th January, 2016; the letter of 20th January, 2016 informing Mr. Condon that the Stokes Report (which had been furnished to him) would also be before the Committee. When the Committee met on 26th January, 2016 there had not been any further letters of substance received from Mr. Condon since the one which he wrote on 12th January. Between 12th January and 26th January, 2016 the only letter that he had written was the one to Mr. Stokes alerting him as to the possibility of being sued.
65. This correspondence satisfies me that Mr. Condon was on notice of the concerns that the Committee had in respect of him. He also, of course, cannot but have known his own very poor record as a solicitor, a matter to which I will return in a moment when I consider his complaint about the refusal of the Committee to adjourn. However, insofar as he makes complaint of some lack of notice of what he had to deal with, I do not believe that to be well founded.
Complaint No. 3
66. Mr. Condon complains that the Committee did not adjourn his application. I have carefully considered the transcript of what took place before the Committee. I do not intend to add to an already lengthy judgment by quoting large extracts from the transcript but nonetheless a number of them are relevant.
At the very outset of the meeting Mr. McCarthy, who was chairing it, pointed out that it was not exercising a disciplinary function but it was taking into account the circumstances set out in s.49 of the legislation. It was pointed out to Mr. Condon that they included but were not limited to the financial state of his practice, the nature and number of complaints against him in the previous two years, the need to adequately protect his clients and any failure to comply with a requirement or determination or direction of the Law Society. Mr. McCarthy pointed out that the Committee would take no cognisance of complaints that were rejected, inadmissible or withdrawn. On the other hand, he said the Committee regarded as very serious those complaints where an adverse finding had been made or where complaints had necessitated a referral to the Disciplinary Tribunal. He pointed out to Mr. Condon that it was up to him to satisfy the Committee that there was no danger of inadequate or dishonest service to his clients. He pointed out that there had been no new complaints against Mr. Condon. The Committee’s concerns were of a more general nature. The question posed by the chairman was what steps had Mr. Condon taken to protect the interests of his clients. A consideration of the transcript demonstrates that Mr. Condon simply did not engage with that issue. Indeed, he never really seems to have been able to focus on indicating to the Committee what steps he proposed to take so that it might be assured that his past conduct would not be replicated in future.
67. During the meeting the question of a backlog of post was raised with him and even that Mr. Condon dismissed by pointing out that he does a lot of his work for the Appeal Commissioners who carry out a lot of their communication by emails “But maybe the letter he found, maybe it was replied to by letter and not email, I don’t know without seeing it, I couldn’t say”.
68. A Mr. McLoone, a lay member of the Committee intervened after many fruitless exchanges with a suggestion to Mr. Condon that perhaps they should get back to the basics. He said:-
“We’ve had these conversations over a couple of years now. So we’d better get back to the basics. You must sense the general unease or discomfort on the part of the Committee to grant a licence to you or to grant a licence to you without conditions, and that’s essentially what we are looking for you to address us to say, well, if we have these general concerns based on our experience, what’s before us, it’s up to you to come and present to us a convincing case that we have no need for concerns.
The reason I intervene is that the dialogue doesn’t help me personally ease the concerns because it’s more problem driven than solution driven. So if we cite examples of things that we would be concerned about, you know, we don’t get an immediate response that says ‘Oh, yes, that’s a problem, here’s the solution. Here’s the measure that is taken or is going to be taken that will leave you in no worries at all that clients won’t have problems communicating with our office, whether they are corporate clients, individual clients, whether it’s the Law Society, our office will be open and accessible as all the others out there who are practising, we won’t encounter these difficulties.’ That’s the type of assurance that, I think, is not unreasonable because it’s the standard that all other practitioners who are members of the Law Society seek to achieve. And to be frank with you, it’s normality. It’s not the normal business that, you know, clients and solicitors engage in and it’s attended by, okay, lots of difficulties and lots of problems, but in terms of basic communication, response, access, all of that, we should be able to satisfy ourselves that this operates without difficulty. But none of this conveys comfort to somebody like myself who is a lay member that if I went to you, that this would operate as smoothly as if I went to somebody else. That’s really what you need to allay our concerns about. And if it was the first time I’d say grand, but it’s not. This is the fourth or fifth time. I don’t know how many years I’m on this Committee, but you and I have had this conversation on at least three occasions in the past and each time I’ve expressed incredulity that we are here dealing with this when it’s entirely within your gift and your responsibility to allay the concerns of this Committee so that the Committee, in turn, can allay the concerns of the public. I’m asking you to draw breath now and reflect on this rather than come back in with another solution or a problem to the solution rather than a solution to the problem. I mean, we need indications from you that you recognise why these concerns exist and measures put forward by you that will satisfy us that in the coming twelve months all these concerns that we have will be eliminated. We are at this an hour now, and little or nothing that’s been said to me eases my worries. It adds to them to be honest with you.”
69. Unfortunately, a reading of the transcript demonstrates how accurate is Mr. McLoone’s observation. Mr. Condon never engaged at all with the concerns of the Committee. What is alarming is Mr. Condon’s unreal approach to his serious position. A short extract from the transcript demonstrates this. On page 38 the following occurs:-
“Mr. Murphy: Before you enlighten us on that subject, could you please address the fact that despite everything you’ve said, I drew your attention to the fact that there had been eight findings of misconduct against you by the Disciplinary Tribunal your response to that appears to be that the Tribunal was incorrect. The Tribunal made a wrong decision.
Mr. Condon: Yes they were incorrect in that.
Mr. Murphy: Did you appeal these decisions?
Mr. Condon: I didn’t, because I didn’t realise they would come back to me like this. But I may well now appeal it as part of this exercise here. Now, Mr. Murphy …
Mr. Murphy: Sorry, Mr. Condon, I really have no interest in hearing you attempting to enlighten the Committee on the definition of the word misconduct.
Mr. Condon: Well, maybe other people have.
Mr. Murphy: I doubt it.
Mr. Condon: Misconduct can mean at one end, and it used to mean solely something very dishonourable that would bring the profession into disrepute. It’s now been statutory, (sic) the definition has been statutory (sic) extended to any breach of the Solicitors Act, so anything minor like if you didn’t do a thing exactly in time. I do not do anything reprehensible. I’ve had loads of opportunities to make a lot of money like backdating documents or pretending transactions happen before they have, I don’t do that stuff and if there’s any misconduct or whatever, it’s just basically not getting around to do anything or something, that’s what it comes down to. And I think the records for the last two years will show that’s improved if not changed.”
70. That gives a flavour of Mr. Condon not merely failing to engage with the Committee in respect of its concerns but failing even to realise that eight findings of professional misconduct mean what they say and are very serious. He does not even appear to have a clear understanding of what misconduct is.
71. As to his complaint concerning the failure to grant him an adjournment, at p.44 of the transcript Mr. Condon’s solicitor was asked if he had an application purely for an adjournment. He answered that he did not. When asked what his application was, he said it was that the Committee should consider a proposal that did not involve supervision.
72. A consideration of the transcript demonstrates to me that the Committee was entitled to proceed as it did. It was not obliged to grant any adjournment. That was a matter of discretion which was in my view exercised quite correctly. The context of the application for the adjournment in any event was as I have just set out and was not for an adjournment simpliciter but rather to consider a proposal that did not involve supervision.
Complaint No. 4
73. This complaint concerns the merits of the decision. It is contended that there was no justification for the stance taken by the Committee.
74. Pursuant to the provisions of s.49 it was for Mr. Condon to satisfy the Society that he should be issued with a practising certificate. As I have already made clear, while at the meeting of the Committee he not only failed to address the issues as put to him by the Committee members but demonstrated a remarkable lack of understanding of how serious findings of professional misconduct are for a solicitor.
75. He had already had the benefit of the judgment of my predecessor in respect of his appeal concerning the 2015 practising certificate where Kearns P. said:-
“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 until such 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.”
76. A consideration of the transcript of the meeting with the Committee demonstrates that those observations of Kearns P. appear to have had little or no impact on Mr. Condon.
77. In the light of all of these circumstances I am of the view that not merely was the Committee justified in taking the view that it did but that the conditions specified by it were the minimum that could reasonably be expected. I hold that there is no legitimate basis for criticism of the Committee in respect of this complaint. There remains the question of what ought to be done at this juncture having regard to the statutory provisions.
Powers of the Court
78. This is an appeal which is brought pursuant to the provisions of section 49, subs. (3) of the Act. Subsection 6 insofar as it is relevant provides as follows:-
“(6) On hearing an appeal under subsection (3) of this section, the President of the High Court may—
(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.”
79. As is clear from the extract from the judgment of Kingsmill Moore J. which I have cited at para. 55 of this judgment I must consider matters as they stand as of the date of this appeal.
80. The current position from the Law Society’s point of view is set out in the final paragraphs of the affidavit of Ms. Fenelon. There she says:-
Ms. Fenelon then exhibits a copy of a ruling delivered by my predecessor on 31st July, 2015 in litigation in which Mr. Condon was sued in his capacity as a solicitor. The application was for attachment and committal by reason of his failure to comply with an order made on 18th May, 2015 that he pay over the sum of €23,000 to the applicant. He had been holding this sum along with other monies in respect of fees allegedly due for work connected to the administration of two estates. The ruling makes it clear that the application to commit had been adjourned on a number of occasions and the respondent had been afforded every opportunity to comply with it. The President took the view that the committal of the respondent was warranted and directed that he should be committed to prison until such time as he elected to purge his contempt by complying with the terms of the order of 18th May, 2015.
81. Her affidavit continues:-
“78. The Society is firmly of the view that no member of the public should be exposed to dealing with a solicitor who has shown persistent contempt for the Society’s regulatory function and for multiple orders of the High Court made against him unless appropriate conditions are first imposed on that solicitor.
79. The Society is concerned that the applicant has no concept that the purpose of supervision is in his own interests as much as anyone else’s. As set out above, the supervision for 2015 lasted for a week and ended with the applicant threatening to sue his own nominated supervisor following an unfavourable report. The applicant has now instituted the within appeal to seek to return to his preferred position of a practice certificate with no conditions at all. I say that all of this suggests to the Society that the applicant has no insight at all into the necessity or purpose of the regulation of the profession.
80. In all of the circumstances the Society respectfully believes that the applicant should give the current supervision arrangement a chance to work and this would be far more constructive than persisting in endless litigation against the Society with the aim of avoiding the protection and assistance that a supervisor can provide.”
82. Mr. Condon correctly makes the point in a replying affidavit that the matter of his committal to prison was not raised before the Committee and therefore he was not given an opportunity to address it. That is undoubtedly the case. However I am obliged to consider this appeal on the state of the evidence put before me. The fact that a committal order had to be made against a solicitor in order to ensure compliance with an order of this Court is a further justification for the notion that Mr. Condon does require to be under supervision in his practice as a solicitor.
83. I am also of the view that the averment contained at para.79 of Ms. Fenelon’s affidavit to the effect that Mr. Condon has no concept that the purpose of supervision is in his own interests as much as anyone else’s is correct. What went on at the meeting of the Committee in January 2016 demonstrates that he has no real insight into the seriousness of his position, the substandard nature of his practices, the numerous findings of professional misconduct and the plethora of litigation that he has engaged in. The fact the he has appeared in the Solicitors Disciplinary List on more occasions than any other solicitor must surely register with him.
84. I am satisfied that the Law Society is fully justified in requiring him to practise subject to conditions and in the schedule to this judgment I set out the conditions which were proposed for this year and which, in my view, are entirely reasonable.
85. I conclude by hoping that from Mr. Condon’s own personal point of view this will be the final chapter in this saga of litigation. He would be well advised to cooperate with the supervisory regime which is in place and, if called before the Committee in respect of a practising certificate for 2017, to address its concerns in a constructive way. If he fails to do so the consequences for him could well be more serious than being granted a conditional practising certificate.
Disposal
86. I refuse the application to direct the issue of a practising certificate to Mr. Condon without conditions. I refuse to rescind the direction given by the Committee and confirm that the practising certificate of Mr. Condon for 2016 be subject to the conditions set out in the schedule to this judgment.
Schedule
It having been agreed that Mr. O’Rourke is to be Mr. Condon’s supervisor the following are the conditions applicable to the supervision.
1) Mr. O’Rourke to be provided with full details of any complaints that are made against Mr. Condon or his practice.
2) Mr. Condon to provide Mr. O’Rourke with details of any complaints that are made or any circumstances that are likely to lead to complaints being made.
3) Mr. O’Rourke to have access to all incoming and outgoing post and the post to be opened by Mr. O’Rourke at least once a month.
4) Mr. O’Rourke to have access to (in addition to the recent correspondence) such files and records as he requires to carry out his role.
5) Mr. O’Rourke to conduct a file review in respect of any new complaints or any circumstances giving rise to complaints within fourteen days of receipt of the complaint in writing and within fourteen days of the receipt of written notification of circumstances.
6) Holding letters to be sent to complainant within seven days informing them that Mr. O’Rourke will be dealing specifically with the issue with a view to resolving same in a timely fashion.
7) A full response to be sent within fourteen days or as soon as is reasonably practicable with regard to new complaints. This is to be central to the role of Mr. O’Rourke.
8) All Law Society correspondence to be acknowledged as soon as practicable after receipt and to be fully responded to within fourteen days in conjunction with Mr. O’Rourke. This is also to be central to the role of Mr. O’Rourke.
9) Mr. O’Rourke to attend at Mr. Condon’s offices at least once a week at a time of his discretion.
10) Mr. O’Rourke to attend any meeting required by the Law Society with Mr. Condon.
11) Mr. O’Rourke to give a monthly report to the Committee on the supervision of the practice, such report to include whether there have been any complaints or potential complaints and if so, what steps are to be taken to deal with same.
12) Mr. O’Rourke to be required to give at least one month’s notice to the Society if he intends to terminate the supervision.
13) Mr. O’Rourke to remain supervisor of Mr. Condon until the end of the current practice year.
14) Mr. Condon to copy directly to Mr. O’Rourke all correspondence from the Complaints Section of the Law Society.
